10 October 2022

The Case of the Empty Referendum

Anthony Salamone on the Supreme Court independence referendum case and the contradictions of the “advisory referendum” strategy

Anthony Salamone

If Scottish politics had only one fable, it would surely be a story of the independence debate. Whatever the state of the world, seemingly, the constitutional question is the root of so much of what does and what does not happen in Scottish political life. Nevertheless, the dispute over holding a new independence referendum has been stuck in the same holding pattern for years. The Scottish Government demands a referendum; the UK Government refuses. Beyond partisan broadsides and the occasional letter, the substantive terms of the referendum dispute have been remarkably static. Until now, of course. In late June, Nicola Sturgeon presented the Scottish Government’s long-awaited independence referendum strategy. While it has multiple components, its centrepiece is the draft bill for a referendum next October. Yet the concise bill was not alone. Its companion was a reference by the Lord Advocate to the Supreme Court on whether the operative part of the bill falls within the legislative competence of the Scottish Parliament. The Supreme Court will hear the case this week.

In legal matters, precision is paramount. It is prudent then to be clear on the purpose of this Supreme Court reference. This case does not concern whether an independence referendum should or will happen. It does not concern whether Scotland could or will become independent. Instead, the case concerns whether the draft independence referendum bill would or would not be valid law because of its connection to subjects reserved by the UK Parliament. In practice, the question is whether or not the Scottish Parliament can underwrite an independence referendum without the endorsement of the UK Government (or UK Parliament, as required). The Supreme Court may answer the question in the reference, but the Court has neither the power nor remit to resolve the entirely political dispute between the Scottish and UK Governments over holding a new referendum. While some observers may be captivated by the prospect of the judiciary considering and ruling on (one aspect of) the independence referendum dispute, in truth, this case represents a failure of politics – the failure of the Scottish and UK Governments to find some resolution to the matter of a future referendum. In fact, the actual arguments put forward by the parties to the case, as opposed to convenient headline readings, raise ample doubts about the prevailing contention that this case will somehow settle the issue of whether or when a bona fide Scottish independence referendum may take place.

The legal arguments

Across the written cases of the Lord Advocate and the Advocate General, and the written submission from the SNP, three core issues arise: (1) whether the Supreme Court should consider or answer the reference; (2) the Lord Advocate’s question on whether the relevant provision of the draft bill relates to reserved matters under the Scotland Act 1998; and (3) whether international law should inform the interpretation of the Scotland Act in this instance. Although the first issue has received far less attention than the second, it is significant in its own right – and it will determine whether the Court in fact answers the Lord Advocate’s question. In dispute is the means by which this reference was made. The Lord Advocate has utilised Paragraph 34 of Schedule 6 to the Scotland Act (the first time this procedure has ever been used), which allows a law officer to refer a question on a “devolution issue” to the Supreme Court. Yet the term “devolution issue” is specifically defined in the Act. In theory, the question should fall under one or more of those definitions – it cannot be simply anything related to devolution. Indeed, the Advocate General contends that a draft bill – a hypothetical proposal, neither introduced to the Scottish Parliament nor passed by it – does not qualify as a “devolution issue”. That argument holds that only Section 33 of the Scotland Act, which permits a law officer to refer a bill to the Supreme Court after it has been passed by the Scottish Parliament, is the sole valid means of testing the competence of such a measure before it has become law. If the Supreme Court agrees with the Advocate General’s reasoning on the appropriate mechanism of referral, then the Court may not answer the substantive question on the draft independence referendum bill at all.

That substantive question asks whether the draft bill’s provision to hold a referendum specifically on whether Scotland should become independent relates to two reserved matters – (1) the Union of the Kingdoms of Scotland and England and (2) the Parliament of the United Kingdom. The implication is that, if the provision does sufficiently relate to one or both of those reserved matters, then the bill cannot be law, because it is beyond the legislative competence of the Scottish Parliament. In other words, the Scottish Parliament would not be able to legislate for an independence referendum on its own. In theory, the reverse would also be true – if the provision does not sufficiently relate, then the Scottish Parliament could legislate for an independence referendum. However, this case concerns the interpretation of the Scotland Act (and how the Act presently exists), which could be changed by the UK Parliament. In other words, a court ruling that the draft bill is compatible with today’s Scotland Act would not necessarily mean that other current or future barriers to a referendum did not exist.

