18 September 2011

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...


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.


  1. 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.

    I'd have thought so too. See politicians? They do my nut in.

  2. Ah! Alas the innevitability of political and constitutional law shenanigans - from all parties - as they fight their corner and as the stake are high.

    One parliamment sovereign, the other parliament seeking to increase its powers.

    Not always edifying as all the protagonists play the game.

  3. I don't think the SNP should table such an ammendment as it would validate the Brit nats' right to say 'No, you can't hold a referendum'.

    Moreover, legally is one thing - a technicality at the end of the day if a YES vote is achieved.

    The Scotland bill is now junk and as such requires to be rejected AND it required to be rejected once the Wesminsterites started clawing back powers such as planning permission allowing the Brit nats to build nuke power stations and base more nuke subs in Scotland.

    Salmond should press for the referendum next May.

  4. Quite galling to see these unelected buffoons in the HoL pontificating on Scotland's future while trousering £300 a day plus expenses. And many a fine lunch as well I'd wager.
    Foulke's looks no stranger to the desserts trolley.

  5. Dear Mr Lallands,

    I love your blog - and I'm not even a lawyer.

    That aside, in reference to this point over the competence of the Scottish Parliament to do anything, but specifically in this case to hold 'THE' referendum, I started thinking that perhaps such matters of ultra vires (with my limited non legal understanding) in relation to a Parliament might have been considered before. It has.

    In McCormick Vs. Lord Advocate, 1953

    Lord Cooper states, in relation to the ability of Wesminster to legislate beyond its competence related to the union treaty;

    quote “To put the matter in another way, it is of little avail to ask whether the Parliament of Great Britain "can" do this thing or that, without going on to inquire who can stop them if they do. Any person "can" repudiate his solemn engagement but he cannot normally do so with impunity. Only two answers have been suggested to this corollary to the main question. The first is the exceedingly cynical answer implied by Dicey (Law of the Constitution, (9th ed.) p. 82) in the statement that "it would be rash of the Imperial Parliament to abolish the Scotch law courts, and assimilate the law of Scotland to that of England. But no one can feel sure at what point Scottish resistance to such a change would become serious." The other answer was that nowadays there may be room for the invocation of an "advisory opinion" from the International Court of Justice.”

    Could the same argument not be made for ANY parliament, including the Scottish Parliament, specifically in relation to the constraints of the Scotland act? Ultimately, aside from sending in troops, it is a theoretical argument, as it will in the end depend which side of the argument can carry the people of Scotland with it. It in many ways ceases to become a legal argument, and becomes almost exclusively a political argument. One parliament Vs. another parliament. In essence, there ceases to be a conclusive right/wrong perspective on what is legally competent.

    Now, perhaps I have mis-interpreted what Lord Cooper said, so I could be wrong, and I’d welcome your thoughts on that point.

  6. Fascinating post, as usual.

    I, like R Louis, am no lawyer, but as I was reading the post, I kept wondering...what would they do if we held a referendum, legal or not?

    Short of sending in the troops, or Mr Alexander withholding yet more of our money, I can't see that there is anything that they could do.

    They may have the power in law to stop us, rather like the Queen has the right to sack her UK prime minister and prorogue her UK parliament but as much as it's unlikely that the Queen would do that, it's unlikely that the UK government would do anything about our referendum.

    And if this dubiously legal referendum were held and shown to give a majority for independence, is it likely that the UK government would continue to say no?

    They could argue the legal incompetence of the poll, but unless they could show that it was flawed by virtue of something that cast serious doubt on its veracity, surely they would be mad not to allow it.

  7. douglas clark,

    I suspect Stevie's explanation is at least approaching the truth of it. It would be potentially politically embarrassing for the SNP to be conceding - against every past observation on the topic - that Holyrood's legal competence in this area was in any doubt. That said, one could argue that Forsyth has afforded them some political cover with this amendment - and they could conceivably introduce an amendment, justified in terms of clearly seeing off the villainous Lord Forsyth. That said, I'm still perplexed why they've avoided doing it so far. Given the balance of risk - potential short term, technical embarrassment vs. the whole referendum being derailed by legal proceedings, with implications for its timing, which is strategically important - their inactivity on this totally bemuses me. What's worse is, if this was challenged successfully, we might envisage Westminster legislation being advanced to permit a referendum. Who knows what jiggery-pokery might attach to that, depending on how brave they are feeling.

