In previous entries (here, here, and here), I discussed devolution in the United Kingdom; that is, political decentralization and the political and legal empowerment of regional governments in Scotland, Wales, and Northern Ireland. Devolution has brought about a sea change in the constitutional order of the UK and in the country’s constitutional and legal politics, with important implications for the Union’s future. One of those possible futures, of an independent Scotland, now looms on the horizon.
In the May 2011 elections in Scotland, the Scottish National Party (SNP) won a majority of seats in the Scottish Parliament and formed an SNP Administration in the Scottish Government.[1] The SNP stated in its campaign Manifesto a commitment to “bring forward our Referendum Bill in this next Parliament. A yes vote will mean Scotland becomes an independent nation…” The Scottish Government are now plainly intent on pursuing independence.
The Scottish Parliament, however, is not sovereign, and the limits to its powers are clearly and precisely prescribed in the devolution statute Scotland Act 1998 (SA). Among the pertinent sections of the SA are §29 (2) and (3), which establish in part the Scottish Parliament’s legislative competence; §30, which provides for Orders which modify exercisable functions in Scotland; and Schedule 5, which lists “reserved matters,” that is, those matters that the UK Parliament reserves to its exclusive competence.
Section 29(2)(b) states that an Act of the Scottish Parliament (ASP) is outside of that legislature’s competence if it “relates to” reserved matters. Section 29(3) provides guidance as to the meaning of “relate to”; namely, that the determining factor is the “purpose of the provision, having regard…to its effect in all the circumstances.” Schedule 5 lists reserved matters, including “the Union of the Kingdoms of Scotland and England.” The question then becomes, is it legal for the Scottish Parliament to provide for a referendum on independence? Who, in other words, controls the referendum process? The above elements of SA provide the basis for analysis of the legality of any referendum proposed or passed by the Scottish Parliament. This question is now at the fore of the political fray in the UK.
Alex Salmond, First Minister of Scotland and leader of the Scottish Government, has articulated the SNP’s position in a consultation document entitled Your Scotland, Your Referendum (25 January, 2012). In brief, this position is for full independence, so that Scotland can reach its full potential.
Her Majesty’s (Coalition) Government in Westminster have also issued a position statement in the consultation document Scotland’s Constitutional Future (10 January, 2012). The Coalition’s position is to “keep the Union together,” but accepts that the question of Scotland’s independence is a decision for the people of Scotland. The Coalition Government opposes independence, but recognizes the SNP’s political mandate to press on. The Coalition Government, however, is clear in its rejection of the Scottish Parliament’s power to legislate a referendum.
How, then, is a referendum to proceed? The UK Government proposes to authorize a referendum pursuant to a Section 30 (SA) Order. Such an Order would confer on the Scottish Parliament the legal power to pass an Act that would provide for a referendum. Two alternatives are possible. The first would entail amending the Scotland Bill, currently before the UK Parliament. This Bill will, if enacted, amend the Scotland Act 1998; including an amendment to provide for the legal competence to call the referendum is a possible method of legalization. The second alternative is for the UK Parliament to legislate directly. (See here for the House of Lords’ report on the matter, published on 17 February 2012). The UK Government prefers the Section 30 Order mechanism in part because it allows for the Scottish Parliament’s greatest involvement.
In short, the critical constitutional issue of the future of the Union of the Crowns, perhaps the most significant constitutional issue since the Crowns were joined, now turns on the legal technicalities of a referendum on the question of independence. There is an additional wrinkle at stake in the debate, as well. It isn’t just the referendum process, but the question that such a referendum would ask:
What form would the question take?
- A binary form, e.g. “Should Scotland be independent, yes or no?” or
- Something with a middling third alternative, e.g. “Should Scotland be independent, remain part of the UK, or have additional powers devolved?”
How will it be phrased?
- Negatively, e.g. “Do you support the breakup of the Union?” or
- Positively, e.g. “Do you support a sovereign Scotland?”
Distinct from the question of legislative vires and “ownership” of the referendum process, and the semantics of the referendum language, there is also the legal dimension of the Courts, and how they would interpret the effects of SA and the language and legitimacy of any ASP that purported to enact a referendum on independence. I will address these issues in a subsequent entry on this blog.
-asc..