Matt Qvortrup: Numpty....

I suppose being a "world expert" on referendums doesn't leave one much time for being a modest scholar of the Scotland Act. In today's Herald, the apparently indispensable Matt Qvortrup has once again taken up his quill to reassure us all that an independence referendum is tickety-boo under the current law. "Judges", he says, "will not be the ones to decide on independence". I tend to agree. In all likelihood, it seems as if Holyrood and Westminster will cut a deal on a single question poll, allowing a referendum to go forward, inoculated against the threat of a stubborn litigant with a will to waylay it. That, however, is not the reasoning that prompts the Professor to share my conclusion. 

Qvortrup's thesis is that the case against the legal competence of Holyrood's independence referendum is "not strong". This despite recognition a couple of weeks back from the Scottish Government that legal considerations previously prompted it to frame their initially proposed referendum question in such tortuous language.  Regrettably, as one has come to expect from his past performances, in this article Qvortrup doesn't let his ignorance hold him back. Unencumbered by modesty, and uninformed by modest efforts to ensure his "legalistic pondering" benefited from basic accuracy one would expect of first year law students, Qvortrup has once again produced an impressive bucket of swill.

Given his academic credentials, and the number of people who continue to take his commentary seriously on these matters, it seems a worthwhile exercise to lay out the range of elementary - damning - errors Qvortrup makes in this piece, if only to solicit members of our press to cease giving the man space to air his cluelessness. He's a numpty, who doesn't know he's a numpty, whose feeble scholarship on Scottish devolution risks making numpties of us all. You may discover that writing your own ignorant copy is cheaper. Qvortrup's legal analysis begins with the point that:

"Formally speaking, the Scottish Government is not entitled to hold a referendum as this is not one of the powers devolved to Holyrood under the S.30 of the Scotland Act 1998. To hold a referendum would be outside the powers of the Scottish Parliament. But there is a snag with this argument. It is unlikely that the courts – let alone the Supreme Court – would have anything to do with it."

As casual scholars of the Scotland Act all know, this just isn't how the devolution legislation is framed. The crucial concept is "reserved matters" - powers reserved to Westminster, with Holyrood scooping up everything not explicitly held back.  "Formally speaking," under Schedule 5 of the Scotland Act, referendums aren't reserved, while some aspects of the constitution - including the Westminster Parliament and the Union of the Kingdoms - are.  Confusingly, given its absolute centrality to the case against the referendum's legality, he makes no reference to the question courts would have to ask themselves: does an independence referendum "relate to" a reserved matter? Even the reference to section 30 is mildly perplexing, as that primarily gives effect to the schedule of reserved matters and provides for their amendment by Order in Council, in supplement to the general legislative competence provisions of section 29. An innocent slip, you might think, warranting the benefit of any doubt going. It does not, however, immediately reassure you that Qvortrup has read the Act of parliament at the heart of these learned disquisitions. After a brief Texan soujourn, he continues...

"The British Supreme Court (previously the House of Lords), has shown a marked reluctance to get involved in issues dealing with matters pertaining to the possible illegality of Acts of the Scottish Parliament. In the case of AXA v The Lord Advocate (2011), the only case to have dealt with the limits of the powers of the Scottish Parliament to date, the Supreme court refused to declare an Act of the Scottish Parliament void. The court held that it respected "the judgment of [an] elected body as to what is in the public interest".

Regrettably, almost nothing in this vital paragraph is true.

1. AXA v. Lord Advocate is categorically not the only case to have "dealt with the limits of the Parliament to date".  Remember the legal challenges to the fox hunting ban earlier in the parliament? More recently, Imperial Tobacco and Sinclair Collins Ltd have unsuccessfully challenged Holyrood's 2010 ban on tobacco displays and vending machines in the Court of Session on legal competence grounds. AXA is not even the only UK Supreme Court decision which has "dealt with the limits of the Parliament to date". In March 2010, the UK Supreme Court handed down judgment in Martin and Miller v. HM Advocate, which was explicitly concerned with the "limits of the powers of the Scottish Parliament". Again, these indications are less than reassuring about Qvortrup's awareness - nevermind understanding - of judicial decisions on the Scottish Parliament's powers which are ... um ... merely essential considerations to this Herald article. Ho hum.

2. So little prose, so many inexactitudes! In a few sentences, Qvortrup totally distorts what the AXA judgment on Holyrood's pleural plaques legislation was all about. The Insurers' argued that the legislation - which prospectively and retrospectively declared pleural plaques actionable harms for the purpose of the law of negligence - disproportionately interfered with their property rights under Article 1 of the First Protocol to the European Convention, without a legitimate reason in the public interest.  The Court had to contend with a series of tests from the case law of the European Court of Human Rights. Did the Act interfere with the "possessions" of big insurers? Was the parliament's assessment of the public interest “manifestly without reasonable justification”? Was the interference with the insurers' property proportionate, in the absence of any compensation for the deprivation of their funds?

