The Agreement on a referendum
on independence for Scotland|
1. In January 2012 the UK and Scottish Governments
each published a consultation paper on their proposals for the
delivery of a referendum on Scottish independence.
We published a report on the matter in February 2012.
The broader political background is summarised in paragraphs 1
to 5 of that report.
2. On 15 October 2012 the UK and Scottish Governments
signed an Agreement on a Referendum on Independence for Scotland.
Attached to the Agreement is a draft Order in Council which, under
the terms of section 30 of the Scotland Act 1998, will devolve
to the Scottish Parliament the competence to legislate for a referendum
to be held before the end of 2014 on whether Scotland should become
independent of the rest of the United Kingdom.
3. Given its subject matter, the draft Order
in Council is clearly of great constitutional significance. We
therefore publish this report on the legal and constitutional
matters arising from the draft Order in Council and accompanying
Agreement, for the information of the House. We wrote to the
Electoral Commission and to the Electoral Management Board for
Scotland for their views on what the Agreement says about the
roles they are expected to play in the forthcoming referendum
process. Their responses are published on our webpages. We are
grateful to the Electoral Commission and to the Electoral Management
Board for their speedy and helpful responses to our questions.
Our February 2012 report
4. Our February 2012 report dealt with two main
issues in the light of the two Governments' consultation papers.
First, on the question of legislative competence, we were firmly
of the view that the UK Government's legal analysis was correct:
namely, that the Scotland Act 1998 devolves no power to the Scottish
Parliament to pass an Act purporting to authorise a referendum
Given the need to satisfy the fundamental constitutional principle
of the rule of law, and in recognition of the Scottish Government's
political mandate, we welcomed the core proposal contained in
Scotland's Constitutional Future that an Order be made
under section 30 of the Scotland Act 1998 to confer on the Scottish
Parliament the competence to legislate for a referendum on Scottish
5. There were 1,400 responses to the UK Government's
consultation on this matter:
72% wanted the Scottish Parliament to be given the power to legislate
for a referendum and, of these, 63% stated that they supported
the use of a section 30 Order.
6. Secondly, as regards the nature and design
of the referendum question, we highlighted the twin constitutional
imperatives that referendums must beand must manifestly
be seen to befair and clear-cut. The committee concluded
that a single question should be asked on independence and that
the Electoral Commission has a vital role to play in reviewing
any proposed wording.
7. Again, these views were supported by large
majorities of the respondents to the UK Government's consultation
(namely, 75% of responses on whether there should be a single
question on independence and 86% of responses on the role of the
Electoral Commission). In the Scottish Government's consultation
exercise, 62% of relevant responses supported a single question
on independence; a majority were in broad agreement with the proposed
role(s) for the Electoral Commission and the Electoral Management
8. We welcome the fact that the Agreement
reached between the two Governments accords with our previous
recommendations. The question of legislative competence is addressed,
it is intended that the referendum will pose a single question
on independence, and the Electoral Commission will play the lead
role in advising on the referendum.
The Agreement package
9. The Agreement between the UK Government and
the Scottish Government on 15 October 2012 comprises three elements:
a one-page Agreement signed by the Prime Minister and the Secretary
of State and by the First and Deputy First Ministers of Scotland
("the Agreement"); a 30-paragraph Memorandum of Agreement
(MoA); and the draft statutory instrument, now formally laid before
Parliament, to be made under section 30 of the Scotland Act 1998
("the draft section 30 Order").
10. Section 30(2) of the Scotland Act 1998 provides
that "Her Majesty may by Order in Council make any modifications
of Schedule 4 or 5 which She considers necessary or expedient".
Schedule 5 to the Scotland Act 1998 lists the matters that are
reserved to the United Kingdom Parliament. If the Scottish Parliament
purports to legislate on a reserved matter, that legislation is
liable to be held by the courts not to be law (see section 29(1)).
The Union is listed as a reserved matter in paragraph 1 of Part
1 of Schedule 5. Article 3 of the draft section 30 Order provides
"(1) Paragraph 1 [of Part 1 of Schedule 5 to
the Scotland Act 1998] does not reserve a referendum on the independence
of Scotland from the rest of the United Kingdom if the following
requirements are met.
(2) The date of the poll at the referendum must not
be the date of the poll at any other referendum held under provision
made by the Parliament.
(3) The date of the poll at the referendum must be
no later than 31 December 2014.
(4) There must be only one ballot paper at the referendum,
and the ballot paper must give the voter a choice between only
11. No section 30 Order may be made by Her Majesty
in Council unless it has been approved by both Houses of the UK
Parliament and by the Scottish Parliament.
Ten Orders have been made under section 30(2).
