On reviewing coverage of yesterday's announcement by Michael Moore about the the proposed referendum on Scottish independence, there seems to be a view propagating that a referendum carried out in accordance with his proposals, by means of an order under section 30 of the Scotland Act 1998, would be "binding" in a way that a referendum carried out by the Scottish government without such an order would not, so that the section 30 order approach is to be preferred.
In my view that is wrong. Neither approach would be "binding" in any legal sense; and each would be "binding" in the real world of politics.
It is possible to have legally binding referenda. To be legally binding, once the referendum result is known there has to be an answer to the question "What next?" which has ascertainable legal consequences which are capable (if need be) of enforcement in a court of law. Last year's referendum on whether the Welsh Assembly should obtain legislative powers under Part 4 of the Government of Wales Act 2006, similar to those of the Scottish parliament, was binding for example. By contrast the pre-legislative referendum on the Scottish parliament held in 1997 was not. The successful outcome in that referendum placed a political commitment on the incoming Labour government to consult on and prepare legislation for such a parliament, which it duly did in the form of the Scotland Act 1998. It conferred a political mandate, and imposed a political duty, to prepare something (a Bill) which would if and when enacted have a legal effect.
The same is true of the proposed referendum on independence. If successful it would impose a political but not legal commitment on the UK government to negotiate terms for independence with the Scottish government. The terms, once negotiated, would require a further enactment by the UK parliament dissolving the union in accordance with the agreed terms. The sanction, were the UK government to fail to enter into such negotiations, would be for the Scottish government to make a unilateral declaration of independence.
A section 30 order does not therefore make the referendum any more or less binding. What an order would do is remove any doubt about whether the Scottish parliament and government are within their powers to hold this (politically but not legally binding) referendum.
Showing posts with label scotland. Show all posts
Showing posts with label scotland. Show all posts
Wednesday, 11 January 2012
Tuesday, 10 January 2012
Michael Moore's statement
Michael Moore made his statement to the House of Commons today. He stated that the coalition government thinks that the holding of a consultative referendum on independence is outside the powers of the Scottish government and parliament. The UK government proposes to make it within those powers by means of an order under section 30 of the Scotland Act 1998, but on its (the coalition government's) own terms. These terms relate both to the question to be put (and it would be a single Yes or No question not encompassing "devolution max" and avoiding ambiguous wording on the Quebec model), and also timing ("sooner rather than later").
It appears that the phony war is now over, but I do not intend in this article to deal other than in passing with the wisdom or otherwise of the course the UK government has adopted. On the plus side, with radio silence from the Labour party who hold the key to all this, something is being done at last by those who don't, namely the Tories. Ed Milliband has let the country down, with an absence of any leadership, and indeed of any signs of life at all. It was disappointing also that Margaret Curran, Shadow Secretary of State for Scotland, used the statement in the House as an opportunity for points scoring, but that probably reflects Ed Milliband's lack of any discernible control of events. On the minus side is the extent to which this will feed those north of the border who gravitate to feelings of grievance. However, Cameron has now committed to playing out his hand for better or for worse and it may well turn out for the better. Does this mark Salmond's Stalingrad, or a bright new dawn? Voters in Scotland will in due course pronounce.
I covered the legal issue in Independence, the Scottish Parliament and the Scottish Government. The UK government's statement comes down to the question of whether legislation by the Scottish parliament concerning a consultative referendum can be said to "relate to reserved matters". My view is that the words "relate to" are to be looked at in terms of legal agency. Since a consultative referendum has no legal effect - it merely obtains the views of the people in Scotland - in my view it does not. The UK government's legal advisers think otherwise.
