Over at the blog post on Lallands Peat Worrier commenter, Indy, has argued persistently that Hansard offers the legal justification to the SNP in supporting the holding of the referendum. Indy’s argument is,
“Regarding the passage of the Scotland Bill, my recollections are clearly blurred but nevertheless the issue of whether the Scottish Parliament was able to hold a referendum was discussed at the time the Bill was with the House of Commons and with the Hourse of Lords. There will be a record in Hansard. Presumably if any individual tried to challenge the competence of the Scottish Parliament to hold a referendum the intention of the legislators who drew up the Bill would have some bearing.”
I agree with that – the intention of the legislators does have a bearing on the interpretation of ambiguous provisions. That is the import of the decision in Pepper v Hart  AC 593 (a case accepted into Scots law) which provided that in interpreting ambiguous provisions of legislation one can look at the views of the promoter of the bill (and where the legislation is a government bill that then means looking at the view of the government minister).
Let us then consider the views of the government minister who piloted the bill through the Lords (Lord Sewel). On 21st July 1998 in the House of Lords debates an amendment was put forward to put the question of referenda expressly into the bill (amendment 174 moved by Lord Rowallan). The amendment was not passed – and in response rejecting the amendment (and clarifying the meaning of the constitutional exceptions in what became paragraph 1 of Schedule 5 to the Scotland Act 1998 Lord Sewel said (at column 854) the following,
“I return now to the issue of substance—the holding of a referendum on independence. I wish the Committee to be in no doubt that as the Bill stands the Scottish parliament will not be able to legislate to hold a referendum on independence as the union of the kingdoms is already a reserved matter under Schedule 5. Explicit reference along the lines proposed by the noble Lord, Lord Rowallan, is just not needed.
In determining what relates to a reserved matter, the government amendments tabled to Clause 28 are of help here, because they indicate that we must look at the purpose of what is being done. If the parliament passed an Act to hold a referendum about whether the Union should continue, it would thus clearly be legislating in relation to the reserved matter of the Union. Any such Act would be about the continuation of the Union and it would therefore be beyond the parliament’s competence and would not be law.
855 Perhaps I may go through the three steps that lead to that conclusion. First, the parliament cannot legislate if the provision relates to a reserved matter. That is Clause 28(2)(c). Secondly, the Union of the Kingdoms of Scotland and England is a reserved matter by virtue of paragraph 1(b) of Part I of Schedule 5. Finally, legislation for a referendum on independence would be legislation about whether the Union should be maintained and would therefore relate to the reserved matter of the Union, and so be beyond the competence of the parliament. That is brought in by the purpose test which we discussed earlier.
I hope that Members of the Committee will be absolutely assured that the parliament does not have the legislative competence to legislate in order to provide for a referendum on independence. On that basis, I hope that the noble Lord [Lord Rowallan] will be able to withdraw the amendment.”
On that basis the amendment was withdrawn.
If there is any ambiguity in the provision we can turn to Hansard. The position of the legislators was therefore clear. The holding of a referendum on independence was intended to fall outwith the legislative competence of the Scottish parliament.
It is absolutely clear then that the centre-piece of the SNP manifesto will be a demand for a referendum that the Parliament they are standing for cannot competently pass.
Now that I’ve done the work for the journalists perhaps they might start asking questions about it?