Legal Briefing

Scotland’s constitutional future: countdown to the referendum

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Scotland | 01 March 2012

Those with an interest in the Scottish political and legal system will have been aware since the middle of last year that there would at some point in the life of the current Scottish Parliament be a referendum on the question of Scottish independence. The current Scottish National Party (SNP) administration achieved, against all odds given the proportional representation system of voting which is in place, an 
overall majority in the Scottish Parliament following the general election in May 2011. The Scottish Government was elected on
an explicit manifesto commitment to hold 
a referendum – although it’s fair to say that 
it was likely surprised to have been put in 
the position of being able to make good that promise.

The UK government and Parliament do not appear to dispute that there is a political mandate to proceed with a plebiscite. Political legitimacy is, though, only one aspect of the equation. The prospect of a yes vote gives rise to a range of legal and parliamentary questions that will be the subject of increasingly intense debate over the coming months and years.

THE LEGALITY OF THE REFERENDUM

The first issue to be resolved is who is empowered to organise a referendum on the question of independence, and on what terms. One might consider this a fairly pedestrian matter over which there could be little debate but that assumption would be wide of the mark. The timing, format and arrangements for the referendum are matters thought to be crucial by both ‘sides’, as is control over each of those issues.

The UK government seized the initiative on this question in January 2012, when it published its consultation paper on ‘Facilitating a legal, fair and decisive referendum’ (see http://www.scotlandoffice.gov.uk/scotlandoffice/files/17779-Cm-8203.pdf). It argues that:

‘… legislation for a referendum brought forward by the Scottish Government would likely be challenged in court and the Scottish Government would lose’.

Its proposed solution is an extension of devolved powers to allow the Scottish Parliament to pass a referendum Bill – but with those powers being made subject to conditions as to the timing of the poll, the format of the referendum questions, the extent of the franchise and the role of the Electoral Commission in overseeing the conduct of the election.

By contrast, the Scottish Government’s position is that Holyrood has sufficient powers under existing arrangements to pass a Bill and to hold a referendum at a time of its own choosing. Timing, and the form of question(s) put, are both expected to have a significant impact on the outcome – as is the voting age, with the SNP keen to include 16 and 17 year olds who may be more likely, as a group, to vote yes. In its own consultation document – ‘Your Scotland, Your Referendum’ (http://www.scotreferendum.com/consultation) – the Scottish Government advocates asking a single yes-no question: ‘Do you agree that Scotland should be an independent country?’

Key to answering the question of the Scottish Parliament’s powers to hold the referendum is the application of complex provisions of the Scotland Act 1998. It provides that an Act of the Scottish Parliament is ‘not law’ so far as any provision of it ‘relates to reserved matters’. Reserved matters – over which only Westminster has law-making powers – include ‘the union of the Kingdoms’. It is this reservation on which the UK government relies.

The alternative view is that a referendum that does not (and could not) alter Scotland’s constitutional status cannot be said to ‘relate’ to reserved matters. That analysis relies in part on more detailed direction given by the Scotland Act. In particular, the courts are told that the question of whether a provision relates to reserved matters is to be determined by reference to the ‘purpose of the provision, having regard (among other things) to its effect in all the circumstances’. Quite how that is to be interpreted – how to establish the purpose of a provision and the ‘other things’ which can be taken into account – is no easy task. It has been argued, however, that the referendum’s purpose is simply to gauge public opinion and that the Scottish Parliament is free to legislate on that basis.

The extent of the Scottish Parliament’s powers is, of course, ultimately a matter for the courts. While legal challenges to Scottish Acts are not unknown – and indeed have been the subject of previous articles by this author – it seems unlikely that a dispute on this matter between the Scottish Parliament and UK government will reach the courts. Rather, we very much expect a pragmatic, political solution to be found by way of a further extension of powers to the Scottish Parliament to put 
(at least this one aspect of) the legality 
of a referendum beyond doubt.

A SECOND QUESTION?

A different, but no less difficult, problem arises about the legality of a referendum 
Bill passed by the Scottish Parliament to ask a different or second question of the Scottish electorate. Rather than independence, the second question would ask instead whether the Scottish Parliament should have devolved to it 
much greater powers – colloquially 
known as ‘Devolution Max’. The precise parameters of Devolution Max remain unclear but the key distinction is that Scotland would remain part of the United Kingdom and would not become a separate sovereign state. The Scottish Government published a consultation paper in 2009 – ‘Your Scotland, Your Voice’ (see http://www.scotland.gov.uk/Resource/Doc/293639/0090721.pdf) in which it set out a vision of Devolution Max that would see the UK retain responsibility for the currency, monetary policy, defence and foreign affairs but with most other areas 
of policy fully devolved. Those against such further devolution might describe such arrangements as ‘Independence Lite’.

In its 2012 consultation, the Scottish Government expresses the view – with which the UK government disagrees – that legislation to allow for a referendum on Devolution Max is ‘clearly within the existing powers of the Scottish Parliament’. The legal argument on that issue would perhaps be rather more nuanced than those on the power to hold an independence referendum: Devolution Max clearly relates to the ‘Constitution’, which is reserved, but the Scotland Act 1998, which established devolution for Scotland, contains a variety of mechanisms to enable the transfer of powers to and from the Scottish Parliament. Many of those require the participation of the Scottish Parliament itself and their presence makes it more difficult to argue that a referendum on increased devolution is clearly outside of legislative competence.

