Scotland: we need to talk ....

Scotland's Grand Scenery

Updated x 2

Prime Minister David Cameron said on the Andrew Marr Show that the government would be setting out the legal position regarding a referendum on Scottish Independence.  Cameron said that the uncertainty was damaging to the economy and added that the present situation was unfair on the Scottish people who did not know when the question would be asked, what the question would be and who would ask it.  The Scottish people were owed something which was "fair, legal and decisive."  Cameron also said that he believed in the United Kingdom and it would be "desperately sad" if Scotland left.

Further questions could be asked, such as what would be the actual nature of "independence."  Would it be a complete and entire separation or would, for example, Scottish finances continue, in some way or other, to remain linked to the remainder of the UK?  What would be Scotland's relationship (if any) to the Crown.  What would be the defence situation?  What would Scotland's status be with regard to the European Union given that it is the United Kingdom which currently has the membership.  All these, and many other questions, are difficult political and practical questions and, in the present harsh economic times, it is tempting to wish that the questions would go away but, in reality, they will not simply disappear and must be answered.

What then of the legality?

Mr Cameron said that the government would be setting out the legal position and that is awaited with interest.  Once issued, there may be disagreement about it and that might lead to judicial proceedings to obtain clarity.  However, some basics can be noted.

Treaty of Union

1.  The existence of GREAT BRITAIN began with a TREATY OF UNION between England/Wales and Scotland.  The Treaty was signed in July 1706 and was implemented, from 1st May 1707, by the enactment of legislation in both the English and Scottish Parliaments.  The Treaty of Union provided for matters such as the Crown, a single unified Parliament, freedom of trade, common currency etc.

2.  The United Kingdom of Great Britain and Northern Ireland came about after the Act of Union 1800 which united Great Britain and Ireland.  In December 1922, the Irish Free State came into being and the modern Republic of Ireland came about in December 1948.  Therefore, it is now only Northern Ireland which remains within Great Britain.

3.  After the Union, Scotland retained its own legal system as provided for in Article 19 of the Treaty of Union.  This continues to the present time although, the Supreme Court of the United Kingdom has jurisdiction as a final appeal in civil cases and certain "devolution jurisdiction."  (The "devolution jurisdiction" was originally given to the Judicial Committee of the Privy Council - Scotland Act 1998 - but later transferred to the Supreme Court by the Constitutional Reform Act 2005).

Scotland's Parliament

4.  The Scotland Act 1998 created the present Scottish Parliament - section 1(1) - "There shall be a Scottish Parliament."   The Scottish Parliament has the power to make laws for Scotland known as Acts of the Scottish Parliament - section 28.

5.  The power to make laws for Scotland is limited by section 29 which states:

Legislative competence.

(1) An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.

(2) A provision is outside that competence so far as any of the following paragraphs apply - 

(a) it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland,

(b) it relates to reserved matters,

(c) it is in breach of the restrictions in Schedule 4 (Enactments protected from modification),

(d) it is incompatible with any of the Convention rights or with Community law,

(e) it would remove the Lord Advocate from his position as head of the systems of criminal prosecution and investigation of deaths in Scotland.

The Scottish Parliament is a devolved (or subordinate) legislature and not a sovereign legislature and it must operate within its legislative competence.  However, that competence is wide and subject only to the restrictions within the 1998 Act.

The phrase "relates to" is explained by section 29(3) - "For the purposes of this section, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (4), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances."   (Subsection 4 need not concern us further here).


6.  Reserved matters - these are a lengthy list set out in Schedule 5.  For present purposes it suffices to note the principal reserved matters relating to the Constitution:


(a) the Crown, including succession to the Crown and a regency,

(b) the Union of the Kingdoms of Scotland and England,

(c) the Parliament of the United Kingdom,

(d) the continued existence of the High Court of Justiciary as a criminal court of first instance and of appeal,

(e) the continued existence of the Court of Session as a civil court of first instance and of appeal.

Note:  Schedules 4 and 5 can be modified where there is agreement between the UK Parliament and the Scottish Parliament to do so - section 30.    Modification Orders require the affirmative resolution of both Parliaments.  The Explanatory Notes to the Scotland Act 1998 state:  "Section 30 ... permits certain alterations to be made to the legislative competence of the Scottish Parliament but only with the agreement of both Parliaments. This is the only way in which the Scotland Act envisages that subordinate legislation under that Act can modify Schedules 4 and 5.  The Westminster Parliament could, of course, make such alterations unilaterally by virtue of its sovereignty - section 28(7)." 

It seems to follow from this that the Scottish Parliament could not lawfully secede from the Union merely by passing an Act of the Scottish Parliament.  Of course, there is no suggestion here that they would even consider doing so.  Their whole intention seems to be to proceed to a lawful independence and this would have to be enacted by the Parliament of the United Kingdom.

7.  However, may the Scottish Parliament lawfully enact legislation so that a referendum could be held in Scotland and could the Scottish Parliament lawfully make the outcome of such a referendum legally binding?  My tentative answer would be NO because:

(a)  There is no specific authority in the Scotland Act 1998 for the Scottish Parliament to enact legislation to hold a referendum on independence - the Union is a reserved matter and a referendum (even if said to be advisory or consultative) would appear to "relate to" a reserved matter. 

(b)  Suppose that, without the specific authority of the UK Parliament, Scotland purported to legislate and held a referendum.  Such a referendum could not bind the sovereign United Kingdom Parliament though there would be considerable political pressure for the UK Parliament to then support the referendum outcome.