The Scottish Government’s central argument is that the Scottish Parliament can legislate for an independence referendum, as it would be an “advisory referendum” which was “not self-executing”, focused on “ascertaining the will” of the Scottish people and which had no “legal consequences”. It queries whether the “Union of the Kingdoms of Scotland and England” equates to the current United Kingdom. It contends that the only legal effects of the bill are to facilitate the referendum. Moreover, it argues that, since the purpose of the draft bill is to determine the electorate’s views, not to make Scotland independent, the bill does not sufficiently relate to reserved matters to render it outwith competence. By contrast, the UK Government’s core assertion is that the Scottish Parliament does not have the competence to legislate for an independence referendum, as it would inherently relate to reserved matters, regardless of its advisory nature, form of words, outcome or direct effects. It states that, since the Scottish Parliament was established by UK Parliament legislation, it must act within the confines of that founding legislation – and the UK Parliament never intended to confer power to hold an independence referendum (without a specific exception, like the “Section 30 Order” made for the 2014 referendum). It declares that the very fact that the Lord Advocate referred the provision to the Court, because she does not apparently have sufficient confidence that it is within competence, gives the answer: the bill is not within competence (or, at the very least, it should not be advanced). Moreover, it contends that the true purpose of the draft bill is not simply to hold a referendum, but to make Scotland independent, so its “ascertainment of views” would be the first stage to statehood.

The question of the role of international law in this case is the principal theme of the SNP’s written submission. The party argues that the right to self-determination is a core norm of international law which should inform the interpretation of the Scotland Act. In effect, the SNP contends that, because it proposed in the 2021 Scottish Parliament election campaign to hold an independence referendum, and a majority in favour of a new referendum exists in the Parliament following that election, the law should accommodate that political promise because self-determination is important. In hyperbolic terms, the SNP declares that it would be “democratically unthinkable” if an independence referendum did not happen next October, for the fact the party won the 2021 election (though it did not win a parliamentary majority), having pledged a referendum, since the Scottish people have the right to self-determination. In reality, it is difficult to imagine how international law is meaningfully applicable to this case. In brief, Scotland has determination: the people of Scotland voted to establish the new Scottish Parliament; the people elect members of the Scottish Parliament and members of the House of Commons for Scotland; the people chose to remain part of the UK in a referendum eight years ago. By any real international measure, Scotland is not oppressed. In this context, it is not persuasive that Scottish self-determination hinges solely on whether an independence referendum happens on 19 October 2023. Moreover, this line of reasoning conflates a general right to self-determination for Scotland (which should and does exist) with the legal authority for the Scottish Parliament to underwrite a unilateral independence referendum without the endorsement of the UK Government.

The political questions

At this stage, it should be evident that, while the Supreme Court may answer the substantive question at hand (if it determines that it is able and willing to do so), this case will not inherently resolve the political dispute between the Scottish and UK Governments over a new independence referendum. More to the point, this case alone will not govern whether a bona fide referendum takes place in the future. Indeed, whatever the Supreme Court’s ruling, events to date raise at least three questions that illuminate the contradictions of the Scottish Government’s independence referendum strategy.

First: What was the genesis of this reference to the Supreme Court? Statements from the Scottish Government suggest that this reference was made, proactively, to give clarity to an unanswered legal question and to put the legality of its proposed referendum beyond doubt. However, central to the Lord Advocate’s reference is the admission, mentioned in her written case, that “she would be unlikely to have the necessary degree of confidence that the Bill does not relate to a reserved matter to ‘clear’ the Bill.” In fact, that doubt is a reason given for using the Paragraph 34 of Schedule 6 procedure – the contention being that the Section 33 procedure could not be used, because the bill would otherwise never be introduced into the Scottish Parliament (or indeed passed). If the draft bill were introduced, the Minister named would have to state their view that the bill was within the legislative competence of the Scottish Parliament. Whether because of the Lord Advocate’s reservations or their own, the Scottish Ministers seemingly do not have confidence in such a view, otherwise they surely could have proceeded with the bill and no reference to the Supreme Court would have been necessary. In other words, the suggestion is that the root of the reference is not to put the legality of the referendum beyond doubt, but to assuage the Scottish Government to state that it is within competence. Should the latter be the case, the implication is that, while it has repeated often that it would only support a “lawful referendum”, the Scottish Government is unsure whether its own referendum plan is lawful.

Second: What is the purpose of a unilateral independence referendum? Beyond a legal basis (which is the focus of this case), a bona fide referendum should satisfy three tests: (1) consensus within the Scottish Parliament and between the Scottish and UK Governments on holding the referendum; (2) agreement in advance to implement its outcome (especially if the result is in favour of independence); and (3) widespread voter participation (namely, no major boycotts or mass abstentions). While the 2014 referendum met these tests, the same conditions do not exist today.  Only the SNP and Scottish Greens support a referendum in 2023; the UK Government remains opposed. No agreement exists between the Scottish and UK Governments on the former’s proposed referendum. Pro-UK political parties in Scotland, likely channelling the sentiment of a significant portion of the electorate, have indicated that they would not participate in such a referendum. In consequence, even if the Scottish Government “wins” the case, its “advisory referendum” would be more an “empty referendum” – a shell of an electoral contest devoid of the broad-based political, institutional and societal support required to give it meaning, much less effect. Such a vote would surely not offer a genuine prospect of independence. Yet, despite these glaring realities, the Scottish Government seems wholly content with holding an empty referendum. In logical terms, the suggestion is that either the Government is unfazed by a “lawful referendum” that was boycotted and resulted in very little, or the Government does want a purposeful referendum and means to achieve it incrementally – first securing a legal basis, then encouraging participation and recognition with the weight of that legal basis. In the latter instance, the objective would be to start with an empty referendum and to end with a decisive one.

