23rd November 2022
This morning the United Kingdom Supreme Court gave judgment in the reference made by the Scottish government about whether the Scottish Parliament could legislate for a non-binding referendum on Scottish independence.
This post is not about the specific issue of the Scottish independence referendum, which I have commented on at the Financial Times.
This post is instead about some fascinating passages in the judgment about referendums.
By way of background, the usual position is that there is a binary: on one hand there is parliament, and on the other hand there are extra-parliamentary exercises, such as referendums and consultation exercises.
These extra-parliamentary things are usually seen as advisory.
Sometimes there is an exception – the electoral reform referendum would have had a direct legal effect had a majority supported change.
But generally, referendums and such like are glorified opinion polls.
Any mandate is political, not legal.
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In today’s judgment, a unanimous Supreme Court seems to have put forward a different view (which I have broken up into sentences for flow and added bold for emphasis):
“78. The effect of the Bill, however, will not be confined to the holding of a referendum. Even if it is not self-executing, and can in that sense be described as advisory, a lawfully held referendum is not merely an exercise in public consultation or a survey of public opinion.
“It is a democratic process held in accordance with the law which results in an expression of the view of the electorate on a specific issue of public policy on a particular occasion. Its importance is reflected, in the first place, in its official and formal character.
“Statutory authority is needed (and would be provided by the Bill) to set the date and the question, to define the franchise, to establish the campaign period and the spending rules, to lay down the voting rules, to direct the performance of the counting officers and registration officers whose function it is to conduct the referendum, and to authorise the expenditure of the public resources required. Statutory authority, and adherence to the statutory procedure, confer legitimacy upon the result.
“79. That legislative framework is put in place because the result of a lawfully held referendum is a matter of importance in the political realm, even if it has no immediate legal consequences.
“That has been demonstrated in practice by the history of referendums in this country, and has also been recognised by this court.
“For example, in relation to the 2014 referendum on Scottish independence, Lord Hodge stated in Moohan v Lord Advocate […] with the agreement of the majority of the court, that “the referendum is a very important political decision for both Scotland and the rest of the United Kingdom”.
“In relation to the 2016 referendum on leaving the European Union, the majority of the court stated in R (Miller) v Secretary of State for Exiting the European Union […] : “[T]he referendum of 2016 did not change the law in a way which would allow ministers to withdraw the United Kingdom from the European Union without legislation. But that in no way means that it is devoid of effect. It means that, unless and until acted on by Parliament, its force is political rather than legal. It has already shown itself to be of great political significance.”
[…]
“81. A lawful referendum on the question envisaged by the Bill would undoubtedly be an important political event, even if its outcome had no immediate legal consequences, and even if the United Kingdom Government had not given any political commitment to act upon it.
“A clear outcome, whichever way the question was answered, would possess the authority, in a constitution and political culture founded upon democracy, of a democratic expression of the view of the Scottish electorate.
“The clear expression of its wish either to remain within the United Kingdom or to pursue secession would strengthen or weaken the democratic legitimacy of the Union, depending on which view prevailed, and support or undermine the democratic credentials of the independence movement.
“It would consequently have important political consequences relating to the Union and the United Kingdom Parliament.”
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With regard to these “important political consequences”, the Supreme Court held that such a non-binding referendum would “in all the circumstances […] relate to” the reserved matters of the Union and the sovereignty of parliament, even if the referendum was not legally binding.
In particular, the Supreme Court emphasised that “statutory authority is needed (and would be provided by the Bill) to set the date and the question, to define the franchise, to establish the campaign period and the spending rules, to lay down the voting rules, to direct the performance of the counting officers and registration officers whose function it is to conduct the referendum, and to authorise the expenditure of the public resources required. Statutory authority, and adherence to the statutory procedure, confer legitimacy upon the result.”
A dedicated referendum, under a dedicated statute, is not to be taken lightly.
The key point in these passages is that “a lawfully held referendum is not merely an exercise in public consultation or a survey of public opinion”.
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The import of this judgment would seem to be that dedicated referendums set up by statute now occupy an intermediate position in the constitution of the United Kingdom.
They do not bind parliament (or presumably the courts), but they are not mere opinion polls either.
Such referendums and their results are, as a judge may say, “seen”.
The results of these referendums have a force which, even if not legally binding, is legally recognised and which may, in certain legal cases, make a legal difference.
