Yesterday, David Cameron and Alex Salmond signed an historic Memorandum of Agreement on a Referendum on Independence for Scotland (MoA), which includes the text of a draft Order under section 30 of the Scotland Act 1998 to confer express powers on the Scottish Parliament to enact legislation authorising such a referendum. In accordance with the ‘retaining model’ of devolution contained in the Scotland Act, this will entail the creation of an exception – time-limited and subject to conditions – to the reservation of matters relating to aspects of the constitution, including the Union of the Kingdoms of Scotland and England, in paragraph 1 of Part 1 of Schedule 5 to that Act.
The agreement means that constitutional lawyers can, with a sigh of relief, stop rehearsing the arguments for and against the proposition that the Scottish Parliament already enjoys such power. With our competing convictions on this issue unshaken by an inconvenient judicial decision for one side or the other, we can move on to discuss more important issues regarding the referendum process, the implications of independence, and the contours of a possible post-independence constitution for Scotland. I personally was one of those who argued that the Scottish Parliament might indeed have the power to enact a referendum bill – that ‘might’ apparently indicating that we did not truly believe in our own argument – and I did not regard it as a sterile question. On the contrary, it raised matters of deep principle regarding the status of devolution and the location of constitutional authority within the UK. However, like most other people, I did not relish the prospect of the issue ending up in court. Moreover, as time went on, the skirmishes over legality increasingly had the air of a phoney war; they became more about positioning in the negotiations over a section 30 Order, rather than a matter of genuine legal dispute. It suited the UK Government and its supporters to present the current legal position in black and white terms, as definitely excluding the possibility of the Scottish Parliament holding a lawful referendum. Equally, it suited the Scottish Government and its supporters to play up the possibility that Holyrood would be able to enact a referendum bill anyway if the terms on which a section 30 Order was offered were not to their liking. Nevertheless, the background legal dispute did probably ensure greater equality of arms in the negotiating process than might otherwise have been the case.
Of course, the legality issue is not yet finally resolved. The Memorandum of Agreement itself is (probably) not legally-binding, and the draft section 30 Order requires the consent of both Houses of Parliament and of the Scottish Parliament before it comes into force. As a piece of delegated legislation, it is also possible that some mischievous person with money to burn could seek to challenge the legality of the section 30 Order itself as being ultra vires (outwith the powers) of the Scotland Act. It is, however, difficult to see any plausible grounds for such a challenge. Assuming, therefore, that the UK and Scottish Governments can maintain control of their parliamentary processes, the section 30 Order is expected to come into force in February.
There has been much discussion, and there will no doubt be much more, about whether the UK or Scottish Government gained more from the negotiations leading up to the MoA. Others are better qualified to pass judgment on the politics of the deal than I am. Instead, I will comment on the process by which the legality of the referendum has been settled, and on the substance of the terms which have been agreed.
The use of a section 30 Order to resolve the legality issue has two major advantages, and one major disadvantage. On the plus side, it requires the mutual consent of the UK and Scottish Parliaments, and it can be enacted quickly. On the negative side, as a piece of secondary legislation, it cannot be amended by either Parliament, but must be accepted or rejected in its entirety. This means that it effectively transfers power to determine the key terms of the referendum to the two governments, to be determined through behind-closed-doors negotiation.
It is true that the draft section 30 Order published yesterday is less prescriptive than the draft published back in January by the Scotland Office as part of its consultation on Scotland’s Constitutional Future, and that the Scottish Parliament therefore remains free to determine some key issues – e.g., regarding the date of the referendum, the question to be asked, the franchise, and most of the rules regulating the conduct of the election. Nevertheless, not only does the draft Order explicitly exclude the possibility of a second question, but the MoA contains a range of commitments regarding the content of the referendum bill which go well beyond the conditions specified in the draft Order.
For example, the January draft Order specified that ‘the referendum and arrangements in connection with it must be in accordance with Part 7 of the Political Parties, Elections and Referendums Act 2000 [PPERA] as if the referendum were within section 101(2) of that Act, subject to any modifications specified in subordinate referendum.’ By contrast, the October draft only applies those sections of PPERA which would be outwith the Scottish Parliament’s legislative competence (relating to referendum campaign broadcasts and free mail-shots). However, the MoA provides that the referendum rules will be based on PPERA, including scrutiny of the referendum question and oversight of the referendum process by the Electoral Commission. This extends beyond a mere commitment in principle to some quite detailed regulation of the decision-making process. For instance, while the Scottish Parliament is free to set its own spending rules for the referendum, the MoA (para 27) requires it to set out in the Policy Memorandum which will accompany the referendum bill ‘details of the consultation process for setting spending limits and details of any alternative approaches to any of the issues considered. This will include a statement of reasons if there is any departure from the Electoral Commission’s advice on spending limits.’ Similarly, although the October draft Order no longer says anything about the franchise to be used for the referendum, the MoA states that, with the exception of the question of voting age, both governments are agreed that the franchise should be the same as that for Scottish Parliamentary and local government elections (rather than, say, that for Parliamentary elections, which would include overseas voters, but exclude other EU citizens).
