House of Lords - Scottish independence: constitutional implications of the referendum

Scottish independence: constitutional implications of the referendum - Constitution Committee Contents

CHAPTER 3: constitutional implications for the uk state

Legislation required for negotiations

29. There are two elements to the question of whether legislation would be needed to enable negotiations to begin: whether legislation would be necessary to enable the Scottish negotiating team to be established; and whether it would be necessary for the rest of the UK negotiating team.

30. The Scotland Act 1998 devolved legislative competence to the Scottish Parliament and the Scottish Government. That Parliament and Government are empowered to pass legislation in any area which is not reserved. The Union is amongst the reserved matters.[33] Hence the necessity for a statutory instrument to be passed which conferred on the Scottish Parliament power to legislate for the referendum on independence.[34] This was done by way of a "section 30 order".[35] Such orders enable a reserved matter to be devolved; they are made by the UK Government with the approval of both Houses of Parliament and the Scottish Parliament.

31. This raises the question of whether it is within the competence of the Scottish Government to negotiate for independence and the Scottish Parliament to legislate for negotiations.

32. Lord Mackay of Clashfern, a former Lord Chancellor and Lord Advocate, stated that, if there were a vote for independence, he "would expect the UK Parliament to introduce legislation as a preliminary stage to set up the machinery for the negotiation".[36] Lord Hope of Craighead, a former Deputy President of the Supreme Court, thought such legislation would be necessary, though it might be possible to begin negotiations and then legislate later.[37]

33. Professor Tierney, on the other hand, thought that both governments would consider a "yes" vote a mandate to negotiate and if further authority were needed they could rely on the Edinburgh agreement. That said, he thought it would "make sense for both parliaments to pass paving legislation, appointing negotiating teams, setting the respective remits for negotiations, and setting out principles to guide the negotiators."[38]

34. Professor Boyle said that UK "constitutional law does not require enabling legislation for negotiations to take place ... there is no precedent for Parliament to legislate on negotiations rather than the outcome of those negotiations." However, he thought it "may be necessary" to empower the Scottish Government to negotiate, and that a section 30 order "could presumably be used for that purpose."[39]

35. The Secretary of State for Scotland, Alistair Carmichael MP, thought it would "probably be sensible" for there to be legislation establishing the negotiations; although the UK Government regularly negotiate agreements and treaties with their existing powers, "this would be an agreement of a very different stripe".[40] The Advocate General for Scotland referred to the possibility of a legal challenge to the competence of the Scottish Government to negotiate, and thought that a section 30 order or primary legislation may be needed to put the matter beyond doubt.[41]

36. The difficulty with devolving legislative competence for establishing negotiations to the Scottish Parliament by way of a section 30 order would be that such an order may itself be subject to legal challenge. As it is secondary legislation made by a minister it could be judicially reviewed, including on the ground of vires. It may be that any such review would have little chance of success; but it would create uncertainty and may prevent negotiations from beginning.

37. It would be important for any independence negotiations to have a clear legal basis. The evidence we received suggested that the UK Government are likely already to possess legal power to negotiate, but the Scottish Government may not. In the event of a "yes" vote, this should be put beyond doubt. In that event, soon after any such vote, a bill should be introduced to the UK Parliament which would establish the negotiating team for the rest of the UK and devolve power to the Scottish Parliament to establish a negotiating team for Scotland.

Legislation to deliver independence

38. The evidence we received suggests that the legislation needed to deliver independence itself, although important, may not need to be large in scale. Professor Tierney told us:

39. Any legislation should deal with the Treaty and Acts of Union that created Great Britain in 1707. The Secretary of State for Scotland told us: "The union was constituted by a treaty followed by two Acts. If it is now to be dissolved, it would presumably need that at the very least."[43] The ratification of an agreement (following negotiations) between Scotland and the rest of the UK followed by legislation in each Parliament would be a symbolic act, echoing the Treaty of Union in 1706 and the 1706-07 Acts of Union.

