Scottish Consultation on Independence Referendum

As mentioned in an earlier post, the Scottish Government launched its own consultation on a referendum on Scottish independence, which you can view here. The consultation runs until 11 May 2012.

The Scottish Government is looking to hold said referendum in the fall of 2014. This time frame is to allow for the responses to the consultation process to be used to inform the further development of the bill before it is debated in the Scottish Parliament some time in 2013.

Scottish First Minister Alex Salmond (Scottish National Party-SNP) revealed the proposed referendum question:

Do you agree that Scotland should be an independent country?

Salmond described the question as “short, straightforward and clear”, but there has been criticism that adding “Do you agree” made the question biased, and that a better question would simply ask “Should Scotland be an independent country?” More problematic, however, remains the possibility of a second question on the ballot paper on an alternative to full independence:

The Scottish Government  is willing  to  include a question  about  further,  substantial  devolution  on  the  lines  of  “devolution max”  if  there  is  sufficient support for such a move.

Devolution max would see a greater devolution of powers to the Scottish Parliament, in particular, more financial control, without Scotland becoming fully independent.

The option of a second question on the ballot is probably the key point of contention between the SNP and unionists. The other main area of disagreement concerns the SNP’s desire to let 16 and 17-year-olds vote in the referendum. The SNP’s and Unionists’ positions can be summarised thusly:

SNP position Unionist position
Referendum in the autumn of 2014 Referendum “sooner rather than later” (by the end of 2013?)
Backs a yes/no ballot but open to a second “devo max” question Wants a one question yes/no “decisive” ballot
16 and 17-year-olds to be able to vote in the referendum Backs the status quo with 18 and over able to vote
Backs the Electoral Commission’s regulation of the ballot Wants the Electoral Commission to oversee the vot

The larger issue, however, is that of legality. As I had explained in my earlier post, the UK Government has stated that the Union of the Kingdoms of Scotland and England is one of a reserved matter that falls under the purview of the UK Parliament, and because of that, legislation for a referendum brought forward by the Scottish Government would likely be challenged in court and the Scottish Government would lose. Alex Massie addresses this point:

Will it be legal? The Scottish Government make it plain they desire a Section 30 order amending the Scotland Act that would transfer to Holyrood the power to hold a referendum of this ilk in ways unlikely to agitate our learned friends at Parliament House. That is as dandy as you could hope and all might be well but for the problems of conditions and, indeed, a second question. The consultation document is not perhaps as convincing as it might be on this. Apparently:

A wide range of opinion has been expressed about whether or not the Scottish Parliament has the power to hold a referendum consulting the Scottish people about independence. The Scottish Government’s February 2010 paper set out a referendum question asking whether the powers of the Scottish Parliament should be extended to enable independence to be achieved. The Scottish Parliament has the power to legislate for a referendum as long as that would not change any reserved law or relate to those aspects of the constitution which are reserved by the Scotland Act 1998. The referendum question proposed in 2010 was carefully phrased to comply with that requirement. Much independent legal opinion supports the Scottish Government’s view.

What is beyond any question is the ability of the Scottish Parliament to legislate for a referendum about changes to the powers of the Scottish Parliament within the framework of devolution. Legislation to hold a referendum on “devolution max”, for example, is clearly within the existing powers of the Scottish Parliament.

Perhaps. I am not sure that Her Majesty’s Government, far less the courts, necessarily agree with the second paragraph here. Is it really “beyond any question” that a secondary referendum on “devolution max” is “clearly” within “the existing powers of the Scottish parliament”?

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Radical Centrist

  • There is no “Scottish Nationalist Party”. It is the Scottish National Party.