Conjuring tricks, legislative competence, and referenda

As a child I was taken to a magic show, where the conjurer practised close-up magic. He’d wave the cards in front of you, and wonder of wonders you’d miss the sleight of hand. Until he tried it with a small boy who saw that the conjurer held two cards together pretending they were one.

What does that have to do with politics, though?

Well, a little while ago I noted how ignorant certain journalists were on matters relating to human rights – meaning that the incoherent Conservative policy escaped scrutiny during the election campaign. Scottish journalists are not exempt from similar criticisms. Too often the framework within which the Scottish Parliament operates is ignored when the political dimension of the Parliament is considered. The ignoral is a mistake. Smoke, mirrors, bluster, and crashes and bangs are classic distraction techniques – designed to draw attention away from the real position. Journalists and those scrutising our politicians should try not to be distracted.

The Scottish Parliament was not born free. It is a statutory creation, its powers circumscribed by the legislation establishing it. The Parliament, and the Scottish government (the executive within the terms of the Scotland Act 1998) can only act in accordance with the powers conferred upon it by the Scotland Act 1998. This was apparent before the Parliament was established. The restriction confirmed by the courts in Whaley v Lord Watson 2000 (later confirmed by the House of lords).

But the restrictions on the Parliament are sometimes forgotten (caught up sometimes in confusion between and conflation of the Westminster and Holyrood legislatures – Westminster notionally being the beneficiary of a doctrine of parliamentary supremacy (an English concept the Scottish courts reject as an absolute). And this means that pledges and promises made by Scottish parties in Scottish campaigns are therefore questioned only on a political basis without adequate scrutiny of whether a proposal can actually be implemented.

Consider for example a saga that began 3 years ago. In August 2007 the Scottish government issued the white paper that formed the centrepiece of the “national conversation”. This white paper proposed the holding of a referendum on scottish independence and included a draft bill to that effect. The period since then has seen much consultation, more detailed bills (pursuing the same central objective) – but the legislation has not been forthcoming.

Three years ago I suggested that legally (within the context of the Scottish parliament) the national conversation was hanging on a shoogly peg. I noted the following,

” 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.”

And suggested that,

“The presiding officer is unlikely to give approval to the bill (given the precedent of rejecting a previous bill deemed to have constitutional import). “

I suggested that the white paper engaged in elaborate sophistry as the legal problems inherent in the constitutional settlement were ignored, or downplayed with qualifying words.

While there has been toing and froing on the referendum I have been waiting for the inevitable. My view was that no bill would be introduced into the Parliament because a bill on the topic cannot fall within the legislative competence of the Scottish parliament. I expressed this view in blog comments in various places on the net (eg here). Imagine my astonishment yesterday then when the Sunday herald broke an exclusive story indicating that the referendum was being shelved.

The Sunday Herald report is an interesting one. It focuses on the fact that Mr Salmond believes that the bill will be voted down and therefore the bill will not be introduced. That political angle is the one that has been followed up in the reports yesterday and today (BBC, Brian Taylor, Scotsman). And it is the political element that has been followed up by bloggers (including the team at the excellent new Better Nation blog, Joan McAlpine, Colin Fox, and burdzeyeview,)

However, hidden away in paragraphs 14 and 15 of the Herald report is the news that most lawyers interested in the area expected to see:

“SNP sources also said the First Minister revealed there were legal problems surrounding the wording of the referendum question.

This related to talks between the Government and the Parliament’s Presiding Officer, who has to rule whether a Bill falls within the powers of Holyrood.”

This is no surprise, but will form the focus of this post as it has been ignored elsewhere.

