The referendum and legality: the parliamentary debates

Over at the blog post on Lallands Peat Worrier commenter, Indy, has argued persistently that Hansard offers the legal justification to the SNP in supporting the holding of the referendum.  Indy’s argument is,

“Regarding the passage of the Scotland Bill, my recollections are clearly blurred but nevertheless the issue of whether the Scottish Parliament was able to hold a referendum was discussed at the time the Bill was with the House of Commons and with the Hourse of Lords. There will be a record in Hansard. Presumably if any individual tried to challenge the competence of the Scottish Parliament to hold a referendum the intention of the legislators who drew up the Bill would have some bearing.”

I agree with that – the intention of the legislators does have a bearing on the interpretation of ambiguous provisions. That is the import of the decision in Pepper v Hart [1993] AC 593 (a case accepted into Scots law) which provided that in interpreting ambiguous provisions of legislation one can look at the views of the promoter of the bill (and where the legislation is a government bill that then means looking at the view of the government minister).

Let us then consider the views of the government minister who piloted the bill through the Lords (Lord Sewel). On 21st July 1998 in the House of Lords debates an amendment was put forward to put the question of referenda expressly into the bill (amendment 174 moved by Lord Rowallan). The amendment was not passed – and in response rejecting the amendment (and clarifying the meaning of the constitutional exceptions in what became paragraph 1 of Schedule 5 to the Scotland Act 1998 Lord Sewel said (at column 854) the following,

“I return now to the issue of substance—the holding of a referendum on independence. I wish the Committee to be in no doubt that as the Bill stands the Scottish parliament will not be able to legislate to hold a referendum on independence as the union of the kingdoms is already a reserved matter under Schedule 5. Explicit reference along the lines proposed by the noble Lord, Lord Rowallan, is just not needed.

In determining what relates to a reserved matter, the government amendments tabled to Clause 28 are of help here, because they indicate that we must look at the purpose of what is being done. If the parliament passed an Act to hold a referendum about whether the Union should continue, it would thus clearly be legislating in relation to the reserved matter of the Union. Any such Act would be about the continuation of the Union and it would therefore be beyond the parliament’s competence and would not be law.

855 Perhaps I may go through the three steps that lead to that conclusion. First, the parliament cannot legislate if the provision relates to a reserved matter. That is Clause 28(2)(c). Secondly, the Union of the Kingdoms of Scotland and England is a reserved matter by virtue of paragraph 1(b) of Part I of Schedule 5. Finally, legislation for a referendum on independence would be legislation about whether the Union should be maintained and would therefore relate to the reserved matter of the Union, and so be beyond the competence of the parliament. That is brought in by the purpose test which we discussed earlier.

I hope that Members of the Committee will be absolutely assured that the parliament does not have the legislative competence to legislate in order to provide for a referendum on independence. On that basis, I hope that the noble Lord [Lord Rowallan] will be able to withdraw the amendment.”

On that basis the amendment was withdrawn.

If there is any ambiguity in the provision we can turn to Hansard. The position of the legislators was therefore clear. The holding of a referendum on independence was intended to fall outwith the legislative competence of the Scottish parliament. 

It is absolutely clear then that the centre-piece of the SNP manifesto will be a demand for a referendum that the Parliament they are standing for cannot competently pass.

Now that I’ve done the work for the journalists perhaps they might start asking questions about it?

(This is the third in a series of blog posts on the legislative competence of the Scottish parliament. The first is here; the second 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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16 Responses to The referendum and legality: the parliamentary debates

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

  2. Scott,

    Here’s a references from Hansard which predates by over a year Lord Sewell’s remarks in reference to amendment 174:

    4 June 1997:

    Donald Dewar: “Although the hon. Member for Banff and Buchan is in favour of a multi-option referendum as a general principle, when it comes—if it ever does—to the point where he wishes to implement a specific constitutional scheme, he should put that to the people of Scotland in a single-question referendum to get it endorsed”

    http://hansard.millbanksystems.com/commons/1997/jun/04/or#column_434

    Since parliamentary arithmetic precluded the prospect of Alex Salmond ever being able in the House of Commons to pass the necessary referendum bill for such a vote to take place, then in what forum exactly, if not in the Scottish Parliament, was this to take place?

