House of Lords - Referendum on Scottish Independence

Referendum on Scottish Independence - Constitution Committee Contents

Chapter 2: Legislative competence

6. It is the policy of the Scottish Government (not of the UK Government) to hold a referendum on Scottish independence. However, the UK Government are of the clear view that neither the Scottish Government nor the Scottish Parliament possess the legal power to hold such a referendum. The UK Government's consultation paper reflects and reinforces this view, and the Advocate General for Scotland, the Rt Hon Lord Wallace of Tankerness QC, has since underscored it.[5] The Scottish Government do not agree.[6]

7. The UK Government, recognising the SNP's political mandate, have proposed a way to enable the Scottish Government and Parliament to press ahead with a referendum on independence. The core proposal contained in Scotland's Constitutional Future is for an order to be made under section 30 of the Scotland Act 1998[7] conferring on the Scottish Parliament the legal power to pass an Act providing for a referendum.[8] A section 30 order may be made only if approved by both Houses of Parliament and by the Scottish Parliament.[9] An alternative proposal is that the Scotland Bill could be amended so as to achieve the same result[10]. A further alternative is that the UK Parliament legislate directly on the matter. Of these options, the UK Government would prefer the section 30 route, not least because this is the route that would maximise the involvement of the Scottish Parliament. A draft section 30 order is appended to the UK Government's consultation paper.

8. The UK Government have not proposed a form of words for the question to be asked in any referendum. On the basis that a section 30 order can be agreed, the question that the Scottish Government have now proposed is: "Do you agree that Scotland should be an independent country?". The Scottish Government recognise that, unless the law is amended, the Scottish Parliament does not possess the power to legislate for a referendum asking this question.[11]

9. If for any reason a section 30 order cannot be agreed, the Scottish Government have stated in Your Scotland, Your Referendum that they "will have the option of a referendum on the basis" that they set out in 2010.[12] Therefore, the question of legal competence will arise if no section 30 order can be agreed and the UK Parliament does not legislate (whether by means of the Scotland Bill or otherwise) for the competence of the Scottish Parliament to be appropriately extended.

10. On one view, the competence of the Scottish Parliament to legislate for a Scottish independence referendum may depend on the wording of the referendum question. In 2010 the Scottish Government proposed a formulation asking whether voters agree with a proposal that the powers of the Scottish Parliament should be "extended to enable independence to be achieved".[13] In their 2012 consultation paper the Scottish Government assert that this formulation "was carefully phrased to comply with" the requirements of the Scotland Act 1998 and that "much independent legal opinion supports the Scottish Government's view".[14] It is regrettable that the Scottish Government have not set out their legal position more fully.

11. In Your Scotland, Your Referendum, the Scottish Government explain that the Scottish Parliament "has the power to legislate for a referendum as long as that would not change any reserved law or relate to those aspects of the constitution which are reserved by the Scotland Act 1998".[15] Thus, the Scottish Government's view appears to be that a referendum question asking whether the powers of the Scottish Parliament should be extended so as to enable independence to be achieved could be lawfully authorised by an Act of the Scottish Parliament, as such a question would not "relate to" a reserved matter. For reasons that we spell out below, this is an inaccurate interpretation of the law.

12. A referendum along these lines would not appear to be capable of delivering independence, even if it resulted in a "yes" vote. An affirmative answer to the question posed would deliver no more than a set of negotiations between the Scottish and UK Governments as to how the powers of the Scottish Parliament could be extended so as to enable the possibility of independence. It would seem to follow that any eventual move to independence would then require a second referendum. The two Governments' current consultation papers each rest on the assumption that there will be only one referendum.

The rule of law

13. It is a fundamental principle of the constitution that, irrespective of any party's political mandate to form a Government, all governments must act in accordance with and subject to the rule of law. That the Scottish National Party won an overall majority of seats in the Scottish Parliament in 2011 gives it a considerable political mandate to pursue its agenda of advocating independence for Scotland, but as the Scottish Government it must do so lawfully.

