‘The festering issue’ – the legality of a second independence referendum

With the Scottish government gearing up for a second independence referendum, questions have been raised about whether or not the Scottish Parliament can legislate for such a poll in a way that the courts will find lawful. In this post, David Torrance discusses the wording of the relevant legislation and the impact of subsequent caselaw, concluding that the prevailing legal understanding is that even a consultative referendum would be outside the scope of the parliament’s powers.

During the House of Lords’ consideration of what would become the Scotland Act 1998, Lord (Donald) Mackay of Drumadoon (a former Lord Advocate and subsequently a Scottish judge) told peers it would be ‘perfectly possible to construct a respectable legal argument’ that it was within the legislative competence of the soon-to-be-created Scottish Parliament to pass a bill authorising an independence referendum.

Lord Mackay added that he remained ‘convinced that the law on this matter should be clarified. If it is not then the festering issue as to whether the Scottish parliament is competent to hold such a referendum will rumble on.’ That was arguably a dictionary definition of prescience.

The debate, if not ‘festering’ does indeed ‘rumble on’ nearly a quarter of a century later, yet much of the commentary seems curiously circular, turning over arguments which might have been relevant in 1998 or 2012 but are less so in 2022. Chief among these is the idea that an ‘advisory’ or ‘consultative’ referendum might pass muster if the dispute were to reach the Supreme Court.

But first let us return to the Lords in 1998. Speaking for the government, Lords Sewel and Hardie (respectively a Scottish Office minister and the then Lord Advocate) were clear that an independence referendum bill would ‘relate to’ the reserved matter of the Union between Scotland and England and would therefore be ultra vires and outside the competence of the Scottish Parliament. As Lord (David) Hope of Craighead later observed, ‘the Scotland Act provides its own dictionary’.

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Green shoots for the Union? The joint review of intergovernmental relations

A review of intergovernmental relations conducted jointly by the UK government and the devolved administrations in Northern Ireland, Scotland and Wales was published last week. Michael Kenny and Jack Sheldon argue that the most important question facing the proposed new model for intergovernmental relations will be whether an enhanced system for bringing these governments into partnership will be endowed with real respect, and be allowed to take root, by the politicians at the helm.

The territorial chasm that opened beneath the Conservative Party’s feet following the demand made by Douglas Ross, its Scottish leader, that Boris Johnson resign, and Jacob Rees-Mogg’s retaliatory dismissal of him as ‘not a big figure’, shone an unflattering spotlight on some of the sharp tensions that devolution has created within the UK’s political parties.  

A much deeper divide has opened up in recent years between the UK government and the devolved governments in Cardiff and Edinburgh. Tensions that have been simmering since the election of administrations headed by different parties across the UK over a decade ago were exacerbated during the extended Brexit crisis, and since then more salt has been rubbed on these wounds during the COVID-19 pandemic. First Ministers Mark Drakeford and Nicola Sturgeon have been incentivised to make much of often minor differences in their approach from that adopted by the Johnson government. And yet there has been an abiding need for them and Whitehall to work together in the face of an airborne virus that does not respect the authority of internal borders.

While addressing the sharp differences that have emerged within the Conservative party looks difficult so long as Johnson remains in power, there is at least some cause for optimism that more functional arrangements for co-operation and engagement between the four governments within the UK are being put in place.

This arises specifically from the publication of the report of a long-running joint review which has been conducted by government officials from all parts of the UK. Landing amid the ‘partygate’ crisis engulfing Boris Johnson’s government, it has been largely ignored by the media and politicians at Westminster. But its content, and the thinking animating it, could prove to be an important factor in the future evolution and viability of the UK Union.

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Ministerial standards in Westminster and beyond

Ministerial standards and the mechanisms for enforcing them have been in the news more than usual over the course of the last twelve months, making clear the limitations of the current rules and systems of regulating ministerial behaviour. In May, the Unit hosted an expert panel to discuss how the standards regimes work in the UK, and what reforms might be desirable. Dave Busfield-Birch summarises the contributions.