    Donald Dewar could, I suppose, have spoken loosely or unwittingly misled the House regarding the scope of the Scottish Parliament to hold a referendum – something I consider unlikely. He could also have been deliberately acting in bad faith, knowing he had to make such assurances before SNP support for the ‘Yes, Yes’ campaign which had yet to come could be secured – again, I’d venture, unlikely.

    Lord Sewell could himself have been speaking loosely. Alternatively, of course, his government might simply have wanted to be shot of an unwelcome amendment which, if passed, would in the atmosphere of the time, have further boosted an SNP already riding high in the polls, and offered a groundless assurance to Lord Rowallan on this point in order to do so. But however you slice and dice it, it’s clear that Lord Sewell’s public interpretation of the proposed powers of the Scottish Parliament in relation to a referendum was significantly at variance to that of his boss at St Andrew’s House.

    In any case, the SNP has always recognised that a referendum which sought consent to either anull the Act of Union, or which sought to transfer the powers reserved under Shedule 5 of thw Scotland Act, was always going to be a non-starter, as both courses of action would have been precluded under the terms of the Act which established the Parliament.

    That’s why, in the finest traditions of British Democracy, they sought a consultative referendum (can there be any other kind in the UK?), which would not of itself have led to independence, but would instead have authorised Scottish Ministers to enter negotiations with the UK Government. Since Scottish Ministers can discuss whatever they like with their UK counterparts, and there’s clearly nothing to stop the Scottish Parliament holding a referendum on matters which are within its competence, its seems quite clear that this circumvents Lord Sewell and his, until that point, alien argument.

    It was this approach which led some [well, Jo Eric Murkins of the LSE] to argue that a second referendum would be necessary to ratify the terms of independence once negotiations were complete (the ‘are you sure?’ argument).

    But let’s return to July 1997, and to one exchange in particular between Alex Salmond and Donald Dewar:

    24 July 1997:

    Alex Salmond: “Will the right hon. Gentleman reiterate that nothing in the documents [the forthcoming White Paper], or in any response that he will give, will interfere in any way with the sovereign right of the people of Scotland to determine their own constitutional future, whatever that may be?”

    Donald Dewar: “If I did try to build such barriers, they would be futile and without effect. At the end of the day, in practical politics, what matters is what people want.”

    http://hansard.millbanksystems.com/commons/1997/jul/24/scottish-devolution#S6CV0298P0_19970724_HOC_136

    Dewar’s argument that “at the end of the day, in practical politics, what matters is what people want”, represents a ‘slam dunk’ for the political and moral principals. As for the legal principals, it’s clear that Dewar was not opposed to the Parliament holding a referendum if that was its will, and that his view was that the result of that vote should be respected. If we’re looking to Hansard to guide us in our interpretations of the law, his sentiments ought surely to be accorded greater weight than those of his deputy.

    • Very many thanks for these Richard.

      I am not sure they deal with my point. I’ve been looking at the legal position. Reference to Hansard in the interpretation of statutes is permissible in relation to ambiguities, but what is referred to in hansard in the passages you quote is not discussion in relation to the Scotland Bill itself. These are observations in relation to the white paper which preceded the Scotland Bill. They are not in the debate on the Scotland Bill itself and for the legal position that is crucial.

      The rule in Pepper v Hart is as follows:

      “the exclusionary rule should be relaxed so as to permit reference to parliamentary materials where: (a) legislation is ambiguous or obscure, or leads to absurdity; (b) the material relied on consists of one of more statements by a minister or other promoter of the Bill together if necessary with such other parliamentary material as is necessary to understand such statements and their effect; (c) the statements relied on are clear.” (Lord Browne-Wilkinson at p 69 of the [1993] 1 All ENgland Reports report of Pepper v Hart.

      This is the test that has been adopted by the Scottish courts.

