Towards a Scottish independence referendum: widening a crack in the law

The Supreme Court is currently hearing a question of whether or not the Scottish government can hold a referendum on independence.  On the face of the matter, the constitution of the UK is a reserved matter, and that ought to imply that the Scottish Government doesn’t have the power to do it.  From the submissions being made on both sides, the position is not so certain.

The wording of the Act defines competence solely in terms of legislative activity.  Sections 29 and 30 deal with ‘legislative competence’; Schedule 5 makes it clear that constitutional matters are reserved, and so not within the competence of the Scottish Parliament.  And there, one might think, the matter ends. Only it’s not so simple.  The submission being made by the Advocate General for Scotland emphasises that any referendum would be advisory. It may still be the case, though this has still to be decided, that the Scottish Government doesn’t actually need a law to conduct a referendum; it could be seen as a matter of administrative competence, no different in principle from a mass survey of the population.  Accordingly, the counsel for the UK government is trying to get the Supreme Court to agree that the Scottish Parliament must first pass a law on which a decision can be made.  Passing a law would bring the measure directly and unequivocally into the provisions of the Scotland Act, and a UK decision made on that basis would certainly be negative.

The Scotland Act defines the legislative competence of the Scottish Parliament. It largely fails, however, to consider the actions of the Scottish Government (still referred to, in the Act, as the Scottish Executive).  Normally this would rest on a definition of powers – the actions of government can be within its powers (intra vires) or beyond them (ultra vires).  The ultra vires rule is well established in UK law: the classic case is AG v Fulham Corporation (1921), in which a local authority was blocked from operating laundry facilities because they had no explicit authority to do so.  A public authority can only act in accordance with the power that it has legitimately been given.

The term ‘ultra vires’ appears in the explanatory note to section 107 of the Act:

“This section forms part of the set of provisions which deal with the handling of ultra vires acts by the Scottish Parliament or the Scottish Executive.”

Donald Dewar explained his understanding in these terms:

“it is not in the power of the Scottish Parliament to change the constitutional arrangements … A  referendum that purported to pave the way for something that was ultra vires is itself ultra vires.”

The first of these examples, however, is referred specifically to the legislative remedies available to the UK government; and the second statement, by an individual MP during a debate, cannot taken as evidence of the intention of Parliament.

It could certainly be argued that the legislators were expecting the normal ultra vires rules to apply – but the law is not clear, and Jim Wallace failed in his attempt to fill the gap. If the Scotland Act had referred directly to administration intra vires, or simply to ‘competence’ rather than ‘legislative competence’,  the Scottish Government could be held bound not to exceed that authority.   However, the Act doesn’t say that.  There is a hole in the legislation, and the Scottish Government  hopes to be able to prise it open further so that it can let the light through.

23rd November:  The Supreme Court has made its judgement, based on the simple principle that the Scottish Parliament does not have the power to make such a law. On the specific point of ambiguity, they held that the reservation of powers could not be taken to be confined only to legislative functions, and that it must include non-legislative powers.


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