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BRIEFING PAPER Number CBP 8738, 16 December 2019

Scottish : By David Torrance

Section 30 Orders

Contents: 1. What is a section 30 Order? 2. Section 30 Order process 3. The 2014 referendum and section 30 4. The 2017 section 30 Order request 5. Section 30 Orders and the courts 6. Further Reading

www..uk/commons-library | intranet.parliament.uk/commons-library | [email protected] | @commonslibrary 2 Scottish Devolution: Section 30 Orders

Contents

Summary 3 1. What is a section 30 Order? 4 1.1 Examples of section 30 Orders 5 2. Section 30 Order process 7 2.1 Alternatives to section 30 Orders 7 2.2 Who can ask for a section 30 Order? 8 3. The 2014 referendum and section 30 9 3.1 The UK Government’s “offer” 9 3.2 response 10 3.3 Outcome of consultations 11 3.4 The Agreement 11 3.5 Responses to the section 30 Order proposal 12 Lords Constitution Committee 12 Referendum () Bill Committee 12 Commons Scottish Affairs Committee 12 3.6 Parliamentary consideration 13 3.7 Scottish legislation 13 4. The 2017 section 30 Order request 15 4.1 The EU referendum 15 4.2 A further section 30 Order request 15 4.3 Subsequent events 17 4.4 Referendums (Scotland) Bill 17 4.5 Conditions for a section 30 Order on independence 18 4.6 Aftermath of 2019 general election 19 4.7 Prime Minister’s response 20 5. Section 30 Orders and the courts 21 Judicial review of section 30 Orders 21 Referendums (Scotland) Bill (2019) 22 6. Further Reading 23

Cover page image copyright: David Torrance

3 Commons Library Briefing, 16 December 2019

Summary

A section 30 Order is a type of subordinate or secondary legislation which is made under the . It can be used to increase or restrict – temporarily or permanently – the ’s legislative authority. It does this by altering the list of “reserved powers” set out in Schedule 5, and/or the protections against modification set out in Schedule 4 of that Act. Such Orders have been used several times since 1999. The most high-profile example was the Scotland Act 1998 (Modification of Schedule 5) Order 2013, which temporarily devolved authority to legislate for a referendum. This took place on 18 September 2014. Section 30 Orders can be initiated either by the Scottish or UK Governments but require approval by the House of Commons, and the Scottish Parliament before becoming law. There are equivalent provisions in the Government of Act 2006 and Act 1998. In March 2017, the Scottish Government requested a section 30 Order in order to legislate for a second independence referendum but the UK Government refused. First Minister renewed her request during 2019, as the Scottish Parliament considered what would become the Referendums (Scotland) Act 2020.

4 Scottish Devolution: Section 30 Orders

1. What is a section 30 Order?

A section 30 Order is a UK (or SI),1 secondary legislation which is made under the Scotland Act 1998 (the “1998 Act”). As the Calman Commission explained in its 2009 report: Such an Order may extend the competence of the Scottish Parliament into a new area of responsibility currently reserved, or add an area to the list of reserved matters, thus taking it out of the Parliament’s control or preventing it coming within that control in the first place. The Order can modify the provisions of Schedule 4, which restrict the competence of the Scottish Parliament to legislate, or of Schedule 5, which list the reserved matters.2 Section 30 orders, therefore, are a process by which the powers of the Scottish Parliament can be altered without the need for primary legislation. Alterations can be temporary or permanent. Section 30(2) of the 1998 Act provides that “Her Majesty may by make any modifications of Schedule 4 or 5 which She considers necessary or expedient”, subject to the agreement of both the UK and Scottish . As the constitutional academic Alan Page observes, there “are no restrictions on the use that may be made of this power; the adjustments that may be made are simply those that are considered necessary or expedient”. He continues: But while the power is unlimited in the sense that it allows anything further to be devolved (or indeed reserved), it was clearly not designed to enable everything to be devolved; and there is no realistic prospect of it ever being so used (or used, for example, to devolve wholesale defence or foreign affairs). It the relationship between Scotland and the rest of the UK is to be radically altered it would need to be done on a different basis.3 A section 30 Order adjusting the legislative competence of the Scottish Parliament will, in the absence of any other provision, also change the powers of Scottish Ministers (something known as executive devolution). Section 63 of the 1998 Act also allows for changes to executive devolution in isolation. Sixteen executive devolution orders were made between 1999 and 2008, the most significant being that immediately after the creation of the Scottish Parliament, when many of the Secretary of State for Scotland’s responsibilities were transferred to the Scottish Ministers.4 Such powers are not unique to the Scotland Act 1998. Similar provisions exist in the Government of Wales Act 2006 (section 58 and section 109), and while there is no direct equivalent in the

1 See Commons Library Briefing Paper CBP6509, Statutory Instruments, 15 December 2016. 2 Commission on Scottish Devolution, Serving Scotland Better: Scotland and the in the 21st Century, June 2009. 3 Alan Page, Constitutional Law of Scotland, Edinburgh: W Green, 2015, pp116-17. 4 Ibid., p136.

