Annex B: draft legislation
The people of Scotland have the right to determine the form of government best suited to their needs. The Scottish Government believes that the law should reflect this.
The Scottish Government also believes that when the people of Scotland are invited to make a choice about their future, they should do so understanding what the consequences of their vote would be; and with a guarantee that any vote to become independent would be respected and acted upon by the UK Government.
The experience of the EU referendum has demonstrated some of the risks involved in inviting a vote on a significant constitutional proposition without setting out in advance the consequences of a vote for change. The Scottish Government has therefore prepared the legal provisions that, in its view, would best give effect to both the principle that it is for the Scottish Parliament to determine whether and when any vote on Scottish independence is held, and give effect to the principle that should the people of Scotland vote in a referendum for independence, Scotland would have the right to prepare itself for independence.
Recognising Scotland’s right to choose
This provision would place in statute a recognition of the principle set out in the Claim of Right 1989: that it is for the people of Scotland to decide the form of government best suited to their needs.
This provision would be amended into the Scotland Act 1998, alongside other constitutional provision relating to Scotland. It would, as a result, sit alongside the provision respecting the permanence of the Scottish Parliament and Government. Part 2A of the Scotland Act would then provide that the Scottish Parliament and Government cannot be abolished without a referendum being held, and contain an affirmation of the people of Scotland’s right to self-determination. Both statements would complement each other, as expressions of the right of the people of Scotland to determine their constitutional future.
The power to hold an independence referendum
These provisions would put beyond doubt that the Scottish Parliament has the competence to legislate for a referendum on the subject of Scottish independence.
Schedule 5 of the Scotland Act 1998 sets out the matters reserved to the UK Parliament, and therefore outwith the competence of the Scottish Parliament. This includes certain aspects of the constitution. This amendment to Schedule 5 of the Scotland Act would clarify that this reservation does not include the holding of a referendum on Scottish independence.
This amendment could be made in either an Order in Council under section 30 of the Scotland Act, as was done for the 2014 referendum, or by an Act of the UK Parliament. The section 30 Order passed for the 2014 referendum contained conditions as to its conduct and timing. Any conditions which the governments agreed for the transfer of power over the holding of a referendum could be included in either a Section 30 Order or an Act, as required.
Further reserved provision relating to the conduct of the referendum would be required, as it was for the referendum held in 2014, such as providing for referendum campaign broadcasts.
Recognising the UK as a voluntary association of nations
These provisions are designed to only become legally effective should there be a vote in a referendum by the people of Scotland for Scotland to become independent, and the period for challenging the referendum result had expired. They would therefore provide, in advance, for the immediate legal consequences of any vote for independence.
These provisions would require the Scottish Government and the UK Government to work together in the interests of the people of Scotland and the rest of the UK respectively, to ensure that any vote by the people of Scotland to become independent is given effect to. It would be in the interests of Scotland and the rest of the UK that the responsibilities of each government in the event of a vote for Scottish independence are clear and understood.
These provisions would also, in the event of the people of Scotland voting for Scotland to become independent, transfer competence to make preparations for independence to the Scottish Parliament and Government and to public authorities more widely. This would enable the bulk of the preparations required for Scotland to become independent to take place in Scotland. It would also enable the debate about how best to approach these preparations to take place in Scotland and to begin shortly after any vote to become independent.
Much of the legislative preparation for independence required would not have to come into effect until independence, but these provisions allow for some preparations to take effect earlier where this would be appropriate.
The UK Parliament would retain the ability to legislate for Scotland and the UK Government would retain the ability to act in Scotland during the transition to independence.
Some legislative preparation for independence would be necessary in the UK Parliament. The removal of Westminster’s ability to legislate for Scotland, for example, would not occur until the point of independence itself, and would require Westminster legislation.