7 September 2010

Is the independence referendum legally competent?

Before the 2010 Westminster general election, I tore rather mercilessly into the legal illiteracy at the heart of Tory pre-election pledges on the Human Rights Act and the European Convention. "And why beholdest thou the mote that is in thy brother's eye, but considerest not the beam that is in thine own eye?" asks Scottish legal blogger Love and Garbage in an important post suggesting that is the SNP's proposed referendum on independence demonstrates our own illiterate grasp of the legal constraints of the devolution settlement. Either that or a wilful blindness which would hardly be more laudable. The public orthodoxy assumes that Holyrood is perfectly empowered to hold such a referendum. Even the opposition parties believe so. How else could Wendy Alexander have cried "bring it on"? The question then becomes a matter of pure politics, whether such a referendum should be held a question finally to be answered by the institutional majority. "Unionists have killed off the independence vote", suggested Salmond this morning. This, argues Love and Garbage, is so much Eckly razzmatazz:

"The central plank of the SNP manifesto then will be a policy they cannot implement within the confines of the Parliament they are running for (although of course politically, an SNP majority vote would make any demand for such a referendum to be passed by Westminster politically impossible to resist)."

Why not? His starting point is the legislative instrument that is the parliament's foundation ~ the Scotland Act 1998. As he rightly stresses, it is something that the Scottish media and the rest of us often lose sight of, but Holyrood is not an assembly at liberty to do as it pleases. The Act is structured with general and specific reservations. At the top of the general list in Schedule 5, we find the Constitution. Section 29 provides that "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..." and that "A provision is outside that competence so far as ... (b) it relates to reserved matters...". So, how is the phrase "relates to a reserved matter" to be construed? The Act offers this guidance:

(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, subject to subsection (4), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.

In his dissenting opinion in the recent Supreme Court case Martin v. Her Majesty's Advocate, Scottish judge Lord Rodger pondered an obvious hypothetical example of this sort of thing ~

"For example, the subject-matter of the Carriage of Goods by Sea Act 1992 is a reserved matter: para 1 and Section E3 of Part II of Schedule 5 to the 1998 Act. Obviously, therefore, if the Scottish Parliament purported to pass a Carriage of Goods by Sea (Scotland) Act with the sole purpose of repealing the 1992 Act in Scots law, its purpose would relate to a reserved matter and so its provisions would be outside the competence of the Parliament by virtue of section 29(2)(b). In practice, such a clear example would be unlikely to get past the legal advisers to the Scottish Parliament. In real life the problem is likely to arise in more complex situations." [Para 75]

The legality of a referendum on independence is undoubtedly one of these more complex situations. To those whose consciousness hasn't been rearranged and distorted by a legal education, what follows will undoubtedly seem like the worst sort of quibbling for which both the lawyer and the theologian are justly despised. I ask you to bear with me. In support of his thesis, Love & Garbage mentions the abortive Civil Appeals (Scotland) Bill, which the Presiding Officer of the day,  George Reid, ruled to be outwith the competence of the Parliament on legal advice. That Bill was an affirmative legislative attempt to end the practice where Scottish civil appeals can escape from the final judgement of the Inner House of Court of Session by fleeing south to the House of Lords as was, now the United Kingdom Supreme Court. A sort of judicial repatriation, then. The Bill's failure owed to the assessment that such a motion was beyond the competence of the parliament, under the constitutional reservations in Schedule 5 of the Scotland Act. Love and Garbage again ~

"If something which proposed to regulate an aspect of the legal system (against the context of the general devolution of matters relating to the courts, court procedure, and private law) is outwith the competence of the Parliament – then a bill which is about entering negotiations for the establishment an independent nation with its own legal system and legislature (or the break up of the United Kingdom, depending on your political preference) seems bound to have an impact on the United Kingdom Parliament (one of the matters on which legislation is expressly reserved to Westminster and on which the Scottish Parliament has no competence) and accordingly it would seem likely to be ruled by the presiding officer’s legal advisers as falling outwith the legislative competence of Holyrood."