5 Commons Library Briefing, 16 December 2019

1998, an Order in Council can make Northern Irish “transferred” matters “reserved” matters, and vice versa.5

1.1 Examples of section 30 Orders Section 30 Orders have been used to alter the powers of the Scottish Parliament on several occasions since 1999. Most have made minor adjustments, while others have been more substantial. As of December 2019, 16 Orders have been made under section 30(2) of the 1998 Act. Examples include: • the Scotland Act 1998 (Modification of Schedule 5) Order 2001, which brought within the legislative competence of the Scottish Parliament certain matters relating to the insolvency of business associations which are social landlords; • the Scotland Act 1998 (Modifications of Schedule 5) Order 2004, which devolved legislative competence over the promotion and construction of railways wholly within Scotland; • the Scotland Act 1998 (Modification of Schedules 4 and 5 and Transfer of Functions to the Scottish Ministers etc.) Order 2015, which enabled the Scottish Parliament to amend Schedule 4 for the purpose of reducing the minimum in Scottish elections. Other section 30 Orders have been used to “clarify” the scope of reserved matters, making it clear, to quote Alan Page, “when the [Scottish] Parliament cannot legislate as well as when it can, and the terms in which it can legislate”.6 One such Order concerned freedom of information, while another updated legislative references.7 Orders have also been made in response to developments in the courts. The Scotland Act 1998 (Modification of Schedule 4) Order 2009 responded to the challenges presented by the Somerville case. A discrepancy had emerged between human rights proceedings under the and those taken specifically against Scottish Ministers under the Scotland Act 1998.8 By modifying Schedule 4 of the latter Act, the Order enabled the Scottish Parliament to close this loophole. As the Calman Commission observed: Uniquely in this case […] a parallel agreement was reached by the UK and Scottish Government that this power was given to the Scottish Parliament on the understanding that the UK Parliament would then legislate subsequently in this area on a UK-wide basis,

5 See Commons Library Briefing Paper CBP8274, : Devolution and legislative consent, 29 March 2018, pp23-25. 6 Page, p118. 7 See the Scotland Act 1998 (Modifications of Schedules 4 and 5) Order 1999 and the Scotland Act 1998 (Modifications of Schedule 5) Order 2004 8 Under the Human Rights Act 1998 the bringing of human rights proceedings against a public authority was subject to a time limit, but if someone challenged the Scottish Ministers under the Scotland Act for the same alleged breach of Convention rights, no such time limit existed.

6 Scottish Devolution: Section 30 Orders

repealing the legislation passed by the Scottish Parliament and ensuring a UK wide approach.9 In theory, a section 30 Order could be made to re-reserve a previously devolved matter. In practice, however, “re-reservation” of the Scottish Parliament’s powers has only happened via Acts of the UK Parliament or by virtue of the expiry of a temporary arrangement under a section 30 Order.10

9 Commission on Scottish Devolution, Serving Scotland Better. 10 Gov.uk, “Fact-Sheet: Scotland Act Orders”; Commission on Scottish Devolution, Serving Scotland Better. 7 Commons Library Briefing, 16 December 2019

2. Section 30 Order process

The procedural criteria for a section 30 Order are laid out in Schedule 7, paragraph 2 of the Scotland Act 1998: No recommendation to make the legislation is to be made to Her Majesty in Council unless a draft of the instrument— (a) has been laid before, and approved by resolution of, each House of Parliament, and (b) has been laid before, and approved by resolution of, the [Scottish] Parliament. The House of Commons, the House of Lords and the Scottish Parliament each has a legal veto over the making of a section 30 Order, since each can decline to approve the draft laid before it. However, the Type A affirmative procedure does not enable MPs, Peers or MSPs directly to amend the text of the draft instrument prior to approval. The text of the draft instrument typically is prepared and pre-agreed by the UK and Scottish Governments before it is laid. Thus, under this procedure, legislators can only vote on whether the draft Order should be approved or rejected. As Lord Sewel observed in March 2012: Part of the difficulty with the Section 30 route […] is not merely that we [members of the House of Lords] do not vote against orders – except very occasionally – but also that we cannot amend them […] it is the nuclear option to vote against it. That is a very uncomfortable position to be in.11 Once the Type A criteria have been met, a draft Order is approved by the Queen on the advice of her Privy Council and becomes an Order in Council. The requirement for approval by the Scottish Parliament is therefore statutory. It is not covered or affected by the Sewel Convention, which is the legally unenforceable constitutional convention whereby “legislative consent” is required from the relevant devolved legislature should a UK Parliamentary Bill affect devolved matters. As Lord Wallace stated in the House of Lords on 21 March 2012: A Section 30 order requires the consent of the House of Commons, the House of Lords and the Scottish Parliament. It is not a convention. If the Scottish Parliament withholds its consent, a Section 30 order cannot pass.12

2.1 Alternatives to section 30 Orders A section 30 Order is not the only means of altering the powers of the Scottish Parliament or Scottish Ministers. Devolution Guidance Note 14 advises UK Government civil servants to consider “alternative approaches” such as:

11 HL Debs 21 March 2012 Vol 736 c929 12 Ibid., c958 8 Scottish Devolution: Section 30 Orders

• transferring the exercise of functions, and therefore operational authority, by means of an Executive Devolution Order made under section 63 of the Scotland Act 1998; • making an Order under section 108 of the 1998 Act, which enables functions of Scottish Ministers to be transferred to – or be exercised concurrently/by agreement with – a UK Government Minister. In neither case, as the Guidance Note observes, “is legislative competence affected”, i.e. the relevant matter would remain reserved to the UK Parliament.13 As the constitutional lawyer Alan Page observes, section 63 Orders have “largely been replaced” by UK primary legislation and legislative consent motions, although the power “remains available, and is occasionally used”.14 Examples of major changes to the Scottish Parliament’s legislative competence made via primary legislation are the and .

