A referendum on Scottish Independence: Would it be legal?

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.

4 thoughts on “A referendum on Scottish Independence: Would it be legal?

  1. As a total legal layman I will defer to your better knowledge of the law, but having looked into this a little my understanding is that Schedule 5 of the Scotland Act 1998 explicitly prevents the Scottish parliament from passing any law that affects the Union between the Kingdoms of England and Scotland. But since no referendum on any issue – whether set in motion by Westminster or Hollyrood – has any legal or constitutional significance whatsoever, it seems that an Act of the Scottish parliament organising a referendum cannot, in law, have any effect on the Union, and would not, therefore, violate the terms of the Scotland Act. My view – as, I should stress again, a complete layman – is that the courts would accept that the competence to legislate on the future of the Union lies unambiguously with the Westminster parliament, and that neither a referendum nor an Act authorising a referendum would do anything to change that. (An Act of the Scottish parliament seeking to dissolve the Union would be a different matter, of course – but no-one is proposing this.)

    But it won’t actually come to the point of legal action, of course. My guess is that the UK government will concede on the timing of the referendum, the Scottish government will concede on the age of electors and the body overseeing the referendum, and some kind of face-saving fudge for both sides will be hammered out for the number of questions on the ballot. Ultimately, the electorate seem to back devo max rather than full independence or the status quo, so some way of allowing them to vote for that will be found eventually.

    Great post, btw!

  2. Hmmm. To state the bleedin’ obvious – the SNP are not proposing a referendum on the regnal Union (the “Union of the Kingdoms”) of 1603 but the Parliamentary one of 1707.

    Is there a typo in the Scotland Act?

    1. It’s not, as you put it, “bleedin’ obvious”

      The Union of the Kingdoms of Scotland and England has nothing to do with the Union of 1603. The United Kingdom is a “Kingdom” in the same way that England and Scotland were seperate Kingdoms prior to 1707 (albeit united under the one Monarch since 1603).

      “[T]he Crown, including succession to the Crown and a regency,” is the first matter listed in Schedule 5 as a matter reserved to Westminster.

      To quote the Act of the Union:

      “That the two kingdoms of Scotland and England shall, upon the Ist day of May next ensuing the date hereof, and for ever after, be united into one kingdom by the name of Great Britain, and that the ensigns armorial of the said United Kingdom be such as Her Majesty shall appoint, and the crosses of St. Andrew and St. George be conjoined in such manner as Her Majesty shall think fit, and used in all flags, banners, standards and ensigns, both at sea and land.” (http://www.legislation.gov.uk/aosp/1707/7/section/I)

      “Kingdom” is a constitutional term in the same was as “Republic” and “Principality” are. In a Kingdom the head of state is a King or a Queen. While a Principality is one which is ruled or reigned over by a monarch with the title of prince or princess and a Republic is one where all offices of state, includig the head of state, is selected by the people.

  3. “A referendum on Scottish Independence: Would it be legal?”

    The following is from an article ‘Holyrood has authority over referendum’ which was published in ‘The Herald’ newspaper on Saturday 11, February 2012 –

    ‘Seven senior Scottish constitutional experts have challenged the UK Government view that only Westminster has the legal authority to call an independence referendum.
    …the intervention by the academics…is significant as it challenges the UK view that Holyrood does not have the legal authority to call a referendum. They claim it is simply wrong to argue only Westminster is in charge of constitutional issues, arguing instead the law is not nearly as clear-cut as the UK Government says. They say the argument Holyrood holds power through separate Scottish traditions of popular sovereignty can equally be made.

    But in a contribution to the UK Constitutional Law Group the experts say allowing Westminster to grant the referendum power should not be an acknowledgement of sovereignty.
    “It is important any such agreement should not be taken as an unequivocal endorsement of the view Westminster alone is entitled to authorise a referendum on the constitutional future of any part of the UK,” they say.
    The constitutional experts are Gavin Anderson, Sarah Craig, Aileen McHarg and Professor Tom Mullen from Glasgow University, and Professor Christine Bell, Professor Stephen Tierney and Professor Neil Walker from Edinburgh.
    “Contrary to the views of the UK Government and a number of influential commentators, we believe the legality of a referendum Bill passed under the Scotland Act as it currently stands is a more open question than has been generally acknowledged.”
    “In other words, we believe a plausible case can be made that such a Bill would be lawful, and believe it is important these arguments are clearly set out.”

    The experts say recent arguments advanced by the Advocate General, Lord Wallace, rest on a literal interpretation of the Scotland Act’s bar on Holyrood doing anything which “relates to” a reserved matter, and the broad purpose of a referendum Bill would be to dissolve the Union.
    “Both premises of this argument are contestable,” say the experts who point to the relevant section of the Scotland Act which tells courts they should interpret Holyrood Bills “as narrowly as required to allow them to be upheld”…
    They also argue: “The legal effect of a referendum Bill is indisputably simply to seek the views of people in Scotland,” adding: “If this is the correct approach to the identification of the Bill’s purpose then the precise wording of the referendum question would appear to be a red herring; the legal effect of the referendum is not altered by asking an indirect rather than a direct question about whether Scotland should become independent.”‘

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