A Public Law on Devolution and Scotland

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  1. Assume that the UK Parliament has passed new legislation conferring powers on the UK government to determine, by Order, who has the right to vote in any UK referendum. The government is considering whether to make an Order extending the right to vote in the independence referendum to registered voters in England, Wales and Northern Ireland. The Scottish Government is furious and claims that this would be a breach of the Edinburgh Agreement and Sch 5, Part 1, para 5A of the Scotland Act 1998.

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    Advise the relevant minister whether he is legally entitled to enact such an Order.

To fully advise the minister if he would be legally entitled to enact such an order, to allow registered voters in England, Wales and Northern Ireland to vote in any UK referendum. To do this we first need to understand what the Edinburgh agreement and Sch 5, Part 1, para 5A of the Scotland Act 1998 covers. The Edinburgh agreement[1] is an agreement between the Scottish Government and the United Kingdom government. This agreement was signed by both Governments on the 15th October 2012, and charted the footprint for the Scottish independence referendum on 18th September 2014. An argument brought up by Professor Adam Tomkins is that before the enactment of the Edinburgh Agreement [2] the Scottish government was acting out with its powers as it was not following Westminster’s legislative supremacy. Even with the commencement of the Edinburgh Agreement some see the UK parliament has having the final say in any laws passed and can if applicable, override any. Constitutional theorist A.C Dicey describes parliamentary supremacy as: ‘Parliament…has under the English constitution, the right to make or unmake any law whatever: and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.’[3] The Scotland Act 1998 created a devolved Parliament in Scotland. In turn this created the devolved powers that allow the Scottish Government to legislate on non-reserved issues.[4] Nevertheless Scotland gets its powers from Westminster’s constitutional supremacy rather than from its own sovereignty. This would mean that Westminster could in theory rescind any of the devolved powers and legislation given and made my Scotland. Yet Westminster has given it agreement, that the referendum should go forward making the Edinburgh agreement legally binding. The Scotland Act 1998 (Modification of Schedule 5) Order 2013 inserts the words ‘Paragraph 1 does not reserve a referendum on the independence of Scotland from the rest of the United Kingdom if the following requirements are met…’[5] This change has allowed the Scottish parliament to legally hold a referendum. This order modifies schedule 5.Paragraph 1 of part 1 of schedule 5 so that a referendum on the independence of Scotland from the rest of the United Kingdom is not reserved matter if certain requirements are met.

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