Essay

PAIR2006: Constitutional Politics in Britain

What are the key constitutional debates surrounding the Scottish independence referendum to be held in 2014?

Written by: Petr Vak ID: 26942976 Degree course: PAIR Politics and International Relations Matriculation year: not applicable (Erasmus Exchange student) Lecturer: Dr. Alexandra Kelso

Southampton 11 April 2014

3. What are the key constitutional debates surrounding the Scottish independence referendum to be held in 2014?

Introduction
Domestic politics of the United Kingdom has undergone substantial changes as the era of constitutional reform presumably begun in 1997 (Bogdanor 2009). One of the most significant constituent of this reform was undoubtedly the process of devolution exemplified by establishing directly elected Assemblies in Wales and Northern Ireland, and, a directly elected Scottish Parliament and a Scottish Executive responsible to it on devolved matters. Although the main aim of devolution was to avoid break-up of the United Kingdom, in Scotland the nationalist welcomed devolution because they believed that it would encourage separatism rather than avert it (Bogdanor, 2009, p. 94). Bogdanors assumption was vindicated in the white paper Your Scotland, Your Voice, 2009, published as an outcome of the National Conversation consultations led by the Scottish National Party (hereinafter referred to as the SNP). Devolution was never intended as a fixed arrangement Nor does devolution needs to be Scotlands final constitutional destination (Great Britain. The Scottish Government, 2009, p. 15). Scottish independent tendencies can be thus understood as logical implication of devolution process which started in 1997. These tendencies resulted in, in nowadays British politics unprecedented, opportunity for Scotland to gain independence on the United Kingdom in a referendum which will be held on Thursday 18 September 2014. This essay, therefore, seeks to examine the key constitutional debates surrounding the Scottish autumn 2014 independence referendum. In doing so, I will predominantly use the official publications of the Scottish Government, Acts passed by the UK Parliament, as for instance the Scottish Independence Referendum Act 2013 or Scottish Independence Referendum Franchise Act 2013, and a few articles which were published in British newspapers. Adequate attention will be paid to constitutional debates about the independence referendum issues itself. Amongst the vital topics regarding the constitutional debates of Scottish Independence belong the issues who can legislate for the referendum, how should the referendum look like, who will be eligible to vote and what should the referendum question be.

The key constitutional debates surrounding the Scottish independence referendum

The most important proponent of independence is the SNP which first pledged to hold a referendum on Scottish Independence in election Manifesto when it contested the 2007 Scottish Parliament election. We are working hard to earn the trust and support of the people of Scotland and we will trust Scots to take the decision on Scotlands future in an independence referendum (The Scottish National Party, 2007, pg. 5). The SNP was unable to obtain sufficient support for the referendum in the third Scottish Parliament due to the then minority government, nevertheless it repeated its commitment to hold a referendum in a manifesto for the 2011 Scottish Parliament election in which they gained overall majority. This majority gave the SNP mandate to prepare for and subsequently hold a referendum on Scottish independence. Some ambiguities, however, emerged on the question whether the Scottish Parliament was qualified to legislate for the referendum. Prior to the scheduling of the 2014 referendum, a wide range of opinion have been expressed on the topic. The Scottish Parliament undoubtedly have the competence to legislate for any referendum on extending political powers of the Scottish Parliament within the framework of Union, but there were serious uncertainties, whether it is competent to legislate for a referendum seeking ultimately for independence. The SNP argued, that The Scottish Parliament has the power to legislate for a referendum as long as that would not change any reserved law or relate to those aspects of the constitution which are reserved by the Scotland Act 1998. The referendum question proposed in 2010 was carefully phrased to comply with that requirement (Great Britain. The Scottish Government, 2012b, p. 9). The SNP virtually insisted that the upcoming referendum would not be constitutional but only advisory and, therefore, would not have any direct consequences on the Union. This interpretation was strongly opposed, for instance Andrew Black, a political reporter of the BBC, wrote that the Scottish Parliament does, in itself, not have the authority to declare Scotland an independent country (Black 2009) as the constitutional matters were reserved to the parliament of the United Kingdom (Black 2009). Similar opinion was shared by the UK government which stated that legislation providing for a referendum on independence even on the basis proposed by the Scottish Government in 2010 would be outside the existing powers of the Scottish Parliament (Great Britain. The Scottish Government, 2012b, p. 9). These disagreement were finally solved in October 2012 when both governments signed the Edinburgh Agreement which stated, that the governments have agreed to promote an Order in Council under Section 30 of the Scotland Act 1998 in the United Kingdom and Scottish Parliaments to allow a single question referendum on Scottish independence to be held before the end of 2014. The Order will put it

