Scottish Affairs Committee – The Referendum on Separation for Scotland

Edinburgh

In this Report we look at the draft Order which is being proposed by the Government to give the Scottish Parliament power to legislate for a referendum on separation for Scotland. It is to be made under section 30 of the Scotland Act 1998, which provides for an Order in Council to make amendments to the legislative competence of the Scottish Parliament, if a draft has been approved by Affirmative Resolution of both Houses of Parliament, and by the Scottish Parliament also. This Report is intended to contribute to the debates which are to be held in both Houses on the draft Order.

Background

2. It is clear from the evidence to our inquiries into the referendum on separation for Scotland that the Scottish Parliament does not have the power itself to hold such a referendum. In our Report, The Referendum on Separation for Scotland: making the process legal, we noted the strong support which the evidence we received gave to this position.[1] Professor Adam Tomkins of the University of Glasgow School of Law told us that an Act of the Scottish Parliament to legislate for a referendum:

would be outwith competence and therefore “not law” under s. 29 of the Scotland Act 1998 and that the Scottish Ministers would be acting outwith their devolved competence if they sought to exercise powers in pursuit of [such an Act of the Scottish Parliament].[2]

Mr Aidan O’Neill QC, of Matrix Chambers, said that: “Neither the Scottish Parliament nor the Scottish Ministers have the legal powers to hold a referendum on independence for Scotland under the Scotland Act 1998 in its current form”.[3]

3. The Scottish Government has never been willing to acknowledge this openly; instead it has prevaricated with claims about the possibility of holding a referendum on more powers for the Scottish Parliament. This has served to delay both this Order and the legislation which will be made under it, and so the referendum itself. It is now clear, however, that the Scottish Government accepts that this is a subject reserved to the UK Parliament at Westminster, and that the Scottish Parliament can only legislate on a referendum to dissolve the United Kingdom if the necessary powers are conferred on it.

4. After discussion with the Scottish Government, the UK Government has proposed to confer these powers using an Order under section 30 of the Scotland Act. Such Orders are an important part of the structure of the devolution settlement, and have been used to alter the powers of the Scottish Parliament on a number of occasions (or the powers of the Scottish Ministers, using the parallel section 63), always, as the statute requires, with agreement. None, however, has been remotely as significant as this proposed Order, which invites Parliament to delegate the legislative power to hold a referendum on whether there should be an end to the United Kingdom. It therefore merits exceptionally close scrutiny. As the Constitution Committee of the House of Lords has noted, in common with almost all other secondary legislation, there is no scope for Parliament to amend the Order, merely to approve it, or not.[4] This makes it of the greatest importance that Parliament should be satisfied that it is right for the Scottish Parliament to pass the necessary legislation for, and so determine the detail of, the proposed referendum, and be satisfied that these powers will be used in accordance with the agreement between the Governments which is associated with the Order.

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