The Referendum And The Competence Of The Scottish Parliament

As a starting point for answering this question it is necessary to survey the constitutional and legal landscape upon which the Scottish Parliament is built. The Scottish Parliament is a creature of statute - it was established by the Scotland Act 1998 which is an Act of the United Kingdom Parliament. In British constitutional theory the United Kingdom Parliament is sovereign and this principle of parliamentary sovereignty, as expounded by A.V. Dicey, has both a positive and a negative aspect. In its positive sense, the sovereignty of parliament means that Parliament can make and unmake any law whatever whilst the negative facet means that no person or body is recognised as having a right to override or set aside the legislation of Parliament.

Against this backdrop, if we look in more detail at the provisions of the Scotland Act 1998 as provided by the UK Parliament, we see that the Scottish Parliament is not a sovereign parliament within the British legal order. Under sections 28 and 29 and schedules 4 and 5 of the 1998 Act, the Scottish Parliament has a general legislative jurisdiction limited by certain express restrictions and reservations. This point was emphasised by Lord President Rodger in Whaley v. Lord Watson (Lord President) when he explained that the fundamental character of the Scottish Parliament is that it is a body, although rooted in universal democracy, which derives its powers from statute and as such must work within the scope of those powers. Unlike Westminster, it is consequently subject to the law of the land and to the jurisdiction of the courts which uphold the law.

Having said that, although the limitations on the Scottish Parliament are far-reaching, none of them seem to patently preclude it from consulting the Scottish electorate on the question of secession from the United Kingdom, albeit tentative argument could be made that some of the provisions of the 1998 Act do impliedly preclude it as discussed below. Thus, the Scottish Government may wish to argue that the Scottish Parliament has legislative competence to pass an Act providing for a referendum on the question of independence or full fiscal autonomy on the basis of its general legislative jurisdiction under the Scotland Act 1998.

However, it is submitted that this argument is dubious. The problem with trying to rely on a statutory basis for the right of the Scottish Parliament to hold a referendum is that the whole idea of secession may be regarded as contrary to the purpose of the Scotland Act 1998, which is to create a democratically elected body for the purpose only of performing executive and legislative functions within the British constitutional order. If a Bill before the Scottish Parliament which purported to authorise the holding of a referendum on secession or full fiscal autonomy were referred to the Supreme Court for decision under section 33 of the 1998 Act on whether it was within the Parliament's legislative competence, the Supreme Court would likely consider it ultra vires insofar as it conflicts with the policy and purpose of the Act of the UK Parliament which created the Scottish Parliament and bestowed it with its powers.

On the other hand, it has been argued that the Scottish Parliament may be immune from a challenge of this sort because the 1998 Act confers broad legislative powers which are to be exercised on behalf of the Scottish people. Consequently, a consultative referendum on secession would not run counter to the policy of the 1998 Act as long as its purpose is to assist the Scottish Parliament to determine the will of the Scottish people. In my opinion, however, this argument is highly precarious and if the Scottish Government try to rely on the Scotland Act 1998 for authority to hold a referendum on either independence or full fiscal autonomy, that argument is doomed to fail and the enabling Act of the Scottish Parliament (ASP) would almost certainly be held to be ultra vires. Furthermore, although it has been held that ASPs are not subject to the ordinary grounds of judicial review, it has been held that if the Scottish Parliament passes an Act which fundamentally offends the rule of law then the courts may not recognise it as law. An ASP therefore which purported to give the go-ahead for a referendum and oust the supervisory jurisdiction of the Scottish courts over it may not be recognised as law.

It would thus appear that working from within the confines of the British constitutional legal order it is not possible for the Scottish Government to successfully argue that the Scottish Parliament has such legislative competence as to allow it to hold referenda on Scotland's constitutional future. It appears necessary, therefore, for the Scottish Government to either look beyond, or deeper into, our current legal order to justify the Scottish Parliament's competence to hold a referendum on secession and full fiscal autonomy. Firstly, I would like to look beyond our legal system for this justification and then after having done this, I will then consider whether justification can be found from within by carrying out a deeper and more searching analysis of our present constitution.

