Constitutional Law Update: Introduction of the Referendums (Scotland) Bill

The Scottish Government has published legislation which would lay out the rules for any referendum to be held in Scotland, which was within the competence of the Scottish Parliament.

The new Bill – the Referendums (Scotland) Bill – sets out provisions relating to various technical and administrative matters connected to the holding of referendums in Scotland, including:

• A power for the Scottish Ministers to make regulations to allow a referendum to be held (with such regulations specifying the date of the referendum and the form of question or questions to be asked);

• Details of the franchise for a referendum (including any person over the age of 16);

• Provisions for the manner of voting; and

• Rules in relation to campaigning.

The Scottish Government has stated that the objective of the Bill is to ensure that any future referendum in Scotland maintains the high standards achieved by the conduct of the referendum on Scottish independence held in September 2014. The 2014 referendum was provided for by two standalone pieces of legislation, the Scottish Independence Referendum Act 2013 and the Scottish Independence Referendum (Franchise) Act 2013, but there are no other provisions for holding referendums on issues devolved to the Scottish Parliament.

From a political perspective, the announcement of the Bill was accompanied by statements from the First Minister, Nicola Sturgeon, which connected the Bill to the matter of a further referendum on the issue of Scottish independence in light of the ongoing constitutional questions being raised by Britain’s proposed exit from the European Union.

As it stands, the Scottish Parliament does not have the competence to hold a further referendum on that issue, as it would require an Order to be obtained under section 30 of the Scotland Act 1998. Whether such an Order would be obtained remains a matter of contention between the Scottish and UK Governments.

However, if the Bill is passed by the Scottish Parliament it will provide a framework for the conduct of any future referendum to be held, and in theory could be used to hold a referendum on any matter already within the devolved competence of the Scottish Parliament.

The Scottish Government has said that it hopes the Bill can be passed by the Scottish Parliament by end of 2019. Given the Bill’s connection to the highly political matter of a second independence referendum, and the ongoing constitutional questions being raised by the Brexit process, it remains to be seen whether this timeframe can be achieved. It is clear that constitutional law experts will be keeping a close eye on the passage of the Bill through Parliament, particularly in the current political context.