Shades of legal grey – Part 1

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Scottish Independence Referendum H of C Briefing paper

Molly Pollock, Newsnet’s Research Editor, picks her way through a House of Commons briefing paper that lays out the problematic issues both sides face ahead of the coming Independence referendum. There are multiple shades of legal grey in the complex constitutional structure of the union and how it changes following a successful independence referendum. Perhaps why both governments opposed the case to the Court of Session over Section 30. Unlike cases taken to the Supreme Court to challenge the legality of government and executive exceeding their powers, such as the 2019 prorogation of parliament, constitutional changes are best dealt with by political solutions because the will of the people is the question to be settled.

By Molly Pollock

This briefing paper has been produced by former journalist David Torrance, long time critic of the SNP government in Scotland, now working as a researcher in the House of Commons library. Briefing papers are produced to provide information on issues of current or impending importance.

According to Torrance the briefing paper provides “everything you could possibly need to know about the legal issues surrounding a possible second independence referendum in Scotland.” The paper covers the legal questions (though more akin to a minefield) that would arise if the Scottish Parliament was to legislate for a referendum on independence, and sets out the issues and the discussion so far.

  • The briefing paper covers
  • Summary
  • A short history of the Union
  • Scotland Act 1998
  • Referendum proposals, 1999-2010
  • Referendum negotiations, 2012-14
  • Referendum developments, 2016-21
  • Legislative process and role of the Supreme Court

“This briefing paper at first summarises the constitutional development of the United Kingdom of Great Britain and Northern Ireland, including past means of secession from the UK and its former Empire. It then examines debates prior to the creation of the Scottish Parliament in 1999 before tracing the Scottish Government’s attempts to legislate for a referendum in 2010-11. It looks at the debates and negotiations which led to the 2014 referendum, as well as subsequent requests for a s30 Order. Finally, it examines recent legislative and legal developments in Scotland, including the prospect of referendum legislation being referred to the Supreme Court following the May 2021 Scottish Parliament election.”

Like all such documents which have to do with the law it is not always the easiest of reads but undoubtedly provides useful information in understanding the problems faced by the Scottish Government in holding another independence referendum. So very worthwhile persevering and a document to be downloaded and run off to keep handy.

One of the first comments to strike a chord is the first paragraph of Section 2: A short history of the Union where reference is made to political scientist James Mitchell’s description of the Union as a state of evolving unions with the UK never a fully unitary state but a series of unions made (and in one case partly unmade) between the 16th and 20th centuries. This will strike a chord with many of us who have railed against the Westminster Tory government indicating and behaving as if Scotland was little more than a poverty-stricken adjunct of England.

Whilst the Northern Ireland Act 1998 allows for a poll of Irish reunification, no equivalent provision exists for Scotland and Scottish independence polls in either the Scotland Act 1998 or in other legislation concerned with Scotland’s constitutional status. “For secession to take place in accordance with the UK’s constitutional requirements requires, in effect, a negotiated political agreement and implementing legislation passed by the UK Parliament.” This is in contrast to the EU where Article 50 of the Treaty of Lisbon sets out the process by which a Member State can leave. This was triggered in 2017 and the UK ultimately left the EU in January 2020.

From the 1960s onwards the SNP argued that Scottish people were “sovereign and could therefore exercise self-determination” in constitutional terms. A general consensus developed that Scottish devolution or independence should take place if a majority of Scottish MPs committed to that course were returned at a UK general election. Even Margaret Thatcher agreed that Scots had a right to self-determination and that should they decide on independence no English party or politician would stand in their way. Even John Major agreed with this.

So something to remind Boris Johnson and his side-kick Alister Jack of.

Section 2.3 Referendums and constitutional change has an interesting initial sentence. “As a matter of law, a referendum is not required for Scotland to become independent…” However it goes on to say: “…it is arguable that sub-state referendums have become a conventional part of constitutional change in the UK.” Interesting!

The Scotland Act 1998, although devolving powers to Scotland, included a statement of Westminster’s legislative supremacy, with Westminster retaining the power to make laws for Scotland. The UK Tory government has made full use of this in the recent Internal Market Act in which numerous powers are being grabbed back by Westminster, diluting those of the Scottish parliament.

Whilst devolution was under discussion at Westminster Donald Dewar, then Secretary of State for Scotland, in response to a question of referendums responded:

“A referendum that purported to pave the way for something that was ultra vires is itself ultra vires. That is a view that I take, and one to which I will hold. But, as I said, the sovereignty of the Scottish people, which is often prayed in aid, is still there in the sense that, if they vote for a point of view, for change, and mean that they want that change by their vote, any elected politician in this country must very carefully take that into account.” (Section 3.1: Legislative competence)

Jim Wallace, the then Scottish Liberal Democrat leader stated: “At every election in Scotland—general elections and Scottish elections—we have a referendum on whether the people of Scotland want independence. At the most recent general election, the overwhelming majority rejected independence, and I believe that they will do so again. If the Scottish National party managed to get a majority of votes, it would have a mandate to hold a referendum and put the case for independence.”

The debate on whether the Scottish parliament would have legislative competence to hold a referendum rumbled on through the Commons and Lords. Only one thing seems to have been clear and that was that the law is never black and white, but numerous shades of grey with the prize going to the person making the most compelling argument and the most persuasive interpretation of a set of words, or even of one specific word.

Despite the best efforts of the Commons and Lords to make the provisions of the Scotland Act 1998, especially those relating to the holding of a referendum on independence, clear and unambiguous, the law rarely seems to conform to that. So the debate has trundled on with Section 30 ever under the spotlight. Given the frequency with which this section is referred to it’s not surprising that many believe it relates specifically to holding an independence referendum.

In fact it allows for a Statutory Instrument which, according to the 2009 Calman Commission report: “…may extend the competence of the Scottish Parliament into a new area of responsibility currently reserved, or add an area to the list of reserved matters, thus taking it out of the Parliament’s control or preventing it coming within that control in the first place. The Order can modify the provisions of Schedule 4, which restrict the competence of the Scottish Parliament to legislate, or of Schedule 5, which list the reserved matters.”

So providing the Presiding Officer of the Scottish Parliament decides the provisions of the Bill would be within the legislative competence of the Parliament, it can proceed to consideration. However the Scottish Government is not obliged to withdraw or change legislation that the Presiding Officer declares incompetent. This happened with the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill (known as the Scottish Continuity Bill).

When passed the Presiding Officer then submits Bills for Royal Assent. However within a four-week period from the Bill’s passing it can be referred by the Advocate General (UK), the Lord Advocate for Scotland or the Attorney General for England and Wales to the Supreme Court for decision on whether a Bill or any provision of a Bill would be within the legislative competence of the Parliament.

So if, as seems likely, no Section 30 order to hold a second independence referendum is forthcoming, then the Scottish Government have indicated they will go ahead anyway, knowing they can be challenged in the courts. But what is less likely known is Section 35 1.b under which if the Bill is considered to make modifications to the law as it applies to reserved matters and have an adverse effect, then the Secretary of State (at present Alister Jack) may make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent. And to make its intentions even clearer Section 101 provides courts with an interpretive steer when assessing whether a legislative provision is beyond devolved competence.

To date the Secretary of State veto has never been used, but with a UK government determined to stop independence…

The Westminster government was never going to make challenging it easy.