To say that we must confine ourselves to the rules and doctrines of our present legal order to find such a justification is to predicate our analysis on a particular theory of law - strong legal positivism. According to this theory, legal rules are a discrete set of norms of an entirely different normative order from political principles and moreover, our political and philosophical ideals are normatively subordinate to these legal principles. However, in my opinion there is no obvious reason to accept this view and indeed, I believe it to be false. While I believe that our laws and legal doctrines are important, I do not think they exist in a vacuum and are ultimately subject and subordinate to our political and philosophical ideals. The law is descri ptive of these ideals and it is not the other way around. If it were otherwise, our legal order would be a freestanding morally chaotic and directionless monstrosity. This view implies that if there is discrepancy between our legal order and our political and philosophical ideals, the discrepancy must always be resolved in favour of our ideals.

With that in mind, the Scottish Government may argue that the Scottish Parliament should not require permission from Westminster to hold a referendum on Scotland`s constitutional future, and therefore need not rely upon the Scotland Act 1998 or any other piece of law from the British legal order for authority to do so. This is because the Scottish Government may argue that the authority of the Scottish Parliament rests on the sovereignty of the Scottish people. I am aware that this is not the legal position as its authority technically speaking derives from the Scotland Act 1998 and in consequence ultimately from the sovereignty of the Westminster Parliament. However, I think as a matter of political reality the Scottish Parliament rests on the popular sovereignty of the people of Scotland. This much was recognised by the Scottish Constitutional Convention when it asserted: `we, gathered as the Scottish Constitutional Convention, do hereby acknowledge the sovereign right of the Scottish people to determine the form of government best suited to their needs.` This analysis is also implied by the fact it would be almost politically impossible for the Westminster Parliament to unilaterally disband the Scottish Parliament and that many people in Scotland consider the new Scottish Parliament to be a reincarnation of the old Parliament of Scotland. I further believe that in any society there is no authority superior to that of the people. The people considered as one body are the final court, the final arbiter from which there is no appeal. I am led to believe from my reading that this has been the position in Scotland since time immemorial in contrast to the English doctrine of Parliamentary Sovereignty. If the Scottish Parliament`s authority rests on the sovereignty of the Scottish people and there is no superior authority on Scottish affairs than the people of Scotland then a decision by the Scottish Parliament to hold a referendum on its terms on the question of independence is unchallengeable either by the Westminster Parliament or the Supreme Court. A challenge of this sort may be in accordance with the law but it would be desperately anti-democratic and therefore contrary to our political ideals. Moreover, as I have already said, our political ideals trump legal doctrine and therefore the discrepancy here, namely that the law does not allow the Scottish Parliament to unilaterally hold a referendum while our political gut feelings do, should be resolved in favour of our political feelings forcing a change in the law.

The problem with this argument is of course that it rests on a series of political value judgements which I hold personally and are not universally accepted, most notably that the authority of the Scottish Parliament derives from the sovereignty of the Scottish people. If this argument were deployed in the Supreme Court to defend a decision made by the Scottish Parliament to hold a referendum, it is probable that the Justices would reject these political value judgements or, even if they personally sympathise with them, deny that these ideals have the power to change the law. In that case there would be a political standoff between the Scottish Parliament and the British establishment which would not be constructive for either side. Perhaps a more sensible way forward for the Scottish Government is to look for a justification for holding a referendum by looking deeper into the current British legal order.

As I have mentioned, the reason why looking beyond the British legal order is problematic is that it involves the acceptance of certain political principles which are not universally recognised in the UK. However, I believe principles underpinning our present constitution can be found which would allow the Scottish Government to argue that the Scottish Parliament has the competence to hold a referendum on secession or full fiscal autonomy. To carry out this exercise in constitutional soul searching it is useful to look across the Atlantic to the Canadian experience. In many respects the position that the province of Quebec finds itself in within federal Canada is similar to that of Scotland within the post-devolution United Kingdom. In response to a shock referendum result returned by the people of Quebec in 1995 where the Quebec electorate voted by a narrow margin against the separatist government's plan for independence from Canada, the federal government referred the question of the legality of a Quebec unilateral declaration of independence to the Canadian Supreme Court. The reasoning and conclusions of the Court provide strong ammunition for the Scottish Government's argument that the Scottish Parliament has competence to hold a referendum.

The starting point for analysing the judgement of the Court is to note that it resoundingly rejects the strong legal positivist theory of law that I also rejected above. Particularly, it rejects the proposition that the sources of constitutional norms in Canada are limited to the express provisions of Canada's Constitution Acts. Furthermore, it denies that the task of constitutional interpretation is vested exclusively with the judiciary. Lastly, the Court rejects that legal interpretation is delimited by the text of the Constitution. According to the Court, by peering deeper into the Canadian constitutional order, rather than looking beyond it, a set of principles can be found inherent in the liberal democratic ether of the Canadian constitution which can aid its reasoning on the Quebec question. This approach is in stark contrast to my approach outlined above which relied on principles founded on certain contested political value judgements; there is strong disagreement in Scotland and more widely in the UK on sovereignty and where it lies while there is little argument in Canada over whether or not it should be a liberal democracy, albeit there may be debate over what this label entails.

