I am delighted to host two very thoughtful blog posts from Scots lawyers on the issue of Independence for Scotland. I have, with their permission, taken their published posts from their blogs and hosted them here. Given the fact that we are, for the present, a United Kingdom, I thought these would be thought provoking. Love and Garbage and Lallands Peat Worrier are serious law bloggers who, it has to be said, also enjoy twitter – which is how and why I ‘met’ them.
Conjuring tricks, legislative competence, and referenda
As a child I was taken to a magic show, where the conjurer practised close-up magic. He’d wave the cards in front of you, and wonder of wonders you’d miss the sleight of hand. Until he tried it with a small boy who saw that the conjurer held two cards together pretending they were one.
What does that have to do with politics, though?
Well, a little while ago I noted how ignorant certain journalists were on matters relating to human rights – meaning that the incoherent Conservative policy escaped scrutiny during the election campaign. Scottish journalists are not exempt from similar criticisms. Too often the framework within which the Scottish Parliament operates is ignored when the political dimension of the Parliament is considered. The ignoral is a mistake. Smoke, mirrors, bluster, and crashes and bangs are classic distraction techniques – designed to draw attention away from the real position. Journalists and those scrutising our politicians should try not to be distracted.
The Scottish Parliament was not born free. It is a statutory creation, its powers circumscribed by the legislation establishing it. The Parliament, and the Scottish government (the executive within the terms of the Scotland Act 1998) can only act in accordance with the powers conferred upon it by the Scotland Act 1998. This was apparent before the Parliament was established. The restriction confirmed by the courts in Whaley v Lord Watson 2000 (later confirmed by the House of lords).
But the restrictions on the Parliament are sometimes forgotten (caught up sometimes in confusion between and conflation of the Westminster and Holyrood legislatures – Westminster notionally being the beneficiary of a doctrine of parliamentary supremacy (an English concept the Scottish courts reject as an absolute). And this means that pledges and promises made by Scottish parties in Scottish campaigns are therefore questioned only on a political basis without adequate scrutiny of whether a proposal can actually be implemented.
Consider for example a saga that began 3 years ago. In August 2007 the Scottish government issued the white paper that formed the centrepiece of the “national conversation”. This white paper proposed the holding of a referendum on scottish independence and included a draft bill to that effect. The period since then has seen much consultation, more detailed bills (pursuing the same central objective) – but the legislation has not been forthcoming.
Three years ago I suggested that legally (within the context of the Scottish parliament) the national conversation was hanging on a shoogly peg. I noted the following,
“ The powers of the Executive and Scottish Parliament are determined by the Scotland ACt 1998. This ACt provides that any bill which is put forward must be compliant with the scheme of devolution. If a bill is not on a devolved topic then it cannot enter the Parliament, never mind be passed. The 1998 Act provides that this is considered at at least two stages – first, the Presiding officer can prevent the bill entering the Parliament at all (a rule already exercised – probably inaccurately – when a bill which attempted to prevent the right of appeal to the House of Lords in civil court cases was rejected); second, the Advocate General (a UK government law officer) can – if a bill is passed by the Parliament – judicially challenge it before royal assent is given.”
And suggested that,
“The presiding officer is unlikely to give approval to the bill (given the precedent of rejecting a previous bill deemed to have constitutional import). ”
I suggested that the white paper engaged in elaborate sophistry as the legal problems inherent in the constitutional settlement were ignored, or downplayed with qualifying words.
While there has been toing and froing on the referendum I have been waiting for the inevitable. My view was that no bill would be introduced into the Parliament because a bill on the topic cannot fall within the legislative competence of the Scottish parliament. I expressed this view in blog comments in various places on the net (eg here). Imagine my astonishment yesterday then when the Sunday herald broke an exclusive story indicating that the referendum was being shelved.
The Sunday Herald report is an interesting one. It focuses on the fact that Mr Salmond believes that the bill will be voted down and therefore the bill will not be introduced. That political angle is the one that has been followed up in the reports yesterday and today (BBC, Brian Taylor, Scotsman). And it is the political element that has been followed up by bloggers (including the team at the excellent new Better Nation blog, Joan McAlpine, Colin Fox, and burdzeyeview,)
However, hidden away in paragraphs 14 and 15 of the Herald report is the news that most lawyers interested in the area expected to see:
“SNP sources also said the First Minister revealed there were legal problems surrounding the wording of the referendum question.
