In this blog Professor Tierney argues that the legality of a unilateral referendum organised by the Scottish Parliament is a grey area. He also offers personal reflections from his experience as a parliamentary adviser at the time of the 2014 referendum and contends that a referendum held without an agreed process would have been damaging then and would be damaging now. It is incumbent upon both governments to ensure that a political solution to the current dispute is achieved and that, in particular, such a divisive issue is not left to the courts to settle.
The Scottish Parliament today concludes its debate on whether to request from the UK Parliament a ‘s.30 Order’ under the Scotland Act 1998. This would provide unequivocal authority for the Scottish Parliament to hold a second independence referendum. Westminster is likely to refuse this request for the time being at least, raising the question whether the Scottish Parliament can legislate to hold a referendum without such consent.
In 2012 I argued that there was a plausible case to be made that the current powers of the Scottish Parliament do indeed allow it to legislate on the subject of an independence referendum; a view shared by several colleagues. The argument was that a consultative exercise, asking the electorate if they favoured an independent Scotland, could be legally permissible. Crucial to the legality of such a referendum however would also be its legal inconsequentiality; it would not bind the UK Government to give effect to a pro-independence outcome.
I still consider this argument to be valid; the relevant devolved powers of the Scottish Parliament have not changed since that time. But I went on to serve as Constitutional Adviser to the Scottish Parliament Referendum Bill Committee which helped shape the Bills (here and here) which regulated the 2014 referendum. What became clear to me was that, regardless of whether one was a Yes or a No voter, it was far better in terms of fostering a conducive environment for debate that a referendum, without the consent of the UK Parliament, was not attempted. The fact that the 2014 referendum was the product of the Edinburgh Agreement between the Scottish and UK governments is central to how commentators now look upon that referendum as a valid and deliberative, if not uncontentious, exercise in popular decision-making.
In this blog I will briefly set out the zone of legal uncertainty, one which does suggest that the Scottish Parliament’s powers in this area are potentially broader than is often claimed. My main goal however is to make a plea for political restraint by both governments in recognition that this is fundamentally an issue of politics and not of law, and that in the interests of a healthy, democratic political process, it is incumbent upon the two governments not to allow an uncertain area of law to become a political football.
I would emphasise that this is not a call for unilateral self-restraint by the Scottish Government and Scottish Parliament; both sides must work to ensure that this matter does not end up before the courts with potentially disastrous consequences for the reputation of the UK’s Supreme Court and the health of our democracy.
The plausible case for the legality of a consultative referendum
The argument that the Scottish Parliament has the power to hold a consultative referendum is not particularly complicated and can be laid out briefly.
The counter-argument should be stated first, since it forms the context for the debate. The Scotland Act 1998 provides that an Act of the Scottish Parliament is not law if it is outside the legislative competence of the Parliament. It is outside that competence if it relates to reserved matters. The Union of the Kingdoms of Scotland and England is a reserved matter: therefore, an Act to hold a referendum on independence – ending the Union – is outside competence. This is itself a straightforward and intuitively plausible argument. My contention is that the counter-argument also offers a plausible, albeit far from irrefutable, rebuttal to this position.
The seemingly obvious contention that a consultative referendum ‘relates to’ the reserved matter of the Union gets murkier when the Scotland Act proceeds to define what is meant by this term. Whether a provision relates to a reserved matter is to be determined by reference to the ‘purpose’ of the provision, having regard ‘to its effect in all the circumstances’. It can be argued that a referendum that merely consults on independence and does not, in itself, purport to end the Union, should be looked at in light of that more limited purpose. In legal if not political terms the purpose can be said merely to be one of consultation. Similarly, its effect in all the circumstances would, in legal terms, merely be to gauge the opinion of the Scottish electorate: ergo, such a provision would not ‘relate to’ the reserved matter of the Union since its legal purpose and legal effect are each inconsequential to the continued legal efficacy of the Union.
This argument is given further credibility by another provision in the 1998 Act which states that any provision passed by the Scottish Parliament which could be read in such a way as to be outside competence is to be read as narrowly as is required for it to be within competence if such a reading is possible. In other words, even if the argument that a consultative referendum does not ‘relate’ to the Union seems far-fetched, the Scotland Act gives the benefit of the doubt - where reasonable interpretation allows - to the competence of legislation of the Scottish Parliament which is otherwise potentially contestable.
The law is therefore uncertain. Each side can also call upon support from decisions of the courts. Devolution cases in recent years have adopted an increasingly expansive understanding of devolved powers, an approach which would support the argument that the Scottish Parliament has the power to legislate for a consultative referendum. On the other hand, the Supreme Court in the recent Brexit ‘trigger’ case took a narrow approach to devolution, and also adopted a wide approach to constructing what ‘the effect’ of actions is. It decided that the prerogative power could not be used to trigger Article 50 of the Treaty of European Union because the real effect of such an act would be to lead to the repeal of the European Communities Act 1972. By analogy, there is a very strong possibility that the Supreme Court would also look to the political purpose and effect of a consultative referendum on independence and conclude that this does indeed relate to the Union and is therefore outside competence.
My task here is not to offer a definitive view on which position is right, far less on which would win in the Supreme Court (which is not necessarily the same thing!), but rather to argue that political actors in both governments and parliaments must, in the interests of democratic politics and with an eye to insulating judges from a decision that would be shrouded in political controversy, work to ensure that we never find out.
Fighting over the rules: bad for democracy
People of course have mixed memories of the 2014 referendum. For many there is lingering dissatisfaction with the heated arguments that arose, a feeling of helplessness in trying to understand what an independent Scotland would look like, and a sense that misinformation was being widely used to distort the debate. But in fact, for such a huge and emotional issue as the breakup of the United Kingdom, the debate was remarkably moderate. I would ask readers to reflect on how things might have gone, if, in addition to the debates we did have, there was also an argument about the rules of the game and over who, if anyone, would act as referee at the end of the vote.