Perhaps this may have implications in certain legal cases where there are “legitimate expectations” that a public body will act or not act in a certain way.
Perhaps it may have implications for what will follow a border poll in Northern Ireland, or in a further Scottish independence referendum.
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To an extent this is a judicial statement of the obvious political reality of referendums – but it is significant for it not only to be expressly acknowledged in a judgment but also (via “all the circumstances”) to have made a difference in this case.
Special referendums now appear to have a special constitutional status.
They matter and their results will be judicially recognised – even, as the Supreme Court expressly said here, if the United Kingdom government has not given any political commitment to act upon them.
If so, let us see what happens with the next one – that is, if there is a next one.
The consequential litigation may be fun.
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If referendums now have special status, this implies there must be certain constraints or procedures that must apply when setting them up or conducting them. Perhaps around misinformation (as they can not be merely non-binding).
Vote Leave broke the law during the 2016 referendum campaign, but this was judged not to have undermined the validity of the result because the referendum was merely advisory. Today’s judgement cuts right across that state of affairs.
But does it? The point about political impact was part of the legal reasoning as regards this specific statutory context, ie what powers does the Scottish government have.
What about Remain:
The Liberal Democrats were fined £18,000 over EU referendum campaign breaches;
The Official Remain campaign Britain Stronger in Europe (re-named Open Britain) was hit with a £1,250 fine for incorrect spending returns;
The campaign group ‘Best for Our Future’ was slapped with a £2,000 penalty for failing to submit documents about donations from Unison and the GMB;
Unison and GMB unions were fined £500 each for inaccuracies in the way they reported the donations they gave to the campaign group.
… and also around the percentage i.e. must be above 60%
There’s no suggestion of this in the judgment.
This is new. Interesting. I loathe referendum(b)s, viewing their plebiscite-democracy character as being at odds with a system of representative democracy. The UK’s judiciary here is demonstrating its jurisprudential elasticity, but no good will come of it. Referendums are too intrinsically febrile, and too susceptible to troll-farm / mob-capture. A system of representative democracy moves more slowly and any change emanating therefrom will be less socially divisive and longer lasting. That is, if you don’t like something, you need to get out there, form a party, sell your ideas to the electorate and get into government on your manifesto. That takes real commitment and tends to weed out the bullfhitters. By contrast, voting in a referendum is no more onerous than voting in bake-off. They should be banned.
Whilst not particularly liking referenda myself , since the 2016 referendum I’ve become increasingly depressed with the representative democracy that we have in this country.
Irrespective of which way you voted in the 2016 European referendum, it soon became apparent that the then Parliament of the day didn’t know the difference between the Single Market, a/to the Customs Union, or the difference between tariff barriers or non tariff barriers.
That MPs are supposed to represent us is fine in theory, it would also help if they knew the topics and subjects of debate.
Maybe Mr and Mrs Joe Public on the Clapham Omnibus are more representative & better at making key decisions than some of the chancers in HoC.
Very well put.
Citizens’ assemblies if properly organised and conducted would I think be an effective way to overcome these problems. They seem to work well in Ireland, and with hindsight we should have had something similar here before the 1916 referendum.
My sentiments exactly!
“if you don’t like something, you need to get out there, form a party, sell your ideas to the electorate and get into government on your manifesto”
Which is exactly what the SNP has done, very successfully.
Are you saying they should therefore have the power to declare independence unilaterally? Or that the only possible route to Scottish independence would be for people in England, Wales and NI to also vote for the SNP in a UK general election? Either option seems… problematic, so perhaps referendums are useful in at least some cases.
“By contrast, voting in a referendum is no more onerous than voting in bake-off. They should be banned.”
That’s your view and I am not going to debate that point. It leads to the question though, how Scottish independence could be achieved?
Years ago it was accepted that if a majority of MPs were in favour of independence then this was a sufficient requirement. That thinking has shifted to the point that a referendum would have be part of the process. That’s not a contentious view these days. And we now have the fight over the right to hold a referendum.
What else would independence supporters need to do? Independence supporters hold the majority of MPs, run the Scottish government – what’s the next step on the road to independence?
