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.