Over the past few months, Forward as One has been working on pushing the Scottish Parliament towards a section 30 order. This process has revealed several matters of concern, namely the lack of information and the misconceptions surrounding what a Section 30 order is and what asking for one actually achieves.
The number of people who have responded to the petition to demand a section 30 order with statements like “it gives Westminster a veto” or “it locks parties into conditions” etc are astounding. The problem is that neither of these two assertions is correct. They have based on a misconception that a section 30 order is the Edinburgh Agreement and vice versus. The purpose of this article is to separate myth from fact and to inform about what each of the different components is and how they work.
Section 30 and the Edinburgh Agreement – Not the same thing.
We all remember that in 2014, the Scottish Government sat at a table and negotiated the terms of what the independence referendum would look like. Many believe that this agreement was section 30 when in fact it was not.
The Edinburgh Agreement was nothing more than a pre-negotiation between both Governments on what a referendum franchise would look like. A bit like two businesses who are going to sign a deal. It is common practice for them to sit down and negotiate the broad strokes so when it comes time to write up the contracts and negotiate the full deal, both parties are singing from the same hymn sheet.
The Edinburgh Agreement was signed after this first stage negotiation but in reality, it was just a letter of engagement between parties which stated, we’re having a referendum and this is what it will look like.
The next stage was section 30, which is a legislative mechanism named after Section 30 of the Scotland Act 1998. For those unfamiliar with the Scotland Act, it is the legislation which created devolution after the referendum in 1997. It stipulates how the parliament would be set up, what it would look like, how voting for it would work and what powers it would have. Since 1998 when the Act was passed into law, it has been changed and refined as the Scottish Parliament has taken over new devolved matters etc. The Scotland Act is the primary legislation which defines how devolution works.
Contained within that Act are what are known as Schedules. They are specific sections on specific matters which are attached to the Act. One such schedule is known as Schedule 5 which is entitled “reserved matters”. It’s the section which defines what remains reserved to the Westminster Parliament. The hard and fast rule is that if it is not listed in Schedule 5, then Holyrood can legislate on it. Basically, anything which is not reserved is devolved.
Part 1, Section 1, subsection (b) of that Schedule stipulates that matters relating to “the Union of the Kingdoms of Scotland and England” are classified as a reserved matter to Westminster. Now before you click away because you are going down the “we don’t need permission” line of thought, that is a totally different matter which is to do with an entirely different set of matters which I will get to shortly.
Section 30 of the Scotland Act is the provision of the Act which allows things which Holyrood doesn’t normally have power over to be devolved to the Scottish Parliament for the Scottish Parliament to legislate on.
Referenda require legislation to happen, they don’t just appear in a vacuum. Rules for the way the voting is done, resource deployment and a raft of other measures need to be set in stone. Just like elections, there has to be legislation on how it works. The difference with elections is we just use the same legislation every time because that is permanent legislation. A referendum, however, is a very specialised reason to hold a vote, which means the legislation is passed for that one vote and that very specific purpose. In 2014, we had the negotiations and letter of engagement under the Edinburgh Agreement. Then the Tories popped off to Westminster to pass a section 30 order devolving the power over constitutional matters to Scotland. The Scottish Parliament then passed the rules and the details of how the referendum would happen using the Edinburgh Agreement as a hymn sheet and a blueprint. This legislation was called, funnily enough, the The Scottish Independence Referendum (Franchise) Act which laid the groundwork for the Referendum, this was followed by the “Scottish Independence Referendum Act 2013” which set the agreed rules for the referendum. No points for originality in the title but then legislation is supposed to be function over joie de vivre.
So what tied our hands with the rules then?
What tied our hands rule wise was the Edinburgh Agreement and the subsequent referendum act which was passed through Holyrood which was based on the Edinburgh Agreement. The section 30 order had nothing to do with the rules of the referendum. All it did was to devolve the powers over constitution to the Scottish Parliament.
The timeline from 2014:
• 10 January 2012: The Secretary of State for Scotland, Michael Moore, made a statement to the House of Commons announcing a consultation paper, Scotland’s Constitutional Future, which proposed that the powers for a referendum could be devolved “under the section 30 order making provisions in the Scotland Act 1998″.
The same day the Scottish Cabinet signed off the consultation paper and the First Minister for Scotland, Alex Salmond, announced the referendum would be held in autumn 2014.
