Daniel Greenberg, PLC consultant:
Although both sides in the present clash over whether Scotland has the legal powers to hold an independent referendum on independence claim to have unequivocal legal advice supporting their position, the reality is that the issue is a finely-balanced point of statutory construction.
Paragraph 1(b) of Schedule 5 to the Scotland Act 1998 makes “the Union of the Kingdoms of Scotland and England” a reserved matter. The result of that is that under section 29(2)(b) of the 1998 Act, the Scottish Parliament does not have the power to make laws that “relate to” the Union.
So would a Bill in the Scottish Parliament providing for a referendum be outside legislative competence?
It all depends on what is meant by “relates to reserved matters” in section 29(2)(b); and there are arguments either way. But the critical point may be that a referendum Bill would “relate to” the Union only indirectly; when passed, it would itself not make any difference to the Union. There must be all kinds of things that the Scottish Government clearly can do but which in a very indirect way “relate” to a reserved matter, and the Supreme Court might be attracted to a test that focused on whether the proposed law would itself change the law on the reserved matter.
Incidentally, the Explanatory Notes on section 101 of the Scotland Act 2008 express a clear opinion that a referendum Bill on independence would be outside legislative competence. But the Notes can express the Westminster Government’s opinion without it binding anybody else: the courts will have regard to Explanatory Notes for the sake of establishing contextual background, or for the purposes of resolving ambiguity, but need not (and should not) defer to opinions expressed in them otherwise.
An interesting side-question is whether the Scottish Government needs legislation at all in order to hold a referendum. A referendum Act can be used: (a) to create a legal duty to hold the referendum at a particular time, with a specified franchise and procedure; (b) to authorise the use of existing officials and public resources; and (c) to give force to the result of the referendum. Since only a non-binding referendum is proposed, the Scottish Government could simply go ahead and hold a referendum without an Act at all: for example, by using an electronic voting system administered by an independent institution.
As always when law and politics mix, this promises to be an interesting debate with an unpredictable outcome that will owe more to political realities than to legal technicality.
For more information on statutory interpretation, see the following practice notes:
The 1998 Act itself explains what “relates to” means and the crucial issues are that of effect and purpose. On anything other than a specious analysis, the effect and purpose of an Act to hold a referendum would be that a referendum be held. You don’t mention s101(2). See http://www.hallidaycampbell.com/2012/02/law-and-independence-referendum-is.html .
Thanks for this. Yes, of course an Act about a referendum would be preparation for a referendum: but the point is that referendums are not themselves a reserved area. Independence is. But holding a referendum does not necessarily have any impact on the Union (and as you say, effect and purpose – in a legislative intent sense rather than in a motive sense – are critical). So is an Act providing for a referendum about independence an Act that “relates to” a reserved matter? As I said in my original post, a moot point: I see nothing in the Act (including s.101(2)) that makes the point less arguable – so it is good to see that people are inclined to argue about it!