Scottish Affairs CommitteeWritten evidence submitted by Dr Matt Qvortrup

Introduction

This paper analyses if the Courts are likely to hold a decision to hold an advisory referendum on Scottish independence to be ultra vires. In analysing this the essay draws on statutory interpretation and relevant case-law.

Would the Scottish Parliament be entitled to hold an advisory referendum on independence? Opinions are divided. The Scottish Government—headed by the Scottish National Party (who have e majority at Holyrood) thinks the answer is yes. The British government—as represented by the Lord General Lord Wallace—thinks not.1

Needless this is a political issue. And, consequently, the aforementioned parties reflect their political interests. There is nothing wrong with that. But as the issue is likely to come before the courts, we need qua lawyers to isolate the political prejudices and focus exclusively on the legal questions.

The Role of Courts under the Constitution

Given the constitutional, historical and political importance of this issue it is important that the Courts are not “guilty of usurping power” and that it is recognised that “judicial review is concerned not with the decision [to hold a referendum], but with the decision making process [itself]”,2 or—to cite another obiter dictum by Lord Bingham, remember that the Judges have “one function, which is to rule on the lawfulness of decisions”.3

The Legislative Framework S 29 of the Scotland Act 1998

The hypothetical decision under review is an advisory referendum on independence. Given the constitutional position, ie the doctrine of the sovereignty of Parliament, a referendum can never be binding.4 But would it be legal or would it be ultra vires, ie outside the legislative competence of the Scottish Parliament as set out in the Scotland Act 1998?

The Scotland Act 1998 established a devolved parliament for Scotland. Under the Act, the Parliament is entitled to legislate in a number of areas, though these are not positively specified.5 These powers are limited by S.29 which states 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’.6 S.29 (2) (b) limit these powers by reference to so-called “reserved matters”. These are listed in Schedule 5 (1) (a-c) and include “the Crown including Crown and regency”, “the Union of the Kingdoms of Scotland and England” and “the Parliament of the United Kingdom”.7

Excursion: Statutory Interpretation: Pepper v Hart

Do statutory provisions rule out an advisory referendum? One argument put forward by opponents is that the promoters of the Bill expressly rejected any public vote on the matter.8 For example, in the House of Commons, Donald Dewar, the Secretary of State for Scotland, said that “a referendum that purported to pave the way for something ultra vires is itself ultra vires”.9 There can be little doubt that Dewar was of the opinion that a referendum would be unacceptable. But it is questionable, from a Constitutional law point of view, if this statement has any legal implications.

Following the decision in Pepper v Hart,10 the Courts may only use Hansard in cases where there is ambiguity and if a literal reading of the Act leads to absurdity.11 In its rulings on the constitutionality (sic!) of Scottish legislation, the SC (and indeed lower courts) have not invoked Hansard. Presumably because they do not feel that the Act was ambiguous or would lead to absurdity. It is unlikely, therefore, that the SC will place much emphasis on the statement by the promoter of the Bill.

To date the SC has only dealt with one case that directly considered the issue of ultra vires decisions by the Scottish Parliament, namely AXA v Lord Advocate.12 In AXA the plaintiffs challenged The Damages (Asbestos Related Conditions) Scotland Act 2009, which has had been enacted to reverse The House of Lord’s Decision in Rothwell v Chemical & Insulation Co Ltd.13

Judiciability and Locus Standi

Before entering into an analysis it is necessary to determine if the issue would come before the courts at all.

The first condition is standing. Given that the British Government has standing14 there is no question that Westminster could challenge a Scottish referendum in the Courts. Whether an individual or a group of individuals could challenge a decision to hold an advisory referendum is more questionable. A pressure group could challenge the decision under the familiar rule of World Development Movement.15 Traditionally, it would have been difficult for a single concerned individual to challenge the decision, as the courts previously were reluctant to allow “busibodies, cranks and mischief makers” to challenge decisions16 but since Lord Rees-Mogg’s challenge to the Maastricht Treaty,17 even this rule has been relaxed, and it seems that even a concerned individual is able to challenge decisions. An application for judicial review is unlikely to be ruled out on procedural grounds as long as it is filed promptly and meet the other requirements.18

The more substantial question is if the courts feel that the issue lends itself to judicial review, ie if it is judiciable. In CCSU v Minister for the Civil Service, Lord Diplock held that certain issues of high politics were non-judiciable.19

Given that the issue of a referendum on Scottish independence was on of the most contentious issues in the 2011 elections to the Scottish Parliament (in which the Scottish National Party (SNP) won an overall majority) a reasonably strong case could be made for the view that the issue is too politically sensitive for the Courts to decide. This seems to have been acknowledged by the Courts. In AXA, Lord Reed noted obiter that “if the question which arises is not judiciable—that is to say, is not suitable for the courts to decide, having regard to their constitutional function—then it cannot be made subject to judicial review”.20 Given that the issue in AXA was less controversial (See next section), it is conceivable that the courts would hold a judicial review challenge to be non-judiciable.

