The Referendum on Separation for Scotland: making the process legal - Scottish Affairs Committee Contents

 
 

 
1  Referendums in the UK

Introduction

1. In this Report, the third in our series on the Referendum on Separation for Scotland, we consider how referendums are used in the United Kingdom to determine constitutional questions, what their legal significance and basis are, and the implications for a proposed referendum on separation.[1]

2. Many countries use referendums to decide on a range of day to day public policy questions. This has not been UK practice. Nevertheless since the 1970s, when used to decide constitutional questions, referendums have become an accepted part of British political life. The table below shows how often they have been used, [2] what constitutional questions they have decided, and what the legislative basis of each was.

UK referendums (excluding local referendums) since 1973
Referendum Question  Answer Format  Result Legislative basis  
"Border poll" Northern Ireland

March 1973  

Do you want Northern Ireland to remain part of the United Kingdom?

Or

Do you want Northern Ireland to be joined with the Republic of Ireland outside the United Kingdom?  

Tick box

Tick box  

Northern Ireland remained part of the United Kingdom.  Northern Ireland (Border Poll) Act 1972  
Membership of the European Community UK

June 1975  

Do you think that the United Kingdom should stay in the European Community (the Common Market)?  Tick YES box or
NO box  
The UK remained in the European Community.  Referendum Act 1975 
Devolution to Scotland

March 1979  

Do you want the provisions of the Scotland Act 1978 to be put into effect?  Tick YES box or
NO box  
Devolution did not proceed as the requirement that 40 per cent of the electorate had to vote "Yes" was not met  Scotland Act 1978 
Devolution to Wales

March 1979  

Do you want the provisions of the Wales Act 1978 to be put into effect?  Tick YES box or
NO box  
Devolution did not proceed.  Wales Act 1978 


Referendum Question   Result  Legislative basis  
Devolution to Scotland

September 1997  

I agree that there should be a Scottish Parliament

or

I do not agree that there should be a Scottish Parliament.  

Tick box

Tick box  

The Scottish Parliament was established.  Referendums (Scotland and Wales) Act 1997  
 I agree that a Scottish Parliament should have tax-varying powers

or

I do not agree that a Scottish Parliament should have tax-varying powers.  

Tick box

Tick box  

The Scottish Parliament was given tax-raising powers.   
Devolution Wales

September 1997  

I agree that there should be a Welsh Assembly

or

I do not agree that there should be a Welsh Assembly.  

Tick box

Tick box  

The Welsh Assembly was established.  Referendums (Scotland and Wales) Act 1997  
Greater London Authority London

May 1998  

Are you in favour of the Government's proposals for a Greater London Authority, made up of an elected mayor and a separately elected assembly  Tick YES box or
NO box  
The Greater London Authority was established.  Greater London Authority (Referendum) Act 1998  


Referendum Question   Result  Legislative basis  
Belfast Agreement Northern Ireland

May 1998  

Do you support the Agreement reached at the Multi-Party Talks in Northern Ireland and set out in Command Paper 3883?  Tick YES box or
NO box  
Community consent for continuation of the Northern Ireland peace process on the basis of the Belfast Agreement was given.  Northern Ireland (Entry to Negotiations etc) Act 1996  
Elected Regional Assembly North East of England

November 2004  

Should there be an elected assembly for the North East region?  Tick YES box or
NO box  
The Elected Regional Assembly for the North East was not established.  Regional Assemblies (Preparations) Act 2003  
Legislative powers of the Welsh Assembly

March 2011  

Do you want the Assembly now to be able to make laws on all matters in the 20 subject areas it has powers for?  Tick YES box or
NO box  
The Assembly now has these powers  Government of Wales Act 2006  
Electoral Reform May 2012  At present, the UK uses the "first past the post" system to elect MPs to the House of Commons. Should the "alternative vote" system be used instead?  Tick YES box or
NO box  
The parliamentary voting system was not changed  Parliamentary Voting System and Constituencies Act 2011  

3. There is no legal rule about what issues should be the subject of referendums, and there has been criticism that Governments have resorted to calling referendums as a tactical device. Nevertheless the House of Lords Constitution Committee was able to conclude that: "if referendums are to be used, they are most appropriately used in relation to fundamental constitutional issues".[3] Among their examples of fundamental constitutional issues, that Committee included: "For any of the nations of the UK to secede from the Union".[4]

