15 October 2012

The Edinburgh Agreement: legally, what does it mean?

In Scotland today, one group of people are lachrymose, their disappointment stinging.  This afternoon the Scottish and Westminster governments agreed the terms of a draft section 30 order under the Scotland Act, to be laid before both Houses of Parliament, and Holyrood, to put the legality of the referendum beyond doubt, and materially, beyond legal challenge. 

Quietly, in the dim litigious light, between the leather-bound tomes, you can hear the sobs of thwarted lawyers unsettling the dust, mourning the big bonanza constitutional case that is not, now, to be.  No controversial Supreme Court hearing. No fractious unionist litigant, not to be dissuaded.  No increasingly perilous rhetoric from frustrated nationalists, trapped in the syrupy stuff of law's delays, with time trickling inexorably on.  No high-wire act either for Lords Hope and Reed to walk, invited to choose between upholding one reasonable reading of the Scotland Act over another, and declaring incompetent a democratically-mandated referendum, much intensifying the political acrimony and instability thereby.  Jim Wallace may now repair to his bed unhaunted by night terrors of having to challenge the referendum himself in court, while Alex Salmond can turn in without a looming shadow of the Law engulfing his primary political project.

At last, years on from when this conversation began, my unremitting sweats and fears about the legislative competence of the referendum may finally ease.  I'll need wringing out. That an agreement has been reached - and, Lords permitting - will put the legality of the referendum beyond doubt, should be a huge relief to all involved.  Believe me or not, cherish eccentric legal theories if you prefer, but the legality of the referendum, sans a section 30 order to rearrange the matters reserved by schedule 5 of the Scotland Act, was always, at best, arguable, and what is arguable is subject, inevitably, to legal argumentation in higher and higher courts.

A legal challenge - which would have been inevitable - would have been a calamity for all involved.  It would advance the debate not one iota, and have lobbed vial after vial of wrath and poison into the already-turbulent pool of Scottish political discourse, imperilling what little stream of civility and meaningful discussion we permit ourselves in Scotland.  The negotiation process has not been without their manipulations, and mischief.  The real victims of these manoeuvres have been those who favour a second devo-something question, whose ambitions have been merrily shafted by the mannered intergovernmental exchanges preceding this deal.

But what precisely does it say? The critical document is the draft section 30 order, reproduced in an appendix to the No.10 Agreement document.  Remember, the purpose of the order is to change the list of matters reserved in schedule 5 of the Scotland Act 1998.  As you will remember, the general structure of the Act is that Holyrood enjoys power to legislate over everything that isn't reserved.  It doesn't take terrifically long to enumerate the order's substantive changes.  These are:

Modification of Schedule 5 to the Scotland Act 1998
3. In Part 1 of Schedule 5 to the Scotland Act 1998 (general reservations), after paragraph 5 insert—
“5A.—(1) Paragraph 1 does not reserve a referendum on the independence of Scotland from the rest of the United Kingdom if the following requirements are met.
(2) The date of the poll at the referendum must not be the date of the poll at any other referendum held under provision made by the Parliament.
(3) The date of the poll at the referendum must be no later than 31 December 2014.
(4) There must be only one ballot paper at the referendum, and the ballot paper must give the voter a choice between only two responses.”.

Supplementary provision
4.—(1) The following provisions of Part 7 of the Political Parties, Elections and Referendums Act 2000 (“the 2000 Act”)(a) apply to an independence referendum as if it were a referendum to which that Part applies—
(a) section 127 (referendum campaign broadcasts), and
(b) paragraph 1 of Schedule 12 (right to send referendum address post-free)(b).
(2) In those provisions as applied by this article, references, however expressed, to a person or
body designated under section 108 are to be read as references to a person or body designated under an Act of the Scottish Parliament for the purposes of an independence referendum as representing those campaigning for a particular outcome in relation to the question in the referendum.
(3) The following (which apply to a referendum campaign broadcast within the meaning of section 127 of the 2000 Act) do not apply to such a broadcast within the meaning of that section as applied by this article—
(a) section 112 of the 2000 Act;
(b) paragraph 1 of Schedule 13 to that Act;
(c) paragraph 18 of Schedule 12 to the Communications Act 2003(c).
(4) Where paragraph 1(3) of Schedule 12 to the 2000 Act, as applied by this article, applies section 200A of the Representation of the People Act 1983(d) (remuneration for free postal services), the reference in that section to a sum being charged on and issued out of the Consolidated Fund is to be read as a reference to that sum being paid by the Scottish Ministers.
(5) In this article “independence referendum” means a referendum on the independence of Scotland from the rest of the United Kingdom, held in pursuance of provision made by or under an Act of the Scottish Parliament.

