The Scottish Referendum

Aidan O?Neill QC of Matrix Chambers has provided some interesting background to the promotion of the Scotland Bill through the House of Lords in 1998, and as to whether or not it was considered at the time to be within the legal competence of the Scottish Parliament to organise a referendum concerning the dissolution of the United Kingdom. This pertains to whether or not an act of the Scottish Parliament can modify or confer power by subordinate legislation to modify laws which relate to so-termed reserved matters.
When promoting the Scotland Bill through the House at the time, Lord Sewell stated that it was the understanding and intention of the UK Government that the provisions on reserved matters would prevent the Scottish Parliament from legislating unilaterally to provide for any independence referendum. Similarly in promoting the Scotland Bill through the House of Commons, the then Secretary of State for Scotland Donald Dewar MP said, in response to three direct questions from MPs on whether or not the Scottish Parliament itself could initiate a referendum on independence, that:
It is clear that constitutional change?the political bones of the parliamentary system and any alteration to that system?is a reserved matter. That would obviously include any change or any preparations for change ?.A referendum that purported to pave the way for something that was ultra vires is itself ultra vires . . . [M]atters relating to reserved matters are also reserved. It would not be competent for the Scottish Parliament to spend money on such a matter in those circumstances.
However, the current SNP-led Scottish administration claims that it would be lawful for the Scottish Parliament to make provisions for an advisory referendum on independence which was not legally binding but would give the Scottish government a political mandate to open independence negotiations with the UK Government.
In a statement to the UK Parliament on 10 January 2011 Michael Moore MP, the Secretary of State for Scotland, stated that it remains the view of the current UK Government ? consistently with the position taken by Donald Dewar MP and Lord Sewel in 1998 ? that the Scottish devolved authorities had no power to legislate for an independence referendum, since its purpose and intended effect would ultimately be to seek to achieve Scottish independence.
As regards the political/moral legitimacy of Westminster intervening in internal Scottish affairs, of the 59 MPs elected from Scotland in the 2010 General elections to the UK Parliament, only 6 were from the Scottish National party, with the remaining 53 of MPs elected from Scotland made up of parties (Labour, Conservative and Liberal Democrats) all committed to the maintenance of the Union between Scotland and England.

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