The Canadian Supreme Court identified four fundamental organising principles of the unwritten Canadian constitution relevant to resolving the question over Quebec's secession, namely federalism, democracy, the rule of law and respect for minorities. What is peculiar is that it was arguably unnecessary for these unwritten principles to be deployed by the Court in the first place; in the case of secession of one of the Canadian provinces the amending procedures in Part V of the Constitution Act 1982 should operate to ensure the demands of legality are satisfied. However, the problem with this approach is that for some Quebec nationalists, Canadian federal law is seen as a fetter upon the democratic right of the people of Quebec to self-determination. The Court's basic purpose, therefore, in invoking these principles in this way was to seek to resolve the apparent dichotomy between Québécois provincial democracy on the one hand and the demands of Canadian federal legality on the other by showing that democracy is much richer and more dynamic than mere majority rule.

The Court was unable to accept the suggestion that the principle of democracy gives the body of representatives of a majority of voters in one component of the federal constitutional order the right to unilaterally alter the constitutional arrangements of the entire order. The reason was that, as well as majority rule, democracy also implies respect for the right of minorities and that for expressions of democratic will to be legitimate, they must be made through institutions and methods regarded as lawful. The Court then proceeded to explain that the lawful secession of a province of Canada must be considered in legal terms to require an amendment to the Canadian constitution which perforce would require negotiation.

In applying the liberal democratic principles it had identified the Court reasoned that if a clear majority of the people of Quebec voted in a referendum put to them by their provincial government on a clear question in favour of secession, federal and other provincial governments could not ignore that expression of democratic will. But equally, the Québécois government would not have a right to unilaterally secede from Canada on the basis of the referendum result alone. Rather, the democracy principle when viewed through the prism of the principle of federalism would impose a legal duty on the federal government and other provincial administrations to enter into bona fide negotiations with Quebec to amend the Constitution lawfully in accordance with the democratic will of the people of Quebec.

To the extent that it also operates within a liberal democratic legal order, I believe the Scottish Government may legitimately employ some of the reasoning of the Canadian Supreme Court to support the view that the Scottish Parliament has legislative competence to hold a referendum. As was mentioned above, in Canada a procedure was already in existence by which the secession of a province could be lawfully effected under Part V of the Constitution Act 1982, albeit the Supreme Court elected to neglect it opting instead to revert to constitutional theory. It is submitted that an Act of the sovereign Westminster Parliament is the moral equivalent of the Constitution Act 1982 as the proper channel by which constitutional change should be effected in the United Kingdom. However, just as the procedure under the Constitution Act 1982 frustrated the people of Quebec's expression of democratic will, I believe that by requiring an Act of the UK Parliament to ask the people of Scotland their views on Scotland's constitutional future, expression of the democratic will of the people of Scotland is also thereby frustrated and their right to self-determination denied.

If UK common law constitutional principles are examined, it becomes apparent that the British legal order is also underpinned by principles of democracy, the rule of law and protection of minorities and although we do not have a principle of federalism, we do have a similar principle - the principle of the Union state. Although a requirement for the passage of an Act of the UK Parliament to hold a referendum would satisfy the demands of legality and the rule of law, it would fail to satisfy the demands of the Scottish people's democratic right to self-determination. This is a very similar dichotomy to the one faced by the Canadian Supreme Court in relation to Quebec.

In my opinion, the way to reconcile the two countervailing demands is along the same lines as the reasoning of the Court in Canada. To satisfy the demands of the democratic principle, the Scottish Parliament should have the legislative competence to hold a referendum on independence and full fiscal autonomy without seeking permission or an Act from the Westminster Parliament. However, this should not mean the Scottish Government can unilaterally declare independence from the UK in the event of a positive result. Rather, in the event of the Scottish people voting in favour of one of the abovementioned options, in accordance with the Union state principle, a legal duty should be imposed on the UK and Scottish governments to enter into negotiations to agree the new terms of the constitutional settlement. This would allow the lawful secession of Scotland from the Union or the devolution of more powers to the Scottish Parliament while at the same time allowing the Scottish people to exercise their democratic right to self-determination.