While the referendum may therefore be ‘made in Scotland’, it will be constructed in accordance with a pattern drafted with significant UK government input, and with relatively limited scope for legislative tailoring by the Scottish Parliament. It might be argued that the details of most legislation in fixed in advance by negotiation within the executive branch. However, this is particularly unfortunate in the context of what is supposed to be an exercise in direct democracy, and it is even more disappointing that the negotiations over the section 30 Order were concluded before the Scottish Government has published the responses to its own consultation exercise (Your Scotland, Your Referendum). In judging, for instance, whether the Scottish Government was right to concede the second question in return for the option of extending the franchise to 16 and 17 year older, it would have been desirable to know what was the preponderance of public opinion on these issues (admittedly, the responses to the UK Government’s consultation suggested that there was no great enthusiasm for either of them)
Turning to the substance of what has been agreed, the provisions on regulation of the conduct of the referendum, although relatively constraining, seem unlikely to be controversial. More interesting is the issue of timing. Having previously stated that the referendum could and should be held much earlier than Autumn 2014, the UK Government has effectively conceded the Scottish Government’s timetable. However, the draft section 30 Order does not effect a permanent transfer of power to the Scottish Parliament: the referendum must be held no later than 31 December 2014. This time-limit underlines the exceptional nature of the transfer of power, reinforcing the UK Government’s view of the devolution settlement that constitutional matters generally are reserved to Westminster. A time-limit also meets their concern that the referendum should be ‘decisive’. In other words, that, if independence is rejected on this occasion, the referendum does not turn into a ‘neverendum’, with the issue being revisited on a regular basis. It does, of course, remain possible that, in a few years’ time, a Scottish Government which considered that it had a renewed mandate to hold another referendum might revive the argument that the section 30 Order merely clarified rather than conferred the Scottish Parliament’s legal authority to authorise a referendum. Logically, the use of a section 30 Order on this occasion would make no difference to the merits of that argument. In practice, however, it seems likely to weigh against it were the issue ever to be tested in court.
As regards the extension of the franchise to 16 and 17 year olds – an issue which is yet to be finally resolved – I find it difficult to make up my mind on whether or not this is appropriate. On the one hand, if there is an argument in principle for lowering the voting age (a point on which I have no strong opinions), then it does not cease to be right just because it cannot be achieved for all elections. In addition, it might be argued that there is a particularly strong case for lowering the voting age in relation to a very long-term decision like independence, which may have far more profound effects on young people than a periodic local or central government election. On the other hand, I cannot shake off the perception that this is an attempt to manipulate the outcome – although I accept that there is a precedent for the Scottish Parliament lowering the voting age when it has had power to do so (in the Health Boards (Membership and Elections) (Scotland) Act 2009).
For me, the most problematic aspect of today’s agreement is the exclusion of a second question on further devolution. It is perhaps worth pointing out that the draft Order takes a belt and braces approach to this issue. Not only does it specify that there must be only one ballot paper in the referendum and only two choices on the ballot paper, but the Scottish Parliament is also prohibited from holding the referendum on the same date as any other referendum it authorises: i.e., it cannot enact a second statute authorising a referendum on further devolution, to be held simultaneously.
My personal view is that it would have been desirable (and not practically impossible) to ask a second question. While I accept that it would be difficult to ask a coherent question without a concrete proposal for further devolution, with two years still to go before the date of the referendum, it seems too early to exclude that possibility. Various arguments can be put forward in favour of asking a second question, such as the fact that there is considerable support for further devolution, that the Unionist parties are in no position to guarantee that, if Scotland votes no to independence, further devolution will take place, and that a two stage reform process will substantially prolong uncertainty for business and risk voter fatigue. In addition, I do not accept that independence and further devolution are such radically different constitutional options that they cannot properly be determined via the same process. On the contrary, the most important argument for expressly including a further devolution option is that it will necessarily form part of the independence debate. In deciding how to vote on the question of independence, voters will inevitably compare it with the alternatives that might be on offer. If further devolution is a realistic alternative to devolution, then what it might mean needs to be articulated now, and not postponed until after Autumn 2014.
Aileen McHarg is Professor of Public Law at the University of Strathclyde