I propose that we can distinguish this precedent quite simply from referendum. Or at least, might be able to make a manful legal argument to that effect. Assume that George Reid was correct and that the proposed Bill was beyond Holyrood's competence. What about a Bill attempting to have a referendum on the subject of the Civil Appeals Bill? Holyrood couldn't delegate powers for the Scottish people to make binding resolutions in a referendum. What if the public were asked "Do you agree that the civil appeal to the House of Lords should end?" As I understand him, on Love and Garbage's logic such a referendum is incompetently "tainted" by its reference to a clearly reserved subject. Couldn't we think about this differently and harden this contrast between admittedly incompetent affirmative legislation and legislating to institute a referendum process for the expression of public opinion on some subject which happens to be reserved? As I understand him, Love and Garbage is entirely consistent on this level. If the proposed referendum on independence is incompetent, surely my imaginary referendum on the Civil Appeals bill would also fall to be rejected.

I'd propose an alternative interpretation (I should stress, in a spirit of advocacy rather than in any certainty that a court would uphold my argument) and submit that legislating to conduct an advisory referendum on both reserved subjects can be distinguished and need not incompetently "relate" to the constitution as a reserved matter. All of this hinges on whether conducting a referendum on a reserved matter of itself "relates" to a reserved matter under section 29 of the Scotland Act. "Relation" is obviously not being used here in its common-sense definition of any tenuous connection. The Act suggests that we attend to (a) the purpose and (b) the effect of the legislation. So what is the essential purpose of a referendum on independence? As Lord Rodger noted:

"Sometimes, of course, the purpose of a provision may be obscure. And, even when it is not obscure, people may describe the purpose in slightly different ways" [Para 113]

This seems to me to be at the heart of the argument. How should the essential purpose of the referendum be described? On one level, we might say that its primary purpose is to canvass the opinions of the Scottish people. In law, it would have no binding effect. No legislative modifications would necessarily follow. Indeed, its lawful effect would simply be to set in motion a consultative process. Ascertaining the opinion of the Scottish people on a particular question is not a reserved matter. L&G would no doubt contend that this is a rather artificial analysis and that effect should be given a more expansive definition. Moreover, it is no secret what the general purpose of the SNP is in bringing such a referendum forward. He might be right in both respects. However, such arguments emphasise an important point. Whatever one's immediate view of the merits of either contention, it seems fair to say that the authoritative judicial definition of "relation to a reserved matter" remains opaque. Alan Trench, a far more dexterous public lawyer than I am, has recently composed this worthwhile piece on the wobbly line drawn between devolved and non-devolved powers of the parliament. My point is that the competence and legality of any referendum is at least arguable, if one begins to accept the separability thesis I outline above. That said, Love and Garbage is quite right to emphasise that blithely assuming Holyrood can competently legislate for a referendum is problematic. I have no insight into the SNP's legal advice or their legal thinking. However, I suspect that this analysis might also go some way to explaining the reported difficulties which were experienced in composing suitable wording.

So here we have a political problem. There seem to me to be clear and reasonable dubieties about the legality of such a referendum. In reality, these are unlikely to be resolved any time soon. However, assume for the sake of argument that a court upholds Love & Garbage's analysis and repels my own submissions. What the devil is the SNP to do? On one level, emphasising gaps between public expectations of devolution and its lawful reality makes the nationalist case. On another, the revelation that such a referendum is beyond Holyrood's competence to command - and it has taken this long for such fact to surface - assails the integrity and competence of the party which proposed it. Surely you could have - should have - known, the press might well ask. It is also worth bearing in mind that public attitudes towards legal certainty may not be kind to the SNP in such circumstances. If you assume the law is a great book of obvious rules and strictures, a failure to notice legal impediments on such an important subject seems astonishing, despite the fact that nobody else seems to have noticed them either. Moreover, I shouldn't like to play the seer if a challenge to a proposed referendum is eventually the test case which goes some way to clarify the relationship between reserved issues and devolved powers. That would be a case with astonishing political ramifications which would undoubtedly weigh with any court which heard argument on the subject. Indeed, it is hard to conceive of any other political issue in devolution which could prompt more controversy. 