During a previous session of the Scottish Parliament SNP MSP Bryan Adam proposed a Civil Appeals (Scotland) Bill which would have abolished the right of appeal from Inner House of the Court of Session to the House of Lords. The presiding officer (on his legal advice) ruled the bill fell outwith the competence of the Parliament. The justification was that the bill would have had an impact on the general constitutional reservation found in Schedule 5 to the Scotland Act 1998. If something which proposed to regulate an aspect of the legal system (against the context of the general devolution of matters relating to the courts, court procedure, and private law) is outwith the competence of the Parliament – then a bill which is about entering negotiations for the establishment an independent nation with its own legal system and legislature (or the break up of the United Kingdom, depending on your political preference) seems bound to have an impact on the United Kingdom Parliament (one of the matters on which legislation is expressly reserved to Westminster and on which the Scottish Parliament has no competence) and accordingly it would seem likely to be ruled by the presiding officer’s legal advisers as falling outwith the legislative competence of Holyrood.

I think that establishing that a bill on a purely constitutional matter falls within the legislative competence of the Scottish Parliament will be a difficult task. Schedule 5 of the Scotland Act seems pretty clear.

However, I was somewhat surprised today to read a post from the excellent Joan McAlpine that suggested that matters could be dealt with without a bill. Dr Matt Qvortrup – a senior lecturer in international relations and ” described by the BBC as the “world’s leading expert on referendums”” had written an article for the Herald during the summer. Dr Qvortrup wrote what, to a lawyer interested in the constitutional position, is a startling piece.

He opined,

“The referendum can be held after a so-called Order in Council, or by a Scottish Statutory Instrument (SSI). That is to say, the First Minister can decide to simply use his executive powers to have a consultation.”

Joan McAlpine, relying on the article, writes,

“Politically, such a move could put the Holyrood unionist opposition and the coalition Westminster government in a very tricky situation. If this consultative exercise included a devo max option alongside full independence, the outcome would certainly be a majority of Scots opting for radical change. That would put the SNP in a powerful position going into the 2011 election and, afterwards, if they formed a government. Whatever happened, the flawed Calman proposals would be holed below the water.

I am aware that this a sharp-intake-of-breath suggestion.  The opposition could sink it with a no confidence vote. Would they dare? If they did, the issues at stake would be made very clear indeed. It should at least be examined.”

Dr Qvortrup’s proposition is startling to a lawyer because it is flawed in two fundamental respects.

First, Orders in Council or statutory instruments are examples of delegated legislation. The right to grant executive orders is (as are the powers of the Scottish Parliament itself) circumscribed. There are no general rights to legislate as an executive wishes. A government minister cannot decide that I would like to pass laws which require people to do X. A power so to legislate is required. A quick look at the Scottish statutory instruments demonstrates this. Each narrates the power under which the statutory instrument is made. Delegated legislation then involves the delegation of a power to legislate to the executive and any subordinate legislation (such as an Order in Council or statutory instrument) which is laid by the Scottish government has to be laid in the exercise of a legal power delegated to the government. I can find no legal power to hold referenda delegated to Scottish ministers. None is referred to in the leading modern Scottish texts on constitutional law. Additionally, I have trawled material from pre-devolution (where certain powers delegated to ministers are now delegated to Scottish ministers); have examined material in Scottish and British writings on constitutional law to determine if there would be such a power delegated under prerorgative powers (I can find no such power); and have looked at post-devolution legislation from the Scottish Parliament and Westminster and can find no such power. If there is no such power delegated there can be no Order in Council or statutory instrument. I accept that such a trawl will not have been exhaustive. However, this leads to the second flaw in Dr Qvortrup’s position.

Delegated legislation is not automatically waved through. Just because a minister says something does not mean that it becomes the law. The procedure for consideration of delegated legislation is set out in rule 10 of the Standing orders of the Scottish Parliament. Delegated legislation either requires affirmative procedure (meaning it requires the approval of the Parliament) or if it is not subject to affirmative procedure can be annulled.

Let us assume that contrary to my researches Dr Qvortrup is right and a power to legislate to hold a referendum has been delegated to Scottish ministers. Let us assume as well that this fictitious power does not provide that any statutory instrument or Order in Council has to be approved affirmatively. Dr Qvortrup bizarrely suggests that

“In Scotland’s case, the only option open to the Opposition would be to table a motion of no confidence in the administration.”

