Iain Jamieson: Alex Salmond lacks legal strength
Lord Wallace, the Advocate General.
Despite the First Minister’s words to the contrary, the Scottish Parliament does not have the competence to make any legislation authorising the holding of a referendum
LEGLISLATION is required before a referendum can be held upon whether Scotland should be independent from the United Kingdom. The fundamental question at this stage is whether the Scottish Parliament already has the power to authorise the holding of such a referendum or whether it requires additional powers from the Westminster Parliament to do so.
Other issues – such as over the timing of the referendum or whether there should be only one question asked in the referendum – depend, to a large extent, upon the answer given to that initial question and are therefore ancillary to it. What, therefore, is the answer to this fundamental question?
The Scottish Parliament derives its power to legislate from the Scotland Act 1998. That Act provides (s. 29) that a provision of an Act of the Scottish Parliament (ASP) is outside its legislative competence, and is therefore “not law”, if it is about, or in technical legal terms, “relates to”, a reserved matter. The question whether a provision “relates to” a reserved matter “is to be determined… by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances”.
The list of reserved matters includes certain aspects of the constitution, such as “the Union of the Kingdoms of Scotland and England”. Therefore, an ASP which “relates to” the Union would not be within the legislative powers of the Scottish Parliament and would not be law. So far, this analysis would be accepted by both the UK and the Scottish governments. The difference between them appears to be over what they perceive to be “the purpose” of any referendum.
Last week, David Cameron said that the Scottish Parliament had no power to hold a “binding” referendum on the question of Scotland’s independence.
Although it is not clear what exactly he meant by “binding” in this context, it may be implied that he thought that the Scottish Parliament would have no power to hold a referendum if its purpose, or effect, was to break up the Union.
Alex Salmond countered this by saying that the Scottish Parliament already has the power to hold an “advisory” or “consultative” referendum and it may be implied from this that he takes the view that the purpose of any referendum would merely be to seek the views of the Scottish people on that question.
What then would be the purpose of the referendum? Of course, only the courts can give an authoritative answer to that question. However, the courts would take into account not only the actual wording of the question asked but what has been, and will be, said by the Scottish Government, both before and during the parliamentary passage of the Bill and even the referendum campaign, as to what is its purpose and effect. They would also take into account their own view as to what is likely to be the effect of such a referendum.
In 2010, the Scottish Government’s Consultation Paper on the Referendum Bill proposed that the referendum question would be whether “the [Scottish] Parliament’s powers should be extended to enable independence to be achieved”.
It was framed in this way in an attempt to argue that all they were doing was to ask the Scottish people the question as to whether the parliament’s powers should be extended. However, it was very likely that the courts would have seen through this disguise and concluded that its purpose was to bring about independence as a consequence of a favourable vote.
It is even more probable that the courts would find that any referendum, which asks the Scottish people the direct question as to whether they wanted independence, would “relate to” the Union, irrespective of whether it is described as “binding” or “advisory”.
This is because the purpose of such a referendum would be to return a majority vote for independence and the political, even if not the legal, effect of such a vote would be to bring about the break up of the Union.
Even if this is not its legal effect, it would be difficult politically for even the UK government to ignore the decisive effect of such a vote. Indeed, this appears to be explicit intention of the SNP because, in their manifesto for the May 2011 election, they state: “We think that the people of Scotland should decide our nation’s future in a democratic referendum… We will therefore bring forward our Referendum Bill in this next Parliament. A ‘yes’ vote will mean that Scotland becomes an independent nation.”
Accordingly, in my view, the Scottish Parliament does not have the competence to make any legislation authorising the holding of a referendum which might, as a consequence, bring about independence, and the break up of the Union, irrespective of whether that referendum is described as “binding” or as “ advisory”.
