By Mark McKeown, Senior Associate and Fergus Hollins, Trainee Solicitor
Referendums (Scotland) Bill
The Scottish Government has published the Referendums (Scotland) Bill which, according to its press release, aims to ‘provide clarity on the process for voters, campaigners and those administering the process, to ensure all referendums are run to the highest possible international standards and the results are accepted by all parties.’
The existing framework is found in UK legislation and so is not a matter for the Scottish Parliament, unless otherwise delegated under section 30 of the Scotland Act 1998. A ‘section 30 order’ is an Order in Council allowing an exception to the rule that only the UK Parliament legislates on constitutional matters for Scotland; the order also modifies the legislation relating to referendum campaign broadcasts. Importantly, such an order is made only by the UK government and does not require the involvement of the UK Parliament.
The Scottish Government would, prior to seeking an order, be required to table a motion in the Scottish Parliament and have this successfully passed by a majority of members there. Although the governing Scottish National Party (SNP) does not have a majority, the Scottish Green Party has in the past indicated that its members would vote with the SNP; together, the two parties could command a majority in the parliamentary chamber.
The Scottish Government’s stated aim, if the Bill passes successfully through the Scottish Parliament, is to set the rules for any referendum within the competence of the Scottish Parliament, with the prospect of holding a second referendum on Scottish independence in the latter half of 2020. Even if the Bill were to pass, a section 30 order would still be required to properly transfer the appropriate constitutional power to the Scottish Parliament to hold a referendum on independence (or any other constitutional matter).
Concurrently, the Scottish Government has announced its intention to form a citizens’ assembly to encourage discussion on issues affecting Scotland’s future, both domestically and internationally.
What is a citizens’ assembly?
The Scottish Government may have looked for inspiration from the recent Irish Citizens’ Assembly model, which was most successful in prompting the Houses of the Oireachtas to stage a referendum on the amendment of abortion laws in 2018.
If based on this model, a Scottish citizens’ assembly could be made up of 99 members of the public from a range of different ages and backgrounds, including foreign long-term residents. Along the same lines as jury selection, members would likely be selected from the electoral roll and by information pooled from census records. In addition, to maintain neutrality, members might not be part of any advocacy groups, although they may be welcome to make submissions.
How might the assembly work?
The premise is simple: by gauging the majority opinion of a wide representation of society, an agreed proposal may be reached on how to tackle the issue. To achieve this, the assembly must be established for a particular purpose; if the topic of discussion is too ambitious, there is less opportunity to reach a consensus. Led by a government-appointed chair, members would be split into smaller groups and would receive presentations from experts in the area of discussion. Once a decision was reached, the assembly’s conclusions would then be reported to Parliament, which would debate the recommendations.
Holding a citizens’ assembly might provide a useful gauge of public opinion on how Scotland is governed, its future relationship with Europe and alternative approaches to the functioning of the United Kingdom.
It seems, however, that the success of citizens’ assemblies depends on their legitimacy and backing by Parliament. In 2017 following the UK referendum on whether to leave the European Union, the Electoral Reform Society staged its own Citizens’ Assembly on Brexit. In brief, its recommendation was that the UK government should try to achieve a so-called ‘soft Brexit’, seeking a bespoke trade and customs deal, failing which it should try to negotiate a result in which the UK remained in the single market.
Two years on, the Assembly’s recommendation remains unimplemented and so, perhaps, a lesson Scotland might take is that any citizens’ assembly – if its discussions are to have a meaningful impact on constitutional debate and decisions – should have wide cross-party backing at the outset, with undertakings that its conclusions will be given the most serious consideration by the legislature.