14. Likewise, the Scottish Parliament is a legislature that is subject to the rule of law. It is not a sovereign parliament and may make law only within the limits of its competence. Case law of the highest authority shows that, where it acts within its legal powers, the law will recognise and indeed give great weight to the democratic nature of the Scottish Parliament. Thus, where there is a legal challenge to the reasonableness or appropriateness of a provision of an Act of the Scottish Parliament, the courts will rule upon that challenge in the light of the fact that, as Lord Hope expressed it in the leading case, AXA General Insurance v Lord Advocate, "the elected members of [the] legislature … are best placed to judge what is in the country's best interests as a whole".[16]

15. But cases decided in the First Division of the Inner House of the Court of Session confirm that this applies only where the Scottish Parliament has acted within the limits of its powers in the first place. In Whaley v Watson in 2000 Lord Prosser stated that:

"faced with the suggestion that the courts might … [allow] the [Scottish] Parliament perhaps to exercise power beyond its legal limits, from a fear that enforcement of those limits might be seen as stopping Parliament from doing what it wanted to do, I am baffled: a defined Parliament is there to do not whatever it wants, but only what the law has empowered it to do …"[17]

Likewise, in Imperial Tobacco v Lord Advocate in 2012, Lord Reed stated that the

"democratic legitimacy of the Scottish Parliament does not … warrant a different approach to interpretation from that applicable to Acts of Parliament: statutes which are, of course, also passed by a representative and democratically elected Parliament. Nor does it impinge upon the fact that the power of the Scottish Parliament to legislate is limited by the Act of Parliament which established it. It is the function of the courts to interpret and apply those limits, when called upon to do so, so as to give effect to the intention of Parliament. In performing that function, the courts do not undermine democracy but protect it."[18]

The Scotland Act 1998

16. The key provisions of the Scotland Act 1998 are section 29 and Schedule 5. So far as is relevant, they provide as follows:

Section 29

(1) 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.

(2) A provision is outside that competence so far as any of the following paragraphs apply—

…

(b) it relates to reserved matters …

(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 … by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.

Schedule 5 Reserved matters

Part 1 General reservations

The Constitution

The following aspects of the constitution are reserved matters, that is—

…

(b) the Union of the Kingdoms of Scotland and England …

17. All parties accept that these provisions mean that the Scottish Parliament has no competence to legislate for independence. The UK Government consider that these provisions likewise mean that the Scottish Parliament has no competence to legislate for a referendum on independence. The Advocate General for Scotland has cited with approval a remark made by the then Secretary of State for Scotland (the late Rt Hon Donald Dewar MP) during the passage of the Bill that became the Scotland Act 1998: "A referendum that purported to pave the way for something that was ultra vires is itself ultra vires".[19] The Advocate General has said that, in the UK Government's view, "a referendum … about the Union would relate to the Union"[20] and would therefore be "not law" within the meaning of section 29. This view seems to us to be plainly correct.

18. This conclusion is fortified by section 29(3), which provides that whether a provision of an Act of the Scottish Parliament "relates to" a reserved matter is to be determined by reference to its "purpose", having regard, among other things, to its "effect". The purpose of the Scottish Government could not be clearer: they desire independence for Scotland and, as the SNP stated in its 2011 manifesto, a yes vote in any referendum on Scottish independence "will mean Scotland becomes an independent nation".[21] While it may be that, on a formal view, the political purpose of the SNP should properly be distinguished from the legal purpose of any Act of the Scottish Parliament (even one promoted by the majority SNP Government), case law shows that the courts will examine a broad range of background materials in order to distil the purpose of legislation, including "reports to and papers issued by the Scottish Ministers prior to the introduction" of a Bill, as well as explanatory notes, policy memoranda and the like.[22] The SNP's political purpose in introducing any Referendum (Scotland) Bill is therefore highly likely to be relevant to considering the legal purpose of that legislation.

19. The judgment of the First Division in the recent Imperial Tobacco case strongly supports this last point. Lord Reed said: "The focus is … primarily upon why the provision has been enacted rather than upon what it does, although the latter is also relevant. The submission … that neither the motive nor the policy of the legislature in enacting the measure is a relevant consideration must therefore be rejected."[23] Likewise, Lord Brodie said that "What section 29(3) makes determinative is the purpose of the provision in question. That has to do with the legislative objective, as disclosed by the preparatory material …"[24]

Three possible counter-arguments

20. As noted above, the Scottish Government's recent consultation paper does not go into as much legal detail on the question of legislative competence as the UK Government's consultation paper. We do not know, therefore, exactly what the Scottish Government's legal position is. However, we have identified three possible counter-arguments to the legal position set out above. We set these out here, along with our reasons for concluding that they do not undermine the UK Government's legal analysis.