On 24 May, the Constitution Unit hosted an online webinar entitled Ministerial Standards in Westminster and Beyond. Unit founder Robert Hazell chaired the event, which had three distinguished panellists: Alex Allan, former independent adviser to the Prime Minister on ministerial interests; Susan Deacon, a former minister in Scotland who also sat on the Scottish Parliament’s Standards and Procedures committees; and Richard Thomas, a member of the Advisory Committee on Business Appointments (ACOBA), which advises ministers and senior officials on potential conflicts of interest when they take up appointments after leaving Whitehall.

This post summarises the main contributions of the speakers: the full event, including the lively and informative Q&A, is available on our YouTube page.

Alex Allan

Alex Allan started his contribution by offering a little bit of history about the ‘rather strange document’ that is the Ministerial Code. Something similar to the Code has been in place since the Attlee government, but perhaps the most significant changes came in 1995 when the Committee on Standards in Public Life (CSPL) produced its first report, and outlined ‘Seven Principles of Public Life’, which are commonly referred to as the ‘Nolan principles’.

Another significant change came in 2007, when the Brown government published a paper on the governance of Britain, which resulted in the creation of the role of independent adviser on ministerial interests, a title held by Allan from 2011 until his resignation in 2020. Where there is an allegation about the conduct of a minister that the Cabinet Secretary feels warrants further investigation, the matter will be referred to the independent adviser. However, most of the work of the independent adviser is of little media interest, and involves dealing with declarations of ministers’ interests, which are examined by their permanent secretary and the propriety and ethics team at the Cabinet Office, before being examined by the independent adviser.

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Can Boris Johnson stop Indyref2?

With the Scottish Parliament elections approaching, the Unit gathered together three experts to discuss the prospect of Boris Johnson seeking to block a second Scottish independence referendum, and how the Scottish government might respond to such efforts. Charlotte Kincaid summarises the contributions.

With the May 2021 Scottish Parliament elections approaching, and the recent attention on the continuing political conflict between First Minister Nicola Sturgeon and her predecessor Alex Salmond, eyes are very much on Scotland and the prospect of a second independence referendum (‘Indyref2’). Boris Johnson has said he would refuse a referendum, but is this possible, and what would be the ramifications? To explore the possibility of Indyref2 and how such a referendum would be brought about, the Constitution Unit hosted a webinar with three experts: Professor Aileen McHarg of Durham Law School; James Forsyth, political editor of The Spectator magazine; and Dr Alan Renwick, Deputy Director of the Constitution Unit. The summaries below are presented in order of the speakers’ contributions.

Professor Aileen McHarg

Professor McHarg explored a number of pathways to a referendum from a legal perspective. She first addressed if the UK government can prevent a second Scottish independence referendum: it can, and it isn’t required to agree to a Section 30 order, or amendments to the Scotland Act to enable Holyrood to legislate for a second referendum – as was the case for the 2014 referendum.

But can the Scottish Parliament legislate for a referendum without a Section 30 order? This is less clear. The SNP has marked its intention to unilaterally introduce a referendum bill with or without a Section 30 order if it wins a majority in Holyrood following the May elections. If the bill passed, it would be subject to legal challenge. If the bill were judged as beyond the Scottish Parliament’s competence, any referendum which followed would not have a legal grounding, and in Aileen’s view, the idea of a referendum was ‘a non-starter’. She described talk of a wildcat referendum – such as that experienced in Catalonia in 2017 as ‘entirely misplaced’. There would be questions concerning the legitimacy of a unilaterally-called referendum, even if it were ruled lawful by the Supreme Court; unionists may be unwilling to engage in such a referendum.

Another possible pathway, although unlikely, is Westminster legislating to dissolve the Union. This is possible because a referendum on Scottish independence is not a legal requirement of independence.

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