Scottish Affairs CommitteeWritten evidence submitted by Professor Adam Tomkins, John Millar Professor of Public Law, University of Glasgow

Introduction

1. In recent years Parliament has addressed, through legislation and otherwise, a large range of constitutional questions, from fixed-term Parliaments to the electoral system for the House of Commons. On one view, all constitutional questions are important. In my view, however, there are in Britain today two pressing issues of constitutional reform that are more important than all others. Both are “ripe” issues, which the current Parliament will have to confront. The first is the relationship between the courts and parliamentary government. This matter is being addressed, for example, by the Bill of Rights Commission; it is at the core of the argument over whether convicted prisoners should be permitted to vote (and who should decide); it is the matter that lies at the heart of the Human Rights Act 1998 and the Constitutional Reform Act 2005. The second is the future of the Union(s) that make the United Kingdom what it is and, in particular, the future of the Union with Scotland. There is no constitutional question facing the United Kingdom more important, or more pressing, than this.

2. For this reason, I warmly welcome this inquiry. The greatest mistake that could be made about its subject-matter is that it is a question affecting Scotland only. It is not. Scotland’s constitutional future, whether within the United Kingdom or not, is a question that affects the whole of the UK. Separation, independence, independence-lite, devo-max, Calman-plus, or full fiscal autonomy—whatever the label and whatever the contents of the package—the matter concerns the United Kingdom and all of its various parts. The subject-matter of the Committee’s inquiry is not, and must not be seen as being, an exclusively or parochially Scottish affair.

3. Yet, already the dangers of this happening are apparent. Through force of personality and on the back of a remarkable electoral triumph, too many of what ought to be the leading political players are acting as if the Scottish Government has ownership of the question of Scotland’s constitutional future. For reasons that I shall explain, legally and constitutionally it does not. Yet, since last May, it is the Scottish Government and the Scottish National Party that have been on the front foot and the United Kingdom Government and the Conservative, Labour and Liberal Democrat parties that have been on the back foot. This is dangerously unbalanced, and is no way to conduct the serious business of constitutional reform. If your Committee’s inquiry can begin to undertake the task of rebalancing, it will surely be in the interests of Scotland and the United Kingdom alike.

4. I submit this written evidence as a professor of public law in the University of Glasgow. I have held the John Millar Chair of Public Law at that University since 2003. Before that I taught at Oxford and, before that, at King’s College London. All my legal training was in England, but I have lived in worked in Scotland for more than eight years now. I have written numerous published works on constitutional law, including most recently Turpin and Tomkins, British Government and the Constitution, the 7th edition of which was published by Cambridge University Press earlier this year.

5. I should add that, in addition to being a professor at Glasgow, I have since 2009 been a legal adviser to the House of Lords Select Committee on the Constitution. This evidence is submitted solely in my personal capacity; it is not to be taken as representing the view of any member, official or committee of the House of Lords.

Constitutional Principles

6. The focus of my evidence is on the constitutional and legal implications of the issues under investigation in your inquiry. My evidence rests on the following constitutional principles and observations.

While the Scotland Act 1998 is a complex and subtle piece of legislation in some respects, on the question of whether the constitutional law pertaining to the Union is devolved it is admirably clear and concise: the Union is a reserved matter over which neither the Scottish Ministers nor the Scottish Parliament are competent to act.

Referendums, while generally only advisory in the United Kingdom (owing to the sovereignty of Parliament), are nonetheless constitutionally significant and should never be underestimated or taken lightly; they require the most careful and expert regulation—this last point is a constitutional principle of considerable importance.

The Scottish Ministers do not speak for Scotland generally (either in law or in fact). In law they speak for Scotland on devolved matters. The extraordinary and unambiguous electoral victory of the Scottish National Party in May 2011 must not be allowed to obscure this. In saying this I do not undermine for a moment the undoubted democratic mandate that the SNP earned through its victory. But winning a Scottish parliamentary election entitles a party to govern subject to the rule of law; it does not entitle a party to seek to rule in a manner that disregards the legal limits to its powers; this is true irrespective of the size or weight of any party’s mandate. Scottish devolution is of course a scheme of democratic and parliamentary government. But even more fundamentally than that, it is a scheme of law. If authority is needed for this rather basic proposition, it is amply found in decisions such as Whaley v Watson 2000 SC 340 and AXA General Insurance v Lord Advocate [2011] UKSC 46.