A wee breakdown of what some of this means.  Firstly, Holyrood is being empowered to hold a referendum a limited period of time, until the end of 2014.  If we are defeated in 2014, 2035 rolls around, and no further changes to this part of the Scotland Act are made, another referendum would, arguably, be ultra vires.  This order ensures that a political commitment to a "once in a generation" poll is backed up by the law.  If a pro-nationalist government of the future wanted to hold another referendum, we'd have to go through this entire rigmarole of negotiation again, or hang the referendum on the (now even shooglier) peg that Holyrood can hold referendums about reserved matters anyway, section 30 or no section 30 order.  

Secondly, the referendum may only competently be framed as a single question, with two options, though entertainingly, there is nothing in the draft order that binds Holyrood over to those two answers being "yes" or "no" to independence, though I strongly imagine it'll take that form.

Thirdly, Holyrood is prohibited from holding a second referendum on the same day.  On one level, this is surely to avoid the politics of the occasion becoming cluttered, but also betokens suspicion in Westminster. Will wily Salmond, say, induce us to put the legality of an independence beyond doubt, and then, for villainy, pass a separate bit of legislation to authorise a devo-something referendum on the same day, separated only by the legal fiction that the two polls are distinct? This provision of the order seeks to anticipate, and curb, that possibility by making the competence of the independence vote contingent on the absence of all others that day.  

Looking at the order, and marking a significant absence, you may be thinking, what about the franchise? What about 16 to 17 year olds? The political agreement between the two governments explicitly recognises that it will be for the Scottish Government, within the time afforded, to determine through legislation in Holyrood:

• the date of the referendum;
• the franchise;
• the wording of the question;
• rules on campaign financing; and
• other rules for the conduct of the referendum.

So why not a breath of this in the Order itself? Here, we have to recall again the way the Scotland Act works.  The Order, and the aspect of the Scotland Act it will amend, specifies reservations of power, rather than explicit grants of power.  Holyrood may do anything that is not reserved, and anything which is compatible with EU law an fundamental rights.  Essentially, the Westminster government are proposing not to reserve the question of the franchise for the purpose of an independence referendum. Holyrood may do what it chooses.  

Fifthly, you may be wondering about what happens next, and what procedurally Holyrood and Westminster will have to do to put this piece of subordinate legislation into effect.  Practically, it will have to be laid before both Houses of Parliament, and before Holyrood, all of whom will have to agree to its terms.  As I understand it, however, these orders may only be accepted or rejected.  They cannot, for example, be amended by the likes of Darth Forsyth, or Lord Foulkes, as the paper wends its way through Westminster.  As a consequence, if the ultramontane unionists in the House of Lords wish to make a rumpus, they are limited simply to opposing the whole endeavour, rather than promoting wrecking or mischief-making amendments to the order itself. 

Sixthly, and finally, it is worth briefly traipsing back to January 2012, when Michael Moore took to his pins in Westminster, and outlined the terms and conditions which the UK government initially wished to impose on the referendum.  So what's changed? Compare and contrast today's draft with January's. 

“5A.—(1) Paragraph 1 does not reserve a referendum on the independence of Scotland from the rest of the United Kingdom if the following requirements are met.
(2) The date of the poll at the referendum must not be the date of the poll at any other referendum held under provision made by the Parliament.
(3) The date of the poll at the referendum must be no later than ***.
(4) There must be only one ballot paper at the referendum, and the ballot paper must give the voter a choice between only two responses.
(5) The persons entitled to vote in the referendum must be the persons who would be entitled to vote in an election for membership of the Parliament—
(a) if one were held on the date of the poll at the referendum, or
(b) if one were held on that date but alterations made in a register of electors after a particular date were disregarded.
(6) The referendum and arrangements in connection with it must be in accordance with Part 7 of the Political Parties, Elections and Referendums Act 2000 (referendums) as if the referendum were within section 101(2) of that Act, subject to any modifications specified in subordinate legislation.”

Overall, the text adopted today is strikingly similar.  The power to hold a referendum is time limited, limited to a single question, and cannot be held in conjunction with another referendum on the same day. The only striking change is the extent of the franchise for the poll, which the UK government formerly insisted  “that an established franchise should be used” and that “the debate about extending to vote to 16 and 17 year olds should be conducted separately and that any decision should be taken for all elections and not for one single vote”.

