WITH the election of a new UK government, and continuing talk of a second independence referendum, this would be a good time to review and, if necessary, amend the statutory process that enabled the previous one.
The referendum last year required an amendment to the primary statute, the Scotland Act 1998. The amendment was delivered by subordinate legislation in the form of an order made under section 30 of that Act. Allegedly, this conferred legal competence on the Scottish Parliament to proceed with the referendum.
A referendum rerun on the same basis would, therefore, require another such order, either to amend the existing order which was specific to the previous referendum, and is now defunct, or to replace it with a fresh order. But is the procedure judge-proof and fit for purpose? It strikes me that it is not.
First, it is unsound to rely on subordinate legislation designed for a particular purpose (devolution) to promote primary legislation for a quite different purpose (independence). Arguably, this is an improper use of power. It’s the tail of one dog wagging a different canine beast, and is open to challenge in the courts.
Second, the approval process for the order is itself inadequate. No amendments can be made to the order which by convention must be approved by the Commons and Lords.
This constrains scrutiny and prevents the incorporation of safeguards to protect wider interests. In essence, the procedure is an unsatisfactory back-door arrangement that gives Scotland everything it wants unchallenged to enable a legal referendum, but with potentially calamitous and defenceless consequences for the rest of the UK. It creates a huge democratic deficit.
Consequently, use of the subordinate section 30 order mechanism should be abandoned in favour of free-standing primary legislation to permit fuller scrutiny by the UK government.