Constitutional experts are in disagreement over whether the Scottish Parliament has the power to hold an independence referendum.
Speaking on Good Morning Scotland Saturday edition two constitutional experts failed to agree on the issue that has enveloped the BBC and the Labour party in a row over bias.
Interviewed on the programme by show joint-host Derek Bateman, Adam Tomkins of Glasgow University claimed that the law was clear and insisted that the Scottish Parliament could not hold a referendum without Westminster permission.
However, fellow guest Aileen McHarg of Strathclyde University disagreed and said that the debate was a matter of interpretation and it was possible for the referendum to be held by Holyrood.
“The Scottish Parliament was created by the Scotland Act 1998, and the Scotland Act 1998 is the instrument which delivered devolution for Scotland, it created the Scottish parliament and it provides for the powers that the Scottish parliament has.” said Mr Tomkins.
Mr Tomkins explained that the Scottish Parliament’s legislative power was limited to that which was devolved to it and as the Constitution was a reserved matter, it had no power to hold a referendum on independence.
The academic claimed that to attempt to try to take on more powers would be in breach of law and would be liable to end up in court.
However, Mr Tomkins insistence that the debate was clear cut was challenged by Ms McHarg who pointed out that there was a difference between a consultative referendum, which was what the SNP were proposing and would have no power to bind the Westminster parliament and a legally binding referendum which would compel Westminster to act on the result.
Arguing that the Scottish Parliament had the power to hold the former, Ms McHarg said: “There is an argument that there is a difference.”
She explained that if the Scottish Parliament legislated to hold a referendum then it had first to be determined what the purpose of the legislation was. The academic explained that this was the key in determining legality.
“The argument that Adam and other people are putting forward is that the purpose of a statute to set up a referendum on independence is to end the Union, because the declared intention of the Scottish government is to bring about independence.
“But the counter argument is that that’s not the purpose, the purpose is to consult the Scottish people on their views.”
The debate then became heated as Mr Tomkins angrily tried to intervene. In an exchange reminiscent of Tuesday night’s interview with Labour MP Ian Davidson, Derek Bateman asserted that he would conduct the interview and not Mr Tomkins.
A clearly irritated Mr Tomkins insisted that this was not about consulting the Scottish people calling it a “myth that’s got to be scotched”. Mr Tomkins claimed that referendums were formal decision making devices which were about making decisions and not about being consulted.
“The Scottish parliament does not have the power to make decisions” insisted the academic.
However when pressed on whether the Scottish Parliament had the power to hold a consultative referendum, Mr Tomkins appeared to concede that such a power was within the Scottish government’s competence answering, “I didn’t say it couldn’t consult, I said it does not have the legislative power to pass an act providing for a referendum on Scottish independence.”
Mr Tomkins assertion was again challenged and it was implied that he was confusing legal effect with political effect.
Ms McHarg said: “The legal effect of a referendum which could be passed by the Scottish Parliament is quite clearly, purely and simply to ascertain the views of the Scottish people. It has no legal effect beyond that.”
The academic explained that the political effect was something quite different, and that it was an important difference. In short, Westminster are under no legal obligation to act on the result and thus it may or may not have an impact on the Union.
Ms McHarg said that key to the debate was to determine what the referendum related to, whether it was to determine the views of the Scottish people or to end the Union.
The exchange between both academics is sure to have implications for both Government’s in that Westminster’s role is not at all clear cut.
Speaking on Tuesday evening, Labour MP Ian Davidson made clear the Unionist intention was for London to take control of the referendum and to apply conditions on the ballot that related to the timing and the question posed.
The Scottish Labour MP conceded that the anti-independence parties believed a rushed referendum would ensure a win for the No campaign.
In his interview with Isabel Fraser, Mr Davidson said: “we want to have a speedy referendum… We want to have a referendum because we think we’re going to win quite frankly”.
The debate has implications for both the Yes and the No campaigns, in that if Unionists are seen to be trying to wrest control of the referendum it may result in a backlash at the ballot box. The Yes campaign must ensure that any referendum is seen by the public as legitimate and that accusations of uncertainty and possible legal wrangling are removed.
However the Westminster government may already be in a catch 22 situation in that any assertion that the Scottish government’s ballot has no legally binding authority may in fact unwittingly remove any threat of legal challenge – the ballot will then very clearly be consultative.
Similarly, should the Westminster government formally acknowledge that they will recognise the result of the ballot then they could be seen to be bestowing a de-facto legality on the referendum.
Hear the full exchange: