Does the Scottish Parliament have the power to legislate for an independence referendum?

In 2011 the Scottish National Party gained an overall majority in the Scottish election, making the prospects for an independent Scotland more real and immediate, rather than merely a long-term aim. The UK and Scottish governments have in recent weeks disagreed publicly over whether the Scottish Parliament has power to legislate for a referendum on independence. Many others have joined the debate on television, in the newspapers and in the blogosphere.

The Scottish Government has suggested a likely date sometime in the Autumn of 2014 and would clearly prefer not to have it sooner. The UK Government has not suggested a date but has said that it should be held sooner rather than later. They believe the Autumn 2014 proposal is too long to wait, as continuing uncertainty about Scotland’s future is damaging to Scotland. Both sides are concerned that the timing might affect the outcome. The UK Government (and indeed many political analysts) thinks that a referendum held in the near future would be very likely to produce a 'no' vote against independence. The SNP probably shares this analysis. Conversely, the further the referendum is pushed into the future, the more time the SNP has to turn round public opinion and the harder it becomes to predict the outcome.

There are two reasons why both sides are concerned about the question(s). There is ample evidence that the way questions are phrased may affect the option for which votes are cast. In opinion polls, support for independence has varied according to the way the question has been put and also according to the number of options presented. Most specifically, support falls when the additional option of more extensive devolution, or 'devo-max', is presented along with independence.

The case against the Scottish Parliament's proposed referendum was put in the UK Government’s consultation paper, Scotland’s Constitutional Future (January 2012). The Scottish Parliament has no power to legislate on anything which ‘relates to reserved matters’ (Scotland Act 1998, Section 29(2)(b)). The UK Government’s case (which is supported by a number of independent commentators) is that legislation on a referendum would be beyond the legislative competence of the Scottish Parliament because it would relate to ‘the Union of the Kingdoms of Scotland and England’ (Schedule 5, Part I, Paragraph 1). Whether legislation relates to a reserved matter is determined, "by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances". The UK Government’s argument is essentially that referendum legislation plainly does relate to the union, and this is reinforced by consideration of its purpose (to further the aim of securing independence) and intended effect (to secure a mandate for negotiating this).

The Scottish Government’s consultation paper, Your Scotland, Your Referendum (also published in January 2012), asserts that referendum legislation would be within the Scottish Parliament’s legislative competence but does not provide a detailed supporting argument. Independent commentators have suggested that the question of competence is more open than the UK Government’s consultation paper suggests. They argue that whilst in a literal sense, the referendum legislation would relate to the union, the relevant provisions of the Scotland Act should be read more purposively. Bearing in mind that the proposal is for a referendum merely to test public opinion and that its result would not by itself end the union or alter its characteristics, it should, they claim, be treated as within competence. They also argue that the UK Government is wrongly conflating the intention of the Scottish Government with the intention of Parliament and that some MSPs may vote for a referendum, not because they support independence, but because they expect that the vote will be against independence and that the question will be settled for the foreseeable future.

This dispute about legislative competence can only be conclusively settled by the courts, but in fact, it is unlikely to get there. Both governments have expressed interest in the making of an order under Section 30 of the Scotland Act 1998. This allows the competence of the Scottish Parliament to be extended, with the consent of both Parliaments, without the need for primary legislation. This would remove any doubts about competence by conferring express power on the Scottish Parliament to legislate for a referendum. It would have the additional advantage that the two governments would have to come to an agreement about the timing of the referendum and the questions to be asked which would lessen the likelihood of anyone crying ‘foul’ after the referendum result was announced.