  1. The civil service drew the draft bill up - the SNP didn't write it, civil servants did. So I would guess it is competent. That is their job after all and if they got it wrong it would be their heads on the line.

  2. The draft bill was prepared on the instructions of the policy team - implementing SNP government policy. Civil servants do what they are told. They attempt to implement the government policy as best they can. If the bill is not competent because the policy it is attempting to implement is not intra vires that's not a civil service problem, that's a government policy problem. And if the bill was competent why did the Herald report that the presiding Officer's office questioned its legality (to the surprise of few legal observers)?

  3. By the way LPW, an excellent post. One thought occurred to me. Is a triple option referendum less likely to be competent than a straight independence yes or not option - given the former necessarily impinges on the prospective powers of Westminster?

  4. As i understand it a referendum would be consultative and a gauge of opinion. It would inform and advise the competent legislative body ( whether that be in Westminster or Edinburgh)but not binding necessarily, political considerations aside,on that body.
    Can we really say that Scottish parliament hasn't the power to gauge public opinion, yet for example a newspaper, opinion pollster or a blogger with an online poll can. The difference between an opinion poll and a referendum surely lies only in population sampled

  5. According to Matt Qvortrup, recognised as the world's leading authority on referenda, the SNP can actually have a referendum WITHOUT Parliamentary approval.

  6. muddypaws - that mirrors the heart of the argument presented by LPW, and affected by Sch 5 of the 1998 Act. The position may seem odd, but I would argue that it is a consequence of the effect of Sch 5 on fettering the powers of Holyrood.

    voiceofourown - as I explain in detail in my blog post the argument by Dr Qvortrup (relied on by Joan McAlpine) may have the benefit of novelty but is plainly incorrect. It is flawed in 2 ways: (a) delegated legislation still needs authority for the act to take place (there isn't any for a referendum that I can see and Dr Qvortrup does not enlighten us as to where such authority may be found); and (b) even if there is authority an SSI or Order in Council can be annulled be negative resolution of the Parliament (under the Standing Orders of the Parliament and general principles that legislatures can act as a check on executive power). So he is wrong to suggest that there is a power, but even if he was right on that he is wrong to suggest that the power could be exercised without parliamentary intervention. Sadly despite being demonstrable nonsense this argument has doen the rounds on-line today.

  7. Indy,

    My overriding point is that it seems to me to be difficult to discern a clear black and whiteness in law on how "relates to a reserved matter" is interpreted. That touched on the competence of the referendum Bill. While they undoubtedly will have had access to much more proficient public lawyers than I, the issue really does seem to be arguable both ways.

  8. Interesting question, Love and Garbage, enlarging the potential rationale for the reported "wording" problem, which realistically I only touched on above. I suppose there are two distinct issues here - what the presiding officer is willing to certify and what view a Court might come to on the subject. Given legal uncertainties at the margins, the Presiding Officer is put in a difficult position by his duties. On which side of the thing to err? The considerations you mention may well, in the absence of other material, prey on any doubts which the PO is entertaining.

    However, for the purposes of the argument I made above, I think we can consistently maintain that if the essential purpose of a referendum is to discern the opinion of the Scottish electorate on some subject - and if we accept that a referendum would be competent on the broad subject matter of the Civil Appeals Bill and other reserved matters - then it follows that whether it was a multi- or single question referendum shouldn't really make much difference.

    Still, it is an excellent starting point to begin chipping away at the distinction I hoped to make between referendums and legislation, for the purposes of section 29.

  9. Thanks for the comment Muddypaws,

    As L&G notes, I argue that they can conduct such a process. He suggests the law is more eccentric and they have no legal basis to do so. I agree however - and many would agree - that if Holyrood does not have such powers this is both an absurdity and an appalling tactical dilemma for the SNP, at this late stage.