I tend to agree. The question and options in any referendum tend to be complex, but not necessarily. To take the Brexit vote as an example, a vote to leave or remain, but no vote on the preferred outcome single market/customs union/Hard/Soft/deal/no deal etc. Horrendously simplified and attractive at a superficial level. Similarly, the PR referendum – no option as to which form of PR, but rather a simplified question.
Representative democracy has many drawbacks – but we ask MPs to exercise their judgment, and if we don’t like their judgment, we vote them out. There is much that can be reformed with representative democracy, but it is better than a simplistic and populist process.
Ah, but can’t vote them out if they are in a “safe” seat. And most MPs are in a “safe” seat. Not so much a representative democracy.
This is interesting. If, for instance, the Scottish Government precede and hold a democratic referendum without permission from Westminster, then what happens? The judgement implies that the referendum carries democratic weight, but it will also be against the law, in that a referendum requires authority from Parliament. There’s a conflict, and presumably the Court will have to intervene, but this time in a much more delicate position, if the electorate vote in a way that the UK Government dislikes.
surely it’s only the holding of the referendum .. the expenditure, use of public servants’ time, etc. that would be illegal. It would be ultra-vires.
The problem this judgment seems to create is that although there may be liability for having held the referendum without due authority, the referendum result itself would still have to be ‘seen’. Assuming that the actual conduct of the vote were held in a fair and orderly manner.
The First Minister has made it clear that she intends to seek lawful means to hold the referendum, rather than proceeding unlawfully. But the wedge has been firmly driven between the lawfulness of the referendum and the ‘unignorability’ of the result. .. Which is, of course, a principle effectively already established by the Brexit referendum, when egregious law-breaking in the course of the campaign was held to not detract from the legitimacy of the result.
Fascinating to have this so formally affirmed as a general constitutional principle.
Why would it be ultra vires, Harry?
Given the purpose – the very point – of the SNP, and the convincing argument they make for their pro independence mandate, I can’t really imagine anything more intra vires given the context.
It would be ultra vires because it would be outwith the powers of the Scottish Parliament, which are conferred by Westminster, not by the SNP or by the people of Scotland. It may be the very point of the SNP to secure Scottish independence, but this underlines the fact that Scotland is not now independent, and one of the ways in which it lacks independence is that its Parliament does not have the power to conduct an independence referendum.
“It would be ultra vires because it would be outwith the powers of the Scottish Parliament”
Don’t agree. Independence is the fundamental point of the SNP’s manifesto and raison d’etre, and it is clearly within its constitutional scope to takes such steps – like a referendum – as would be necessary to move that aim forward.
I would argue that it’s an implicit power. It’s not uncommon in law for the ability to take certain actions to be implied by a piece of legislation, in order to allow that legislation to have its full effect: this is a really good example of that.
The SNP’s manifesto cannot confer powers on the Scottish Parlaiment, not even if the SNP wins a majority of votes, or even all the votes, in Scotland. If Scottish voters could confer powers on the Scottish Parliament, Scotland would already be a sovereign independent state.
The powers of the Scottish Parliament are conferred (and limited) by Westminster; that’s the SNP’s whole beef.
“But generally, referendums and such like are glorified opinion polls…”
Is this really the case.
The referendum to stay in the EEC was viewed more than a glorified opinion polls in that we remained in the EEC back in 1975.
The AV referendum was adhered to as it was binding.
And, although advisory ( for multiple reasons already discussed) the 2016 referendum on the EU was also accepted – both notionally and politically.
On the basis of just these 3 referenda, I’d say they rank more than mere opinion polls.
“referenda” Ugh.
Michal Rosen agrees with you. An 18th. century misappropriation and misapplication by the Swiss, of all people. I had a higher opinion of them.
Would a census of the population with a question on independence be caught by this? What about an opinion poll of all households?
My question now: What if the Scottish Government go ahead and hold one anyway?
What would be the sanction for doing so?
The subsequent referendum would be unlawful, and any result could be struck down, but that seems very much like a stable-door-horse-bolted situation.
An injunction taken out the moment any referendum legislation passes Holyrood might stymie the process, but then what? Contempt proceedings against ministers if ScotGov go ahead anyway?
As we have seen with both Trump and Johnson, if in the calculus of consequences, the penalty for doing an act is outweighed by other potential gains, it may be worth doing anyway – The political equivalent of a “Professional Foul”. It may be that Nicola Sturgeon decides “Legislate and be damned”.