7. The UK—and, in particular, HM Government and the UK Parliament—has the constitutional right to ensure that public bodies act constitutionally and do not act or seek to act unconstitutionally. In the event that (for example) HM Government considered that a provision in an Act of the Scottish Parliament was unlawful as being outwith legislative competence, the Government’s law officers (the Attorney General and the Advocate General) may refer the matter to the UK Supreme Court (Scotland Act 1998, s. 33). An important function of the Scottish Affairs Committee, if I may say so, is to hold HM Government to account for the ways it uses and for the ways in which it considers that it may in the future use these powers.

8. With these general constitutional principles in mind, I will address the six questions the Committee has identified.

Which jurisdiction should conduct a referendum and what is the legal basis for deciding this?

9. This is a question of law that requires to be answered (by a court if necessary) in accordance with the Scotland Act 1998. Legally, the answer to the question asked by the Committee depends upon what the referendum question is (or questions are). If the question is “Should Scotland remain in the United Kingdom” that is a question on a reserved matter and should therefore be asked (if at all) by HM Government under the authority of an Act of Parliament. Were the Scottish Ministers to seek to ask such a question in a referendum held under the authority of an Act of the Scottish Parliament (“ASP”), there is (at the least) a very strong argument that the ASP would be outwith competence and therefore “not law” under s. 29 of the Scotland Act 1998 and that the Scottish Ministers would be acting outwith their devolved competence if they sought to exercise powers in pursuit of such an ASP (Scotland Act 1998, s. 54). If the question is “Should the Scottish Government seek to renegotiate with HM Government the terms of the Union” my view would be the same: this is a reserved matter, even if the referendum question somehow made clear that the renegotiation was not intended to end the Union and that the proposal was not that Scotland should leave the United Kingdom.

10. I would argue that the questions suggested by the Scottish Government in its February 2010 consultation paper, Scotland’s Future: Draft Referendum (Scotland) Bill would also have been susceptible to challenge for want of competence. The first question was “Do you agree with the proposal that the Scottish Parliament should have its powers and responsibilities extended as described [in the Scottish Government paper, Your Scotland, Your Voice]”. The implementation of any affirmative answer to this question would require the modification of the Scotland Act 1998. Yet para 4 of Schedule 4 to the Scotland Act 1998 provides that “An Act of the Scottish Parliament cannot modify … this Act” (this is subject to certain exceptions, but these are not relevant here). The ballot paper containing this question would have made clear that this proposal would entail the Scottish Parliament becoming responsible “for all laws, taxes and duties in Scotland”, subject to limited exceptions. Yet the following are expressly listed as reserved matters: “fiscal, economic and monetary policy, including … taxes and excise duties …” (Scotland Act 1998, Sched 5, part II, para A1).

How should such a referendum be initiated: eg, via a provision in the Scotland Bill?

11. A succession of British Governments appears to have conceded that if Scotland wishes to secede from the United Kingdom, so be it. That is to say, it is not British Government policy (as far as I can ascertain) that Scotland should be compelled by force to remain in the Union if it has clearly demonstrated that it wishes to leave. Given this, and given also that, for the reasons given above, it is difficult to see that the Scottish Parliament has the competence to legislate on the matter, there is a strong constitutional case that it would be preferable for the United Kingdom Parliament to legislate on the matter, and for it to do so as expeditiously as possible. Thus, from a constitutional point of view, for the UK to hold (at the UK’s expense) a referendum in Scotland that asked the straightforward question: “Do you wish Scotland to secede from the United Kingdom?” looks like an extremely attractive option. It would certainly have the welcome effects of making it clear, first, that the question of Scotland’s constitutional future is not an exclusively Scottish concern and, secondly, that the Scottish Ministers do not have a monopoly on the matter. While they do not have a monopoly, they clearly do have a mandate. The UK Government should acknowledge this by treating the SNP’s victory in the 2011 Scottish parliamentary election as the trigger for the holding of a referendum. For the United Kingdom to hold the referendum would have several further advantages: it would be held under the powers contained in the Political Parties, Elections and Referendums Act 2000 (see further on this below); and it would be regulated by the Electoral Commission (again, see further below). And, of course, there could be no doubting the legal validity of such a referendum. There is absolutely no doubt whatsoever that the United Kingdom Parliament may legislate so as to provide that a referendum be held in Scotland on this matter.