Certain further conclusions follow from this view – any legislation passed by the Scottish Parliament providing for the holding of such a referendum would be likely to referred by the Advocate General to the Supreme Court before it is enacted or, if not, would be likely to be challenged in the courts by any voter and any such reference or challenge would be likely to be successful; and that Alex Salmond would be well advised to accept the UK government’s proposal to have the requisite power conferred on the Scottish Parliament in order to hold a legal referendum.
He should also seek to come to some agreement about the other matters, such as the timing of the referendum and the form of the ballot paper, which are mentioned in the UK government’s Consultation Paper on Scotland’s Future which was published last week.
Once these questions have been satisfactorily resolved, attention can then be focused upon the real issues so that the Scottish people might have a better idea than they have at present as to what independence might mean for Scotland, and the opportunities and challenges which it might present to them.
• Iain Jamieson was the former solicitor in the Scottish Office who was responsible for the legal framework in the Scotland Act establishing the Scottish Government and Parliament.
• Lord Wallace, the Advocate General, is due to give a lecture at Glasgow University this afternoon on Scotland’s constitutional future.
Email to a friend
Print this page- Family mourn death of Glasgow ‘fight’ schoolboy
- Rangers takeover: Duff & Phelps threaten legal action against BBC
- Today’s youth not fit to be employed, says car firm Arnold Clark
- Rangers administration: Fans fear Duff & Phelps claims could scare off Green
- Rangers takeover: triple penalty punishment enough, says Johnston
- Alistair Darling leads ‘No to independence’ fight over tea and biscuits
- Scottish independence: SNP flip-flops over Nato
- Scottish Independence: SNP ‘won’t be Yes campaign’s only voice’
- Today’s youth not fit to be employed, says car firm Arnold Clark
- Scottish independence: Alex Salmond’s pledge to sign up 1m voters
Looking for...
Featured advertisers
Jobs
Search for a job
Motors
Search for a car
Property
Search for a house
Weather for Edinburgh
Saturday 26 May 2012
Today
Sunny
Temperature: 8 C to 21 C
Wind Speed: 20 mph
Wind direction: North east
Tomorrow
Sunny
Temperature: 11 C to 21 C
Wind Speed: 12 mph
Wind direction: North east
Comments
There are 23 comments to this article
Page 1 of 2
glassbenmhor
Monday, January 23, 2012 at 04:31 AMWell the answer is call in the international host.............yes indeed, Londons nightmare....so I would go and sit in the corner with my Lord Wallace, Ian and be quiet.
Kobi
Saturday, January 21, 2012 at 02:20 AM#14 The logic of that position is that if there is a narrow yes vote in the referendum, but with less than half the Scottish people overall supporting independence, if the SNP then lose their overall majority in the next Scottish Parliament elections which will be held prior to any independence negotiations being concluded, then the new Scottish Parliament would have the perfect right (and indeed duty) to then ignore the result of the "consultative" referendum.
Tartancult
Friday, January 20, 2012 at 08:01 PMThe pedants are absolutely loving these debates - more nits picked here than with a visit from a thousand school nurses.
JPJ2
Friday, January 20, 2012 at 06:14 PMIf it were true (which is not admitted) that Scotland could be prevented by London from holding a referendum on its future, that is, in and of itself, sufficient justification of the necessity of Scottish independence.
grahamski
Friday, January 20, 2012 at 05:33 PM13 Dr Matt Qvortrup, an internationally recognized expert in referendums and comparative constitutional studies, today had an article published in The Times where he argued that it was impossible to hold an independence referendum with more than one question. Presumably you support that contention too?
grahamski
Friday, January 20, 2012 at 05:31 PM14 "The outcome of a referendum generated from Edinburgh may be advisory only, but the political impact of a Yes vote would surely be irresistible." Which rather makes Mr Jamieson's point for him: any referendum whether 'advisory' or not has an effect which strays into territory reserved to our Parliament in Westminster and thus outside the competence of Holyrood. But the SNP know this - and that is why wee Salmond will do whit he's telt......