Parliamentary consideration of the draft Order in Council is expected
to take place during the period from November 2012 to January
2013. Subject to parliamentary approval, it is expected that the
Order will be formally made at a meeting of the Privy Council
in February 2013.
At that point it may be expected that the Scottish Government
will introduce a Referendum (Scotland) Bill into the Scottish
12. The one-page Agreement signed by Ministers
confirms that the parties "will work together to ensure that
a referendum on Scottish independence can take place". We
welcome the commitment of both Governments that "the referendum
should meet the highest standards of fairness, transparency and
propriety, informed by consultation and independent expert advice".
Basic democratic principle demands nothing less.
13. Running to 30 paragraphs, the MoA includes
"elements that have been agreed by the governments on a non-statutory
include the franchise for the referendum, campaign finance and
other matters of electoral regulation and administration. The
MoA commits the two Governments "to continue to work together
constructively in the light of the outcome [of the referendum],
whatever it is, in the best interests of the people of Scotland
and of the rest of the United Kingdom".
14. The agreement package was the subject of
a ministerial statement made in each House on 15 October.
Members raised concerns about a range of constitutional matters,
including the nature of the Order-making process, the design of
the referendum question, the franchise, and the conduct and regulation
of the referendum campaign.
Constitutional process and possible
15. The draft section 30 Order is skeletal in
nature. Much of the detail of the independence referendum will
be for the Scottish Parliament to determine in legislation. The
wording of the referendum question, the franchise, matters of
campaign finance and the detailed roles of the Electoral Commission
and other bodies are left for the Scottish Parliament. This reflects
a key tenet of the Agreement that the referendum "should
be legislated for by the Scottish Parliament".
16. Of course, instead of a section 30 Order,
the UK Parliament could pass primary legislation to ensure that
a referendum on Scottish independence is lawful. This possibility
was considered by the UK Government: at the time of the publication
of the two Governments' consultation papers in January the Scotland
Bill was still before the House of Lords (the Scotland Act 2012
was enacted on 1 May 2012). Whether that Bill should have been
used as a vehicle for the Westminster Parliament to legislate
directly for an independence referendum was a matter canvassed
in the UK Government's consultation paper. The Government thought
that it should not be, for a variety of reasons. This view was
confirmed in the consultation exercise, in which only "a
very small number of respondents supported the use of the Scotland
Bill to provide power to the Scottish Parliament to legislate
for a referendum".
The matter was debated in the House of Lords during the passage
of the Scotland Bill. Members examined in some detail the Government's
preference for proceeding via a section 30 Order rather than via
17. The matter is primarily one of political
judgement. It is the Scottish Government (and not the UK Government)
that was elected on a manifesto commitment to hold a referendum;
it is the Scottish Government (and not the UK Government) that
is pursuing independence for Scotland; and it is the view of both
Governments that the decision on whether or not Scotland should
become independent should be taken by the electorate in Scotland
(and not by the electorate in the whole of the United Kingdom).
For these reasons it has come to be seen, especially north of
the border, that the referendum should be "made in Scotland".
Indeed, the Secretary of State acknowledged as much in his foreword
to the UK Government's consultation paper, when he wrote that
"we want to assist people in Scotland, in all reasonable
ways, to participate in a referendum 'made in Scotland' whose
outcome is legal, fair and decisive". The section 30 route
allows for this: first, the section 30 Order itself may not be
made without the approval of the Scottish Parliament and, secondly,
the legislation to establish the referendum will be an Act of
the Scottish Parliament.
18. Nonetheless, the decision to proceed via
the section 30 route rather than by enacting primary legislation
at Westminster has a number of significant constitutional and
legal consequences. Two seem particularly important.
19. The first is that proceeding via the section
30 route significantly curtails the opportunity of the UK Parliament
to have an effective input into the process. The Agreement was
negotiated in private between the UK and Scottish Governments.
In this respect, we note that in their preface to the UK Government's
consultation paper, the Prime Minister and Deputy Prime Minister
wrote that "the future of Scotland must not be worked out
in secret, behind closed doors".
20. Neither the UK nor the Scottish Parliaments
were able to make a direct contribution to that process of negotiation.
The Agreement was not published in draft. There was no debate
in either House of the UK Parliament on the Agreement until after
it had been finalised. Furthermore, when it comes to the forthcoming
parliamentary debates on the draft section 30 Order, neither the
House of Commons, the House of Lords, nor the Scottish Parliament
will be able to amend the Order. Legislators will only be able
to vote on whether the draft Order as laid should be approved
under an affirmative resolution procedure. Formally, the Government
were bound to use this procedure: there is no provision in the
Scotland Act 1998 for orders amending the list of reserved powers
in Schedule 5 to be made subject to any form of super-affirmative
21. The House may consider that, despite the
constitutional significance of the draft section 30 Order, the
procedure makes it impossible to ensure fully effective scrutiny.