  10. Dr Qvortrup is certainly a learned chap, Voice of Our Own. However, there can be no doubt that he is wrong on this one. In particular, L&G's second point is crucial. Even if some legal basis to bring forward such delegated legislation was found - Qvortrup is regrettably misinformed if he thinks Unionist-dominated Holyrood can so easily be circumvented by executive legerdemain, forced to press the big red Confidence button to prevent it.

    The idea that a referendum might be brought forward unscrutinised and unhampered by hostile parliamentary fiddling using an SSI is palpably false, I'm afraid. While I do understand the initial hope and enthusiasm this prompted from Joan and others - it really is just a false dawn.

  11. The Presiding Officer is in a very tricky position - and must be heavily reliant on his advisers. In these situations (because public bodies do not like being sued and bearing the costs of being sued if they are wrong (and Oliver Wendell Holmes' observations may have an impact) the natural approach is caution.

    I did not explore the competence issue in detail in my blog post - mainly because I wanted to deal with Dr Qvortrup's argument. But after the excellent detailed analysis here I should set out my position.

    I think the decision re: the Civil Appeals bill was almost certainly wrong, but it appears to take a wide interpretation of "parliament" for the purposes of the reservation (and this will mean that the advisers will have opinions and notes on that internally that will be relied on in later matters). And while I see the argument you take that consultation on the issue and the issue itself can be severed (and indeed that seems to underpin the approach in the August 2007 White Paper - although never as explicitly as one would like, given that competence must always have been a consideration) I think the following will be their reasoning.

    While a referendum cannot bind the legislature or Westminster or Holyrood in legal theory (depending on the wording of the question and constituting Act) - in reality a positive referendum result will mean that the role of Parliament is necessarily affected. Given that and adopting a purposive interpretation of the reservation (and the general exclusion of constitutional matters) the referendum is not competent. (note though I've not trawled Hansard and ponder if the question might have been raised there in the Lords?)

    The moment a third element to the question is introduced (devolution plus) this then relates to something that is completely outwith the powers of the Scottish Parliament to determine.

    If the argument in relation to an independence yes or no question is finely balanced (and as you show it is more nuanced than the bald and bold assertion of incompetence in my blog post - raised to indicate that this was a dog that had not barked in the blog and media discussion) the third option tilts the balance against competence (although I am of the view that the balance would be against competence anyway).

    Anyhow I'm very much enjoying the debate - as I think it is important that this is aired. There is no knock down certainty that Holyrood can legislate here. For the majority of SNP activists to be assuaged at the dropping of the referendum at the moment with a blithe assumption that victory in the election will definitely trigger a referendum (given the presiding officer's doubts) is politically naive, I think.

  12. Civil servants don't just do what they are told. If the SNP told civil servants to do something that the civil servants believed to be outwith their competence the civil servants would say no.

  13. Loveandgarbage - I am an SNP activist. I am not bothered by dropping the Bill. It's clear now that there is no wiggle room to get it through so there's no point presenting it.

    I appreciate that lawyers will see this primarily as a legal issue but it's not. It's a political issue. It's a bit like people arguing about whether the Iraq war was legal or not. It doesn't actually matter because the decision to go to war was a political one and the reason Blair was able to do it was because he had the support of parliament, not because he was able to demonstrate that going to war was legal.

    Not that I am comparing a referendum on independence with the Iraq war but you know what I mean. We will be in a position to deliver a referendum when we have won the argument and got political support from other parties. At that point it will not matter if some legal-minded people think they can pick holes in some aspect of whether it is fully compliant with the Scotland Act.

  14. "Civil servants don't just do what they are told. If the SNP told civil servants to do something that the civil servants believed to be outwith their competence the civil servants would say no."

    And if the minister insists they will do it while noting their concerns. Advisers advise. Ministers decide.

  15. Indy,

    It is not just a political question. Any bill has to be accepted by the presiding officer's office. That office has to accept it is within competence. That is not a political decision. It is a legal decision. If the presiding officer's office is not satisfied that the bill is competent it will never get into Parliament to be debated.

