Introduction

This week saw the introduction in the Scottish Parliament of the Referendums (Scotland) Bill following the First Minister’s statement to Parliament last month that she intended to seek another vote on Scottish independence before 2021. The Scottish Government’s intention is that the Bill will receive Royal Assent and become law by the end of this year. Introducing the Bill at Holyrood, Mike Russell, Cabinet Minister for Government Business and Constitutional Affairs said:

The bill provides a legal framework for holding referendums on matters that are now, or in future, within the competence of the Scottish Parliament. … It brings Scotland into line with the UK, where there is already standing legislation for referenda through the Political Parties, Elections and Referendums Act, which Westminster passed in 2000”.

What the Bill does not do

Commentators have described the Bill as a “framework bill” because the Bill does not set out specific plans for a second independence referendum. Instead, it creates a framework for the holding of Scottish referendums, including on the technical aspects of holding a referendum. Referendums per se have never been a reserved matter and the Bill, if passed, would otherwise empower the Scottish Ministers to hold Scottish referendums (so long as they are otherwise within the legislative competence of the Scottish Parliament).

What the Bill does

The Bill empowers the Scottish Ministers to use secondary legislation to hold referendums throughout Scotland. The question put by any future referendum, as well as the date and campaign period, would all be specified in any such secondary legislation.

The delegation of power to the Scottish Ministers to set the terms of any future referendum by secondary legislation was the subject of early controversy when the Bill was introduced. Ordinarily, at Westminster, a Government plan to hold a referendum requires to be implemented by Act of Parliament. While the regulations made under the Bill would be subject to the affirmative procedure, Parliamentary scrutiny would be more limited since the only option open to MSPs would be to confirm or refuse approval.

The Bill also sets out the rules for voting (including the franchise), as well as rules for the conduct of the poll. It provides for campaign rules to regulate campaigning at the referendum, including the limits of spending by, and donations given to, participants in referendum campaigns.

Can the Scottish Parliament do this?

As required by section 32(2) of the 1998 Act, the introduction of the Bill was accompanied by a statement by the Presiding Officer on the legislative competence of the Scottish Parliament. He concluded that the Bill was within competence. While the Bill does not state that the Scottish Ministers’ power to hold Scottish referendums would be limited to matters within the devolved competence of the Scottish Parliament, it does not need to. In terms of section 101(2) of the 1998 Act, the legislation is to be read as narrowly as is required for it to be within competence. This means that the power has to be read to the effect that it is limited to holding Scottish referendums only on matters within devolved competence.

On the horizon

The Bill itself may be within the Scottish Parliament’s legislative competence but that is not a complete answer to the legislative competence question. As noted above, the Bill states that the power to hold Scottish referendums would be delegated to the Scottish Ministers and exercisable by them through making regulations. That may be the subject of further debate.

In the event that the Bill is passed in its current terms, there will no doubt be further questions as to whether any future regulations made under the Act are themselves within legislative competence. In his statement to Parliament, Mr Russell re-stated the Scottish Government’s intention to negotiate a further section 30 order with the UK Government in order to permit the Scottish Government a temporary permission to legislate for and hold a further Scottish referendum. In the event that regulations were passed prior to the necessary section 30 order being made and subject to such an order being made, there may be a question of legislative competence at that stage. While the UK Supreme Court has confirmed that the Scottish Government has a “prospective competence” to legislate in a manner which is incompatible with EU law (provided such legislation does not come into force until such time as the relevant provision of EU law has been repealed), there remains open a question about whether the Scottish Parliament also has a prospective competence in relation to reserved matters. As we said previously, that is a constitutional battle for another day.