neoloon
Friday, January 20, 2012 at 05:21 PMMr Jamieson states: "Accordingly, in my view, the Scottish Parliament does not have the competence to make any legislation authorising the holding of a referendum which might, as a consequence, bring about independence, and the break up of the Union, irrespective of whether that referendum is described as “binding” or as “ advisory”." The key word here is "might".Following such "logic" you could argue the result of last May's Scottish election "might" result in Scotland regaining its independence.Does Mr Jamieson therefore think last May's election should be declared null and void,and should be held again in order to get the right result,a result which might not "break up" the union? If the SNP wins a landslide in the approaching local elections will Mr Jamieson challenge the result in court because he thinks it "might" bring about Scottish independence? The arguments of unionists get more labyrinthine by the day.
neoloon
Friday, January 20, 2012 at 05:12 PMThe Scottish government can call as many referendums as it wishes on any subject it wishes.It can do so because the results of such referendums are not legally binding on the rest of the uk. The "supreme" court is a unionist organization and must,and will,be treated with distrust and contempt by the Scottish people. Ultimately the view of the people of Scotland has precedence over any unionist court's decision.
Alexander D Lindsay
Friday, January 20, 2012 at 02:49 PM#14 Frankly, - yes, that also appears to be the view taken in Himsworth and O'Neill, "Scotland's Constitution: Law and Practice", p186.
Frankly
Friday, January 20, 2012 at 02:31 PMOn January 11th the following comment by Professor Stephen Tierney, director of the Centre for Constitutional Law at the University of Edinburgh, appeared in The Herald: "Constitutions tend not to offer guidelines for the break-up of the state. It is unsurprising, therefore, [that] the Scotland Act is largely silent on whether Scotland might leave the UK. After all, the point of devolution for the Labour Party was to make the Union stronger, not weaker. The current dispute between the two governments revolves around different interpretations of what the Act does and, more importantly, does not say. The UK Government line is: The Union is a matter reserved to Westminster by schedule 5 of the Act. In terms of section 29 the Scottish Parliament has no power to pass law that 'relates' to a reserved matter. Therefore a referendum on independence is at least legally questionable and quite possibly illegal. The Scottish Government replies [that] the holding of referendums in general is not a reserved matter – the structure of the Scotland Act is such that matters not expressly reserved in schedule 5 are devolved and there is no such express reservation of the referendum power – and provided the referendum does not in itself purport to bring about secession unilaterally, then it is within the Scottish Parliament's powers. The latter position seems to be perfectly plausible. If a question is carefully crafted, asking people whether or not their preference is for independence and making clear this would only be treated by the Scottish Government as a political mandate to enter negotiations, this would seem to fall within competence. We also need to take account of section 101, which is often missed in these debates. This provides that any Act of the Scottish Parliament which could be read to be outside the powers of the Parliament is to be read as narrowly as is required for it to be within competence, if such a reading is possible. It seems it would be possible to read legislation providing for a consultative rather than a binding referendum to be within competence using a liberal interpretation as invited by section 101. But we are at the early stages of this debate and the consultation exercise issued by the Scottish Government will allow these issues to be further explored. The UK Government's current intervention seems to be less about this point of principle and more about regaining some control of the process issues that surround the referendum itself, in particular the timing of the vote, the setting of the question and a role for the Electoral Commission. But here it has a problem. For Westminster to pass legislation on these issues would most likely, by constitutional convention, require the consent of the Scottish Parliament. But why would Holyrood trade a general power for a more restricted one? The outcome of a referendum generated from Edinburgh may be advisory only, but the political impact of a Yes vote would surely be irresistible." (Professor Stephen Tierney, The Herald, January 11th 2012)
Frankly
