Scottish Affairs CommitteeWritten evidence submitted by John Philip McAleer

Executive Summary

This evidential submission is in response to the invitation contained in the Select Committee Announcement (“the Announcement”) of 12 October 2011.

The evidence is divided into two parts, covering the two separate Inquiries referred to in the Announcement. I have retained the numbering contained in the Announcement.

The evidence contained in this submission is based upon reading and research on matters pertaining to the Constitution of Scotland and of the UK. Reference to matters which could be deemed political occur only where they illustrate, help to ground or otherwise place in context, constitutional matters. I have, however, attempted to be aware of cultural and political sensitivities throughout.

The First Inquiry

Since the Holyrood Election of May 2011, there has been extensive discussion of the constitutional position of Scotland and of the UK, of which the Committee will be aware. This discussion is inevitably political and, equally inevitably, takes place within the constitutional context in which politics operate. While it is often said that the UK lacks a written constitution, it is more accurate to say that it lacks a codified constitution and that reference may be made to statute, judicial decision and surrounding materials in examining and attempting to clarify constitutional questions.

There is a further issue of nomenclature and terminology, which has existed since the Scotland Bill of 1997, and before. The devolved body at Edinburgh is not, and cannot be regarded, constitutionally, as a parliament. This is due to the constitutional sovereignty of Parliament, which is indivisible. The term “parliament” is often used, colloquially, to describe other UK representative bodies, such as the Tynwald, the House of Keys, and the States of Jersey. Colloquial usage does not affect the constitutional position.

While this expresses the constitutional position, it is recognised that the institution of the “Scottish Parliament” and particularly the Scottish Parliament building, has come to occupy a significant role in the cultural and political life of the nation. It would be counter-productive and wrong to deny this cultural and political reality and would serve only to alienate citizens from participation in a rational examination of the constitutional issues before us.

Question 1

In examining the question of jurisdiction, while case law and commentary have been examined, the first point of reference is to the Scotland Act 1998 (“the Act”) and the schedules thereto. Schedule Five defines clearly the nature and extent of the powers reserved to Parliament and Schedule Six those which are devolved to the Scottish Administration. Schedule Five, is not on one view necessary, following the alterius rule of statutory interpretation, meaning, in this context, that any power which is not specifically devolved, is reserved. However, it has value in enhancing the clarity of the provisions.

The unequivocal answer to Question1 is that only Parliament has jurisdiction over a constitutional referendum anywhere in the UK. Any attempt by the devolved administration at Edinburgh to organize, promote or otherwise operate a form of plebiscite on separation in Scotland is unconstitutional and thus illegal.

With any such attempt, the administration could face challenge by process of Judicial Review (of Administrative Action) based upon the legal concept of ultra vires, meaning that of a statutory body acting outside the scope of its’ powers.

Question 2

On initiation, the options would appear to be:

(i)Inclusion of the enabling provisions in the Scotland Bill;

(ii)Initiation by means of enactment of a specific Bill devoted to the subject.

Q2(i) The Scotland Bill, currently in progress through Parliament, contains a number of amending provisions, still subject to debate and resolution. It is thought inappropriate and unwise to include a constitutional matter of such significance as separation for Scotland within these provisions.

Q2(ii) It follows that a constitutional matter of this magnitude should be considered in a specific, dedicated Bill of its’ own. This would follow practice adopted in the enabling legislation which led up to the devolution referendums of 1979 and 1997.

Question 3

On timing, the timing of a referendum is a matter for determination by Parliament in the course of consideration of the Bill at Q2 (ii) (above).

Question 4

On eligibility, that also is a matter for Parliament, as in Q3 (above). Practice, as in the devolution referendums (above) and also in the EEC Referendum (1975) and the Electoral Reform Referendum (2011) suggests that eligibility be defined as for the provisions on eligibility in Parliamentary elections.

Question 5

On roles, the role of the UK Government is paramount in the process, as the only legitimate body capable of the initiation of such a referendum.

The Electoral Commission is the independent, statutory body charged by Parliament with the conduct and regulation of referendums (Political Parties, Elections and Referendums Act, 2000). It follows that conduct and regulation of a referendum should be remitted to the Commission.

The Scottish Government/Executive has no formal role in the process, as it is a reserved matter. However, it may be thought appropriate and politic for both the Scottish Executive and representatives of Scottish Local Government to be included in a process of consultation, however informal.

Question 6

The most recent available example of the process of conducting a referendum within the UK is that of the Electoral Reform Referendum of May 2011.

The Committee will recall that the referendum asked the preference of the electorate between the existing “first past the post” system and a system known as the “Alternative Vote”. The existing system was preferred by a substantial majority. The principal lesson derived from this example is the need for the provision of clarity as to the question (s) being put and for the provision of supporting information on the question(s). These needs, in this instance, were, by common consent, unmet.

The example of the Wales referendum of March 2011 is related, but distinct. This was a referendum on the extension of powers devolved from Parliament to the Wales Assembly. It was not a referendum on separation. This distinction is of the absolute essence. Any proposed extension of devolved powers for Scotland falls to be considered with the questions raised by the Secretary of State for Scotland in the second inquiry.

The Second Inquiry

The second inquiry seeks clarification on six areas as defined in the announcement.

In order for a referendum on separation, with the magnitude of its’ attendant consequences, to be properly considered, it is important that it be not confused with amendments to the existing schedule of devolved powers. Amendments to devolved powers need not even necessitate a referendum, and may be debated and enacted as part of the parliamentary process.

It would appear that all six areas referred to by the Secretary of State are proposed extensions of devolved powers. These questions probably fall to be considered as amendments to the Act, in much the same way as the proposed amendments to the Scotland Bill currently in progress through Parliament.

What is unclear is why clarification and consideration of the six areas need take place prior to a referendum on separation except as part of parliamentary debates. If the outcome of a proposed referendum is in favour of separation, then surely the six areas like all others, fall to be considered under a new dispensation.

The clearest and most certain approach is for a separation referendum to be confined to the single question of separation.

The six areas are elements within a political, rather than constitutional debate. To these may be added the question of the electoral scope of such a referendum.

Should it take place only within Scotland or throughout the UK?

Should there be a form of threshold included, by which any calculation of the outcome refers not only on votes cast for or against the question posed in the referendum, but also to the votes cast in the context of the eligible electoral vote? This is what happened prior to the Devolution Referendum of 1979, where Parliament, in accepting an amendment to the proposals before it (the “Cunningham Amendment”) introduced a threshold by which the outcome was determined by votes cast in favour of devolution reaching a threshold of 40% of the votes of the eligible electorate


In this submission, I have attempted to maintain a clear distinction between matters constitutional and matters political, though these elements are clearly interwoven. I hope that what I have been able to offer is of assistance to the Committee in its’ deliberations.

December 2011

Prepared 4th May 2012