      Pepper has never been used in relation to Hansard statements before the passage of the bill. Dewar’s remarks relate to the period before the Scotland bill itself – when the actual drafting of the bill, and the formulation of policy, had not been finalised. The position as stated in the 1998 Lords debate is parliamentary consideration on the specific point (Lord Rowallan’s amendment) from the promoter of the bill (the minister giving the view on the intention of Schedule 5) and is clear. This is the passage from Hansard a court would rely on. The 1997 comments would fall outwith the scope of the Pepper v Hart rule.

      I have taken a bald position in the blog posts that the Presiding officer could legitimately declare a referendum bill outwith the competence of the Parliament and a court could strike down any bill passed as ultra vires – either before royal assent or after. The purpose of the posts has been to indicate that this is not cut and dried, that the legal question is clearly arguable, to bemoan the poor quality of our media in not actually asking the question (and then asking the broader question on whether it is acceptable that the Scottish Parliament is precluded from makinng this bill – as I have mentioned in comments elsewhere in my reply to Mr Hassan on my second post – I do not see how this very statable legal position operates as a political disadvantage to the SNP).

      I accept the strength of the political argument, but the purpose of these posts has not been to address the political and/or moral arguments. These are dealt with in great detail elsewhere, and I’m not sure that I’m the best person to consider them. However, the law is something I do know a bit about. And the silence around the complexity of the legal position has, in my view, said a great deal about the quality of public discourse in Scotland. There is no slam dunk answer either way on that (as the estimable Peat Worrier has demonstrated in his counter-arguments, and as he (and I) acknowledge in our posts and comments – I trust you forgive the rhetorical devices proclaiming things certain and clear in our legal arguments). The issues need to be properly aired. They haven’t been. And the electorate (and party memberships across the board) are ill-served by pretending that things are absolutely clear.

      Best wishes
      Scott

  3. “what is referred to in hansard in the passages you quote is not discussion in relation to the Scotland Bill itself. These are observations in relation to the white paper which preceded the Scotland Bill. They are not in the debate on the Scotland Bill itself and for the legal position that is crucial.”

    Hi Scott,

    I accept this. Perhaps I could buttress my argument by referring to other Hansard excerpts from the passage of the bill itself.

    This bit doesn’t help my argument, since it refers to a Westminster organised referendum. However, it’s at least of passing interest to note that even if he didn’t before, by July 1998 Lord Rowallan supported the holding of an independence referendum:

    http://hansard.millbanksystems.com/lords/1998/jul/08/referendum-on-scottish-independence#column_1301

    This quote from Lord Sewell himself on 8 July 1998 I think assists my case greatly, or at the very least, cancels out his earlier stance:

    “I disagree with my noble friend Lord Ewing of Kirkford. I do not think that institutions should be established in order to prevent certain political objectives from being achieved. Like my noble friend, I am totally opposed to the idea of nationalism as a political creed and to separation as a policy objective. But I do not think that it is right somehow to construct the institutions of the parliament to prevent that. Again, I am prepared to put my faith and my confidence in the people of Scotland. At the end of the day, I have to acknowledge that, if the people of Scotland, through whatever process is decided appropriate, opt for independence or separation, then that is their right and I have to accept it, although I disagree with it. We do not get anywhere by trying to construct institutions that will be seen as artificially thwarting it.”

    http://hansard.millbanksystems.com/lords/1998/jul/08/scotland-bill

    FWIW, I agree that the case regarding competence is arguable from a legal standpoint. In asking “whether it is acceptable that the Scottish Parliament is precluded from making this bill…. [you] do not see how this very statable legal position operates as a political disadvantage to the SNP”, I think you nail it.

    Having unionist politicians argue on whatever grounds that it’s not possible to hold a referendum might be good sport when it comes to SNP-baiting, but it makes for poor long-term political strategy. It’s one thing for politicians to say that they don’t want a referendum, but to have the Presiding Officer/Secretary of State/Advocate General/Judicial Committee of the Privy Council intervene to ensure that even a consultative referendum can’t be held by the Scottish Parliament if it so votes in the future, would be political and constitutional dynamite.

    The legal debate, I suspect, comes down to whether or not it can be argued that a referendum, of itself, effects constitutional change. Although a referendum is clearly part of a process of getting to independence, I don’t think it’s possible to argue that just because constitutional change is the eventual goal, that this in any way settles the matter.

