Alex Salmond (for first minister) has today launched the “national conversation” – a debate about the constitutional future of Scotland. This runs alongside every Scottish and UK parliamentary election (where the constitutional issue rears its head in Scotland) and where the parties with independence as a principal policy have failed to attain cumulatively more than between one third and two fifths of the vote.
Central to the conversation is a white paper. The white paper (according to AS FFM) deals with all of the options and according to wee Eck is “the starting point and inspiration for that conversation”. In presenting the paper there are three options given: extension to the existing powers of the Parliament; retention of the existing powers; or independence. As one would expect an even-handed approach is taken to each of the topics.
Of most interest to a lawyer is the final chapter where the biggest problem with the entire project is – shall we say – skirted over. The powers of the Executive and Scottish Parliament are determined by the Scotland ACt 1998. This ACt provides that any bill which is put forward must be compliant with the scheme of devolution. If a bill is not on a devolved topic then it cannot enter the Parliament, never mind be passed. The 1998 Act provides that this is considered at at least two stages – first, the Presiding officer can prevent the bill entering the Parliament at all (a rule already exercised – probably inaccurately – when a bill which attempted to prevent the right of appeal to the House of Lords in civil court cases was rejected); second, the Advocate General (a UK government law officer) can – if a bill is passed by the Parliament – judicially challenge it before royal assent is given.
Part 5 of the White paper is summarised as follows:
“Enhanced devolution or independence would require legislation, probably at both Westminster and Holyrood. Substantially enhanced devolution would arguably, and independence would certainly, require the consent of the Scottish people through a referendum. Such a vote, while not constitutionally binding, has been accepted as the correct way of determining Scotland’s constitutional future. There must, therefore, be due consideration of appropriate forms of legislation for such a vote, and of the question of how a referendum could be initiated by the Scottish Parliament.”
That’s the headline (the bit read by political journos if they read any of it). Note the use of “probably” in the first sentence. The implication here is that this is something the Scottish parliament can do without Westminster. However, the substantive text makes clear (as the 1998 Act makes clear) that Westminster legislation is necessary (at paras 5.1 and 5.2). The chapter then goes on to have detailed consideration of a referendum question (see further below) and it is only at para 3 under the discussion of the draft bill that the argument in favour of the Scottish parliament having competence is made. The White paper argues that,
“The competence of the Scottish Parliament to legislate for a referendum would depend on the precise proposition in the referendum Bill, or any adjustments made to the competence of the Parliament before the Bill is introduced. At present the constitution is reserved, but it is arguable that the scope of this reservation does not include the competence of the Scottish Government to embark on negotiations for independence with the United Kingdom Government.”
Given the wide range of words in the appropriate Schedule to the 1998 Act reserving the constitution and matters pertaining to the constitution to Westminster’s legislative competence, this paragraph evidences the sophistry of the white paper.
The whole exercise is a waste of time. The white paper being produced by a party with around 1/3 of the votes, and 1/3 of the seats in the Scottish Parliament – a true minority adminstration (the qualifying adjective rarely appearing in the media coverage) which does not have a mandate for the project. The presiding officer is unlikely to give approval to the bill (given the precedent of rejecting a previous bill deemed to have constitutional import). And even if the bill is introduced it will inevitably be rejected by those parties that represent the majority of seats and voters.
This conversation with the nation is rather like those late night conversations one sometimes endures while waiting for public transport, as a drunk man (looking at thistles) harangues his audience to no effect.