What if people had voted not knowing if the result would be respected, not knowing if the UK Government would accept the result, not knowing whether if the UK Government did not accept a Yes outcome there would be a unilateral declaration of independence by the Scottish Government, and not knowing how the UK, the EU or the rest of the international community would in turn react to a UDI. This is exactly the situation that prevailed in Quebec/Canada in 1980 and 1995 and which led to bitterness over the process and the right to decide which poisoned political relations for years afterwards.
Regardless of whether one believes the Scottish Parliament has a right to hold a consultative referendum, the conclusion of the Edinburgh Agreement and the granting of a s.30 Order in 2012 saved us from all of that. Instead we had two carefully crafted pieces of legislation passed by the Scottish Parliament to run the process, and an agreed role for the widely-respected Electoral Commission to regulate the question, the funding and spending rules, and the conduct of the referendum itself. The central importance of commonly agreed rules and a neutral referee in a situation of deep disagreement when the stakes are high cannot be under-estimated.
In 2014 substance not process was the focus of the debate
Another feature of 2014 is that citizens argued over whether there would be a currency union, the ease or difficulty of Scotland joining the EU, what the defence arrangements for an independent Scotland would be, what cross-border trade arrangements would look like and what the rights of citizens would be. Citizens argued over these often heatedly, but they did so without the distraction of a bitter and acrimonious dispute about whether the result itself would be accepted.
Just weeks before the referendum the Electoral Commission issued a voting guide to citizens about to take part in the referendum. Each campaign was given a page to lay out its case. But crucially, both Yes Scotland and Better Together agreed to a joint statement within this document, setting out what would happen next in the event of either a Yes or No vote. A crucial phrase in this publication was: ‘If more people vote “Yes” than “No” in the referendum, Scotland would become an independent country.’ This may seem self-evident, but it is in fact the culmination of a process of statesmanship by both governments, which arrived at the Edinburgh Agreement and its commitment to give the referendum ‘a clear legal base’ and to ‘deliver a fair test and a decisive expression of the views of people in Scotland and a result that everyone will respect.’
People called upon to vote on an issue with potentially unparalleled consequences for their political citizenship are entitled to such certainty in relation to the result, even if inevitable uncertainly remains as to the political and constitutional consequences of the result.
Intergovernmental relations is the key to agreement
Scottish devolution has moved on in recent years. The Scotland Act 2012 gave new powers to the Scottish Parliament while the Scotland Act 2016, which built upon the Vow given just before the referendum, and the Smith Commission report, brings with it a substantial reconfiguration of Scotland’s position in the Union.
One of the commitments of the Smith process, and implicitly of the new raft of shared powers in the 2016 Act, is to a mature, transparent and deliberative system of intergovernmental relations. Devolution can only work if both governments talk to each other openly and find a pathway to resolving political disagreement. For centuries the United Kingdom has existed and developed without a written constitution. It has been able to do so because our internal political systems – and relations among them – have developed a culture of political compromise, requiring of our politicians realism, self-restraint and foresight. These qualities are needed today like rarely before; the abdication of a major political issue to the courts would run counter to those traditions.
A failure of politics: bad for the Supreme Court, bad for citizens
If there is no agreement as to the timing of a referendum and hence no s.30 Order, it is not inconceivable that the Scottish Government might seek to hold a referendum either using its executive powers under the Scotland Acts or by way of legislation through the Scottish Parliament. If this happens we might envisage a legal challenge by the Law Officers with the matter coming before the Supreme Court. It would be left to our top judges to interpret whether the Scotland Act 1998 does allow for a consultative referendum.
This would throw judges into a vexed and deeply political dispute. In the last year we have already seen the Supreme Court become embroiled in the decision to trigger Article 50. In the end this issue was not particularly controversial. Brexit is of course controversial, but the decision that Article 50 notification must be triggered by way of an act of parliament rather than prerogative power has done no more than hold things up briefly. Nonetheless, the invective aimed at the judges in the Supreme Court and the divisional court which first heard the case, and the claim that they were acting politically, has arguably done the status of these courts as neutral arbiters considerable damage.
The decision on whether the Scottish Parliament can hold a referendum on independence, being made by the Supreme Court in London, could be far more politically explosive. Whichever way such a case was decided the Court would come under scrutiny like never before. There is also no guarantee that the result would be treated with respect. If it declared the holding of a consultative referendum to be a reserved matter, some Scottish nationalists could well accuse the court of being a biased arm of the UK state. A similar fate has befallen the Constitutional Court in Spain where Catalonia’s arguments for a right to hold an independence referendum have played out. On the other hand, if the Court declared that a referendum could go ahead on a consultative basis there would still be a risk of a boycott by those who would refuse to engage with a referendum that was not treated as binding (situations such as Northern Ireland in 1973 and Bosnia in 1992 have shown how disastrous for democracy a referendum can be when one side decides not even to participate). There would also be lingering uncertainty as to what, if any, respect the UK Government would give to the outcome of such a consultative process.
I write as a legal scholar whose disciplinary inclination is to identify a legal problem and think about a legal answer. But what we are confronted with here is a political problem which demands a political answer. Some issues are too constitutionally fundamental and politically contentious to be left to the courts. Scottish independence is one of those.
Stephen Tierney is Professor of Constitutional Theory and Director of the Edinburgh Centre for Constitutional Law. He served as Constitutional Adviser to the Scottish Parliament Referendum Bill Committee in 2012-13 and was awarded an ESRC Senior Research Fellowship to study the democratic merits of the 2014 referendum.