Section 30s and much more

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European Court of Human Rights by Cherry own work CC BY-SA 3.00

By Lindsay Bruce

The following explanation on Section 30s, widely used with devolved nations, is only part of the story of the day and not necessarily how a democratic vote on Scottish independence will be held. The following text is from a Tweet thread by Lindsay Bruce this morning.

Ahead of Nicola Sturgeon’s statement today, it may be useful to go over what a “Section 30” actually is, because the media usually get it completely wrong. Section 30 refers to part of the Scotland Act (the act that defines devolution) that covers “Legislative Competence”.

Section 30 is specifically in place to enable the temporary transfer of powers to the Scottish Parliament that are usually outwith it’s competence (or “ultra vires” in legal parlance meaning “beyond the powers”), or to temporarily remove powers already in its competence.

Section 30 is not specific to holding referendums, it’s merely a legal mechanism to transfer powers to the parliament that it wouldn’t otherwise hold. Previous Section 30’s included power to legislate for railways in Scotland, reducing the minimum voting age, and Brexit business.

The actual Section 30 text can be found here: https://legislation.gov.uk/ukpga/1998/46/

You’ll notice that it refers a lot to “Order in Council”. What is this? Basically an Order in Council is a command issued by the monarch on the advice of the Privy Council. In the UK, the Queen is simply a figurehead, and the order is drafted and controlled by the UK government.

An Order in Council can be issued by passing an Act through parliament for the Queen to approve and become law, or by using the “Royal Prerogative” – and edict issued by the government of the day that does not have to be approved by parliament.

A Section 30 can be raised by the UK government or any of the devolved administrations – but they can only be approved by the UK Government, and must be passed by the House of Commons, the Lords, and the devolved parliament concerned (in our case the Scottish Parliament).

Right, that’s the legal stuff out of the way. Here’s where is gets interesting. In 2013, the Scottish Parliament did not have the power to hold referendums or even it’s own elections. Previous using the powers of the UK Parliament. This changed with the Scotland Act (2016).

With the powers to hold elections and referenda devolved, after extensive consultation the Scottish Parliament passed two Acts which empower it to hold votes when it needs to WITHOUT primary legislation. That is, it no longer needs to pass an Act for each election or referendum.

So this begs an interesting question: Since the Scottish Parliament now has it’s own power to hold votes as required, does it need a Section 30 from Westminster to hold #indyref2?

The answer is; nobody (currently) knows, because it hasn’t been tested in court. Bear with me while we take a quick detour to explain: Just because the UK Gov has passed something, it doesn’t make it “legal”, “illegal” or “unlawful”. Specific cases need to be tested in court.

To actually find out if something is inside or outside of the law, a case has to be taken to court and decided by a judge, or a panel of judges. Lawyers for both sides of a case will make legal arguments citing previous legislation and case law in order to back their claims.

It is up to the judge (or judges) as “fact finders” to determine, based on their understanding of pertinent law, whether a claimant is in the right or in the wrong. This gives considerable scope for lawyers to argue over the meaning of every word pertaining to a case.

So until this happens, anybody who describes #indyref2 as “illegal” or “unlawful” is just lying through their teeth, because that hasn’t been decided yet. Now, back to the #indyref2 bill.

Under the Scotland Act, the union and the constitution are “reserved” matters, meaning that only the UK parliament can legislate on them. But would holding a referendum actually breach these reserved matters? Just having a vote doesn’t bind anybody to action.

In the UK – and indeed all modern democracies – ALL votes, whether they are for general elections, council elections or referendums on the EU or Scottish independence are non-binding. They carry no weight save for representing the opinion of the public.

So legally speaking, just having a vote doesn’t bind the UK parliament to do anything. Even if 90% of the population vote for something, the parliament doesn’t have to act on it. However, it would be incredibly unwise to ignore a poll.

Democracies function on consent of the people. If you start abusing that consent by, for example, ignoring the result of a perfectly legal vote, then you get into a bad situation on whether the government is acting in the interests of the people. Revolutions happen down that road.

So finally, we come to the “Catalonian Question” – can UK Gov simply brand #indyref2 “unlawful”, ignore the result and try to imprison Nicola Sturgeon for treason? On point 3, definitely not. Spain’s constitution defines it as one unbreakable state. Not the case in the UK.

While unionist politicians have and will no doubt continue to call #indyref2 “unlawful” they can’t actually credibly do so until a court has decided that. But the unionists might not want to go that route because there’s a danger the judgement goes against them.

So to sum up, what we have here is a battle of political wills that will probably end up in court. But even a UK court ruling won’t end it. There’s still the European Court of Human Rights, which technically the UK is still bound by.

The article was amended at 7.00pm to remove the repetition of two paragraphs