Saturday 18 February 2012

Law and the independence referendum: is there really a "debate" to be had?

It can be tricky to separate law from politics. Some claim sincerely to believe that any Act passed by the Scottish Parliament which provided for the holding of a referendum on Scottish independence would be unlawful. We live in exciting times and the politics may be genuinely intriguing but is the law not actually, and drily, beyond any real debate?

The Scottish Parliament was established by The Scotland Act 1998 . It's the 1998 Act which set the extent of Parliament's legislative competence and it's the terms of that Act, then, which determine whether or not an Act to provide for the holding of a referendum would be lawful. 

Before we get there, though, there's a crucial preliminary. We have to remember what we're dealing with. As a matter of Scottish (and English and Welsh, for that matter) law, holding a referendum is simply an exercise in testing public opinion. Referenda are consultative, not binding. Parliament is free to choose, in its usual unfettered way, what to do in light of the result. As a matter of law, it can ignore the views expressed by a million voters in a referendum as it can those expressed by a million marchers on a demonstration or two million signatories to a Covenant. After a referendum, it may enact whatever legislation it wants or it may enact none. It may act swiftly, or consult, or inquire or vacillate. It may act quite contrary to the result and indeed Westminster has done so in the past: in the 1979 referendum, there was a majority vote in favour of establishing a Scottish Assembly but no subsequent legislation because that clear majority did not reach the 40% of the electorate test that the enabling legislation had set. The claim that there is a special moral force in a referendum result which must inexorably, or even probably, give it an "effect" is then, as a matter of historical fact, demonstrably untrue. A referendum has no effect, in and of itself, whatever the result. It may or may not have moral or political weight. It has no "effect".

The key provisions of the 1998 Act are as follows (emphases added):

1. The Scottish Parliament. 
(1)There shall be a Scottish Parliament.

28. Acts of the Scottish Parliament.
(1)Subject to section 29, the Parliament may make laws, to be known as Acts of the Scottish Parliament.

(6)Every Act of the Scottish Parliament shall be judicially noticed. ["Judicially noticed" meaning, more or less, treated as law by the courts]

29. Legislative competence.
(1)An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.
(2)A provision is outside that competence so far as any of the following paragraphs apply—
(b)it relates to reserved matters,

(3)For the purposes of this section, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (4), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.

30. Legislative competence: supplementary.
(1)Schedule 5 (which defines reserved matters) shall have effect.
(2)Her Majesty may by Order in Council make any modifications of Schedule 4 or 5 which She considers necessary or expedient.

33. Scrutiny of Bills by the Supreme Court.
(1)The Advocate General, the Lord Advocate or the Attorney General may refer the question of whether a Bill or any provision of a Bill would be within the legislative competence of the Parliament to the Supreme Court for decision.
101. Interpretation of Acts of the Scottish Parliament etc.
(1)This section applies to
(a)any provision of an Act of the Scottish Parliament
which could be read in such a way as to be outside competence.
(2)Such a provision is to be read as narrowly as is required for it to be within competence, if such a reading is possible, and is to have effect accordingly.
Reserved matters
Part I General reservations
The Constitution
1 The following aspects of the constitution are reserved matters, that is—

(b)the Union of the Kingdoms of Scotland and England

So, an Act declaring the Union dissolved would be “not law” (s29 and Schedule 5 1(b)). An Act might not specifically mention the Union but, say, declare Scotland to be an independent state. That would “relate to” the Union as, if it were law, it would have an "effect" on the Union, by dissolving it.

The Scottish Government proposes to pass an Act to allow it to honour the manifesto promise to hold a referendum on independence. Such an Act would be lawful unless prohibited by the terms of the 1998 Act. The holding of referenda is not prohibited and so is permitted. The claim against lawfulness is that the proposed referendum “relates to” (within the meaning of s29(3) – the crucial bit) the Union. The argument is that an Act to hold a referendum would, in itself, have an effect on the Union. That just can't be right. Faced with the argument you are forced almost to tautology but the purpose and, beyond anything other than specious argument, solitary effect of an Act to provide for the holding of a referendum is the holding of a referendum. The Act would have no other effect, at all. Even the result of the subsequent, supervening referendum would not have an effect. Only an Act, presumably following a "yes" vote, purportedly dissolving or amending the terms of the Union would have an effect. Such an Act would, in very clear terms of the 1998 Act and whatever the result of as many referenda as you like, be "not law". As a matter of the Act establishing it, the Scottish Parliament could not, even following a "yes" vote, unilaterally dissolve the Union. We might expect both Scottish and Westminster Parliaments to choose to do so, but only as a matter of morality, politics and international (not domestic) law.
The clincher in assessing the "effect" of the proposed Act has to be this: what is the effect of an Act to hold a referendum in which there is a “no” vote? There would be no effect on the Union at all. The effect of an Act providing for a referendum to be held is, therefore, simply that a referendum takes place and the electorate get a chance to express a view on the question asked of them. At the very least, it is difficult to see how it could be denied, in good faith, that this reading of the proposed Act would be "possible".  That's actually all that's needed as s101 would then bring the Act within competence. 

Lawyers really ought to be more at ease than some seem to be with the pretty straightforward concepts of causal link and supervening event. Though separate, the politics are happily just as simple. Everyone wants the referendum to happen. Some say, with professed regret, that they fear that the enabling provision might be open to some challenge, because of the way the 1998 Act was drafted. So dust off s30 and ask Her Majesty to change it. No need for conditionality. Then, the real debate can be had.


  1. A yes vote creates a moral and political momentum but lacks legal effect, if your argument is correct (and I've understood you properly).

  2. Well, yes, but what I was arguing was that even a "yes" vote is a further step on from just arranging to ask the question. Asking a question has no "effect" and creates no momentum at all, legal or otherwise. The answer might, depending on what it is, but not directly and not a legal effect without an Act. It would only be that later Act that could be the object of any coherent legal challenge.

  3. Ultimately the law in only what you wish it to be & it's effect upon those whom you wish it to legislate for/against.

    Of course, the ripping up of legislation is usually only conducted in extreme situations of anarchy & revolution but there are many cases where laws are simply ignored in times of peace.

    The barrier here is that Westminster will never willingly allow the dissolution of the Act of Union unilaterally by Scotland.

    But Scotland may yet declare it null & void. What happens after that though may range from street fighting, civil war, a Daily Mail anti Scottish orgasm or a handshake across the table & a polite, "Fuck off!".

    I think, short of a civil war, we'll experience all of the above. That's because patriotic BritNat zoomers will be incensed that a lot of folk have decided they no longer want to be part of Great Britain even if it really is a shite place to be.