‘The festering factor’ – the legality of a 2d independence referendum

‘The festering factor’ – the legality of a 2d independence referendum

With the Scottish executive gearing up for a 2d independence referendum, questions were raised about whether or not or no longer the Scottish Parliament can legislate for this type of ballot in some way that the courts will in finding lawful. On this publish, David Torrance discusses the wording of the related regulation and the have an effect on of next caselaw, concluding that the existing prison working out is that even a consultative referendum can be outdoor the scope of the parliament’s powers.

Throughout the Space of Lords’ attention of what would develop into the Scotland Act 1998, Lord (Donald) Mackay of Drumadoon (a former Lord Suggest and due to this fact a Scottish pass judgement on) instructed friends it might be ‘completely imaginable to build a decent prison argument’ that it was once throughout the legislative competence of the soon-to-be-created Scottish Parliament to cross a invoice authorising an independence referendum.

Lord Mackay added that he remained ‘satisfied that the legislation in this topic must be clarified. If it’s not then the festering factor as as to whether the Scottish parliament is competent to carry this type of referendum will rumble on.’ That was once arguably a dictionary definition of prescience.

The talk, if no longer ‘festering’ does certainly ‘rumble on’ just about 1 / 4 of a century later, but a lot of the observation turns out apparently round, turning over arguments which would possibly were related in 1998 or 2012 however are much less so in 2022. Leader amongst those is the concept an ‘advisory’ or ‘consultative’ referendum would possibly cross muster if the dispute have been to succeed in the Ideally suited Court docket.

However first allow us to go back to the Lords in 1998. Talking for the federal government, Lords Sewel and Hardie (respectively a Scottish Place of work minister and the then Lord Suggest) have been transparent that an independence referendum invoice would ‘relate to’ the reserved topic of the Union between Scotland and England and would due to this fact be extremely vires and outdoor the competence of the Scottish Parliament. As Lord (David) Hope of Craighead later seen, ‘the Scotland Act supplies its personal dictionary’.

The Scotland Act 1998

So what does that dictionary say? Below segment 29(1), Acts of the Scottish Parliament that fall outwith its legislative competence (or powers) are ‘no longer legislation’. An Act (or a provision thereof) is past competence as far as it ‘pertains to reserved issues’. Reserved issues are set out in Time table 5, Phase 1 of which reserves ‘facets of the charter’ to Westminster. This comprises, amongst different issues, ‘the Union of the Kingdoms of Scotland and England’ and ‘the Parliament of the UK’.

The Scotland Act additionally supplies a collection of ideas to lend a hand the courts when drawing near questions of competence (one thing referred to as ‘devolution problems’). Whether or not a provision of an Act ‘pertains to’ a reserved topic is to be made up our minds ‘by way of connection with the aim of the availability, having regard (amongst different issues) to its impact in all of the instances’ (segment 29(3)). Segment 101 states that during deciphering Acts of the Scottish Parliament, provisions are ‘to be learn as narrowly as is needed for it to be inside of competence, if this type of studying is imaginable’

Within the 2010 case of Martin v Her Majesty’s Suggest, Lord Walker was once transparent {that a} provision needed to possess ‘greater than a unfastened or consequential connection’ to a reserved topic with a purpose to ‘relate to’ it.

The confrontation

Despite the fact that the United Kingdom and Scottish governments have lengthy agreed that the Scottish Parliament can not unilaterally finish the Union (i.e. allow Scottish independence) they differed as to the ‘goal’ and ‘impact’ of referendum regulation in 2012 and proceed to disagree a decade later. Importantly, the Edinburgh Settlement of 2012 didn’t unravel this confrontation however simply paused it with a mutually agreed segment 30 Order underneath the 1998 Act.

As Cormac Mac Amhlaigh has seen, in 2012 the Scottish executive’s studying of segment 29(3) of the Scotland Act gave the look to be a ‘slim’ one, through which ‘the aim of this type of provision can be to carry a referendum’, its ‘impact in all of the instances’ being null in prison phrases.