40. There is an issue of whether further legislation would be required. The process of colonies and dominions becoming independent was obviously very different from the separation of part of the United Kingdom into a new state.[44] However, it is useful to remember that when certain colonies and dominions were granted "fully responsible status" by the UK Parliament, provisions in the relevant Acts stated that, after independence day, the "Government in the United Kingdom shall have no responsibility for the government of" the country in question, and that "No Act of the Parliament of the United Kingdom passed on or after the appointed day shall extend, or be deemed to extend, to [the country] as part of the law thereof."[45] Such recognition of the end of Westminster's jurisdiction over Scotland would be necessary in the event of Scottish independence.

41. It might be that an Act of the UK Parliament could simply state the cessation of that Parliament's ability to legislate for Scotland,[46] make any consequential provision and provide any transfer of powers that was required.[47] This would fit with the Scottish Government's position that "the key legislative steps towards independence should be taken by the Scottish Parliament".[48]

42. Our witnesses agreed with the Scottish Government that UK legislation applying to Scotland at the point it became independent would remain the law of Scotland unless and until repealed or superseded by Acts of the Scottish Parliament.[49] This is referred to as "continuity of laws".

43. Beyond delivering independence, legislation is likely to be required to enact the outcome of post-referendum negotiations. There would probably also need to be legislation to ensure that the rest of the UK's statute book was consistent with the reality of a UK that no longer included Scotland. This could be a substantial task, as was the case with the changes to the role of the Lord Chancellor in 2005, when significant legislative amendments were required.[50]

44. UK legislation to facilitate Scottish secession from the Union may not need to be extensive. Its primary purpose would be to recognise independence for Scotland and the end of the UK Parliament's legislative competence over Scotland. However, it is likely that extensive consequential legislation, and legislation to implement any agreement reached between the two governments, would be necessary.

The UK Government after a "yes" vote

45. A "yes" vote in the referendum in September would put the UK Government in an unusual position. Scotland would still be in the Union until the date of secession, but its people would have stated their desire to be ruled from Holyrood exclusively rather than, as now, Westminster and Holyrood together.

46. The Secretary of State for Scotland, in his opening statement to the committee, described what would happen:

47. He then set out the implications for the UK Government:

48. The implication was that, were a "yes" vote to be delivered in the referendum in September 2014, from that date the UK Government would no longer seek to act on behalf of the people of Scotland. This would have implications for international representation and domestic governance.

49. In terms of international representation, David Lidington MP, Minister of State at the Foreign and Commonwealth Office, said during a media briefing in March 2014:

"The key point is this: now, and right up until referendum day, every United Kingdom minister—whatever responsibility they hold—is thinking about and representing the people of Scotland as much as any other part of the UK. If Scotland votes for independence, from that time on ministers in the UK Government will have a responsibility for people of the rest of the United Kingdom.

50. In Scotland's Future the Scottish Government set out their view of how a transition in preparation for independence would work:

"Existing constitutional arrangements in Scotland will provide the basis for the transition to independent statehood, with additional powers transferred as soon as possible after the referendum, giving the Scottish Parliament the ability to declare independent statehood for Scotland in the name of the sovereign people of Scotland ...

This early transfer will also enable the Scottish Parliament to extend the devolved competences of the Scottish Parliament and Scottish Government into all policy areas, including those currently reserved to Westminster, for the purpose of making preparations for independence.

51. As a matter of law Scotland will remain part of the United Kingdom unless and until it becomes an independent country. A "yes" vote would not itself alter the legal status of Scotland—this would change only following formal independence or as the consequence of Westminster legislation passed in preparation for formal independence.[55] As a matter of political reality, however, the UK Government may feel less legitimate in acting on Scotland's behalf were Scotland to have voted to leave the United Kingdom.[56]

52. If the ministers' statements were acted upon, Scotland would be left without international representation in the period between a "yes" vote and Scotland assuming full control over foreign affairs.

53. In domestic affairs, the UK Government would still govern the whole of the UK, including Scotland, until such time as Scotland became independent. However, after a "yes" vote the legitimacy of the UK Government continuing to govern Scotland may be questioned, especially in cases where their policy diverges from that of the Scottish Government.