In my view the UK government's view leads to absurdities. The powers of the Scottish parliament are congruent with those of the Scottish government. Everything that a Scottish or UK government does has to be permitted by law. It so happens that a very large proportion of the things either government does is not based on statutory powers but on the powers of the Crown as a natural person or under its prerogative, which as I explained in my article are transferred to Scottish Ministers in relation to devolved matters. If we take the view that consultative referenda on independence by the Scottish government are unlawful, then so must be consultative exercises on devolution itself, which is equally a reserved matter in the sense that the Scottish parliament has no power to pass an enactment transferring new powers, as presently reserved, from the UK parliament to itself. In theory at least, using Scottish civil servants' time to respond to the proposals of the Calman Commission (rather than using the Scottish parliament's constituent parties' own resources) was also unlawful. It would, in theory at least, be improper for the Scottish parliament to debate devolution and Scotland's position within the UK at all. Legal propositions of the government's kind are best tested against the light cast by these stress cases.
It is however equally absurd for the Scottish government to claim as they do that they have a "mandate" from the electorate in Scotland which the UK government cannot oppose, unless the government of an independent Scotland intends to operate above the law (that is, in a way otherwise known as tyranny). Either the SNP believes in constitutional government or it believes in revolutionary imperatives which put it outside bourgeouis considerations such as legal process. The proper course now is for the Scottish government to explain why the UK government have got the law wrong. They could apply to court for a declaratory judgement, but it seems highly unlikely they will do so.
It appears that the phony war is now over, but I do not intend in this article to deal other than in passing with the wisdom or otherwise of the course the UK government has adopted. On the plus side, with radio silence from the Labour party who hold the key to all this, something is being done at last by those who don't, namely the Tories. Ed Milliband has let the country down, with an absence of any leadership, and indeed of any signs of life at all. It was disappointing also that Margaret Curran, Shadow Secretary of State for Scotland, used the statement in the House as an opportunity for points scoring, but that probably reflects Ed Milliband's lack of any discernible control of events. On the minus side is the extent to which this will feed those north of the border who gravitate to feelings of grievance. However, Cameron has now committed to playing out his hand for better or for worse and it may well turn out for the better. Does this mark Salmond's Stalingrad, or a bright new dawn? Voters in Scotland will in due course pronounce.
I covered the legal issue in Independence, the Scottish Parliament and the Scottish Government. The UK government's statement comes down to the question of whether legislation by the Scottish parliament concerning a consultative referendum can be said to "relate to reserved matters". My view is that the words "relate to" are to be looked at in terms of legal agency. Since a consultative referendum has no legal effect - it merely obtains the views of the people in Scotland - in my view it does not. The UK government's legal advisers think otherwise.
In my view the UK government's view leads to absurdities. The powers of the Scottish parliament are congruent with those of the Scottish government. Everything that a Scottish or UK government does has to be permitted by law. It so happens that a very large proportion of the things either government does is not based on statutory powers but on the powers of the Crown as a natural person or under its prerogative, which as I explained in my article are transferred to Scottish Ministers in relation to devolved matters. If we take the view that consultative referenda on independence by the Scottish government are unlawful, then so must be consultative exercises on devolution itself, which is equally a reserved matter in the sense that the Scottish parliament has no power to pass an enactment transferring new powers, as presently reserved, from the UK parliament to itself. In theory at least, using Scottish civil servants' time to respond to the proposals of the Calman Commission (rather than using the Scottish parliament's constituent parties' own resources) was also unlawful. It would, in theory at least, be improper for the Scottish parliament to debate devolution and Scotland's position within the UK at all. Legal propositions of the government's kind are best tested against the light cast by these stress cases.
It is however equally absurd for the Scottish government to claim as they do that they have a "mandate" from the electorate in Scotland which the UK government cannot oppose, unless the government of an independent Scotland intends to operate above the law (that is, in a way otherwise known as tyranny). Either the SNP believes in constitutional government or it believes in revolutionary imperatives which put it outside bourgeouis considerations such as legal process. The proper course now is for the Scottish government to explain why the UK government have got the law wrong. They could apply to court for a declaratory judgement, but it seems highly unlikely they will do so.
Wednesday, 9 November 2011
Incitefulness
I rotate my newspaper reading where I can, and I was surprised to see that the Telegraph has one of the most inciteful explanations of how we have got to where we are on devolution.