This related to talks between the Government and the Parliament’s Presiding Officer, who has to rule whether a Bill falls within the powers of Holyrood.”
This is no surprise, but will form the focus of this post as it has been ignored elsewhere.
During a previous session of the Scottish Parliament SNP MSP Bryan Adam proposed a Civil Appeals (Scotland) Bill which would have abolished the right of appeal from Inner House of the Court of Session to the House of Lords. The presiding officer (on his legal advice) ruled the bill fell outwith the competence of the Parliament. The justification was that the bill would have had an impact on the general constitutional reservation found in Schedule 5 to the Scotland Act 1998. If something which proposed to regulate an aspect of the legal system (against the context of the general devolution of matters relating to the courts, court procedure, and private law) is outwith the competence of the Parliament – then a bill which is about entering negotiations for the establishment an independent nation with its own legal system and legislature (or the break up of the United Kingdom, depending on your political preference) seems bound to have an impact on the United Kingdom Parliament (one of the matters on which legislation is expressly reserved to Westminster and on which the Scottish Parliament has no competence) and accordingly it would seem likely to be ruled by the presiding officer’s legal advisers as falling outwith the legislative competence of Holyrood.
I think that establishing that a bill on a purely constitutional matter falls within the legislative competence of the Scottish Parliament will be a difficult task. Schedule 5 of the Scotland Act seems pretty clear.
However, I was somewhat surprised today to read a post from the excellent Joan McAlpine that suggested that matters could be dealt with without a bill. Dr Matt Qvortrup – a senior lecturer in international relations and “ described by the BBC as the “world’s leading expert on referendums”” had written an article for the Herald during the summer. Dr Qvortrup wrote what, to a lawyer interested in the constitutional position, is a startling piece.
“The referendum can be held after a so-called Order in Council, or by a Scottish Statutory Instrument (SSI). That is to say, the First Minister can decide to simply use his executive powers to have a consultation.”
Joan McAlpine, relying on the article, writes,
“Politically, such a move could put the Holyrood unionist opposition and the coalition Westminster government in a very tricky situation. If this consultative exercise included a devo max option alongside full independence, the outcome would certainly be a majority of Scots opting for radical change. That would put the SNP in a powerful position going into the 2011 election and, afterwards, if they formed a government. Whatever happened, the flawed Calman proposals would be holed below the water.
I am aware that this a sharp-intake-of-breath suggestion. The opposition could sink it with a no confidence vote. Would they dare? If they did, the issues at stake would be made very clear indeed. It should at least be examined.”
Dr Qvortrup’s proposition is startling to a lawyer because it is flawed in two fundamental respects.
First, Orders in Council or statutory instruments are examples of delegated legislation. The right to grant executive orders is (as are the powers of the Scottish Parliament itself) circumscribed. There are no general rights to legislate as an executive wishes. A government minister cannot decide that I would like to pass laws which require people to do X. A power so to legislate is required. A quick look at the Scottish statutory instruments demonstrates this. Each narrates the power under which the statutory instrument is made. Delegated legislation then involves the delegation of a power to legislate to the executive and any subordinate legislation (such as an Order in Council or statutory instrument) which is laid by the Scottish government has to be laid in the exercise of a legal power delegated to the government. I can find no legal power to hold referenda delegated to Scottish ministers. None is referred to in the leading modern Scottish texts on constitutional law. Additionally, I have trawled material from pre-devolution (where certain powers delegated to ministers are now delegated to Scottish ministers); have examined material in Scottish and British writings on constitutional law to determine if there would be such a power delegated under prerorgative powers (I can find no such power); and have looked at post-devolution legislation from the Scottish Parliament and Westminster and can find no such power. If there is no such power delegated there can be no Order in Council or statutory instrument. I accept that such a trawl will not have been exhaustive. However, this leads to the second flaw in Dr Qvortrup’s position.
