Letters: Scottish legal rights over referendum

Published on Wednesday 15 February 2012 00:00

YET again an article in your columns (14 February) repeats the claim that before the Scottish Government can lawfully hold an independence referendum there must be a transfer of powers (by means of a section 30 order) by the United Kingdom government; and that this fact gives the UK government the opportunity to attach restrictive conditions as the price of any such transfer.

This is an all-too prevalent misconception.

The Scottish Government’s present legal position on entitlement to hold a referendum is a strong one.

Any conditions sought to be imposed by the UK government can therefore be considered strictly on their merits and not as a price that must be paid, however reluctantly, in order to secure authority lawfully to hold a referendum at all.

Notwithstanding the restrictions on the Scottish Government’s devolved competence contained in the Scotland Act 1998, no-one disputes that it can lawfully make proposals to, or hold conversations or enter into negotiations with, the United Kingdom Government about (i) altering the constitutional position of Scotland or (ii) widening the devolved powers of the Scottish Government and Parliament (including amending or removing some or all of the matters reserved to the United Kingdom which are set out in Schedule 5 of the Act).

That being the case, it is inconceivable that any court would hold that it was beyond the legal power of the Scottish Government to promote legislation to enable it to consult the Scottish electorate (by means of a referendum) about whether the Scottish Government should or should not make such proposals to, or hold such conversations or enter into such negotiations with, the government of the United Kingdom. That is precisely what a referendum on independence does, irrespective of the precise terms of the question asked.

The Scottish Government’s position is, of course, reinforced by section 101 (2) of the 1998 Act which provides that any provision of an Act of the Scottish Parliament is “to be read as narrowly as is required for it to be within competence, if such a reading is possible, and is to have effect accordingly”.

That does not, of course, exclude the possibility that referendum legislation might be challenged, as being beyond the Scottish Parliament’s powers, in the courts of Scotland and all the way to the UK Supreme Court. But any such challenge would fail.

Robert Black QC FRSE

Professor Emeritus of Scots Law

University of Edinburgh

Edinburgh

How helpful are economic data in making a political judgment on the future of the constitution? (Perspective, 13 February)

Take, for instance, the figures in the Scottish Government’s budget for spending on health and education.

“Where the money goes” shows total health spending and education and lifelong learning to be £14.14 billion.

How can this be reconciled with the £62.4bn spent on public services in Scotland from the Centre for Economics and Business Research?

Both data claim to be public spending on devolved services like health, education and lifelong learning. Can a rational case for independence or the union be made on the basis of these figures?

Ellis Thorpe

Old Chapel Walk

Inverurie, Aberdeenshire

Constitutions are important and should not be changed thoughtlessly. Even a minor sports club usually requires a 75 per cent majority to change its constitution – and consider the complicated requirements needed to change the United States constitution.

The Scottish devolution referendum in 1997 was won on a minority vote – only 44.9 per cent of those entitled to vote actually voted for devolution.

Surely, at least half of all Scottish voters should be required to vote in favour of any major change to our 300-year old constitution.

The proposed independence referendum will not show the true will of the Scottish people if there is not an absolutely clear and decisive majority of all those entitled to vote.

After all, this is not just an election. It is our future.

Hamish Haswell-Smith

Oak Lane

Edinburgh

Comments

There are 6 comments to this article

Order by:

• Newest first
• |
• Oldest first

Page 1 of 1

• 1
• Show all

6

douglas-home rule

Thursday, February 16, 2012 at 12:01 PM

Good and concise letter from Robert Black. Is it not strange that when we had Lord Wallace's triumphalistic tour through the media studios of Scotland, boasting of Westminsters right to deny Scots a right to be consulted on their own constitution, legal experts like Mr Black were kept at arms length.

• Report Unsuitable

5

samcoldstream

Wednesday, February 15, 2012 at 08:47 PM

The second author is attempting to revise history? The UK does NOT have compulsory voting. Voter turnout at the 1997 Two Question Scottish Referendum was 60.4 percent of registered voters in Scotland. At the last two United Kingdom General Elections voter turnout in Scotland was as follows: 2005 - 60.8 percent, and in 2010 it was 63.8 percent. In the past 3 UK General Elections, ONE THIRD of UK registered voters didn't bother turning out? In the recent AV Referendum, only 38 percent of voters bothered completing the referendum ballot paper? In London it was as low as 18 percent? (Source: UK Government website) As Margaret Thatcher once screamed across the chamber of the House of Commons at the Labour Opposition benches after the Conservative Party narrowly retained a By-Election by 112 votes: "A majority, is a majority, is a majority!"

• Report Unsuitable

4

Brotyboy

Wednesday, February 15, 2012 at 09:58 AM

Can we please have an end to the plethora of letters from amateur mathematicians suggesting that anything less than the support of 50% of the electorate renders a vote illegitimate. If you choose not to vote you accept the result; that's democracy.

• Report Unsuitable

3

Sister Wendy

Wednesday, February 15, 2012 at 09:52 AM

@ Hamish. Never read so much nonsense. We'd never have a government anywhere using your logic!

• Report Unsuitable

2

Alexander D Lindsay

Wednesday, February 15, 2012 at 08:43 AM

A good letter from Robert Black, adding his authority to the recent published opinion of a number of Scottish academic constitutional experts making similar points.

• Report Unsuitable

1

mogatrons

Wednesday, February 15, 2012 at 12:24 AM

Hamish : "The proposed independence referendum will not show the true will of the Scottish people if there is not an absolutely clear and decisive majority of all those entitled to vote. "............................................................................................. Every election determines our future; the referendum will be no different in that respect. Using your flawed logic from 1979 all elected governments past and present had no right to govern anyone. .........or are you suggesting that if the No vote were to somehow win a majority of turnout, but not electorate, then Scotland should declare independance regardless?..............

• Report Unsuitable

Order by:

• Newest first
• |
• Oldest first

Page 1 of 1

• 1
• Show all

Logged in as:

Comment here. Start typing your comment here:

Post comment

Please adhere to our Community guidelines

Your view

Please sign in to be able to comment on this story.