Lindsay Bruce takes a detailed look at the immense amount of work undertaken to bring forward #indyref2 and why today is very different to 2014
By Lindsay Bruce
The UK Supreme Court announced on Thursday that it will hear the Lord Advocate’s referral of the Scottish Government’s #indyref2 bill to determine if it is within the Scottish Parliament’s competence to pass into law without a Section 30 transfer of powers from the UK Government. Earlier this week Lord Reed, the Supreme Court President, rejected the UK Government’s attempt to have the Lord Advocate’s referral dismissed without further consideration. The Court has now set provisional dates of the 11th and 12th October this year to hear the case.
Up until now, the media and opposition politicians have repeatedly referred to an independence referendum without a Section 30 as a “wildcat” or “illegal” referendum – without that ever actually being determined. Absent an actual court ruling, that is a supposition and a substantial jump to a far from certain conclusion.
So what is the legality of a referendum to be held on October 19th 2023 without a Section 30, as it stands today? It’s an interesting legal and political question worth digging deep on – so strap in as we time warp back to 2012 and visit Alex Salmond’s mandate for the first Scottish independence referendum.
(Note: We make liberal use of screenshots and links to legislative acts in this article, but you don’t have to read them. They are there for illustrative purposes only to support and qualify the article. You don’t have to “lawyer up” for this!)
The SNP won a surprise parliamentary majority in the 2011 Scottish Parliament election, leading to immediate speculation about the date of Salmond’s promised independence referendum. But there were a couple of hurdles to clear first. Back in 2011, the Scottish Parliament did not have the power to call a referendum vote. It didn’t even have the power to call for an election. Although it could legislate for local elections, it didn’t even have the power to legislate for an election to the Scottish Parliament itself. Instead elections to the Scottish Parliament were held under the authority of UK law. This was covered in the Scotland Act 1998 Schedule 5 Reserved Powers list (as originally enacted) in Section B3:
Powers for elections to the Scottish Parliament were reserved to Westminster. And there were no powers for legislating for a national referendum on anything.
This was addressed in the 2012 Edinburgh Agreement, a landmark accord between the Scottish and UK governments that agreed a legal framework for the independence referendum and its conduct. The powers required to pass the voting legislation in Holyrood would be temporarily devolved to the Scottish Parliament using the Scotland Act’s Section 30 powers. Specifically, it was agreed to model the new Scottish legislation on Part 7 of the UK’s Political Parties, Elections and Referendums Act 2000 (PPERA). Here’s the relevant section of the Edinburgh Agreement:
And here is the relevant text of the actual Section 30 used in 2014 to modify the Scotland Act as then enacted;
(We’ll deal with the Section 30’s articles 1-3 shortly).
So what exactly does this mean?
In 2011, the SNP had a clear mandate for holding an independence referendum, but the Scottish Parliament did not have the powers to legislate for one. Without the transfer of powers from the UK government, any Referendum Act – on any issue, constitutional or otherwise – put before the Scottish parliament would have been judged as ultra vires by the Presiding Officer, and even if it had somehow passed the Scottish Parliament, local authorities were under no legal obligation to conduct a poll. Such a vote would have been deemed unlawful. The Scottish Parliament simply did not have the power to instruct local authorities to initiate a ballot.
Without the Edinburgh Agreement, there was no power to hold a vote.
Now let’s briefly return to the 2014 Section 30 Order and look at Articles 1-3:
Articles 1 and 2 are self-explanatory and are included here for the sake of completeness. Article 3 makes a specific exclusion of an independence referendum from the Scotland Act’s reserved powers if certain conditions are met, and those are listed under 5A, clauses 2, 3, and 4.
To summarise, this Section 30 Order allowed for a binary-choice referendum on Scottish independence as long as it was held on any day before 31st December 2014 that wasn’t already being used for another referendum or general election. So what “reserved powers” did this section modify? Let’s take a look at Schedule 5 of the Scotland Act as it existed in 2013 at the time of this Section 30 Order.
