Giving evidence to the Scottish Parliament’s Referendum (Scotland) Bill Committee on the draft section 30 Order this morning, I was struck by the number of questions from the Committee about the precise legal effects of the Memorandum of Agreement between the UK and Scottish Government and of the section 30 Order, assuming that it is enacted. These questions covered both the binding nature of the Memorandum of Agreement (as distinct from the section 30 Order), discussed in a previous post on this blog by Christine Bell, and the issue of what it is that the Agreement and Order actually empower the Scottish Parliament and the Scottish Ministers to do. In the latter respect, two particular issues were raised, one concerning the seeking of legal advice from the Scottish Law Officers, and the other the entitlement of civil servants in the Scottish Government to investigate various subjects which are currently reserved to the UK Government and Parliament, but which might be transferred to the Scottish institutions in the event of independence (or further devolution). The question about legal advice appears to have been prompted by Nicola Sturgeon’s claim that the Scottish Government had not been in a position to seek specific legal advice on EU membership before the Edinburgh Agreement was signed. Although it is not clear that she was suggesting that the Edinburgh Agreement had made a difference to the Scottish Government’s legal powers (rather, that it provided a more concrete context for seeking legal advice), insofar as her statement is open to that interpretation, it is perhaps worth clarifying the legal position.
The answers to these questions about the legal effects of the Edinburgh Agreement are complicated by several factors, including: 1) the need to distinguish between the legal effects of the Memorandum of Agreement and the section 30 Order; and 2) the disputed nature of the Scottish Parliament/Government’s powers prior to the enactment of the section 30 Order. As regards the former, as Christine Bell explained, it is highly unlikely that the Memorandum of Agreement (as distinct from the section 30 Order) is legally binding. It could possibly have some legal effects, either because (and I think this is implausible) it is regarded as creating legally enforceable legitimate expectations or (more plausibly) as an aid to interpretation of the section 30 Order. However, any such legal effects would be in the nature of constraints upon the powers of the Scottish Parliament and Government; the Memorandum of Agreement does not, by itself, confer any legal powers on the devolved institutions. The section 30 Order, by contrast, is a power-conferring measure (it confers powers to hold a legally-valid referendum), but such powers are not conferred until the Order is actually made – i.e., once it has been agreed by both Houses of the UK Parliament and by the Scottish Parliament, and has received the assent of Her Majesty in Council. That is not expected to occur until February. So any argument that the signing of the Edinburgh Agreement made a difference to the powers of the Scottish Government and Parliament is simply wrong.
As regards the legal effects of the section 30 Order (if and when it comes into force), the second complication concerns whether the Order is understood as merely confirming (or clarifying) the Scottish Parliament’s powers to hold a referendum on independence, or whether it is in fact the source of those powers. For the sake of argument, I will assume that it is the latter. What difference, then, will the passing of the section 30 Order make to the powers of Scottish Parliament/Government (the latter is the more important here) to do things in connection with or in preparation for the prospect of independence?
Expressly, of course, the section 30 Order provides for the holding of a referendum on the question of independence for Scotland (subject to certain limitations – see my earlier post for discussion). It is, however, important to realise that bodies exercising statutory powers have implied powers as well as express powers. The doctrine of implied powers expands the powers of statutory bodies by permitting them to do things which are reasonably incidental to their express powers. ‘Reasonably incidental’ means that they have powers to do things which are conducive towards or facilitative of the exercise of their express powers; it does not mean that they have powers to do things which are merely related to the subject matter of their express powers. In relation to the section 30 Order, therefore, this means that the Scottish Government and Parliament will have implied powers to do things which facilitate the holding of a referendum. It is less clear whether this will include powers to prepare for independence – the doctrine of implied powers can be applied generously or restrictively. However, it is certainly arguable that a responsible government promoting a referendum on independence has a duty to make clear to voters the implications of a yes vote, and hence that it has the implied powers necessary for it to fulfil that advisory obligation.
In any case, though, the doctrine of implied powers is not the only potential legal basis for the taking of legal or civil service advice on the implications of independence. The Scottish Government is a statutory body, but not every power that it exercises has a specific statutory basis; the Scottish Ministers are Ministers of the Crown and, as such, they exercise powers deriving from the royal prerogative insofar as they relate to devolved matters. The royal prerogative is of particular significance as a source of power in relation to what one might term ‘machinery of government’ issues – including the roles of the civil service and the Law Officers of the Crown.
As far as the civil service is concerned, one of their key functions is to advise on, and to prepare for, potential changes in the law. This occurs routinely whenever new legislation is being contemplated, and more comprehensively prior to general elections in anticipation of a possible change in government. Although devolved prerogative powers are subject to the same limitations as to subject matter as all other Scottish Government powers, it would, nevertheless, be an unreasonable and unworkable limitation on the advisory role of the civil service to say that it is limited to issues which are currently devolved. Given that the devolved/reserved boundary is both complex and fluid (it can be changed by section 30 Orders), it would be ludicrous to suggest that every time a civil servant thinks about a reserved matter on government time, or even when she writes it down as advice to Ministers, then the Scottish Government has acted ultra vires. No government could work like that, and this reinforces the argument for saying that the question of what does or does not ‘relate to’ reserved matters in s.29(2)(b) of the Scotland Act 1998 cannot be interpreted strictly literally. At least some judges, thankfully, seem to agree. As Lord Walker put it in Martin v HMA  UKSC 10 (albeit in relation to a different issue), the devolved institutions should not have to invoke Westminster and Whitehall’s help “to do no more than dot the i’s and cross the t’s” in securing legally valid outcomes. Accordingly, irrespective of any argument based on the effect of the section 30 Order, it must be legally possible for the Scottish Ministers and their advisers to discuss issues which relate to reserved matters, just as it is possible for the Scottish Parliament to debate reserved matters, although they cannot cross the line from discussion (or the facilitation of discussion) to taking acts or making decisions with more concrete implications.
If this line of argument is correct in relation to civil service advice, it must surely apply even more strongly to the taking of legal advice. A Government which is subject to legal limits on the scope of its powers (as are all governments in the United Kingdom) must have power to seek legal advice in order to discover what its legal powers are, as well as to seek advice on the legal implications of actions it might be contemplating. To act in such a way is not to breach the rule of law, but to show respect for it, and it would be illogical to suggest otherwise.
What, though, of the situation post-referendum (assuming a yes vote) when the Scottish Government moves from talking about independence to taking active steps to bring it about, via negotiations with the UK Government and relevant international bodies? Again, I think the general argument can be made that, if it is accepted that the devolved institutions have a legitimate role to play in decisions about Scotland’s constitutional future (and everyone seems to accept – and the Scotland Act, though the section 30 Order procedure, expressly confirms – that they do), then they must, implicitly, have the legal powers necessary to enable them to play that role. However, as Christine Bell argued, at this point the question of legality becomes rather beside the point. If what we are contemplating is a break with the current legal order, and the establishment of an independent state, then absence of a strict legal pedigree within the current legal order cannot and will not be allowed to stand in the way.
Aileen McHarg is Professor of Public Law at the University of Strathclyde