The Scottish Government today made public its legislative programme for the coming year. The most interesting aspect is the plan for a Referendum Bill to be put before the Scottish Parliament at some point in 2010. In short, the Scottish Government, led by the Scottish National Party (SNP), plans to hold a referendum on Scottish independence.
Leaving aside the political issues, such as for example the problem facing the SNP minority government of gaining political support for the Bill in parliament, a number of legal questions arises out of the Government’s plans. For instance, the status of referendums under UK constitutional law has always been one of ambiguity. Historically, very few referendums have been held in the UK compared to other European countries. Notable exceptions, however, are the 1975 EC membership referendum and the Scottish and Welsh devolution referendums in 1997. One reason for this is the strong emphasis in the UK constitutional setup on the doctrine of parliamentary sovereignty. In brief, parliamentary sovereignty, as argued by A. V. Dicey, means that the UK parliament (in Westminster) is sovereign and has “the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament”. Although the doctrine has been gradually weakened by, for instance, the devolution arrangements, the enactment of the 1998 Human Rights Act and most notably by the UK’s accession to the EC, it very much remains a central principle in UK constitutional law. Hence, the historical lack of referendums in the UK can be summed up by the rather outdated sentiment that such referendums would be a waste of time as Parliament was not legally obliged to adhere to them. Whether this is still the case is probably doubtful but as far as a Scottish referendum goes it raises some interesting quandaries.
For example, should the Scottish people vote yes (which would seem to be somewhat unlikely as polls continue to indicate support for Scotland to remain in the UK), it is not a matter for the Scottish Parliament to decide. The 1998 Scotland Act specifically reserves (in Schedule 5) constitutional matters relating to the United Kingdom to the Parliament in Westminster. Hence, Scottish independence would have to be granted by Westminster rather than taken by the Scottish Parliament in Holyrood. Obviously, the will of the Scottish population would carry significant weight – rightly so. And should they vote yes in a referendum, it would take some political guts from any UK government to deny them independence. Of course, were this to happen, a long range of other legal issues would arise. For instance, would Scotland want to be a member of the EC (all indications are that the SNP would like to)? If so, this would have to be approved by the other member states of the Community although this would likely not cause much of a problem. Thus, the answer to the question of whether a new state is in the making is probably “not for a foreseeable future” despite the SNP’s intentions to the contrary.