Legality of Scottish independence referendum under the spotlight

Brodies public law and regulatory head Christine O’Neill looks at the arguments surrounding the legal basis for a referendum on Scottish independence

Arguing about their constitutional future might be said to be a national pastime of the Scots, alongside several other equally healthy pursuits. It was perhaps predictable then, with the festive period firmly over, that January would see a fresh round of politically charged discussion – this time on the powers of the Scottish Parliament to authorise a referendum on Scottish independence.

That there will be a referendum on the question of statehood for Scotland, and that it will take place at some point in the next four years, appears certain. The current Scottish Government enjoys an overall majority in the Scottish Parliament and was elected on a manifesto commitment to hold a referendum. The UK Government and Parliament do not appear to dispute that there is a political mandate to proceed with a plebiscite.

This week’s debate has focused not directly on political legitimacy, but on the legal foundation for a referendum. The Prime Minister David Cameron and Secretary of State for Scotland Michael Moore maintain that the power to legislate for a referendum on independence currently rests with Westminster. In its consultation paper, published on Tuesday, the UK Government expresses the view that “legislation for a referendum brought forward by the Scottish Government would likely be challenged in court and the Scottish Government would lose”. Its proposed solution is an extension of devolved powers to allow the Scottish Parliament to pass a referendum bill – but with those powers being made subject to conditions as to the timing of the poll and the format of the referendum questions.

By contrast, the Scottish Government’s public position is that Holyrood has sufficient powers under existing arrangements to pass a bill and to hold a referendum at a time of its own choosing. Timing, and the form of question(s) put, are both expected to have a significant impact on the outcome – as is the voting age, with the SNP keen to include 16- and 17-year-olds who may be more likely, as a group, to vote Yes.

The extent of the Scottish Parliament’s powers is ultimately a matter for the courts and legal challenges to Scottish Acts are not unknown. There have been a number based on claimed breaches of the European Convention on Human Rights and others on a contention that the Parliament has strayed into areas of law that are ‘reserved’ to Westminster.

Key to answering the question of the Scottish Parliament’s powers to hold the referendum is the application of complex provisions of the Scotland Act 1998. It provides that an act of the Scottish Parliament is “not law” so far as any provision of it “relates to reserved matters”. Reserved matters – over which only Westminster has lawmaking powers – include “the Union of the Kingdoms of Scotland and England”. It is this reservation on which the UK Government relies.

The alternative view is that a referendum that does not (and could not) alter Scotland’s constitutional status cannot be said to ‘relate’ to reserved matters. That analysis relies in part on more detailed direction given by the Scotland Act. In particular, the courts are told that the question of whether a provision relates to reserved matters is to be determined by reference to the “purpose of the provision, having regard (among other things) to its effect in all the circumstances”. Quite how that is to be interpreted – how to establish the purpose of a provision and the “other things” that can be taken into account – is no easy task. It has been argued, however, that the referendum’s purpose is simply to gauge public opinion and that the Scottish Parliament is free to legislate on that basis.

There are likely as many views on the legality of a referendum as there are lawyers available to express them and it remains to be seen whether doubts are eliminated by an extension of powers to the Scottish Parliament or if the proposed conditions of grant prove unpalatable to the Scottish Government. Ultimately, however, the lawyers, and the legal arguments, will need to give way to the views of the Scottish people.  Needless to say, watch this space.