HLE blogger Simon Hetherington delves into the legality of the Scottish referendum
"I should probably preface these observations with a brief statement of interest, to wit: English, with a more than passing interest in both Scots and English law and their legal systems; broadly in favour of the maintenance of the UK, and therefore broadly opposed to Scottish independence. The UK, I believe, benefits greatly from the fact of two legal systems, despite the constitutional complexities that this occasions.
Those complexities will be to the fore in the near future. As a Scottish referendum draws closer, the validity of treating that referendum as authority to determine national policy will be much questioned. In any context, the mandate given by a referendum is usually subject to interpretation; here, there is even more room for controversy.
The position under the Scotland Act 1998 (SA 1998) is essentially that the Union of Scotland and England is a matter reserved for Westminster. Now, it seems pretty plain that, whatever the outcome of a referendum of Scottish electors held by Holyrood, it would not be legally binding on the UK Parliament. It might even be possible to argue that merely holding the referendum is beyond the legitimate exercise of functions conferred by SA 1998. That is probably an argument too many—but my purpose here is to demonstrate that all is not simple.
SA 1998 is not a written constitution. Like any other Act it is subject to repeal, amendment and modification at the decision of Parliament. SA 1998 is massively important, and is the alpha and omega of the Scottish Parliament; but it is not the basis on which Scotland is governed. In some respects at least, there must be considered to be a higher law. The constitution of Scotland, both in its unique aspects and as part of the UK, rests on a weave of convention and law from many sources...”
To continue reading go to: www.halsburyslawexchange.co.uk
