With Nicola Sturgeon announcing today at the Scottish National Party’s conference that the Scottish Government would be beginning a consultation on an Independence Referendum Bill next week, the inevitable discussion as to whether the Scottish Parliament has the power to legislate for a referendum on the question of Scottish Independence has arisen once again. On one side there are (largely) independence supporting individuals who state categorically that the Scottish Parliament does have the power to legislate; meanwhile, on the other there are (largely) union supporting individuals who state categorically that the Scottish Parliament does not have the power to legislate. In my view, both groups are wrong to be so sure in their view: the situation is not altogether clear.
The Scottish Parliament is not equivalent to the UK Parliament. It is not sovereign nor is it supreme. The Scottish Parliament is a creature of statute; it was established by virtue of Section 1(1) of the Scotland Act 1998. Its powers are set out within that Act, as amended by the two subsequent Scotland Acts of 2012 and 2016. The supreme and sovereign UK Parliament has established a body with the power to make legislation applicable to Scotland. The Scotland Act 1998 did not spell out specifically what the Scottish Parliament was able to legislate on, rather it stipulates what the Scottish Parliament cannot legislate on – these areas are set out in Schedule 5 to the Scotland Act 1998 and are known as “reserved matters”. In respect of these matters the UK Parliament has the sole right to legislate. On all other areas, the Scottish Parliament may legislate; however the UK Parliament retains the right to legislate on these devolved areas (but will not normally do so without the consent of the Scottish Parliament).
In assessing this question, it is important to look at the language adopted by the UK Parliament within the Scotland Act 1998. Section 29 of the Scotland Act 1998 makes provision for the legislative competence of the Scottish Parliament. It begins, in subsection (1), by providing that “an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.” This is quite clear: where the Scottish Parliament legislates beyond its competence the Act (or the parts thereof that are outside of the Scottish Parliament’s legislative competence) have no legal effect. Subsection (2) then goes on to list the circumstances in which legislation enacted by the Scottish Parliament would be outside of its legislative competence, the second of which is where “it relates to a reserved matter.”
That all seems pretty clear, any legislation that relates to a reserved matter is outside of the legislative competence of the Scottish Parliament. As mentioned earlier in this post, the reserved matters are set out in Schedule 5 to the Scotland Act 1998. Right at the beginning of Schedule 5 to the Scotland Act 1998, under the heading “The Constitution”, there appears the words “the Union of the Kingdoms of Scotland and England”. Again, this all seems fairly clear: the Scottish Parliament cannot make legislation that relates to the Union of the Kingdoms of Scotland and England. The Scottish Parliament could not, for example, pass a “Great Repeal Act” of its own with the effect of dissolving the Union between Scotland and England. So, surely that’s an end of matter? A Bill to hold a referendum on Scottish independence clearly relates to the reserved matter of the Union of Scotland and England? Well, it’s not quite that simple.
Section 29 doesn’t just contain two subsections; it contains a total of 5. The third subsection is one of importance here. Subsection (3) provides that, subject to subsection (4), when determining whether an Act of the Scottish Parliament relates to a reserved matter, consideration should be given “to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.” It is this subsection that makes things a little more interesting. Whether a referendum bill was beyond the scope of the Scottish Parliament’s legislative competence would depend, inter alia, upon (i) the purpose of the Bill and (ii) its “effect in all of the circumstances”.
At this juncture we need to consider referendums and their place within the UK’s constitutional framework. This is an issue upon which the current Judicial Reviews before the High Court in London on the triggering of Article 50 of the Lisbon Treaty following the EU Referendum partly revolve.
The UK has long been recognised as a representative democracy. The doctrine of Parliamentary supremacy means that Parliament is supreme – nothing and nobody can bind Parliament; one Parliament cannot even bind another. What one Parliament legislates for today can be repealed by a future Parliament if that is what is within the will of the Parliament that acts to repeal a piece of legislation. What some argue, therefore, is that referendums do not bind Parliament – indeed, they cannot bind Parliament. This is where the argument that referendums are merely advisory come from. This argument essentially reduces referendums to glorified national opinion polls. They have no effect beyond telling Parliament (and the Government) what the view of the electorate is on the specific question posed at the specific date on which the referendum was held. You may argue that this not very democratic, but that is beyond the scope of this post.
If the argument that Referendums were merely advisory and were for all intents and purposes glorified national opinion polls is correct, then it can be argued (with some force) that a Bill to enable a referendum on the question of Scottish independence is not beyond the scope of the Scottish Parliament’s legislative competence. All that Bill would do is enable a national opinion poll to take place – it would not bind the anybody to do anything. It would certainly not bring about the end of the union between Scotland and England. Applying section 29(3), it could be argued that the purpose of the Bill is not to bring about the end of the Union, but rather to find out – on a national scale – what the view of the people of Scotland is on the question of Scottish independence (and only on the date upon which the referendum is held).
However, politics comes into play and this could have an impact upon what effect of the Referendum Bill has “in all the circumstances”. Let us imagine, for a moment, that the Bill is passed and not challenged before the Courts. The vote happens and there is a majority vote in favour of Scottish independence with a substantial turnout of the eligible electorate. This would, in practical terms, be something that could not realistically (or politically) be ignored. The United Kingdom is a union of four separate and distinct countries: England, Northern Ireland, Scotland and Wales. It would be hard for the United Kingdom, internationally, to ignore a vote by one of the constituent parts of the United Kingdom to leave that union. A failure to give effect to it might well lead to international condemnation, pressure and sanction upon and against the United Kingdom. In short, even if Referendums are merely advisory, the effect of a “yes” vote to independence, at a political level, would mean that Scotland would have to leave the Union and become independent. The effect “in all the circumstances” here would be to bring about the end of the union between Scotland and England. This argument, like the first, has some force to it.
The two arguments are quite finely balanced. The courts could take the view that constitutionally, whatever the political ramifications, referendums are merely advisory and therefore a referendum result in favour of Scottish independence would be binding upon nobody. Equally, the court could take a look at the words “in all the circumstances” and conclude that the political ramifications are relevant in determining what the effect of a Scottish Referendum Act would be.
As noted above, the EU Referendum Judicial Reviews could be important in determining the question of the Scottish Parliament’s legislative competence to hold a referendum. If the High Court (and subsequently the Supreme Court) was to determine that the referendum decision on 23 June 2016 did not amount to a “decision” at all because it was effectively nothing more than an opinion poll, then that would lend significant weight to the view that the Scottish Parliament does have the competence to legislate for a second independence referendum. However, if the High Court were to determine that the EU referendum did amount to more than a glorified opinion poll, then that would lend significant weight to the view that the Scottish Parliament does not have the competence to legislate for a second independence referendum.
This post has, I accept, vastly oversimplified issues that would inevitably take days to argue before the Courts; however, it is quite long enough. There is absolutely no way that it would be possible to get into the fine details of the issue on a blog – indeed, there are probably several PhD theses in this seemingly simple question. However, it does (I believe) result in the conclusion that, at this stage, it is impossible to be wholly certain one way or the other, as to whether the Scottish Parliament does (or does not) have the power to legislate for a second independence referendum. However, one thing can be certain: a referendum bill passed by the Scottish Parliament without there being a further Section 30 Order will be challenged in the courts.