Scottish government welcomes expert support for legal right to hold referendum


by a Newsnet reporter

The SNP has welcomed a statement by seven senior constitutional academics supporting the position that the Scottish Parliament has the authority to stage an independence referendum under its existing powers.

As reported in Saturday’s Herald newspaper, Gavin Anderson, Sarah Craig, Aileen McHarg and Professor Tom Mullen from the University of Glasgow and Professor Christine Bell, Professor Stephen Tierney and Professor Neil Walker from Edinburgh have made a contribution to the UK Constitutional Law Group, in which they state that “a plausible case” can be made for the legality of a referendum Bill passed by the Scottish Parliament under the current provisions of the Scotland Act.

The view of the constitutional experts challenges the opinion of the Westminster government that the Scottish Parliament does not have legal authority to call a referendum.  The experts maintain that is not correct that only Westminster has control of constitutional matters, and argue that the law is not as clear cut as Westminster would have the Scottish electorate believe.

The legal experts point out that there is an equally strong argument that the Scottish tradition of the sovereignty of the Scottish people gives Holyrood the power it requires to hold a referendum on the country’s future.

The group of constitutional experts also say that it is important that any agreement between Holyrood and Westminster does not implicitly surrender Scottish sovereignty to Westminster.  Speaking to the Herald, the group’s statement said:

“It is important any such agreement should be not taken as an unequivocal endorsement of the view Westminster alone is entitled to authorise a referendum on the constitutional future of any part of the UK.

“Contrary to the views of the UK Government and a number of influential commentators, we believe the legality of a referendum Bill passed under the Scotland Act as it currently stands is a more open question than has been generally acknowledged.

“In other words, we believe a plausible case can be made that such a Bill would be lawful, and believe it is important these arguments are clearly set out.”

The constitutional experts also dismiss the recent claim by the Lord Advocate Jim Wallace that a referendum held under the auspices of the Scottish Parliament could be contested in the courts.

The group points out that Mr Wallace’s claim rests upon a literal interpretation of the Scotland Act, which denies Holyrood the right to legislate on anything which “relates to a reserved matter”.  Mr Wallace argued that the “broad purpose” of a referendum Bill would be to dissolve the Union, thus relating to the “reserved matter” of the constitution.

However the constitutional experts reject this interpretation, saying that it is contestable.  They note that the Scotland Bill also tells the courts that they should interpret Holyrood Bills “as narrowly as required in order to allow them to be upheld”.  In other words, where there is any legal doubt about Holyrood’s competence, the courts are obliged to give Holyrood the benefit of that doubt.  

The experts also accuse the UK Government of conflating the intention of the Scottish Government with the intention of the Scottish Parliament.  The two bodies are strictly separate in law.  The experts accuse the Westminster government of issuing a “red herring” over questions of the wording of the question, saying:

“The legal effect of a referendum Bill is indisputably simply to seek the views of people in Scotland … If this is the correct approach to the identification of the Bill’s purpose, then the precise wording of the referendum question would appear to be a red herring; the legal effect of the referendum is not altered by asking an indirect rather than a direct question about whether Scotland should become independent.”

Linda Fabiani, SNP MSP for East Kilbride and convener of the Scottish Parliament’s Scotland Bill Committee, welcomed the contribution to the debate from the respected academic experts in constitutional law, and said:

“This is an important and very welcome intervention by some of Scotland’s leading constitutional experts, supporting the principle that the Scottish Parliament does indeed have the authority to hold an independence referendum under its existing powers.

“The SNP has always argued that on the question of Scotland’s future, sovereignty lies with the Scottish people, as has been the case throughout our history.

“The backing for that position from this group of experts follows similar support from Professor Matt Qvortrup and the Electoral Reform Society earlier this week.  There is a growing groundswell of authoritative opinion that Scotland’s referendum does indeed belong to Scotland’s Parliament.

“The blundering attempts of Westminster politicians to dictate the legality and the terms of the referendum will only drive the people of Scotland further away from the flagging anti-independence camp.

“In the face of this growing evidence that the referendum belongs to the people of Scotland, the anti-independence parties must rethink their stance and put the democratic rights of the people of Scotland at the top of their priorities.”