Jim Sillars: Alex must not end up court in the Act

Ever heard of the Scotland Act 1998? I am starting to wonder if some of our politicians have. Few seem to have taken the trouble to read and understand it when twittering on about who can or cannot run an independence referendum. The Scotland Act matters because it governs the competence of the Holyrood parliament. It puts a legal fence around it.

Holyrood is a creature of statute. It only exists and has powers on the basis of the Act setting it up. If it goes outside the range of powers given to it, then it acts ultra vires and unlawfully. We may call it a parliament, and it definitely has a number of legislative powers, but it is as much a creature of statute as is Edinburgh City Council, and subject to same ultra vires rule.

If the Scotland Act, as it does, refuses to give Holyrood powers over the constitution it cannot, therefore, lawfully hold a referendum on independence. That power is reserved by the Act for Westminster. Ah, but, says the SNP, “we now have a political mandate gained fairly and squarely at the last election, when we won a majority, and that mandate should trump any legal impediments to us running the referendum when we want”. I agree that legalities must bend to accommodate the mandate, but neither the SNP leadership, nor the MSPs in Holyrood, have an easy passage to bring that about because they are governed by the rule of law, and the Scotland Act is the law.

Being a creature of statute, any Bill or an Act by the Scottish Parliament can be challenged in the courts by any citizen as being outside the parliament’s powers. If the court finds for the citizen, then the parliament is snookered. There are people waiting in the wings to challenge the legality of Alex Salmond presenting a referendum Bill to the Scottish Parliament. It is not sensible to ignore the cloud of legal uncertainty hanging over the whole referendum issue.

This is what David Cameron is now seeking to exploit. When he says he doesn’t dispute the SNP’s right to hold a referendum, but wants there to be no doubts about its legality, he is manoeuvring himself into a bargaining position with Alex Salmond. He is offering to alter the law, which he can do by an Order in Council, a very swift way to give Holyrood powers to hold a referendum. However, he has strings attached. Salmond must ask only one question, on independence. In short, Cameron wants to put some salt on Salmond’s tail, and get a referendum next year because he thinks the SNP will lose it. He is afraid to give the SNP time to build up its case so that, say, in 2014 on a date of Salmond’s choosing, he will win.

So there we have it. Salmond has the mandate but is on shaky legal ground. Cameron has no mandate, but has a battery of legal powers. SNP ministers put it thus: Cameron should recognise the mandate is supreme and transfer the powers to Holyrood to hold a referendum that is cast-iron legal.

But we’re not talking about some minor matter here. The referendum is about not only the future of Scotland, but of the UK after we leave with our considerable assets. We cannot, in the world of realpolitik, expect a UK Prime Minister to act as though he doesn’t care when he has responsibilities under the Scotland Act to preserve the Union. This is a facet of the Act usually ignored, but it’s there.

If the SNP snubs Cameron’s offer of a transfer of powers with those strings attached, and presses ahead with its own Bill in Holyrood, it is certain to be challenged in court, with a serious risk of losing. A court decision against Holyrood holding the referendum and the SNP hits the buffers, no matter what the mandate says.

A set of referendum debates will be about the political issues of the economy, social security, defence, foreign affairs, the EU etc. But before the politicians can get stuck into the politics, there is a legal process without which no referendum can take place. There must be legal authority, a Referendum Act, enabling local councils to spend money printing the ballot papers, issue postal votes, open the polling stations, employ security, and count the votes. If a court says no to such an Act, the councils won’t ignore a court order, leaving no-one to run the referendum.

As you can see, it is not a simple matter of the Salmond mandate versus the legal issues. They are intertwined, with only the courts able to resolve any dispute. SNP members will feel outraged that the party’s mandate can end up subject to a judge’s ruling, but when they bought the Scotland Act, or, more accurately, sold it to the Scottish people in the 1997 referendum, the right of judicial intervention is there in the Act. Read it, and see why Alex cannot ignore the legalities.