The Lord Advocate’s Reference to the Supreme Court docket asks if the proposed Scottish Independence Referendum Invoice relates to reserved issues under the Scotland Act 1998. Main to the Lord Advocate’s circumstance is the assert that the referendum proposed by the draft invoice would be ‘advisory’, ‘consultative’ or ‘non-binding’. If this is the case then it can be argued that the Draft Bill and the referendum it proposes to authorise would not ‘relate to’ the reserved matters of the Union and Parliament by virtue of having ‘no effect in all the circumstances’ – the test established by Scotland Act 1998 s.29(3).

In an earlier post I queried no matter whether the referendum proposed by the Scottish Authorities could be claimed to have no ‘effect’ inside of the context of the United Kingdom constitution where by constitutional conventions now feel to attach the two to the keeping of referendums and the implementation of their success. In this put up I mirror on a different way in which the proposed referendum might be reported to have constitutional ‘effect’: as an electoral course of action which bears inherent constitutional significance. In looking at this problem I make reference to situation legislation from Spain which has also regarded as the nature and constitutional importance of referendums in electoral context. 

A referendum is not just a ‘form of democratic engagement’ – the term employed by the Lord Advocate in talking about citizens assemblies and the like (Lord Advocate’s Written Submission, para 46). Referendums are country-vast electoral functions organised by the equipment of the electoral procedure, underneath the auspices of the Electoral Fee, and controlled both of those by the Political Functions, Elections and Referendums Act 2000 and any further legislation tailoring the 2000 Act to the particular situation of a unique referendum. Significantly of this law is now devolved, and the Lord Advocate’s Reference refers to the laws already put in spot by the Scottish Parliament to regulate and work the referendum which the proposed Invoice purports to authorise. For instance, the draft Scottish Independence Referendum Monthly bill proposes the involvement of the Electoral Fee in the procedure by way of the Referendums (Scotland) Act 2020.

The Advocate Standard alludes to the simple fact that: 

‘legislation for a referendum on independence is expected exactly since statutory authority is essential to authorise the expenditure of sizeable money resources on the work out, and to immediate the general performance of the capabilities of counting officers and registration officers to perform the referendum. The mechanics of this are resolved in the Referendums (Scotland) Act 2020, but clause 4 of the Draft Bill [which provides that the Referendums (Scotland) Act 2020 applies for the purposes of the proposed referendum] is needed to use those people provisions.’ (Advocate General’s Prepared Submission, para 77) 

In other nations the law considers the difference amongst a general public session work out and a referendum to be of the very first importance. For illustration, the Spanish Constitutional Court (Tribunal Constitutional) has asserted in a judgment of Oct 2017 that a referendum is not just a consultation because it will involve the “direct participation of citizens in community affairs”.  It for that reason engages the whole citizens and not just respondents to a poll. The men and women are brought together by the point out as “the electoral body” and consequently as “the constituent power” to make a collective choice. 

A few critical factors of distinction in between a referendum and a general public consultation arise from this investigation. The 1st fears those who participate. A general public consultation can comprise any collective overall body or any selection of groups. According to the Spanish Constitutional Court docket, individuals in general public consultations categorical an view as people (uti singulis) or as a users of groups (uti socius). This can choose any variety, be that social, financial or cultural, as very well as political. They do not acquire section in these gatherings as citizens (uti civesfor each se. This contrasts with the mobilisation of the complete citizens speaking collectively, which occurs in a referendum.

The next position is that the electoral physique comes jointly to make a choice not simply to convey a look at. The electoral system functions as a decisive system in elections when it establishes who will enter parliament, but it does so similarly in a referendum: in my earlier post I noticed that simply just because a referendum result is not self-executing does not mean it is not of binding constitutional outcome. For the Spanish courtroom the characterisation of a referendum as an electoral event, and not simply just the expression of the numerous viewpoints of an amorphous assortment of people and societal groups, is essential due to the fact it mobilises the typical will of the citizenry as a single collective overall body: the individuals who underpin and hence legitimise the structure itself (for dialogue on this level I am grateful to a paper on file with the author: ‘Independence referendums and the Spanish Constitution’ by Lucía Payero López). The concepts of ‘general will’ and ‘constituent power’ are not typically made use of within the British constitutional lexicon, but the thought that a referendum is an electoral function in which the entire persons arrive jointly to make a final decision analogous to the selection they make in a common election is one particular that does resonate within the British isles constitutional custom. 

Lastly, there is the feeling in which electoral occasions, of whatsoever type, have inherent constitutional significance. The difference in between referendums and well-known consultations is marked by the particular procedure of the previous which is “organised and externalised via an electoral procedure”. According to the Spanish Constitutional Court docket in an previously case from September 2008, this means that referendums are “based on the census, managed by the electoral authority and ensured with distinct jurisdictional guarantees”. A referendum is an expression of general public electric power which “summons all the people of a supplied territorial region so that they can physical exercise ‘the essential correct to participation in general public affairs’ by way of an electoral process”, with the common system ensures that show up at an electoral method.”

These cases are practical and to some extent transferable in assisting to comprehend the nature, specificity and importance of referendums within the United Kingdom structure. The primary details of salience for the Spanish court: the participation of the whole physique of citizens in just a jurisdiction, the job of the referendum as a decision-generating system, and the formality of the process, are all capabilities of referendums in the United Kingdom. These are reflected in the infrequent use of referendums, the ordinarily remarkably major issues with which they have been concerned, and the fact that the result of just about every has been revered and applied by Parliament. These capabilities also bolster the argument that a constitutional conference now in point necessitates the implementation of a referendum final result. 

To conclude, I have suggested that it is difficult to look at the referendum on impartial statehood which the Scottish Government proposes to be possibly ‘non-binding’ when a referendum is understood as a constitutional determination of those people organising the process that the final result is decisive, significant and imaginative of a political and constitutional obligation to put into practice the outcome. This argument is presented supplemental pounds when we also observe that referendums are not merely consultation exercise routines but electoral functions intended by their nature to arrive at considerable constitutional conclusions. If a referendum’s characterisation as an electoral system can help give rise to a constitutional expectation that it will be implemented, then it is similarly tricky to say that it has no ‘effect in all the circumstances’ (SA s.29(3)), and appropriately that it does not relate to the reserved matters of the Union and of Parliament. 

Stephen Tierney is Professor of Constitutional Idea at the University of Edinburgh and writer of Constitutional Referendums: The Idea and Practice of Republican Deliberation. He also serves as Authorized Adviser to the Household of Lords Decide on Committee on the Structure. This publish is written in a private potential.

(Suggested citation: S. Tierney, ‘The Lord Advocate’s Reference: The constitutional importance of referendums as electoral processes’, U.K. Const. L. Blog site (5th Oct 2022) (available at https://ukconstitutionallaw.org/))

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