‘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’.

Continue reading

Scotland’s place in the Union will not be decided in the courts: only politicians can enable or prevent independence

Whether or not Scotland can legally hold a referendum without the consent of Westminster is a question that has provoked much debate. Ciaran Martin argues that the answer to this question does not really matter: regardless of the legality of any referendum, it is unrealistic to think that Scotland will leave the Union without the consent of Westminster. This makes the key question a political one, which the courts cannot resolve.

In mid-August I spoke at the Edinburgh International Book Festival about Scotland and the future of the United Kingdom. My theme was that when the constitutional debate resumes (which it will) after the post-Holyrood election lull, there could, and in my view should, be a debate not just on what independence means, but on what remaining in the Union means. This is a fundamentally different proposition than it was in 2014, and not just because of Brexit.

In 2014, the three UK-wide unionist parties (which, let’s not forget, at the time held 53 of Scotland’s 59 Westminster seats between them) were all evidently comfortable with devolution. Both the UK government and the broader Better Together campaign spoke of ‘the best of both worlds’ of an autonomous Scotland within a devolved UK. As the polls tightened, the response was ‘the vow’ of more devolution.

Things are different this time. In July, Welsh First Minister Mark Drakeford, leader of the most successful unionist party in any of the devolved territories, warned of ‘a Government that is instinctively hostile’ for the first time in the history of devolution. Sometimes such hostility is just blurted out; sometimes it becomes law, such as the constitutional land grab that is the Internal Market Act. Combined with the unworkability of fully federal models in the UK, this instability within the Union means that when Scotland is debating its constitutional future, the nature of the Union it’s being invited to stay in merits more discussion than last time.

Insofar as I thought any of my arguments would attract attention, it was this one. But instead, coverage emphasised a throwaway restatement of my long-articulated view that the Scottish government is likely (though I did not say certain) to lose any legal case brought against referendum legislation it seeks to pass in Holyrood in the absence of a Section 30 power agreed with Westminster.

Continue reading

A Scottish constitution: should it be devised before or after independence?

If voters choose independence in a referendum, Scotland will need a constitution. Elliot Bulmer argues here that there are advantages to creating and debating a new constitutional document before trying to navigate the choppy waters of becoming a separate nation.

Scotland and a written constitution

Despite being rejected in the 2014 referendum, Scottish independence has not disappeared from the political agenda. With a series of recent polls showing clear majorities in favour of independence, the question is sure to be revisited.

The Scottish National Party (SNP) has long had a policy of adopting a written constitution for Scotland. The party’s substantive proposals have remained remarkably consistent since the publication of a first draft constitution in 1977: a written constitution with an enforceable bill of rights largely based on the European convention, a unicameral parliament elected for fixed terms by proportional representation, and a parliamentary executive operating under a trimmed-down constitutional monarchy. In a nod to Harshan Kumarasingham’s description of India and Ceylon (as it then was) as ‘Eastminsters’, I have previously described the SNP’s constitutional plans for Scotland as a kind of ‘Northminster’ system: a Nordic-wannabe proportional variation of the Westminster Model that is infused by a desire to ‘keep up with the Johansens’, or Westminster-on-Forth, twinned with Oslo.

Continue reading

The origins of the Cabinet Office Constitution Unit (1974–79): documenting the pitfalls of constitutional reform

In 1974, the Cabinet Office established a ‘Constitution Unitfollowing a difficult birthing process, which operated until the election of the Thatcher government in 1979. It was this Unit that inspired our own founding Director, Robert Hazell, when naming the newly-formed Constitution Unit 25 years ago. As part of this latter Unit’s 25th anniversary, Joseph Ward examines its earlier namesake, its founding and work, and what lessons we can learn from its role within government.

The 1970s was a decade marked by rising distrust in Britain’s political institutions. Intransigent governing problems, from inflation to nascent nationalism, fuelled a narrative that Britain was in crisis. Commentators in both academia and the press talked of a crisis of ‘governability’, with the state seemingly unable to keep pace with the demands placed on it by the public. 

In response to these trends, the Wilson government(s) of 1964–70 and 1974–76 instigated a series of constitutional reform measures. After creating the Kilbrandon Commission on the Constitution in 1969, Wilson sought to revisit the findings of the inquiry once returned to government in 1974, creating a bespoke Constitution Unit within the Cabinet Office to implement proposals for devolution to Scotland and Wales in particular. This ‘Constitution Unit’ was the conscious inspiration for the name adopted by UCL’s Constitution Unit when it was founded by Professor Robert Hazell in 1995, and which is currently celebrating its 25th anniversary

This blog post examines a selection of the Constitution Unit records held at the National Archives to document how the unit came about and to consider the struggles within the state over its remit. The political turbulence of that period, especially after James Callaghan succeeded Harold Wilson in 1976, presented the Unit with many challenges, as did the magnitude of its task. The post concludes with some reflections on the origins of the Unit to consider any lessons it might hold for constitutional reform in the contemporary context.

Foundations: The Kilbrandon Commission on the Constitution

In response to significant by-election wins for Plaid Cymru and the Scottish Nationalists in the late 1960s, Harold Wilson set up a Royal Commission on the Constitution in 1969, tasked with examination of ‘the present functions of the central legislature and government in relation to the several countries, nations and regions of the United Kingdom’ (Cmnd. 5460: 32). Its course was characterised by turbulence and disagreement: the commission took 4.5 years to report, more than one member resigned before it completed its work and the initial Chairman, Lord Crowther, died in 1972 midway through the inquiry. 

Continue reading

Five key questions about coronavirus and devolution

_MIK4650.cropped.114x133

The coronavirus is a once in a generation event that has required an almost unprecedented response from government at all levels, from Westminster to West Lothian. Akash Paun argues that it has raised five crucial questions about the politics of devolution at a time when efficient and effective intergovernmental relations are crucial. 

Coronavirus has hit all parts of the UK and has required a comprehensive response by government at all levels – central, devolved and local. The crisis has raised (at least!) five big questions about devolution, intergovernmental relations and the politics of the Union:

  • Does the crisis show that the UK and devolved governments can cooperate effectively?
  • To what extent does devolution enable policy divergence between the UK nations?
  • How is the crisis affecting the operation of the devolved institutions themselves?
  • How is the pandemic response being funded – and with what impact on devolution?
  • What might this period mean for wider constitutional debates and the Union?

It is too early to give a definitive answer to any of these questions. But developments over the past few months already point to some preliminary conclusions, as well as identifying important lines of investigation for future research.

The UK and devolved governments can work together – at least in a crisis

One important finding, as the Institute for Government (IfG) recently concluded, is that the UK and devolved governments have shown the ability to work together well at various points over the past three months. Given the many disputes over Brexit, the Union and other matters in recent years, and the underlying weaknesses of the UK’s system of intergovernmental relations, it was far from a foregone conclusion that the different administrations would be able to cooperate at all.

But credit should be given where it is due. In early March, the UK and devolved governments published a joint Coronavirus Action Plan – a rare sighting of a government policy paper that was co-branded by the four administrations. There was close working too on the Coronavirus Act, which was drafted with significant devolved input before being passed at Westminster with devolved consent under the Sewel Convention. And devolved leaders participated in meetings of the COBRA emergency committee throughout this period, helping to ensure that major announcements, not least the imposition of the lockdown in late March, were coordinated between the capitals. Continue reading