Would a Decision be Ultra Vires?

It would—at first sight—appear that a judicial review of a decision by the Scottish Parliament falls squarely within the established doctrine, namely to “keep inferior bodies within their legal power”.21 It has traditionally been the case that the SC has “power in its exercise of supervisory jurisdiction to regulate the process by which decisions are taken by any person or body to whom a jurisdiction power or authority has been delegated”.22

The basic argument in against the holding of a referendum is based on the legal argument that “under [S.29] of the Scotland Act 1998, the Union is a reserved matter...this means that even if a referendum in Scotland is organised by the Scottish Government and supported by a majority for secession, this would only be the first step in a process”.23

Based on this argument the Scottish barrister Aidan O’Neill QC argued in his evidence to the Scottish Affairs Committee in the House of Commons that S.29 presents “an insurmountable legal obstacle to the Scottish Parliament enacting any law which would provide for an independence referendum to be held in Scotland”.24 Similarly the House of Lords Select Committee on the Constitution has taken the view that “any referendum on Scottish independence would have both the purpose and the effect of making a decision related to a reserved matter; namely the union”, and would therefore be ultra vires.25

Relevant Case Law: Scottish Law

These arguments are persuasive, at least up to a point. It is a fundamental principle of public and administrative law that public bodies may not make decisions or take actions without statutory authority.26 It would seem natural, therefore, to start analysis by inquiring if there is statutory authority for holding a referendum under the Act. Whether the answer to this question is affirmative hinges on the interpretation of the words in S.29, ie that an Act by the Scottish Parliament is “not law so far as any provision in the Act is outside the legislative competence of the Parliament.”

Case law has not dealt directly with the referendum but general guidance as to how the courts might adjudicate in cases concerning ultra vires issues can be found. In the Scottish case Imperial Tobacco v Scottish Ministers it was held that “the Scheme whereby legislative competence is conferred on the Scottish Parliament is one where what is not specifically devolved as being outside competence is devolved”.27 In short, what is not expressly prohibited is allowed. Based on this it would seem that the Scottish Parliament is entitled to hold a referendum, albeit an advisory one.

Case Law and Ultra Vires: The Jurisprudence of the Supreme Court

Imperial Tobacco suggests that a decision to hold an advisory referendum would not be ultra vires. But would the SC take the same view if it were to adjudicate on the matter?

Second guessing the decisions of the Courts is notoriously difficult. And knowing what determines the decisions of their Lordships is a speculative business. In the words of American legal scholar Jerome Frank—“the ultimately important influences in the decisions of any judge are the most obscure, and are the least easily discoverable”.28 We can, however, make educated guesses on the basis of precedents.

Assuming that the challenge does not fall at this hurdle, how might the Supreme Court rule on the matter?

In AXA, the SC held that “Acts of the Scottish Parliament are not subject to judicial review at common law on the grounds of irrationality, unreasonableness or arbitrariness”29 and later in the same case it noted that the “the grounds for judicial review...cannot be applied”.30

This, of course, does not exclude procedural impropriety or illegality. The former is unlikely to be a cause for concern, as the decision to hold a referendum will be debated in the Scottish Parliament prior to its enactment, and therefore, meet the requirements of a fair hearing and audi alteram partes.31

The more likely challenge is that of illegality. The Scottish courts have held that a decision by the Scottish Parliament regarding an issue not expressly mentioned in the Scotland Act, was not ultra vires. But would the SC reach the same conclusion?

In AXA the SC held that the the Scotland Act provided a “delegation” of “power to legislate in areas that have not been reserved to the United Kingdom Parliament”.32 Hence, it would appear that a decision to hold a referendum would not be ultra vires as it is not an expressly reserved matter.

Again, it seems that as the right to hold a referendum—in effect conduct a large consultation—is not ultra vires as it is not an expressly reserved matter.