    There are ways to deal with that - but they would require Westminster to assist with an order in Council at HOlyrood and Westminster to extend the powers of Holyrood. That might be a political outcome (and I indicated in my post - and LPW quotes - that an SNP majority (I think at either Westminster or majority government at Holyrood) will make a referendum inevitable because Westminster will allow it. But that is then at the control of third parties.

  16. Seriously Loveandgarbage civil servants will not go outside the boundaries that are set down for them. Remember the civil service is not devolved. It's part of the Home Civil Service i.e UK wide civil service. In that context the Scottish Government is effectively a department of the UK Government. So yes civil servants working for the Scottish Government owe their loyalty to their ministers but they are still UK civil servants not Scottish civil servants.

    That, I suggest, answers the point about whether the Bill is competent. You have no actual reason to believe that it is not, other than a very vague suggestion in the Herald. Even on the basis of the Herald report all that is suggested is that Alex Salmond told SNP MSPs that there were problems with "the wording of the referendum question." It did not suggest that the referendum itself was incompetent.

    In any case I have my own reasons for believing that the Herald story was more than a little blurred around the edges, as happens when you are repeating second or third hand gossip.

  17. The other thing I have to say is about the passage of the Scotland Act - and I apologise in advance because I can't remember all the deatils. But I do recall that when it went through the House of Commons Alex Salmond (who was an MP at the time of course) made sure with Donald Dewar that the Bill would allow for a consultative referendum. There was a big discussion about whether referendums could be binding or consultative and as I recall it turned out that all referendums held anywhere in the UK could only be consultative. Then when the Bill went through the House of Lords the SNP (which doesn't have peers) co-opted a group of peers, they were mainly hereditary peers, to act as the SNP Group during the passage of the Bill. Part of that was about making sure that the UK Govt didn't sneak something in to make it impossible for the Scottish Parliament to hold a referendum. As I say I really can't remember any of the details - I remember the chat about it because everyone thought it was quite funny that we had co-opted these hereditary peers to represent us. (They were quite willing to do it in the spirit of fair play though they weren't really committed nationalists). But if anyone is sufficiently dedicated I am sure they could trawl through Hansard to find the salient points or the SNP Whips Office at the House of Commons could maybe help.

  18. L&G
    "...in reality a positive referendum result will mean that the role of Parliament is necessarily affected."

    I'm tending to agree with your general line (not least with the memory of the blunt ruling on the BBC/SNP affair at the GE still fresh) but I wonder if you could be little more explicit with what you intend by 'role' and 'necessarily' in the quote above, given that these are decisive for this view.

  19. Seems you've kept yourselves occupied while my attention was elsewhere today!

    On Indy & L&G's exchanges on the civil service and the competency issue, there is a point that warrants emphasis. My own views track between the two positions you respectively elucidate which makes this a little tricky. I'll try my best to be clear.

    My own belief is that competency is certainly open to debate and question in law. This isn't, as I understand you're suggesting Indy, a matter which internal gossip might verify or falsify. Anyone with legal training and loose familiarity with the precedents can see with a little thought that any proposed independence referendum under the Scotland Act as it is currently drafted is much, much less clearly a lawful enterprise than is supposed. That is a good reason to question its competency.

    Indeed, as someone with a law degree and an interest in the topic, I'm rather embarrassed not to have thought about this in any depth before now. Accept the thought, at least for now, that Holyrood's competence to enact such a Bill is legally wobbly - but as I suggest - there are arguments in favour of such a competence. The Bill is important to the nationalist government. The civil service cannot give an authoritative negative answer. As a result, it seems entirely plausible to me that the governmental enthusiasm would mandate pressing on, despite the uncertainties on legality. After all, in the end they might win out. That doesn't require anything implausible, either of the government or their civil servants.

