Independence and Secession (L20) Flashcards
What is a s30 order?
A s30 Order may make any changes to SA98 Sched4 or Sched5 which are expedient.
A s30 Order requires the consent of both Houses of Parliament and the Scottish Parliament.
How did the Scottish Government ensure the 2014 referendum was lawful?
In 2012, in the Edinburgh Agreement, the UK and Scottish Governments agreed that there should be an IndyRef that was “fair, legal and decisive”.
A s30 Order was accordingly made, but it was time-limited (its authority lapsed at the end of 2014).
On the basis of the s30 Order, Holyrood passed the legislation required to hold the IndyRef.
Which case is useful in determining if Scotland has a legal right to self-determination?
Quebec Secession Reference (1998).
Could the Scottish Parliament enact law for a second IndyRef without Westminster’s consent?
Would have to satisfy the tests set out in SA98 (Imperial Tobacco).
Would have to comply with Convention rights (cf Moohan).
Could not relate to reserved matters.
- Purpose?
- Effect?
Could not modify, impose or affect the ability of the UK Parliament to make law for Scotland (SA98, s.28(7); Continuity Bill Reference, UNCRC Bill Reference).
Would an Indyref Bill relate to reserved matters?
SA98, Sched5, Part 1, para1 reserves the following to the UK Parliament: “aspects of the constitution” including “the Union of the Kingdoms of Scotland and England”.
Purpose:
To determine the opinion of the Scottish people?
To pave the way for a freshy negotiated constitutional settlement for Scotland?
To bring the Union to an end?
Effect:
Legal effect?
See R (Miller) v Sec of State [2017] UKSC 5, paras 116-25.
(e.g. “the referendum of 2016 did not change the law… That in no way means that it is devoid of effect. It means that, unless and until acted upon by Parliament, its force is political rather than legal” (para 124)).