Delegated legislation is not automatically waved through. Just because a minister says something does not mean that it becomes the law. The procedure for consideration of delegated legislation is set out in rule 10 of the Standing orders of the Scottish Parliament. Delegated legislation either requires affirmative procedure (meaning it requires the approval of the Parliament) or if it is not subject to affirmative procedure can be annulled.
Let us assume that contrary to my researches Dr Qvortrup is right and a power to legislate to hold a referendum has been delegated to Scottish ministers. Let us assume as well that this fictitious power does not provide that any statutory instrument or Order in Council has to be approved affirmatively. Dr Qvortrup bizarrely suggests that
“In Scotland’s case, the only option open to the Opposition would be to table a motion of no confidence in the administration.”
Sadly for Dr Qvortrup this is palpable nonsense. The position is set out in rule 10.5 of the standing orders:
“1. In the case of any draft instrument laid before the Parliament where the instrument may be made without the approval of the Parliament, any member (whether or not a member of the lead committee) may, no later than 40 days after the draft instrument is laid, by motion propose to the lead committee that the committee recommend that the instrument be not made (or, in the case of a draft Order in Council, be not submitted to Her Majesty in Council).”
This is not a motion of confidence in the government (with all of the implications involved therewith). This is simply a motion to annul (or a negative resolution) which would be dealt with and may be voted on in the normal way. Any member could make such a motion – from the humblest backbencher.
The political implications of holding a referendum are also considered by Dr Qvortrup. But until he – or one of those advocating the circumventing of Parliament by executive power – can point to a power that would entitle the Scottish government to lay delegated legislation and do this – and which would circumvent rule 10 of the standing orders, I suggest that no referendum can competently be approved by the Scottish Parliament.
The central plank of the SNP manifesto then will be a policy they cannot implement within the confines of the Parliament they are running for (although of course politically, an SNP majority vote would make any demand for such a referendum to be passed by Westminster politically impossible to resist).
Edited on 7th Sept at 4.45 pm to note the excellent response from Lallands Peat Worrier on the legality of the referendum bill. I disagree, but I think it is important that the argument is heard and engaged with by both sides. The failure of both sides to do so thus far (and journalists to scrutinise) says much about our system.
And.. from Lallands Peat Worrier….
Before the 2010 Westminster general election, I tore rather mercilessly into the legal illiteracy at the heart of Tory pre-election pledges on the Human Rights Act and the European Convention. “And why beholdest thou the mote that is in thy brother’s eye, but considerest not the beam that is in thine own eye?” asks Scottish legal blogger Love and Garbage in an important post suggesting that is the SNP’s proposed referendum on independence demonstrates our own illiterate grasp of the legal constraints of the devolution settlement. Either that or a wilful blindness which would hardly be more laudable. The public orthodoxy assumes that Holyrood is perfectly empowered to hold such a referendum. Even the opposition parties believe so. How else could Wendy Alexander have cried “bring it on”? The question then becomes a matter of pure politics, whether such a referendum should be held a question finally to be answered by the institutional majority. “Unionists have killed off the independence vote”, suggested Salmond this morning. This, argues Love and Garbage, is so much Eckly razzmatazz:
“The central plank of the SNP manifesto then will be a policy they cannot implement within the confines of the Parliament they are running for (although of course politically, an SNP majority vote would make any demand for such a referendum to be passed by Westminster politically impossible to resist).”
Why not? His starting point is the legislative instrument that is the parliament’s foundation ~ the Scotland Act 1998. As he rightly stresses, it is something that the Scottish media and the rest of us often lose sight of, but Holyrood is not an assembly at liberty to do as it pleases. The Act is structured with general and specific reservations. At the top of the general list in Schedule 5, we find the Constitution. Section 29 provides that “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…” and that “A provision is outside that competence so far as … (b) it relates to reserved matters…”. So, how is the phrase “relates to a reserved matter” to be construed? The Act offers this guidance:
(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.
