Consultations on Scotland's constitutional future


The future of Scotland within the UK has been the subject of much recent debate. Both the UK and the Scottish Government are consulting on Scotland's constitutional future; or rather on the referendum to determine Scotland's constitutional future. The UK Government Consultation (the UK Consultation) was published on 11 January 2012 and is open until 9 March 2012. The Scottish Government Consultation(the Scottish Consultation) was published on 25 January 2012 and runs until 11 May 2012.

Why two consultations?

To state the obvious, Scottish independence is a hot political issue and the two Governments have very different preferred outcomes.  The Scottish Government, formed by the SNP, advocates independence for Scotland. The UK Government supports maintenance of the union with the rest of the UK.  There is however agreement that an independence referendum should be held. This was a key SNP commitment in the 2011 Scottish Parliament election campaign and, the SNP having won a clear majority in that election, the UK Government recognises the mandate for an independence referendum. The UK Consultation states "we will not stand in the way of a referendum on independence; the future of Scotland's place within the United Kingdom is for people in Scotland to vote on."  But here the agreement ends. The Governments' views on whether the Scottish Parliament can introduce a referendum Bill, the timing and terms of any referendum, are very different.

The competence issue

A preliminary issue is which Parliament can enact the legislation necessary for an independence referendum. The UK Government states that the Scottish Parliament currently has no legislative competence to bring forward a referendum Bill. The Scotland Act 1998, which establishes the Scottish Parliament and defines its powers, provides that the Scottish Parliament may only legislate on matters that are not reserved to the UK Parliament. One such reserved matter is "the Union of the Kingdoms of Scotland and England". The UK Consultation concludes that enabling legislation for an independence referendum, even if the referendum was described as "advisory", is outwith the Scottish Parliament's powers, would be open to legal challenge, and a legal challenge would be successful.

The Scottish Government takes a different view, stating that a referendum question, if carefully phrased, could comply with the restriction on the Scottish Parliament's powers. It also asserts that legislating for a separate question on the devolution of further powers to the Scottish Parliament (the so-called "devolution max" option) is competent. A draft Referendum Bill is included in the Scottish Consultation.

Resolving the issue?

The UK Government has offered to bring forward legislation to confer legislative competence on the Scottish Parliament. Its preferred option is a Section 30 Order to modify the legislative competence of the Scottish Parliament and allow a referendum Bill to be brought forward in the Scottish Parliament. A draft Order is included in the UK Consultation. The Order would have to be approved by the Scottish Parliament and both Houses of the UK Parliament. The Scottish Government has stated that it is ready to work with the UK Government to address their concerns and put the referendum beyond the possibility of legal challenge.

The detailed issues

So why do the Governments not just agree on a Section 30 Order? The competence question may significantly influence the terms of the referendum: what question or questions will be asked; when will the vote be held; who will be eligible to vote; and who will oversee the process? If the Scottish Parliament could independently legislate, these matters could be determined by the Scottish Parliament with its SNP majority. If UK legislation is required then the UK Government retains greater control over the referendum. The UK Consultation's draft Section 30 Order contains several terms that are unacceptable to the Scottish Government.

The main differences between the two Governments' positions are summarised below:

The Issue Scottish Government Consultation UK Government Consultation
The power to legislate for a referendum? The Scottish Parliament could legislate if the question is carefully phrased to comply with restrictions on legislative competence. Constitutional matters, including the future of the Union, are reserved to the UK Parliament.  The Scottish Parliament does not have the power to legislate for a referendum and a legal challenge to the Bill would likely be successful.
The solution?
Ready to work with the UK Government to address their concerns and put the referendum beyond the possibility of legal challenge.

The Scottish Government does not accept the conditions on a Section 30 order. It is for the Scottish Parliament to decide the date, terms and rules of a referendum.
The preferred option is a Section 30 Order. This would allow a referendum Bill (subject to the restrictions of the Order) to be introduced in the Scottish Parliament.

The UK Government could also legislate directly through a UK Parliament Referendum Bill or through an amendment to the Scotland Bill currently going through the UK Parliament.
Proposed question? 
"Do you agree that Scotland should be an independent country?" No question is specified but there should be "a single, straightforward question" on independence.
A further question? Willing to include a further question about "devolution max" if this attracts sufficient support in the Consultation.  
No further question should be included as "devolution max" is a separate constitutional issue.
Eligibility to vote? The current Scottish Parliament election franchise plus 16 and 17 year olds eligible to be included on the electoral register. The current Scottish Parliament election franchise.
Date of referendum? 
Autumn 2014.
No date is specified but referendum should be "as soon as possible".
Referendum oversight?
Both the Electoral management Board and the Electoral Commission to have a role. The referendum should be overseen by the Electoral Commission.

So what happens now?

The two Governments and two Consultations start from very different positions. The UK Consultation recommends a single, straightforward question, put to the existing Scottish Parliament franchise as soon as possible. The Scottish Consultation specifies a preferred question on independence but allows for a further question on "devolution max". It recommends inclusion of 16 and 17 year olds in the referendum franchise and defers the referendum to the autumn of 2014. Both Consultations justify their recommendations as designed to produce a fair and decisive result. The starting position of both Governments no doubt also reflects underlying political judgements.

The UK and Scottish Governments have started negotiations on the referendum. It is in neither Government's interest that a referendum Bill or result is challenged in the courts or that one Government is seen to be preventing a vote. Therefore it seems likely that agreement will ultimately be reached on terms under which the Scottish Parliament can legislate for an independence referendum. Of course the two Consultations will be running parallel to these negotiations and the Consultation responses may yet influence the final outcome. Widespread support for one set of recommendations would strengthen the bargaining position of the relevant Government. Conversely, and in a context of two Consultations on the same matter, significant support for both sets of recommendations will make for interesting times.