Holyrood lacks power to run referendum, say MPs
By Keith Aitken in Edinburgh | 7 August 2012
Westminster must have the final say on the form and conduct of Scotland’s independence referendum, according to a report published today by the Commons Scottish affairs select committee.
The committee, which has no Scottish National Party members, says the opinion of legal and constitutional experts is that Holyrood lacks the necessary devolved powers to conduct the poll. Westminster would have to give the Scottish Parliament authority to run the poll under Section 30 of the Scotland Act (1998), and then police its application, committee chair Ian Davidson said.
He called for what amounts to a Westminster triple-lock on the process: ‘The committee believes that any Section 30 order proposed by the Government should be subject to pre-legislative scrutiny by the Scottish affairs committee and to approval by all of Scotland’s [Westminster] MPs before being proceeded with.’
The report stated: ‘The overwhelming weight of evidence shows that the Scottish Parliament cannot presently legislate to hold a referendum on separation. The Scottish Government has argued that Holyrood is legally competent to set up a referendum, but it has provided no legal justification for this view.
‘Any attempt to conduct a referendum on a dubious legal basis would inevitably be challenged in the courts,’ the report added. ‘This could take years to be resolved and would lead to even further and damaging uncertainty about Scotland's future.
‘It is vital both that any referendum must be conducted on a sound legal footing and that it takes place within an appropriate timescale.’
In response, Bruce Crawford, the Scottish Government’s parliamentary business and government strategy secretary, reiterated the administration’s willingness to proceed by Section 30 order, so as to guarantee the legitimacy of the referendum outcome.
However, he made it clear that Holyrood ministers were not prepared to let Westminster attach strings to the vote.
‘The real issue is that the terms and timing of the referendum must be decided in Scotland, by the Scottish Parliament, not dictated by Westminster,’ Crawford said.
The report says it is ‘highly desirable’ that both governments and both parliaments agree the form of any referendum, to reduce the scope for either side to claim afterwards that the process was in any way improper or unfair.
But neither the suggestion of Westminster supervision nor the robust language of the report – which uses the pejorative term ‘separation’ in place of ‘independence’ – looks likely to bring agreement closer. Crawford claimed: ‘This exercise is devoid of credibility.’