Devolution in the UK uses the “reserved powers” model, which means that anything not explicitly reserved to Westminster is automatically devolved (this is how the Scottish Government was able to pass landmark Climate Change legislation, because at the time of the Scotland Act the UK Government didn’t think to reserve it). Consequently, Schedule 5 of the Scotland Act is quite lengthy as it lists all the powers that Westminster wants to keep to itself – but since the Section 30 issued in 2013 only refers to Paragraph 1 of Schedule 5, we need only concern ourselves with that:
Paragraph 1 of Schedule 5 does the heavy lifting, reserving issues related to the Crown, the Union, the Parliament, and the continued existence of the two supreme courts in Scotland; the High Court of Justiciary (criminal), and the Court of Session (civil). The subsequent paragraphs go on to reserve all manner of powers to Westminster – but it’s Paragraph 1 we’re interested in here because it’s this one which the 2013 Section 30 modified. In fact if you follow the source link provided, it will take you to the complete Schedule 5 of the Scotland Act as it was 1st April 2013 including Paragraph 5A which the above Section 30 Order inserted.
The 2013 Section 30 Order refers to the reserved powers in the whole of paragraph 1, but really what we’re talking about is the second item; “(b) the Union of the Kingdoms of Scotland and England”, and the third; “(c) the Parliament of the United Kingdom”. This part of the Scotland Act prohibits the Scottish Parliament from passing legislation which in any way modifies the Union or Parliament.
This is the argument which is going to the UK’s Supreme Court; does holding an independence referendum compel modification of the Union or Parliament? It can be strongly argued that in 2014 it did because the Edinburgh Agreement bound both parties to respect the result. But is the same true in 2022 when the #indyref2 bill now being put before the court is for a consultative referendum opposed by the UK Government? This is where the lawyers earn the big bucks, and this is ultimately the legal point which the UK Supreme Court needs to determine.
Why are we talking about voting powers transferred in 2013? Because the situation today is completely different.
“Oh. I wish we hadn’t done that.”
On the 19th September 2014, the day after the 2014 independence referendum, then Prime Minster David Cameron stood outside Downing Street and announced that Lord Kelvin would chair the Smith Commission to make recommendations for delivering on a key promise of the Better Together campaign, namely more powers for the devolved Scottish Parliament. The Smith Commission included representatives from all main political parties including the SNP, and its final report was agreed by all parties including – crucially – the Conservative and Unionist Party, who ultimately were responsible for delivering said new powers.
The full Smith Commission Report has been archived by the UK Government, and you can read it here.
Before we get to the recommendations concerning elections in Scotland, it’s worth highlighting this nugget from the report which all political parties agreed to:
This supersedes any campaign slogans such as “once in a generation”, or anything in the 2013 White Paper “Scotland’s Future” since that prospectus was ultimately rejected by voters in the 2014 referendum. We can only hold the No campaign’s winning arguments to account since the case for Yes lost and was not enacted.
So let’s get to what the Smith Commission Report said – and all parties agreed to – about future elections to the Scottish Parliament:
So that’s what was promised from the Smith Commission. What was actually delivered in relation to elections in the Scotland Act (2016)?
First, let us remember that under the “reserved powers” model, anything not reserved is automatically devolved. Section B3 of Schedule 5 of the Scotland Act deals with reserved powers over elections. So let’s take another look at how things were in 2013 to remind ourselves of the position before the first independence referendum (this is the same graphic as at the top of this article):
That was the position in 2013. Now let’s look at the same section after the Scotland (2016) Act was passed:
Whoa! There is a huge amount of new text here! Did the UK Government just reserve a lot more powers? Actually no, what they did was un-reserve elections to the Scottish Parliament (thereby devolving them) and added a bunch of caveats to that such as election timings, donations to political parties and other minutia.
