Saturday, 21 January 2012

Scotland's Constitutional Future: an influential Scottish voice

Lord Wallace of Tankerness QC
I do not myself regard politics and law as, in any way, in conflict because politics in our country should be carried on under the rule of law - Lord Wallace of Tankerness QC

 A few days ago, Law and Lawyers ventured the tentative view that Scotland could not lawfully hold any form of referendum relating to independence unless the UK Parliament has granted specific authority for it - "Scotland: We need to talk."   The argument is not repeated here but it is interesting that Lord Pannick QC expressed a firmer view in an article in the Times on Thursday 19th January.  Unfortunately, due to the "pay wall", I cannot link to the article but he wrote that a referendum was a reserved matter and therefore not within the legislative competence of the Scottish Parliament.  Put simply, any form of referendum would "relate to" the reserved matter of "the Union of the Kingdoms of Scotland and England."   A further article to the same effect appeared in The Scotsman 20th January - "Iain Jamieson: Alex Salmond lacks legal strength."

Section 29(3) of the Scotland Act 1998  states
that, whether a provision of an Act of the Scottish Parliament "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.  As Iain Jamieson points out, Alex Salmond argues that he already has the power to hold  an “advisory” or “consultative” referendum.  However, what would be the purpose of such a referendum?  Perhaps the only sensible view would be that the purpose would be to bring about greater political pressure for Scotland to be granted independence.  Thus, it would "relate to" the "Union of the Kingdoms ...."  However, ultimately only the Supreme Court of the UK could authoritatively rule on the exact meaning of section 29(3) in the context of any purported Scottish legislation for a referendum.

Do we really want the judiciary to determine this question?  I do not venture to answer that question here since reference to the judiciary is both avoidable and should be avoided.  London can empower the Scottish Parliament to enact legislation for a referendum.  That is the sensible way forward since it side-steps legal argument relating to the Scottish Parliament's legislative competence.  It is also the way forward proposed by the government in the recently issued consultation- "Scotland's Constitutional Future."

A very influential Scottish legal voice has now spoken.  The Advocate General for Scotland - Lord Wallace of Tankerness QC gave a speech at Glasgow University on 20th January - "Scotland's Constitutional Future."    Lord Wallace said: " ... an Act to bring about the end [of] the Union would "relate to" the Union and bringing an end to it would be its purpose – it would be outside competence.  What then, about a referendum on the Union?  It seems to me that a referendum, "advisory", "consultative" or whatever, about the Union, would relate to the Union.  That seems clear both as a matter of common sense, and on a straightforward reading of the plain words of the statute."


  1. A "very influential" Liberal, unionist, ex-Lib/Lab minister. Your argument is specious and child-like. Look at the Act. It's actually very sensible. In assessing "relates to" you must look at the purpose and "effect in all the circumstances" of the provision. I accept that an Act of the Scottish Parliament to dissolve the Union would be of no legal effect as outwith its competence. An Act to ask a question in a referendum would plainly be perfectly competent.

    And the politics are even plainer. If Unionists really think it would be incompetent, and really accept that the SNP has a mandate to hold a referendum, and really don't want the courts involved, and really are full of sorrowful regret that the 1998 Act prevents a referendum being held, then amend the Act to allow it. Now.

  2. "An Act to ask a question in a referendum would plainly be perfectly competent" - I disagree.

    Mr Salmond claims that the Scottish Parliament has the power to hold some form of referendum but, as my post illustrates, there is now considerable legal opinion that it does not. Seems quite proper to me that the law be examined to see whether it supports Mr Salmond's claim. You may choose to dismiss Lord Wallace's speech but he is, after all, Lord Advocate of Scotland despite his political background and it is far from being "plainly perfectly competent" for the SP to enact legislation for a referendum about the Union.

    I suspect that Mr Salmond will be persuaded that he must get the legal authority put beyond any doubt. This will be done by the proposed section 30 modification order. It is in everyone's interests that the matter be handled fully within the law.