    Clearly, Holyrood can’t legislate to alter the constitution as this would be ultra vires. However, if it authorises Scottish Ministers to begin negotiations, that does not of itself change the constitution. For one thing, the UK Government might refuse to recognise the result. However, keeping it in the realms of the realistic, let’s work on the far more likely basis that the UK government responds by entering negotiations.

    Under those circumstances, a referendum will only have ‘paved the way’ in the sense that the UK Government will have of its own volition recognised the result. As Westminster by definition has the power to change whatever aspect of the British constitution it likes, if negotiations then go on to result in constitutional change, this will only have been as a direct result of the UK Government deciding to act in this way. As such, since the referendum can only influence the UK Government rather than compel or instruct; since it doesn’t in itself change the constitution; and since the Scottish Parliament wouldn’t have voted to award itself more powers or to declare UDI, it seems to me as a lay person there’s reasonable grounds to assume that a referendum along the parameters outlined could be perfectly in order.

    Now I’ve got that out of the way, I will concede here that during the passage of the bill, after much equivication on the matter, Dewar eventually stated a belief that the Scottish Executive spending money on a referendum to ‘pave the way’ for constitutional change would be ultra vires. However, to me at least, Dewar’s backsliding from his position as expounded to Alex Salmond back in July 1997 before the launch of the White Paper looks less like a solid constitutional point than wishful thinking on his part.

    Anyway, even if we think differently on the possible legality, I think I’ve at least managed to demonstrate that both Dewar, and Lord Sewell, have managed to say different things to Parliament at different times regarding this matter. Trawling back through those debates just confirms my prejudice that many devolutionists, perhaps insulated by their superior parliamentary numbers at the time, really hadn’t thought devolution through, either from a point of principal or from a point of tactics and strategy!

    Regards,

    Richard

    • Many thanks again. The trawl through Hansard in relation to legislation is – I know from bitter experience – frequently unproductive. I am not sure the passages you refer to are directly in point for the Pepper v hart point (but Hansard is the final element in the argument of my three posts and I would not wish to rely solely on it – or view it (or any of the arguments) as a knock down definitive result – in any event you address the points in the second post with your argument on the consultative referendum).

      To the points you make I would add that the powers can be amended by order in Council agreed by Westminster and Holyrood. I have suggested in earlier posts (or elsewhere, I forget which) that an SNP majority of Scottish seats at Westminster or majority in the Scottish Parliament would make such an Order inevitable – and any doubts of legality would be resolved. However, I do think that on the referendum question that unless it is accepted that there are to be 2 votes – 1 to open negotiations and 1 to seal the deal (or however one wants to put it) there is strong dubiety that a referendum (even of consultative nature) would be competent. If a positive result would justify independence (however, long delayed) then it is directly related to the Sch 5 reservation.

      I do not think the SNP should be afraid of acknowledging the possible competence argument for the reasons you give, those mentioned by Joan McAlpine in her Scotsman article yesterday, and the point I made above.

      The main thing is that this is arguable – and that the issue remains arguable lends much force to the point in your final paragraph. Despite the years from the claim of right through the Constitutional Convention to the Scotland Act I suspect that the vast majority of those in support of the principle of devolution did not actively consider the detail of the policy. What is most worrying is that they still haven’t thought it through.

      Many thanks again for these stimulating comments.

      best wishes
      Scott

    • Richard,

      On reading your comment again I do hope you and others don’t perceive these posts as “SNP-baiting”. That is not the intention of the posts at all. I am not a supporter of independence but I have voted SNP in the past (as I have each of the main parties excepting the Conservatives). But I think there is a legal issue here that hasn’t really been discussed (for reasons I can’t quite work out), it is an issue which should be discussed and it is an issue which (if I’m right) could actually be advantageous to the SNP.

      Best wishes

      Scott

  4. Not trying to get the last word (honest!), but I’m interested in your thoughts on this one point when you say:

    “If a positive result would justify independence (however, long delayed) then it is directly related to the Sch 5 reservation.”

    I understand the 2 referendums argument. However, to make that argument, by definition you have to accept that holding a consultative referendum is within the powers of the Scottish Parliament.

