The Committee says the overwhelming weight of evidence shows that the Scottish Parliament cannot presently legislate to hold a referendum on separation, and that agreement should be reached between Holyrood and Westminster to create the necessary legal powers. Otherwise Scotland risks indefinite legal and political wrangling and uncertainty over its future.
Scotland can only separate from the UK if the Scottish people make that decision in a referendum. The Committee says any such referendum must have an unchallengeable legal and moral basis, to avoid delays and challenges to the legitimacy of the process and its result. The Scottish Parliament can legislate only on devolved matters, and the Union between Scotland and England is a reserved matter.
Holyrood legally competent
The Scottish Government has argued that Holyrood is legally competent to set up a referendum but the Committee can find no evidence for this and the Scottish Government has provided no legal justification for this view. Given that it is clear that the result of a referendum will decide Scotland's position, in or out of the Union, it must have an unchallengeable legal and moral basis. It cannot be described as simply "advisory".
The Committee says any attempt to conduct a referendum on a dubious legal basis would inevitably be challenged in the courts. This could take years to be resolved and would lead to even further damaging uncertainty about Scotland's future. No-one should be allowed to use legal wrangles to put off a referendum even longer than is currently planned. It is vital both that any referendum must be conducted on a sound legal footing and that it takes place within an appropriate time-scale.
Approval by all of Scotland's MPs
The Committee says the best way to ensure a sound legal basis for the referendum is for the UK and Scottish Governments and Parliaments to agree the specific detail of an order under section 30 of the Scotland Act 1998 to give the Scottish Parliament power to conduct a referendum. The committee believes that any Section 30 order proposed by the Government should be subject to pre-legislative scrutiny by the Scottish Affairs Committee and to approval by all of Scotland’s MPs before being proceeded with.
The Committee says it is "highly desirable" that both Governments and both Parliaments should agree the legislative and organisational form of any referendum, to reduce the scope for either side of the argument to claim afterwards that the process was in any way improper or unfair. However, this should not be used to allow those who anticipate being defeated to stall or derail the process.
Chair of the Committee Ian Davidson MP said:
"With a consensus for a referendum on Separation, it is essential that any ballot is held on an unchallengeable legal and moral basis.
The Labour Government’s referendum in 1997 created the Scottish Parliament and determined that MPs should have control of further constitutional change. These decisions were made by the Scottish people.
It is clear from our evidence that the Scottish Parliament has no powers to hold either a binding or an advisory referendum on constitutional change. It is also clear that any attempt to do so would result in legal disputes and delay.
Thus we believe the best way to proceed is for the Government to propose a detailed and specific Section 30 notice, giving the Scottish Parliament powers to conduct a referendum on Separation, and that this S30 notice should be subject to a scrutiny process by the Scottish Affairs Committee and approval by Scotland’s MPs.
Since the forthcoming referendum will settle the question of Separation for a generation it is important that it takes place legally, speedily and honestly. While delay may be attractive to those anticipating defeat, any effort to stall or derail the process will not be in Scotland’s best interest. Continued uncertainty will neither protect nor create jobs nor will it enhance public services.
The Government should therefore come forward with a proposed Section 30 notice as quickly as possible."