  20. Secondly, however, I'm more disposed to sympathise with Indy's position on the relationship between law and politics, and the possibility that former is influenced by the latter. With sufficient will, and particularly in the absence of a political discourse invoking the legal competence of the referendum, it is not beyond probability that such legal qualms might well be overridden and doubts put aside. L&G is right to emphasise the institutional barrier represented by the presiding officer. There is also the possibility of a subsequent legal challenge by an interested foe of the referendum project.

    Yet legal uncertainties can present political opportunities, after all, for those with brass neck who aren't over-scrupulous. If a putative future Bill negotiated all the political hurdles of being passed in Holyrood, it seems like a brave Court to knock it flat. That judicial bravery would manifest is not beyond possibility, of course, but it would be a tense piece of litigation.

  21. Ratzo,

    While a referendum is purely advisory in legal theory I do not think any advocate of a referendum would argue that a yes vote would not lead to independence. If there is a yes vote then that triggers the move to independence (unless of course there is to be a second referendum once the negotiations are complete just to make sure - I do not know SNP policy on this). If the yes vote is the trigger for independence negotiations (and would be viewed as the justification for this and any decision on independence/breaking up the UK (* delete inapplicable based on political preference) then the advocates of a referendum must accept that it necessarily has an impact on the position of the UK Parliament (in that independence will mean that the UK PArliament can no longer legislate for Scotland). Additionally, the result of this vote - while theoretically advisory and not binding - will be the justification for the ending of the Union.

    So what does the reservation prohibit?

    Para 1 of Sch 5 to the Scotland Act 1998 prevents the Scottish parliament legislating on the following:

    "The following aspects of the constitution are reserved matters, that is—.
    (b)the Union of the Kingdoms of Scotland and England,.
    (c)the Parliament of the United Kingdom,"

    A positive referendum result affects both. To my mind - a referendum is then clearly reserved.

  22. I've gathered my thoughts on competence into one coherent post here (given that my original post asserted without justifying) http://bit.ly/dp0CyL

  23. Thanks L&G.

    It is the degree of firmity intended by 'necessity' that is faintly bothersome. Does 'reasonable probability' (which seems to me to be the series of cause and consequence you've described as 'necessary'; and not only because previous 'yes' votes in Scottish referendums did not lead to the obvious intended outcomes) still carry it sufficiently out of the realm of metaphor to make it a definitive practical measure of the incompetence of the projected action?

    (I think this is just another way of putting the same question as LPW & Muddypaws).

    Also - have you (accidentally) implied that a referendum is however quite legal as long as the vote is no, because that has no effect on the role of Westminster as sovereign, in your definition, in respect of UK & Scottish constitutional legislation?

  24. From a competence perspective I would suggest that the result of the referendum is like SChroedinger's cat - until observed it can be both positive or negative. In evaluating competence the adviser must assume both possibilities and advise accordingly.

    (AH, LPW, where else on the blogosphere other than here do you get literature, politics, law, culture, and quantum theory?)

    On the necessity issue are supporters of the referendum suggesting that a yes vote would not lead to independence (genuine query - not rhetorical flourish)

  25. A good point Ratzo, and I think a weakness in any definition of "relating to a reserved matter" that posits such a broad, encompassing assessment of influence, impact and relation.

    To pop my advocate's wig back on, compare this to the formalistic simplicity of my argument that we simply examine the Bill's provisions on its face and ask - what is its lawful purpose, rather than speculate on future political possibilities and events outwith the immediate competence of any court to foretell. This seems to me to be a more reasonable question for a court to answer. Ironically, one of the qualities of Love and Garbage's argument - predicated significantly on a distinction between Scottish politics and Scottish parliamentary law - is that is has the effect of collapsing the former into the latter.

    I'm not disputing your points about the likely consequences of a 'yes' vote in such a referendum L&G, nor that its "purpose" on some level would be to "break up Britain". All I'm saying is that we cannot assume that the interpretation of legal competency by purpose and effect is transparently identifiable with general assessments of impact and influence. Indeed, due to the difficulty of such an endeavour, I'd argue that a Court has very good reasons to seize the narrower interpretation I propose and hold that such a referendum is a competent Act of the Scottish Parliament.

