Public Law

Amidst the hoo-ha in the media, Margo MacDonald MSP has posed some serious and considered questions on the subject of an independence referendum in Scotland. You can read Margo’s letter to Holyrood magazine here. I attempt, in the interests of brevity, to answer two of the questions asked and also pose a few of my own.

Who would organise the referendum?

The Scottish Government will take the lead on organising the referendum and indeed have already started the debate though their Draft Referendum (Scotland) Bill Consultation. However, the Scottish Secretary and the First Minister currently don’t agree on whether one or two referendums will be required. There is some strength in Michael Moore’s view. The Union is a reserved matter under the Scotland Act which means a referendum in Scotland would lend political rather than legal authority for Scottish independence. Whether or not a second referendum is required may yet be debated as part of the political wrangling if there is a yes vote. Whether the Scottish people are asked twice or just the once, if the political will is to grant independence it seems inevitable that there will need to be legislation to give the necessary legal authority to the political settlement.

Who pays?

Perhaps a more interesting question is who will foot the bill for the referendum(s)? This is likely to be a political hot potato given the ongoing tough economic conditions north and south of the border. Westminster will no doubt want the Scottish Administration to pay for the referendum through its block funding grant. The Scottish Government is already unhappy at the most recent settlement of approximately £29.2 billion, which is set to fall by 11.3% in the year 2014 – 15, and makes no mention of paying for a referendum in their spending plans. Taxpayers in England, Wales and Northern Ireland may also have views.

How would spending on the campaigns be agreed and supervised?

The answer to this question is more straightforward from a legal perspective if not a political one. The Welsh referendum in March 2011 was governed by an Order of the Welsh Assembly and the AV referendum in May by the Parliamentary Voting System and Constituencies Act 2011. There are also comprehensive provisions governing referendums in the Political Parties, Elections and Referendums Act 2001. Provisions for governing an independence referendum in Scotland could be set out in a revived Referendum Bill containing appropriate legal remedies and enforcement provisions.

An interesting point for discussion between the various political camps is whether there will, or ought, to be any control on the limit of spending on the “yes” and “no” campaigns? The 2011 Act provided that expenses incurred in respect of publication of matters relating to the referendum were not “referendum expenses” under the 2000 Act. That is one of the reasons campaigners were able to commission adverts like this and were also at liberty to raise significant funds. Will a similar approach to referendum expenses be followed in Scotland? If so, who stands to benefit the most?

Answers, views, comments on these and other points on the referendum debate will be warmly received.

Niall McLean

Associate at Brodies LLP
Niall is a member of Brodies' market leading Government, Regulation and Competition practice. Niall gives both public and private sector clients advice in a broad range of areas including: corporate crime and investigations, governance, defamation and reputation management, public law and statutory interpretation.
Niall McLean