How a legal technicality could thwart referendum plan

James Grant

An independence referendum bill would be illegal. Amid the coalition talks which are under way in Scotland, there has been a crucial fact that astonishingly has been missed. It is now widely recognised that an independence referendum bill would be doomed to fail. This may be because the Liberal Democrats will not form a coalition unless the SNP abandons its policy. Or it may be because, if the SNP formed a minority government, it would find it impossible to get the consent of Holyrood. However, there is a more fundamental stumbling block for such a referendum bill.

Not only is it politically unrealistic that an independence referendum bill would be passed, it is also legally impossible. This may seem absurd to those who are not au fait with constitutional law, but let me explain.

The powers of the Scottish Parliament are limited by the Scotland Act 1998. This Act sets out the legislative competence of the Scottish Parliament by listing matters that are reserved to the Westminster Parliament. If an Act of the Scottish Parliament relates to a reserved matter it is not law. One of the general reservations is the constitution. Crucially, the Act states specifically that the union of Scotland and England is a reserved matter. This means that only Westminster can legislate on the future of the union.

Ah, but, I hear you cry, surely the Scottish Parliament could pass a bill for a referendum on the future of the union. Such a bill would not actually affect the union but would merely indicate the will of the Scottish people. It would be up to Westminster to have the final say on independence. A referendum bill passed by Holyrood would therefore be perfectly lawful. This, in my opinion, would be incorrect.

The big question is this: when does an Act of the Scottish Parliament relate to a reserved matter? The answer can be found in section 29 of the 1998 Act. It provides that the question should be decided "by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances".

So, what would be the purpose of an independence referendum bill? The answer is obvious: to break up the union. It may not have the immediate effect of breaking up the union but, as section 29 makes clear, the effect is not conclusive. The effect is just one of the factors that must be taken into account when determining what the purpose of the bill is. If the purpose relates to a reserved matter, it is outwith the legislative competence of Scottish Parliament. Given that the purpose of the bill would be obvious, it cannot be argued that an SNP referendum bill would not relate to the union. Therefore, as the union is a reserved matter, any referendum bill, if passed, would not be law. Westminster would have to pass the bill, which is even more unlikely than Holyrood passing it.

It seems safe to assume that, if the SNP forms either a minority or coalition government, there will be a growing number of occasions in which the legislative competence of the Scottish Parliament is called into question. The Guidance on Public Bills, issued by the Scottish Parliament, acknowledges that limits on legislative competence may be "subject to differences of interpretation", which ultimately must be decided by the court. The problem is that very few cases involving this issue have been brought before the court and any that have been tested have tended to involve arguments about the European Convention on Human Rights.

With an SNP administration, this could all change, with more legal challenges being brought. But, at the moment, it leaves a whiff of uncertainty. It leaves us only to speculate on the legality of such a bill. The legislative competence of a referendum bill is a question which has not, until now, been asked, but it is a question that must be answered.

Now this may seem like a legal technicality which, in any event, matters little owing to the fact that it is politically unrealistic that any referendum bill would be passed. But the importance of this legal technicality cannot be overemphasised.

The SNP can, perhaps, be forgiven for campaigning on reserved matters such as the Iraq war and Trident. But when one of its manifesto commitments cannot lawfully be done, this is a little more serious.