Let’s highlight the really important change here, because it’s quite simple. This is how things were in 2012:
And this is how this portion of the Scotland Act looked after the 2016 revisions:
You can see that the first blanket statement no longer includes “the Parliament” (referring to the Scottish Parliament), and it has been moved to a new secondary section “(B)” which goes on to list a number of exceptions which the UK Government are still reserving. You can go through the list for yourself if you want, but the crucial point is that legislation on elections in Scotland is no longer a reserved matter.
If you have stayed with us this far, thank you, well done, and we’ll try to speed things up a little bit because we’re reaching the crucial point which the UK Supreme Court will have to decide.
After the changes were enacted, the Scottish Parliament had to pass Primary legislation that gave effect to these new powers. This resulted in three new bills going through lengthy drafting, consultation, and scrutiny by cross-party Holyrood committees before being debated in the chamber, amended, passed by the Parliament, and receiving Royal Assent to become Acts of law. They are;
- The Scottish Elections (Reform) Act 2020: https://www.legislation.gov.uk/asp/2020/12/introduction
- The Scottish Elections (Franchise and Representation) Act 2020: https://www.legislation.gov.uk/asp/2020/6/introduction/enacted
- The Referendums (Scotland) Act 2020: https://www.legislation.gov.uk/asp/2020/2/introduction
Save for the reservation of UK-wide general elections, these Acts give the Scottish Parliament legislative power over voting in Scotland. They are the legal framework within which all elections and referendums within Scotland – save for UK general elections – will take place going forward. Acts for individual elections and referenda are still required to place detail pertinent to those votes (such as the dates and specific terms), but these will exist within the enabling framework of the above Primary legislation.
You can think of these three Acts as being the tracks, and the actual individual election and referendum bills as being the trains that run on them.
And herein lies the crucial difference between 2014 and 2023; the Scottish Parliament doesn’t need a Section 30 to transfer these powers from Westminster, because it already has them.
Now perhaps our section title, “Oh. I wish we hadn’t done that”, may become clear: Westminster politicians are probably wishing that they hadn’t passed these powers to the Scottish Parliament in 2016. With these new powers, it’s possible that the Scottish Parliament can hold an independence referendum not only without a Section 30 order, but against the UK Government’s wishes!
Rough waters still ahead?
Let’s talk about the case before the Supreme Court. Although a Section 30 is no longer required to transfer the powers to order an electoral ballot, one is arguably still required because the Union and Parliament are still matters reserved to the UK. Again, here’s the top of Schedule 5 of the Scotland Act:
However, the Scottish Government are arguing that a consultative vote in itself does not bind the UK Government to change either the Union or the Parliament of the United Kingdom.
So let’s bring in the draft Scottish Independence Referendum Bill:
Let’s take a look at the very first provision, Purpose of this Act:
“The purpose of this Act is to make provision for ascertaining the views of the people of Scotland on whether Scotland should be an independent country.”
For ascertaining the views of the people of Scotland. The views. This bill is for a consultative, non-binding vote on Scottish independence.
Let’s take also take a look at one of the provisions a little further down:
And there is the Referendums (Scotland) Act 2020 which underpins this proposed referendum – the legal tracks that this particular train will run on. The Independence Referendum bill itself is quite short, only 5 pages (we’ve only shown part of page 1 here), because all of the essential legal underpinnings required to order, execute and monitor a referendum are in the Referendums (Scotland) 2020 Act.
It must be reiterated at this point that the Scottish Government’s favoured course is still an independence referendum on 19th October 2023 with a Section 30 from the UK Government, and a mutual accord similar to the 2012 Edinburgh Agreement. This is the “gold standard” that puts the result and effect of a referendum beyond doubt. But absent the Conservative UK Government playing democratic ball, the Scottish Government is prepared to push ahead regardless.
But is there a point to a consultative non-binding referendum? Well, in fact all referendums and elections in the UK are non-binding. Parliament can ignore them, if it so chooses, because in the UK parliament is sovereign, not the people. Scotland historically takes the reverse view that it is the people who matter and that they are sovereign. However, while part of the UK it’s the UK rules that apply.