22. In our report last year on The Process
of Constitutional Change
we recommended that proposals for significant constitutional change
should be the subject of public consultationand the extensive
public consultation exercises undertaken by both Governments are
to be welcomedbut we also stressed the importance of effective
parliamentary scrutiny. It is hard to avoid the conclusion
that more could have been done to include the United Kingdom Parliament
in this process.
23. A second constitutional and legal consequence
of adopting the section 30 route is that there can be no guarantee
that this manner of proceeding precludes litigation. The two Governments
are now agreed that the referendum should "have a clear legal
base". In their consultation paper the UK Government were
anxious to ensure that any Scottish independence referendum was
clearly lawful. The Government stated that they did not "believe
that it is in Scotland's interests to have Scotland's constitutional
future decided in court".
24. Delegated legislationincluding delegated
legislation that is approved by Parliamentis, in principle,
judicially reviewable. If a claimant (or, in Scotland, a petitioner)
took the view that the section 30 Order was ultra vires
the Scotland Act 1998, for example, he or she may be able to seek
a judicial review. There would be a series of obstacles for such
a claim (or petition) to overcome. The claimant or petitioner
would have to show that he or she was "sufficiently interested"
in the matter for the court to recognise his or her standing.
The claim would have to show that the Order in Council was not
"necessary or expedient" within the meaning of section
30(2) of the Scotland Act.
And the court would have to be persuaded that the Order was unlawful
even though it had been approved by both Houses of Parliament
and by the Scottish Parliament.
These obstacles are considerable: we do not consider that any
such claim or petition would be likely to succeed. But we cannot
rule out the possibility that such a claim or petition might nonetheless
be brought, with all the consequences of the potential for delay
and disruption and for bringing the courts into the heart of the
process that such an action may have.
25. For example, a challenge to the section 30
Order could conceivably be brought on Padfield grounds.
In Padfield (one of the leading cases on administrative
law in the 20th century) the House of Lords held that statutory
powers may be used only to promoteand not to frustratethe
policy and objects of the Act that conferred the powers in question.
The policy and objects of an Act are a matter of law for the court
to determine, bearing in mind the Act as a whole. If a statutory
power is used to frustrate the policy and objects of the relevant
Act, this may amount to an improper purpose, with the exercise
of the power being held to be unlawful. It has been authoritatively
said both in the Court of Session and in the UK Supreme Court
that the purpose of the Scotland Act 1998indeed, "the
whole scheme of devolution"is that "the redistribution
of powers should not impair but improve the government of the
United Kingdom as a whole".
It might then be argued that it is an improper use of a devolution
statute (such as the Scotland Act 1998) to arrange for a referendum
on the different and separate issue of independence. A number
of the Government's own statements might be prayed in aid in support
of such a contention. Their January 2012 consultation paper, in
arguing against the notion that the referendum should contain
two questions, one on independence and another on further devolution,
stated that independence and devolution are "two different
issues" each of which required to be "considered separately"
(a proposition with which we agreed).
26. Furthermore, and although it clearly has
the character of a political and administrative set of commitments,
it is conceivable that the MoA could be brought before the courts.
We note that, unlike the general memorandum of understanding on
intergovernmental relations in the UK,
the MoA does not specifically deny the creation of legal obligations
between the parties. Were one of the Governments to breach the
Agreement, the possibility arises of legally actionable "legitimate
expectations" either of a procedural or substantive nature.
This too might be at the suit of a third party in the guise of
a "concerned citizen".
27. That said, the language of the MoA repays
close attention. Some paragraphs record substantive matters on
which the two Governments are agreed. Other paragraphs record
agreement solely that certain matters are to be left to the Scottish
Government and Parliament. An example is the Scottish Government's
proposal to allow 16 and 17 year-olds to vote in the referendum.
The UK Government have agreed that this matter is for the Scottish
Government and Parliament to decide, whilst making it clear that
it is not the policy of the UK Government for the franchise to
be extended to minors. Yet other paragraphs simply describe matters
of law and practice in the UK (such as under the Political Parties,
Elections and Referendums Act 2000 (PPERA)), stating that such
UK practice is intended to provide the basis for future practice
in Scotland. It may be, therefore, that irrespective of the legal
status of the MoA as a whole, different provisions within the
MoA are capable of generating different levels or different kinds
of legal or constitutional obligations or expectations.
28. It cannot safely be said that the arrangements
proposed put the matter beyond all legal challenge.