54. Decisions would have to be taken by the UK Government on reserved matters that affect Scotland, such as on economic and fiscal policy. Given that independence would be on the way, transition arrangements would have to be established. We note that neither the UK nor the Scottish Government have explained in detail what they imagine such arrangements may look like.

55. In domestic affairs it may be appropriate for the UK Government to adopt a practice broadly similar to that in the pre-election "purdah" period. Under the "purdah" convention ministers observe discretion in initiating any new action of a continuing or long-term character (such as announcing major policy decisions or entering into large contracts). If such decisions cannot wait (for example, if delay would waste money), they are taken after consulting the opposition.[57] Although the parallels are not exact, were an analogous practice to be introduced, decisions by the UK Government on reserved matters with long-term impacts on Scotland could be dealt with in this period after consulting the Scottish Government.

56. The UK Government's apparent position—that they would cease to represent the interests of Scotland immediately after a "yes" vote was returned—may create a constitutional limbo for Scotland. Scotland would still be part of the United Kingdom, but the UK Government would cease to act in Scotland's interests.

57. On international representation, we recommend that an agreement be reached between the two governments immediately following a "yes" vote to clarify the basis of such representation for Scotland in the period between that vote and independence day.

58. On domestic governance, we recommend that, if Scotland votes for independence, the UK and Scottish Governments should agree how any transfer of powers prior to independence day should take place. In addition, an arrangement should operate between the referendum and independence day whereby the UK Government take long-term decisions on reserved matters relating primarily or solely to Scotland only after consulting the Scottish Government.

Effect on the House of Commons

59. Fifty-nine MPs represent Scottish constituencies in the House of Commons. A "yes" vote in the referendum would have significant implications for them and for the House of Commons as a whole. There are three aspects to this: the status of Scottish MPs[58] between the referendum and independence day; the question of when Scottish MPs would leave the House of Commons; and the position of Scottish MPs in negotiations. We address the latter aspect in the next chapter (on negotiations).

60. The clear consensus amongst our witnesses was that, in the event of a "yes" vote, Scottish MPs should remain members of the House for as long as Scotland remains part of the UK.[59] Professor Boyle said, "Scotland would still be part of the United Kingdom and they would still be entitled to participate in law that was going to apply to Scotland".[60] They would leave when Scotland became independent, but not before.[61]

61. The presence of MPs representing constituencies that would soon no longer be part of the Union may be controversial. It could become "the West Lothian question on steroids",[62] especially if Scottish MPs continued to debate and vote on issues relating solely to the rest of the United Kingdom or on issues affecting the United Kingdom after Scotland seceded from it.

62. It may be that Parliament simply lived with "this greater anomaly—though for a much shorter period of time."[63] Alternatively, the House of Commons could make internal arrangements to address the situation. Professor Tierney told us that "constitutional principles might lead to a suggestion of recusal, or a convention emerging where those [Scottish] MPs would recuse themselves from decision-making on those [non-Scottish] issues."[64] The English Lobby called for Scottish MPs to be "debarred by a resolution of the Commons, from speaking and voting on English and Welsh matters and confined to matters affecting Scotland."[65] Any such "recusal" may affect the majority of the government on these issues.

63. In the event of a "yes" vote, the status of MPs for Scottish constituencies in the period between the referendum and independence day should be resolved quickly, and certainly before the 2015 general election.

64. In the event of Scotland becoming independent, once the UK Parliament ceased to have jurisdiction over Scotland there would be no grounds for retaining MPs representing Scottish constituencies. The only question would be when Scottish MPs should leave the House of Commons.

65. Removing the 59 Scottish MPs may affect the balance of power in the House of Commons, potentially forcing a change of government. Since 1945, there have been two elections in which the largest party in the Commons would have been different were Scottish MPs excluded: 1964 and February 1974.[66] There were two more elections in which Scottish MPs made the difference between a minority and a majority administration: October 1974 and 2010. A majority administration elected in May 2015 could lose their majority upon the departure of Scottish MPs. Alternatively, the largest party in May 2015 may have a minority of seats, but stand to gain a majority through the departure of Scottish MPs. Both situations would be foreseeable after the election in 2015.

