Now we're talking - about the Scottish referendum

Writing in November of last year, I suggested that it would be worthwhile talking about the proposed referendum on Scottish independence which Scotland’s First Minister has pledged to hold sometime in the lifetime of the current Scottish Parliament, most recently suggesting that it may be held in Autumn 2014.

I raised the issue in that post as to whether or not it was within the legislative competence of the Scottish Parliament to organise a referendum concerning the dissolution of the United Kingdom.

Paragraph 1 of Schedule 5 to the Scotland Act 1998 (SA) reserves to Westminster the following aspects of the constitution, among others “(a) the Crown including succession to the Crown and a regency” and “(b) the Union of the Kingdoms of Scotland and England”. Paragraph 2 of Schedule 4 SA states that “an act of the Scottish Parliament cannot modify or confer power by subordinate legislation to modify the law on reserved matters” and Section 29(2)(b) SA says that it is outside the legislative competence of the Scottish Parliament to make a law which “relates to reserved matters”.  Section 54(3) SA provides that it is outside the “devolved competence” of the Scottish Ministers to exercise any of their functions in any way which would be outside the legislative competence of the Scottish Parliament.

I also noted that when promoting the Scotland Bill through the House of Lords in 1997, Lord Sewell stated that it was the UK Government’s understanding and intention that these provisions would prevent the Scottish Parliament from legislating unilaterally to provide for any independence referendum.

The current SNP-led Scottish administration has claimed that it would nonetheless be lawful for the Scottish Parliament to make provision for an 'advisory' referendum on independence which was not 'legally binding' but which would, it is said, give the Scottish Government a political mandate to open 'independence negotiations' with the UK Government.

No formal legal advice to this effect has been published by the Scottish Government. Instead they have made reference to a collection of soundbites from a variety of legal academics culled mainly from various newspapers. But the argument that the devolved authorities in Scotland have power to organise a non-binding referendum which relates to reserved matters, but not a binding one would seem to be difficult one to sustain before a court in the face of any challenge to the legality of such provision by the Scottish Parliament for the following reasons, among others:

(i) given the principle that a delegated authority cannot itself further delegate power or fetter the discretion statutorily granted to it, no referendum ever organised by the Scottish Parliament could ever said to be 'binding'on it, so the purported distinction between 'binding' and 'non-binding' referendums is meaningless;

(ii) Neither the Scottish Parliament or the Scottish Ministers has any power to alter the terms of (and limitations imposed by) the Scotland Act itself (see paragraph 4 of Schedule 4 SA). And no referendum organised by the devolved authorities could ever bring it within their powers to make any provision relating to the dissolution of the Union of Scotland and England. Making provision to consult the electorate in a referendum on a legal issue which the (devolved) authority has no power to effect (or affect) may therefore be challenged in court as an 'abuse of power'. Any expenditure of Scottish public monies by the Scottish devolved authorities in organising and holding any referendum could potentially be subject to challenge before the courts as unlawful;

(iii) the claim to be able to hold any such referendum runs contrary to the understanding and intention of the UK Parliament when passing the Scotland Bill.

There is no doubt, however, that the UK Parliament has the power to make arrangements for referendums anywhere within the UK on such issues as it wishes to consult the people on. The UK Parliament may therefore itself hold a UK dissolution/Scottish independence referendum or confer, on such conditions as it consider proper, power on the Scottish Parliament to make provision for such a referendum (see Section 30 SA).

In a statement to the UK Parliament on Tuesday (10 January) Michael Moore MP, the Secretary of State for Scotland, has stated that it remains the view of the current UK Government – consistently with the position taken by Lord Sewell in 1997 – that the Scottish devolved authorities had no power to legislate for an independence referendum, since its purpose and intended effect would ultimately be to seek to achieve Scottish independence.

The UK Government rejects the claim that one could distinguish in law between a binding and non-binding referendum for these purposes. The UK Government has therefore decided that – following a public consultation process as to the timing and terms of and process for any such referendum – to provide the necessary powers to the devolved authorities for such a referendum to be held by them in Scotland.

As regards the political/moral legitimacy of Westminster so intervening in 'internal' Scottish affairs, it may be noted that in the 2010 general elections to the UK Parliament, of the 59 MPs elected from Scotland, only six were from Scottish Nationalist Party, with the remaining 53 of Scotland’s MPs being made up of parties (Labour, Conservative and Liberal Democrats) all committed to the maintenance of the union between Scotland and England.  Unionist MPs in the Westminster Parliament therefore claim to have a political and democratic mandate from the people of Scotland on this matter, just as much as (if not more than) the nationalist MSPs in the Scottish Parliament.

It might also be noted that were Scotland to have been independent at the time of the 2010 UK general election and votes were otherwise cast in the same way in the rest of the UK, then the House of Commons would then have been made up 591 MPs, of which 305 would be held by the Conservative Party, 217 by Labour, and 51 by the Liberal Democrats. This would have given the Conservative Party an absolute majority in the House of Commons and hence have obviated the need for any coalition government.

It seems clear, therefore, that the ending of the union between Scotland and England could well have some interesting and continuing effects on the post-independence politics and governance of the rest of the United Kingdom. The issue of Scottish independence should accordingly not be disregarded or dismissed as a matter purely of internal Scottish interest.

Aidan O'Neill QC is a barrister at Matrix Chambers. The UKSC blog, which provides commentary on the UK Supreme Court and its judgments, was created by lawyers and barristers from Olswang and Matrix. Click here to visit the blog and click here to follow the UKSC blog on Twitter.

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