The referendum question
29. The draft section 30 Order stipulates that
there should be a single question on independence. This is designed
to rule out the possibility of there being a second question on
further devolution of powers to Scotland. The Scottish Government
had left this possibility open in their consultation paper;
the UK Government were firmly against it;
and in our earlier report on the matter we supported the UK Government's
position. As is noted
above, both consultation exercises revealed large majorities in
favour of having a single question on independence and no second
question on "devo max".
30. We welcome the provision in the draft
Order that "there must be only one ballot paper at the referendum,
and the ballot paper must give the voter a choice between only
two responses". Likewise, as a guard against "side-stepping"
that requirement through a separate but simultaneous referendum
on some form of enhanced devolution, we welcome the further
provision that "the date of the poll at the referendum must
not be the date of the poll at any other referendum held under
provision made by the Parliament".
31. Neither the draft section 30 Order nor any
other part of the Agreement stipulates what the referendum question
is to be. This will be a matter for the Scottish Government to
propose and for the Scottish Parliament to determine.
32. It is easy to see that there may be real
concerns about a particular wording.
The question proposed by the Scottish Government in Your Scotland,
Your Referendum was: "Do you agree that Scotland should
be an independent country?" At least four problems have been
identified with this formulation: first, that it is a leading
that it asks a question about what Scotland is rather than about
what Scotland should or should not become; thirdly, that it asks
about whether Scotland should be an independent country rather
than an independent state; and fourthly that it does not specify
that the consequence of independence would be that Scotland would
leave the United Kingdom. We are concerned about whether a
referendum on independence will be intelligible unless it specifies
that the consequence of independence is Scotland leaving the United
33. The consultation paper Your Scotland,
Your Referendum did not specify that the Electoral Commission
would perform the role it plays in respect of UK referendums of
formally reviewing a proposed referendum question for intelligibility.
For reasons of independence, experience and expertise, our previous
report identified "a compelling case" for having the
Electoral Commission perform this role in respect of any referendum
on Scottish independence.
The Electoral Commission's review process considers whether referendum
questions present the options to voters "clearly, simply
In its written evidence to us the Commission elaborated on this,
saying that it will look at whether the proposed question "is
easy to understand, is to the point, is unambiguous, avoids encouraging
voters to consider one response more favourably than another [and]
avoids misleading voters".
We welcome the commitment in the Memorandum of Agreement
to read across the PPERA procedure, such that the Electoral Commission
will consider whether the referendum question proposed by the
Scottish Government presents the options to voters clearly, simply
and neutrally and will report accordingly to the Scottish Parliament
(as the legislator of the Referendum Act).
34. We reiterate that expert and independent
review of referendum questions is an important constitutional
check on executive power, one that clearly facilitates proper
We trust and believe that the Electoral Commission will be rigorous
in assessing the question and will give candid and fearless advice
on the wording proposed by the Scottish Government.
35. As would be the case for the UK Government
and Parliament under PPERA, there is nothing in the MoA or in
the draft section 30 Order to compel either the Scottish Government
or the Scottish Parliament to accept any recommendations made
by the Electoral Commission as to the "intelligibility"
of the referendum question. As would be the case in Westminster,
however, we would expect any departure from the Electoral Commission's
recommendations on the wording of the referendum question to be
robustly scrutinised. We hope that there will be no such departure.
Following the advice of the Electoral Commission would be compatible
with the commitment of the Scottish Government in the MoA that
"the referendum should meet the highest standards of fairness,
transparency and propriety, informed by consultation and independent
36. We have two concerns in relation to the referendum
question which we draw to the attention of the House. The first
is that, while the draft section 30 Order provides that a referendum
on "the independence of Scotland from the rest of the United
Kingdom" is not a reserved matter,
the precise meaning of this phrase remains unclear.
Exactly what the Scottish Government mean by "independence"
is unknown. The Scottish Government have undertaken to publish
the equivalent of a white paper setting out their vision of independence
in the autumn of 2013. On present timetables this will occur well
after the Referendum (Scotland) Bill has been introduced into
the Scottish Parliament and, more importantly perhaps, after the
Electoral Commission will have assessed the referendum question
for intelligibility. It is hard to see how the Scottish Parliament
and the Electoral Commission will be able to undertake their roles
fully and effectively, given that they will learn what the Scottish
Government mean by "independence" only much later in
37. Our second concern in relation to the referendum
question arises from the specification in the draft section 30
Order that the independence referendum may not be held on the
same day as any other referendum. As noted above, this means that
there can be no independence referendum taking place alongside,
most obviously, a referendum on "devo max". Yet the
draft section 30 Order, while it devolves competence to the Scottish
Parliament to legislate for an independence referendum, devolves
no competence to the Scottish Parliament to legislate for a referendum
on "devo max". Does this imply that the UK Government
now agree with the assertions previously made by the Scottish
Government that the
Scottish Parliament already possesses the legislative competence
to pass an Act authorising a referendum on "devo max"
or on other schemes of extended devolution of powers to Scotland?