I have long thought that Scottish Labour is largely responsible for our current mess, with their facile alignment of any difficulties in Scotland with the Tories and implicitly the English. Unable to get off this track, their disastrous campaign this summer in the elections for the Scottish Parliament was largely based around how only Labour and not the SNP could properly protect Scotland against "London". This was particularly ludicrous, as well as being implicitly anti-English, because the Scottish Parliament is responsible for devolved matters and not for the reserved matters for which the UK government (and so, using Scottish Labour's and the SNP's lexicon, "London") is responsible. Scottish Labour have been trying to out-nationalist the nationalists, which is bound to fail.
The headline to the Telegraph article somewhat misrepresents the article itself. The article suggests that Scotland having a semi-detached relationship with the UK under "devolution max" may be the end point - although perhaps Mr Brogan thinks that that cannot reasonably be described as a union. For my own part, as explained in this article, I cannot see how devo max would work without a complete rewriting of the UK constitution. It would make Nick Clegg's current playground hobby of rejigging the House of Lords largely redundant, since presumably the House of Lords would become some kind of federal or confederal chamber.
I doubt the resolve of both the Labour and Conservative parties to see such an arrangement through, and indeed both parties seem incapable of even talking about it. We are likely instead to end up with some half-baked arrangement leading to independence in a generation. So the headline may end up being right.
Which raises the question: When is the Labour party's navel gazing on this going to end, and they start saying something useful? At the end of the day, the future of the union (or otherwise) is in their hands.
I have long thought that Scottish Labour is largely responsible for our current mess, with their facile alignment of any difficulties in Scotland with the Tories and implicitly the English. Unable to get off this track, their disastrous campaign this summer in the elections for the Scottish Parliament was largely based around how only Labour and not the SNP could properly protect Scotland against "London". This was particularly ludicrous, as well as being implicitly anti-English, because the Scottish Parliament is responsible for devolved matters and not for the reserved matters for which the UK government (and so, using Scottish Labour's and the SNP's lexicon, "London") is responsible. Scottish Labour have been trying to out-nationalist the nationalists, which is bound to fail.
The headline to the Telegraph article somewhat misrepresents the article itself. The article suggests that Scotland having a semi-detached relationship with the UK under "devolution max" may be the end point - although perhaps Mr Brogan thinks that that cannot reasonably be described as a union. For my own part, as explained in this article, I cannot see how devo max would work without a complete rewriting of the UK constitution. It would make Nick Clegg's current playground hobby of rejigging the House of Lords largely redundant, since presumably the House of Lords would become some kind of federal or confederal chamber.
I doubt the resolve of both the Labour and Conservative parties to see such an arrangement through, and indeed both parties seem incapable of even talking about it. We are likely instead to end up with some half-baked arrangement leading to independence in a generation. So the headline may end up being right.
Which raises the question: When is the Labour party's navel gazing on this going to end, and they start saying something useful? At the end of the day, the future of the union (or otherwise) is in their hands.
Wednesday, 11 May 2011
Independence, the Scottish Parliament and the Scottish Government
A number of articles have been placed in the blogosphere or have appeared in the newspapers about whether it is lawful for the Scottish Parliament to pass an Act for the holding of a referendum within Scotland on independence. Some of them have got it right and some of them have got it wrong.
In my view the correct position is that the Scottish Parliament can pass such an Act, but the pertinent point which few seem to have spotted is that the Scottish Government does not for the most part require an Act of the Scottish Parliament in order to hold the referendum, assuming it has got the cash to pay for it within the Scottish Consolidated Fund (a prerequisite whether or not there is an Act of the Scottish Parliament authorising the referendum).
Put more shortly, the holding of a consultative referendum to elicit the views of people in Scotland seems to me to exceed neither the Scottish Government's existing powers, nor the Scottish Parliament's powers to pass a "window-dressing" Act, but the result would only be consultative and the power to sever the union rests solely with the UK Parliament. A consultative referendum is political rather than legal in nature: it exerts political pressure but not legal sanction. (Of course, inaction by the UK Parliament on the matter in the event of a referendum result in favour of independence might lead to a unilateral declaration of independence.)
This article sets out why that is the case.
