Current developments in the legal background to the independence referendum debate, and whether the Scottish Parliament has power to pass its own bill
The near-concurrent publication of consultation papers by the Scottish and Westminster Governments on how to hold a referendum on the question of Scottish independence, with some measure of agreement on the arrangements, has not entirely stilled the public debate over the prospects of Edinburgh ministers seeking to go it alone – or the debate among lawyers, academic and practising, as to the legality of their doing so, having regard to the limits on devolved powers in the Scotland Act.
While a weight of opinion was published, culminating in the lecture given by the Advocate General, Lord Wallace of Tankerness QC, in Glasgow on 20 January, that to hold a referendum must “relate to” the Union in terms of s 29(3) of the Act and therefore fall within reserved matters, seven academics at Glasgow and Edinburgh Universities have since argued online that the point is “a more open question than has been generally acknowledged”.
Two points of view
The Advocate General pointed to the statutory test (s 29(3)) that whether a provision “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”. He continued: “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.”
Though not legally binding, “a referendum is, or at least purports to be, a form of political decision making… the result, especially if it is not marginal or ambiguous, is hard for a democratic government to ignore”.
The more recent competing view is signed by four professors and three other academics. Space does not permit a full résumé of the arguments; briefly, it is contestable, they say, that the UK Government is right to take a broad interpretation of the purpose of a referendum bill: this might not be appropriate if a narrow reading would allow the bill to be considered intra vires; it makes a possibly unjustified assumption about the intentions of those supporting a referendum; and if regard is had to the legal (i.e. consultative) rather than practical effect of a referendum, that is arguably within the Parliament’s powers.
Similarly, on the question whether a bill would “relate to” the Union, that phrase too can be given a wider or narrower interpretation, and arguably, to give effect to the purpose of the Scotland Act should be read as requiring a challenger to show more than that the bill merely has “something to do with” the Union. The authors proceed to argue, on the basis of the treatment of the Scottish Parliament in Axa General Insurance v Lord Advocate  UKSC 46, taken with other indications that the fundamental principles of Scots and English constitutional law are not necessarily the same, that there might be “a much broader role for the Scottish Parliament in debating, and facilitating public deliberation on, questions about the future governance of Scotland, albeit the Scottish Parliament does not have power to unilaterally secede from the Union or to enlarge its own powers. On this view of the purposes of the Scotland Act, then, it may be argued that a consultative referendum would be a lawful exercise of the Scottish Parliament’s legislative powers”.
Two days after this argument was posted online, the Inner House decided the case of Imperial Tobacco Ltd v Lord Advocate  CSIH 9 (2 February 2012), which concerned a challenge to the prohibition of displays of tobacco products, enacted in the Tobacco and Primary Medical Care (Scotland) Act 2010. The ground on which all three judges agreed in rejecting Imperial’s case was that the legislation did not, as the company argued, “relate to” the reserved matter of consumer protection.
Lord Reed, in one of his final cases before taking up office as a justice of the UK Supreme Court, gave the leading decision on this point. In attempting to define the proper scope of “relates to”, he said (para 120): “In ordinary English, ‘relates to’ does not mean the same as ‘affects’; and, although it is a wide expression, it cannot be intended to be given such a wide construction as to invalidate all legislation affecting matters listed in sched 5, however slight, indirect or remote the effect may be. The practical considerations which led to that conclusion in the case law relating to Canada, Australia and Northern Ireland are equally cogent in the context of the Scotland Act.”
He went on to hold that it is necessary to determine, first, the meaning of the words defining the reserved matter (which “should not reflect any assumption as to the extent of the matters which are not reserved”), and secondly, whether the legislation relates to that matter, applying s 29(3).
He added (para 122): “The court must therefore ascertain the purpose of the provision in question, and then determine, by reference to that purpose, having regard (among other things) to the provision’s effect in all the circumstances, whether the provision relates to any of the reserved matters. The focus is therefore primarily upon why the provision has been enacted rather than upon what it does, although the latter is also relevant. The submission of counsel for the petitioners... that neither the motive nor the policy of the legislature in enacting the measure is a relevant consideration, must therefore be rejected.”
At para 124 Lord Reed pointed out that legislation may be enacted in order to achieve a number of objectives, and it might be that some of these are reserved and others not. Without expressinfg a concluded view, he commented: “In such a situation, one might expect to find that the provision related to a reserved matter, and was therefore beyond devolved competence, even though it also related to a matter which was not reserved.”
He added at para 125: “As Lord Rodger observed in Martin v Most [ UKSC 40] at para 75, the purpose of a provision will often be clear from its context in the Act in question. The court can also consider extrinsic material which is relevant to ascertaining the purposes which the provision was enacted to achieve, as Lord Hope indicated at para 25.”
What is the upshot of all this? It is suggested that the effect of Imperial Tobacco is that the courts will apply some limits to the scope of the phrase “relates to”, but will, if taking relevant extrinsic material into account, cast the net quite widely in attempting to identify the matter to which an enactment truly relates.
If one applies Lord Reed’s approach at para 122, quoted above, the SNP Government claims that the 2011 election result gives it a mandate to hold (and prescribe the conditions for) a referendum on independence. A Referendum Bill would be promoted by an SNP Scottish Government and passed by a Parliament with an SNP majority. The First Minister’s foreword to the Scottish Government’s consultation paper says in simple terms: “If the people vote yes, the Scottish Government would negotiate with the UK and move to secure the transfer of sovereignty and powers to the people of Scotland.” Whether or not, strictly speaking, the referendum is regarded as consultative only, it seems clear enough that the “purpose” of the enabling legislation, focusing on why it will have been enacted, would be to “relate to” the Union in terms of s 29(3).
Two further points can be made. The first – a practical one highlighted by Lord Wallace in his address – is that it is hard to believe that even those who differ from his view, “would consider that the matter is beyond doubt and could never be challenged in the courts. Few, if any, of the comments of those who have sought to make the case for existing competence have done so with certainty”. Better, he argued, to agree the terms on which the proposed order under s 30 of the Scotland Act can put the legal basis for the poll beyond a disruptive challenge.
Secondly, the academics’ post concludes by recognising the risk to the authority of the courts of any legal challenge taking place in a “fraught political context”, particularly given the “widely publicised antipathy to the Supreme Court within the Scottish Government” – a risk which, they note, would not be avoided “by taking refuge in a literal interpretation of the Scotland Act”. They therefore agree that the UK and Scottish Governments would be wiser to agree on an express transfer of powers.
“Nevertheless”, they add, “because of the fundamental nature of the issues at stake, and the inherent contestability of constitutional law questions of this kind, it is important that any such agreement should be not taken as an unequivocal endorsement of the view that Westminster alone is entitled to authorise a referendum on the constitutional future of any part of the UK.”
This article is written primarily to highlight current views and developments in this fast moving arena and, it is hoped, to stimulate further contributions. Joint the debate by posting a comment to the online version at www.journalonline.co.uk, or email firstname.lastname@example.org
Advocate General’s address: www.scotlandoffice.gov.uk/scotlandoffice/16502.html
Glasgow/Edinburgh academics’ post: bit.ly/xIXkYn (ukconstitutionallaw.org)
UK Government consultation Scotland’s Constitutional Future: www.scotlandoffice.gov.uk/scotlandoffice/files/17779-Cm-8203.pdf (closing date 9 March 2012)
Scottish Government consultation Your Scotland, Your Referendum: www.scotland.gov.uk/Resource/0038/00386122.pdf (closing date 11 May 2012)