Public Law

There’s been much discussion about whether the Scottish Parliament has the power to pass legislation setting up a referendum on independence. Alex Salmond and the SNP say “aye“. David Cameron and the unionist parties say “naw” (I quote from memory). So that’s nice and clear.

Where there seems to be a great deal of confusion, however, is on what the legal ramifications might be if Holyrood decided to press ahead with its own referendum without being expressly authorised to do so by Westminster. In particular, whether and how such a move could be challenged in the courts. We have form in this area, so thought it would be useful to set out some of the whats, whos, hows and whens (the wheres are self-evident, and the whys are entirely inappropriate for us to comment on).

So WHAT would a challenge to referendum legislation be trying to achieve?

I know I shouldn’t expose myself to such things, but I occasionally read the comment threads under news stories. To the extent that one can filter any semblance of a cogent argument from the muck-flinging, name-calling and general bat-guano craziness, one recurring theme is that the results of a referendum couldn’t possibly be overturned in the courts. So, runs said theme, even if a Holyrood-organised referendum wasn’t legal, the outcome would be politically impossible to ignore.

Since this myth seems to have attached itself to certain discussions of a possible legal challenge, it is worth puncturing. Any challenge would likely take place far in advance of any actual voting, and would be to the Bill (or Act, if the Bill had received Royal Assent) purporting to authorise a referendum. The terms of the challenge would most likely be that “the Union of the Kingdoms of Scotland and England” is reserved to the UK Parliament by Schedule 5 of the Scotland Act 1998, and so any Act of the Scottish Parliament “relating to” that matter would be outwith the Scottish Parliament’s legislative competence under section 29 of that Act. Accordingly, if a legal challenge succeeded the Act would be struck down by the courts as being “not law”.

So the result of a successful challenge would be that the referendum authorised by the Scottish Parliament would never happen, not that it would take place and then the result would be overturned. That’s not to say that there would be no referendum at all – just that the process of authorising it would have to be re-run in collaboration with the Westminster Parliament

So that’s the WHAT dealt with. Stay tuned for more about the WHOs, HOWs and WHENs of challenging an Act of the Scottish Parliament.

Charles Livingstone

Partner at Brodies LLP
Charles works with a broad range of commercial, public sector, charitable and individual clients, advising them on public law issues including judicial review, human rights, information law and the powers and duties of local and other public authorities. He is named by Chambers & Partners in both Competition Law and Administrative & Public Law.
Charles Livingstone

Latest posts by Charles Livingstone (see all)