Friday, January 20, 2012 at 02:28 PMOn January 11th, the following letter from Dr Matt Qvortrup, an internationally recognized expert in referendums and comparative constitutional studies, was published in The Scotsman: "When Michael Moore stood at the Dispatch Box at Westminster yesterday he had a simple message; Scotland’s constitutional settlement rests with Westminster and Scottish independence would require the consent of London. With all due respect, this argument is neither consistent with international law nor is it compatible with the constitutional doctrine of referendums in the United Kingdom. Leaving aside the issue of whether Scotland should become independent or not, it is important that things are done in accordance with accepted principles of constitutional and international law. The basic principle in international law is that the seceding country (in this case Scotland) decides whether it wants to become independent. To use but two examples, Montenegro did not have to ask Serbia to secede in 2006, nor did Estonia seek the Soviet Union’s permission to become independent in 1990 and clearly it would not have been granted it. The fundamental rule is that countries become independent when they are recognized by the international community. According to the so-called Estrada Doctrine, if Scotland votes for independence (and if the government is in control of the territory) then the international community will in all likelihood recognize the new state. Just like the cases of the former Soviet states in the 1990s. Of course, it is possible that only a narrow majority votes for independence. But this need not be fatal. When Malta voted for independence in 1965, only a little more than 50 per cent voted to sever the ties with Britain, yet Westminster still accepted the outcome. So unless London wants to follow the Soviet Union in 1990, it cannot block Scottish independence. The only ones who can do so are the Scottish voters and the Scottish administration. Thus is the doctrine of self-determination, which has been recognized as a fundamental principle of international politics and law since it was established by US President Woodrow Wilson after the First World War. So the international case is clear – and runs counter – to Michael Moore. But what about domestic law? When the Scottish Parliament was established, the Scotland Act 1998 stipulated a number of areas that would be the preserve of Holyrood and some that would remain in Westminster. The coalition argues that the Scottish government is not allowed to hold a referendum under Section 30 of the Scotland Act. To do so would be beyond its mandate. But this argument falls at two hurdles. Firstly, referendums in the UK have tended to be advisory only. Referendums in this country are not legally binding – though they may be politically binding. Until the Welsh referendum in 2011, all referendums in the UK were non-binding. To require that a Scottish referendum should be anything other than advisory would be highly unusual, and it would be difficult to justify on legal let alone on political grounds. Lastly, Michael Moore believes that a referendum could be challenged in the courts. This is highly unlikely. The assumption is that the Supreme Court could declare a secession referendum illegal or void. But the Supreme Court is frankly unlikely to do that. Indeed in the case 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”. It seems unlikely that the Supreme Court would rule otherwise on an issue which was a manifesto commitment of the elected government of Scotland."
grahamski
Friday, January 20, 2012 at 01:41 PM11. "A number of eminent legal authorities have also taken the opposite view from Iain Jamieson on the notion of an advisory referendum" Really? What eminent leagal authority has suggested that the intended effect of the referendum is not to achieve Scottish separation?
Alexander D Lindsay
Friday, January 20, 2012 at 01:32 PMA very interesting contribution from Iain Jamieson. Both he and David Cameron equivocate on the definition and nature of the concept of a referendum. It seems that a referendum would relate to a reserved matter if it was binding, because there would be a proximate cause and an effect. Therefore, it would be illegal. That is why Cameron's opening shots seemed rather odd, as they all referred to a binding referendum when no-one was arguing for this. But the issue is much less clear where the referendum is advisory. And Cameron accidentally implied (and possibly revealed) the legality of an advisory referendum when he attacked the binding one. A number of eminent legal authorities have also taken the opposite view from Iain Jamieson on the notion of an advisory referendum, and claim that it is in fact legal. One of the reasons that Jim Wallace and others are so strident on this question, and assert their opinion as if it were fact, is because it is not all established that their view is true.
grahamski
Friday, January 20, 2012 at 01:26 PM9 Err no. What's been said here is that Mr Salmond and the Scottish Executive don't have the legal power to hold a referendum on separation. But they know this.
Hearthammer
Friday, January 20, 2012 at 01:17 PMWhat's being said here is that Scotland cannot be independent without England agreeing? Are you all mad?
Page 1 of 2
Your view
Please sign in to be able to comment on this story.