Scottish Affairs CommitteeWritten evidence submitted by Alan Page, Professor of Public Law, University of Dundee
Introduction
1. The question of the Scottish Parliament’s power to legislate for a referendum on independence needs to be seen in its proper political context. Last May’s Scottish parliamentary elections effectively decided that there should be a referendum on independence. The political question having been decided, two legal questions then arise: (1) “Does the Scottish Parliament have the power to legislate for a referendum on independence?” and (2) “If it does not have the power, or its power is unclear, by what means and subject to what conditions might it be authorised to legislate for a referendum on independence?” The first of these questions has been raised publicly by the UK government in recent weeks, essentially with a view to securing a voice in the process. That result having been successfully achieved, the focus has now shifted to the means by which the Scottish Parliament might be given the power—or else its power put beyond doubt—and the conditions if any to be attached to that power.
Does the Scottish Parliament have the Power to Legislate for a Referendum on Independence?
2. The relevant provisions of the Scotland Act are: section 29(2)(b), which provides that the Scottish Parliament has no power to make laws which “relate to” reserved matters; Schedule 5, paragraph 1(b), which includes “the Union of the Kingdoms of Scotland and England” among the matters reserved to the Westminster Parliament; and section 29(3), which provides that the question whether a provision of an Act of the Scottish Parliament “relates to” a reserved matter “is to be determined … by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances”.
3. Much has been made in recent weeks of the fact that the referendum legislation would “relate to” the reserved matter of the Union of the Kingdoms of Scotland and England. The mere fact that a provision relates to a reserved matter, however, is not sufficient to condemn it. Were it to do so it would mean that the Scottish Parliament’s legislative competence would be severely limited. There are few Acts of the Scottish Parliament that cannot be said to be related to a reserved matter.
4. It is for that reason that the Act provides that the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances. It is only when a provision is directed to a reserved matter that it is liable to be struck down by the courts.
5. The difficulty with the purpose test, as the architects of the Scotland Act clearly recognised, is that a legislative provision seldom has one clear, unambiguous purpose. More commonly it may be said to have several purposes or, in the language of the Act, to relate to several matters. What the purpose test as laid down in section 29(3) of the Scotland Act requires the court to do therefore is to identify its dominant or true purpose—what it is really about—, for which purpose it is required to have regard among other things to its effect in all the circumstances. If, having had regard to its effect in all the circumstances, the court concludes that it is about a reserved matter, it falls to be struck down as being beyond the Scottish Parliament’s legislative competence.
6. What then is the true purpose of the referendum legislation? What is it really about? Is its purpose to further the Scottish government’s aim of achieving independence, as the United Kingdom government maintains? Or is it, in the words of the long title of the draft Referendum (Scotland) Bill, simply about seeking the views of people in Scotland on a proposal about the way Scotland is governed?
7. As is to be expected an inquiry into the purpose of the referendum legislation alone is likely to prove inconclusive. It is only when regard is had to the effect of the legislation, including its effect on the reserved matter of the Union, that it becomes clear in my opinion that its true purpose is not to solicit the views of people in Scotland on a proposal about the way Scotland is governed, but to further the Scottish government’s aim of achieving independence. A referendum is not a disinterested exercise in opinion gathering. It is embarked upon for a purpose—in this case to mobilise Scottish opinion in support of independence. The fact that there may not be a majority for independence does not in my view detract from the fact that that is its intended effect and hence its true purpose.
8. Faced with a referendum that asked “Do you agree that Scotland should become an independent country?” it is my opinion therefore that a court would hold that it was about the reserved matter of the Union and hence that it was beyond the Scottish Parliament’s legislative competence.
Challenging the Referendum Legislation
9. Were the Scottish government to press ahead on the basis of its interpretation of the Scottish Parliament’s powers there is no question it would face a legal challenge. The challenge might be brought by the United Kingdom Law Officers before the Referendum (Scotland) Bill is presented for the Royal Assent, or, in the event of the Bill not being challenged by the Law Officers, by an individual once the Act was on the statute book. As I have indicated such a challenge in my view would be likely to be successful.
10. One would have to ask, however, what exactly such a challenge would achieve even if it were to be successful. It would not dispose of the question of the referendum—the Scottish government’s political mandate would remain intact. All that it would do would be to highlight the gap between the Scottish government’s political mandate and the Scottish Parliament’s powers under the Scotland Act.
11. That is why the focus has shifted, rightly in my view, from the essentially unproductive question of whether or not the Scottish Parliament has the power to legislate for a referendum on independence to the question of the means by which it might be authorised to hold a referendum and the conditions if any to be attached to that power.
Authorising the Scottish Parliament to Legislate for a Referendum on Independence
12. The United Kingdom government’s consultation paper Scotland’s Constitutional Future identifies two ways in which the Scottish Parliament might be authorised to legislate for referendum on independence. The first is by means of an order under section 30 of the Scotland Act. The second is by means of primary legislation, which might take the form of a stand-alone Bill or an amendment to the current Scotland Bill.
13. A section 30 order offers a number of advantages. The first is that it can be made at any time. It is not therefore subject to the same time pressures as an amendment to the Scotland Bill. It would therefore allow negotiations between the two governments to continue, at least until the results of the Scottish government’s consultations on the draft Referendum (Scotland) Bill were known.
14. A second advantage of a section 30 order, assuming an amendment to the Scotland Bill were to be ruled out, is that it can be secured more quickly than a stand-alone Bill. But perhaps its most important advantage, over both a stand-alone Bill and an amendment to the Scotland Bill, is that it is not open to amendment. There is no possibility therefore of an agreement being overturned or amended against the two governments’ wishes. As things stand there cannot be complete confidence about the Coalition government’s capacity to deliver its side of any agreement. A section 30 order would provide that confidence.
Subject to What Conditions?
15. This is a fast—or perhaps not so fast—moving area. Depending on which newspaper one reads agreement has been reached on the question of Electoral Commission oversight but not on the timing of the referendum, the number of questions on the ballot paper or the extent of the franchise. I have no observations on the timing of the referendum or the franchise. On the number of questions on the ballot paper, the point I would stress is that the existing devolution settlement is a highly flexible one. There is no limit to the adjustments that can be made—providing the political willingness to make those adjustments is there. The independence referendum need not therefore be seen as the last word in defining the relationship between Scotland and the rest of the United Kingdom.
Alan Page
February 2012