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UK Government offers to transfer power to Holyrood for independence referendum

The UK Government is prepared to change the law so that the Scottish Parliament can hold a legal referendum on independence, Scottish Secretary Michael Moore announced today. The Government will now consult the people of Scotland on the best way to facilitate a legal, fair and decisive referendum.

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The UK Government is prepared to change the law so that the Scottish Parliament can hold a legal referendum on independence, Scottish Secretary Michael Moore announced today. The Government will now consult the people of Scotland on the best way to facilitate a legal, fair and decisive referendum.

In a statement to the House of Commons, the Secretary of State revealed that the  UK Government’s clear legal view is that any independence referendum which the Scottish Parliament legislated for with its current powers would be unlawful as the constitution is reserved to the UK Parliament under the Scotland Act 1998.

Michael Moore said the UK Government’s strongly held view is that Scotland should remain part of the UK but he told MPs that the 2011 Holyrood election result meant that there should now be a legal, fair and decisive referendum on Scottish independence.

The UK Government has today published a consultation document which looks at the ways in which a legal referendum on independence could be held.  While the document sets out a number of ways that a referendum could be legislated for, Ministers are prepared to use a Section 30 Order from the 1998 Scotland Act to devolve the necessary legal power to the Scottish Parliament. Such an Order requires the approval of the both the Scottish and UK Parliaments. 

The Government is clear that a referendum should be held sooner rather than later and the consultation proposes that the Order gives the Scottish Parliament power to hold a referendum by a specific date:  the Government has not set out a view on the specific date for a referendum in the consultation and invites views on when a referendum should be held. 

The paper also sets out what the Government regards as the essential criteria for a fair and decisive referendum. The Government is now consulting on these important matters with people in Scotland and will also seek the views of the Scottish Government. The consultation seeks views on issues such as:

  • Should there be a single question on independence requiring a straight “yes/no” answer?
  • Should the referendum be run by the Electoral Commission following well established rules?
  • Who should have the vote?
  • What views are there on the timing of the referendum?

Speaking in the House of Commons, Michael Moore said:

“Since last year’s election, we have been asking the Scottish Government to set out its plans for a referendum.  But so far it has not done so. In particular, it has not said anything more about its legal power to deliver a referendum. 

“This is not an issue that can be ducked. To legislate for a referendum on independence, the Scottish Parliament must have the legal power to do so.  It is the Government’s clear view that the Scottish Parliament does not have that legal power.

“Scotland’s future within the UK will be the most important decision we, as Scots, take in our lifetime.  It is essential that the referendum is legal, fair and decisive.  As a Government, we have been clear since May 2011 that we will not stand in the way of a referendum on independence.  But neither will we stand on the sidelines and let uncertainty continue.

“The 1998 Scotland Act is clear.  The Scottish Parliament cannot legislate on matters reserved to this Parliament.  Amongst the issues that are reserved is the constitution, including “the Union of the Kingdoms of Scotland and England”.  Any Act of the Scottish Parliament that “relates to” a reserved matter is quite simply “not law”. Whether or not a Bill “relates to” a reserved matter depends on its purpose and effect.  

“We are clear that the Scottish Government¿s purpose in bringing forward a referendum is to secure independence. Their intended effect is to secure a mandate for negotiating this.  Both purpose and effect relate directly to the reserved matter of the Union. Any distinction between a binding or advisory referendum is artificial.

“As the law stands, an independence referendum bill is outside the competence of the Scottish Parliament.  A bill could be challenged in court and it is our view that the Scottish Government would lose.

“So the consultation paper I am publishing today sets out different ways to deliver a legal, fair and decisive referendum.

“It explains how the powers for a referendum could be devolved under the Section 30 order-making provisions in the Scotland Act 1998 - our preferred approach.  It also invites views on devolving the powers using other legislation, including the current Scotland Bill, and for opinions on the possibility of running the referendum directly.

“Given the clear legal problem that exists, we want to work with the Scottish Government to provide the answer.  This is not about the mandates of Scotland’s two governments, or who calls the shots.  It is about empowering the people of Scotland to participate in a legal referendum.  That means that the UK Government is willing to give the Scottish Parliament the powers to hold a referendum which they otherwise cannot do legally.

“Mr Speaker, this Government believes passionately in the United Kingdom. For over 300 years our country has brought people together in the most successful multi-national state the world has known. This Government is clear that independence is not in the interests of Scotland.  The United Kingdom brings strength to Scotland; Scotland brings strength to the United Kingdom.

“We recognise that this is not a view shared by all.  But politicians from both sides of the debate owe it to everyone in Scotland to ensure that the referendum is delivered in a legal, fair and decisive way. The future of Scotland must not be worked out in secret, behind closed doors.  Nor determined by wrangling in the courts.    It is my task to ensure this referendum is made in Scotland, by the people of Scotland, for the future of Scotland.”

The UK Government has now invited the Scottish Government to hold talks on trying to agree a way forward.

The consultation will run until March 9 after which the UK Government will announce how it intends to proceed.

Published 10 January 2012