  26. LLPW I am not sure what you are referring to. I was suggesting that the item in the Herald story - which was cited by LoveandGarbage and which suggested that Alex Salmond had told MSPs that there was a legal issue with the wording of the referendum question - was second or third hand gossip. How could it be anything else? This was a parliamentary group away day. There were no journalists present. From what I have heard of the discussion the Herald got things a wee bit blurred.

    Regarding the passage of the Scotland Bill, my recollections are clearly blurred but nevertheless the issue of whether the Scottish Parliament was able to hold a referendum was discussed at the time the Bill was with the House of Commons and with the Hourse of Lords. There will be a record in Hansard. Presumably if any individual tried to challenge the competence of the Scottish Parliament to hold a referendum the intention of the legislators who drew up the Bill would have some bearing.

  27. Hansard is absolutely clear. The Parliament is not have the power to hold a referendum. See my discussion here: http://loveandgarbage.wordpress.com/2010/09/09/the-referendum-and-legality-the-parliamentary-debates/

  28. You may be right that the Herald's reported a distorted version of that meeting, Indy. I couldn't say for sure and your information is plainly better than mine. However, that does not do away with the fact that there really are significant legal dubieties on the competence of the referendum Bill. For my money, with the application of eloquent legal argumentation and political will, such dubieties could be overcome. There is no question in my mind, however, that this is much less clear than we all (including myself) previously supposed.

  29. I meant to add, thanks for the Hansard reference Indy - although I'm understandably less keen on the quotation Love and Garbage has unearthed from Lord Sewel the Hoose o' Lairds. Don't rest too comfortably on your winning reference, however, L&G. I'm awa' oot the noo, but I'll don my tin-plated Don Quixote costume and sally forth again tomorrow on why it is less conclusive than your post suggests!

  30. Don Q,

    Where's that island I was promised? And do you have feed for my donkey?


    Sancho P

    (PS I am assuming you'll be relying on Lord S's wording, and the slightly different wording of the question in the consultation papers. The good Lord was merely giving an example for later commentators to extrapolate... ;-)

    Looking forward to your considered response.)

  31. L&G
    I agree with LPW that you're onto something in respect of the legality of the proposed referendum but, also like LPW, I'm still unconvinced that sovereignty can be asserted over future contingents this way.

    Also, Sewel's position might seem to be perfectly clear, but is it really?

    Without wishing to appear trivially concerned with the nuances of terms, did Sewel not most likely mean by the term 'referendum' obvious UK precedents, such as 1973 in Northern Ireland, the UK-EEC referendum in 1975, and even the miserable affair of 1979 (when a majority 'yes' vote did not have a 'necessary' consequence).

    Those polls were structured to have unambiguous practical consequences. But that's not the case here. Everyone knows the proposed SNP referendum has no binding force and will not lead infallibly to anything at all.

    p.s. loved the Schrodinger's cat gambit, but does not the invocation of a splendid quantum explanation for something as mundane as an opinion poll rather weaken your point than strengthen it?

  32. Yes LoveandGarbage but the SNP is not talking about a referendum which will decide if Scotland becomes independent or stays in the Union. We are going round in circles here. Everyone accepts that the Scottish Parliament does not have the power to declare independence and cannot hold a referendum which will of itself decide if Scotland becomes independent. Only Westminster can legislate for independence. You are arguing against a non-existent case.

  33. Ratzo,

    The main problem from the nationalist lawyer's angle will be the caution of the presiding officer. These arguments can be made in Court and we might prevail. It is actually a very problematic institutional feature, in situations like this. Clear in-or-out judgements might be fine, but where competence is debateable, we're all thirled to one person's caution. The consequence of which must be that despite the arguability of the case, the PO becomes an unchecked agent of institutional conservatism, presuming in circumstances of uncertainty that proposed Bills are incompetent - and worse - not admitting public arguments about the issues involved.