beyond doubt that the Scottish Parliament can legislate for that referendum (Great Britain. HM Government & The Scottish Government, 2012, p. 2). The Scottish Parliament was, thus, competent to promote legislation to set out the date of referendum, the franchise, the wording of the question, albeit the final question was subject to the Electoral Commissions review process as well, rules on campaign financing and other rules for the conduct of the referendum. The governments also agreed that the referendum should have a clear legal base, should be conducted so as to command the confidence of parliaments, governments and people and should deliver a fair test and a decisive expression of the views of people in Scotland and a result that everyone will respect (Great Britain. HM Government & The Scottish Government, 2012, p. 2). The Electoral Commission has anon reviewed the original referendum question supported by the Scottish Parliament which was Do you agree, that Scotland should be an independent country? (Great Britain. The Scottish Government, 2012b, p. 11) and criticised it. According to the Electoral Commission, the prefacing of the question Do you agree was more likely to gather a positive response and the Commission recommended to redraft the question to ensure that it is asked in a more neutral way that avoids encouraging voters to consider one response more favourably than another (Great Britain. The Electoral Commission, 2013, p. 33). The Commission finally recommended the version Should Scotland be an independent country? as it seemed to be the most neutral, direct and concise version (The Electoral Commission, 2013). Another important constitutional issue concerning the Scottish independence referendum was the vote eligibility. The SNP wanted the eligibility to vote in the Scottish independence referendum to be the same as in the Scottish Parliament and Scottish local government elections. The reason was that the franchise for these elections (which is set out in UK legislation) most closely reflects residency in Scotland and has been chosen for that reason. The choice of this franchise reflects the internationally accepted principle that the franchise for constitutional referendums should be determined by residency and the Scottish Governments view that sovereignty lies with the people of Scotland (Great Britain. The Scottish Government, 2012b, p. 20). There were only a few disagreeing opinions as for example Labour's Baroness Elizabeth Symons, in the House of Lords, claimed all the citizens of the United Kingdom to be included in the referendum on Scottish independence as she asked: The break - up of the United Kingdom will affect all of us throughout the United Kingdom. Will we all have an equal right to have our views known and why not through a referendum?" (BBC, 2012). But this argument was rejected by the British Government (BBC, 2012). After all, the Scottish Government noted, that the UK Government has also concluded that this is the most appropriate franchise for the referendum. (Great Britain. The Scottish Government, 2012b, p. 20).

The person who is entitled to vote in the Scottish independence referendum in accordance with the Scottish Independence Referendum (Franchise) Act 2013 hence is a Commonwealth citizen, including British, a citizen of the Republic of Ireland or a relevant citizen of the European Union, is not subject to any legal incapacity to vote (Great Britain, 2013b, 1) and is a Scottish resident registered to vote (Great Britain, 2013b, 1) . Newly the eligibility to vote was extended to 16 and 17 years old (Great Britain, 2013b, 1) as 16 is the age of legal capacity in Scotland since 1991. The Scottish referendum on independence will be held under the provision of the Scottish Independence Referendum Act 2013 on the 18th September 2014 aiming to find answer to the essential question Should Scotland be an independent country? and will be conducted under auspices of Chief Counting Officer who will be appointed by Scottish ministers (Great Britain, 2013a, 2).

The Scottish referendum on Independence is genuinely an interesting topic, both from the political and judicialy-constitutional point of view. From a political point of view it offers an example of eventual establishing of a new state, which arguably could encourage other independence seeking nations and entities in Europe (such as Basque, Northern Italy etc.), although just devolution and not a full independence is a far more likely scenario in case of the Scottish referendum. From the constitutional point of view, the referendum seem as a consequence of the devolution process and besides other things it accurately illustrates the nature of the British peculiar, uncodified constitution.

Bibliography:
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GREAT BRITAIN. THE SCOTTISH GOVERNMENT. (2012b) Your Scotland, Your Referendum. Edinburgh: The Scottish Government. GREAT BRITAIN. THE SCOTTISH GOVERNMENT. (2009) Your Scotland, Your Voice: A National Conversation. Edinburgh: The Scottish Government. GRIESBACH, D. et al. (2012) Your Scotland, Your Referendum: An Analysis of Consultation Responses. Edinburgh: Scottish Government Social Research. THE SCOTTISH NATIONAL PARTY. Manifesto 2007. (2007) [Online]. Edinburgh: The Scottish National Party. Available from http://www.politicsresources.net/area/uk/ass07/man/scot/snp.pdf. [Accessed: 10th April 2014].