66. Lord Hope of Craighead observed that, under current legislation, all MPs would be elected in 2015 to serve a full term.[67] Therefore legislation would be needed to remove the right of Scottish MPs to sit mid-Parliament. Previous changes to representation, the franchise or the distribution of seats have come into force at the subsequent general election.[68]

67. The consensus in our evidence was that MPs should leave on independence day.[69] Professor McLean suggested that Scottish MPs might want to remain beyond the Scottish Government's proposed independence day of 24 March 2016, if it was possible that the Scottish Government elected in May 2016 would want to reverse the move to independence.[70] We do not see that this should be kept as an option: the Edinburgh agreement was for a "decisive" referendum whose outcome will be respected on both sides.

68. The Law Society of Scotland recommended that the end of a parliamentary session would be a convenient point at which to make such a change.[71] Prorogation of Parliament could be timed so that independence day for Scotland would fall between two sessions. This would mean that parliamentary business would need to be arranged around the agreed date for Scottish independence. Given the impact of the loss of 59 MPs on the House of Commons, it is likely that the date would be of great significance in Parliament anyway, in which case starting a new session without Scottish MPs may be sensible.

69. It has been suggested that an early general election could be held when Scottish MPs depart. This would remove the problem of changing the composition of the House of Commons mid-Parliament, but it would mean that the Parliament elected in 2015 would be liable to be dominated by negotiations over Scotland. It would also risk alienating the electorate in the remaining UK: "Voters in the [rest of the UK] may well resent being forced to have a second election so soon for no other reason—one foreseeable before the 2015 election—than Scottish independence".[72] The decision over whether an early election should be held would be for Parliament to take: the Fixed-term Parliaments Act 2011 allows for an early election if the Government lose a vote of confidence in the House of Commons (and no new government is formed within a fortnight) or if two-thirds of MPs vote to hold an election.[73]

70. An alternative suggestion has been mooted by a Scottish National Party MP: that the UK general election could be postponed to 2016 and not return MPs for Scottish constituencies.[74] The extension of a Parliament beyond five years would be an extraordinary step constitutionally; it may risk being seen by voters as self-serving, extending the time in power of the current Government. Professor Tierney told us that he "cannot imagine that there is any appetite to postpone a general election."[75] The suspension of the Fixed-term Parliaments Act to delay the first election scheduled under it risks undermining the very certainty over election dates that the Act was supposed to deliver.

71. Given that the impact of the loss of 59 MPs on the balance of power would be known immediately after the 2015 general election, there may be a risk that the government then in power would seek to delay the departure of these members to retain their majority. This should be avoided. The clearest way to avoid a delay would be to set out before the 2015 general election Parliament's intention to remove Scottish MPs at the point that Scotland became an independent country.

72. The UK Government should make it clear as soon as possible after a "yes" vote when they propose that Scottish MPs would be removed from the House of Commons. MPs for Scottish constituencies should cease to sit in the House of Commons from the date on which Scotland secedes from the United Kingdom. Legislation to this effect would be necessary. The Government should provide sufficient parliamentary time to enable the matter to be clearly resolved.

Effect on the House of Lords

73. The impact of Scottish independence on the House of Lords is less immediately obvious than on the House of Commons. Members of the House of Lords sit by virtue of their peerage and do not represent a particular territorial part of the UK. Unlike MPs representing Scottish constituencies, it is not obvious what constitutes a Scottish peer. Since devolution the House of Lords has not been concerned with legislation that is before the Scottish Parliament, and peers have not held UK ministers to account for matters which are devolved to the Scottish Parliament.

74. The vast majority of members hold life peerages of the United Kingdom. If Scotland were to secede, these peers of the United Kingdom would continue to have a right to sit in the United Kingdom Parliament. The fact that a peer was, for example, born in Scotland would not be sufficient to exclude them from the House, any more than it should an MP born in Scotland who represents a constituency in the rest of the UK. Neither should peers' territorial designations be taken as a statement of their affiliation to Scotland rather than the rest of the United Kingdom.