But the SC went further than merely stating the principle that what is not expressly illegal is intra vires. According to AXA there is an equally fundamental reason against intervening in an a fortiori decision to hold a referendum. This reason is based on the constitutional position of the judges in a constitutional democracy. In such a system the Courts must be careful not to overstep the boundaries of their constitutional role. This position was set out at some length by Lord Hope in AXA:

While the judges, who are not elected, are best placed to protect the rights of the individual, including those who are ignored or despised by the majority, the elected members of the legislature of this kind [in this case the Scottish Parliament] are best placed to judge what is in the country’s best interest as a whole...The advantages that flow from the depths and width of the experience of its elected members and the mandate that has been given them by the electorate suggests that the judges should intervene, if at all, only in the most exceptional circumstances.33

Now it could be argued that a referendum on the continuation of the Union would be a “most exceptional” circumstance, especially if it was binding. In this case, it would touch upon the reserved matters and hence be ultra vires. But given that the vote is advisory only, and that it would have to be followed by negotiations between Westminster and Hollyrood (a position that the Scottish government now accepts,34) it would be unlikely for the Supreme Court to strike the Scottish governments decision.

The fact that the SC accepted the Scottish government’s right to enact The Damages (Asbestos Related Conditions) Scotland Act 2009, which was not in the manifesto in any of the parties, makes it even more unlikely that they would quash a decision that was in the manifesto of the party that won a majority in the 2011 elections. This point is underlined by the fact that Lord Hope made specific reference to “elected members and the mandate that has been given them by the electorate”. Given that the SNP won 69 out of the 129 members of the Scottish Parliament on a commitment to “bring forward our referendum bill in the next parliament”,35 a challenge seems unlikely to succeed.

This point is not an accidental one but a fundamental premise in the jurisprudence of the Supreme Court. The position in AXA—as acknowledged by the SC36– is in line with the fundamental principle established in R(Countryside Alliance) v AG, in which it was held that “the democratic process is likely to be subverted if, on a question of political or moral judgement, opponents of an Act achieve through the courts what they could not achieve through Parliament.37

By challenging the Act, the opponents would fall squarely into the category of those who seek to “achieve through the courts what they could not achieve through parliament”. This—given the SC’s previous jurisprudence—would seem unlikely.

Conclusion

The conclusion—based on the evidence of existing case law is that it is unlikely that the SC would hold a decision to hold an advisory referendum on Scottish independence to be ultra vires. The two main reasons for this are:

A permissive reading of S.29: In both Imperial Tobacco and in AXA it was held that what is not expressly within the “reserved powers” in Schedule 5, is legal, and that the Scottish Parliament has power to “legislate in areas that have not been expressly reserved”.38 The Power to hold a referendum is not expressly mentioned as being reserved. Hence the right to decide to hold a referendum is not ultra vires.

Presumption against judicial interference in the democratic process: The Court is unlikely to hold a decision to conduct an advisory referendum ultra vires as this would violate the principles set out in R (Countryside Alliance) v AG, namely that the “democratic process is likely to be subverted...if opponents of an Act achieve through the Courts what they could not achieve through Parliament39. Given that the SNP won a majority of the seats in the Scottish Parliament in 2011 on a manifesto commitment to hold a referendum, denying the Parliament the right to hold such a vote would be to allow opponents to “achieve through the courts what they could not achieve through [the Scottish] Parliament”, and hence violate the legal principle established by the Supreme Court. That this reasoning was affirmed in AXA further underlines this point.40

Further, given the highly politicised nature of the issue, it is questionable if the a challenge would be judciciable, as per the principles established in CCSU v Minister for the Civil Service. In AXA, the Court raised some concerns about subjecting any decisions of the Scottish parliament to judicial review. Although the Court accepted that the issue before them in AXA was judiciable, the same is not given in the case of a challenge to a decision to hold a referendum on Scottish independence.

“Legal practice”, wrote the American jurist Ronald Dworkin, “is an exercise in interpretation”,41 Determining whether the Scottish Government and the Scottish Parliament is entitled to hold an advisory referendum or if such a vote is ultra vires is not a question that can be answered with cast iron certainty, but a question which requires a careful of case law and statutory interpretation. Based on the principles of jurisprudence by the Senior Courts it seems that the chances that their Lord- and Ladyships will strike a decision by the Scottish Parliament down seems rather unlikely.

March 2012