Certainly, a Scottish executive session file printed in February 2010 argued {that a} referendum would ‘be advisory, in that it’s going to don’t have any legislative impact’ and integrated a referendum query which was once, as a 2012 session admitted, ‘moderately phrased to agree to that requirement’.

The United Kingdom executive, alternatively, took a ‘broader stage research’ which argued {that a} referendum ‘must no longer be thought to be an lead to itself, however moderately an device to succeed in an extra purpose’– that of independence, and due to this fact one thing that will no longer be inside of devolved competence.

In a January 2012 weblog for the United Kingdom Constitutional Regulation Staff (UKCLG), seven constitutional lecturers kind of agreed with the Scottish executive. They argued there was once a believable case {that a} invoice’s goal can be to hunt ‘the perspectives of folks in Scotland’ (moderately than legally dissolve the Anglo-Scottish Union) and {that a} consultative referendum would no longer ‘relate to’ the reserved topic of the Union for the reason that ‘weight of authority’ (i.e. case legislation) instructed that devolution statutes needs to be interpreted ‘generously and purposively’ in step with segment 101 of the 1998 Act.

This was once a connection with the 2002 case of Robinson v Secretary of State for Northern Eire, which had taken such an option to the Northern Eire Act 1998.

Imperial Tobacco

That ‘weight of authority’, alternatively, then shifted. The UKCLG weblog predated the 2012 Imperial Tobacco Ltd v Lord Suggest judgment, which implied a transparent difference between the method fascinating for a statute imposing a world treaty (such because the Belfast/Excellent Friday Settlement) and due to this fact associated with political steadiness in Northern Eire, and that appropriate to resolving the boundary between devolved and reserved issues underneath the Scotland Act 1998. That Act, concluded the Ideally suited Court docket, needs to be interpreted neither expansively nor restrictively, however merely in keeping with the herbal that means of the phrases used.

The Imperial Tobacco case got here to be considered by way of constitutional students as important within the context of the confrontation between the Scottish and UK governments vis-à-vis a 2d independence referendum. Certainly, next case legislation (the 2018 Scottish Continuity Invoice case and two additional references in 2021, one in every of which interpreted segment 101 narrowly) gave the impression to adhere to its ‘simple studying’ method. Through 2021, Professor Stephen Tierney – one of the most essential authors of the 2012 UKCLG weblog – concurred.

Felony impact

Some additionally interpreted an remark within the first Miller case of January 2017 as important, that the Brexit referendum of 2016 had no longer modified the legislation ‘in some way which might permit ministers to withdraw the UK from the Ecu Union with out regulation’. However, because the Ideally suited Court docket added, that ‘by no means’ supposed the bulk ‘Depart’ vote was once ‘devoid of impact… It implies that, until and till acted on by way of Parliament, its drive is political moderately than prison. It has already proven itself to be of significant political importance.’

The journalist James Forsyth has instructed the United Kingdom executive is anxious this may permit the Scottish executive to argue that referendum regulation would no longer ‘impinge’ upon the reserved topic of the Anglo-Scottish Union because it ‘would don’t have any direct prison impact’.

This, alternatively, ignores segment 29(3) of the Scotland Act 1998, which states that whether or not a provision of an Act ‘pertains to’ a reserved topic is to be made up our minds ‘by way of connection with the aim of the availability, having regard (amongst different issues) to its impact in all of the instances’ (writer’s emphasis). That would come with (as Miller made transparent) political in addition to prison impact, whilst the obviously said ‘goal’ of a ‘sure’ vote in a referendum can be, to cite the 2011 SNP manifesto, that ‘Scotland turns into an impartial country

Checked out from this point of view, the ‘goal’ of an ‘advisory’ or ‘consultative’ referendum would stay that of attaining independence, and it might due to this fact ‘relate to’ a reserved topic. As Ciaran Martin seen in a Charter Unit weblog remaining yr, ‘the purpose of the Scottish executive, and the broader nationalist motion, isn’t to have a referendum. It’s to succeed in independence.’


