|Lord Wallace of Tankerness QC|
A few days ago, Law and Lawyers ventured the tentative view that Scotland could not lawfully hold any form of referendum relating to independence unless the UK Parliament has granted specific authority for it - "Scotland: We need to talk." The argument is not repeated here but it is interesting that Lord Pannick QC expressed a firmer view in an article in the Times on Thursday 19th January. Unfortunately, due to the "pay wall", I cannot link to the article but he wrote that a referendum was a reserved matter and therefore not within the legislative competence of the Scottish Parliament. Put simply, any form of referendum would "relate to" the reserved matter of "the Union of the Kingdoms of Scotland and England." A further article to the same effect appeared in The Scotsman 20th January - "Iain Jamieson: Alex Salmond lacks legal strength."
Section 29(3) of the Scotland Act 1998 states
that, whether a provision of an Act of the Scottish Parliament "relates to" a reserved matter, is to be determined by reference to the purpose of the provision having regard (among other things) to its effect in all the circumstances. As Iain Jamieson points out, Alex Salmond argues that he already has the power to hold an “advisory” or “consultative” referendum. However, what would be the purpose of such a referendum? Perhaps the only sensible view would be that the purpose would be to bring about greater political pressure for Scotland to be granted independence. Thus, it would "relate to" the "Union of the Kingdoms ...." However, ultimately only the Supreme Court of the UK could authoritatively rule on the exact meaning of section 29(3) in the context of any purported Scottish legislation for a referendum.
Do we really want the judiciary to determine this question? I do not venture to answer that question here since reference to the judiciary is both avoidable and should be avoided. London can empower the Scottish Parliament to enact legislation for a referendum. That is the sensible way forward since it side-steps legal argument relating to the Scottish Parliament's legislative competence. It is also the way forward proposed by the government in the recently issued consultation- "Scotland's Constitutional Future."
A very influential Scottish legal voice has now spoken. The Advocate General for Scotland - Lord Wallace of Tankerness QC gave a speech at Glasgow University on 20th January - "Scotland's Constitutional Future." Lord Wallace said: " ... an Act to bring about the end [of] the Union would "relate to" the Union and bringing an end to it would be its purpose – it would be outside competence. What then, about a referendum on the Union? It seems to me that a referendum, "advisory", "consultative" or whatever, about the Union, would relate to the Union. That seems clear both as a matter of common sense, and on a straightforward reading of the plain words of the statute."