THE Scottish Parliament has the power to hold an independence referendum without Westminster’s consent, according to previously secret UK Government email.
Released by the National Archives today, the panicky message was written by Tony Blair’s special adviser on Scotland just hours before the Labour Government published its devolution plans in 1997.
In it, Pat McFadden said then Scottish Secretary Donald Dewar took the view that a Scottish Parliament could “have a referendum on whatever it likes”, including matters outside its legislative competence.
In an email to Blair’s chief of staff Jonathan Powell on July 22, 1997, McFadden said some Scottish MPs were very scared “that such a referendum could take place” and “about the slippery slope to independence”.
Paisley-born McFadden, who is now a respected Labour MP, asked Blair’s chief of staff Jonathan Powell to find out Blair’s view on the issue as a matter of “urgency”.
Tantalisingly, no reply is included in the Government archive release.
The email, which does not carry the weight of a legal opinion or civil service advice to ministers but is nonetheless intriguing, was written a year before Westminster passed the 1998 Scotland Act which underpins devolution and paved the way for Holyrood.
The debate over whether Holyrood can hold its own vote on independence remains very much a live one because Boris Johnson has repeatedly blocked Indyref2.
Nicola Sturgeon, who wants another referendum by 2024, has said that if the Prime Minister continues to withhold the required powers, she will pass her own Referendum Bill at Holyrood, effectively daring him to challenge it at the UK Supreme Court.
The 1998 Scotland Act gives Holyrood a general power to legislate, except in areas explicitly out of bounds.
Schedule 5 states that the Union is one such area solely reserved to Westminster.
However some legal scholars argue Holyrood could nevertheless hold a referendum to test public opinion on the Union, even if it couldn’t legislate to change it.
Some SNP MPs, including Joanna Cherry QC, also argue this is a credible position.
The issue has never been tested in court.
Ms Sturgeon has said the mutually-agreed, legally watertight arrangement for the 2014 referendum remains the “gold standard” that should apply to Indyref2, but is getting pushed by the PM’s blocking and impatience from inside the SNP to take a unilateral approach.
It is the same issue which McFadden raised in his email two days before Mr Dewar was due to publish the UK Government’s White Paper on Scottish devolution.
Copying in Blair’s private secretary as well as Powell, McFadden said weekend Scottish papers had contained “some speculation over whether the Scottish Parliament would be able to hold a referendum on independence”, what the SNP had dubbed a “glass ceiling”.
McFadden said there was obviously a glass ceiling to a Scottish Parliament because its powers were limited, and sovereignty stayed with Westminster.
“But leave that aside for the moment,” he said. “The issue was never discussed by DSWR [the Cabinet Committee on Devolution to Scotland, Wales and the English Regions].
“It is not referred to in the White Paper.
“The reserved powers model means that the Scottish Parliament will have the power to legislate on anything not in the reserved list.
“Therefore it can have referendums on anything it wants, even if it cannot enact the result.
“There is a precedent in Scotland – Strathclyde Region’s referendum on water privatisation a couple of years ago – 70 per cent turnout, 97 per cent opposed to privatisation.
“A couple of very worried Scottish MPs have rung me about this.
“It scares them a great deal that such a referendum could take place. They say the Nats will press and press for it, particularly when we are taking uncomfortable decisions.
“Donald’s view is that the Scottish parliament can have a referendum on whatever it likes, even matters outside its competence, which is in line with the logic of the White paper.
“The only way to stop this would be to insert what would be called a glass ceiling – to put forward a measure in the [Scotland] Bill that the Scottish parliament could only hold referendums on matters within its competence.
“Result would be a great row about limiting freedoom of speech but would be welcomed by our MPs very worried about the slippery slope to independence.
“I think Donald would be opposed to such a measure but other MPs certainly would not.
“There is an urgency about this matter because the question will be asked on Thursday [the White Paper’s publication]. It’s already running in the papers.
“Can you find out Tony’s view?”
As it turned out, the matter did not arise in the Commons that week, but it did the following May, as the Scotland Bill was debated, and Dewar seemed to change his mind.
He told MPs: “It is clear that constitutional change – the political bones of the parliamentary system and any alteration to that system – is a reserved matter.
“That would obviously include any change or any preparations for change… A referendum that purported to pave the way for something that was ultra vires is itself ultra vires.”