The Scottish Parliament
Any amendment of the Union with Scotland Act 1706 and the Union with England Act 1707 can only be made by the UK Parliament. By virtue of section 29 of the Scotland Act 1998, the Scottish Parliament may only make laws (that is, pass Acts) within its legislative competence, and:
The Scottish Executive
The Scottish Executive is established by section 44 of the 1998 Act as follows:
Sections 53 and 54 made provision for the transfer of ministerial functions from the UK government to the Scottish Government where relating to devolved matters, as follows:
So does the Scottish Government require new law, namely an Act of the Scottish Parliament, in order to hold the referendum? It seems to me that it does not because as mentioned above Scottish Ministers have acquired from UK ministers all the prerogative and other natural powers of the Crown, as well as statutory powers, with respect to matters within devolved competence. I covered earlier what the natural powers of the Crown comprise, but they would it seems to me include the power to hold a consultative referendum, assuming the money for it is voted in one of the annual Appropriation Acts.
The only legal requirement for obtaining legislative backing that I can forsee would arise if the Scottish Government considers it needs additional powers to compel relevant local authorities to make their premises and staff available for the count and to appoint returning officers. However, that is not to say that an Act of the Scottish Parliament may not be useful as political window dressing: it would show that the proposal has the consent of the majority of elected members as well as of the executive.
After the referendum
As mentioned above, the reason why I conclude that the holding of a consultative referendum is within devolved competence is that it is only consultative and has no direct legal sanction or effect. The wording proposed by the Scottish Government for the consultative referendum puts the question, whether the Scottish Government should negotiate a treaty with the UK government for Scotland to become an independent state.
One question arising from this is whether, after the negotiations which would follow a successful consultative referendum, a further referendum is required within Scotland approving the terms before the union is severed. The answer to this is that legally speaking it is entirely a matter for the UK Parliament when making the legislation repealing the Acts of Union. The Scottish Government says not, but the only influence that it could exercise on this is political and rhetorical. It seems doubtful that it would attempt a unilateral declaration of independence at this point, but that would be its only recourse if the UK government and UK Parliament were to press for a further post-negotiation referendum which the Scottish Government feared it might lose.
Of course, the relationships between England and Scotland may have become so damaged by the time the first referendum has passed and negotiations completed that the union may be beyond repair anyway, so making the question of a second referendum relatively insubstantial; and Alex Salmond would certainly be doing all he could to help the process of disrepair along. We do not yet know how far the patience of people in the remainder of the UK can be tested.
In my view the correct position is that the Scottish Parliament can pass such an Act, but the pertinent point which few seem to have spotted is that the Scottish Government does not for the most part require an Act of the Scottish Parliament in order to hold the referendum, assuming it has got the cash to pay for it within the Scottish Consolidated Fund (a prerequisite whether or not there is an Act of the Scottish Parliament authorising the referendum).
Put more shortly, the holding of a consultative referendum to elicit the views of people in Scotland seems to me to exceed neither the Scottish Government's existing powers, nor the Scottish Parliament's powers to pass a "window-dressing" Act, but the result would only be consultative and the power to sever the union rests solely with the UK Parliament. A consultative referendum is political rather than legal in nature: it exerts political pressure but not legal sanction. (Of course, inaction by the UK Parliament on the matter in the event of a referendum result in favour of independence might lead to a unilateral declaration of independence.)
This article sets out why that is the case.
The Scottish Parliament
Any amendment of the Union with Scotland Act 1706 and the Union with England Act 1707 can only be made by the UK Parliament. By virtue of section 29 of the Scotland Act 1998, the Scottish Parliament may only make laws (that is, pass Acts) within its legislative competence, and:
"(2) A provision is outside that competence so far as any of the following paragraphs apply—An Act amending the Articles of Union would arguably infringe paragraph (a) and certainly infringe paragraph (b), because paragraph 1 of Part 1 of Schedule 5 to the 1998 Act provides:
(a) it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland,
(b) it relates to reserved matters,
(c) ..."
"1 The following aspects of the constitution are reserved matters, that is—At this point it is worth noting that the later provisions of Part 1 of the Schedule set out exceptions to the constitutional reservations (that is sets out constitutional matters which are devolved), one of which is relevant when it comes to looking next at the powers of the Scottish Executive, and is in these terms:
(a) ...,
(b) the Union of the Kingdoms of Scotland and England,
(c) the Parliament of the United Kingdom,
(d) ..."
