There has been a great deal of debate about the extent of the legal powers available to the Scottish Parliament to pass an act authorising a referendum on either or both independence and devolution plus/max. This is just the first of many legal questions which will be asked before Scotland’s constitutional future is put to the vote.
The legality of the referendum question is interesting; most interesting, it might be argued, concerning the purposes for which it has been used in the wider political debate – of which more later.
One could, of course, add to the list of unanswered questions those relating to independence and further devolution – including Scotland’s membership of the EU, allocation of territorial waters and division of national assets – and offer views about the ‘right’ answers to each The airwaves and pages of the broadsheet press will prove fertile ground for constitutional lawyers and others to offer their competing views on all of these matters in the coming months.
There is, though, another slightly different conversation to be had on an issue broader than the legal rights and wrongs of individual policy proposals – about the proper role of law and lawyers in the current debate. What are constitutional lawyers for when a country debates its future? One of the most illuminating answers was given by the constitutional scholar Professor SA de Smith in 1967. Speaking at a Canadian law school, De Smith observed that at moments of serious constitutional strain or crisis “the constitutional lawyer finds himself transported into an entirely new dimension. He is hastily conscripted as a demolition expert, an unregistered architect, a master of jurisprudential sophistry”.
Professor de Smith was writing in another era and in the context of ‘revolutionary’ situations in Pakistan, Cyprus, Uganda and in the former Rhodesia. That context feels very distant from contemporary Scotland, yet the roles he identified for constitutional lawyers are entirely apt. Understanding how to unravel existing arrangements, how to design structures in their place and adjudicate on unresolved disputes are tasks which British and Scottish public lawyers do and will face under either independence or increased devolution.
It is also noteworthy that Professor de Smith refers to constitutional lawyers being “conscripted” to this task. One of the less remarked upon features of the debate on the referendum has been the evident desire of politicians to ensure that they have on their ‘side’ as many, and as senior, legal commentators as possible to support their position. Press releases have been issued welcoming the views of academics and practitioners on such esoteric subjects as the proper interpretation of sections 29 (3), 29 (4) and 101 of the Scotland Act 1998. The blogosphere tallies up which professors of constitutional law are ‘for’ or ‘against’ a referendum bill – with a barely concealed hint that one’s legal view is an indication of one’s political affiliation, and that expressing a view leaves one open to criticism or attack on that basis.
Arguably, none of this should be enormously surprising. Most constitutional lawyers love their subject because of, rather than despite, its intimate connection with the political sphere. They also understand that labelling a proposition as ‘legal’ is one of the most effective ways of legitimising a political proposal. More importantly, casting doubt on the legality of one’s opponent’s agenda is one of the surest ways of undermining its legitimacy.
A good part of the debate on the legality of the referendum must be seen through this prism – and, of course, is seen in that way by the political actors involved.
The UK government has made clear its view that a referendum on independence – or even on devolution max – would be outside the legislative competence of the Scottish Parliament. The Scottish Government has taken the opposite view. Both have produced legal experts to support their case and, particularly in the case of the Scottish Government, have been criticised for not making public their internal legal advice. None of that debate has or ever could resolve the legal question – only the Supreme Court could do that. Yet, by putting the legality issue ‘in play’, the UK government has, for good or ill, achieved a measure of political influence over the form and timing of a referendum bill which it would otherwise struggle to achieve given the SNP majority at Holyrood.
That influence comes not only from the important legitimising force of legality. The Scottish and UK governments are compelled to negotiate on the referendum because the raising of legal doubt creates a possibility which both governments will want to avoid – that of litigation.
All the legal opinions in the country are as nothing in the face of a bench of justices of the Supreme Court and only that court, ultimately, could resolve the issue if the Scottish Parliament called the UK’s bluff and passed a referendum bill on its own terms and without the now famous section 30 order offered by Westminster, which would put the legality of the referendum beyond doubt by devolving additional powers to Holyrood.
Commentators will have conflicting views about which side of the debate would benefit most from the image of a London-based court striking down a Scottish referendum bill but the risks for both sides seem, at the moment, to be propelling them towards an eventual agreement on the terms under which the UK parliament will empower Holyrood to pass a referendum bill – resolving the issue of legality once and for all.
Constitutional law will simply have been, as it often is, the field on which the political game is played out. Post-referendum, constitutional lawyers will have an important – though hardly glamorous – role to play in dealing with the practical problems and challenges of accommodating legal and regulatory structures to the will of the people. But they will have had their 15 minutes of fame – until the next debate.
• Christine O’Neill is a partner at Brodies LLP