A second Scottish independence referendum without a s.30 Order? A legal question that demands a political answer

In this blog Stephen Tierney argues that the legality of a unilateral referendum organised by the Scottish Parliament is a grey area. He also offers personal reflections from his experience as a parliamentary adviser at the time of the 2014 referendum and contends that a referendum held without an agreed process would have been damaging then and would be damaging now. It is incumbent upon both governments to ensure that a political solution to the current dispute is achieved and that, in particular, such a divisive issue is not left to the courts to settle. 

The Scottish Parliament today concludes its debate on whether to request from the UK parliament a ‘s.30 Order’ under the Scotland Act 1998. This would provide unequivocal authority for the Scottish Parliament to hold a second independence referendum. Westminster is likely to refuse this request for the time being at least, raising the question of whether the Scottish Parliament can legislate to hold a referendum without such consent.

In 2012 I argued that there was a plausible case to be made that the current powers of the Scottish Parliament do indeed allow it to legislate on the subject of an independence referendum; a view shared by several colleagues. The argument was that a consultative exercise, asking the electorate if they favoured an independent Scotland, could be legally permissible. Crucial to the legality of such a referendum, however, would also be its legal inconsequentiality; it would not bind the UK government to give effect to a pro-independence outcome.

I still consider this argument to be valid; the relevant devolved powers of the Scottish Parliament have not changed since that time. But I went on to serve as Constitutional Adviser to the Scottish Parliament Referendum Bill Committee which helped shape the bills (here and here) which regulated the 2014 referendum. What became clear to me was that, regardless of whether one was a Yes or a No voter, it was far better in terms of fostering a conducive environment for debate that a referendum, without the consent of the UK parliament, was not attempted. The fact that the 2014 referendum was the product of the Edinburgh Agreement between the Scottish and UK governments is central to how commentators now look upon that referendum as a valid and deliberative, if not uncontentious, exercise in popular decision-making.

In this blog I will briefly set out the zone of legal uncertainty, one which does suggest that the Scottish Parliament’s powers in this area are potentially broader than is often claimed. My main goal, however, is to make a plea for political restraint by both governments in recognition that this is fundamentally an issue of politics and not of law, and that in the interests of a healthy, democratic political process, it is incumbent upon the two governments not to allow an uncertain area of law to become a political football.

I would emphasise that this is not a call for unilateral self-restraint by the Scottish government and Scottish Parliament; both sides must work to ensure that this matter does not end up before the courts with potentially disastrous consequences for the reputation of the UK’s Supreme Court and the health of our democracy.

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A second independence referendum in Scotland: the legal issues

First Minister Nicola Sturgeon yesterday declared the Scottish government’s intention to hold a second referendum on independence by spring 2019. In this post Stephen Tierney discusses the steps that have to be gone through before this is realised. He suggests that although a referendum is not inevitable the Scottish government are not bluffing about it – if, as seems likely, it can gain a majority in the Scottish Parliament to request a s. 30 Order, and can convince Westminster to grant this, then the path will be set for a referendum process that could see Scotland leave the UK just as the UK leaves the EU.

Scottish First Minister Nicola Sturgeon yesterday announced the Scottish government’s intention to hold a second referendum on independence between the autumn of 2018 and the spring of 2019. The move comes ahead of the start of Brexit negotiations under Article 50 of the Treaty of European Union, expected to be triggered by the end of the month. The next two years are set to be consumed by two parallel processes that will see the UK leave the EU and could also see Scotland leave the UK in an effort to remain within the EU.

Can the Scottish Parliament hold a referendum without the consent of Westminster?

Whether the Scottish Parliament can unilaterally hold an ‘advisory’ referendum on this issue has never been finally resolved. But it seems clear that the Scottish government does not propose to test this issue; instead it will seek the consent of Westminster to a so-called s. 30 Order, thereby ensuring that the UK government will have to accept the referendum result.

A s. 30 Order would involve a temporary transfer of power from the UK parliament to the Scottish Parliament to allow the referendum to go ahead, along similar lines to the 2014 process. The Scottish government indicated its intention to go down this route in its white paper, ‘Consultation on a Draft Referendum Bill’ published in October last year, and this was also confirmed by the First Minister today when she stated that she will ask the Scottish Parliament next week for permission to request a s. 30 order.

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A watershed is reached in Northern Ireland

Last week’s snap election in Northern Ireland saw the DUP’s lead over Sinn Féin reduced to a single seat and an Assembly without a unionist majority returned for the first time in the institution’s history. Brian Walker digests the result and considers what might happen next.