"2 (1) Paragraph 1 does not reserve—
(a) Her Majesty’s prerogative and other executive functions,
(b) functions exercisable by any person acting on behalf of the Crown, or
(c) any office in the Scottish Administration."
The Scottish Executive
The Scottish Executive is established by section 44 of the 1998 Act as follows:
"44 (1) There shall be a Scottish Executive, whose members shall be—Since the SNP took power as the party with the most seats in the Scottish Parliament in 1997 the Executive has called itself the Scottish Government.
(a) the First Minister,
(b) such Ministers as the First Minister may appoint under section 47, and
(c) the Lord Advocate and the Solicitor General for Scotland.
(2) The members of the Scottish Executive are referred to collectively as the Scottish Ministers."
Sections 53 and 54 made provision for the transfer of ministerial functions from the UK government to the Scottish Government where relating to devolved matters, as follows:
"53 (1) The functions mentioned in subsection (2) shall, so far as they are exercisable within devolved competence, be exercisable by the Scottish Ministers instead of by a Minister of the Crown.The two devolved competencies of the Scottish Government (as executive) and the Scottish Parliament (as legislature) are therefore, as one would expect, tied together. The answer to the question "is holding a consultative referendum within devolved competence" is the same when speaking of either the Scottish Government or the Scottish Parliament.
(2) Those functions are—
(a) those of Her Majesty’s prerogative and other executive functions which are exercisable on behalf of Her Majesty by a Minister of the Crown,
(b) other functions conferred on a Minister of the Crown by a prerogative instrument, and
(c) functions conferred on a Minister of the Crown by any pre-commencement enactment, but do not include any retained functions of the Lord Advocate.
54 (1) References in this Act to the exercise of a function being within or outside devolved competence are to be read in accordance with this section.
(2) ...
(3) In the case of any function other than a function of making, confirming or approving subordinate legislation, it is outside devolved competence to exercise the function (or exercise it in any way) so far as a provision of an Act of the Scottish Parliament conferring the function (or, as the case may be, conferring it so as to be exercisable in that way) would be outside the legislative competence of the Parliament."
So does the Scottish Government require new law, namely an Act of the Scottish Parliament, in order to hold the referendum? It seems to me that it does not because as mentioned above Scottish Ministers have acquired from UK ministers all the prerogative and other natural powers of the Crown, as well as statutory powers, with respect to matters within devolved competence. I covered earlier what the natural powers of the Crown comprise, but they would it seems to me include the power to hold a consultative referendum, assuming the money for it is voted in one of the annual Appropriation Acts.
The only legal requirement for obtaining legislative backing that I can forsee would arise if the Scottish Government considers it needs additional powers to compel relevant local authorities to make their premises and staff available for the count and to appoint returning officers. However, that is not to say that an Act of the Scottish Parliament may not be useful as political window dressing: it would show that the proposal has the consent of the majority of elected members as well as of the executive.
After the referendum
As mentioned above, the reason why I conclude that the holding of a consultative referendum is within devolved competence is that it is only consultative and has no direct legal sanction or effect. The wording proposed by the Scottish Government for the consultative referendum puts the question, whether the Scottish Government should negotiate a treaty with the UK government for Scotland to become an independent state.
One question arising from this is whether, after the negotiations which would follow a successful consultative referendum, a further referendum is required within Scotland approving the terms before the union is severed. The answer to this is that legally speaking it is entirely a matter for the UK Parliament when making the legislation repealing the Acts of Union. The Scottish Government says not, but the only influence that it could exercise on this is political and rhetorical. It seems doubtful that it would attempt a unilateral declaration of independence at this point, but that would be its only recourse if the UK government and UK Parliament were to press for a further post-negotiation referendum which the Scottish Government feared it might lose.