• 15 October 2012: Ministers from the UK and Scottish governments signed the Edinburgh Agreement, which included a draft section 30 order, approving the method to enable the Scottish Parliament to hold a referendum based on a single yes/no question in autumn 2014.
• 22 October 2012: The section 30 order was laid before the UK Parliament.
• 5 December 2012: The Scottish Parliament approved the section 30 order.
• 15 January 2013: The House of Commons debated and approved the section 30 order.
• 16 January 2013: The House of Lords debated and approved the section 30 order.
• 7 August 2013: The Scottish Independence Referendum (Franchise) Bill passed in the Scottish
Parliament and received royal assent, setting the franchise for the referendum.
• 17 December 2013: Scottish Independence Referendum Bill passed in the Scottish Parliament
and received royal assent, setting out the rules for the referendum.
• 18 September 2014: The referendum was held.
Can we have a Section 30 order without an agreement before-hand like the Edinburgh Agreement?
Probably not, both sides are going to want to set clearly defined rules. Certainly, the UK Government is going to want to try and control the negotiations in an attempt to force the Scottish Government to play by their rules. So some sort of agreement would have to be made beforehand. That being said, you have to remember (and this is very important) that Agreements are just that, they require offers to be extended by both sides and both sides to consider those terms and agree to them. You cannot have an agreement if both sides or one side does not agree to the terms proposed by the other side. Just ask Theresa May with Brexit. She put a proposal to the EU she knew beforehand that they would not accept and they haven’t.
With the fact that Better Together lied consistently in 2014, the fact that the Edinburgh Agreement was breached by the UK Government and Better Together on that basis (because it didn’t command the confidence of people), the fact that Westminster has ignored Scotland on Brexit and the fact that Westminster hasn’t delivered the promises from the first referendum, the Scottish Government will play hardball this time and rightly so, because it needs to ensure that if they pull sneaky tactics this time, the Scottish Government have the ability to take the matter to the international courts.
That means that the most likely outcome of an Edinburgh Agreement style negotiation is that the UK Government will make wholly unreasonable demands in return for the Section 30 order, like refusing the vote to 16 and 17-year-olds or to EU citizens and the Scottish Government will simply not stand for that, so the negotiations would more than likely fail and it would never end up at Westminster to draft a section 30 order.
Cant we just use the last Section 30 order from 2014?
In a nutshell, No! Section 30 orders are issue-specific which means they have a very clearly defined set of circumstances. In 2014, the section 30 order basically stated one set of laws to be temporarily devolved to legislate on one matter within a certain period of time. There is of course an argument to be made on the back of the fact that Better Together didn’t live up to the agreement, however, the one thing that is not in dispute is that section 30 orders are by their very nature a temporary mechanism and fighting that fact would be a serious waste of energy which would be better utilised elsewhere.
Wait! What? Are you nuts? You’re demanding something you know you are probably not going to get?
Yes! For a number of very good reasons:
- They can only say no – The thing that should be put in big bold letters across the top of this article is “Why not? They can only say No!”. If they say Yes, then it is game on! But any referendum would be as per the rules the Scottish Government lay down, Westminster doesn’t get to dictate or drop in sneaky traps this year and where the result doesn’t command confidence, a process by which such disputes would need to be established so we don’t end up with a 2014 situation or a Brexit situation. The Scottish Government could quite reasonably insist that any such dispute is decided in the European Courts and not at the Supreme Court.
- Undemocratic Bams – The one major issue that Scotland has always had is proving a negative. How do you convince undecideds that Westminster is the undemocratic bams that we have been telling them that they are for decades? Simple! You follow the process within the UK constitutional framework to the end of the process and show the people of Scotland exactly how Westminster works. We don’t have to show that the people of the Fletcher Memorial Home for incurable tyrants are crazy, we just have to leave the doors unlocked and the sight of Westminster running around naked in the Town centre laid bare for all to see, does the job for us. Rather than appearing to themselves on closed-circuit TV indoors we make them a sight to see on the public security cameras in the centre of town. and if you don’t get that joke I suggest you google Pink Floyd – Fletcher Memorial because it is highly relevant to conservative politics.