THE "EFFECT" OF AN ADVISORY REFERENDUM

21. The first possible counter-argument is that if the referendum question were to ask merely for the opinion of the Scottish electorate as to whether negotiations with the UK Government should commence with a view to securing independence, then such a referendum could not of itself have any legal "effect" (within the meaning of section 29(3)) on the reserved matter of the Union.[25] Its only effect would be to trigger inter-governmental negotiations—and to negotiate is not itself a reserved matter. There are several problems with this argument: not least that a referendum question along even these lines would "relate to" the reserved matter of the Union, especially considering that the avowed "purpose" of those proposing the referendum will be to secure a mandate to terminate the Union. Also, as we pointed out above, if the referendum question were framed in this way, this would not be sufficient to deliver independence: it would be sufficient only to deliver negotiations about independence.[26]

22. Building on this last point, it might be contended that, if a referendum were incapable by itself of delivering independence, then it follows that it should not be construed as having the "effect" of relating to a reserved matter (and that it should accordingly be held to be within the legislative competence of the Scottish Parliament). This argument is seriously flawed, however, as it rests on a misapprehension as to the nature of referendums. Referendums in the UK are advisory (rather than binding) in the sense that Parliament remains sovereign: in exercising its sovereignty Parliament could legislate so as to override or ignore the result of a referendum. Whilst true as a matter of strict law, however, the fact should not be overlooked that something can be binding in the British constitutional order without it being legally required in the strictest sense. Referendums are not opinion polls: their purpose is not to test public opinion, but to make decisions. They are appeals directly to the people to make a decision that, for whatever reason, is felt to be more appropriately made by the public than by a legislature. As we observed in 2010 in our report on referendums and their place in the UK constitutional order, even where a referendum was legally only advisory, "it would be difficult for Parliament to ignore a decisive expression of public opinion".[27]

23. It follows that, in our view, any referendum on Scottish independence would have both the purpose and the effect of making a decision that related to a reserved matter: namely, the Union.

SECTION 101(2) OF THE SCOTLAND ACT

24. Section 101(2) of the Scotland Act 1998 provides that any provision of an Act of the Scottish Parliament "is to be read as narrowly as is required for it to be within competence, if such a reading is possible …" It might be argued that this provision should be used so as to bring within competence any provision of an Act of the Scottish Parliament concerning an independence referendum in respect of which there was any doubt as to vires.

25. However, section 101(2) comes into play only if it is possible to read a provision of an Act of the Scottish Parliament as being within legislative competence. For the reasons given above, our view is that such a reading is not possible in the case of an Act of the Scottish Parliament that purports to authorise a referendum on independence, in which case section 101(2) could play no role.[28]

26. Further, as has recently been pointed out by the First Division,[29] section 101(2) applies only to the interpretation of provisions of Acts of the Scottish Parliament. It does not apply to the interpretation of provisions of the Scotland Act 1998 (which is an Act of the UK Parliament). Determining whether any Act of the Scottish Parliament concerning a Scottish independence referendum was within competence or not would in large measure be an exercise in the interpretation of section 29 of and Schedule 5 to the Scotland Act. In the performance of this exercise, section 101(2) could play no role: it does not permit the Court to "read down" the key terms of "relates to", "purpose" and "effect".[30]

A "GENEROUS" AND "PURPOSIVE" INTERPRETATION?

27. Robinson v Secretary of State for Northern Ireland concerned a dispute over the lawfulness of the election in November 2001 of the First Minister and Deputy First Minister of Northern Ireland.[31] By a three-to-two majority, the Appellate Committee of the House of Lords ruled that the election was lawful. In reaching this conclusion the majority (Lords Bingham, Hoffmann and Millett) interpreted the relevant provisions of the Northern Ireland Act 1998 "generously and purposively" (as Lord Bingham described it) for the reason that the Act was "in effect a constitution".[32] As such, Lord Bingham ruled, it should be construed "bearing in mind the values which the constitutional provisions are intended to embody".[33] The minority of Law Lords hearing the appeal (Lords Hutton and Hobhouse) took a stricter approach to the interpretation of the Northern Ireland Act and ruled that the November 2001 election of the First Minister and Deputy First Minister was unlawful.