I humbly submit that such a situation would require a level of Brace that would normally be associated with attempts to realign *all* of The Corinthian’s teeth.
Being responsible folks, Sturgeon and her ministers have said they will abide with the court result and respect the Rule of Law.
“My question now: What if the Scottish Government go ahead and hold one anyway?..”
It would be analogous to perjury – it would undermine the whole concept of the rule of law – ergo, very (very) unlikely to happen.
Brilliant as always.
I am a total amateur at this stuff, but a couple of points.
Isn’t there an important difference between a Referendum and a Plebiscite? Latter is binding.
Just before we had our Brexit Referendum the Swiss had a referendum on putting ceiling on immigration. EU cut them out of H2020. But didn’t the Fed govt actually ignore it and eventually called a second Ref which got them out of it?
We know several countries had re-run referenda on Maastricht.
Is the SC here treating Referenda more seriously than others do? Or did the UK as a whole step into this?
Thank you
Peter Holmes
There is a House of Commons Briefing Paper that lays out the difference between pre-legislative and legislative referenda in the UK.
The former are what we’ve had and while they might create a mandate for an action it has been assumed that they do not create an obligation to act. The latter is presumed to approved already debated and finalised bills before enactment but we’ve never had one of that form.
The Swiss have three forms. Initiatives which, if passed, create a positive requirement for the federal government to legislate for an outcome but doesn’t have detail. Facultative which are usually yea/nay to full legislation ready to be implemented. And mandatory for changes to the constitution and similar matters. There is nothing quite like a what we’ve experienced although initiatives would be the closest form.
“And has the Supreme Court made it far harder for the UK government to ignore the results of any further “advisory” referendum?”
Today’s judgement is just the legal system catching up with the realpolitik. In practice, it was already impossible for the UK government to ignore the results of the 2016 referendum.
@ Sean
In general, I rather agree about the problems with referendums. But what if you HAD formed a party, sold your ideas to the electorate, and got into Government, as the SNP have indeed done? And then – nothing happened? Perhaps a referendum to confirm the specific point you wish to make, rather than relying on a more complex manifesto or set of policy statements, might be informative about the wishes of the electorate, one way or the other.
Any government daft enough to try a ‘referendum’ from now on is .. doomed … who knows what the GBP will decide ..
I note the phrase “Legitimate expectations”.
Is it not a legitimate expectation for a referendum to be dealt with in accordance with well established constitutional conventions?
Is it really more legitimate to expect an established liar to keep his word?
A border poll in Northern Ireland, if in favour of a United Ireland, will have direct consequences by virtue of section 1(2) of the Northern Ireland Act 1998 —
“(2) But if the wish expressed by a majority in such a poll is that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland, the Secretary of State shall lay before Parliament such proposals to give effect to that wish as may be agreed between Her Majesty’s Government in the United Kingdom and the Government of Ireland.”
I don’t know too much about how Ireland and Northern Ireland get on, but even if Northern Ireland voted to form part of a United Ireland, would the Irish want the Northern Irish to join them? Do both sides get to vote?
Yes, the citizens in the south of Ireland will get to vote on any proposal for reunification with the north.
Here is Article 3 of the Irish Constitution (emphasis added):
https://www.irishstatutebook.ie/eli/cons/en/html#part1
But note that the obligation on the Secretary of State to lay proposals before the Parliament depends on the UK government agreeing such proposals with the government of Ireland.
In legal terms, it is like an agreement to agree; but if both sides vote in favour, the political pressure to deliver would be immense.
Although it may have been the legal view that referendums were by default advisory, unless explicitly set up to have direct legal effect, in practice it is hard to conceive of circumstances where a vote would not be acted on, other than in cases where more than one vote is required. So it was always clear that a Yes vote in the Northern Ireland referendum on the Good Friday Agreement would not be acted on if Ireland had voted No on the required changes to their constitution. Beyond that extreme case, or serious force majeure, I struggle to see how a government could survive calling a referendum and refusing to act on the outcome.
That being the case, it seems helpful that the court has made this explicit. This seems to change the default option, such that a referendum will be acted on unless the government makes it explicit in the enabling legislation that it is non-binding. That seems to me to be a good thing.
Perhaps referendums do now have a special legal status in the UK – the Brexit referendum seems to have been granted an exalted and unimpeachable status by the politicians, and now the courts seem to be reacting to that political reality as a point of public policy. They don’t happen very often, and as you say, they matter.