    This being so, if a consultative referendum doesn’t breach schedule 5 since it won’t effect constitutional change of itself, and any related constitutional change comes about as a result of Westminster itself having legislated in an area where it clearly has the competence to do so, then surely the terms of schedule 5 will not have been breached? And even if they have, the ability of Westminster not to be bound by its successors would take precedence under those circumstances?

    • An excellent point. In my view any referendum would have to come from Wetsminster (in the settlement as currently framed – a point worth stressing because any comments I’ve made are based on the legislation as it is, and do not take into account the possibility that it may be amended to respond to the specific political position in Scotland). I noted the 2 referendums argument because I think that to justify the treatment of the referendum as falling within the competence the advocates of the referendum have to view it as not being determinative on the question of independence (and that may need to be reflected in the wording).

      As I said above in one of the comments all of these things are arguable (the rhetoric in the blogposts has mainly been to goad the estimable Peat Worrier into ever more sophisticated and erudite responses) – and it is important that it is acknowledged that that is the case.

      (and thank you again for some excellent points – that there is a debate that is being engaged with is I think a good thing).

      Best wishes

      Scott

    • One other thought Richard (which has only just occurred to me, and is asked because I have not thought about this and have been working on the assumption that any referendum must have some meaning) if the referendum is not about determining independence and is only consultative (and therefore on that view has no consequence) what is it for? The argument in favour of competence seems to be premised on a basis that the referendum is meaningless. That seems to suggest that the “consultative” aspect of the formulation is a mere semantic device to get round a clear restriction.

  5. “On reading your comment again I do hope you and others don’t perceive these posts as “SNP-baiting”. ”

    Not at all, Scott. It’s a good debate and regardless as to what your personal views might be, it’s my intention to play the ball here.

    “if the referendum is not about determining independence and is only consultative (and therefore on that view has no consequence) what is it for?”

    I think you answer your own question – it is to consult on opinion. If opinion is in favour of commencing negotiations, then Scottish Ministers seek to begin negotiations on independence. If it doesn’t, they don’t. So legally, a referendum is meaningless, but politically, as many observers (including Dewar and Sewell) have noted, it would be anything but.

    “The argument in favour of competence seems to be premised on a basis that the referendum is meaningless. That seems to suggest that the “consultative” aspect of the formulation is a mere semantic device to get round a clear restriction.”

    I think you’ve demonstrated very capably that there’s room for debate, but not that there is anything like a ‘clear restriction’. But even if there were on the grounds you’ve argued (Schedule 5), it would surely apply only if there was an attempt to declare that a yes vote would mean that Holyrood could then claim those powers for itself without Westminster consent – UDI in effect. Such a direct linkage between referendum and outcome would be unprecedented, since every referendum that I can recall in the UK has required Westminster to legislate after the event (which it could of course have failed to do had Parliamentarians so wished). No-one is proposing such a linkage.

    It might be tempting for a hostile UK Government to try and stymie a vote, but it would send a horrendous message to Scottish voters if they were to be told that only a UK Government which had no intentions of ever so doing could organise a referendum on independence. That’s why, for all the rumblings we might hear on this matter in the months ahead, I suspect that the Presiding Officer would allow a bill to pass, and let the ‘problem’ become someone else’s. Even then, the implications of the SoS or Advocate General intervening are far greater for the legitimacy of the UK than they would be for the cause of an independence referendum.

    Regards,

    Richard

    • Many thanks. If there is a positive result though there seems to be a political consequence and a practical assumption – detailed again in the last white paper – that independence will follow (albeit there will be a delay because the legislative route lies elsewhere). Given that s 29 is framed to cover matters related to reserved matters this suggests that a referendum could be covered – because there will be a causal connection between the referendum result and the ultimate consequence. The question then becomes when is the causal chain broken? An adviser for the presiding officer would be likely I think to take a cautious view – given the potential liability for costs, and the extent of the statutory duties. (This is the issue Lallands Peat Worrier was wrestling with – I think from both side we see the point as an arguable one).