While the UK Government will almost certainly try to ignore a Yes vote in a consultative referendum, it would pile considerable political pressure on them as it would no longer be an academic question, but the Scots have in fact voted to leave. That’s not something that they can airily wave away as “grievance” or with casual manufactured soundbites. That’s the real deal Union-ending stuff.
There would also be considerable diplomatic pressure on the UK Government. Europe will be watching, the UK’s trade partners will be watching, and – perhaps most importantly – the United States will be watching. One can hardly champion democratic values across the world if one’s closest ally is choosing to ignore democracy on its doorstep.
The Lord Advocate steps in
The Lord Advocate is Scotland’s senior law officer for both criminal and civil law, and is the principle legal advisor to the Scottish Government. The Lord Advocate also represents the Scottish Government in all civil proceedings. The position is currently held by the Rt. Hon. Dorothy Bain QC.
It’s important to note that while the Lord Advocate works for the Scottish Government, she is not bound by the Scottish Government. Her position is protected by the Scotland Act, as are Scotland’s highest courts. They act independently of the Scottish Government, albeit reporting to the Scottish Government. It’s a long-standing covenant in modern democracies that the court and judges are separated from the State to prevent undue influence in criminal and civil cases by politicians.
The Lord Advocate’s counterpart is the Advocate General, the most senior law officer in Scotland representing the UK Government. The Advocate General’s post is currently held by Lord Stewart of Dirleton QC.
In her speech of 28th June announcing the Independence Referendum in 2023, First Minister Nicola Sturgeon informed the Scottish Parliament that;
“…some weeks ago I asked the Lord Advocate to consider exercising the power she has under paragraph 34 of schedule 6 to the Scotland Act to refer to the Supreme Court the question of whether the provisions in this Bill relate to reserved matters.”
The Lord Advocate did consider it, and determined that referring the #indyref2 bill to the Supreme Court for a ruling on whether it was within the competence of the Scottish Parliament to pass was “for the benefit of the Scottish Parliament, the Scottish Government and the people of Scotland (indeed, people throughout the United Kingdom)”.
Her written submission to the Supreme Court was published on Friday and contains arguments both for and against competence of the parliament based on the Scotland Act, prior case law, applicable parallels from the Welsh and Northern Irish Parliaments, and extensive debates in both the House of Commons and the House of Lords. You can read the entire 51-page submission here.
To answer the question “Can Scotland hold #indyref2 without a Section 30 from Westminster?” honestly, we need to split the question into more nuanced enquiries;
- Prior to 2020, could Scotland have held #indyref2 without a Section 30 from Westminster?
- No. It did not have the legal power required to instruct a nationwide electoral ballot. That power only came after elections were devolved in the Scotland 2016 Act, and the pertinent Acts of the Scottish Parliament gave it effect in January 2020.
- Can Scotland hold a referendum in 2023 without a Section 30 from Westminster?
- Yes. The Scottish Parliament has the power to hold nationwide referenda without the permission of Westminster.
- Can Scotland hold a referendum in 2023 on reserved matters without a Section 30 from Westminster?
- Maybe. This is the question now before the UK Supreme Court. Their ruling will determine what happens next.
Supplemental: Can the SNP turn the next general election into a de facto referendum?
Short answer: Yes.
You can campaign on any issue in a general election, that is the nature of democracy. Given the SNP’s dominance of Scottish politics and track record of winning elections, it would be impossible for any other party in the election to ignore a single issue campaign – and other parties can’t realistically boycott a general election. There’s a recent precedent for this; Boris Johnson ran his 2019 general election campaign on a single premise; “Get Brexit Done” with his “Oven-ready deal”. Regardless of how we may feel about that or how his premiership turned out, he was elected with an 80 seat majority and a mandate for his policies.
Whether a UK government would recognise the result is another matter entirely, but it would be impossible for them to ignore.
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