2.2 Who can ask for a section 30 Order? Devolution Guidance Note 14 states that the “initiative in proposing a Section 30(2) Order can be taken by either the Scottish Government or the UK Government”, but also that “both sides need to agree both the principle and the detail before an Order can be pursued”. If that proves possible, agreement should then be reached as to “who will be leading on the instructing and drafting of the Order”, i.e. either the Scottish Government or a UK Government department.15 If the Scottish Government were to ask the UK Government to grant a section 30 Order, the UK Government, as the constitutional lawyer Stephen Tierney has observed, is “under no legal obligation to do so. The issue is […] essentially political”.16

13 Office, Devolution Guidance Note 14, November 2011. 14 Page, p137. 15 , Devolution Guidance Note 14 16 Stephen Tierney, “A Second Independence Referendum in Scotland: The Legal Issues”, Centre on Constitutional Change blog, 13 March 2017. 9 Commons Library Briefing, 16 December 2019

3. The 2014 referendum and section 30

The most prominent example of a section 30 Order came between 2012-14 when one was used to remove any legal ambiguity as to whether the Scottish Parliament could legislate for a referendum on Scottish independence. In May 2011, the (SNP) won an overall majority in elections to the Scottish Parliament, with a manifesto commitment to hold a referendum at some point before 2016. There was disagreement, however, as to whether such a referendum would be within the competence of the Scottish Parliament. Paragraph 1(b) of schedule 5 of the Scotland Act 1998 states that “the Union of the Kingdoms of Scotland and ” is a reserved matter. The Scottish Government, however, argued that a purely “advisory” referendum would fall within legislative competence.17

3.1 The UK Government’s “offer” Following a television interview in which the then Prime Minister stated his intention to offer a “fair, legal and decisive” referendum on independence, on 10 January 2012 the then Secretary of State for Scotland, Michael Moore, proposed that the powers for a referendum could be devolved “under the section 30 order-making provisions in the Scotland Act 1998”.18 A UK Government consultation paper published the same day, Scotland’s constitutional future, also included the option of “introducing a Bill in the UK Parliament” (or amending the Scotland Bill then before the Lords) but emphasised, like Moore, that a section 30 Order was its preferred approach: Order making powers allow changes to be made to an , without the need for a new Act […] A section 30 Order could also set parameters for a referendum, for instance it could ensure that a referendum would be subject to the normal rules on referendums set out in the Political Parties, Elections and Referendums Act 2000.19 Other “parameters” set out in the UK consultation paper included a role for the Electoral Commission, limits on timing, the franchise and on the number of questions to be asked. The document said it was: sensible to make provisions to allow for a Bill providing for a referendum to be brought forward by Scottish Ministers, as it is the Scottish Government that seeks to change Scotland’s constitutional status. And the UK Government believes that it would also be sensible for the Scottish Parliament to consider and

17 See Scottish Government, Scotland’s Future: Draft Referendum (Scotland) Bill Consultation Paper, February 2010. 18 HC Debs 10 January 2012 Vol 538 c52 19 HM Government, Scotland’s constitutional future, Cmnd 8203, 10 January 2012. 10 Scottish Devolution: Section 30 Orders

approve the eventual referendum Bill – within the parameters of the powers devolved by the UK Parliament. Speaking in the House of Commons, Scottish Secretary Michael Moore said that: Given the clear legal problem that exists, we want to work with the Scottish Government to provide the answer. This is not about the mandates of Scotland’s two Governments, or about who calls the shots. It is about empowering the people of Scotland to participate in a legal referendum. That means that the UK Government are willing to give the Scottish Parliament the powers to hold a referendum, which it cannot otherwise do legally.20 Taking questions in the House of Lords, the for Scotland, Lord Wallace of Tankerness, was asked if he had considered the possibility that the Scottish Parliament might “veto” the UK Government’s proposed section 30 Order: That is obviously the case. A Section 30 order must be passed by both Houses of this Parliament and by the Scottish Parliament before being presented to Her Majesty in Council. Clearly, there would be an opportunity for that not to be passed by the Scottish Parliament. However, the whole point of having the consultation and of engaging not just with the Scottish Government and Scottish Parliament but with wider interests in Scotland is to try to avoid that situation, so that if a Section 30 order is brought forward it is one that can command consent and support.21 The UK Government consultation included a draft section 30 Order. This amended Schedule 5 of the 1998 Act so that it “does not reserve a referendum on the independence of Scotland from the rest of the United Kingdom” if the following requirements were met: • The date of the poll at the referendum must not be the date of the poll at any other referendum; • The date of the poll at the referendum must be no later than ***;22 • There must be only one ballot paper at the referendum, and the ballot paper must give the voter a choice between only two responses; • The persons entitled to vote in the referendum must be the persons who would be entitled to vote in an election for membership of the [Scottish] Parliament; • The referendum and arrangements in connection with it must be in accordance with Part 7 of the Political Parties, Elections and Referendums Act 2000.23