Any other vital case within the context of this debate involved a ‘declarator’ sought by way of the pro-independence activist Martin Keatings in early 2021, pointing out that Holyrood was once competent to legislate for a referendum. This was once rejected by way of the Outer Space of the Court docket of Consultation as ‘hypothetical’ and due to this fact additionally by way of the Internal Space. In his judgment, the Lord President (Lord Carloway) echoed Imperial Tobacco in making transparent that the Court docket’s option to the Scotland Act can be one in every of bizarre statutory interpretation:

‘The query would were whether or not an Act to carry a referendum on Scottish Independence “pertains to” (s 29(2)(b)), “the Union of the Kingdoms of Scotland and England” or “the Parliament of the UK” (sch 5 phase I para 1(b) and (c)) having regard to its impact in all of the instances (s 29(3)). The Act would relate to those reserved issues if it had “greater than a unfastened or consequential reference to them” (UK Withdrawal from the EU (Felony Continuity (Scotland) Invoice 2019 SC (UKSC) at para [27], quoting Martin v Maximum 2010 SC (UKSC) 40, Lord Walker at para [49]). Seen on this approach, it might not be too tricky to reach at a conclusion, however that may be a topic, most likely, for any other day’ (writer’s emphasis).

Stephen Tierney seen that Lord Carloway was once making use of the ‘competence take a look at’ as utilized by the Ideally suited Court docket:

‘A provision will likely be thought to be to be outdoor competence if it has greater than a ‘unfastened or consequential connection’ to a reserved topic. The important thing query for the Ideally suited Court docket can be whether or not a referendum on Scottish independence would have greater than this type of unfastened or consequential connection to the Union of the Kingdoms of Scotland and England. It kind of feels possible that it might in finding this type of connection to exist.’

The President of the Ideally suited Court docket is now Lord Reed, whose observe file suggests he would no longer considerably leave from this method. As he seen within the Imperial Tobacco case (earlier than it reached the Ideally suited Court docket): ‘The Scotland Act isn’t a charter, however an Act of Parliament.’

The talk in 2021-22

The Scottish executive printed a Draft Independence Referendum Invoice on 22 March 2021. The preamble describes it as an Act of the Scottish Parliament ‘to make provision for the retaining of a referendum in Scotland on a query concerning the independence of Scotland’ whilst Clause 1(2) states that the query – matter to Electoral Fee approval – would be the similar as that during 2014: ‘Will have to Scotland be an impartial nation?’ It has but to be offered to the Scottish Parliament and must be signed off by way of the Scottish legislation officials earlier than it’s.

Whilst the legality of such regulation would possibly were an open query in 2012, a decade later there are few constitutional students who consider it might cross muster within the Ideally suited Court docket – together with Stephen Tierney and Professor Aileen McHarg, the primary authors of the 2012 UKCLG weblog. Simplest Professor Adam Tomkins (who in 2012 was once transparent {that a} such referendum can be extremely vires), believes this is imaginable if ‘Scottish Ministers are ready to concede’:

‘(1) that its goal is simply to seek the advice of the folks moderately than to make any choice about independence and (2) that its impact is 0, i.e. that no prison or constitutional penalties would connect to any Sure vote.’


It will be significant when taking into account this factor to split political arguments from prison ones. Attention of electoral mandates or the ‘sovereignty of the Scottish folks’ are not likely to detain the Ideally suited Court docket for lengthy. Reasonably it’s going to believe the obvious phrases of the Scotland Act 1998 and related case legislation.

First Minister Nicola Sturgeon said remaining week that ‘if we’re to uphold democracy right here in Scotland we should forge some way ahead, if vital, and not using a segment 30 Order’. She instructed that the Scottish executive’s prison place can be made transparent earlier than Holyrood rises for its summer time recess on 2 July. Will this be in line with its 2010-12 stance that an ‘advisory’ referendum can be of no prison impact and due to this fact no longer ‘relate to’ a reserved topic? Scotland’s Charter Secretary Angus Robertson has stated that the purpose is to carry the referendum ‘subsequent October’, so it sort of feels like we can in finding out quickly.

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Concerning the writer

Dr David Torrance is a constitutional specialist on the Space of Commons Library. His briefing paper at the prison problems surrounding an independence referendum examines those arguments in better intensity. See right here for different posts written by way of him.

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