Reserved matters, legislative purpose and the referendum on Scottish independence

Aroney, Nicholas T. (2014) Reserved matters, legislative purpose and the referendum on Scottish independence. Public Law, 2014 3: 421-443.

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Author Aroney, Nicholas T.
Title Reserved matters, legislative purpose and the referendum on Scottish independence
Journal name Public Law   Check publisher's open access policy
ISSN 0033-3565
Publication date 2014-07
Sub-type Article (original research)
Open Access Status
Volume 2014
Issue 3
Start page 421
End page 443
Total pages 23
Place of publication London, United Kingdom
Publisher Sweet & Maxwell
Collection year 2015
Language eng
Abstract In October 2012, the British and Scottish governments formed an historic agreement for the holding of referendum on Scottish independence from the United Kingdom, to be held in 2014. The Scottish Government had previously asserted that the Scottish Parliament had the power under the Scotland Act 1998 to enact an enabling law for such a referendum, but the British Government rejected this view, insisting that an Order in Council would have to be made under section 30 of the Scotland Act in order to empower the Scottish Parliament to do so. The agreement between the two governments presupposes that the British Government’s view is correct. Although the question concerning the competence of the Scottish Parliament thus seems to have been politically resolved, the underlying constitutional issue remains an important one. The two competing views about the power of the Scottish Parliament shaped attempts by the Scottish and British governments to determine the political agenda surrounding the referendum. If the anticipated referendum law passed by the Scottish Parliament were to deviate from the conditions of the s 30 Order, the constitutionality of the law could be challenged before the courts. Moreover, referendums are an appeal to the ‘sovereign’ will of the people. The location of the authority to call a referendum – especially one about Scottish independence – is accordingly one of the most potent indicators of the current state of British devolution and of the powers of the Scottish Parliament that might be imagined. With this background in mind, this article examines the question whether the Scottish Parliament has the unilateral legislative competence to authorise a referendum on Scottish independence. To do this, the article undertakes a close reading of the Scotland Act, a critical consideration of the relevant British court decisions, and makes qualified use of the lessons that Canadian and Australian federalism jurisprudence can provide. It is shown that there are several analogies and dis-analogies between the British, Canadian and Australian systems which make comparison between the systems a complex but nonetheless potentially rewarding task. In the light of this comparison, it is concluded that, although the matter is not without doubt, it is most likely that a court would conclude that the Scottish Parliament does not have the unilateral competence to authorise an independence referendum apart from an appropriate s 30 Order or legislative amendment to the Scotland Act. It follows that the Scottish Government was probably wise to settle the agreement with the British Government on the basis that a s 30 Order would be necessary.
Q-Index Code C1
Q-Index Status Confirmed Code
Institutional Status UQ
Additional Notes http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2244891

Document type: Journal Article
Sub-type: Article (original research)
Collections: Official 2015 Collection
TC Beirne School of Law Publications
 
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Created: Wed, 20 Aug 2014, 16:29:36 EST by Carmen Buttery on behalf of T.C. Beirne School of Law