28. If the Northern Ireland Act 1998 is of a particular constitutional character, which required it in Robinson to be interpreted generously and purposively, is the same not true of the Scotland Act 1998? An authoritative answer to this question has recently been given by the First Division: their answer was that the differences between the Scottish and Northern Irish legislative frameworks are considerable. Robinson should not be taken out of context. The issue at stake in that case was whether devolved government could continue in Northern Ireland or whether it would once again be liable to be suspended. The constitutional "value" which Lord Bingham cited in support of his generous and purposive interpretation was that "it is in general desirable that the government should be carried on, that there be no governmental vacuum".[34] And core to the majority's ruling in Robinson was the fact that the Northern Ireland Act 1998 had been enacted "for the purpose of implementing" the Belfast Agreement. We note that these factors would be absent from any litigation challenging the legality of an Act of the Scottish Parliament that purported to authorise a referendum on independence. There would be no immediate question of devolution being suspended, no issue would arise as to "governmental vacuum", and there is of course no equivalent in Scotland of the role that the Belfast Agreement has played in Northern Ireland.[35]

29. Indeed, the First Division in Imperial Tobacco went further to distinguish the Northern Ireland position. Lord Reed ruled that "The Scotland Act is not a constitution, but an Act of Parliament".[36] Lord Brodie agreed, adding that "the principle derived from Robinson that legislation should be interpreted generously and purposively … is not readily applicable to resolving the issue of what has been devolved as opposed to what has been reserved".[37] The First Division ruled that while a more generous and purposive approach to interpretation may be applicable to "the more open textured language" of a true constitution, the Scotland Act was "dense, detailed and precise" and should be interpreted neither expansively nor restrictively, but simply in accordance with the natural meaning of the language.[38] Generous and purposive interpretation may be suitable for constitutions that were otherwise hard to change, suggested Lord Reed, but was not called for with regard to Acts of Parliament which, like the Scotland Act, were straightforward to amend.[39] Further, even if a purposive interpretation were to be emphasised in any way, this would add little: the purpose of (the relevant provisions of) the Scotland Act was simply to divide legislative competence as between the Scottish and the UK Parliaments.[40]

Conclusions on legislative competence

30. An authoritative determination of the legal issues analysed in this chapter could be given only by the courts. Having considered the matter in detail, we are of the clear view that the legal analysis offered by the UK Government is correct. Without amendment, the Scotland Act 1998 confers no legislative power on the Scottish Parliament to pass an Act purporting to authorise a referendum about independence.

31. We welcome the proposal that a section 30 order be made to confer on the Scottish Parliament clear competence to legislate for a referendum on Scottish independence.

5 For example in a speech delivered at the University of Glasgow on 20 January, the text of which is available online at http://www.oag.gov.uk/oag/CCC_FirstPage.jsp Back

6 Your Scotland, Your Referendum, op. cit., paras 1.5-1.6. Back

7 The Scotland Act 1998 is the UK legislation which established devolution for Scotland. It created and empowered the Scottish Parliament and it sets out the limits to the Scottish Parliament's legislative competence. Back

8 There needs to be express statutory authority for any referendum to be held in the United Kingdom: there is no general power to hold referendums. Generic rules pertaining to referendums are contained in the Political Parties, Elections and Referendums Act 2000 (PPERA), but this Act contains no provision authorising any particular referendum to be held. See further on PPERA below. Back

9 Scotland Act 1998, Sch 7. Under the Act this is known as "Type A" procedure. Back

10 The Scotland Bill, currently before the House, will (if enacted) amend the Scotland Act 1998 in a number of respects. We reported on the Bill earlier in this session: 17th Report (2010-12) (HL Paper 184). Back

11 Your Scotland, Your Referendum op. cit., para 1.12. Back

12 Ibid. Back

13 Scotland's Future: Draft Referendum (Scotland) Bill Consultation Paper, op. cit. Back

14 Your Scotland, Your Referendum op. cit., para 1.5. No citations are given by the Scottish Government. Back

15 Ibid. Back

16 AXA General Insurance v Lord Advocate [2011] UKSC 46, para 49. Back