The act of denying a democratic vote on our constitutional future against the claim of right is the single most damaging thing that Westminster could do to its case for the Union. It would throw cold water on undecideds and it would show them clearly that the UK Government cannot be trusted to act in their interests. It also has the added benefit of being real, not some fake political spin or outrage. Their outrage would be real and entirely justified because Westminster really would be stepping on the constitutional framework and trying to subjugate not just Scotland, but also the fundamental rights and freedoms of the people of Scotland.
- Gold Standard – The Scottish Referendum in 2014 was the Gold Standard (unlike Brexit) which included 16 and 17-year-olds, European Citizens and UK citizens living in Scotland. It was created using a process which was democratic and fair from the Scottish Governments perspective. The only provisions and the only pitfalls in that process were put there at the behest of Westminster. It, therefore, tracks that if we want a fair and democratic referendum, we must take the high ground and we must at all times try to be democratic. Skipping over the process and precedent the Scottish Government created between 2011 and 2013 would undermine what we are hoping to achieve. Simply going straight to a ballot without first at least giving the UK Government the opportunity to do the right thing (for once) would be playing by their rules, not ours.
- International Recognition – One of the most important things with referendums of this magnitude is international recognition. A country lives or dies on the basis of establishing itself as a nation which is ready to take its place amongst the other countries of this planet. We will have a huge amount of treaties and deals to make after a Yes result and that is aided by the fact we can show that we are level-headed and reasonable. Let’s not beat around the bush here, it is more likely that we are going to have to have the next referendum without Westminster consent. However, does it not make sense to show the world and the international community that we aren’t rash bandits like Westminster, we’re not hotheads. Instead, we should be willing to show them that the decision to call a second referendum without consent was due to the fact that we requested to exercise our democratic rights, we were refused that fundamental right and so we were left with no alternative but to move outside the UK constitutional framework using another precedent because we had exhausted all other processes. It can only assist Scotland looking past the referendum if we can show the rest of the world that we took the high road. Subject to a lack of democracy, we found other means to exercise it independently of Westminster. That’s not just good for Scotlands image, but it also shows we are a 21st-century democracy ready to lead, not follow. Think flower versus tank in Tiananmen Square or Gandhi with the boycotting of British Goods.
- P roof for later enforcement – Let me make this abundantly clear. If we hold a referendum without consent we will end up in the single biggest legal battle that there has ever been over the assets that rightly belong to Scotland. There will be the European Courts and arbitration etc and anyone who tries to tell you differently is lying to you. Westminster is not holding on to Scotland because they fancy us, they are holding on to Scotland because Scotland’s resources are keeping them afloat.
The first thing that any court, whether local level or international level will ask is “what did you do to resolve your differences before acting outside of the normal process” and Scotland needs to be able to submit a list to those courts showing that it followed the process defined in skewed UK written law and that because the Conservative Government was so unreasonable, the Scottish Government was left with no choice but to exercise the democratic right of the people by other means. Only when it got to the end of the existing process and hit a brick wall did it than exercise democracy in another fashion. With such evidence, no court would deny Scotland a fair deal, enforced at an international level.
So we go for a section 30 order and the UK refuses. What then?
Well, this is where the process gets a lot more complicated but the simplest explanation is Brexit. You see the Brexit vote was, in fact not a referendum. It was what was called a non-binding poll. Now before you panic at the term “non-binding”, the precedent surrounding non-binding or consultative polls was grey until the Brexit vote happened. The subsequent legal challenges, wrangles and arguments in court immediately after the vote actually established the precedent in UK constitutional law that non-binding polls are actually binding.
Which brings us right back to the Scotland Act that we talked about earlier. The Scotland Act allows the Scottish Government to call consultative polls and because of the precedent set by Brexit, the poll would be binding and enforceable on the party calling it, namely the Scottish Government. The only difference would be the question.
For instance, in 2014 the question was “Should Scotland be an independent country?” whereas for a non-binding poll it would be something like “Should Scotland commence negotiations with the UK Government to become an independent country?” or some other variant similar to it. In any case, the question is unimportant at this stage, the only important point here is that holding a vote on leaving the UK is not an issue, it can be done without the consent of Westminster and the irony is that if done this way, it would make Brexit both the precipitating factor for calling that vote and the precedent under which it would be conducted.
But didn’t Westminster already refuse a section 30 order?