WHOSE REFERENDUM?

Questions have also arisen in connection with the franchise for the referendum. 
As mentioned above, the Scottish Government would wish to see 16 and 
17 year olds entitled to participate. That is justified by reference to perceived risk of disengagement from the political process by that cohort if it is denied the vote and to the other responsibilities – listed as getting married, paying tax and serving in the armed forces – which such individuals might be expected to undertake. Such an extension of the franchise would require specific legislative provision.

A separate question arises about the involvement of EU nationals living in Scotland. At present, EU residents are entitled to vote in elections to the Scottish Parliament but some object that non-UK nationals should not be able to participate in a question that is so crucial to Scotland’s national identity and future. Again, the Scottish Government supports their participation. EU nationals cannot vote in UK parliamentary elections – save those who are citizens of the Republic of Ireland, for whom presumably some special provision may need to be made in relation to a referendum. Other questions have been asked about the rights of non-resident Scots to participate.

CONSEQUENCES OF A YES VOTE

In the event that a referendum produced a majority vote in favour of Scottish independence, a wide range of matters would then require to be dealt with to give effect to that result. Attention will turn to the means of establishing Scotland as a state – and associated questions about the status of the rest of the UK.

It appears to be generally assumed that the devolved Scottish Government led by the first minister of Scotland would negotiate on behalf of a soon-to-be-independent Scotland, with the UK government representing the remainder of the British state. This may turn out to be the case but the Scottish Government currently has no statutory authority to conduct negotiations on behalf of Scotland to bring about the end of the union. Furthermore, the UK government would remain in the interim just that – the government of the whole of the United Kingdom of Great Britain and Northern Ireland. Until Scotland’s departure from the United Kingdom had been constitutionally effected, the UK government would thus remain the government in Scotland.

Other politically and constitutionally sensitive questions would also arise. 
What would be the proper role for those members of the UK government representing Scottish constituencies in the period between a yes vote in the referendum and Scotland’s official departure from the United Kingdom? Could such ministers participate in discussions relating to the upcoming negotiations? Could they view British government papers relating to such matters? Would their prime responsibility be to their constituents in Scotland or to the British state?

A further difficulty may arise due to the proposed timing of the referendum in the autumn of 2014. It is conceivable that Scotland will remain officially within the union by the time a UK general election falls due in May 2015. If Scotland were to remain an official part of the United Kingdom at that date, would the Scottish electorate be entitled to vote in the general election or would it be possible to prevent a part of the United Kingdom from participating in a UK general election on the grounds that it would soon cease to be part of the UK?

There will be much spilt ink over the process by which Scotland achieves independence. Questions will be asked about whether the process dissolves the United Kingdom altogether – leaving England, Wales and Northern Ireland to decide whether they wish to reform to become a new state – or whether the process should be characterised simply as a Scottish ‘exit’, leaving a ‘rump’ United Kingdom as a continuing state for the purposes of international law. There will be debates about the appropriate share of territorial waters to be allocated to the newly independent Scotland and to the remainder of the United Kingdom – crucial in terms of future oil and gas revenues, and fisheries waters – and about the appropriate share of national debt to be shouldered by the Scots. While there are principles of international law and recent practical examples – such as the dissolution of Czechoslovakia – to draw on in determining these questions, it is also true to say that there are occasions on which law must take second place to realpolitik and it can be expected that the latter will have more influence than the former in resolving these issues.

EU MEMBERSHIP

Finally, one of the most important questions in the minds of those entitled to vote in the referendum will be the future of Scotland within the European Union. Indeed, politicians on both sides of the debate recognise the significance of this issue – nationalists playing down fears of exclusion and the prospect that Scotland might have to apply for membership, Unionists emphasising uncertainty over continuing membership of the EU and (most recently) suggesting that the United Kingdom could veto any application for Scottish membership.

There is little doubt that Scotland would be capable of fulfilling the requirements of membership given that it is already inside the EU and in full conformity with the Copenhagen criteria, which all would-be member states are required to satisfy. What is more, as an existing part of the EU, the EU’s rulebook or acquis communataire is already fully in force in Scotland. In addition, Scotland is represented in the European Parliament by six directly elected members of the European Parliament, many Scottish nationals are employed in the EU institutions and Scottish representatives are to be found on a host of other EU bodies from the economic and social committee to the committee of the regions. This would provide Scotland with a strong basis upon which to claim continued membership represented the most sensible course of action.

In addition, the SNP contends that as a successor state to the United Kingdom, an independent Scotland would continue in membership under the terms of Article 34 of the Vienna Convention on State Succession in respect of Treaties, which provides that:

‘… when a part or parts of a state separate to form one or more states, whether or not the predecessor 
state continues to exist… any Treaty 
in force at the date of the succession 
of states in respect of the entire territory of the predecessor state continues in force in respect of each successor state so formed’.

However, the case has also been made 
that a newly independent Scotland 
would not automatically continue its membership of the EU. It is argued that 
the Vienna Convention does not apply 
to EU membership and that in order 
to acquire membership of the EU, the 
treaty would require to be amended in 
order to provide that Scotland become a member state.

CONCLUSION

The Scottish Government wants the referendum to take place in the autumn of 2014. We can therefore expect debates about the questions to be asked, never mind the answers which might be given, 
to occupy a large portion of the next two and a half years.

By Christine O’Neill, head of public law and regulation, Brodies LLP.