Gerry Adams was justified in declaring that the perpetual unionist majority since 1921 was ‘demolished’ in Northern Ireland’s snap election on 2 March. Only 40 seats in an Assembly of 90 members went to the two unionist-designated parties, with Sinn Féin’s 27 seats coming within a whisker of the DUP’s 28. The long-term demographic trend towards a nationalist majority in the province was at last translated into Assembly seats. Turnout, at 65 per cent, was 10 per cent up on May last year, the crucial differential turnout favouring nationalists in particular – the Sinn Féin vote was up by 57,000 compared with 23,000 for the DUP. Fairly small increases in percentage share of the vote – four per cent for nationalists, two per cent for unionists – made crucial differences accentuated by the reduction of seat numbers in the Assembly from 108 to 90. Of 16 lost in an Assembly of ten fewer seats, ten were unionists. Undoubtedly, nationalism has recovered momentum. A chance transfer of only a handful of votes could result in a Sinn Féin First Minister next time and seal the transformation.

Sinn Féin’s success should not be exaggerated. All nationalism’s 40 per cent share is well short of what is necessary for calling the border poll which is likely in time to become a Sinn Féin demand. Nationalist voters may have been keener to punish Arlene Foster and the DUP for arrogance than advance the cause of Irish unity. In any hypothetical straight vote in the Assembly  to test support for Irish unity, the pro-union side could muster around 50 votes to nationalism’s 40. There were other successes. The non- sectarian Alliance party held its 8 seats. The first call for cross community voting, controversially made by the Ulster Unionist leader Mike Nesbitt, ironically helped  save all 12 seats for the minority nationalist SDLP, although  at the cost of losing six of their own 16 seats and Nesbitt’s resignation. Nevertheless the score for centre parties could count in simple majority votes in an Assembly so finely balanced between the DUP and Sinn Féin.

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Options for an English Parliament: lessons from existing decentralised states

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Last year the Constitution Unit began work on a project exploring the options for an English Parliament. As part of this research we are examining arrangements in other decentralised states, particularly those which are federal, to draw out lessons for the design of political institutions were an English Parliament to be established. Jack Sheldon and Meg Russell summarise some early findings.

Last autumn we began work on a research project exploring the options for an English Parliament. As outlined in a previous blog post, calls for an English Parliament have long existed, but frequently been dismissed by academics and mainstream politicians. However, in recent years the salience of questions concerning England’s constitutional status has increased and as a result the idea has gained new supporters. Despite this no detailed analysis of the design options for an English Parliament – including key questions such as its possible powers, structure and location – has previously been undertaken. We are aiming to close this gap and plan to publish a report in late 2017.

As part of our research we are examining constitutional arrangements in existing decentralised states, including those which are federal. In this blog post we present some early findings from a survey of arrangements in the 22 states that are listed as federations by the Forum of Federations. The establishment of an English Parliament would not necessarily imply a federal arrangement for the UK, but certainly something like it – with separate legislative institutions for the four historic nations. When drawing out comparative lessons, looking at existing federal states is therefore an obvious place to start.

What are federations and when are they established?

The term federalism covers a wide range of political systems in which legislative powers are divided between state and sub-state levels (see Dardanelli and Kincaid, 2016, for further discussion of the definition). Among the 22 federations listed by the Forum of Federations there are 11 parliamentary systems, nine presidential or semi-presidential systems and two that fall into none of these categories. Even within these categories there is great variation in institutional structures.

The classic early federations – the United States, Australia and Canada, for example – were comprised of existing autonomous political systems. ‘Coming together’ federations of this type remain more numerous than ‘holding together’ federations formed from previously unitary states (for discussion of this distinction see Stepan, 1999). However, the latter category has grown in the post-1945 period. Examples of ‘holding together’ federations include Belgium and India, whilst Spain – though not strictly a federation – has moved in an increasingly federal direction. Were it to move in the direction of a more federal structure the UK would not, therefore, be out of step with developments elsewhere.

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Brexit, federalism and Scottish independence

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As the UK withdraws from the EU, is this the opportune moment for a restructuring of the Union along (con)federal lines? On 13 February, the Constitution Unit hosted a panel discussion on ‘Brexit, Federalism, and Scottish Independence’, to explore this question further. The panel, chaired by Kenny Farquharson, consisted of Professor Jim Gallagher, Kezia Dugdale and Baroness (Jenny) Randerson. Seema Syeda reports.

Opening the Constitution Unit’s seminar on ‘Brexit, federalism and Scottish Independence’ on 13 February, Kenny Farquharson declared that ‘Brexit is a painting that has not yet dried’. After the EU referendum result exposed a nation fractured along the lines of geography, age, wealth, and education the full consequences are yet to become apparent. The divisions now manifest in UK society are troubling enough to satisfy the worst of cynics – yet, in the greatest constitutional upheaval the UK has seen in decades, some have spied an opportunity.

Might the transfer of wide-ranging powers from Brussels, not only to Whitehall but also to the devolved administrations, provide an opportunity to revitalise our democracy through a newly federal UK? Important competencies relating to agriculture, fisheries and the environment will, unless the UK government legislates otherwise, return to the Scottish Parliament and to the Welsh and Northern Ireland Assemblies. Both the devolved and central governments will therefore see a dramatic increase in their powers. Brexit, as ‘wet paint on canvas’, in a continuation of Farquharson’s vividly imagined metaphor, might be an opportunity to restructure the relationship between the UK’s four constituent nations.