The House may wish to consider why the draft section 30 Order
provides that the independence referendum must take place on a
day on which no other referendum takes place if the Scottish Parliament
does not have competence to legislate for a referendum on "devo
38. Both Governments have agreed that all those
entitled to vote in Scottish parliamentary and local elections
should be able to vote in the referendum.
This is both a practical arrangement and one which reflects the
view that "the future of Scotland's place within the United
Kingdom is for people in Scotland to vote on."
39. The UK Government have agreed, however, that
the Scottish Government may have the option of proposing an extension
of the franchise to allow 16 and 17 year-olds to vote in the referendum.
According to the MoA, the Scottish Government's decision will
be informed by the analysis of responses to its consultation paper
and by "practical considerations".
It will be for the Scottish Parliament to approve the referendum
franchise, "as it would be for any referendum on devolved
40. The Health Boards (Membership and Elections)
(Scotland) Act 2009, an Act of the Scottish Parliament, provides
for health boards to be elected on a pilot basis. The Act provides
that 16 and 17 year-olds may vote in such elections. Two such
elections took place in 2010. An interim report on them has been
notes that turnout in the two pilot elections was low (23% in
Dumfries and Galloway and 14% in Fife) and even lower among 16
and 17 year-olds (13% in Dumfries and Galloway and 7% in Fife).
A total of 625 16 and 17 year-olds voted in the two elections.
Under the Crofting Commission (Elections) (Scotland) Regulations
2011, 16 and 17 year-olds may likewise vote in elections to the
Crofting Commission, but only if (like any other voter in these
elections) their name has been entered on the Register of Crofts.
It is questionable whether these precedents are relevant to a
referendum on independence.
41. In our report The Process of Constitutional
Change we drew attention to the risks of anomaly and unintended
consequence associated with an ad hoc and piecemeal approach to
The House may consider that the proposed extension of the franchise
to 16 and 17 year-olds for the purpose of the referendum on independence
illustrates such risks.
42. The problems of electoral registration posed
by the proposed extension of the franchise to 16 and 17 year-olds
were analysed by the Electoral Commission in its response to the
two Governments' consultation papers.
The Commission noted that, were the provisions of the Draft Bill
attached to the Scottish Government's consultation paper to be
enacted, 17 year-olds would be eligible to be registered to vote,
but 16 year-olds would be so eligible only if their birthday was
on or after 30 November. Thus, the vast majority of 16 year-olds
would be ineligible: one cannot vote unless one is lawfully on
the register; and one cannot be placed lawfully on the register
unless one is an adult or an attainer (that is, a person who will
reach his or her 18th birthday within the coming 14 months). The
Electoral Commission concluded that "it is unclear exactly
how the Scottish Government's policy of lowering the voting age
to 16 is intended to apply to the referendum".
The First Minister of Scotland indicated in his speech to the
recent SNP Conference in Perth that the Scottish Government would
introduce into the Scottish Parliament a paving bill, preparing
for the extension of the franchise in the referendum to 16 and
43. There may be a number of legal problems
associated with the proposed extension of the franchise to 16
and 17 year-olds. There may be data protection implications,
for example, if minors are included on the register.
The register is a public document, which records the names and
addresses of those registered. The edited register is made available
for sale to commercial and charitable organisations.
44. We note that those responsible for electoral
registration in Scotland will be preparing not only for the referendum
on independence but also for the transition from household voter
registration to individual voter registration (IER). The Electoral
Registration and Administration Bill currently before Parliament
makes provision for IER, which has been described by the Electoral
Commission as "the biggest change to the voter registration
process since the universal franchise".
In correspondence following our recent report on the Bill,
the Minister for Political and Constitutional Reform, Chloe Smith MP,
wrote of "a phased change taking place over two years".
The Electoral Commission has emphasised to us that all relevant
authorities, including the UK and Scottish Governments, must "consider
carefully the wider implications of the introduction of IER for
participation in the Scottish referendum". It appears that
"special communications strategies" are likely to be
required so that electors in Scotland understand what they need
to do in order that they are registered and can vote in the independence
resources for such communications will be for the Scottish Government
and Scottish Parliament to provide.
45. In our report on the Electoral Registration
and Administration Bill, we highlighted the fundamental constitutional
importance of the right to vote. If the decision is made to
introduce voting for 16 and 17 year-olds for the independence
referendum, the relevant authorities must ensure, in accordance
with their constitutional responsibilities of fairness and equal
treatment, that no such person is denied the right to vote by
inadequate processes of or insufficient funding for electoral
registration and administration.
