Background
On 31 July Nicola Sturgeon announced that “no politician has the right to stand in the way” of another Scottish independence referendum. Given the political drama of the last year this statement was met with mixed emotions and a buzz of anticipation by the public and politicians alike. Was it possible that an independence referendum was not a ‘once in a generation’ opportunity after all? Against a background of overwhelming support for SNP in the May 2015 General Election and with the Scottish elections looming in 2016, a question mark hangs over whether the SNP will include the promise of another referendum in their election manifesto. In response to Sturgeon’s remark, David Cameron indicated that the UK Government would withhold authority for such a referendum to be called. As a result, the question has now been posed whether or not the Scottish Parliament could call another independence referendum.
Basis for Authority
The legal ability of the Scottish Parliament to call a legitimate independence referendum the first time round was fervently discussed by academics but was resolved when the UK and Scottish Governments entered into the Edinburgh Agreement in 2012. Under that agreement, the UK government drafted an Order in Council granting the Scottish Parliament the necessary powers to hold an independence referendum, on or before 31 December 2014. The Scottish Parliament accordingly passed the Scottish Independence Referendum Act 2013. However, given David Cameron’s initial response to Nicola Sturgeon’s assertion of the power of the Scottish Parliament to call another referendum, this does not look likely to happen again. Instead, the Scottish Parliament may seek to use its existing powers.
The Scottish Parliament derives its powers from the Scotland Act 1998 (the “1998 Act”). Section 29 of the 1998 Act provides that an Act of the Scottish Parliament (“ASP”) is not law if it is outwith the legislative competence of the Parliament. An ASP, or part of an ASP, will be outwith legislative competence if it relates to reserved matters. Schedule 5 of the 1998 Act reserves “the Union of the Kingdoms of Scotland and England”. As a result, based purely on the 1998 Act, there is a strong case to suggest it would be ultra vires for the Scottish Parliament to pass legislation calling for another independence referendum.
This presents a problem for those who believe that the Scottish Parliament has the power to instigate another referendum. The SNP argues that the extent of its support in Scotland delivers an indisputable right of self-determination, a right enshrined within the UN Treaty of Human Rights of which the UK is a signatory. Accordingly, winning a majority of seats in a parliamentary election may be regarded as sufficient mandate to call another referendum. Such an emotive argument can be difficult for politicians to resist even in the complete absence of constitutional support..
Given that that the 1998 Act excludes the possibility of the Scottish Parliament legislating for an independence referendum the SNP is likely to argue that a positive vote for independence merely creates a mandate to enter into negotiations with the UK Government, not a right to secede from the Union. To complicate matters the Scottish Government is already in the middle of negotiations with the UK Government following on from the Smith Commission; it may well opt to let the dust settle before making any significant proposals on another referendum.
Conclusion
There is considerable pressure from within the SNP’s ranks to trigger another independence referendum founded upon the party’s success in the 2015 general election- well within the ‘generation’ that was alluded to throughout the 2014 campaign. Without the support of the UK Government, however, the legal basis upon which a referendum giving direct effect to a potential ‘Yes’ result could be held is currently unclear.
Co-author'd by: Rachael Johnston.
