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By Jason Michael
The general and accepted opinion is that Scotland requires the permission of the London government – in the form of a Section 30 order to the Scotland Act (1998) – to hold another independence referendum. But is this actually the case in law?
When Nicola Sturgeon announced her intention to have another independence referendum on Monday she said that she will “seek the authority of the Scottish Parliament to agree with the UK Government the details of a section 30 order.” In this there is the muted implication that the authority for the process of a constitutional referendum, as she sees it, rests with the Scottish Parliament and that the role of the London government is reduced to a rubber stamping of Scotland’s will. Of course the precedent of the 2012 Edinburgh Agreement and the Section 30 order that followed lends more weight to the position of Westminster than we would like.
This is a tenacious one. Legal base (i.e. validity) and legal bindingness (i.e. effect) are different things. twitter.com/AlanWyllie77/s…—
Aileen McHarg (@AileenMcHarg) March 16, 2017
Given the absolute intransigence of the British government towards Scotland since England’s decision to leave the European Union it is likely that Theresa May will block the Scottish government’s attempts to hold another referendum before early 2019, thereby depriving the independence movement of the political capital gained over hostility to Brexit in Scotland. As Scotland and England’s difference of opinion in the EU referendum instigated this current crisis the First Minister finds herself on a timescale dictated by the Article 50 negotiations, raising the question of the necessity of a Section 30 order altogether.
According to Professor Aileen McHarg, professor of public law at Strathclyde University, there is reason to believe that Scotland does not in fact require such an order. Her own article on this contains a number of provisos and is more nuanced than we can be here, but she states:
…the Scottish Parliament’s competences do not depend on positive conferral of power to legislate on particular topics, but rather on the absence of relevant restrictions on its powers. While there is currently no express permission in the Scotland Act to hold an independence referendum neither is there any explicit prohibition.
Professor Aileen McHarg, expert in constitutional law
As is the nature with all law, it was impossible – while legislating for the devolution of the Scottish Parliament – to cover all eventualities, and so the devolved Edinburgh parliament was effectively empowered to do anything except for those things that had been explicitly restricted – the “reserved” matters. What is interesting in what McHarg writes is that the requirement for a Section 30 order – that is the permission of the London government to call a referendum – is not actually an expressly reserved matter.
What stands against this argument for Scotland going ahead with a referendum without this order is the rather inconvenient detail of it having been done before. That the Edinburgh Agreement secured the 2012 Section 30 order creates a legal precedent, but, at most, this is only soft law and remains wide open to legal challenge. With the British government set on a course to stymie Nicola Sturgeon’s referendum timeframe, this is certainly a legal argument the Scottish government will and must now be considering.
Aileen McHarg – Constitutional Law (February 2014)