The Electoral Commission and the
Electoral Management Board
46. The Electoral Commission is a UK-wide body.
Created by PPERA, it has ten Commissioners, including one for
Scotland (John McCormick) and one senior member of the Scottish
National Party (Sir George Reid). The Electoral Management
Board (EMB) is a Scottish body, formally established by the Local
Electoral Administration (Scotland) Act 2011 (an Act of the Scottish
Parliament). The Board comprises eight members, with a mix of
Returning Officers and Electoral Registration Officers. These
are appointed by a Convener who is in turn appointed by Scottish
47. The MoA stipulates
that oversight of the Scottish independence referendum should
be shared between these bodies, as follows: the Electoral Commission
will have responsibility for commenting on the wording of the
referendum question, for the registration of campaigners, for
designating the lead campaign organisation, for regulating campaign
spending and donations, for giving grants to lead campaign organisations,
for publishing guidance for permitted participants, and for reporting
on the referendum process. These are all functions which the Electoral
Commission already has in respect of UK referendums where PPERA
applies. For the Scottish independence referendum the Electoral
Commission will report to the Scottish Parliament (for PPERA referendums
it reports to the UK Parliament). The EMB will have responsibility
for the conduct of the poll and for the announcement of the result.
For PPERA referendums these functions are carried out by the Electoral
Commission, but the EMB already carries out these functions in
respect of local government and parliamentary elections in Scotland.
The Scottish Government propose that the Chief Counting Officer
(CCO) for the referendum should be the Convener of the EMB.
48. As their written evidence to us makes clear,
the Electoral Commission and the EMB have a close working relationship.
The Commission confirms that the proposed division of responsibilities
"worked well at the recent local government elections in
EMB agrees: "a partnership exists in which both organisations
are aware of their distinct roles but work well together."
The Commission also refers to "areas of overlap where a joined
up approach from the [two bodies] will be desirable". For
example, "it may be beneficial to campaigners to have one
set of guidance covering all aspects, as opposed to separate streams
49. The Electoral Commission and the EMB both
highlight the EMB's need for additional capacity and expertise.
Whereas the EMB "currently operates with limited dedicated
role of the EMB (and CCO) will clearly be magnified in the referendum
on independence. We welcome the Electoral Commission's intention
of publishing in autumn 2013 an interim statement on preparedness
for the referendum, including on the preparedness of the EMB.
50. We note the Electoral Commission's concern
that the appointment of the CCO (the Convenor of the EMB) by Scottish
Ministers may "risk compromising the perception of the CCO's
capacity to deliver her statutory responsibilities independently".
The Commission recommends that "the CCO be appointed by and
accountable to the Scottish Parliament as opposed to Ministers."
Campaign finance and the referendum
51. The detailed referendum rules, governing
such matters as campaign finance, will be provided for by (or
under the authority of) the Referendum (Scotland) Bill, once that
measure has been passed by the Scottish Parliament. Two particular
matters are dealt with in some detail in article 4 of the draft
section 30 Order: broadcasting and free mail-shots. These appear
in the draft Order because otherwise the Scottish Parliament would
have no competence to legislate for them, regulation of broadcasting
and postal services being reserved matters.
52. The MoA reveals how much in this area has
been left open. For example, the MoA records that "both governments
recognise that campaign finance will be an important issue",
not that both Governments agree that the rules as to campaign
finance should be closely modelled on those set out in PPERA,
or that the rules should come into force only after having been
endorsed as fair and reasonable by the Electoral Commission, etc.
The MoA sets out at some length what happens at UK level for PPERA
in terms of applying these practices to the Scottish independence
referendum, it says no more than that the "rules and standards
set out in PPERA" should "provide the basis" for
setting the limits to campaign spending.
53. The precise meaning of the phrase "provide
the basis" is not clear. The extent to which the Scottish
Government remain free to make proposals that differ from the
"rules and standards" set out in PPERA is not stipulated
in any detail in the MoA and will, therefore, be a matter for
the scrutiny of the Scottish Parliament.
54. In its response to the two Governments' consultation
papers, the Electoral Commission was critical of a number of aspects
of the Scottish Government's proposals in this area. In particular,
the proposed limit of £750,000 for designated lead campaigners
was thought to be too low; the proposal to limit party spending
to £250,000 each was said to be misguided, with a better
approach being to set different limits according to each party's
electoral support; and the proposed limit of £50,000 for
other (non-party) registered campaigners was said to be far too
low, with the Electoral Commission arguing that it should be at
The Commission intends to consult prospective campaigners before
publishing further advice on the spending limits.
