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Scotland's Constitutional Future Scotland’s constitutional future A consultation on facilitating a legal, fair and decisive referendum on whether Scotland should leave the United Kingdom Scotland’s constitutional future Presented to Parliament by the Secretary of State for Scotland by Command of Her Majesty January 2012 CM 8203 £8.75 © Crown copyright 2012 You may re-use this information (excluding logos) free of charge in any format or medium, under the terms of the Open Government Licence. To view this licence, visit http://www.nationalarchives.gov.uk/doc/open-government- licence/ or e-mail: [email protected]. Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned. Any enquiries regarding this publication should be sent to us at [email protected] This publication is available for download at www.official-documents.gov.uk This document is also available from our website at www.scotlandoffice.gov.uk ISBN: 9780101820325 Printed in the UK by The Stationery Office Limited on behalf of the Controller of Her Majesty’s Stationery Office ID 22445678 01/12 Printed on paper containing 75% recycled fibre content minimum. Scotland’s constitutional future CONTENTS Preface 5 Foreword 6 1. Executive summary 7 2. The Scottish Government’s proposals 8 3. Delivering a referendum 10 A legal referendum 10 Options for legislation 12 A fair referendum 15 A decisive referendum 18 4. Summary of consultation questions 20 5. Consultation information 21 Annex A – A draft Order 22 4 Scotland’s constitutional future PREFACE We believe passionately in the United Kingdom and recognise the benefits it has brought to all of its citizens. For over 300 years the United Kingdom has brought people together in the most successful multi-national state the world has ever known. We want to keep the United Kingdom together. But we recognise that the Scottish Government holds the opposite view. In May 2011, the Scottish National Party won a majority in the Scottish Parliament; this was a significant electoral victory, which the UK Government has openly acknowledged. The Scottish National Party entered the May 2011 election with a manifesto pledge for a referendum on independence. They have campaigned consistently for independence, and while the UK Government does not believe this is in the interests of Scotland, or the rest of the United Kingdom, we will not stand in the way of a referendum on independence: the future of Scotland’s place within the United Kingdom is for people in Scotland to vote on. However, if there is to be a referendum, it must be legal, fair and decisive. At the moment, there is great uncertainty about the Scottish Government’s proposals for a referendum. We do not know when a referendum will happen, or what question will be asked. Most importantly, the UK Government has grave concerns that the Scottish Government’s proposals for a referendum would not be lawful. People in Scotland deserve clarity about how Scotland’s future will be decided. That is why the UK Government is publishing this consultation today. This consultation sets out options by which the UK and Scottish Governments can remove the legal barriers to holding a referendum while ensuring that its question, conduct and outcome are fair to those on each side of the debate and to all Scottish voters. The future of Scotland must not be worked out in secret, behind closed doors. We want to hear the views from people in Scotland on how a referendum should be delivered. Ending Scotland’s place within the United Kingdom is not the policy of the UK Government, but we owe it to everyone in Scotland to ensure that the referendum is delivered in a legal, fair and decisive way. Rt Hon. David Cameron MP Rt Hon. Nick Clegg MP Prime Minister Deputy Prime Minister 5 Scotland’s constitutional future FOREWORD Scotland makes a huge contribution to the United Kingdom: culturally, economically and through the numerous Scots who have led the UK in the fields of politics, business, academia and sport. Scotland benefits enormously from being part of the United Kingdom: economic strength, international influence, shared security and through the pooling of resources and risk. The Coalition Government is firmly committed to Scotland’s ongoing place in the UK. In this commitment we are not alone, but others, particularly the Scottish Government, take a different view. Following the Scottish Parliament elections in May last year, the Scottish Government has made clear its intention to hold a referendum on independence. To do so it is necessary for the Scottish Parliament to have the legal power to legislate, and authorise spending arrangements, for such a referendum. It is the view of the UK Government that the Scottish Parliament does not have that legal power. We have been asking the Scottish Government to explain its position since May last year, but the Scottish Government has not set out a formal view on the issue of legal competence nor come forward with any further proposals for a referendum. By contrast, the UK Government is clear in its understanding that the Scottish Parliament does not have the legal authority to hold an independence referendum. That is not to say that the UK Government wishes to put obstacles in the way of a referendum. Quite the reverse, we firmly believe that we must explore the appropriate ways in which we can put beyond doubt the legal authority to hold a referendum on independence. We want to assist people in Scotland, in all reasonable ways, to participate in a referendum “Made in Scotland”, whose outcome is legal, fair and decisive. A decision on whether or not Scotland should become independent is such an important one that it should be settled by people in Scotland. We think it is in nobody’s interests (whether for or against independence) to have a referendum process subject to legal challenge with all of the delay and uncertainty that would entail, and we are optimistic that we can reach a conclusion that will be fair and legitimate to both sides of the debate and people in Scotland as a whole. This consultation paper sets out the UK Government’s views on the issues in the referendum process which need to be addressed, and offers proposals on how to address them. We look forward to a full public debate on these issues in the coming weeks, irrespective of our views on Scotland’s future. People in Scotland can then get on with the main debate about Scotland’s place in the United Kingdom, rather than remaining in limbo about the process for making that decision. Rt. Hon Michael Moore MP Secretary of State for Scotland 6 Scotland’s constitutional future 1. EXECUTIVE SUMMARY This consultation document discusses how to deliver a referendum that is legal, fair and decisive. Information on how to respond to the consultation is set out in section 5. Legal The Scottish Government is aware of the limits of its powers. It acknowledged those limits in 2007. Since the Scottish National Party’s success in May 2011, the Scottish Government has provided no new explanation of how it would deliver its manifesto commitment to hold a referendum, despite the limits to its power. In the absence of new information, the UK Government has considered the proposals put forward by the Scottish Government in February 2010. Those proposals cannot be legally delivered by the Scottish Parliament. The Scottish Parliament only has power to legislate on matters that are devolved and has no power to legislate on matters that are reserved to the UK Parliament. The Union of the Kingdoms of Scotland and England is one of those reserved matters. In our view legislation for a referendum brought forward by the Scottish Government would likely be challenged in court and the Scottish Government would lose. The UK Government does not believe that it is in Scotland’s interests to have Scotland’s constitutional future decided in court. The referendum must be legally watertight – there must be no doubt that it is lawful. That certainty can only be provided by legislation involving the UK Parliament; although as this paper sets out, this could be done in different ways and the UK Government could devolve power to the Scottish Parliament to enable it to deliver a fair and decisive referendum. Fair Legislation in the UK Parliament would provide a clear legal basis for the referendum. But as well as being legal, the referendum must be fair. For the referendum to be fair, the rules about the referendum and the oversight of the referendum must be manifestly and overtly above board. We cannot allow the possibility that the result of the referendum is questioned, because the rules were considered unfair. The referendum should be overseen by those who have both the demonstrable neutrality and proven expertise to inspire confidence in the fairness of the process. Decisive The referendum must also be decisive. It is the UK Government’s view that for this to happen, there must be a single, straightforward question; and that question must be asked as soon as possible. We live in uncertain times, with the global economic situation creating challenges for increasing investment and jobs in Scotland. The question of Scotland’s constitutional future is increasing that uncertainty. We can answer that question and at least on this one issue, end the uncertainty. It is irresponsible to allow this question to hang over Scotland, when it is in our power to end the doubts and allow Scotland to move forward with a clear constitutional future. 7 Scotland’s constitutional future 2.
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