Separate issue: Scots referendum debate lands on Terra Firma

Published on Monday 20 February 2012 00:00

CHALLENGES to the legal foundation of a referendum on independence are a strong possibility – and primary legislation at Westminster is the only certain way to avoid such challenges succeeding.

That was the view of Roy Martin QC, who chaired a debate on Scotland’s constitutional future, hosted by Terra Firma Chambers – because, he said, introducing a Section 30 order could be subject to judicial review.

Lord Wallace of Tankerness, the  Advocate General and keynote speaker, said the discussion around the legality of a referendum wasn’t just “legal nit-picking” and the debate had to take place in the context of the rule of law. He added: “Without law, there would be no devolution of power, no Union, and there can be no independence.”

Lord Wallace repeated his, and the UK Government’s, view that a referendum on independence related to matters reserved to Westminster and was therefore beyond the legislative competence of the Scottish Parliament. He said the ‘purpose and effect test’ had to be applied and if the purpose of the referendum was to vote on separating the Union and separation was a potential effect of a vote, that clearly related to reserved matters.

“As a matter of common sense, a referendum on the Union, even an advisory one, would relate to the Union and would therefore not be allowed [to be brought forward by Holyrood]”, he said. A referendum was “not an opinion poll”.

Lord Wallace added: “A referendum involves a decision by the electorate and is hard for the government to ignore. In theory, the UK government could ignore the result but that does not give sufficient weight  in practical terms to the referendum result.”

Elaine Motion, a partner and head of litigation at Balfour Manson, said it would take a “very, very brave government” to ignore a referendum result.

Lord Wallace thought a Section 30 order should be enough to ensure the legality of a referendum, and to set parameters to make it “fair and decisive” but it would need the approval of both parliaments.

However, Lord Wallace stated clearly that the opponents of independence would not “hold Scotland in the Union against its will”.

Andrew Taylor of Tods Murray was the only contributor from the floor who suggested there was no problem for Holyrood to hold an advisory referendum. “Giving the Scottish people a say is not [in itself] changing the constitution,” he argued.

Prof Colin Munro, Emeritus Professor of Constitutional Law at the University of Edinburgh, said there was a history of politically motivated referenda, but that those with “a decisive question about a specific territory” had a more respectable lineage. 

The panellists agreed it would be difficult to change the franchise (such as allowing 16 and 17-year-olds the vote) for one particular poll, and it would need to be amended by an act of the Westminster parliament.

Elaine Motion asked why, if the referendum affected the whole of the UK, should all the UK not have a vote? James Findlay QC, who practices in Scotland and England,  said there was a feeling in England that people wanted to be involved in the decision-making process.

Prof Munro said there was no clamour for an English parliament or regional assemblies – but he felt there was a case to give a vote to ex-pats who had been on the Scottish electoral roll within the last 15 years. Lord Wallace thought this could be “a huge exercise” in a practical sense.  He suggested the independence poll should use the same franchise as the devolution vote of 1997”

Alan Dewar QC, from the floor, said that David Cameron should “show his hand” on further powers as the electorate was entitled to know what alternative was on offer before voting on independence.

Roy Martin said this was not necessary as an independence vote was a clear yes or no and it could be debated afterwards what came next.

Prof Munro said what was on the table now would change as we were in a “continuous process”. On the subject of a judicial challenge, he said: “I can imagine judicial review being raised but I cannot see it succeeding.”

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Bill Steele

Wednesday, March 7, 2012 at 12:50 PM

It seems to me that there is a conflict in the constitution of the United Kingdom. In the Articles of Union, Scots law was and is retained. It is a principle of Scots Law that the the people of Scotland are sovereign over the Monarch and Parliament. This is in contradiction to the principle of English law that Parliament has absolute sovereignty. "The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law." (Lord Cooper 1953). The Parliament of the United Kingdom has ignored the constitutional principle of Scots law, which as part of the Acts of Union, ought to be adhered to by the U.K. Parliament. Those who wrote the Acts of Union seem to have failed to consider including a procedure for bringing the Monarch and Parliament of the U.K. into conformity with the unchangeable aspects of the Acts of Union. As well as the ethical problems involved in the situations that led to the passing of the Act of Union by the Scottish Parliament in 1707, I consider this contradiction part of a good case for the independence of Scotland.

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