55. The MoA notes that in setting such limits
for PPERA referendums the Secretary of State is not bound by the
Electoral Commission's recommendations (although he is bound to
consult the Electoral Commission). Were the Secretary of State
to elect not to follow the Electoral Commission's advice, he would
be required to lay a statement before both Houses of Parliament
explaining why. The
MoA likewise stipulates that, if there is any departure from the
Electoral Commission's advice on spending limits, the policy memorandum
accompanying the Referendum (Scotland) Bill will include a statement
of the reasons for this.
56. Whereas the Electoral Commission was critical
of a number of the Scottish Government's proposals as to campaign
finance, it welcomed the Scottish Government's proposal that the
regulated period for the referendum should be the 16 weeks ending
with the date of the referendum.
To put this in context, the period of time between the signing
of the Agreement and the date of the referendum is expected to
be in the region of two years (just over 100 weeks).
57. We draw to the attention of the House
how little appears to have been agreed between the Governments
on these important issues. It seems that Parliament is to be invited
to approve the draft section 30 Order with few guarantees that
the PPERA scheme governing the fairness of referendum campaigns
will be made to apply in Scotland.
58. It is the Scottish Parliament that will
play the vital constitutional role of providing full and effective
scrutiny of the proposed arrangements for the referendum on independence.
The Scottish Parliament will have available to it the expert analysis
and input of the Electoral Commission, whose advice should
be considered authoritative.
59. There are important constitutional issues
still to be addressed before the referendum is held in 2014. We
will return to those issues in due course.
1 See, respectively, Scotland's Constitutional Future
(Cm 8203) and Your Scotland, Your Referendum. The former
included a draft section 30 Order; the latter included a draft
Referendum (Scotland) Bill. The UK Government's summary of responses
to their consultation was published in April 2012 as Cm 8326;
an analysis of the responses to the Scottish Government's consultation
was published in October 2012. Back
Constitution Committee, 24th report (2010-12): Referendum on
Scottish Independence (HL Paper 263). Back
ibid., para 30 (the matter is unaffected by the subsequent
enactment of the Scotland Act 2012). Back
ibid., paras 13 and 31. Back
Altogether there were some 3,000 responses to the UK Government's
consultation and some 30,200 responses to the Scottish Government's
consultation (of which 26,200 formed the basis of the Scottish
Government's analysis: the remainder were removed for various
reasons explained in that analysis). Back
The Scottish Government's consultation exercise did not ask questions
about legislative competence or about proceeding via a section
30 Order. Back
op. cit., paras 37 and 52. We drew here on the findings
of our earlier report on referendums: Constitution Committee,
12th report (2009-10): Referendums in the United Kingdom
(HL Paper 99). Back
We consider the proposed roles of these bodies below. Back
Article 4 makes a number of supplementary provisions, concerning
aspects of the referendum over which, without article 4, the Scottish
Parliament would lack legislative competence. These include provisions
about mail-shots and broadcasting. Back
Scotland Act 1998, section 115 and Schedule 7. Back
The most recent was the Scotland Act 1998 (Modification of Schedule
4) Order 2009 (SI 2009/1380), which paved the way for the Scottish
Parliament to enact the Convention Rights Proceedings (Amendment)
(Scotland) Act 2009. Back
See HL Deb, 15 October 2012, col 1311. Back
MoA, para 1. Back
ibid., para 30. Back
HL Deb, 15 October 2012, cols 1310-22; HC Deb, 15 October 2012,
cols 64-80. See also HL Deb, 18 October 2012, cols 1557-9. The
Deputy First Minister made a statement to the Scottish Parliament
on 23 October 2012 (Official Report, cols 12406-19). Back
Cm 8326, op. cit., p 10. Back
Notably, on the fifth day of the Bill's committee stage and on
the first day of its report stage: see HL Deb, 21 March 2012,
cols 919 ff and HL Deb, 26 March 2012, cols 1187 ff. Back
Such as that found in the Legislative and Regulatory Reform Act
2006 and the Public Bodies Act 2011, for example. Back
Constitution Committee, 15th report (2010-12), HL Paper 177, paras
46 and 90. Back
Cm 8203, op. cit., p 7. Back
The law of standing to seek judicial review in Scots law is in
the process of being liberalised, to bring it into line with the
already rather open law of standing found in English law: see
AXA General Insurance v HM Advocate  UKSC 46 and
Walton v Scottish Ministers  UKSC 44. Back
That Orders in Council may on occasion be held to be unlawful
on this ground is illustrated in the recent decision of the Supreme
Court in Ahmed v HM Treasury  UKSC 2. Back
That Orders may be held to be unlawful despite their having been
approved by Parliament was confirmed by the Court of Appeal in
R (Javed) v Home Secretary  EWCA Civ 789, 
QB 129. Back
Cf R (Wheeler) v Prime Minister  EWHC 1409 (Admin).
