The Governments are talking. If there is not yet consensus, the mood is at least non-confrontational. The chances are improving that we will achieve a referendum on Scottish independence without the Scottish Parliament's power to hold one under the Scotland Act as it now stands, being judicially tested.

And yet the debate continues over the competency of it doing so. Today's Scotsman reports an event held by advocates' chambers Terra Firma to discuss precisely that question.

The balance of opinion is certainly against the devolved Government; but it is not unanimous. The Advocate General, Lord Wallace, speaks for most on that side of the argument, with the view that the statutory test is whether legislation enabling a referendum "relates to" a reserved matter, i.e. the Union, and having regard, as directed, to the purpose and effect of the provision - to achieve a vote on separating the Union - then as a matter of common sense, it must relate to the Union.

On the other side, the view is argued among others by seven academics from Glasgow and Edinburgh Universities, that it could be possible to apply a narrow reading to the purpose of a referendum bill so as to keep it within the bounds of the Scottish Parliament's powers. In this country a referendum is advisory and not legally binding, and therefore an independence vote would arguably simply be a means of facilitating Holyrood's role in acting as a forum for debate about the future governance of Scotland.

This month's Journal sets out these points in a little more detail. My purpose in returning to the subject is to observe that despite the continuing debate, I have still, somewhat to my surprise, yet to see anyone comment on the relevance to the above arguments of the Inner House opinions in the Imperial Tobacco case. This was decided at the beginning of the month, just after the academics' argument was published. See Imperial Tobacco Ltd v Lord Advocate [2012] CSIH 9 (2 February 2012).

It seems to me that Lord Reed's opinion is highly significant in this context. Giving the leading opinion on the question whether the provisions controlling tobacco displays "relate to" the reserved matter of consumer protection, Lord Reed set out at paras 120-125 a number of steps or points to consider:

  • although the phrase "relates to" is a wide one, it must mean more than having just a slight or indirect effect;
  • one must first determine the meaning of the words defining the reserved matter (without making any assumption as to the extent of matters which are not reserved), and then whether the legislation relates to that matter, applying s 29(3);
  • the court must therefore ascertain the purpose of the provision in question, and then determine, by reference to that purpose, whether it relates to any of the reserved matters ("The focus is therefore primarily upon why the provision has been enacted rather than upon what it does, although the latter is also relevant");
  • if legislation may relate to both reserved and non-reserved matters, "one might expect to find" that it is beyond devolved competence;
  • the purpose of a provision will often be clear from its context in the Act in question, and the court can also consider extrinsic material which is relevant to ascertaining such purposes.

Applying such extensive and evidence-based criteria seems to me to make it more likely that a referendum bill would be held to fall (at least partly, which it appears would be sufficient) within purposes relating to the Union and therefore be ultra vires the devolved Parliament. To support that view of its purpose, do we need to look further than the First Minister’s foreword to the Scottish Government’s consultation paper? That  says in simple terms: “If the people vote yes, the Scottish Government would negotiate with the UK and move to secure the transfer of sovereignty and powers to the people of Scotland.”

That takes us well beyond any debating forum powers of the Parliament, directly to the heart of the Union. Whether or not, strictly speaking, the referendum is regarded as consultative only, it seems clear enough that the “purpose” of the enabling legislation, focusing on why it will have been enacted, would be to “relate to” the Union in terms of s 29(3). The legitimacy of the Act has to be determined in advance of the vote and cannot depend on the outcome.

Is there an argument round that? Please post below to continue the debate.