On the narrow legal point in this case, I can certainly see that an Act of the Scottish Parliament providing for a referendum on the independence of Scotland would be something that “relates to” “the Union of the Kingdoms of Scotland and England” (using the words in s.29 and Schedule 5 of the Scotland Act 1998).
The SNP’s route forward is a political one – continue to advocate for independence, continue to secure majorities in the Scottish Parliament and the Scottish constituencies at Westminster, and continue to point out that the UK government (dominated as it is by English MPs) is acting in an undemocratic and neocolonial manner by ignoring the expressed will of the Scottish people. For what it is worth, I am in favour of the Union (I think we are better together, to coin a phrase) but I am also in favour of national self-determination, whether that is for Ukraine or for Catalonia or for Scotland.
Ultimately I doubt that the Union can be held together simply by refusing to allow people to express the view that they wish to leave it. If the Scottish people can’t vote in a referendum to endorse independence for Scotland they can, e.g., vote in an election to endorse a manifesto commitment to independence. Politically it becomes very difficult for Westminster to ignore this; before long Westminster rule in Scotland starts to lack democratic legitimacy. Ultimately I think the only way that the Union is safe is if unionists can fight and win an independence referendum.
Though you may argue that referendums have special constitutional status, I am not convinced that the “Supreme Court made it far harder for the UK government to ignore the results of any further “advisory” referendum”.
Going back to fundamentals, the UK Parliament is sovereign. What is often forgotten, however, is that A.V. Dicey, in his canonical text, separates two types of Sovereignty: legal and political. We tend to remember that the UK Parliament can pass any law and that no court can overrule them (this is subject to Factortame debate), but we forget that Dicey’s theory tempered this absolutism with his concept of political sovereignty. Sir John Laws, in his text ‘the constitutional balance,’ drew attention to a similar distinction from ancient Rome between two forms of power: ‘imperium’ and ‘auctoritas’.
The significance of this to me is that contrary to what is commonly claimed, parliamentary sovereignty is not an overriding absolute power (in the Hobbesian sense). It is a very particular and special type of power, parliamentary sovereignty is the power to distribute the legal structure of power. This is how it can be true that during our membership of the EU, Parliament was still sovereign and how the Human Rights Act can have empowered the judiciary in the form of S4 declarations of incompatibility to make politically influential statements (though in no way legally binding) about the state of Domestic UK law in relation to the ECHR.
This last example links to referenda as, in both cases, Parliament authorises some other process or body to have a formalised political influence on decisions taken by Parliament. The UKSC has to my mind, simply reflected the reality of how referenda are generally seen by the public, and that is confirmed by the UK’s experience of the Brexit referendum. That reality is that referenda operate as an alternative legitimating circuit for decisions, alternatively or parallel to the normal UK representative democratic system. The crucial point is that they can and do (depending on the circumstances) exert intense political influence on normal representative politics.
The Key point with referenda and also the political influence of HRA s4 declarations is that Parliament authorised them! They distributed the structure of political influence in that way. What the UKSC decided today was that in passing the Scottish devolution legislation, the UK Parliament had not distributed such political influence as holding a referendum to the Scottish Parliament. I do not interpret the remarks in the judgment as having changed the status of referendums which falls squarely into the political power/influence category and will be determined by the circumstances surrounding how a referendum is authorised. The UK Government leaflets sent out before the EU referendum stated that “the Government will implement what you decide” this commitment and other factors meant that after the referendum, it was politically very difficult not to carry out its results. However, there were arguments about whether the result had to be upheld or not. These were all political arguments, and I can see no reason why the courts would have stepped in to enforce the result or apply pressure on it being implemented. In this sense, nothing has changed. The UK Parliament a) remains able to distribute the power to have a referendum with the political influence it wields, and b) it remains able to legally ignore any referendum result and, in practice, could do so if it can bear the political cost.
It would appear that Nicola Sturgeon’s law-abiding approach can only succeed if the English and Welsh Greens gain a working majority in the Commons, possibly in coalition with the SNP. On current evidence Nicola will be retired before then.
Sorry, Plaid! Should have included you.
I often quite like reading original judgments.
I gave up with this one after the first couple of pages because it was boring and depressing me in equal measure.
