Hooray! for Holyrood or
Alex Salmond loses once again
Scottish independence referendum: Holyrood ‘has no power to hold vote on independence’
no power no power
no power no power
“The UK government’s legal view is that the Scottish Parliament has no power to deliver a referendum on independence. It does not matter whether such a referendum is described as advisory, consultative or providing a basis for negotiations. The Scottish Parliament has no power to legislate for a referendum on independence.”
27. Thirdly, two of Lord Steyn's descriptionsare worth noting. First, he describes the devolution legislationof 1998 as pointing to 'a divided sovereignty'. It is not at allclear what this means. The Scottish Parliament, created by the Scotland Act 1998, which his Lordship cites, is anything but a sovereign legislature, as the Scotland Act makes abundantly plain. Moreover, the existence of the Scottish Parliament has done nothing to limit the legal power of the Westminster Parliament to legislate for Scotland, even on ostensibly devolved matters: see Scotland Act 1998, section 28(7). The political reality may for the time being be that the Westminster Parliament will not legislate for Scotland on devolved matters without the consent of the Scottish Parliament, but this behaviour results from a political agreement and has nothing to do with the legal principles that Lord Steyn is concerned with. Secondly, he describes the Human Rights Act as having created a "new legal order". This is obvious mimicry of the European Court of Justice, which in 1963 famously described the European Union as having created a "new legal order of international law", a new legal order that dealt with matters of national sovereignty, for example, differently from the way in which they were understood in ordinary international law. Again, however, is his Lordship's terminology not somewhat tendentious? The Human Rights Act seeks to balance Convention rights with parliamentary sovereignty, and seeks to ensure that the sovereignty of Parliament is preserved in the scheme of the Act. It is to be noted that Lord Steyn's dicta in Jackson were subsequently described as '"unargued and unsound", "historically false", and "jurisprudentially absurd" (R Ekins, 'Acts of Parliament and the Parliament Acts' (2007) 123 Law Quarterly Review 91, 103) and, moreover, that Lord Bingham seemed to ally himself with these criticisms in his 2007 Commemoration Lecture delivered at King's College London, in which he stated that Lord Steyn's comments 'did not bear on an issue which had to be decided in the case and therefore have no authority as precedent'.
Section 28(7) of the Scotland Act 1998 for instance makes clear that the Scottish Parliament's legislative power
does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.