5 Legislation and referendums
Enhanced devolution or independence would require legislation, probably at both Westminster and Holyrood. Substantially enhanced devolution would arguably, and independence would certainly, require the consent of the Scottish people through a referendum. Such a vote, while not constitutionally binding, has been accepted as the correct way of determining Scotland's constitutional future. There must, therefore, be due consideration of appropriate forms of legislation for such a vote, and of the question of how a referendum could be initiated by the Scottish Parliament.
5.1 Further devolution or full independence for Scotland would require further legislation, either under the existing provisions of the Scotland Act, or by new Acts of the Scottish and United Kingdom Parliaments. The particular legislative route chosen would depend on the option to be pursued. The agreement of the Scottish people would be needed for independence, and a referendum would be required to allow the people to express their view, followed by United Kingdom and Scottish legislation.
Legislative options for further devolution
5.2 As discussed above, the Scotland Act already contains mechanisms which can be used to give further legislative competence to the Scottish Parliament. This can also be achieved through United Kingdom legislation, with the agreement of the Scottish Parliament under the Sewel convention. The major point to note is that the agreement of both the Scottish and United Kingdom Parliaments would be required whatever procedure is followed.
5.3 It is for consideration whether any of the options for enhanced devolution, or a combination of them, would require, or would benefit from, the further consent of the Scottish people by way of referendum. The referendum in 1997 was for the principle of devolution, following proposals in a white paper. The Scotland Act (as discussed above) contains provisions for devolution to be extended without further primary legislation, and makes no mention of the need for a referendum. On the other hand, the referendum in 1997 did contain a second question on tax-varying powers, which suggests that certain powers are significant enough to require the specific consent of the Scottish people. However, the vote on tax-varying powers was again on a general principle, rather than a specific proposal. The Government of Wales Act 2006 also allows for a further referendum to confirm the extension of the competence devolved to the Welsh Assembly, but that is against a very different constitutional arrangement as regards the legislative competence of that Assembly.
5.4 Even if no single measure of further devolution would require a referendum, a wide-ranging review of the devolution settlement could be subject to a referendum. A decision on whether a referendum was required for enhanced devolution would need to take into account the range and nature of the proposals, and the view of the public, and could only be taken as these emerged.
Legislative options for independence
5.5 Independence for Scotland would involve a fundamental change in the country's constitutional status, with implications for partner countries in the present United Kingdom. It is generally accepted that the full consent of the people of Scotland would be required by way of a referendum.
5.6 The timing and question of the referendum would need to be considered, as would the legislative basis. There are several possible questions that could be asked in a referendum on independence, for example, agreement to the principle of independence, agreement to negotiate, or agreement to a concluded Act or Treaty with the United Kingdom Government. Some of these could only be asked at a particular time: agreement to negotiate would need to be sought before any negotiations; agreement to a Treaty or Act of Independence could only take place after the terms of the Treaty had been negotiated or the Act had been passed.
5.7 The devolution referendum provides a useful comparison for other referendums, including one on independence. That referendum gave the people of Scotland the opportunity to vote on the principle of devolution based on the proposals set out in a white paper, before the detail of the Scotland Act was established. It provided a clear mandate for the Labour Government to proceed with the Scotland Act 1998 and the establishment of the Scottish Parliament.
5.8 It would be possible to design a referendum with more than one option, to give Scottish electors the choice between independence, the status quo, and significant additional devolution. However, there is not a sufficiently well developed proposal for further devolution to make such a multi-option referendum a realistic proposal at this stage. The design of such a referendum would also raise technical issues on how support for each option is to be judged - for example, whether there would be ranking of options. Despite these considerations, proposals for a multi-option referendum might well be developed into a feasible option during the national conversation.