Thus, it makes legal sense that any referendum is either legislated for either by the UK Parliament passing an Act or a Section 30 Modification Order is enacted.  The UK Parliament would then consider itself bound by the result.  (Technically, according to the traditional Diceyan view, Parliament cannot bind itself or its successors but let us leave that point to one side since it can be safely assumed that if Parliament permitted a referendum it would honour the outcome).


8.  Will the Scotland Bill - currently before the UK Parliament - make a difference?  I see nothing in the Bill which permits the holding of a referendum.  This Bill seeks to implement recommendations of the Calman Commission's final report.  Interestingly, independence was not within the Commission's remit - see the report at Part1 paras. 1.3 and 1.53.

9.  Thus, one is led to the conclusion that, as things appear to stand, either legislation of the UK Parliament or a Section 30 Modification Order would be required to permit a referendum on independence.  The form such legislation might take is another matter.  It could, for example, not only legislate for a referendum but also specify the question or questions to be asked.  Alternatively, it may merely authorise the Scottish Parliament to legislate and allow that Parliament to set the question.

10.  Yet another a tricky point is whether any referendum should be just for the people of Scotland.  If one accepts the self-determination of people then perhaps it should. (See also Association of Humanitarian Lawyers - "Understanding self-determination: the basics").   However, Scotland is not the only party to these constitutional arrangements and there is no doubt that a breakaway of Scotland will have economic impact on the remainder of the nation.  (I have not seen any assessment of the economic and other issues.  Is there one?).

In an excellent article published by legalweek, Aidan O'Neill QC said: "It is not inconceivable that the result of any such UK-wide referendum would be that the electorate in England (fed on tales of their constant subsidising of Scottish spending, and wearying of the anti-English sentiment that lies beneath so much Scottish public discourse) would vote in favour of the dissolution of the Union, while a majority of the Scottish electorate would baulk at independence.  In this way might the SNP's primary political aim be achieved, even against the wishes of the Scottish people. That's why we need to talk about the referendum."  See Mr O'Neill's article - "We need to talk about the referendum ... Scotland's membership of the UK in focus."

11.  Are there any alternatives?

Yes - (a) devolution could be brought to an end; or (b) devolution could simply remain as it is or (c) continue with devolution but with fewer restrictions on the Scottish Parliament's legislative powers.  Either of (a) or (b) would, no doubt, be instantly ruled out as politically unacceptable and hardly merit further discussion.  Option (c) is essentially what is sometimes being referred to as "Devolution-Max" and might be a possibility.  A further alternative is that the separate nature of Scotland could be recognised by the United Kingdom becoming a FEDERATION.  I am of the view that this is not only possible but would offer a pragmatic way forward.  There are a number of notable federations - especially the USA; Mexico and Switzerland (the Confederation of Switzerland).  Within the British Commonwealth there are Canada (since 1867) and Australia (since 1901).  Belgium is instructive since, over the period 1970-93, it moved to federal system.  May I venture to suggest that a Federation with Scotland is not only a natural development from devolution but is also sensible.

Food for thought and, as Aidan O'Neill said, "we need to talk ..."

: Addendum 1 :

The government's consultation paper was issued today - see "Scotland's Constitutional Future" - and responses are invited up to 9th March 2012.  The possibility of a federal arrangement does not appear to have occurred to the writers of the paper.

The post above was referenced by Scots Law Review 12th January

Alex Salmond puts 'finishing touches' to independence referendum plans - The Guardian 12th January.

400th Anniversary of the Union of the Crowns - 2003 and "From the Union of the Crowns to the Union of the Parliaments"

Systems of Government - slideshare - explanation of the various terms used - Unitary, Federation, Confederation

Aidan O' Neill QC -Eutopia blog - 14th November 2011 - "A Quarrel in a Faraway Country?: Scotland, Independence and the EU"

Wednesday 11th January - The Guardian -  SNP plans Scottish Independence Referendum for autumn 2014

: Addendum 2 :

The government's consultation paper "Scotland's Constitutional Future" proceeds on the basis that any referendum would be one for the Scottish people alone.  The paper expresses the view that the Scottish Parliament does not have the legal power to stage a referendum.  Legal power must be granted to put the matter beyond any doubt and to avoid conflict in the courts where the judges would effectively end up deciding the future of the UK.

It is proposed that the Scottish Parliament franchise would be used in any referendum.

The government's preferred option is to make a Modification Order under section 30 of the Scotland Act 1998 to enable the Scottish Parliament to lawfully stage a referendum.  "An Order can be delivered relatively
quickly; within a few weeks if early agreement is reached on the terms of the Order."

An interesting and rather mischievous question arises.  Suppose that Scotland votes for independence before the next British General election - currently scheduled for May 2015.  Would Scottish voters then be able to vote in the General Election only to leave the Union shortly afterwards?  It would seem that they would.

Further articles:

Devolution Matters - 11th January - "Scottish Independence referendum: the UK government's demarche"

UK Supreme Court Blog - 11th January - Aidan O'Neill QC - "Now we're talking - About the Scottish Referendum"

The UK Constitutional law Group blog has some interesting posts:

Nick Barber - Scottish Independence and the role of the UK

Christopher Mc Crudden - Scottish Independence referendum: The Northern Ireland and International Human Rights dimensions

Cormac Mac Amhlaigh -  ... yes, but is it legal.  The Scots Independence Referendum and the Scotland Act 1998

Adam Tomkins - The Scottish Parliament and the Independence Referendum