75. All members of the House of Lords are deemed to be resident, ordinarily resident and domiciled in the United Kingdom for the purposes of certain taxes,[76] under section 41 of the Constitutional Reform and Governance Act 2010. A three-month transitional period was provided after this provision came into force, during which members could decide to leave the House and so not be subject to those tax requirements.[77] At present, at least 62 members are resident in Scotland.[78] As the Advocate General for Scotland told us, these peers would need to decide whether they were willing to pay tax in two countries in order to remain members of the House.[79] In the event of a "yes" vote in September 2014, the period before independence could serve as transitional period, during which peers wishing to pay tax in Scotland and not the rest of the UK could retire from membership of the House under the House of Lords Reform Act 2014.

76. As the law now stands, if Scotland were to leave the United Kingdom, members of the House of Lords who live in Scotland would have to be resident, ordinarily resident and domiciled in the rest of the UK for the purposes of certain taxes. If they did not want to pay tax in the rest of the UK, they would have to retire from the House.

77. Among the 92 hereditary members of the House, there are six who sit solely as peers of Scotland, their titles pre-dating the formation of Great Britain in 1707.[80] Other peers of Scotland also hold peerages of Great Britain (peerages created in 1707-1801) or of the United Kingdom, so would be unaffected. Under the Peerage Act 1963, peers of Scotland sit as though they were peers of the United Kingdom.[81]

78. In the event of independence it would need to be decided whether peers of Scotland should be entitled to continue to be members of the House of Lords on the basis of a Scottish peerage alone.

Effect on the UK Supreme Court

79. The United Kingdom's Supreme Court hears cases from the three jurisdictions in the UK: the English and Welsh, Northern Irish and Scottish systems.[82] All Supreme Court justices are eligible to hear cases from any of those jurisdictions, but to ensure that expertise in all three systems is represented in the court, appointments must be made so that between them the justices "have knowledge of, and experience of practice in, the law of each part of the United Kingdom."[83] Although no numbers are set in statute, by convention the court has contained two judges with experience of Scots law and one with experience of Northern Irish law.[84]

80. The Scottish Government's white paper sets out a plan for a supreme court in an independent Scotland: "The Inner House of the Court of Session and the High Court of Judiciary sitting as the Court of Criminal Appeal will collectively be Scotland's Supreme Court."[85] Lord Hope of Craighead told us that he could see advantages to the remaining UK and an independent Scotland sharing a supreme court: "a great deal of the legislation that affects commercial matters applies throughout the United Kingdom, and much of that would continue after independence." He and Lord Mackay of Clashfern agreed, however, that it was unlikely that an independent Scotland would share a supreme court with the rest of the UK.[86]

81. If an independent Scotland had its own supreme court, there would no longer be a need for justices to be appointed to the UK Supreme Court with experience of Scots law, as Scottish appeal cases would no longer be heard there.

82. In a debate on Scottish independence, Lord Hope commented on the effect on the UK Supreme Court of losing justices from the Scots legal system:

83. Whatever their background, justices are appointed to hear cases from across the UK. Therefore, it would not be appropriate to remove the serving justices with experience of Scots law; indeed it would be advantageous, as Lord Hope explained, for them to continue.[88] The retention of serving Scottish justices would also be helpful in retaining their experience of devolution matters that would still arise from Welsh cases.[89]

If an independent Scotland were to have its own supreme court, justices with experience of Scots law would no longer be appointed to the UK Supreme Court. However, given their UK-wide remit, serving justices with this experience should continue to sit on the Supreme Court until their scheduled date of retirement.

33 Paragraph 1(b) of Schedule 5 to the Scotland Act 1998. Back

34 Scotland Act 1998 (Modification of Schedule 5) Order 2013. Back

35 So called because they are made under section 30 of the Scotland Act 1998. Back

36 Written evidence from Lord Mackay of Clashfern. Back

37 Q 5. Back

38 Written evidence from Prof Stephen Tierney. Back

39 Written evidence from Prof Alan Boyle. Back

40 Q 32. Back

41 Q 32. Back

42 Written evidence from Prof Stephen Tierney. Back

43 Q 41. Back

44 QQ 16 and 41. Back