5.9 As far as legislative competence is concerned, a referendum could be held under the authority of an Act of the Scottish Parliament, depending on the precise proposition in the referendum Bill, or any adjustments made to the competence of the Parliament before the Bill is introduced. Legislation for a referendum could also be passed by the United Kingdom Parliament, most likely consulting the Scottish Parliament for its views. The Act could make detailed provision for the holding of a referendum, setting out the question and other arrangements, or could give Scottish or United Kingdom Ministers powers to bring forward secondary legislation with these details at a later date. A further possibility would be to set up a mechanism similar to that in the Government of Wales Act 2006 that would empower the Scottish Parliament and Scottish Government (or the Parliament alone) to call for a referendum at a time of its choosing, rather than relying on Scottish or United Kingdom Ministers to bring forward proposals. An illustrative draft Bill is described in the text box, and attached at Annex B.
5.10 Unless legislation makes different provision, a referendum proposition is normally taken as agreed to if it receives a simple majority of votes, that is 50% plus one. Some referendums set a higher threshold, for example by requiring a higher percentage of votes in favour or (as in the Scottish devolution referendum in 1979) by requiring a certain percentage of those entitled to vote. While the issues raised by a referendum on independence could be seen as more significant than previous referendums, the purpose of the referendum is to allow the Scottish people to express their view. A higher threshold could obscure the clarity of the outcome and could be seen as an arbitrary device to frustrate their will, like the threshold adopted in the 1979 devolution referendum.
5.11 It has been suggested that there might be two referendums: on the principle of independence, to give the Scottish Government authority to negotiate; and following Acts of Independence being passed by the Scottish and United Kingdom Parliaments. A second referendum would recognise the significance of the decision for Scotland to become independent and allow the people of Scotland the final say on the matter. On the other hand, there are strong arguments against such an approach. One referendum on the principle of independence could give the Scottish Parliament and Scottish Government sufficient clarity and confidence that the people wish Scotland to become an independent state. The prospect of a further referendum could reduce the certainty of the choice facing the people at the referendum, and reduce the impact of the decision that the people make. As a democratically representative legislature, the Scottish Parliament could carry forward the people's will to conclude the arrangements to deliver independence.
Draft Bill for a referendum
1. The form and content of a referendum would depend on the proposition to be put to the people of Scotland, and would in itself be a matter for debate. At Annex B is a draft Bill to illustrate the form that the legislation would take for a referendum held to establish whether the Scottish people agree to authorise the Scottish Government to negotiate terms for Scottish independence with the Government of the United Kingdom.
2. The proposition in the draft Bill is:
The Scottish Government should negotiate a settlement with the Government of the United Kingdom so that Scotland becomes an independent state.
This proposition is intended to make clear that the new settlement is not simply about transferring further powers to the Scottish Parliament and the Scottish Government, but would involve full independence for Scotland. This is intended to provide a clear view from the Scottish people on the principle of independence as well as an explicit mandate to negotiate. The draft Bill assumes that a simple majority would be required.
3. The competence of the Scottish Parliament to legislate for a referendum would depend on the precise proposition in the referendum Bill, or any adjustments made to the competence of the Parliament before the Bill is introduced. At present the constitution is reserved, but it is arguable that the scope of this reservation does not include the competence of the Scottish Government to embark on negotiations for independence with the United Kingdom Government. Legislative action at both Holyrood and Westminster would be required to effect independence for Scotland or to transfer substantive responsibility for reserved matters.
4. The draft Bill also contains provisions on, or powers to set:
- the timing of the referendum;
- who is entitled to vote; and
- the detailed rules for the conduct of the referendum, from the start of the campaign to the vote and the declaration of the result.
5. In the Scottish devolution referendum in 1997 entitlement to vote was based on residence in Scotland, which is the same as for local government elections. The draft Bill follows this model and does not attempt to define categories of people resident outside Scotland eligible to vote in the referendum, nor to exclude any people resident in Scotland from the poll. The draft Bill envisages an independent Scotland based on the territorial and political entity of Scotland, not on place of birth, or ethnic group.