Some argued that devolution would be the first step towards independence. Current debate suggests a referendum may take place if Alex Salmond gains a second term as First Minister. The Firm took a closer look and found that the Scotland Act 1998 contains a sting in its tail which makes all the saltire waving a little premature.

“There will be a Scottish Parliament,” the great Donald Dewar proclaimed, quoting Section 1 of the Scotland Act 1998 which did indeed provide exactly that. Many thought an independent Scotland would inevitably follow. Dewar’s ill-famed modern successor Wendy Alexander dared the SNP to bring its oft-touted referendum on.

The independence debate seems to be underway in earnest, aiming for a possible 2010 plebiscite, with press coverage beginning to include details of the timing, the likelihood or otherwise of a Yes vote, and even the wording of the question. What they have failed to do is point out that the Scottish Parliament does not have the power to hold such a referendum, and has neither the competence nor the constitutional ability to discuss independence, far less legislate for it.  They may as well discuss the colour of the sky or the reversal of gravity, for all their ability to actually do anything about it, which should come as a surprise to no one. It is after all, written in black and white right there in the Scotland Act that Dewar quoted from.  Did you spot it?

The constitutional position is well known, understood and accepted in academic circles, where the present debate is perceived as an exercise in sabre rattling politics, rather than a legitimate discussion on the constitutional settlement. Litigation specialist Cameron Fyfe has been approached separately by two clients who are intending to interdict the Presiding Officer should an independence debate be mooted, and to seek a judicial review of any action taken by the Holyrood Parliament on the basis that it has no competence to do so. The legal aid board could even fund such an action as a test case in the public interest.  On a bare reading of the Scotland Act, he says they seem to be entirely correct.

“I have thought for many years that even the arranging of a referendum would be outwith the ambit of the Scottish Parliament,” he says.

“The legislation is so unambiguous that the prospects of success would be high. For that reason we would be more than happy to pursue an action for a client wishing to do so.”

The conclusions are hard to avoid. Section 29 of the Scotland Act 1998 states that a provision is outside the competence of the Scottish Parliament if it relates to reserved matters, or breaches schedule 4 of the Act. The reserved matters are listed in the Act in Schedule 5, and among the general reservations, plainly at s1(b) is “the union of the Kingdoms of Scotland and England”.  The union, unquestionably, is protected and hardwired into the machinery that created the Scottish parliament. Dewar, ever the unionist, didn’t quote that part.

The spread of academic opinion clearly recognises that, despite the tone of the current independence debate, a referendum on the topic -or independence itself- simply cannot happen under the current law.

“To hold a referendum would be to enact legislation on a reserved matter, against s29(2) of the Scotland Act 1998.  Schedule 5 refers to the Union between Scotland and England as a reserved matter, so a referendum that was concerned with that question would appear on the face of it to be outside the competence of the Scottish Parliament. S29 (2) (b) is quite clear. No legislation can be passed on a reserved matter,” says constitutional law specialist Professor Anthony Carty of the University of Aberdeen, who also interprets the final form of the act as the product of an intention to preclude independence from the outset.

“The structure of the act is more complicated. It devolves general powers to the Scottish Parliament, then specifies reserved powers which are retained. During the progress of the bill through the House of Commons, the conservatives thought that the issue of the referendum wasn’t sufficiently precisely dealt with, and they tried to add a clause that would have specifically excluded the Scottish Parliament from holding a referendum, although that amendment was not accepted.”

With that imprimatur, the Scotland Act appears frontloaded to yield devolution only, without the possibility of further enacting legislation, which inevitably would need to originate in the Westminster Parliament, stacked with MPs holding declared pro-union positions.

“The Westminster Parliament could -simply through an Order in Council- give the Scottish parliament such additional powers as it considers appropriate.  Given that the conservative party through John Major and Margaret Thatcher specifically stated the position that it is a union of two nations, and if the Scottish nation wished to exercise self determination by withdrawing from the union then they are entitled to do so. It is quite possible -given the ambiguities in the legislation- that it could be given additional powers but it doesn’t have them at the moment.”

“The dominant English constitutional view is that what happened in 1707 was the incorporation of Scotland into a United Kingdom, the Scottish Parliament was dissolved.  Given the apparent consensus in London about the nature of the state, it is quite likely that one would view Scotland not as seceding from the UK, but the union of England and Scotland being dissolved. Alex Salmond is not being completely frank with the Scottish public about the fact that, even with the majority, he doesn’t have the legal authority to conduct this referendum.  He hasn’t thrashed out, completely openly, that the whole concept of having the referendum legally is going to depend on close collaboration with the London government.”

