CONSTITUTIONS tend not to offer guidelines for the break-up of the state.
It is unsurprising therefore the Scotland Act is largely silent on whether Scotland might leave the UK. After all, the point of devolution for the Labour Party was to make the Union stronger, not weaker.
The current dispute between the two governments revolves around different interpretations of what the Act does and, more importantly, does not say. The UK Government line is: The Union is a matter reserved to Westminster by schedule 5 of the Act. In terms of section 29 the Scottish Parliament has no power to pass law that "relates" to a reserved matter. Therefore a referendum on independence is at least legally questionable and quite possibly illegal.
The Scottish Government replies the holding of referendums in general is not a reserved matter – the structure of the Scotland Act is such that matters not expressly reserved in schedule 5 are devolved and there is no such express reservation of the referendum power – and provided the referendum does not in itself purport to bring about secession unilaterally then it is within the Scottish Parliament's powers.
The latter position seems to be perfectly plausible. If a question is carefully crafted, asking people whether or not their preference is for independence and making clear this would only be treated by the Scottish Government as a political mandate to enter negotiations, this would seem to fall within competence. We also need to take account of section 101 which is often missed in these debates. This provides that any Act of the Scottish Parliament which could be read to be outside the powers of the Parliament is to be read as narrowly as is required for it to be within competence, if such a reading is possible. It seems it would be possible to read legislation providing for a consultative rather than a binding referendum to be within competence using a liberal interpretation as invited by section 101. But we are at the early stages of this debate and the consultation exercise issued by the Scottish Government will allow these issues to be further explored.
The UK Government's current intervention seems to be less about this point of principle and more about regaining some control of the process issues that surround the referendum itself, in particular the timing of the vote, the setting of the question and a role for the Electoral Commission.
But here it has a problem. For Westminster to pass legislation on these issues would most likely, by constitutional convention, require the consent of the Scottish Parliament. But why would Holyrood trade a general power for a more restricted one? The outcome of a referendum generated from Edinburgh may be advisory only, but the political impact of a Yes vote would surely be irresistible.
l Professor Stephen Tierney is director of the Centre for Constitutional Law at the University of Edinburgh
Why are you making commenting on The Herald only available to subscribers?
It should have been a safe space for informed debate, somewhere for readers to discuss issues around the biggest stories of the day, but all too often the below the line comments on most websites have become bogged down by off-topic discussions and abuse.
heraldscotland.com is tackling this problem by allowing only subscribers to comment.
We are doing this to improve the experience for our loyal readers and we believe it will reduce the ability of trolls and troublemakers, who occasionally find their way onto our site, to abuse our journalists and readers. We also hope it will help the comments section fulfil its promise as a part of Scotland's conversation with itself.
We are lucky at The Herald. We are read by an informed, educated readership who can add their knowledge and insights to our stories.
That is invaluable.
We are making the subscriber-only change to support our valued readers, who tell us they don't want the site cluttered up with irrelevant comments, untruths and abuse.
In the past, the journalist’s job was to collect and distribute information to the audience. Technology means that readers can shape a discussion. We look forward to hearing from you on heraldscotland.com
Comments & Moderation
Readers’ comments: You are personally liable for the content of any comments you upload to this website, so please act responsibly. We do not pre-moderate or monitor readers’ comments appearing on our websites, but we do post-moderate in response to complaints we receive or otherwise when a potential problem comes to our attention. You can make a complaint by using the ‘report this post’ link . We may then apply our discretion under the user terms to amend or delete comments.
Post moderation is undertaken full-time 9am-6pm on weekdays, and on a part-time basis outwith those hours.
Read the rules hereComments are closed on this article