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The Scottish Affairs Committee at Westminster have concluded today that the Scottish Parliament does not have legislative competence to conduct an independence referendum, and a s30 amendment to the 1998 Scotland Act is required from the UK Parliament. But Professor Robert Black QC believes they are mistaken.
The Scottish Affairs Committee and its favoured experts are wrong. They proceed upon the assumption that before the Scottish Government can lawfully hold an independence referendum there must be a transfer of powers (by means of a section 30 order) by the United Kingdom Government; and that this fact gives the UK Government the opportunity to attach restrictive conditions as the price of any such transfer. This is an all-too prevalent misconception.
The Scottish Government’s present legal position on entitlement to hold a referendum is a strong one. Any conditions sought to be imposed by the UK Government can therefore be considered strictly on their merits and not as a price that must be paid, however reluctantly, in order to secure authority lawfully to hold a referendum at all.
Notwithstanding the restrictions on the Scottish Government’s devolved competence contained in the Scotland Act 1998, no-one disputes that it can lawfully make proposals to, or hold conversations or enter into negotiations with, the United Kingdom Government about (i) altering the constitutional position of Scotland or (ii) widening the devolved powers of the Scottish Government and Parliament (including amending or removing some or all of the matters reserved to the United Kingdom which are set out in Schedule 5 of the Act).
That being the case, it is inconceivable that any court would hold that it was beyond the legal power of the Scottish Government to promote legislation to enable it to consult the Scottish electorate (by means of a referendum) about whether the Scottish Government should or should not make such proposals to, or hold such conversations or enter into such negotiations with, the Government of the United Kingdom.That is all that a referendum under our constitutional set-up does or can do, however the question(s) are phrased. The legality of such legislation is, of course, reinforced by section 101(2) of the 1998 Act which provides that any provision of an Act of the Scottish Parliament is “to be read as narrowly as is required for it to be within competence, if such a reading is possible, and is to have effect accordingly”.
That does not, of course, exclude the possibility that referendum legislation might be challenged, as being beyond the Scottish Parliament’s powers, in the courts of Scotland and all the way to the UK Supreme Court. But any such challenge would be doomed to failure.
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