Third: If the proposed independence referendum has no legal consequences, then why does it need legislation? In her written case, the Lord Advocate acknowledges that the draft bill would have legal effects, in terms of the administration of the envisaged independence referendum. However, the Scottish Government argues that the referendum would have no legal consequences – that it would not affect the UK union or the UK Parliament – and that its sole purpose would be to determine the views of the Scottish electorate on whether Scotland should become an independent state. Yet, if the Scottish Government or the SNP seeks only to test public opinion, one of them could hire a private election services provider or polling organisation to survey the electorate – with the size of sample as large as it found appropriate. Since the Scottish Government contends that its “advisory referendum” would have no legal consequences, and it understands that the UK Government has not committed to implementing the result of such a referendum, one statistically valid form of ascertaining the public’s views is surely as good as another. More to the point, the natural purpose of legislation is to create (or amend) consequences. Where legislation for a referendum, for instance, provides for the expenditure of public funds, gives the imprimatur of the state or even attracts international recognition, it creates consequences which surely have a material impact on the referendum itself, the subject matter under consideration and the implications of the referendum result. If the Scottish Government intends to establish a referendum through legislation, the rights and obligations of the legal system would apply.

The logical consequences

Irrespective of its outcome, this Supreme Court case will produce a series of logical consequences for the Scottish independence debate. First, it will shift public frustration on the referendum dispute, in some measure, from the political system to the judiciary. However the Court rules, many in Scotland will be disappointed. If the Court says that the bill is within the legislative competence of the Scottish Parliament, some supporters of the UK union will be despondent. If the Court says that the bill is outwith legislative competence or declines to answer the question, some supporters of independence will be dejected. In any scenario, the failure of the parties and governments in the political system to resolve the issue of whether or when to hold a new independence referendum risks both directing unwarranted ire at the judiciary and raising unrealistic expectations of the Court’s ability to “settle” an inherently political matter. The Scottish Government has not aided the situation by repeatedly prejudging the outcome – making abundantly plain its disapproval of the prospect of the draft bill not being found within the Scottish Parliament’s competence. Indeed, this reference began with the Scottish Government already having adopted a definite position on the question being posed. As the SNP’s written submission makes clear, the party believes that the law should be interpreted in such a way as to give legal effect to its political promise of holding an independence referendum during this parliamentary term, somewhat independently of the actual content of the law, and regardless of the fact that the party made that promise apparently without knowing how to fulfil it in legal terms.

Second, the UK Government and the UK Parliament will remain powerful actors capable of reshaping the constitutional landscape in ways that the Scottish Government and the Scottish Parliament are simply unequipped to do under the system of devolution. The entirety of this case is focused on the Scotland Act 1998. The UK Parliament retains the ability to alter the Scotland Act at any time. The only quasi-permanence is the continued existence of the Scottish Parliament and Government, whose disestablishment would require public support in a referendum (though that provision could be removed). In short, if the Supreme Court were to rule that the draft bill was within the Scottish Parliament’s legislative competence, the UK Parliament could simply change the Scotland Act to rule out that eventuality. Such an action may be socially disapproved or politically unwise, but it would be perfectly possible nonetheless. The UK Government could refer a passed bill to the Supreme Court under Section 33 of the Scotland Act, or it could develop new legislation designed to define or limit the prospect of Scottish independence. As I have noted, any viable pathway to independence would require cooperation between the Scottish and UK Governments. The central premise of the Scottish Government’s current independence referendum strategy is to establish such a pathway without that cooperation, at least at the referendum stage. That approach is unlikely to yield great results.

Third, the case of the empty referendum will remain a mystery. In a hypothetical scenario, say that the Supreme Court rules that the draft bill is within the Scottish Parliament’s legislative competence and the UK Government and Parliament take no further action to prevent such a referendum. However, the two governments refuse to discuss the issue and no bilateral agreement exists on the referendum or the implementation of its result. The Scottish Government advances its referendum bill, which eventually becomes law, but only with the support of pro-independence parties. Meanwhile, Scottish pro-UK parties declare that they will boycott the referendum and they encourage their members and supporters to do the same. Continuing the hypothetical, say the referendum does indeed happen in October 2023. The referendum campaign and wider debate are remarkably one-sided, and somewhat void, as only pro-independence voices participate for the most part. On polling day, turnout is severely low (say 45% at best), as large numbers of voters skip the contest. The referendum result is an “overwhelming” majority for independence, as a result of the boycott by the pro-UK side. The UK Government declares that it takes note of the result, but it does nothing. The Scottish Government seeks to open negotiations with the UK Government on making Scotland an independent state, but the UK Government declines. The EU Member States and most other members of the international community make as little comment as possible, generally deferring to the UK Government. The full consequences of the empty referendum are in evidence: a dead end. While the merits of this strategy would remain obscure, the question to its proponents would be clear: What would happen next?

Anthony Salamone FRSA is Managing Director of European Merchants

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