Sadly for Dr Qvortrup this is palpable nonsense. The position is set out in rule 10.5 of the standing orders:

“1. In the case of any draft instrument laid before the Parliament where the instrument may be made without the approval of the Parliament, any member (whether or not a member of the lead committee) may, no later than 40 days after the draft instrument is laid, by motion propose to the lead committee that the committee recommend that the instrument be not made (or, in the case of a draft Order in Council, be not submitted to Her Majesty in Council).”

This is not a motion of confidence in the government (with all of the implications involved therewith). This is simply a motion to annul (or a negative resolution) which would be dealt with and may be voted on in the normal way. Any member could make such a motion – from the humblest backbencher.

The political implications of holding a referendum are also considered by Dr Qvortrup.  But until he – or one of those advocating the circumventing of Parliament by executive power – can point to a power that would entitle the Scottish government to lay delegated legislation and do this – and which would circumvent rule 10 of the standing orders, I suggest that no referendum can competently be approved by the Scottish Parliament.

The central plank of the SNP manifesto then will be a policy they cannot implement within the confines of the Parliament they are running for (although of course politically, an SNP majority vote would make any demand for such a referendum to be passed by Westminster politically impossible to resist).

Edited on 7th Sept at 4.45 pm to note the excellent response from Lallands Peat Worrier on the legality of the referendum bill. I disagree, but I think it is important that the argument is heard and engaged with by both sides. The failure of both sides to do so thus far (and journalists to scrutinise) says much about our system.

This is the first in a series of three pieces on legislative competence: the second (looking at the reservations in Schedule 5 of the Scotland Act 1998) is here; and the third (on the Hansard debates on the Scotland Bill) is here.

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About loveandgarbage

I watch the telly and read when not doing law stuff and plugging my decade and a half old unwatched Edinburgh fringe show.
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15 Responses to Conjuring tricks, legislative competence, and referenda

  1. James says:

    Fascinating, yes. The joys of an uncodified constitution. And thanks for your kind words.

  2. burdzeyeview says:

    Great post, adding something different – the prosaic truth perhaps? – to the debate. And I learned something about Scottish Parliament procedures! Though still wouldn’t pretend to understand the difference between affirmative and negative SSIs….

    If you are right it makes the whole thing much more complicated. Say, the SNP win most seats in 2011 on the back of promising an independence referendum, surely we are still stuck with the same problem ie the Parliament has no legislative competence to introduce such a bill.
    And if the legal issues have done for a bill this time round, why not just say that – and blame London/Westminster/the Unionists for never allowing the people a say on their future – rather than risk the criticism being levelled in some quarters cf Better Nation “the bottler from Banff”.
    Ah, an intrigue…. the murkier the better….

    • Thanks.
      Whether a statutory instrument requires affirmative or negative procedure is usually determined in the legislation which confers the power to act (for example, during the Crofting Bill debacle where the deputy presiding officer apparently didn’t hear objections from the government minister who had objected to every opposition amendment, the controversy involved the insertion of an obligation to use affirmative procedures for some parts of the legislation).
      I have no idea why the legal issue is skirted over. I would have thought that it was politically an easier thing to sell.

    • One thought. Why not say the legal position has ruled it out? If – as I suggest – this was virtually inevitable from the day of the publication of the white paper in August 2007 this means that every penny spent on the project has been money spent on something that the government had no legal power to do. That might be politically problematic.

  3. Malc says:

    Scott,

    Cracking stuff. And factual too – stuff politics doesn’t often do! In fairness, the constitutionality of the thing is something we all should look at more closely, but we’re all too focused on the political aspect. Either way (in my view) it doesn’t look good for the SNP.

  4. Alex says:

    Excellent article, thoughtful and well researched.

    However, I think the smoke and mirrors are still at play, insofar as Salmond doesn’t believe the SNP can win a plebiscite at this moment. Next year, when the cuts kick in and 60,000 or so public sector workers, plus a similar amount from the private sector find themselves unemployed, the anger may be pointed in the direction of Westminster. Then, the SNP has a chance of carrying at least so-called Devolution Max past the winning post. I believe this to be the only reason for the postponement.

