Separate issue: Scots referendum debate lands on Terra Firma

That was the view of Roy Martin QC, who chaired a debate on Scotland’s constitutional future, hosted by Terra Firma Chambers – because, he said, introducing a Section 30 order could be subject to judicial review.

Lord Wallace of Tankerness, the Advocate General and keynote speaker, said the discussion around the legality of a referendum wasn’t just “legal nit-picking” and the debate had to take place in the context of the rule of law. He added: “Without law, there would be no devolution of power, no Union, and there can be no independence.”

Lord Wallace repeated his, and the UK Government’s, view that a referendum on independence related to matters reserved to Westminster and was therefore beyond the legislative competence of the Scottish Parliament. He said the ‘purpose and effect test’ had to be applied and if the purpose of the referendum was to vote on separating the Union and separation was a potential effect of a vote, that clearly related to reserved matters.

“As a matter of common sense, a referendum on the Union, even an advisory one, would relate to the Union and would therefore not be allowed [to be brought forward by Holyrood]”, he said. A referendum was “not an opinion poll”.

Lord Wallace added: “A referendum involves a decision by the electorate and is hard for the government to ignore. In theory, the UK government could ignore the result but that does not give sufficient weight in practical terms to the referendum result.”

Elaine Motion, a partner and head of litigation at Balfour Manson, said it would take a “very, very brave government” to ignore a referendum result.

Lord Wallace thought a Section 30 order should be enough to ensure the legality of a referendum, and to set parameters to make it “fair and decisive” but it would need the approval of both parliaments.

However, Lord Wallace stated clearly that the opponents of independence would not “hold Scotland in the Union against its will”.

Andrew Taylor of Tods Murray was the only contributor from the floor who suggested there was no problem for Holyrood to hold an advisory referendum. “Giving the Scottish people a say is not [in itself] changing the constitution,” he argued.

Prof Colin Munro, Emeritus Professor of Constitutional Law at the University of Edinburgh, said there was a history of politically motivated referenda, but that those with “a decisive question about a specific territory” had a more respectable lineage.

The panellists agreed it would be difficult to change the franchise (such as allowing 16 and 17-year-olds the vote) for one particular poll, and it would need to be amended by an act of the Westminster parliament.

Elaine Motion asked why, if the referendum affected the whole of the UK, should all the UK not have a vote? James Findlay QC, who practices in Scotland and England, said there was a feeling in England that people wanted to be involved in the decision-making process.

Prof Munro said there was no clamour for an English parliament or regional assemblies – but he felt there was a case to give a vote to ex-pats who had been on the Scottish electoral roll within the last 15 years. Lord Wallace thought this could be “a huge exercise” in a practical sense. He suggested the independence poll should use the same franchise as the devolution vote of 1997”

Alan Dewar QC, from the floor, said that David Cameron should “show his hand” on further powers as the electorate was entitled to know what alternative was on offer before voting on independence.

Roy Martin said this was not necessary as an independence vote was a clear yes or no and it could be debated afterwards what came next.

Prof Munro said what was on the table now would change as we were in a “continuous process”. On the subject of a judicial challenge, he said: “I can imagine judicial review being raised but I cannot see it succeeding.”