A Public Law on Devolution and Scotland

1. Assume that the UK Parliament has passed new legislation conferring powers on the UK government to determine, by Order, who has the right to vote in any UK referendum. The government is considering whether to make an Order extending the right to vote in the independence referendum to registered voters in England, Wales and Northern Ireland. The Scottish Government is furious and claims that this would be a breach of the Edinburgh Agreement and Sch 5, Part 1, para 5A of the Scotland Act 1998. Advise the relevant minister whether he is legally entitled to enact such an Order.

To fully advise the minister if he would be legally entitled to enact such an order, to allow registered voters in England, Wales and Northern Ireland to vote in any UK referendum. To do this we first need to understand what the Edinburgh agreement and Sch 5, Part 1, para 5A of the Scotland Act 1998 covers. The Edinburgh agreement[1] is an agreement between the Scottish Government and the United Kingdom government. This agreement was signed by both Governments on the 15th October 2012, and charted the footprint for the Scottish independence referendum on 18th September 2014. An argument brought up by Professor Adam Tomkins is that before the enactment of the Edinburgh Agreement [2] the Scottish government was acting out with its powers as it was not following Westminster’s legislative supremacy. Even with the commencement of the Edinburgh Agreement some see the UK parliament has having the final say in any laws passed and can if applicable, override any. Constitutional theorist A.C Dicey describes parliamentary supremacy as: ‘Parliament…has under the English constitution, the right to make or unmake any law whatever: and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.’[3] The Scotland Act 1998 created a devolved Parliament in Scotland. In turn this created the devolved powers that allow the Scottish Government to legislate on non-reserved issues.[4] Nevertheless Scotland gets its powers from Westminster’s constitutional supremacy rather than from its own sovereignty. This would mean that Westminster could in theory rescind any of the devolved powers and legislation given and made my Scotland. Yet Westminster has given it agreement, that the referendum should go forward making the Edinburgh agreement legally binding. The Scotland Act 1998 (Modification of Schedule 5) Order 2013 inserts the words ‘Paragraph 1 does not reserve a referendum on the independence of Scotland from the rest of the United Kingdom if the following requirements are met...’[5] This change has allowed the Scottish parliament to legally hold a referendum. This order modifies schedule 5.Paragraph 1 of part 1 of schedule 5 so that a referendum on the independence of Scotland from the rest of the United Kingdom is not reserved matter if certain requirements are met. Moreover the Referendum Bill introduced by the Scottish Government created the franchise for the referendum. The UK Government and the Scottish Government both agreed that ‘all those entitled to vote’ 3 should be able to vote in the referendum ‘The franchise enables British, Irish, qualifying Commonwealth citizens and European Union citizens resident in Scotland to vote’.[6]Furthermore Professor John Curtice has also pointed out that Northern Ireland sovereignty referendum, 1973, set a precedent for allowing only those ‘resident in one part of the UK to vote on its sovereignty’[7] In summary the referendum is now a binding legal decision as Westminster has agreed to s30 order under the Edinburgh Agreement. Moreover both Governments also agreed on who would be able to vote, and it was up to the Scottish Government to implement a franchise for the voting. This clearly stated that you had to reside in Scotland to vote. Therefore the minister would not be able to enact such an order.

2. Assume that the Order has not been made and the referendum franchise is as set out in the Scottish Independence Referendum (Franchise) Act 2013. The referendum has taken place and there is a narrow victory for the ‘no’ campaign. The Scottish government, which campaigned for a ‘yes’ vote, is advised that a much higher percentage of 16 and 17 year olds voted no than voters aged over 18, and that had they not been enfranchised, there would have been a majority for the ‘yes’ campaign. The Scottish Ministers introduce a Bill into the Scottish Parliament which states that the words ‘aged 16 or over’ in section 2(1)(a) of the Franchise Act are to be repealed and replaced with ‘aged 18 or over’. It further provides that any vote cast by someone aged under 18 on the day of the referendum is to be void and treated as if it had not been cast. Advise the Presiding Officer as to whether she should certify that the Bill is within the Scottish Parliament’s legislative competence.

To fully advise the Presiding Officer as to whether she should certify that the Bill is within the Scottish Parliament’s legislative competence we need to first understand the meaning of the Scottish Independence Referendum (Franchise) Act 2013[8] and what powers that gives to the Scottish Government in relation to the franchise. The Act 2013 defines the electorate for the referendum and allows the Scottish Parliament to create requirements about those who are entitled to vote in a referendum on the independence of Scotland. Furthermore this is including requirements for the formation of a register of young voters for the purposes of such a referendum. Furthermore the franchise will be extended to allow 16 and 17 year olds to vote in the referendum.[9] The 16 to 17 year olds would make up approximately 3% of the voters entitled to vote.[10] This has been made possible by s30 Order[11]. The franchise remains a reserved matter of the UK Government in Westminster. The Scottish Parliament’s devolved power over elections is generally limited by the Scotland Act 1998. ‘The Scotland Act 2012 devolves more power concerning the administration of elections, but does not grant authority to legislate on the extent of voting rights within Scotland.‘[12] In Summary The Presiding Officer would not be able to certify the amendments to the Franchise Act, which states that the words ‘aged 16 or over’ in section 2(1)(a) of the Franchise Act are to be repealed and replaced with ‘aged 18 or over’.The Scottish Government as mentioned previously do not have the power to do so. Only the Government in Westminster would be able to change this as this is a reserved power. Moreover as stated the 16 to 17 year olds would make up some 3% or so of the electorate eligible to vote. By removing their vote it would theoretically not give the ‘YES’ vote the majority that they say it would get. Even so, this will be the first time young voters aged under 18 years old would take part in a major public ballot in Scotland or indeed anywhere in the UK.