  8. Stevie,

    I don't believe that, honestly. I can't see any way politically for Westminster politicians to deny a referendum vote. I do see ways in which the structure of the laws on the devolved settlement - and their adjudication by the UK Supreme Court - may very likely do so. And your point about mere technicalities isn't convincing. If the Court holds the authorising legislation from Holyrood to be ultra vires, there won't be any referendum, and thus, no possibility of a "yes" vote.

  9. R Louis,

    I'm delighted to hear it! My disquisitions of legal topics are aimed at the interested, politically-minded layman, rather than the queer cohort of process-servers and pettifoggers.

    On your point, Lord Cooper's comments in that case are of interest, and unfortunately, generally neglected in broader UK constitutional law. I don't disagree that there is a significant political content to this. For example, if a Court did hold independence referendum authorising legislation from the Scottish Parliament to be beyond its powers - there would be a clear political pressure on Westminster to abide by its word, and authorise the process. My concern is that by failing to take the possibility of a legal challenge seriously - we are courting amazing risks, firstly in terms of the timing. Folk often observe that canny Salmond will pick the time to suit himself best. Any legal intervention would potentially - very likely - disrupt that timetable. If the Scottish Government lost in court, what would Westminster do? I, for one, would rather we avoided all of these perils, by simply clarifying in the Scotland Bill that the reservations of Schedule 5 of the Scotland Act doesn't apply to an independence referendum.

  10. tris,,

    Given the public employees who will be involved in the process of any referendum - returning officers and so on - I really can't see the Scottish Government going "sod it" and trying to press on regardless of their lack of mandate to do so. It'd start looking ludicrous.

    You also commented:

    "They may have the power in law to stop us, rather like the Queen has the right to sack her UK prime minister and prorogue her UK parliament but as much as it's unlikely that the Queen would do that, it's unlikely that the UK government would do anything about our referendum."

    I agree with you on that. I can't imagine the UK Government taking out legal action to prevent a referendum. That'd be politically scandalous, and contrary to their own declarations on the subject. There's a catch, however - a big one. Although I only mention it in passing in this piece, elsewhere I have emphasised that the folk who can potentially challenge the independence referendum Act in the courts are not limited to the UK Government. Any cash-laden Unionist punter, bitterly opposed to any referendum, could do so. That the UK Government doesn't object does not mean that the laws on the books have altered one jot. And crucially, such a challenge is likely to be made (if it is made at all) before the referendum takes place, after Holyrood has passed the legislation authorising it. Like the ongoing insurers' challenge to the Scottish Parliament's pleural plaques legislation, such legal interventions can take an age to resolve. Consider that the Damages (Asbestos-related Conditions) (Scotland) Act was passed in 2009 - and is still not in force, as we await the UK Supreme Court's judgment on its legislative competence.

  11. Considering that the original Articles of union have been breached several times, most lately for where the supreme court sits. My understanding is that a new relationship built on the will of the people (Scottish in this instance) has evolved from the claim of right onwards. Hence when the Scotland Act reserved some powers like defence and foreign affairs etc. to Westminster and whatever devolved matters it choose to interfere with - Sewell motions not withstanding - politically, that peculiarly Scottish 'will of the people' idea has evolved to be on a par with that peculiarly English notion of 'Parliamentary sovereignty'.

    Now we know that Scots law has sided with England in the past over the McCormick case. However with the wind at our backs politically, and a new found belief in themselves perhaps just perhaps Scottish Judges might rule for our peculiarity over the English peculiarity.

    It is my view that Holyrood could hold a referendum on anything it likes but a positive result in an independence referendum would as it stands need to win a vote in Westminster.

    We know which way our Scottish Mp's will probably vote the few SNPers aside but which way would the non-Scots vote and would it be whipped? Thus like the Irish peace process Scotland's future could potentially be determined by a small grouping of MP's who have an interest in subverting the process. Much like Major held to ransom by the DUP in the 90's.

    Apologies if I have rambled.

  12. The Poll Tax issue in England was not settled in court. No matter how supreme. Not even a parlaimenrary majortity could uphold it.