    While legally any referendum may well be deemed illegal, it would be irresistible in terms of realpolitik. The 1989(?) Strathclyde Regional Council referendum on water privatisation was not in any way legal or binding, but the Thatcher government held back from privatising Scottish Water, the only part of the UK where that was the case.

    If the SNP are re-elected in 2011, majority or no, a referendum will come, by ‘legal’ means or not.

    • If the SNP are re-elected in 2011, majority or no, a referendum will come, by ‘legal’ means or not.

      I have difficulty in seeing how this can be carried out by Holyrood. I also think that Ideas of Civilisation makes a good point this morning in the final paragraphs of this.

  5. Alex says:

    I think you may be looking at this rather dogmatically. If Scottish independence does come along it will be as a result of an ongoing process, not because people are storming Holyrood demanding their rights. It will not come as a result of people being politicised and enthused in a manner which is presently unthinkable. It will be attained, if at all, by dint of a referendum which may or may not be an issue of priority to the Scots as an electorate.

    Personally – and I do have a degree of experience in matters economic – I think it would be mostly beneficial to the people of Scotland with some fundamental disadvantages. The benefits would be primarily financial, the disadvantages diplomatic. Oil is a side-show, with very little to contribute beyond a sovereign fund and (possibly) turbocharging infrastructure investment, though given Scotland’s limited labour resources, this is unlikely to be achieved without considerable immigration which in itself would place strains on resources which in turn would necessitate the rapid loosening of planning laws.

    Beyond that though, the manner in which the question is asked is largely immaterial. Holyrood has been structurally hamstrung, understandably perhaps, by Westminster, in terms of what it can do. That doesn’t mean to say that they will hold back from simply asking the Scottish public their opinion. If the Unionist parties were to take legal means to prevent that from happening, realpolitik would again trump procedure. “You’re afraid of asking the people a mere question?”

    Prognosticating, I doubt we’ll see independence any time soon. Though I do think we’ll see full devolution, as it’s in the interests of the gradualist SNP, the Tories (they can cut further Scots MPs), the Greens and the LibDems who have a long-standing commitment to full Home Rule. Labour? Probably not the MPs, but possibly the party members. In politics, everything is built on sand bed foundations, ‘legal’ or not.

    • The trouble with the realpolitik is that there are 2 possible pre-legislation checks on any proposal: (a) the presiding officer; and (b) the Advocate General; and thereafter once passed the propsect of judicial review by any interested person (on a bill such as this that could be anyone with the money).

      As a humble lawyer the politics of these things is beyond me.

  6. Pingback: Scottish Guest Law Review: A matter of Independence « Charon QC

  7. Alex says:

    Ultimately, realpolitik will trump legal nicety.

    In fact, if the SNP get a decent result in May, they probably won’t even need to legislate to hold it. They may not call it a referendum, they may call it a consulting exercise, it may or may not be legally binding, but you can bet your last penny piece that if the result swings Yes, Scotland will be independent, if it swings No, the issue will be comatose for thirty years and the SNP will become a Devolution Max party.

    I’m married to a mere lawyer, so fully understand the need to trawl through the minutiae, however I shall sign off with a true story. A business colleague once explained to me how his Cayman Islands bank did certain things, things which I suggested may not be wholly legal. He shrugged, and explained that in his former career he was a pilot. The rulebook covering the procedures for taking off and landing ran to three volumes and over 2000 pages. “Before any time I took a plane up in the air, I was pretty sure I would break at least a third of those rules…”, he said. “…but at some point, you need to fly “.

    • I’ve enjoyed your comments. The post from Lallands Peat Worrier (now linked to in the post) is well worth a read (as are the comments).
      He takes a much more robust line than the one I suggest.

  8. Pingback: Why the referendum bill falls outwith the legislative competence of Holyrood | Love and Garbage – some commonplace musings

  9. Pingback: BREAKING: man shocked and stunned that referendum is outwith competence of Holyrood | Love and Garbage – some commonplace musings

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