3. Qvortrup cherry-picks a nice quote, implying that the Court will always sag in the face of whatever policy an elected parliament endorses: "the judgment of [an] elected body as to what is in the public interest".  The crucial point is that the term "public interest" is being used technically - not generally - in assessing the compatibility of the pleural plaques Act with European human rights law, protecting property rights (including the rights of corporations like AXA). Picking up the AXA judgment, I tried to locate Qvortrup's quote. The phrase "elected body" appears twice in the judgment, but nowhere the form of words the goodly Qvortrup gives us, in quotation marks. Again, this is less than reassuring. Both appearances put the idea in context:

Per Lord Hope, at para [32]:

"... in the hands of national courts too the Convention should be seen as an expression of fundamental principles which will involve questions of balance between competing interests and issues of proportionality. I suggested that in some circumstances, such as where the issues involve questions of social or economic policy, the area in which these choices may arise is an area of discretionary judgment. It is not so much an attitude of deference, more a matter of respecting, on democratic grounds, the considered opinion of the elected body by which these choices are made."

And per Lord Brown at para [83]:

"... with the other members of this Court, I am prepared, given the wide margin of appreciation properly accorded to a democratically elected body determining the public interest by reference, as here, to political, economic and social considerations, to regard this legislation (ill-judged though many might regard it to be) as legitimate and proportionate and so immune from challenge under A1P1. Had the test been that of “compelling grounds of public interest” I should not have regarded it as satisfied. I am not, however, prepared to condemn this legislation as “manifestly without reasonable justification.”

Reading these fuller excerpts, you quickly realise that the mashed-up, lightly parsed quotation Qvortrup furnished us with does not, in fact, support his general contention that the UK Supreme Court would suspends its own judgment whatever Holyrood decided, whether or not it appeared in contravention of the Scotland Act or not. Not reassured thus far that Qvortrup a) has read or understood the Scotland Act b) is aware of, never mind has read or understood the case law on the Scotland Act, we now know that didn't have the care to ensure that he was making an accurate reference to the case he purports to quote from, or was properly conveying the force of the Court's judgment when mis-quoting from it. If you aren't already minded to give up, the Professor scoffingly shares his - ridiculous! - thought that the courts might be forced seriously to consider the referendum's legality under the Scotland Act, writing...

" But if we – for a moment – entertain the thought that the Supreme Court did intervene, how would it rule? We have few directly comparable cases, but it seems likely that the Law Lords would at the very least be inspired by the Canadian Supreme Court. In 1998, in a reference about the legality of a referendum for the French- speaking province of Quebec, the Canadian judges held that the rest of Canada "would have no basis to deny the right of the government of Quebec to pursue secession".

True, negotiations would have to follow to define the terms under which Quebec would gain independence, and the referendum would have to be compatible with the principles of democracy, protection of minorities and the rule of law. Moreover there should be a clear question, but, provided that these conditions were met, a referendum could be legal.

Applying these principles to Scotland, would the referendum be acceptable? In all likelihood yes, but it would depend entirely on the organisation of the referendum."

Impressively, Qvortrup manages both to overstate and understate the powers of our Courts. Holyrood is a creature of statute, created by Westminster. If you want to challenge its Acts, you can do so under the conditions in the Scotland Act. For the would-be litigant, there are a number of potential lines of argument - human rights, EU law, reserved matters - but the list isn't infinite. You can't just pluck a "legal" argument out of the air - or say - Quebec -  and smack Holyrood about with it. So my question for Qvortrup would be: what legal basis do you have for the idea that the referendum's legality would in any way depend on the organisation of the referendum? The Canadian case may be interesting but how - precisely - does it relate to the envisaged Scottish litigation, which would concern the limited statutory powers of the Scottish Parliament under domestic legislation? Answer, I suspect, comes there none. Qvortrup isn't interested in the law and as we've seen, shows himself cavalierly willing to offer authoritative legal analysis, lacking even a modest awareness of critical legal sources and issues.

So in summary, if challenged, the legality of the independence referendum would fall to be determined under the Scotland Act: likely coming down to the question, does an independence referendum "relate to" reserved matters? Matt Qvortrup does not appear to understand the general structure of the Scotland Act, and identifies a peripheral section of the enactment as the vital one. Matt Qvortrup shows no awareness whatsoever of the extensive pre-existing litigation on the interpretation of the Scotland Act. Insofar as Matt Qvortrup is aware of litigation in this field, he misquotes from it. Matt Qvortrup's non-quotation either consciously distorts the meaning of the judgment not-quoted, and the points in issue in that case, or simply fails to comprehend the litigation, or has not read it sufficiently closely to apprehend its significance. All of this sage "legalistic pondering" accumulated, Matt Qvortrup feels able to give an authoritative legal opinion on the strength or otherwise of any challenge to the independence referendum under the current law. 

Which combines to suggest one, rather pertinent question: why the hell does anyone take Matt Qvortrup's opinion on this seriously?