“For example, the subject-matter of the Carriage of Goods by Sea Act 1992 is a reserved matter: para 1 and Section E3 of Part II of Schedule 5 to the 1998 Act. Obviously, therefore, if the Scottish Parliament purported to pass a Carriage of Goods by Sea (Scotland) Act with the sole purpose of repealing the 1992 Act in Scots law, its purpose would relate to a reserved matter and so its provisions would be outside the competence of the Parliament by virtue of section 29(2)(b). In practice, such a clear example would be unlikely to get past the legal advisers to the Scottish Parliament. In real life the problem is likely to arise in more complex situations.” [Para 75]
“If something which proposed to regulate an aspect of the legal system (against the context of the general devolution of matters relating to the courts, court procedure, and private law) is outwith the competence of the Parliament – then a bill which is about entering negotiations for the establishment an independent nation with its own legal system and legislature (or the break up of the United Kingdom, depending on your political preference) seems bound to have an impact on the United Kingdom Parliament (one of the matters on which legislation is expressly reserved to Westminster and on which the Scottish Parliament has no competence) and accordingly it would seem likely to be ruled by the presiding officer’s legal advisers as falling outwith the legislative competence of Holyrood.”
I propose that we can distinguish this precedent quite simply from referendum. Or at least, might be able to make a manful legal argument to that effect. Assume that George Reid was correct and that the proposed Bill was beyond Holyrood’s competence. What about a Bill attempting to have a referendum on the subject of the Civil Appeals Bill? Holyrood couldn’t delegate powers for the Scottish people to make binding resolutions in a referendum. What if the public were asked “Do you agree that the civil appeal to the House of Lords should end?” As I understand him, on Love and Garbage’s logic such a referendum is incompetently “tainted” by its reference to a clearly reserved subject. Couldn’t we think about this differently and harden this contrast between admittedly incompetent affirmative legislation and legislating to institute a referendum process for the expression of public opinion on some subject which happens to be reserved? As I understand him, Love and Garbage is entirely consistent on this level. If the proposed referendum on independence is incompetent, surely my imaginary referendum on the Civil Appeals bill would also fall to be rejected.
I’d propose an alternative interpretation (I should stress, in a spirit of advocacy rather than in any certainty that a court would uphold my argument) and submit that legislating to conduct an advisory referendum on both reserved subjects can be distinguished and need not incompetently “relate” to the constitution as a reserved matter. All of this hinges on whether conducting a referendum on a reserved matter of itself “relates” to a reserved matter under section 29 of the Scotland Act. “Relation” is obviously not being used here in its common-sense definition of any tenuous connection. The Act suggests that we attend to (a) the purpose and (b) the effect of the legislation. So what is the essential purpose of a referendum on independence? As Lord Rodger noted:
“Sometimes, of course, the purpose of a provision may be obscure. And, even when it is not obscure, people may describe the purpose in slightly different ways” [Para 113]
This seems to me to be at the heart of the argument. How should the essential purpose of the referendum be described? On one level, we might say that its primary purpose is to canvass the opinions of the Scottish people. In law, it would have no binding effect. No legislative modifications would necessarily follow. Indeed, its lawful effect would simply be to set in motion a consultative process. Ascertaining the opinion of the Scottish people on a particular question is not a reserved matter. L&G would no doubt contend that this is a rather artificial analysis and that effect should be given a more expansive definition. Moreover, it is no secret what the general purpose of the SNP is in bringing such a referendum forward. He might be right in both respects. However, such arguments emphasise an important point. Whatever one’s immediate view of the merits of either contention, it seems fair to say that the authoritative judicial definition of “relation to a reserved matter” remains opaque. Alan Trench, a far more dexterous public lawyer than I am, has recently composed this worthwhile piece on the wobbly line drawn between devolved and non-devolved powers of the parliament. My point is that the competence and legality of any referendum is at least arguable, if one begins to accept the separability thesis I outline above. That said, Love and Garbage is quite right to emphasise that blithely assuming Holyrood can competently legislate for a referendum is problematic. I have no insight into the SNP’s legal advice or their legal thinking. However, I suspect that this analysis might also go some way to explaining the reported difficulties which were experienced in composing suitable wording.