A section 30 order is named for the law which it is contained in, namely “section 30” of the Scotland Act 1998.
In a nutshell, it is what is known as an “order in council” which temporarily devolves powers to the Scottish Parliament over things that it would not otherwise be allowed to legislate for.
To understand the context with respect to a referendum on independence, you first have to understand what we’re talking about being devolved here and to do that, you need to understand how the Scottish Parliament works.
In the simplest terms, Schedule 5 of the Scotland Act has a list of certain things which are “reserved” to Westminster. Anything not on that list, the Scottish Parliament can legislate for. These matters on the list are called “reserved competencies”. Anything not on the list is referred to as a “devolved competency”.
So when you hear a politician talk about something being “within the competency of the Scottish parliament” what they are referring to is this list in Schedule 5. If its on the list it is not within the competency of the Scottish Parliament and if it isn’t, then it is within the competency of the Scottish Parliament.
A “section 30” order is basically an order which allows things on the list in Schedule 5 to be temporarily devolved to the Scottish Parliament so it can legislate on it.
For a referendum to occur, legislation needs to be passed, ergo if (massive emphasis on the if) that legislation was outside of the competency of the scottish parliament, permission would be required, a section 30 order is a permission slip to legislate on matters not devolved to Scotland.
Now, this is where the confusion often comes in with regards to a referendum on Scottish Independence, because “constitution” including the union between England and Scotland is on the list in Schedule 5. Unionists would therefore argue that because it is on that list, a referendum on independence is down to Westminster to grant.
However that is not the be-all-and end all, because the question that has festered for 22 years is: “Does a referendum actually modify the constitution / union” or “does it merely allow the people to express their opinion on whether the constitution / union should be modified”?
The question has never been answered. It has festered for 22 years – indeed this is the exact question which the Peoples Action on Section 30 has been trying to have answered to prevent constitutional paralysis. Because, if a referendum is merely a means for the people to exercise their right to vote and to indicate whether they want the union to end or not, it does not itself, modify the constitution – that means it’s not on the list and therefore it is within the “devolved competency” of the Scottish Parliament.
The unionist press will always assert the first one, but that’s far from being truthful. I can say this with full authority because I literally commissioned a legal opinion on this fact, which you can read here
The difference between these two clear opinions (and line up 100 lawyers and they’ll give you 100 answers on this) is one means we need a section 30 order, the other means we don’t.
Two things were present in 2014 that led to a section 30 order being granted by Westminster (and why Alex Salmond did not push to have this question answered and bypass Westminster altogether). Firstly, the tories thought they were going to win a referendum, and secondly, for all who hated him, David Cameron actually did follow precedent and usually the law as well. Section 30 was the most expedient route to a referendum at that time – but that does not diminish the validity of a section 30 order not being required in order to hold a referendum. It was merely never explored because it was unnecessary. Boris Johnson on the other hand is not a democrat and is more consumed with his own image than the welfare of the people. He will reject a section 30 order simply because he doesn’t want to go down in history as the last prime minister of the UK. The man who ended the UK.
So long as this question remains unanswered, the unionists will continue to use the ambiguity over section 30 to perpetuate the lie that consent is required from Westminster.
It is, however, the firm belief of many legal professionals that a referendum does not alter the constitution itself, that is done through negotiation and legislation. A referendum is merely a mechanism by which the people can express their views one way or another – consequentially, it does not fall under schedule 5 of the Scotland Act as being reserved to Westminster and as a result, a section 30 order is not required.
The irony is that had the Scottish Government supported the Peoples Action on Section 30 rather than continually hindering it, Nicola Sturgeon would still be able to go for her section 30 order to make the process expedient. The difference is that she would have been able to go to Boris and say that the courts had said a section 30 order and Westminsters consent was not required so he had better mutually agreed the terms of a referendum or the Scottish Parliament would go ahead with it anyway.
This is where the dispute com