12. This, in a nutshell, is a basic legal and constitutional case. For the time being I leave it to others to analyse whether adopting such a course would be politically prudent.

What should be the process for determining the timing?

13. This is a political question, although there is a view that constitutional considerations should preclude the holding of a referendum on the same day as other elections are held. The House of Lords Constitution Committee in its report on referendums (12^th report of 2009–10, HL 99, April 2010) stated at para 145 that “referendums should not be held on the same day as General Elections” and that for other elections “there should be a presumption against holding referendums on the same day as elections …”.1 The AV referendum in May 2011 was held on the same day as elections for the Scottish Parliament and devolved assemblies in Wales and Northern Ireland. Matters of timing are considered by the Electoral Commission in their reports on these referendums (see further below).

How should the eligibility criteria for voting be determined?

14. Eligibility criteria for a referendum in the United Kingdom are (for the time being) properly determined by the legislation that provides authority for the referendum in question. Thus, the eligibility criteria for the March 2011 Welsh referendum were set out in the Government of Wales Act 2006 (s. 103 and Schedule 6) and those for the May 2011 AV referendum were set out in the Parliamentary Voting System and Constituencies Act 2011 (s. 2). Both of these referendums used eligibility criteria already in existence: they did not require new eligibility criteria to be created afresh. Thus, persons entitled to vote in the Welsh referendum were those persons entitled to vote in Welsh local government elections; and persons entitled to vote in the AV referendum were those persons who would be entitled to vote in a General Election were one to be held on the day in question.

What is the role of the UK Government, the Scottish Government and the Electoral Commission in the process?

15. In addressing this question I wish to focus on the role of the Electoral Commission and on the law as established by the Political Parties, Elections and Referendums Act 2000 (“PPERA”). It is a matter of the greatest constitutional importance that voting in elections and referendums alike is fair and is manifestly seen to be fair. This requires expert regulation. We are fortunate in the United Kingdom now to have a regulator dedicated to this task: the Electoral Commission.

16. The legislative scheme for referendums is that a series of generic rules are laid down by or under the authority of PPERA (including certain aspects of timing, campaign finance, as well as rules pertaining to the designation of lead campaigns, etc). But PPERA does not confer authority to hold any particular referendum. It remains the case that each referendum requires its own, bespoke, statutory authority. This division—between the generic rules laid down in advance by or under PPERA, on the one hand, and the rules specific to a particular referendum, on the other—is constitutionally important, as it prevents those seeking to establish a particular referendum from being able to “rig” the rules so as, for example, to encourage one result rather than another. Further, both PPERA’s generic rules and those contained in the legislation establishing a particular referendum are policed and enforced by the Electoral Commission. A large range of matters, from the question itself to the registering of campaign donations and from campaign spending to the administration of the voting, falls within the Electoral Commission’s jurisdiction.

17. And here’s the catch. PPERA applies only to referendums established by an Act of (the UK) Parliament. Likewise, the jurisdiction of the Electoral Commission covers referendums established by an Act of (the UK) Parliament. Were a referendum to be lawfully held on Scotland’s constitutional future and were that referendum to be held on the authority of a lawful Act of the Scottish Parliament (“ASP”), there is nothing in principle to prevent either PPERA or the jurisdiction of the Electoral Commission being extended so as to cover the referendum. Yet this is not what the Scottish Government proposed in its February 2010 consultation paper, Scotland’s Future: Draft Referendum (Scotland) Bill. Rather, that Bill would have established a new body, the Scottish Referendum Commission, as a one-off body to regulate the referendum. The one ASP would have provided both the generic rules (contained for the UK in PPERA) and the specific rules for the particular referendum. The Scottish Referendum Commission would have been responsible to the Scottish Parliament, not to the United Kingdom Parliament, and its members (three Commissioners) would have been nominated by the Scottish Parliament. These arrangements, suggested by the Scottish Government in February 2010 it is to be recalled, would be self-evidently inappropriate now, given that the Scottish Government commands an overall majority in the Scottish Parliament. There must be a regulator for any referendum on Scotland’s constitutional future that is genuinely and fully independent and that may manifestly be seen to be so. I can see no good constitutional reason for saying that that regulator should be anyone other than the Electoral Commission; and the relevant provisions of PPERA should be made to apply accordingly.