3.2 Scottish Government response Two weeks later, the Scottish Government published its own consultation document, Your Scotland, Your Referendum. This, as the

20 HC Debs 10 January 2012 Vol 538 c52 21 HL Debs 10 January 2012 Vol 734 c65 22 The draft Order left the date intentionally blank. 23 HM Government, Scotland’s constitutional future

11 Commons Library Briefing, 16 December 2019

then First Minister stated, maintained that the Scottish Parliament “could hold a referendum […] within its present competence”.24 The Scottish Government consultation stated a preference for “a short, direct question about independence”, but said it was: ready to work with the UK Government to agree a clarification of the Scotland Act 1998 that would remove their doubts about the competence of the Scottish Parliament and put the referendum effectively beyond legal challenge by the UK Government or any other party. The Scottish Government did not, however, “accept the proposed imposition of conditions on the Section 30 order”: The Scottish Government’s mandate to hold a referendum is clear […] As a matter of democratic principle it is for the Scottish Parliament to decide on the timing and terms of the referendum and the rules under which it is to be conducted.25

3.3 Outcome of consultations On 21 March 2012, Lord Wallace said initial analysis of responses to the UK Government consultation indicated “clear support” for devolving the power to legislate for a referendum to the Scottish Parliament, with “the great majority” supporting a section 30 Order (rather than primary legislation): However, analysis of any consultation is not just a simple matter of counting responses, so I am pleased that our preference for agreeing a Section 30 order was endorsed by a number of constitutional experts, including Matt Qvortrup, and Alan Trench, as well as knowledgeable organisations such as the Law Society of Scotland, the Royal Society of Edinburgh and the British Academy.26 The Scottish Government consultation did not mention the possible use of a section 30 Order but asked nine open-ended questions about aspects of an independence referendum. An analysis of responses was published on 23 October 2012.27

3.4 The Edinburgh Agreement On 15 October 2012, Ministers from the UK and Scottish Governments signed the Edinburgh Agreement, which included a draft section 30 Order enabling the Scottish Parliament to hold a single-question referendum by the end of 2014. Michael Moore, the Secretary of State of Scotland, said that: The order will be laid before Parliament on 22 October and will be debated by both Houses of this Parliament and by the Scottish

24 Scottish Parliament Official Report, 25 January 2012 25 Scottish Government, Your Scotland, Your Referendum, 25 January 2012. 26 HL Debs 21 March 2012 Vol 736 c926. Adam Tomkins was elected a Conservative Member of the Scottish Parliament in 2016. 27 Scottish Government, Your Scotland, Your Referendum: An Analysis of Consultation Responses, 23 October 2012.

12 Scottish Devolution: Section 30 Orders

Parliament. All Members of this House will have the opportunity to consider and vote on the order. If both Parliaments approve the order, and after it is approved by Her Majesty in Council, the Scottish Parliament will have the legal competence to legislate for the referendum. We hope that the order will be passed by February 2013.28 The draft Order stipulated that there should be a single question on independence, but the wording of the referendum question, the franchise, campaign finance and the detailed roles of the Electoral Commission and other bodies were to be a matter for the Scottish Parliament. The draft Order was, therefore, different from that published on 10 January 2012.

3.5 Responses to the section 30 Order proposal Lords Constitution Committee The House of Lords Constitution Committee report, The Agreement on a Referendum on Independence for Scotland, was published on 13 November 2012 and stated that the draft Order was “clearly of great constitutional significance”. The Report observed that one “particularly important” consequence of proceeding via a section 30 Order, rather than by enacting primary legislation, was that it “significantly curtails the opportunity of the UK Parliament to have an effective input into the process”.29 Referendum (Scotland) Bill Committee The Scottish Parliament’s Referendum (Scotland) Bill Committee published its report on the section 30 Order proposal on 23 November 2012. In evidence to the Committee, the then Deputy First Minister Nicola Sturgeon described it as “a perfectly legitimate, tried and tested, robust process”.30 Commons Scottish Affairs Committee The Scottish Affairs Committee published another report, The Referendum on Separation for Scotland: The proposed section 30 Order—Can a player also be the referee? on 11 January 2013. This viewed the proposed section 30 Order as “one of the most significant pieces of secondary legislation ever to be considered by Parliament”, but expressed concerns that the Scottish Government “appears to be minded to pursue partisan advantage, rather than seek consensus”.31

28 HC Debs 15 October 2012 Vol 551 c64 29 Lords Constitution Committee, The Agreement on a Referendum on Independence for Scotland, 13 November 2012. 30 Referendum (Scotland) Bill Committee, 1st Report, 2012 (Session 4), 23 November 2012. 31 Scottish Affairs Committee, The Referendum on Separation for Scotland: The proposed section 30 Order—Can a player also be the referee?,11 January 2013. 13 Commons Library Briefing, 16 December 2019

