Can the Westminster government set the terms of a referendum on Scottish independence?

There has been much talk, of late, about whether the Scottish parliament can go it alone in organising a referendum on the constitutional future of Scotland, or if this is a matter for the UK government at Westminster.  The UK government have today announced their ‘clear legal view’ that it must be handled by them, but are proposing a temporary and specific transfer of power to the Scottish parliament that would enable that institution to organise it instead.  They have announced a ‘consultation’ on the details of the transfer of power, but it’s clear they assume a right to impose conditions that would have the effect of dictating the terms of the referendum.  So, can the Westminster government dictate the terms of a referendum on the constitutional future of Scotland?

Under Schedule 5 of the Scotland Act 1998, ‘the Union of the Kingdoms of Scotland and England’ is explicitly listed as a matter reserved to the parliament in Westminster.  Since a referendum on Scottish independence relates to the Union, it’s clear any referendum would have either to be directly organised by the Westminster parliament itself, or organised with its permission by another authority, such as the Scottish parliament.

That’s all nice and clear, then – the Westminster parliament has a clear and unambiguous constitutional and legal right to dictate to the Scottish parliament the conditions under which it is prepared to transfer authority for organising a referendum.  So much for the theory, but what about in practice – can they actually do so?  Well, there it gets a lot more complicated.

For a start, referenda have no constitutional force in any part of the United Kingdom, including in Scotland.  So, while the Scotland Act explicitly forbids the Scottish parliament from passing legislation that will affect the Union, it’s by no means certain it prevents it from passing a referendum Act.  If the result of a referendum cannot be enforced in any court in England or Scotland (and it can’t), how can an Act of the Scottish parliament organising a referendum be said, in law, to affect the Union?  By law, only the parliament in Westminster can affect the Union, and by clear constitutional principle the parliament in Westminster is free to ignore the result of any referendum – including a referendum organised by itself, or with it’s permission.

Of course this last point – that the Westminster parliament cannot even be forced to reflect the results of referenda it organises itself – also means that any referendum, whether or not it is authorised by the Westminster parliament, has precisely the same constitutional significance.  Which is another way of saying it has no constitutional significance whatsoever.  And if authorisation by the Westminster parliament confers no legal or constitutional status on a referendum, then there’s no difference in law between referenda that have and have not been authorised.  And if there is no difference in law between an authorised and an unauthorised referendum, it’s not clear what ruling a court could make even if it wanted to – it cannot revoke the legitimacy of an unauthorised referendum, because the referendum has no legitimacy anyway.

Referenda do have force, of course.  But they have force because overruling the will of the people as freely expressed in an open and fair referendum is politically impossible, not because it’s constitutionally impossible.  If a referendum organised by the Scottish parliament backed independence or enhanced devolution, it might be constitutionally possible for the Westminster government to ignore the result – just as it would be constitutionally possible for it to ignore the result of a referendum it had organised itself – but it would be politically impossible.

What all this means is that, in attempting to dictate the format of the referendum, the Westminster government is bluffing on a weak hand.  All it takes is for the Scottish parliament to indicate it is willing to proceed with a referendum without seeking the permission of the parliament in Westminster, and the bluff will have been called.  Whatever the constitutional niceties, it’s simply inconceivable that the Westminster government could ignore the view of the Scottish electorate as freely expressed in a fair and open referendum.  There would be a high political price to pay if they tried, but even more than this it would undermine the defining central feature of democracy: that government reflects the will of the people.

Something that’s even harder to understand is why the Westminster government are even trying to do this.  It seems obvious that they want to make sure that the option of enhanced devolution is not included on the ballot, and to leave the Scottish electorate with a straight choice between independence – which virtually every poll shows the majority of them do not want – and the status quo.  But denying the Scottish people the opportunity of voting for enhanced devolution will not change the fact that, to paraphrase the words of Professor John Curtice on BBC News last night, it’s the option that seems to be backed by the majority of them.  All it will do is store up further resentment against the unionist parties in Scotland.

It looks as though the unionist parties (Labour as much as the Conservatives and the Lib Dems) have decided to pursue this strategy because it will annoy their political rivals, the SNP, but they seem to have overlooked the fact that they’re at serious risk of cutting off their noses to spite their face.  If they want them to value the Union, the unionist parties have to demonstrate to the Scottish people that their aspirations for greater autonomy can be met within it.  Preventing them from expressing those aspirations in a referendum is not a good way of achieving this.

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