The short answer to that is No, they did not refuse a section 30 order. The long answer is that on the 31st of March 2017, Nicola Sturgeon wrote to the Prime Minister asking for a section 30 order. Theresa May did not respond. Therefore there was no formal refusal of the order. Instead, she simply said “now is not the time”, something which in constitutional matters is both arrogant and disrespectful. So there has been no formal refusal.
But is that not enough to just skip ahead and do it anyway?
Well knowing the inevitable legal case to come after holding such a vote, it is important that things be dealt with in a manner which the court would find acceptable. Take for instance a credit agreement in default. If a bank wrote to a customer demanding immediate payment of a debt and then quickly went straight to court without anything else to say about it, then the debtor turned up in court to defend themselves it is highly likely that the court would not award the bank the sum asked for and dismiss the action without prejudice. This is because courts require that the banks take reasonable steps to try and remedy the situation before taking it to court so the debtor is left with no illusion that they were going to court. The court would apply a test to the steps that the bank took in order to assess whether they were reasonable and proportional and then sought to enforce the debt in court only after ensuring they had done everything with the debtor to resolve it before commencing an action.
This is the reason why most banks use a 3 letter approach over a span of a number of months and some throw in a visit by a debt collector to the persons home and a shed load of calls to harass them. The first letter being a warning of non-payment. This is then followed by a notice of default, then followed by a final demand for payment and telling the debtor that they have a certain number of days to pay or legal action will be commenced. Those ever escalating letters combined with recorded delivery to ensure that the individual definitely got them. Nicola Sturgeon publishing her letters to Theresa May publicly achieves the same thing as recorded delivery. SNP MPs bringing it up in the commons is the equivalent of the phone calls and a debt collector visiting and the letters themselves form written notification of both the demand and the consequences of refusing. Thereby meeting the burden of proof that every conceivable thing was done within the legislative framework, leaving court action being the only thing left, or in this case a referendum without consent.
Although on a much larger scale, the courts will apply a constitutional variant of the same thought process.
Another aspect of international courts is that they will try to interpret the countries legislation as being in-line with international law like the European Convention on Human Rights for instance. They will then weigh whether the actions taken by the Scottish Government were proportional to the aim sought to be achieved and if it is, they will classify that as good enough to satisfy the court that the Scottish Government took all necessary action that was reasonable before pulling the trigger on a second referendum without consent. In other words, the first question they will ask the Scottish Government is “did you do everything to resolve this within the established law before going ahead without consent” and the Scottish Government needs to have not only a good answer to that question but the empirical evidence to back it up.
Nicola Sturgeons first letter to Theresa May went unresponded to, similar to a debtor ignoring a letter in default. Then we have the SNP MP’s kicking up holy hell and the numerous statements between that letter and now which has left it clear that the SNP intend to call a referendum when the terms of Brexit are known. The next important thing, which is what our petition is demanding, is that the SNP send the final letter to Theresa May demanding 3 things.
- That a section 30 order be granted.
- That the Prime Minister respond in writing to that formal demand.
- That if she does not respond by xyz date, then the Scottish Parliament will seek to proceed to a second referendum without the consent of a section 30 order.
This puts the ball squarely in Theresa Mays hands. She now has to formally make the decision to acquiesce to the demand for a section 30 order or she has to formally refuse in writing. If she agrees then it is game on for the negotiations to commence, negotiations which the Scottish Government can walk away from if Theresa and the Tories are being obtuse and uncooperative and go to a second referendum without consent sighting that the UK Government were deliberately trying not to negotiate, something which would have a massive effect on those undecided and which would also have the benefit of being completely true.
But if for some miracle the UK Government agrees to the terms of the negotiations, something which the Scottish Government will not be pulling its punches this time, then it is Game On! However, if she formally refuses, then the Scottish Government know that the UK does not intend to play ball, like a debtor sticking two fingers up at the debt collection agent that chapped on their door. Or there is the third option where Theresa May just says “now is not the time” and does not respond, in which case like a debtor, she is in no uncertainty of what happens next and the consequences lay firmly on her shoulders.
A refusal, of course, makes them look vindictive and childish and so too does ignoring the demand.