4. The witnesses who appeared before us broadly agreed. Professor John Curtice, of Strathclyde University, thought there was a "de facto convention that any constitutional change in the UK requires to be legitimated by a referendum".[5] Professor Vernon Bogdanor's view was that there was "a strong argument of principle for having referendums on these matters because the opinion of the people may not be the same as the parties which represent them."[6]

5. Questions of separation and national status, such as devolution, are clearly often seen as suitable for referendums internationally. Dr Matt Qvortrup, of Cranfield University, referred in his evidence to "222 referendums since Napoleon dealing with national issues".[7] By "national issues", he meant a question of separation or more autonomy.

6. No witness argued that Scotland should be able to separate from the UK without a referendum. We agree that if Scotland is to separate from the UK is should only do so if that is the decision of the Scottish people in a referendum.

The effect of a referendum

7. There was some confusion in the evidence we heard as to whether the result of a UK referendum was 'advisory' or 'binding'. This distinction as explained by Professor Stephen Tierney, of the University of Edinburgh's School of Law, was the difference between "a legal obligation to abide by the result and a political commitment."[8]

8. Whether a referendum is formally legally binding in that sense will depend on the structure of the legislation which enables it. Professor Curtice gave the example of the Parliamentary Voting System and Constituencies Act 2011, which was legally binding in the sense that "the relevant clauses [on changing the voting system] [...] would come into effect if there was a positive vote in the referendum".[9] As Professor Tierney acknowledged, no referendum was ever wholly binding; Parliament could always repeal the legislation creating the obligation. By contrast the first referendum on European issues in 1975 had no direct legal effect, though the Government made clear that it would see itself as bound by the result, and it was agreed by all concerned that the referendum was to decide whether the UK remained in the Common Market.

9. However, for present purposes, this is a distinction without a difference. All referendums are advisory in the sense that legislators could ignore the result or reverse the result by passing a law. But they do not: and none of our witnesses argued that governments would or should be able to ignore the outcome of a referendum because it was only 'advisory'. As Professor Curtice put it, a referendum on independence would be "advisory in the technical sense but […] both sides would regard it as binding on them politically."[10]

10. Only Professor Bogdanor qualified this. He though that Parliament might have some leeway to consider what should be done if a referendum produced a result only by a very small margin on a very low turnout.[11]

11. A referendum decides the issues that Parliament (or the Scottish Parliament) has put to the people for decision. We agree that a referendum vote should be decisive on whether or not Scotland remains part of the UK. A number of consequences, however, follow from this.

12. First, voters should be told clearly that if the vote is in favour of separation, Scotland will cease to be part of the United Kingdom. The referendum is not 'consultative' in the sense that separation might or might not follow. All previous referendums in the UK have decided the matter put to the voters, and so will this one.

13. Secondly, because a referendum will decide the matter, it is of the greatest importance that it is, and is seen to be, scrupulously fair and that the processes leading up to it are accepted by both sides of the constitutional argument. There must be no scope for either side to cry 'foul' after the result is announced. As we said in our previous Report on this subject, this is significant for the wording of the question to be put to the voters, but it affects other issues, to which we shall return in later Reports.


1   See also Sixth Report of Session 2010-12, The Referendum on Separation for Scotland: Unanswered questions, HC 1806, and Eighth Report of Session 2010-12, The Referendum on Separation for Scotland: Do you agree this is a biased question?, HC 1492 Back

2   Adapted from House of Lords, Twelfth Report of the Select Committee on the Constitution, Session 2009-10, Referendums in the United Kingdom, HL Paper 99 Back

3   Twelfth Report of the Select Committee on the Constitution, Session 2009-10, Referendums in the United Kingdom, HL Paper 99, para 94 Back

4   Ibid. Back

5   The Referendum on Separation for Scotland: Oral and written evidence, Session 2010-12, HC 1608, Q 259 Back

6   Ibid. Back

7   HC 1608 Q 667 Back

8   HC 1608 Q 198 Back

9   HC 1608 Q 261 Back

10   The Referendum on Separation for Scotland: Oral and written evidence, Session 2010-12, HC 1608, Q 261 Back

11   HC 1608 Q 262 Back


 

 
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Prepared 7 August 2012