After a reading of the debates that marked the travel of the Scotland Bill, Professor Carty concluded that it was evasive on the issue of the referendum, which was specifically raised, lending weight to the theory that progress on independence was deliberately excluded. However, he says it is clear that Section 29(2)(b) taken together with schedule 5 is clear and straightforward.
“An act of parliament is not law if it is outside the legislative competence of the Parliament. It is outside of that legislative competence if it relates to a reserved matter. A reserved matter is the union between Scotland and England. Having a referendum on whether this union should continue is clearly something which relates to a reserved matter.”

Dr Nick McKerrell, a constitutional law specialist at Glasgow Caledonian University says there are two legal barriers to independence. The Scotland Act - in contrast to other devolution schemes- specifies the powers that are reserved, rather than the powers the Scottish parliament has, and one of those is the constitution. Secondly, there are acts of the Westminster parliament which the Scottish parliament is barred from amending, one of which is the 1707 Act of Union.  

“To try to get around this, they are saying any referendum would not be on independence as such, but rather, should Scotland negotiate independence? The legal question in the referendum won’t be about independence at all. It will be a much more conservative question about negotiating independence,” he predicts.

“Independence is impossible under the Scotland Act.  The Scottish Parliament cannot vote on independence, and it cannot repeal the act of union.  That would have to be done at Westminster. If an outcome of a referendum says we want to negotiate independence, that would have to result in negotiation with the British government, and if independence was to be conceded, it would have to come from Westminster legislation that either repealed the Act of Union, or would amend the Scotland act to allow the Scottish parliament to do that.”

“The model of devolution we have makes the legislation for independence impossible.  It is quite clearly an act that was drafted with the intention of maintaining the union. It is not an act drafted with the potential to create independence.   Wendy Alexander’s recent working group to look at extending the powers of the Scottish Parliament within the union recognises that the Scotland Act itself was limited to a devolved model.”

Perhaps the biggest hurdle to an independence referendum and outcome is the public mood, which may swell with tartan pride when asked patriotic questions of national self determination, but which may shrink a little when faced with the very real questions that have not yet been asked in the public arena about the questionable status of an independent Scotland’s membership within the EU, which would almost certainly have to be reapplied for. There are parallels, but no precedent for Scotland’s hypothetical dilemma, and Robert Hazell pointed out that the Czech/Slovak ‘velvet divorced, oft considered a model of an amicable state split, required 31 separate treaties and more than 2000 negotiated agreements. In Scotland these would most likely relate to fishing quotas, adoption of the Euro, Clyde naval bases and Scots regiments, and of course, North Sea oil, a prize likely to see the US stepping in. And we know how highly they regard national sovereignty when set against oil.  With these additional complications, one wonders how easily the popular mood will be swung by notions of ‘Free-DUMM.”

“It wouldn’t be an easy piece of legislation; there would be a lot of knock on legislation, not all necessarily constitutional.  All of that could only be done at Westminster,” adds McKerrell.

“The UK is a legal entity in a number of international forums, whether it is the UN, the EU or NATO or the WTO. The SNP’s argument has been that these things would be renegotiated, and Scotland and the UK would be two separate states.  Legally, it is going into a bit of a minefield. The debate on the referendum has been a broad brush political debate between labour and the SNP. It has not gone into the legal minutiae.”  

He also agrees that any civil action raised to interdict or judicially review the proceedings would have a high probability of success, notwithstanding the ability of Westminster to halt proceedings, as they may indeed be entitled to in the absence of their own separatist mandate.

“If the Presiding Officer allows it to be voted on, there is precedent to allow an individual to put an interdict in at that point. They could stop it being debated, as was done during the fox hunting bill.  The British government could also intervene, even after the Scottish Parliament had voted in favour of a referendum, and prevent a bill being passed. The Westminster government would need to analyse it before Royal Assent to see if it fitted in with the Act. Legally, the British government has a right to intervene, and not pass it to the monarchy for Royal Assent.  It emphasises how legally difficult it could be, although politically that might be problematic,” he says.

Politicians with an independence agenda could easily conduct a debate to stimulate moral and ethical pressure from the public to push for an independence vote. Should one actually be desired in overwhelming measure, it would be a brave Parliament that failed to take heed of the will of the people, although one must bear in mind that the largest mass demonstrations ever undertaken across the UK failed to prevent the folly of invading Iraq, and it is arguable that this exercise, proving that the mob at the gates can be defied, may have sapped the will of large swathes of the population to engage in the mainstream political process at all.  Independence, no matter how powerfully desired, may prove to be a step too far.