On the serpentine logic of Michael Forsyth...

With Lord George Foulkes' demission from Holyrood in May's election, I suggested that despite ourselves, we might yearn for Eckbane - the lost Clatterbag o' scandal that is, was, and shall be ever-after - flyter Foulksie. It seems, however, that even the sedate scarlet benches of Westminster's noble house have proved insufficient to cool Geordie's natural ardour.  You can't kick against the pricks, after all. The Scotland Bill, having passed its second reading before the House of Commons, has progressed with stately ceremony up to their Lordships, who are presently muttering over it at committee stage.  While watching the traffick of parliamentary amendments won't entertain or vex most, Foulksie's mischief will prove a (dis)honourable exception.  In addition to careening about on his old hobby horse about Holyrood's electoral system and trying to make variation in university fees within the UK a reserved matter, outwith Holyrood's competence, Geordie has laid a series of amendments, attempting to precipitate a Westminster organised and Westminster controlled referendum on the question “Do you want Scotland to remain part of the United Kingdom?”.

Grosso modo, Foulksie also proposes to make any future extension of Holyrood's powers over taxation conditional on a positive referendum, endorsing the proposed elaboration of the Scottish Parliament's powers. A similar wheeze is designed on the financial provisions of the Scotland Bill (enumerated in part 3 of the draft enactment). If that wasn't sufficient to rile the forces of enthusiastic political nationalism, another noble lord - a Tory whose Unionist heart is as black as the Earl of Hell's weskit - Michael Forsyth - joined Geordie, proposing the following amendment...

LORD FORSYTH OF DRUMLEAN

Insert the following new Clause—
“Referendum about Scottish independence

(1) The holding of a referendum on whether Scotland should become independent from the rest of the United Kingdom is outside the legislative competence of the Scottish Parliament (see subsection (6)).

(2) The Prime Minister may by order cause a referendum to be held throughout Scotland about whether Scotland should become independent of the rest of the United Kingdom.

(3) The order shall contain the question that is to appear on the ballot paper

(4) The referendum shall be held in accordance with provisions made in the order, applying the provisions in sections 2, 3, 5 and 6 of, and Schedules 1, 2, 3, 4 and 9 to, the Parliamentary Voting System and Constituencies Act 2011 with such modifications as are necessary.

(5) An order under this section may not be made unless a draft of the statutory instrument containing the order has been laid before, and approved by a resolution of, each House of Parliament.

(6) In Part 1 of Schedule 5 to the 1998 Act, after paragraph 1 (the Constitution) insert—

“1A. The holding of a referendum on whether Scotland should become independent of the rest of the United Kingdom is a reserved matter.””

As you can see, Forsyth's proposals are more direct than Foulkes', however, they don't aim at any great constitutional novelty. Given Westminster's sovereignty, it always had the power to call its own independence referendum, thus Foulkes and Forsyth's amendments don't surprise on that score. Where Forsyth's amendment does interest is its basic assumption, that under the Scotland Act 1998 as is, Holyrood unequivocally does have the legal competence to hold a referendum on independence. As I have argued a number of times before (often in debate with Love and Garbage), Holyrood's legal competence to hold any referendum on Scottish independence hangs by a very shoogly peg. Love and Garbage and I both agree on that legal analysis; disagreeing when it comes to the final disposal. He is confident that any Bill passed by Holyrood would be incompetent, I think the legal position is arguable, at best, but no certainty.

While I commend previous posts and links to you for a more involved account of why there is a legal problem with the referendum, put most briskly, under Schedule 5 of the Scotland Act 1998, you'll see that the first general reservation you see are aspects of the Constitution. Section 1(b) explicitly reserves "the Union of the Kingdoms of Scotland and England". Under section 29 of the 1998 Act, any law passed by Holyrood which "relates to" reserved matters is no law at all, incompetent, ultra vires. While we may debate the legal niceties (and indeed pick a way through them to a case for why Holyrood's independence referendum Bill does fall within its legal powers), on a common sense construction, a referendum on independence clearly relates to the Union.  Despite pervasive beliefs to the contrary, the Scottish Parliament's authority to deliver a referendum is by no means clear. While Newsnet Scotland is right to report of Forsyth's amendments that they are a "bid to strip Holyrood of the power over the holding of an independence referendum", what interests me is that Forsyth would concede such a power exists in the first place. Although it may be politically poisonous, and leave one open to allegations of subverting democracy, if he contended that Salmond's government doesn't have the legal competence to deliver his referendum, he would certainly be making mischief, but not entirely without basis. 

The assumptions informing Forsyth's amendment, and the difficulties an independence referendum might face, raises a further, nice legal point. You may or may not have heard of legislative consent motions - probably by their more common conventional name of Sewel motions. The Scottish Government offer this intelligible summary of their character, which I won't better:

"Nothing in the Scotland Act prevents the UK Parliament from legislating on matters which are within devolved competence: section 28(7) makes that clear. However during the passage of the Scotland Act, the UK Government announced that it "would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament." (In this context 'devolved matters' does not refer just to matters that are within the legislative competence of the Scottish Parliament and could, therefore, potentially be included within an Act of the Scottish Parliament. It additionally is taken to refer to matters which, although reserved, affect the breadth of the devolved institutions' powers - i.e. the legislative competence of the Scottish Parliament or the executive competence of the Scottish Ministers.) This has become known as the Sewel Convention, and its purpose is to reflect and respect the devolution settlement and the role of the devolved institutions."

Now summon Forsyth's amendment back to mind. On his analysis, holding a referendum on Scottish independence is a devolved matter, within the Scottish Parliament's competence. Under the Sewel Convention, therefore, for this power to be returned to Westminster's exclusive competence (like the Scotland's Bill's queerest proposed re-reservation, Antarctica), a Sewel Motion would be required, as would Holyrood's agreement. In short, with an SNP majority, and on Forsyth's own theory, it has a snowball's chance in hell of being accepted by the Scottish Parliament. Assuming that the Sewel convention is properly observed, Westminster could not unilaterally claw back the power, even if the serpentine Baron Drumlean's amendment found favour on the red and green benches of Westminster.  By strict law, of course, Westminster could cheerfully override Holyrood, but that would precipitate a political scandal of such intensity that we can expect Westminster to forgo the unanswering majesty of its sovereignty, and approach the whole thing much more gingerly.

However, as we've noted, Forsyth's premise is indubitably debatable, and Holyrood's competence to hold an independence referendum is (at least legally if not popularly) in doubt. Reserved matters, by contrast, require no Sewel motions and no legislative consent from Scottish institutions. Although a clear statement that an independence referendum is a reserved matter would change the Scottish Parliament's powers - changing what was maybe competent into something that certainly isn't competent - the tantalising uncertainty about Holyrood's powers makes for tantalising uncertainty about what devolution politesse Westminster is governed by.

For my part, I am still mystified why SNP MPs have not tabled the inverse of Forsyth's amendment, putting it beyond doubt that the holding of a referendum on whether Scotland should become independent from the rest of the United Kingdom is within the legislative competence of the Scottish Parliament.  There is, I understand, still time before the Bill's final passage to insert amendments to this affect. However, if SNP representatives insist that my nerves remain raw edged, and that no clear statement of competence is included in the Scotland Bill, Forsyth's intervention may be seen in something of a soothing light. If such a frigid and inveterate Unionist customer as Forsyth has internalised the idea that Holyrood can hold such a referendum, the imaginary Unionist punter who has been haunting my thoughts for the past years may not materialise, and by sheer brass, the SNP will have overcome their legal challenges.