f4f3 | Constitutional Law and Scottish Referenda

This isn't something I'm going to write about much, or often, and I'll try to keep it on a fairly high level.

I was invited along to a talk by Jim Wallace, (that's James Robert Wallace, Baron Wallace of Tankerness, PC, QC, Advocate General for Scotland to you scruff) on the subject of his advice to the UK Government on the constitutional ability of the Scottish Parliament to hold a referendum on the subject of Scottish Independence.

It was an interesting performance - Wallace is a politician, part of a government pledged to oppose Independence. He's also the UK Government's senior legal representative in Scotland. So he pledged to take off his politician's hat and replace it with his advocate's wig. In the words of the well known Scottish double positive, "Aye, right."

The law on Holyrood (the Scots Parliament) holding a legally binding referendum on independence is quite clear, and, I think, undisputed: they cannae. That parliament is set up under a stature of the UK parliament, and constitutional matters are specifically reserved to the UK Parliament.

More interesting is the question of whether Holyrood could organise a consultative referendum, and then open negotiations with Westminster over independence. This was the SNP's position at the last Scottish election, where they gained a majority.

Wallace's view is that would also be outwith the power of the parliament (ultra vires). He offered the test of "purpose", which would allow any legal challenge to the validity to look behind the words used, and decide that the common sense interpretation of the law would be that the Scottish Parliament would be seeking to consult on a reserved matter.

Interestingly, he then went on to point out that a legal challenge could be raised by any interested party, and that a recent case in the Supreme Court has widened the definition of interested party so that just about anyone affected by the referendum could challenge.

That amounts to a shot across the bows of the Independents, and practically an incitement to anyone who's inclined to raise an action and block the referendum.

He then moved on to discuss how a referendum could be made legally binding. This would either be held by the Westminster Parliament directly, or it could be derogated to the Scottish Parliament (provision is made for this in the Scotland Act, Section 30). That isn't quite a straight-forward process: an enabling bill would need to pass in the Lords and the Commons. I can imagine a lot of grand-standing by Unionist opponents during that passage.

That's on offer to the Scottish Parliament just now. And round about now, we passed out of law and back into politics.

The Unionist parties want to set conditions on that transfer of powers, to limit how they can be used by the Scottish Government.

So far, four main issues have arisen:

1. Timing of the referendum: Westminster wants "as soon as possible", Holyrood wants Autumn of 2014.

2. Body to oversee the referendum: Westminster wants the UK Electoral Commission, Holyrood wants a Scottish body established to do the job.

3. Who should be eligible to vote? Westminster would go with the electoral roll, Holyrood has promised to extend the franchise to 16 and 17 year olds

4. What should the ballot paper say? Westminster wants one question, Independence or Status Quo, Holyrood has registered Scottish support for a third option, staying in the Union with increased powers.

Basically, we're down to horse-trading over these issues.

Wallace didn't say much about Timing - I think they're giving that one to Holyrood.
Salmond has now come out and said the Electoral Commission aren't necessarily the wrong body to oversee the referendum - that makes one apiece (I'd say 1 was a bigger deal than 2, and make this a Holyrood victory).

The other two are interesting. Extension of the franchise was a Lib Dem policy at the last election. They'll look a bit awkward opposing it. The third question, or "Devolution Max" has never been an SNP policy - it was actually floated by the Scottish arms of the Unionist Parties as an alternative to an Independence Referendum. My view, at the moment, is that Holyrood will swap Devo Max for extending the franchise - if a referendum is lost on a Friday, Devo Max will be back on the agenda on Monday. And many more young people support independence than are against it, so the extension of the franchise is a bigger win.

There is no legal reason to put any limitation on a Section 30 derogation - watching the politics will be interesting. My view is that so far it is going all Holyrood's way - they are being given a legal right to do something they couldn't do legally, and they will retain control over the timing - something that is likely to play out in their favour.

In return for giving away these two huge advantages, Westminster is getting to use the Electoral Commission - not a huge win. So far, Westminster intervention in the process is playing well in England - showing the Bolshy Scots who's boss, showing some English steel, and disastrously in Scotland. In other words, playing very well to 90% of the audience, and abysmally to 10%. Only problem is, the 90% aren't eligible to vote. In a reversal that makes obvious why I support Independence, the voice of the 90% will not over-rule the voice of the 10%.