One Scottish issue has had a lot of debate, discussion and broadcast time spent on it this week. The subject even managed to dominate Thursday’s edition of Question Time which came from London and made an appearance in Prime Minister’s Questions in the House of Commons on Wednesday afternoon. That’s right; I make reference to the issue of Scottish Independence.
In May 2011 the SNP won a historic victory in the Scottish Parliament. Of course it would be foolish to suggest that this was down to their lifelong policy of achieving independence for Scotland(though that doesn’t stop some members of the SNP claiming so). Undoubtedly though this gives the SNP a mandate to hold a referendum on the question of whether Scotland becomes independent or not.
While it is clear that the Scottish Government have a mandate for a referendum, it is less clear whether they are actually able to hold it. Questions arise over the legislative competence of the Scottish Parliament in passing legislation to hold the referendum. A referendum on Scottish Independence cannot be held without first having passed primary legislation. Those outside of the legal world could be forgiven for thinking what the problem is, after all the SNP won a majority and therefore the people of Scotland have confidence in them and in their manifesto and would undoubtedly expect the SNP to do what it promised in its manifesto. However, the problem is not a simple one.
The Scottish Parliament is not supreme in the same way that the UK Parliament is in Westminster. Its powers are set out within the Act of Parliament that brought it into being: The Scotland Act 1998. That Act in effect gives Holyrood the permission to pass legislation on any matter that is not reserved to Westminster. Essentially, any area that’s not specifically mentioned within the Scotland Act 1998 as being reserved is fair game for the Scottish Parliament to legislate. A political party could make all the promises it wanted in the world during an election campaign, but if the Scottish Parliament doesn’t have the legal power to legislate then quite simply it cannot legislate.
Those who sit within the Scottish Parliament have free will and could quite clearly pass legislation on a reserved matter. However, that legislation would be unenforceable. The Scotland Act 1998 states quite clearly that any “Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.” (Section 29(1)). There is a process whereby an Act of the Scottish Parliament can be challenged, first in the Court of Session and laterally before the Supreme Court of the United Kingdom, if it is believed that it is outside of the legislative competence of the Parliament. If the Courts so find then the legislation is declared to be ultra vires and is struck down; in essence it has no legal effect whatsoever.
What does all of this have to do with a referendum on Scottish Independence? Schedule 5 of the Scotland Act 1998 provides a list of “reserved matters”. The second matter on the list of those that are reserved to Westminster is “the Union of the Kingdoms of Scotland and England”. A referendum on Scottish independence relates to the Union of the Kingdoms of Scotland and England. The purpose of the referendum is to see if the Scottish people wish to bring an end to that 304 year old union. The SNP are obviously in favour of bringing an end to that union and would hope that the result of any referendum on Scottish Independence would eventually bring the union to an end.
It would appear that to hold such a referendum is currently out with the legislative competency of the Scottish Parliament. There are persuasive arguments for the position that it is not out with the legislative competency of the Scottish Parliament. However, my own personal view is that any legal challenge to the referendum legislation under the current law would more likely than not be held to be ultra vires.
Whatever your view on the legislative competence of the Scottish Parliament on holding this referendum under the current law, it would be foolish to think that there would be no challenge to the legislation. Any challenge to the legislation could delay the holding of the referendum by a number of years. It could take as many as two or three years before a determination from the Supreme Court as to whether the legislation is within the legislative competence of the Scottish Parliament or not.
If we assume that the legislation would be challenged and it were then found to be within the legislative competence of the Scottish Parliament and follow the SNPs preferred timetable for passing the legislation it could be as late as 2016 or 2017 before the referendum could be held. If it were to be held in 2016 it could get mixed up with the planned elections to the Scottish Parliament in May of that year. The delay would only lead to more uncertainty and could be very damaging for Scotland and the UK in economic terms. Business does not tend to like this level of uncertainty in politics and it might well put off foreign investors from bringing much needed investment into Scotland and the UK.
There is, I submit, no harm whatsoever in Westminster passing primary or secondary legislation clarifying the position and eliminating any potential challenge to the resulting legislation. One would expect the SNP to welcome such clarification as it means they can progress forward with the referendum with no doubt whatsoever that the referendum would be legal and won’t get tied up in a legal row over whether the Scottish Parliament had the power to pass it.
While it might be for the Scottish people to decide whether they wish to break away from the rest of the UK and become independent, Westminster has a place in the debate. Scottish Independence won’t just affect the people of Scotland but will affect everyone in the United Kingdom. Scottish MPs sit in Westminster and have just as much right to represent their constituents as the MSPs in Holyrood and those who represent English, Welsh and Northern Irish Constituents have the right (and indeed the responsibility) to play their part in the debate in order to represent the best interests of their constituents.
The legal question is by no means certain and people on both sides of the “is it legal?” divide undoubtedly have justification for their opinion. It would, in my view, be better for all sides if this question was put to rest quickly, without years of expensive legal action in the Court of Session and Supreme Court, and the people of Scotland allowed to have their opinion known as soon as is reasonably practicable.
The UK Government have launched a consultation on some of the questions surrounding the legislative competence of the Scottish Parliament holding a referendum and what should be done to ensure that any referendum is legal, fair and decisive. The consultation document can be found here. Responses are invited from anyone, regardless of their place of residence, by Friday 9 March 2012.