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.