3. Assume that the no vote stands. The UK Parliament enacts new legislation providing that any further devolution of legislative competence to the Scottish Parliament, Welsh Assembly or Northern Ireland Assembly must first be approved by a vote in each devolved legislature and by a two thirds majority at third reading in each House of Parliament. Subsequently an Act is passed which,inter alia, makes some minor adjustments to Sch 5, Part 2, Head D of the Scotland Act 1998, which has the effect of giving the Scottish Parliament and Scottish Government increased competence in relation to renewable energy. The Scottish Parliament has agreed to the change, but neither the Welsh Assembly nor the Northern Ireland Assembly has been consulted, nor did the Act receive a two thirds majority at third reading in either House of Parliament. Advise the Scottish Government whether it is legally entitled to act on the new powers.

To fully advise the Scottish Government on whether it is legally entitled to act on the new powers we need to first understand how new legislation is brought to power. The Scottish Parliament, Northern Ireland or Welsh Assembly all have different devolved powers.[13] Scotland’s powers include policing and criminal justice; Northern Assembly don’t up till now have these powers. Both Scotland and Northern Ireland have decentralised control, which allows them to legislate on any other matter that has not been specifically acknowledged or reserved to Westminster. Wales, however has much more limited legislative powers. Wales’s assembly has powers ony over areas that have been specifically given to them by Westminster. [14]Due to this it would be difficult for each devolved legislature to vote on devolution powers they may not have any control over. The UK Parliament has the overall say in what becomes law and what does not. The UK Parliament does not need the devolved legislature in each country to agree on what the new powers should be. Even though the Irish and Welsh Assemblies have not agreed on the act, the UK Parliament have passed the act. The UK parliament have overall say on what occurs. Therefore as stated the act has been passed. Renewable energy is generally reserved matter for the UK Government as set out in the Scotland Act 1998[15]. However by passing the law it has allowed the Scottish Parliament more power over this. Due to this the Scottish Government can act on its new powers. This is due to the fact that the UK has overall say in what powers are given to each parliament/assembly. In summary there is no need for all the devolved legislators to vote on the passing of a bill, as the UK Government has he final say. Scotland therefore has the right to use the new powers as they see fit.

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[1] https://www.scotland.gov.uk/About/Government/concordats/Referendum-on-independence [2] https://ukconstitutionallaw.org/tag/scotland-act-1998/ [3] A.V. Dicey Introduction to the Study of the Law of the Constitution (1885) [4] S29 SA 1998 [5] Sch 5, Part 1, para 5A of the Scotland Act 1998 [6] https://www.scotland.gov.uk/About/Government/concordats/Referendum-on-independence#The Scottish Parliamentary franchise [7] https://www.bbc.com/news/uk-northern-ireland-19962267 [8] Scotcen - Will 16 and 17 year olds make a difference in the referendum? https://www.legislation.gov.uk/asp/2013/14/enacted [9] https://www.scotcen.org.uk/media/205540/131129_will-16-and-17-years-olds-make-a-difference.pdf [10] This calculation is based on the mid-2012 population estimates available at https://www.groscotland.gov.uk/files2/stats/population-estimates/mid2012/mid-2011-2012-pop-est.pdf. The procedure to be used in registering 16 and 17 year olds is laid out in the Scottish Independence Referendum (Franchise) Act 2013. See https://www.scottish.parliament.uk/parliamentarybusiness/Bills/60464.aspx. [11] Scotlan act 1998 https://www.legislation.gov.uk/ukpga/1998/46/section/30 [12] Heather Green: Prisoners and Other People: the Right to Vote in the Scottish Independence Referendum (Franchise) Bill - https://www.scottishconstitutionalfutures.org/OpinionandAnalysis/ViewBlogPost/tabid/1767/articleType/ArticleView/articleId/1951/Heather-Green-Prisoners-and-Other-People-the-Right-to-Vote-in-the-Scottish-Independence-Referendum-Franchise-Bill.aspx [13] Division of Powers -https://extranet.cor.europa.eu/divisionpowers/countries/MembersLP/UK/Pages/default.aspx

[14] Governance of Wales: Who is responsible for what? https://www.assemblywales.org/abthome/role-of-assembly-how-it-works/governance-of-wales.htm

[15] https://ukconstitutionallaw.org/tag/scotland-act-1998/

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