  13. Lalland's: I have done a bit of research into Lord Cooper's 1953 judgement and the Scottish 'Claim of Right' 1689 which remains in law and have come to the conclusion that as the 1689 Claim of Right is enshrined in Scots Law for 'all time' by the Treaty of Union and Lord Cooper made clear to the Lord Advocate that for 'all time' means exactly that: a point the Lord Advocate conceded.

    Lord Forsyth's position is informed by the Treaty of Vienna which allows for any nation signed up to any Treaty under duress or coercion to negate that treaty given the expressed will of the people.

    Reading the Treaty of Union the union is described as a political union between two nation states Scotland and England. Given that the 1689 Claim of Right reaffirms the sovereignty of the Scottish people combined with another part of Lord Cooper's learned judgement on the assumption of English constitutional practice by Westminster and that it has no right under the Treaty of Union to do so. You can begin to see where the Earl of Hell is coming from.

    To deny Scots the right to a referendum on negation of the Union Treaty is to claim that the Scottish people are no longer sovereign. This requires the repeal of the 1689 Claim of Right but to do so repudiates the Union Treaty as the sovereignty of the people of Scotland is protected for all time by the Treaty.

    The Crown can not act against the will of the sovereign people of Scotland as to do so breaks the agreement with which the Scottish people allow Liz and her successors to be on the Scots throne (1689 Claim of Right).

    All of sudden the constitutional assumptions of Westminster's supremacy are shattered because Westminster, in itself has never exercised any Scottish sovereignty except via the political fudge of the Scottish Grand Committee.

    The 1998 Scotland Act in effect removed this exercise of sovereignty from the Scottish Grand Committee once the Scottish Parliament was reconvened from its temporary suspension in March 1707.

    Under Scots Law and constitutional practice the people of Scotland lend their sovereignty to the Scottish Parliament in the first instance. To repudiate this requires the independence of Scots Law to be withdrawn which in turn renders the Treaty of Union void.

    Westminster can claim whatever powers it wishes but once the sovereign people of Scotland say 'get lost' Westminster has only one option - to get lost.

    In Scottish Law and constitutional practice I would argue that by voting an outright majority of SNP MSP's the sovereign people of Scotland have made a clear statement to Westminster of thus far and no further with any of your attempts at claw back of powers from Scotland. Poll after poll indicates the majority of the sovereign Scottish people want a federation of UK nation states to supplant the current UK Westminster Parliament: as that will require turkeys voting for Christmas I do not see that happening.

    Westminster stated that a vote for the SNP was a vote for Independence, prior to May 2011 thus they are hoist on their own constitutional petard.

    Wee Eck and the SNP are in a win/win position no matter how this ends up. Legal advice to HM Government at Westminster is they can not stop or interfere in Wee Eck's proposed referendum and have no rights or powers so to do.

    If you view it in this light, the Laird of Tunnocks attempts to stop the in rushing tide make at least a wee bit of sense (to him) as does the Earl of Hell's equivocation on the issue.

  14. Lallands,

    Point taken about surrendering authority to Westminster.

    My genuine concern is that we, wee folk in Scotland, should be able to make our minds up about this absent interference from Westminster.

    Which appears to be a wish too far.

    Westminster cares about Scotland, and will have a say.

    Frankly, I find that annoying.

    I'd have thought that Unionists North of the Border are their only legitimate constituency. But that appears not to matter to the Westminster career politicians who grew from Scottish roots.

    That now take the ermine and sit in the House of Lords.

    It seems to me that the SNP are up against the same horde of weasels that sold us for English gold a long time ago.

    Plus cá change, etc...

  15. Evening all,

    I'm certainly not arguing that the law has to be seen in isolation from politics, from general public apprehensions of what powers and competencies a body like Holyrood ought - and is understood - to have. That said, as a matter of tactics, seeing the law as very much a means to an end, all I'm counselling is a less risky legal stratagem. I may feel that the Scottish Parliament ought to have the power to hold a referendum on independence. David Cameron seems to believe so too. However, we can't necessarily expect a judicial character to immediately gloss over the legal niceties and defer to Salmond or Cameron's constructions of Holyrood's powers. It is loopy to imagine that he - or any other UK Supreme Court Justice - would. And given how deeply the idea of parliamentary sovereignty is implanted in English constitutional thinking (and remember, an English-educated legal majority will sit on any challenge to the referendum's competence) we shouldn't expect them to go along with Peter's argument either.