3.6 Parliamentary consideration The Scotland Act 1998 (Modification of Schedule 5) Order 2013 was laid before the UK Parliament on 22 October 2012. Like the draft published on 10 January 2012, this altered Schedule 5 of the Scotland Act 1998 so that paragraph 1 did not “reserve a referendum on the independence of Scotland from the rest of the United Kingdom” if certain “requirements” were met: • 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; • The date of the poll at the referendum must be no later than 31 December 2014; • There must be only one ballot paper at the referendum, and the ballot paper must give the voter a choice between only two responses. The Order also made supplementary provision in relation to Part 7 of the Political Parties, Elections and Referendums Act 2000. On 5 December 2012, the Scottish Parliament debated and approved the draft section 30 Order. On 15 January 2013, the House of Commons also debated and approved the draft Order. , leader of the SNP at Westminster, said: This section 30 order is a testament to all who believe in the democratic process, democratic debate and the sovereignty of the people. Our challenge—this is for those on both sides of the referendum debate—is to ensure we do this in a way worthy of the proposition, the opposing case and, most importantly, the electorate.32 On 16 January 2013, the House of Lords debated and approved the draft section 30 Order. On 12 February 2013, the Privy Council approved the Scotland Act 1998 (Modification of Schedule 5) Order 2013. Speaking in the House of Commons the following day, Michael Moore said: I am delighted that yesterday in the Privy Council the section 30 order was approved so that now we will have a legal, fair and decisive referendum. In that referendum, we have to discuss the big issues.33

3.7 Scottish legislation After the Order became law, the Scottish Parliament debated and passed the Scottish Independence Referendum (Franchise) Act 2013, which extended the franchise for the referendum to 16 and 17 year- olds, and the Scottish Independence Referendum Act 2013, which

32 HC Debs 15 January 2013 Vol 556 c773 33 HC Debs 13 February 2013 Vol 558 c846 14 Scottish Devolution: Section 30 Orders

established the referendum question and rules. The latter Act received on 17 December 2013. The Scottish independence referendum was held on 18 September 2014. 15 Commons Library Briefing, 16 December 2019

4. The 2017 section 30 Order request

As the constitutional lawyers Ewan Smith and Alison Young (of Hertford College, Oxford) have written: In 2012, before the 2014 Referendum was announced, lawyers prepared arguments on whether the Scottish Government, or the Scottish Parliament had the power to call a referendum. Many of us were relieved when the Edinburgh Agreement found a way to call the referendum that satisfied all parties. But it is important to remember that the Agreement did not settle the debate about the powers of the Scottish Parliament and Government. It postponed it.34 The constitutional expert Stephen Tierney agreed, observing that whether the Scottish Parliament could “unilaterally hold an ‘advisory’ referendum on this issue has never been finally resolved”.35

4.1 The EU referendum In its manifesto for the 2016 Scottish Parliament elections, the SNP argued that “Scotland being taken out of the EU against our will” would justify a second vote on independence. At the referendum in June 2016, 62% of voters in Scotland supported the UK remaining part of the EU, and First Minister Nicola Sturgeon suggested that a second independence referendum was, therefore, “highly likely”.36 In October 2016, the Scottish Government published a Consultation on a Draft Referendum Bill, which indicated that it intended to follow the 2014 precedent in seeking another referendum. The consultation stated (with added emphasis) that: In the 2014 referendum, an Order in Council under section 30 of the Scotland Act 1998 was agreed by Westminster and the Scottish Parliament, recognising the mandate of the Scottish Government, and the support of the Scottish Parliament, for a referendum on independence. The Order put it beyond doubt that the Scottish Parliament could legislate for that referendum. If the Scottish Government decided to formally introduce this Bill to Parliament, it would be expected that a section 30 order would be sought and agreed, as in 2014.37

4.2 A further section 30 Order request On 13 March 2017, the First Minister confirmed she would ask the Scottish Parliament to endorse her request for another section 30 Order.

34 Ewan Smith and Alison Young, “That’s How It Worked in 2014, and How It Would Have to Work Again”, UK Constitutional Law Association Blog, 15 March 2017. 35 Stephen Tierney, “A Second Independence Referendum in Scotland: The Legal Issues”, Centre on Constitutional Change blog, 13 March 2017. 36 BBC News online, “Brexit: Nicola Sturgeon says second Scottish independence vote 'highly likely'”, 24 June 2016. 37 Scottish Government, Consultation on a Draft Referendum Bill, 20 October 2017.