It reminded me too much of that old joke about bald men fighting over a comb.
The genie was let out of the bottle in 2016. As any five year old will tell you there is no way of putting the genie back in the bottle. You can of course recork the bottle and seal it over with tape but the genie is still on the outside.
Jo Swinson said a Lib-Dem government under her leadership would take Britain back into the EU. Leavers, in their rage, said that, in effect, a technically “advisory” referendum result is superior to an election manifesto commitment. What would the Supreme Court have made of that if she had won (instead of losing her seat)?
Might we draw an analogy with the law of equity here?
Equity deals specifically with cases where there is no immediate legal effect of a particular action (in fact, the law is engaged precisely when there is no legal effect), but the action has such profound consequences in moral terms that it would be ‘unconscionable’ to ignore what has happened. Perhaps we could coin the concept of ‘Political Equity’ to deal with such situations that occur in the political realm? Political promissory estoppel?!
I think also of the concept of ‘customary international law’ which results in states which have not signed-up to a treaty nevertheless being bound it.
Seems to shoot the Remainer argument that the referendum was only advisory and can be ignored.
I can’t recall a single politician of any real influence who argued that.
Don’t recall that argument being advanced very strongly, though. Main tactic was to call for a second referendum which, of course, was only needed because the first referendum couldn’t be ignored; it created a political mandate which could only be superseded by a fresh mandate.
What strikes me most about this — as a purely amateur looker-on to legal processes — is the extent to which the reasoning is founded on matters, issues and expectations that are way beyond actual statutes.
Is this normal, and having not noticed it I’ve been reading with the layman’s idea of ‘the letter of the law’ etc? And if it is quite customary is it something seen only in the Supreme Court?
An indicative referendum always was a nonsense. Once you’ve held a referendum people will argue it is the will of the people. Far better to accept that all referenda are binding and for constitutional matters set a super majority requirement.
The problem in 2016 was that the referendum wasn’t binding and thus didn’t need a supermajority to support change. Once Leave won it was treated as if it was binding anyway.
But close referendums are only close when the votes are counted. Even the Rees Mogg suggestion of a second referendum if the vote was close ( to his disadvantage ) is only the Remain voters plea in reverse. Super majority referendum results can be marginally close.
You missed the point. It’s not the closeness of the result, it’s the size of the majority needed to pass the referendum. 62% to 38% is convincing by any definition, 52% to 48% much less so. The closeness of the vote to succeeding is the same in both cases.
I think it much more important that the number of those who vote for change is measured against the number of those entitled to vote. In other words, those who aren’t eager for change should not have to demonstrate it by voting.
If something is truly “the will of the people” then the majority of those entitled to vote will express that will.
You can’t count abstentions as being votes against. A supermajority requirement is an established way to ensure constitutional change has wide support.
Increasing light is being shone daily on the distinction between legal and political legitimacy in UK constitutional affairs.
Scotland and Northern Ireland voted *against* leaving the EU and their expressed will has been *seen* to have formalised political legitimacy.
Although the UKSC decision may not have changed anything legally regarding a referendum for Scotland to leave the UK, politically it turns up the pressure – on Nicola Sturgeon, on Unionists, on the UK government.
No you can’t, apparently, but that wasn’t what I was suggesting.
The EU referendum, for instance, required people to make a decision that very, very few people were qualified to make.
A referendum should judge the strength of feeling on whether to make change or not. There only need be one question ” Should the UK leave the EU “, there is no need to have an alternative question because the strength of feeling will be clearly demonstrated by the ratio of votes cast/those entitled to vote. You could still have your super majority.
One part of this judgment that doesn’t appear to have been properly considered is captured in the words “on a particular occasion.” Given how quickly opinions can change, or be changed, relying on an opinion poll to make substantial constitutional decisions seems wrong, particularly when acted upon by an extreme executive.
It’s a very striking elevation of the constitutional significance of a popular vote.
The question arises, what is the distinction between a referendum and an election?
Arguably only scope. A referendum decides on one question. An election decides between alternate manifestos.
But what if the SNP manifesto was just:
“We will not form, support or consent to a new Government until UKG agrees to an independence referendum and following a second election fought on a complete manifesto.”
If the Scottish Parliament does not nominate a FM section 3(1)(b) of the Scotland Act 1998 comes into play.