Padfield v Minister of Agriculture, Fisheries and Food
 AC 997. Back
Martin and Miller v HM Advocate  UKSC 10, para 80
(Lord Rodger). Cf Whaley v Watson 2000 SLT 475, at 484
(Lord President Rodger). Back
Cm 8203, op. cit., p 19. Back
The committee argued that independence and extended devolution
were different constitutional outcomes that required distinct
constitutional processes: op. cit., para 44. Back
Memorandum of Understanding and Supplementary Agreements between
the United Kingdom, the Scottish Ministers, the Welsh Ministers,
and the Northern Ireland Executive Committee (revised, September
2012), para 2. Back
On the authority, for example, of Council of Civil Service
Unions v Minister for the Civil Service  AC 374 and
R v North and East Devon Health Authority, ex p Coughlan
 QB 213, respectively. Back
See Wheeler, op. cit. Again, in making these points,
we do not suggest high prospects of success. Back
Although Your Scotland, Your Referendum advocated a single
question, it held out the possibility of a second question in
the referendum on "devolution max": p 5 and para 1.26.
Cm 8203, op. cit., p 19. Back
op. cit., paras 38-45. Back
"Devo max" is not a synonym for further devolution,
but is a scheme for the maximum possible devolution of powers
to Scotland short of full independence (this is sometimes called
"full fiscal autonomy"). Such a scheme was outlined
by the Scottish Government in November 2009 in a paper called
Your Scotland, Your Voice. Other schemes of further devolution,
which propose less extensive devolution than "devo max",
are sometimes referred to as "devo plus": see, for example,
the reports available at www.devoplus.com. Back
For evidence that different wordings may lead to different results
in opinion polls on Scottish independence, see M Keating, The
Independence of Scotland (Oxford University Press, 2009),
p 73. Back
See House of Commons Scottish Affairs Committee, 8th report (2010-12):
Do you agree this is a biased question? (HC 1492). Back
See the PPERA, section 104. Back
op. cit., para 52. Back
Electoral Commission, Our approach to assessing the intelligibility
of referendum questions; available at: http://www.electoralcommission.org.uk/__data/assets/pdf_file/0005/82625/Referendum-Question-statement-final.pdf.
Para 1.2. Back
MoA, para 8. Back
Constitution Committee, op. cit. n 2 above, para 48. Back
As long as the referendum takes place before the end of 2014. Back
See, for example, House of Commons Scottish Affairs Committee,
6th report (2010-12): The Referendum on Separation for Scotland:
Unanswered Questions (HC 1806). Back
See, for example, Your Scotland, Your Referendum, op.
cit., para 1.6. Back
The Scotland Act 1998, Schedule 5, Part II, section A1 reserves
to the Westminster Parliament "fiscal, economic and monetary
taxes and excise duties". Back
MoA, para 9. Back
Cm 8203, op. cit., preface. Back
MoA, para 11. Back
ibid., para 10. Back
Available at: http://www.scotland.gov.uk/Resource/Doc/343289/0114206.pdf.
op. cit., paras 27 to 29. Back
Electoral Commission, The Scottish Referendum: Response to
Consultations, available at: http://www.electoralcommission.org.uk/__data/assets/pdf_file/0011/146927/The-Scottish-referendum-Response-to-consultations.pdf.
ibid., para 8.10. Back
We note that the Data Protection Act 1998 extends to Scotland
and that it is a reserved matter under the Scotland Act 1998 (Schedule
5, Part II, section B2). Back
Electoral Commission, Briefing on the Electoral Registration and
Administration Bill, July 2012, p 2. Back
Constitution Committee, 5th Report (2012-13): Electoral Registration
and Administration Bill (HL Paper 51). Back
Letter to the committee chairman, 29 October 2012, available on
our webpages. Back
Electoral Commission, written evidence, para 9.5. Back
MoA, paras 12 to 15. Back
If applicable: the Scottish Government have proposed that there
will be no grants of public money to lead campaign organisations:
see ibid., para 14. Back
ibid., para 15. Back
Electoral Commission, written evidence, para 4.3. Back
EMB, written evidence. Back
Electoral Commission, written evidence, para 4.5. Back
EMB, written evidence. Back
Electoral Commission, written evidence, para 5.3. Back
op. cit., para 6.13. Back
Electoral Commission, written evidence, para 5.6. Back
MoA, para 24. Back
ibid., para 26. Back
ibid., para 25. Back
op. cit., paras 10.11 to 10.25. Back
Written evidence, para 6.4. Back
PPERA, Schedule 14, paragraph 2. To date this has not happened:
the Secretary of State has always accepted the advice of the Electoral
Commission on this matter. Back
MoA, para 27. Back
op. cit., para 10.6. Back