‘Scotsman’ piece on a Scottish independence referendum

I’ve a short piece in today’s Scotsman about the legal basis on which an independence referendum can be held, and what a referendum called by Holyrood can and can’t do.  It’s available here.  They’ve edited my copy a bit, though, and the whole of what I wrote appears below, and have added a few links for ease of reference.

Calling a referendum: who, what, how?  

Who can call a referendum on Scottish independence depends on what question is to be put to the voters.  The powers of the Scottish Parliament are limited, and it may not pass legislation that ‘relates to’ reserved matters including the Union of Scotland and England.  Key provisions of the Treaty of Union also cannot be amended by Holyrood.

This doesn’t prohibit a consultative referendum, about whether there should be negotiations between the Scottish and UK Governments about independence.  Such a referendum is pretty clearly within the Scottish Parliament’s powers, as Michael Moore has now acknowledged.  But that is as far as it can go.  A referendum bill that purported to create a legal basis for independence directly would be beyond the powers of the Scottish Parliament.

The paper on a referendum, and draft referendum bill the SNP published in February 2010, suggested the question would pose two options.  The first would be about an extension of devolved powers, either as recommended by the Calman Commission or to deliver ‘devolution max’.  The question about independence would then be:

The Scottish Government proposes that, in addition to the extension of the powers and responsibilities of the Scottish Parliament set out in Proposal 1, the Parliament’s powers should also be extended to enable independence to be achieved.

Do you agree with this proposal?

To the extent this actually enables independence, it would be beyond the Parliament’s legal powers.  To the extent it creates a basis for a negotiation, it is within them.  It is a question of interpretation which it is, but the political pressures mean that it is unlikely that those who could bring legal challenges to such a question would do so.  Indeed, it was deliberately designed to stretch the edges of what was legally possible, to give the Scottish Government the greatest mandate possible going into those negotiations.

The alternative to a referendum called by Holyrood is one called by London.  There are no legal limits on what sort of a question Westminster might put to the Scottish people, so that could ask a direct question about independence.  However, there are other restrictions.  In particular, the Electoral Commission would need to advise on the wording of the question (the SNP’s paper proposed setting up a special regulator for the referendum, which wouldn’t have this role).  The rather cumbersome questions preferred by the Commission on regional government in North East England and legislative powers for the National Assembly for Wales suggest that the sort of simple question proposed by the Scottish Government would probably not be acceptable.

Key to independence will be the terms on which it takes place, though.  There are big issues to be resolved as part of any negotiation.  How will the North Sea’s oil reserves and the UK’s national debt be divided?  When, and how, would Scotland become a member of the European Union?  What about the existing UK defence bases, particularly Faslane – key to the UK’s submarine-based nuclear deterrent?  The SNP believe that the answers to these issues are straightforward and can be easily resolved, but London is unlikely to look at them in the same way.  For that reason, it’s hard to put a question in a referendum that kicks off the process that enables the Scottish people to make an informed choice about their national future.  The argument for having a second referendum after negotiations, so the two options and all their implications are clearly before the voters, is a strong one.


Filed under Intergovernmental relations, Lib Dems, Referendums, Scotland, SNP

10 responses to “‘Scotsman’ piece on a Scottish independence referendum

  1. Pingback: ‘Scotsman’ piece on a Scottish independence referendum (via Devolution Matters) « English Warrior

  2. Stephen Gash

    Where’s the mandate for Scottish independence? Scots gave Labour a landslide victory in Scotland at the general election. The last time I looked Labour was still part of the England-robbing LibLabCON unionist trinity.

    As it is the British constitution that is affected by any nation becoming independent, then it should be British MPs that decide whether Scotland gets a referendum or not. The plastic parliament in Scotland should not be making decisions that affect the whole of the UK.

    If British MPs decide that Scotland should have a referendum, then we should all get referenda on independence as we are all affected. Certainly, independence for any nation has a more profound effect than AV, and we had a referenda for that imposed upon us, just as we in England had regions foisted upon us.

    We English are fed up with the tartan tail wagging the English bulldog.

  3. Pingback: To protect the Union, recast the Scotland Bill « Slugger O'Toole

  4. Criostoir

    Surely the approach should be that if a country is able to decide to enter a union with another country, then it should be able, unilaterally to withdraw. People keep saying things like – what if Yorkshire wants to leave the UK? Well Yorkshire was never an independent sovereign State. If you don’t maintain this position then ultimately countries will never be able to leave the EU.

  5. Jack Houston

    Criostoir – The treaties and acts of Union were quite clear that the union between Scotland and England was ‘for ever’. Now, I don’t think that means Scottish independence is legally impossibly by any manner of means – that would be absurd – but what it does demonstrate is that the Kingdoms of England and Scotand, those two former states, no longer exist. They are not somehow latent states with reserved rights just waiting in the wings to spring into existence.

    The UK union was an incorporating one with no get-outs. Moreover, the two parties to the Treaty of Union – the Parliaments of Scotland and England – both no longer exist. As for Yorkshire, it may not have formerly been a state in its own right, but several other kingdoms did exist within the UK: what if Strathclyde or Mercia sought independence? To me the answer seems obvious: what a place was should have no legitimate bearing on the privileges it is entitled to now.

    • A.W. Philip

      If you look at the history of the union between Scotland and England, it is obvious that Scotland was forced into it. The Darien project was a disaster, and the fact that the English parliament proclaimed the death penalty on anyone trading with that company did not help. England did everything it could to stop Scotland trading with France and the low countries, this included state sponsored piracy and they imposed excesive customs duty on our goods.
      In the 20th century many countries gained independance, in Europe alone to name but a few – Denmark from Sweden, Norway from Sweden, Finland from Russia, Poland from Russia and Germany, Hungary, Czech republic and Slovakia from Austria,The former Yugoslavia states. Before that Greece, Bulgaria and Yugoslavia from the Turkish empire. How many of those countries asked nicely if they could rule their own country?. To be honest I could not care less if Yorkshire or any of your “what ifs” want to leave the UK.
      Most English people seem to me to be confused about the Union and think that England is Britain, and the other countries are just extensions of England and they would then be known as the Former UK, Thus keeping their place in the world and in the EU. However there are others who realise that every aspect of UK – international relationships would be null and void. This would include the recognition of flags, Union Jack no more.

      Big Sandy

  6. David Knox

    The problem with having a second referendum is that it would encourage the unionists to be unreasonable in the negotiations so that they would have a better chance second time round.

  7. Lee

    I consider myself English rather than British.

    I think if we had a referendum on Scottish independence I think there’s a reasonable possibility that England would vote ‘yes’ and Scotland ‘no’.

    Can you force a reluctant constituent part of an existing country to become independent?

  8. Pingback: A Scottish independence referendum and a UK ‘clarity act’ « Devolution Matters

  9. Pingback: Posts about a Scottish independence referendum « Devolution Matters

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