![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
Constitutional Law and Scottish Referenda - you have been warned
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%.
no subject
no subject
Which is fine, since Scotland manifestly can't - the powers supporters of full fiscal autonomy (the difference, as I see it, between what the Calman Commission ( http://www.commissiononscottishdevolution.org.uk/ ) recommended and "Devo Max") would be asking for are reserved to the UK Parliament, and would require their assent to be transferred. It's up to the UK Parliament to decide how, when, and if, that would be done. Maybe they'd have a referendum?
no subject
I tend to agree with Wallace's interpretation.
I think I know the guy who wrote it.
no subject
no subject
no subject
no subject
I would (and will) suggest that the ballot should be a one question, three option ballot using Instant Run-Off voting.
no subject
no subject
no subject
no subject
no subject
no subject
no subject
Interested Observer (neutral or otherwise): You may find you have yourself a wee bit of bother with yon referendum. May be Ultra Vires et al an’ a’ that. Like as you’ll need a Judicial Review to sort that out, by the way.
Nationalist: I dinnae think so. Where’s your precedent and anyway The People of Scotland are Sovereign.
IO: Aye, well, Maybe’s Aye and Maybe’s Nay, that’s rather the point of a Judicial Review.
Nationalist: Traitor! Unionist Stooge. You are no Son of Scotia. You are Reviled.
I had one of them on twitter eventually concede that a case might be brought and would be resolved “in a day or two”.
It’s been irritating because
a) getting the referendum right and therefore any consequential change in constitutional status is too important to allow to be bogged down in close legal and constitutional review. If you want a referendum, be humble enough to get the legal basis right first time so we can discuss the substance of the issue and decide on merit.
b) I’m not sure I want to live in a country where the governing party elides support for its policies with patriotism. I don’t like it when the Tories do it and I understand my grandfathers didn’t much care for it when the fascists tried it in Spain, Italy and Germany.
c) This type of nonsense (i.e. when lawyers tell you may have a problem and you insist that there is no possible way that can be the case) makes the Nationalists look incompetent. Do I want to trust the running of my country to a bunch of yahoos who won’t read or can’t understand their laywers’ brief? Not much.
d) Getting this wrong hands the tactical initiative over to the Unionists. They can derail the process at will. The Scottish electoral system is designed to avoid one party majority governments so the SNP can expect to lose power at the next election no matter how well they do in government. Why risk having the referendum delayed so that either the SNP are out of government and the referendum is shelved or the Scottish Government negotiating independence is a Lib-Lab coalition?
no subject
First, no one ever said that Holyrood could hold a legally binding ref. All this claim of rights buff just makes the government embarrassed -the only people mentioning it on Friday were students. You're alot closer to the action than I am, but the consultative ref seems to be a dead issue now that a section 30 derogation has been offered.
Second, the consultative referendum option isn't legally cut and dried - it could be questioned in court, but so could a lot of things (action to enforce the Tobacco Advertising Restrictions Act has been derailed because of a challenge from the tobacco companies). Raising that threat is political manouvering from the Unionists.
Third, the Unionists will always be able to derail the process, directly or by proxy. However, if they do then they'll suffer a huge political backlash.
And lastly, I guess, the shape of the ref is going to be established over six months or so. Humbleness would seem a premature negotiating stance against Goliath...
no subject
Maybe no one did claim they could hold a legally binding referendum but they certainly claimed they could hold a consultative referendum and that's clearly not cut and dried.
When I say humble I don't mean humble when negotiating with the Westminster government I mean humble when discussing the matter amongsth themselves. Think you in the bowels of Christ you might be wrong style of humility.
The organised Unionists may well try to derail the process. Disorganised Unionists almost certainly will. How can anyone tell them apart.
I'm not sure that the political backlash would be that great or that effective. With about a third of the population against indepedence a significant slice of the population might well be quite pleased the referendum being derailed.
For the backlash to be effective people have to remember it when they vote and then think it an important enough issue to sway their vote. If the Unionist pettifoggers managed to push the referendum date out beyond the life of the current Scottish Parliament we're talking 2016. Will the failed referendum be a top ten electoral issue? Maybe, but if I were an electoral strategist for either the SNP or the Yes campaign I'd not want to bet on it when I could (if I were a little humbler) close off the issue.
The SNP have previous on having their "clear cut" legislation end up in legal difficulties.
no subject
Worth mentioning, while we're doing the masochism tango, is that Parliament can't bind itself - it could as easily overturn a Scotland (Independence) Act as any other piece of legislation.
In practice, though, that won't happen.
Could God make a weight to heavy for him to lift? No, because he wouldn't.
I think that's the same reason that the referendum will happen in 2014 - no one wants it hanging over into the next administration.
no subject
I’m certain you’re right, the politic will trump the legalistic – so long as no one asks the judiciary when they haven't yet had lunch.
I am assuming that a Scottish (Indepdence) Act would dissolve the Parliament of the Union and therefore the successor body wouldn’t be able to repeal acts over which it had (and never has had) jurisdiction.
I’m not so sure that no one wants the referendum hanging over until the next administration.
I reckon there could be a good few concerned citizens in the Unionist camp who would want to disrupt the process and hope that delay now will mean further delay in the future and there may be a few in the Nationalist camp who would want to see the referendum shelved if the wrong question was asked. In understand that there is some debate in the SNP on the strategy of the referendum questions. Some thinking that Devo Max now with a further referendum in 10-15 years is fine with others thinking that a straight Yes could win but only if Devo Max isn’t on the ballot. If I were them I’d take the likelihood of Devo Max now and an option on Independence in 2025.
I was thinking about a likely Unionist stalking horse for a legal challenge to the referendum and decide that the perfect candidate would be someone like thee or me. Not a known partisan of the SNP or even a known Nationalist, broadly sympathetic to the Yes campaign but reluctantly discovers we’re disillusioned with the flagrant flouting of the rule of law and the constitution and doesn’t like the uncertainty of a confused legal situation. I’m going to keep my eyes open for someone in Tweety Blogging World who is positioning themselves to be just the person to be bought off for a substantial contribution to a charity of his choosing.
no subject
no subject
And welcome to my world...
no subject
no subject
no subject
The Conservatives, and the clue in is the title I guess, think the constitution is fine. Labour have proven, at best luke warm on the subject (and subsequently have lost my vote indefinately). The Liberal Democrats seem genuinely more up for the conversation and some constitutional change but they've damaged themselves electorally and will probably not have much influence in the UK for a couple of elections and they are always going to be part of a coalition so will have to take what they can get in the way of Reform.
Hey ho.
no subject
I think the "Aha! Gotcha" attitude in Holyrood yesterday about "If 99% vote for DM and 51% for Independence, what ya gonna do, huh, huh?" shows the level of sophistication our elected representatives have re anything which is not first past the post...
no subject
Fortunately the Scottish electorate has proven itself willing to fulfil its side of the Darwinian experiement to evolve a politician capable of thinking in analogue rather than binary by booting MSP's out in large numbers.
I think if we find ourselves in the position where the electorate have given an ambiguous answer then clearly our politicians have failed badly by asking the question in a foolish way.
The answer is to use instant run-off voting.
Or to be really clear about hwo the order of the questions affects the result.
no subject
So long as we can do something a little cleverer with a Bill of Rights than "...ill-defined gender based parenting roles and a vague promise of some form of fruit based bakery product..."