  34. The Presiding Officer's judgment is not, as far as I know, final. It is as subject to judicial review as any other decision made by a public authority, and there is nothing in s31 of the Scotland Act 1998 to suggest otherwise. It's not only the referendum's opponents who can have recourse to law. Having, one way or other, got the referendum into court, and given that there is no such thing as UK law, however often that empty phrase is bandied about by terminally stupid, Scots law would undoubtedly apply. And here we would get to test just exactly how robustly our courts would take Lord Cooper's words on sovereignty in MacCormick v Lord Advocate. All the arguments above are predicated on the sovereignty of the Westmonster parliament: but there is good legal authority to the effect that it isn't sovereign in this country, the people are. And how better for the people to exercise their sovereignty than by means of a referendum? I don't see how a Scottish Court - or the Supreme Court applying Scots Law - can strike down the referendum without striking down MacCormick on - let me see - no grounds at all.

  35. I don't think anyone on here has spoken about UK law - as we have been discussing the applicability of Scots law to this Scottish problem. This has involved honest people having an honest debate about a topic that is crucial, but which has received little sustained argument or scrutiny - despite its importance. I am not sure how the proposition AM Firinn pronounces can be derived from MacCormick v Lord Advocate 1953 SC 396 (for those that can get access to the case reports - it's well worth a read and is published also in LOrd Cooper's Selected Papers). Lord President Cooper's speech in MacCormick merely questions the Diceyan approach to parliamentary sovereignty of Westminster and indicates that the principle of unlimited sovereignty does not reflect the Westminster position - given that the Treaty of Union established a new Parliament. Lord Cooper argued that certain fundamental and essential conditions in the Treaty of Union could not be repealed by Westminster (a point conceded by the Lord Advocate within the case). His obiter comments in the case are limited in this respect. Suggesting that the referendum bill may lie outwith the competence of the Scottish parliament is not an unreasonable legal position to take and is based on the wording of the Scotland Act as influenced by the parliamentary debates. It does not undermine (or indeed involve) MacCormick v Lord Advocate in any way. I am a supporter of the approach in MacCormick (as is implicit in the blog post LPW originally replied to - and as I had to explain to a sceptical commenter when LPW and my blog posts were reprinted on an English law blog).

  36. The kind of ignoramus who talks about UK law is hardly likely to post on LPW's blog and I wasn't getting at you at all, L & G. And I don't at all disagree with you that the referendum may be outwith the pitiful vires of the Scottish Parliament as currently constituted. I imagine that was the intention of their reluctant framers. But holding a referendum isn't outwith the vires of the Scottish people, who are sovereign. This is a point, you will recall, that was accepted by the Feeble 50 when they signed the Claim of Right. They and their political successors and assigns require having their faces rubbed in that fact firmly and frequently. Still, I accept an elision. Lord President Cooper's remarks in MacCormick were to the effect that the Westmonster parliament was not entirely sovereign - which, as you say, the then Lord Advocate, James Clyde - like Lord Cooper, a Unionist - accepted. If it isn't, who is? The point accepted by the Feeble 50, and appealed to both in 1320, and when the Scots Convention decided to dethrone James VII in 1689 rather than adopt the English "abdication" fiction, was that sovereignty rested with the people, or the Community of the Realm. That has undoubtedly meant different things at different times, but we know what it means nowadays. And I can quite conceive of legal arguments to the effect that even if the people were sovereign, there is no way they can make that sovereignty felt. But would you like to be that judge, to tell the Scottish people that all the time they thought they were free and sovereign, they weren't? And wouldn't such a declaration hasten the end of the Union rather than strengthen it?

  37. You would need to go into the legality of what the difference is between an "indicative" or "advisory" referendum which is the terminology people use and the kind of referendum that established the Scottish Parliament. I don't know what the difference is but frankly I am content that all the parties think it's possible to hold one. There's also the book Scottish Independence: Legal and Constitutional Issues: A Practical Guide published by the Constitution Unit which has lots of analysis.

    And that is really the elephant in the room because I actually agree with them that we need 2 referendums. Don't want to throw another coal on the fire but that is the most interesting point as far as I am concerned.