16 Scottish Devolution: Section 30 Orders

Writing in , the then Prime Minister said she did: not agree with the Scottish National Party (SNP) that now is the time to be talking about a second independence referendum. To do so now, while all our energies should be directed towards the negotiations with Europe, would make it more difficult to get the right deal for Scotland and the right deal for the UK as a whole.38 On 28 March 2017, MSPs debated a motion in the name of Nicola Sturgeon that the Scottish Parliament: acknowledges the sovereign right of the Scottish people to determine the form of government best suited to their needs and therefore mandates the Scottish Government to take forward discussions with the UK Government on the details of an order under section 30 of the Scotland Act 1998 to ensure that the Scottish Parliament can legislate for a referendum to be held that will give the people of Scotland a choice over the future direction and governance of their country at a time, and with a question and franchise, determined by the Scottish Parliament, which would most appropriately be between the autumn of 2018, when there is clarity over the outcome of the Brexit negotiations, and around the point at which the UK leaves the EU in spring 2019. MSPs approved this motion by 69 votes to 59. Speaking in the House of Commons on 29 March, the Prime Minister repeated her view that “now is not the time to be talking about a second independence referendum”.39 Nicola Sturgeon wrote to Theresa May on 31 March 2017: As you are aware, the Scottish Parliament has now determined by a clear majority that there should be an independence referendum […] I am therefore writing to begin early discussions between our governments to agree an Order under section 30 of the Scotland Act 1998 that would enable a referendum to be legislated for by the Scottish Parliament […] The First Minister added that “in anticipation of your refusal to enter into discussions at this stage, it is important for me to be clear about my position”. She continued: It is my firm view that the mandate of the Scottish Parliament must be respected and progressed. The question is not if, but how. I hope that will be by constructive discussion between our governments. However, if that is not yet possible, I will set out to the Scottish Parliament the steps I intend to take to ensure that progress is made towards a referendum. Again, I wish you well for all that lies ahead and stand ready to discuss both a section 30 order and the Scottish Government's role in securing the best outcome for all parts of the UK.40 These “steps” were not immediately set out. Two weeks later, Theresa May asked the UK Parliament to authorise a “snap” general election on

38 Theresa May, “We Can Build a Stronger, Fairer Britain” (£),The Times, 17 March 2017. 39 HC Deb 29 March 2017 Vol 624 c244 40 Scottish Government, Section 30 letter, 31 March 2017.

17 Commons Library Briefing, 16 December 2019

8 June 2017. Addressing the Scottish Parliament on 27 June, after that election, Nicola Sturgeon said she had “reset” her plan to introduce legislation for a second referendum but believed the “mandate” to do so at a later date still existed.41

4.3 Subsequent events The First Minister claimed in October 2017 that the Prime Minister did not formally respond to her letter dated 31 March. Seeking a section 30 Order remained the Scottish Government’s position. In November 2017, the SNP MP Martyn Day said the “securing of the section 30 order” in 2012-13 had established “a clear route map […] for how a referendum can be best carried out in future”.42 During 2017-18, some supporters of independence suggested holding an “unofficial” referendum should a section 30 Order not be forthcoming. Nicola Sturgeon consistently rejected this approach. Speaking at a Women for Independence conference in November 2018, she said: The beauty of 2014 was that it was an agreed process. All of this has taken me to the point that I don’t have the easy answer to this. We may get into the situation where the UK Government says, ‘No, we’re not going to agree the section 30 order,’ and I think if that happens we need to rise above that, we need to make the case of how unreasonable that is.

4.4 Referendums (Scotland) Bill In a statement to the Scottish Parliament on 24 April 2019, Nicola Sturgeon said the Scottish Government planned to “introduce legislation to set the rules for any referendum that is, now or in the future, within the competence of the Scottish Parliament”. The First Minister added that: We do not need a transfer of power such as a section 30 order to pass such a framework bill, though we would need it to put beyond doubt or challenge our ability to apply the bill to an independence referendum. As members are aware, the UK Government’s current position is that it will not agree to transfer power, but I believe that that position will prove to be unsustainable.43 On 29 May, the Scottish Government published the Referendums (Scotland) Bill, which would give Scottish Ministers the power to hold any referendum within its competence, subject to parliamentary approval of the question and the date of the poll.44 Mike Russell, the Scottish Government’s Constitutional Relations Secretary, said: The Bill provides a legal framework for holding referendums on matters which are now or in future within the competence of the Scottish Parliament. The rules it sets out are of the highest

41 Scottish Parliament Official Report, 27 June 2017 42 HC Debs 13 Nov 2017 Vol 631 c9WH 43 Scottish Parliament Official Report, 24 April 2019 44 See SPICe Spotlight, What’s the framework? The Referendums (Scotland) Bill before stage 3, 12 December 2019. 18 Scottish Devolution: Section 30 Orders

standards and will ensure that the results are widely and internationally accepted. It brings Scotland into line with the UK where there is already standing legislation for referenda through the Political Parties Elections and Referendums Act which Westminster passed in 2000. As the First Minister indicated in her statement, we intend at a future date to negotiate with the UK Government for a section 30 order to put beyond doubt our competence to hold a referendum on independence.45 Stage 3 consideration of the Bill took place on 19 December 2019. The Referendums (Scotland) Act 2020 received Royal Assent on 29 January 2020. Interviewed on the Show on 13 October 2019, Nicola Sturgeon said she would ask for a section 30 Order “at an appropriate moment when the legislation is passing [which was] likely to be over the next matter of weeks”.46 On 1 November 2019, during campaigning for the UK general election on 12 December, the First Minister said: “I’ve made pretty clear and I’m sticking to this, that Section 30 demand will be delivered to whoever happens to be in it before Christmas.”47 Speaking on Sky News’ Sophy Ridge on Sunday two days later, Prime Minister said: I don’t think people in this country think referendums are very wonderful for harmony. We had one in 2014, the British people, the people of Scotland, were told in 2014 that that was a once-in- a-generation event.48

