affiliated to the International Association of Constitutional Law
The debate over the legality of a Scottish referendum appears to be over. The media are reporting that the Scottish and Westminster governments are on the verge of agreement, using a section 30 order to mandate the Scottish Parliament’s referendum legislation. The Scottish Parliament will get to set the question, the timing, and be able to determine whether 16 and 17 year olds get to vote. The Westminster government, in its turn, has ensured that there will be a single question on the ballot paper – no devo-max or devo-plus. Each side avoided a long and costly battle through the courts, which will please the taxpayer and disappoint lawyers.
The conclusion of the question over the legality of the referendum does not end the constitutional questions surrounding the vote. Whether the vote is won or lost, further constitutional issues will be raised by the decision. If Scotland votes for independence, a complicated and, probably, protracted process of negotiation will be required between Scotland and the remainder of the UK. It would be helpful if the parameters of this process – both the way it would be undertaken and the issues that it would have to resolve – were canvassed before the vote. Scotland would also need to produce its own constitution prior to formal independence. Again, the process by which this new constitution would be created merits reflection. If, on the other hand, Scotland votes against independence, there would need to be some constraint over the frequency of such referendums in the future. It would be profoundly destabilising for the Union if independence referendums were held every couple of years. Once more, there would be an advantage to clarifying this issue before the vote is held.