Conclusions and recommendations
Introduction
1. 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.
(Paragraph 6)
The effect of a referendum
2. 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. (Paragraph 11)
3. 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. (Paragraph 12)
4. 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. (Paragraph 13)
The Legislative competence to hold a referendum
on separation
5. It
is important to realise that the question of legislative competence
is not simply a technical legal consequence of the way in which
the legislation setting up the Scottish Parliament was drafted.
It was the clear policy intention of the Government, as it confirmed
to Parliament during the passage of the legislation. More important,
this intention was set out in the White Paper, Scotland's Parliament,
published in 1997, on which the referendum to decide on devolution
within the United Kingdom was based. The White Paper explained
that many important domestic issues were to be devolved to the
Scottish Parliament. It made equally clear, however, that the
constitution of the UK was to be reserved to Westminster. The
proposals in that referendum were overwhelmingly approved by the
electorate: in a turnout of over 60%, three quarters of those
voting supported this allocation of powers. Seeking to act to
legislate beyond these powers, therefore, is not only illegal,
but acting contrary to the clearly expressed decision of the Scottish
people. (Paragraph 15)
6. In our view, the
argument about legislative competence is, for a dispute among
lawyers, a remarkably clear and simple one. While the UK Government
has set out its argument very openly, it is striking that the
Scottish Government has offered no legal analysis in support of
its assertions. The Scottish people voted in 1997 to reserve to
the UK legislation relating to the constitution, and so a referendum
about the Union clearly relates to a reserved matter. This cannot
be circumvented by drafting a contrived question—which pretends
to be about something else but is still a referendum on separation.
Nor do we find at all plausible or in the slightest convincing
the argument (on which the Scottish Government themselves do not
seem to rely) that a referendum is simply "advisory"
with no real effect. The truth is quite the opposite. It would
be a momentous decision about the future of our country. (Paragraph
38)
7. It is also significant
that the legal analysis we have heard relates not only to the
question of separation, but to the question of more devolved powers.
That too is a constitutional matter which the Scottish people
agreed should be reserved to Westminster. It is clear that a referendum
under an Act of the Scottish Parliament cannot decide whether
that Parliament should have more powers. (Paragraph 39)
The scope for a section 30 order
8. For
these reasons, we agree with the UK Government that any residual
legal doubt should be removed, and although Westminster legislation
is free of legal doubt we agree that a section 30 Order is the
better way to do so, as it allows the Scottish Parliament as well
as the UK Parliament a decisive say in the process. It is highly
desirable that both Governments and Parliaments should agree the
legislative basis for any referendum, so as to reduce the scope
for either side of the argument to claim afterwards that the process
was in any way unfair or unbalanced. (Paragraph 49)
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