Shades of legal grey – Part 2

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Scottish Independence Referendum H of C Briefing paper

Molly Pollock in Part 2 looks at the constitution part of the briefing paper leading to the Edinburgh Agreement and the parts played by both legal and political process, including the vital importance of the SNP majority at the 2011 Holyrood election.

By Molly Pollock

This briefing paper has been produced by former journalist David Torrance, 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.

Section 5 covers the constitution:

1 The following aspects of the constitution are reserved matters, that is—
(a) the Crown, including succession to the Crown and a regency,
(b) the Union of the Kingdoms of Scotland and England,
(c) the Parliament of the United Kingdom

Part 2 sets out “specific reservations” which imply that the Scottish Parliament is empowered to make provision in respect of referendums that are clearly within the legislative competence of the Parliament, i.e. health, education, etc.

However the briefing paper quotes three constitutional academics who believe a Scottish Parliament can hold an independence referendum.

2007 Holyrood election
Following the SNP win in the 2007 election a White Paper entitled Choosing Scotland’s Future: A National Conversation was published. The foreword was by Alex Salmond who stated: “We in the Scottish Government are ambitious for the future of Scotland. We also believe that sovereignty in our country lies with its people. As a sovereign people, the people of Scotland – and we alone – have the right to decide how we are governed.”

The white paper also included a draft Referendum (Scotland) Bill intended to provide the Scottish Government with “an explicit mandate to negotiate” independence following a referendum. Whilst acknowledging the constitution was reserved, the Scottish Government believed it was “arguable that the scope of this reservation does not include the competence of the Scottish Government to embark on negotiations for independence with the United Kingdom Government”.

A number of white papers and consultation papers followed but without a referendum bill being introduced as there was not parliamentary support for it. Then came the 2011 election and its overall majority with renewed prospects for an independence referendum.

The UK government published a consultation paper on a likely referendum concluding as the referendum was about independence it would be unlawful and that a legal challenge would be very likely. Then before the ink was dry on the consultation paper Michael Moore, Secretary of State for Scotland, proposed that the powers for a referendum could be devolved under a section 30 order.

Two weeks later Alex Salmond announced a referendum would be held in the autumn of 2014.

The legal wrangling began again with the Scottish Government maintaining that whether or not a referendum related to reserved matters depended upon how the question was asked and the nature of any legal consequences flowing from the outcome. In the opposite corner Lord Wallace of Tankerness, the Advocate General for Scotland, maintained: “an Act to bring about the end of the Union would “relate to” the Union and bringing an end to it would be its purpose – it would be outside competence. What then, about a referendum on the Union? It seems to me that a referendum, “advisory”, “consultative” or whatever, about the Union, would relate to the Union. That seems clear both as a matter of common sense, and on a straightforward reading of the plain words of the statute.”

In Wallace’s view, an “advisory” referendum would be “a wolf in sheep’s clothing”.

Now back to law never being black and white but numerous shades of grey.

UK Constitutional Law Group

At the beginning of 2012 seven constitutional academics writing in a blog for the UK Constitutional Law Group, came to the conclusion that “the UK and Scottish governments would be ‘wiser to agree on an express transfer of powers’, although without taking that “as an unequivocal endorsement of the view that Westminster alone is entitled to authorise a referendum on the constitutional future of any part of the UK”.

In 2012 the Westminster Scottish Affairs Committee examined the legality of a referendum, as did the House of Lords Constitution Committee.

Finally, after months of negotiations between the UK and Scottish governments, the Edinburgh Agreement was signed on 15 October 2012. This included a draft Section 30 Order enabling the Scottish Parliament to hold a referendum. The Westminster Parliament, the Scottish Parliament, the House of Lords and the Privy Council all debated and passed the necessary legislation to temporarily alter Schedule 5 of the Scotland Act 1998.

Interestingly in the Edinburgh Agreement both governments “committed to continue to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom” [Editor: many would regard Westminster as having breached this on numerous occasions.]

Andrew Tickell, a legal academic, said of the Edinburgh Agreement that it: “represented only a temporary compromise between political claims of a right to Scottish self-determination, and legal uncertainty about the Scottish Parliament’s power unilaterally to embark on a democratic process resulting in independence. The 2012 pact left those tensions fundamentally unresolved.”

Just before the vote on the 18th September the Vow was published with promises by Labour, LibDems and Tories of more powers for the Scottish Parliament. This was followed by the Smith Commission which agreed that “nothing in this report prevents Scotland becoming an independent country in the future should the people of Scotland so choose”.