The question, the franchise, framing the precise funding rules for the campaign: Holyrood, and by dint of which, its SNP majority, has got its paws on all of it. I know some folk have today's been celebrating the end of process. Legal quibbles buried, and inter-governmental stramashes allayed, we can embark on a substantive discussion about independence, its promise and its perils. That assessment may be a bit previous. There are plenty of potentially controversial and significant rules and parameters, still to frame.  

At least we may now do so, however, no longer feart of the dread knock on the door from a wigly crow figure, advising us that an action has been raised at the Court of Session, and the whole endeavour as been waylaid. Devomaxers and devoplussers may be weeping into their cock-a-leekie, and they have my sympathies, but if nothing else, today ends the interminable legal shadow-boxing and - michty - that makes it a good day for nationalists and unionists both. 


  1. What would happen if the Scottish Parliament approved the following ballot paper: "What should Scotland become? [ ] A fully independent country. [ ] A fiscally independent country sharing with the United Kingdom only its foreign policies, defence and monarchy."
    It satisfies the two-answers requirement, and it's about independence.

  2. What is to stop the likes of my Noble Lords Foulkes, Wallace and Forsyth fucking things up royally?

    What if Westminster does not pass this?

  3. Thomas W,

    It's an interesting question, which struck me as I looked at the section 30 order. I'll have to have a think about it.


    To be frank, they could, if they could whip up a majority of honourable lords to oppose the Order. Wallace wouldn't, since he's part of the government which agreed this deal, but who knows what Forsyth might get up to, when this is discussed? On balance, I assume the Westminster parties are confident they can get sufficient numbers of their membership to do as told. If the s30 order doesn't go through, it all gets singularly politically messy...

  4. I was wondering: The fact that Holyrood can now decide on the francise on their own, would this allow them for instance to exclude EU citizens living in Scotland (who would have been included by Westminster's original proposal)?

  5. Thomas W,

    A very off-the-cuff response. As I note in the piece, Holyrood's powers are effectively only limited by a) reservations of power to Westminster, b) EU law and c) ECHR rights. In determining the franchise, the Scottish Parliament has a free hand within these parameters. As @loveandgarbage noted on twitter, there might still be space for a few legal difficulties with whatever franchise they elect to pursue, potentially - potentially - a challenge on grounds of discrimination. Very speculative that, mind you.

  6. Lallands, so far as I can see there is nothing in principle with the s30 Order to prevent a referendum being held on a fleshed out 3rd option (for example the Home Rule proposals just released by the Lib Dems ahead of their Scottish Party Conference). I appreciate they couldn't be held on the same day under the terms of the order, but is there anything to stop, say, the holding of a poll on more powers the following day, or a week later, which could, if so desired, only poll in the event of a "no" vote in the independence referendum.

    A "Jam Tomorrow" Referendum if you will...

    I ask as a Liberal Democrat who may look to push to make this our policy when we consider our Home Rule Commission this weekend.

  7. Graeme,

    As you say, this draft s30 would prevent another referendum being held on the same day, and prevents more than one question from being asked. For a subsequent devo-something poll, the question is: would the Bill be within Holyrood's competence?

    Curiously, the legal issues raised by that question are more or less identical to those which would have generated a legal challenge to the independence referendum, had this draft Order in Council not been agreed. Would a referendum on, for example, devolving the welfare system and reserved taxation fall within Holyrood's legislative competence?

    Arguably yes, arguably no. Our courts have never been called upon to answer whether a referendum on a reserved matter should itself be treated as reserved. If the independence referendum is defeated, and the SNP carries on, it isn't entirely unforeseeable that this legal issue will recur, further down the line...

  8. Thomas W,
    That's a tricky question but I think the s. 30 order does not reserve a referendum on independence.
    However, that 2nd option is a question on 'devo-max' (if that's what it is) - in theory, it should be excluded and would never make it past the EC testing. There will be a challenge and then the issue will be whether Scotland has the power to hold a referendum on devolution-max (which is debated).

  9. Given the terms of the section 30, and the political climate, it looks as if the legislative competence of a devo-something referendum ordered by Holyrood is a question for tomorrow. If independence-enthusiasts are defeated in 2014, I shouldn't be at all surprised if this issue reappears in the future. Who knows? The constitutional lawyers may get their litigious fun, and this time, it might end up in the Supreme Court of the UK.