4.5 Conditions for a section 30 Order on independence While the UK Government has repeatedly ruled out the possibility of authorising another section 30 Order, other Conservative Party politicians suggested that circumstances could exist in which such an Order might be negotiated and agreed. In June 2019, the then leader of the Scottish Conservative Party, , said that if Nicola Sturgeon fought the 2021 Holyrood election with a manifesto pledge to hold another independence referendum “and she wins a majority outright, then she can negotiate with the UK government in the same way as happened last time”.49 Interviewed by BBC Radio Scotland on 19 November 2019, the Secretary of State for Scotland, , made a similar statement: The democratic mandate for a section 30 order is a matter for 2021. We’ll see whether or not the SNP gets a majority then, and

45 Scottish Government, “Next steps on Scotland's Future: Ministerial statement”, 29 May 2019. 46 BBC1, Andrew Marr Show, 13 October 2019. 47 SNP website, “We will demand a Section 30 order before Christmas”, 1 November 2019. 48 Sky News, Sophy Ridge on Sunday, 3 November 2019. 49 BBC News online, “Ruth Davidson: 'Outright majority needed' for indyref2 mandate”, 13 June 2019.

19 Commons Library Briefing, 16 December 2019

I mean the SNP, not in collaboration with other parties, not in any alliances, but a SNP majority which is what Ruth Davidson pointed out some months ago.50 Senior members of the Labour Party also appeared open to the possibility of a further referendum. When Nicola Sturgeon requested a section 30 Order in March 2017, , the then Leader of the Opposition, said that if the Scottish Parliament voted for a second independence referendum then Labour would “not block that democratic decision at Westminster”.51 And visiting Edinburgh in August 2019, the then Shadow Chancellor John McDonnell said: The Scottish Parliament will come to a considered view on that and they will submit that to the government and the English Parliament [sic] itself. If the Scottish people decide they want a referendum that's for them.52 In November 2019, Rebecca Long-Bailey, at that point a member of the , said her party’s position was to wait until after the 2021 Scottish Parliament elections before granting a section 30 Order. She said that: After the next Scottish [Parliament] elections, if the Scottish Government determine they want to pursue another referendum and they go through the legislative process within their own government to push that forward, then as a government we wouldn't stand in their way.53

4.6 Aftermath of 2019 general election Following the 2019 general election, First Minister Nicola Sturgeon and Prime Minister Boris Johnson spoke by telephone on 13 December 2019. A Downing Street spokesperson said the Prime Minister had: reiterated his unwavering commitment to strengthening the union […] The Prime Minister made clear how he remained opposed to a second independence referendum, standing with the majority of people in Scotland who do not want to return to division and uncertainty. He added how the result of the 2014 referendum was decisive and should be respected.54 On 19 December 2019, the Scottish Government published Scotland’s Right to Choose: Putting Scotland’s Future in Scotland’s Hands. This argued for a permanent transfer of the power to hold a referendum on independence, either by a section 30 Order or via UK primary legislation.55 First Minister Nicola Sturgeon also wrote to the Prime Minister making the same request:

50 Mark McLaughlin, “Tory minister at odds with No 10 over SNP mandate”, The Times (£), 20 November 2019. 51 BBC News online, “Scottish Independence: Nicola Sturgeon to Seek Second Referendum”, 13 March 2017. 52 BBC News online, “Labour government 'would not block' indyref2”, 6 August 2019. 53 Chris Green, “Scottish independence: Labour 'will grant indyref2' – under one condition”, Scotland on Sunday, 3 November 2019. 54 See Daily Record, “SNP leader Nicola Sturgeon and Boris Johnson in IndyRef2 phone call stand-off”, 13 December 2019. 55 Scottish Government, Scotland’s Right to Choose: Putting Scotland’s Future in Scotland’s Hands, 19 December 2019. See Annex B, pp28-33. 20 Scottish Devolution: Section 30 Orders

I said on Tuesday that I would be publishing the detailed democratic case for the transfer of power from Westminster to the Scottish Parliament, now being sought by the Scottish Government, by order under section 30 of the Scotland Act or an Act of the UK Parliament, to allow for an independence referendum that is beyond legal challenge. I am enclosing a copy of that document. When we spoke on Friday, you reiterated your government’s position on this issue – however, you also committed to engaging seriously with our proposals. Indeed, I believe that on this – as on any issue – you have a duty to do so in a considered and reasonable manner.56

4.7 Prime Minister’s response The Prime Minister replied to Nicola Sturgeon’s letter requesting a transfer of powers on 14 January 2020. He wrote: You and your predecessor [Alex Salmond] made a personal promise that the 2014 Independence Referendum was a “once in a generation” vote. The people of Scotland voted decisively on that promise to keep our United Kingdom together, a result which both the Scottish and UK Governments committed to respect in the Edinburgh Agreement. The UK Government will continue to uphold the democratic decision of the Scottish people and the promise that you made to them. For that reason, I cannot agree to any request for a transfer of power that would lead to further independence referendums.57 In a statement, the First Minister said it was: not politically sustainable for any Westminster government to stand in the way of the right of the people of Scotland to decide their own future and to seek to block the clear democratic mandate for an independence referendum. Ms Sturgeon added that the Scottish Government would “set out our response and next steps later this month when we will also ask the Scottish Parliament to again endorse Scotland’s right to choose”.58 On 29 January 2020, Members of the Scottish Parliament voted by 64 to 54 to agree that another independence referendum ought to take place.59