      The distinction between a “consultative referendum” and every other referendum is I still think semantic. As you note every referendum is legally consultative and not binding. I think that then gives added weight to Lord Sewel’s comments (where he specifically refers to possible legislation on a referendum) in supporting the interpretation of SCh 5 that suggests this is not competent.

      My comment in relation to “clear restriction” above was the shared ground on all sides that Holyrood cannot legislate to declare independence directly. It was not intended to suggest that what I described as a semantic point did not have any merit. It was a throwaway query that had just occurred to me. My apologies if that was the impression given.

      Your final point is one where I find it hard to gauge what will happen. I think a Presiding officer (especially given the Civil Appeals bill position) is likely to take a cautious analysis (or acts on advice taking a cautious analysis). However, if you are correct and the presiding officer lets it through the Advocate General is not the end of it – and while the AG may take a politically pragmatic position (which is not certain – because the issue of control of the referendum may be one that would become an issue), once passed any individual with an interest (in such a case anyone) could raise an action to strike down the Act. Such individuals are outwith the control of politicians, for better or worse.

      Best wishes

      Scott

  6. “once passed any individual with an interest (in such a case anyone) could raise an action to strike down the Act. Such individuals are outwith the control of politicians, for better or worse.”

    Agreed. Which has interesting implications for when it would be best to bring any such bill before Holyrood…

  7. Excellent harrying, I must say, Richard. You reiterate what I think is the potentially the weakest part of Scott’s argument. To auto-quote from my initial post, trusting that doing so isn’t too obnoxious – “This seems to me to be at the heart of the argument. How should the essential purpose of the referendum be described?”. I’ve already stated my views on that question elsewhere. I’d guess any court is likely to be particularly wary about the imbroglio of potential “effects” L&G relies on, particularly if an eloquent silk gets up on their hind legs, beetles their brow, and with a sigh more in sorrow than in anger, lays out eight or twelve of the potential ways such a referendum might “impact” or “effect” various British institutions. With all that uncertainty on the incompetent side of the argument, I’d suggest that the beguiling simplicity of legal formalism and certainty may well win out. “What will the lawful effects of the referendum be?” is a much easier question to answer – and courts, after all, largely exist to answer questions about law. That is why they maintain libraries of fusty legal tomes and not crystal instruments of divination. Those, however, are arguments for court and still leave us to contend with a cautious presiding officer.

    Pepper and Hart may have to contended with when the time comes, I grant you. To shamelessly stretch the Mystic Meg metaphor, we might also add that rarely is a minister an effective prophet in their own parliament. A case in point, I’m sorry to say, will be the use of the collapsed World’s End murder trial to justify the reform of double jeopardy, despite the fact that there is almost no likelihood that the case would be reopened and retried on the proposed “new evidence” basis. Nor was the presence of a double jeopardy law the reason why the case fell through. Almax made an exceedingly cogent point about that in a comment on a past blog.

    • Very many thanks for this, and for your excellent blog post (which I am pleased to claim some small credit for – by provoking you into writing it 😉 )

      It is a good point. I will throw into the mix once more Schroedinger’s cat, Pepper v Hart, refer to the cumulative effect of my earlier comments (as I fear I have on this thread and on yours LPW regurgitated material from my earlier posts) and await the decision to go to avizandum.

      I trust though that all are agreed that the arguments can be made persuasively on both sides – and there is no knock-out blow for either. It would make a fantastic mooting problem, I think. But if we are left with only a proposition that is arguable two ways, and if our politicians admitted that and our media explored it – our populace and civic society would be rather better informed and would learn something rather important about devolution (and I think ultimately independence if and when a referendum in favour emerges from whatever legislative body is the competent forum) that it is important to remember that Holyrood is not born free and cannot do whatever it likes, and must be answerable to a legal hierarchy which controls what can and cannot be done. I would hope that this would ultimately be accepted at Westminster too. But the arguments in favour of a written constitution are for a whole new series of blog posts another day.

      For now I will resume on my blog a diet of pop culture references, bad puns, youtube clips, failed TV pitches, and badly framed satire. I understand that it’s what my reader expects – he has been e-mailing.

      Very best wishes to you both

      Scott

  8. Pingback: The stupidity of the posturing of David Cameron and the independence referendum | 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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