Of course, the relationships between England and Scotland may have become so damaged by the time the first referendum has passed and negotiations completed that the union may be beyond repair anyway, so making the question of a second referendum relatively insubstantial; and Alex Salmond would certainly be doing all he could to help the process of disrepair along. We do not yet know how far the patience of people in the remainder of the UK can be tested.
Sunday, 8 May 2011
The aftermath
A disappointment over the AV vote to be sure, but still some surprising outcomes from Thursday's elections.
First, the Tories increased the number of their councillors in England and the number of councils which they now control, which given that they are a party in government and already started from quite a high threshold is remarkable.
Even more remarkable is the result in Scotland.
The result in Scotland is principally the fault of the Scottish Labour party. In the last 20 years or so there has been an only partly concealed anti-Englishness about the politics they have espoused, to the point where they became blinded by their own propaganda, and this has now come home to roost. They spent their time running a campaign against "London" and the Tories, and then while busy pulling this straw man apart failed to notice the real enemy at their gates.
This raises a number of strategic dilemmas for the Labour party, both in Scotland and in the UK as a whole. The Tory-English bogeyman may work for Labour in UK elections in Scotland but it plainly doesn't work in Scottish elections, and they are going to have to come up with a new story which is more convincing than "vote SNP and you get independence". As it happens, whilst the odds are against Alex Salmond succeeding at a referendum, he is a very canny operator and success cannot be counted out. It will now be for him to start playing the grievance card in the period leading up to the referendum (which given a majority in the Scottish Parliament he is well placed to do), and hope to do so rather better than the Labour party's pitiful attempts in the past.
The referendum, if and when it comes, in my view will have a significant effect in England as well as in Scotland. It is difficult to predict how people in England will react to the sound and fury of the referendum going on to the north of them given that some of it will be about them. It is difficult to discuss Scotland's role in the Union without also discussing England's role in it, and Labour and the other unionist parties need to give thought to how arguments will play south of the border as well as in Scotland itself. More particularly, the UK Labour party are going to have to provide a new narrative for voters in England if they are going to recover their position there: otherwise those voters may want to remind them that they are no more to be taken for granted than are those in Scotland.
Altogether, we have a very interesting 4 or 5 years ahead of us; and the strategic headaches for Milliband Junior during that period are probably more intractable than the more transient ones at present bearing down on Nick Clegg.
First, the Tories increased the number of their councillors in England and the number of councils which they now control, which given that they are a party in government and already started from quite a high threshold is remarkable.
Even more remarkable is the result in Scotland.
The result in Scotland is principally the fault of the Scottish Labour party. In the last 20 years or so there has been an only partly concealed anti-Englishness about the politics they have espoused, to the point where they became blinded by their own propaganda, and this has now come home to roost. They spent their time running a campaign against "London" and the Tories, and then while busy pulling this straw man apart failed to notice the real enemy at their gates.
This raises a number of strategic dilemmas for the Labour party, both in Scotland and in the UK as a whole. The Tory-English bogeyman may work for Labour in UK elections in Scotland but it plainly doesn't work in Scottish elections, and they are going to have to come up with a new story which is more convincing than "vote SNP and you get independence". As it happens, whilst the odds are against Alex Salmond succeeding at a referendum, he is a very canny operator and success cannot be counted out. It will now be for him to start playing the grievance card in the period leading up to the referendum (which given a majority in the Scottish Parliament he is well placed to do), and hope to do so rather better than the Labour party's pitiful attempts in the past.
The referendum, if and when it comes, in my view will have a significant effect in England as well as in Scotland. It is difficult to predict how people in England will react to the sound and fury of the referendum going on to the north of them given that some of it will be about them. It is difficult to discuss Scotland's role in the Union without also discussing England's role in it, and Labour and the other unionist parties need to give thought to how arguments will play south of the border as well as in Scotland itself. More particularly, the UK Labour party are going to have to provide a new narrative for voters in England if they are going to recover their position there: otherwise those voters may want to remind them that they are no more to be taken for granted than are those in Scotland.
Altogether, we have a very interesting 4 or 5 years ahead of us; and the strategic headaches for Milliband Junior during that period are probably more intractable than the more transient ones at present bearing down on Nick Clegg.
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