These possibilities were discussed by a panel which consisted of Professor Jim Gallagher, Scottish Labour leader Kezia Dugdale and former Liberal Democrat Welsh Assembly member and Wales Office minister Baroness (Jenny) Randerson. Kenny Macaskill, Cabinet Secretary for Justice in the Scottish government under Alex Salmond, was also due to attend but unfortunately could not make it due to unavoidable business in Scotland.

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Monitor 65: Testing constitutional times

The latest issue of Monitor, the Constitution Unit’s regular newsletter, has been published today. The issue covers all of the major UK constitutional developments over the past four months, a period that has included the High Court and Supreme Court rulings in the Article 50 case, the unveiling of Theresa May’s Brexit plan and the election of Donald Trump as President of the United States, plus much else besides. The front page article is reproduced here. You can read the full issue at this link

monitor-65-coverPolitics remains fast-moving. Its unexpected turns have raised fundamental questions about the constitutional order, in the UK and beyond – including the rightful place of voters, elected legislators, governments and judges in political decision-making – as well as the media’s role in questioning those decisions.

Here, Brexit remains the dominant preoccupation. The previous issue of Monitor reported how ‘ministers have repeatedly insisted that they are in charge of the Brexit negotiations and that to reveal their hand to parliament in advance would weaken their negotiating position’. A lot has changed since then.

Following rulings by the High Court on 3 November, and Supreme Court on 24 January, ministers had to accept that they require parliamentary approval to trigger Article 50; at the time of writing, the European Union (Notification of Withdrawal) Bill has now passed through the Commons and awaits scrutiny in the Lords (see page 3). Even before the bill’s introduction, the government had conceded (in December) that its Brexit plan would be published prior to triggering Article 50, and (in January) that this would include a white paper – commitments necessary in order to see off potential Commons defeats. With help from the courts, parliament has rediscovered some of its teeth.

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The process of Brexit: what comes next?

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In a new report published jointly by the Constitution Unit and the UCL European Institute, Alan Renwick examines what the process of Brexit is likely to look like over the coming weeks, months, and years. Here he summarises five key lessons.

wp2_arenwick_front_coverThe phoney war around Brexit is almost over. For months, two immediate questions have dominated discussions: How can Article 50 be triggered? And what sort of deal will ministers seek? The Supreme Court’s ruling on 24 January answered the first question. We know much more now about the second through Theresa May’s Lancaster House speech and last Thursday’s white paper. The Article 50 bill is being debate in parliament. By the end of March – if the government gets its way – we will be entering a new phase in the process.

The question is: What comes next? Can the government deliver on its wish list? Can parliament provide effective scrutiny?  Will the courts intervene again? How is Brexit likely to play in the devolved nations? Is a second referendum at all likely?

In a new report, I offer answers to these and related questions. Here I summarise five key points.

1/ The UK government is very unlikely to get what it says it wants.

The government has set out highly ambitious goals. It wants not just a divorce agreement, but also a complex, deep, and bespoke deal on the UK’s future relationship with the European Union, encompassing a comprehensive free trade agreement, a novel form of customs association, and ongoing cooperation in areas including policing, security, and research. Furthermore, it wants all of this to be both negotiated and ratified within two years.

Whether such a deal will emerge is impossible to say; but achieving it within two years certainly looks very unlikely. First, EU leaders (so far at least) have said they will not negotiate on these terms. Rather, they initially want a divorce deal only; once that has been negotiated, they propose a transitional period that preserves many features of EU membership while detailed negotiations on future relations are conducted. Thus, the first round of the negotiations will be a discussion of what the negotiations are actually about.

Second, even if the UK government gets its way in this opening round, the negotiations thereafter will be immensely complex and difficult. They will range across most policy areas. Not only will the UK be negotiating with the EU: in addition, there will be intense negotiations among the twenty-seven remaining member states and between the European Council, European Commission, and European Parliament. Whitehall’s resources for all of this are very tight, and experienced negotiators with relevant expertise are thin on the ground.

Third, a deal such as the Prime Minister proposes will have to be agreed by the European Parliament and ratified by every member state. As the troubles faced in the Walloon parliament by the Canadian free trade agreement show, there is no guarantee that ratification will be smooth. Indeed, in some countries ratification could be subject to a citizen-initiated referendum, as occurred in the Netherlands last April for the EU–Ukraine Association Agreement.

If no deal has been done and ratified within two years, the UK government will have three main options: press for an extension to the negotiation window (which would require unanimous agreement of the member states); accept the EU’s proposed transition phase; or decide that the UK is leaving without any deal. Ardent Brexiteers dislike the first two options. But most observers think the hard and disorderly Brexit implied by the third entirely unpalatable. A government that pursued it could well be forced from office, triggering deep political turmoil.

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