But the ultimate thing that is achieved from all of this is that after the vote, when Westminster no doubt kicks up a fuss and it ends in court, the Scottish Government can go to that court and when the court asks “what did you do to resolve this before calling a vote without consent?t”, the Scottish Government can say: “Look! We were elected on a manifesto which listed a referendum under the Brexit scenario, we held a vote in the Scottish Parliament, we wrote to May and she didn’t respond, we kicked up holy hell in the Commons, we then had an influx of the electorate demand that we proceed through a petition for a section 30 order which is the direct exercise of the peoples sovereign right to decide their constitutional future, then we wrote to her again to demand that it be granted and she said no, or didn’t respond”.
The second demand for Section 30 is, therefore, less about the demand itself and more about:
A. Ensuring we follow all steps in the process to cover Scotlands back in court.
B. Show that Scotland holding a referendum without consent is justified on the basis of the proportional and fair warning that the Scottish Parliament gave Westminster.
C. That Westminster was uncooperative and therefore Scotland had no choice.
D. Showing that Westminster is undemocratic and cannot live up to established precedent and therefore cannot be trusted to be the primary legislator after Brexit.
But isn’t this just begging?
No, categorically not! It is the exercising of the fundamental right to demand that the powers are devolved to Scotland to hold a vote and if that demand is not met, we will seek to do it without consent but doing it in a way which shows Scotland to be the reasonable party, giving Westminster the sort of courtesy that they, so far, have not extended to us. It’s about not pulling the sort of rubbish that Westminster does to Scotland on a regular basis and taking the high road, so when we do have to do it another way without consent, the resultant consequences fall squarely on the shoulders of Theresa May.
But will this screw with the SNP’s timetable?
No! The First Minister was clear, that the referendum would be called when the terms of brexit are known. However, before a referendum can be called, there needs to be legislation put through the Scottish Parliament to facilitate that vote, another way of ensuring that everything is above board and undisputable from an international law perspective. That legislation will take a good few months to put through parliament, with wide open public debates in parliament which will not only allow all grievances with the UK to be put on the table publicly. Remember, section 30 is only a legislative process, it is not the actual referendum itself.
What it will do is set the Parliament on a course to ensure the legislation is in place when the terms of Brexit are known so the trigger is ready to pull the moment we know those details. It also affords the opportunity for a massive public debate to begin now rather than a rush job in the very short time span between a date being announced and a referendum happening. That debate can happen while the Article 50 negotiations are on-going with the legislation stipulating something like “The date shall be set by a motion of the Scottish Parliament called when the terms of Brexit are known”. The legislation can then be put to the side until that time and all that is required once the details are known is MSPs to call a vote on setting the date and that’s it, we’re off to the races.
But a demand for a Section 30 order now means that the debate can start, the Tories and Labour will have to simultaneously juggle their undemocratic behaviour over the Brexit process at the same time as their undemocratic behaviour in relation to the constitutional question over Scotland. In essence, the Unionist Parties will be in the untenable position of having to argue diametrically opposing viewpoints simultaneously, which is a beast of their own making as a result of their blatant hypocrisy over constitutional matters. All this does is brings it into the light. If we talk about a second referendum separately from Brexit then the media will use Brexit to trudge the topic of a second referendum, effectively erasing it from the news roll. Whereas if we actively include the section 30 and referendum demands in with the Brexit mix, they become inseparably linked topics which the media can’t hide and number 10 can’t spin. It’s a bit like a streaker running across the pitch at a tennis match. If he did it the day before the game it would have less impact than doing it while the game is on TV with a stadium full of spectators. Not that I am saying that MPs and MSPs should start streaking through the halls of Westminster that is, but you get the point. The media could hide demands if they were contained within their own debate schedule at Westminster and were separate debates. They can’t hide it when Ian Blackford stands up in the middle of Prime Ministers Questions and makes the demand in full view of every MP and indeed live on TV. They also can’t hide it if every single MP from the SNP were to continually slip it into speeches or interjections about brexit, nor the blatant contempt from the Tories in response to it either.
But the one thing that making the demand formally in writing will achieve is showing Westminster that we are not messing around while simultaneously determining if they would grant one, if they refuse then we know that we will be calling a vote without their consent and it gives the Scottish Government more time to draft the legislation and prepare for it because they would no longer have the lingering question over what type of vote it would be.
You can support the section 30 petition here: DEMAND FOR SECTION 30 | FORWARD AS ONE