Closing down debate

I read across at SNP Tactical Voting that some Labour activists have enlisted the help of a Lawyer, with a view to derailing any discussion of a referendum on Scottish independence in the Scottish Parliament. Not a good move, not a good move at all. The powers of the Scottish Parliament are one thing. The legal and constitutional position of devolution is another thing. Attempting to stymie legitimate political debate is something entirely more sinister.

There is absolutely nothing in the Scotland Act 1998, or the Standing Orders of the Scottish Parliament, which prevent debate on issues outside the legislative competence of the Scottish Parliament. Indeed, such debates have been conducted before c.f The debates on the Iraq War in 2004, Trident in December 2006 and more recently a Private Members Debate on the Glasgow Passport Office. There are many more besides.

Similarly, the Scottish Parliament and Government can set up as many enquiries/commissions and conversations on issues (reserved or devolved) as it likes, without contravening the principles and reservations of Schedule 5 of the Scotland Act 1998 - which are primarily concerned with. As Schedule 4(2)(1) of the Scotland Act 1998 states: An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, the law on reserved matters.

The key issue being "legislative competence" or the ability to pass laws on the "Specific Reservations" listed in Schedule 5 of the Act. (Incidentally this seemingly minor caveat - or legal technicality - is all that separates Scotland from independence!)

Perhaps a technicality with respect to the paragraph above is that any inquiries/commissions/conversations would require public money out of the Scottish Consolidated Fund (SCF) to be enabled. The law on this is quite clear and is dealt with by subsection 2 of section 65 of the Scotland Act 1998 where funds are payable out of the SCF for: (a) meeting expenditure of the Scottish Administration,

(b) meeting expenditure payable out of the Fund under any enactment.

If these commissions/inquiries/conversations were matters arising out of (b) (ie requiring legislative approval) then they clearly would be outside the legislative competence of the Scottish Parliament. But this is not the case for (a) where they would be considered as part of the expenditure of the Scottish Administration, not requiring legislative approval.

What we can all be in agreement on, however, is that the Scottish Parliament has no ability legislate for independence. But no-one has ever seriously considered that anything other than that has ever been the case. I don't see a consulatative referendum stumbling over that pitfall either.