56 Tom Gordon, “Text of Nicola Sturgeon's Indyref2 letter revealed”, , 19 December 2019. 57 10 Downing Street, “Letter from PM Boris Johnson to Scottish First Minister Nicola Sturgeon”, 14 January 2020. 58 See Reuters, “Johnson rejects Sturgeon's request for independence referendum powers”, 14 January 2020. 59 See BBC News online, “Scottish independence: MSPs back new referendum in Holyrood vote”, 29 January 2020. 21 Commons Library Briefing, 16 December 2019

5. Section 30 Orders and the courts Under the Scotland Act 1998, the Scottish Parliament may not pass legislation on anything that “relates to” a long list of “reserved matters”.60 In general, as Devolution Guidance Note 14 observes, these reservations are “expressed in broad terms – typically by general descriptions of the subject”, with exceptions to these reservations also “typically expressed in fairly general terms”. This approach, it adds, was adopted “deliberately […] to allow the courts to take a broad approach to the interpretation of Schedule 5 and, in particular, to consider the intended coverage of reservations instead of relying on an unduly literal approach”. The Guidance Note further states that this “should not be undermined by a series of unduly detailed section 30(2) Orders, not least because this could cast doubt on the interpretation of existing more general reservations”. It also says that section 30 Orders “should not routinely be used only for the purposes of clarification – that should generally be left to the courts”.61 Judicial review of section 30 Orders In its November 2012 report, the House of Lords Constitution Committee observed that the use of a section 30 Order to authorise a Scottish independence referendum did not preclude litigation, stating that: “Delegated legislation—including delegated legislation that is approved by Parliament—is, in principle, judicially reviewable.” The Report also observed that: 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 promote—and not to frustrate—the 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. However, the Lords Constitution Committee concluded that while such a case was not likely to succeed, it could cause a delay.62 Giving evidence to the Scottish Parliament’s Referendum (Scotland) Bill Committee, the then Deputy First Minister Nicola Sturgeon said the importance of a section 30 Order was that it put the legality of the referendum “beyond effective legal challenge”. Professor Aileen

60 See Commons Library Briefing Paper CBP7670, The on Devolution, 27 July 2016. 61 Cabinet Office, Devolution Guidance Note 14, November 2011. 62 Lords Constitution Committee, The Agreement on a Referendum on Independence for Scotland.

22 Scottish Devolution: Section 30 Orders

McHarg, a constitutional lawyer, felt that while a challenge (to the Order) could be mounted, it “would not stand a chance”. The academic Alan Trench agreed, saying the courts would be reluctant “to challenge an instrument approved by both the UK and Scottish Parliaments”.63 Referendums (Scotland) Bill (2019) In the months following the introduction of the Referendums (Scotland) Bill to the Scottish Parliament in May 2019, the Scottish Government’s Constitutional Relations Secretary, Mike Russell, said that the involvement of the courts in the event of a section 30 Order being denied could not “be ruled out”. “There is a difference”, added Russell, “between the right to self-determination and the right to secession”.64 Later, Mr Russell observed that “the pursuit of redress through the courts” would be one of the “likely consequences” of a refusal by the UK Government to grant a section 30 Order.65 First Minister Nicola Sturgeon made similar comments.66 But, as noted in Section 2.2 above, the process by which the UK and Scottish Governments agree to propose a section 30 Order is political rather than statutory. As Alan Page, a professor of public law at University, has observed: I wouldn’t expect a challenge to the refusal to grant a section 30 order to succeed, assuming that that was what the first minister meant. Alternatively, she may have meant that, ‘contrary to what I’ve accepted, it may be that we don’t need a section 30 order, only a court can tell us’, which was the argument before the Edinburgh agreement — that the Scottish parliament didn’t require Westminster’s permission to hold an independence referendum. No doubt both arguments would be run together but I wouldn’t expect that one to succeed either.67 Writing on the UK Constitutional Law Association website, Chris McCorkindale and Aileen McHarg also concluded that it was “extremely unlikely that such a challenge would be successful, since there is no duty to make a section 30 Order, still less to introduce primary legislation”.68

63 Referendum (Scotland) Bill Committee, 1st Report, 2012 (Session 4) 64 Kieran Andrews, “Minister hints at fight in court for Scottish independence poll”, The Times (£), 15 October 2019. 65 Kieran Andrews, “Block indyref2 and you’ll face court action, SNP warns Johnson”, The Times (£), 11 November 2019. 66 See BBC News online, “Sturgeon: 'All options' open if Scottish independence referendum blocked”, 2 December 2019. 67 Kieran Andrews, “SNP ‘would lose legal fight over second independence vote’”, The Times, 6 December 2019. 68 Chris McCorkindale and Aileen McHarg, “Constitutional Pathways to a Second Scottish Independence Referendum”, UK Constitutional Law Association, 13 January 2020. 23 Commons Library Briefing, 16 December 2019

6. Further Reading

Lords Constitution Committee, The Agreement on a Referendum on Independence for Scotland, 13 November 2012. Scottish Affairs Committee, The Referendum on Separation for Scotland: The proposed section 30 Order-Can a player also be the referee?, 11 January 2013. Lords In Focus LIF-2017-0036, Scottish Independence Referendum Procedure: Section 30 Orders, 6 April 2017.

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