What lessons may be learned from the experience of other referendums in the UK?

18. The Electoral Commission has published full reports on both of the referendums held in the UK in 2011 (the Welsh referendum in March and the AV referendum in May). These reports were published in June 2011 and October 2011, respectively; they merit careful and detailed examination. Both are available on the Electoral Commission’s website. The reports contain expert analysis of the lessons to be learnt. I shall not attempt to summarise these reports here.

Other matters

19. In addition to these six questions, the Committee asks for initial views about the matters that will require to be clarified before a referendum can be held. On this matter I would say the following. It is clear, as the Committee’s call for evidence demonstrates, that even on the subject of independence there is a broad range of issues on which clarification would be needed in advance of a referendum. I would agree that each of the items on the Secretary of State’s list, cited by the Committee, should be on that list. But moreover, it seems clear from a range of public statements that the Scottish Government is not thinking only in terms of independence. There has been quite a lot of talk, for example, about a three-way referendum, with “full” independence and the status quo being two options, and something in between being the third. It is not remotely clear (to me) what this third option would entail but it seems, so far as I understand it, to amount to Scotland having full fiscal autonomy (a phrase in want of a definition!) without having all of the hallmarks of a “fully” independent state. Now, at least four matters would have to be clarified before any such option could be put in a referendum: (a) what, precisely, would be the legislative and executive powers vested in Scotland and what would remain with the UK; (b) could it work—ie, is it politically deliverable, is it economically coherent, is it viable; (c) would it be acceptable to the rest of the United Kingdom; and (d) would a three-option referendum be constitutionally acceptable, even assuming (a)-(c) could be satisfactorily answered?

20. For a referendum to be constitutionally acceptable, the questions to be asked must be crystal clear as to their meaning and their effects. That is to say, the options must be clearly defined, and it must be clear what the consequences are of voting in any particular way. As to the first, it should be stressed that it is not enough that the options are capable of being clearly defined. They must in fact be clearly defined in advance of the referendum taking place. (This occurred in 1997, with the publication of the White Paper, Scotland’s Parliament pre-dating the referendum by some two months.) As to the second, with a three-way referendum, what would be the consequences of the following vote, for example: on a 65% turn-out, 35% of those voting vote for the status quo, 40% of those voting vote for full fiscal autonomy, and 25% of those voting vote for full independence? Would not the consequences of this and many other possible permutations have to be explained in advance of the referendum, so that voters knew where they were likely to stand? The importance of such questions brings us back, of course, to the points made earlier that, from a constitutional point of view, it is imperative that any referendum be expertly, professionally and fairly regulated. A key component of the Electoral Commission’s functions with regard to referendums that fall within its jurisdiction is to ensure that the question asked is intelligible.

Conclusion

21. I end this evidence with a question. On 23 October 2011 a story appeared on the BBC website entitled “SNP treads road to independence”. (At the time of writing the story is available here: http://www.bbc.co.uk/news/uk-scotland-scotland-politics-15420671.) The story contained the following claim: “Work is under way to design an independence blueprint that can command popular support. Much of this work is being done by a team of officials, who serve the Scottish government …”. Now, I do not know, of course, if this claim is true. But assuming for the moment that it is (and I have no reason to suspect otherwise), is this legal? Is it competent within the terms of the Scotland Act 1998 for officials to undertake work along these lines on the instruction of Scottish Ministers? Recall that the competence of Scottish Ministers is limited along similar lines to that of the Scottish Parliament (see Scotland Act 1998, s. 54(3)). If it is incompetent and unlawful for the Scottish Parliament to legislate on independence, is it not likewise incompetent and unlawful for the Scottish Ministers to instruct their officials to prepare the groundwork for independence? If public money is now being expended in a manner that is ultra vires, is this not a matter for the courts, for the Scottish Parliament and, indeed, for the United Kingdom Government? Who, if anyone, has signed off on the legality of this work? Does HM Government accept that this work is legal? If not, what is proposed to be done?

22. The most important point is this: whether work such as this is lawfully or unlawfully carried out, it surely cannot be in the public interest either of the people of Scotland or of the people of the United Kingdom for such an extraordinarily important project of constitutional reform as the possible break-up of Britain to be developed in a fog of legal uncertainty.

November 2011