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Scottish independence - The road to a second referendum?

On 18 September 2014, the Scottish electorate voted on whether Scotland should become  an independent country. The result was 55/45 in favour of remaining part of the United  Kingdom but in the aftermath of Brexit support for Scottish independence has increased. 

Recent opinion polls have shown that Scots are evenly split on the issue of independence. In the run-up to the Scottish Parliament elections on 6 May 2021, the two main pro-independence parties, the Scottish National Party (SNP) and the Scottish Greens, campaigned for a mandate to hold a second independence referendum whilst the pro-Union parties  campaigned against a further referendum. Whilst the SNP were one seat short of an overall  majority, the election produced a clear pro-independence majority in the Scottish Parliament  with 72 out of 129 seats. The First Minister, Nicola Sturgeon, has made it clear that she views  the election result as being a mandate for holding an independence referendum during the  lifetime of the current Scottish Parliament.

 

Next steps

The First Minister has stated that the first priority of her minority Scottish Government is COVID recovery and that an independence referendum will not be held in the early stages of the Parliament. A date for a possible referendum has not been published but steps could be taken in 2022 or 2023 or later depending on circumstances.

Section 30 Order

The Scottish Parliament has legislative competence over all areas except for those which are specifically “reserved” to the Westminster Parliament. One of the reserved areas is  the Constitution and the “Union of Scotland and England”.  The Scottish Government has not conceded that a  consultative referendum on independence is outside the competence of the Scottish Parliament but this may be a contentious issue depending on the approach taken by the  UK Government.

The competence of legislating for an independence referendum was not an issue in 2014 as the UK Government granted an order under Section 30 of the Scotland Act 1998 (Section 30 Order) that temporarily gave the Scottish Parliament power to legislate for, and hold, an independence referendum. 

The Scottish Government requested a similar Section 30 Order from the UK Government in 2017 in the immediate aftermath of the UK serving notice of its intention to leave the EU. The then UK Prime Minister, Theresa May, rejected the request stating that “now is not the time”.

Subsequently, the Scottish Parliament passed two bills that deal with the process (and franchise) of referenda generally in Scotland and the Scottish Government published a draft Scottish Independence Referendum Bill that proposes the same franchise as for the 2014 referendum. However, there has been no further request for a Section 30 Order.

Section 30 Order request

The First Minister has stated that any referendum must be legal and beyond challenge. She has emphasised that there will be no “wildcat” referendum and it is assumed  that any vote must be one that is recognised by the  international community, no doubt with a view to  re-joining the EU and avoiding a possible Spanish veto if the referendum was held illegally. Therefore, once the  timing is viewed as being appropriate, the Scottish Government will request a Section 30 Order from the  UK Government.

The UK Prime Minister, Boris Johnson, has been clear to  date that he doesn’t believe that now is the time for a 
further independence referendum and has previously talked of a 40 year gap between Scottish independence 
referendums. If, as seems possible, the UK Government  rejects a Section 30 Order, the Scottish Government will have the option of using the rejection as a means to  build up further support for Scottish independence or legislating for a Scottish independence referendum. 

The constitutionality of such a referendum could be decided by the UK Supreme Court which has jurisdiction to determine whether bills of the Scottish Parliament are within the Parliament’s powers.

However, the Scottish Government would have to satisfy itself as to the legality of the referendum bill and the Presiding Officer (Speaker) of the Scottish Parliament would be required to certify whether, in her view, the bill was competent (if the Presiding Officer is unwilling to certify, this does not invalidate the bill but would be used as evidence that the bill was beyond the Parliament’s competence). 

If a referendum bill is passed by the Parliament without a Section 30 Order then, in terms of the Scotland Act 1998, the UK Government has four weeks to bring a challenge in the Supreme Court. It should be noted that if the UK Supreme Court ruled that the referendum bill was competent, Westminster could pass legislation to retrospectively overrule the legislation. If, in line with most academic analysis, the Supreme Court rules that the bill is beyond the Parliament’s competence, then that route to independence will be blocked if and until the UK Government agrees to a Section 30 Order. 

For that reason, Nicola Sturgeon may be cautious about promoting such legislation.

Section 30 Order granted with conditions

An alternative scenario is that the UK Government grants a Section 30 Order but attaches conditions such as:

  • Extending the franchise to “Scottish people” living elsewhere in the UK.
  • Creating a “supermajority” for independence 
    (eg 60%).
  • Legislating that any third referendum may not be held for a specified period of time after the second referendum.
  • Requiring that the Scottish Government provides detail on its anticipated outcomes on certain post-independence issues (eg currency).
  • Providing for a second confirmatory vote once the  independence “deal” is agreed between Scotland and the UK Government.

However, whilst all of the above have been proposed by pro-Union supporters, they all carry significant risks that the UK Government could be seen as influencing the  outcome of the referendum in a way that may lead to a risk that a vote in favour of remaining in the United Kingdom could be “de-legitimised” in the eyes of some pro-independence supporters.

Going forward

There is little certainty about whether there will be a referendum in the next few years and, if there is, when it will be. The focus is very much around the recovery from the pandemic, but we will continue to monitor the situation and share future updates on the issues of importance to the independence debate.

 

The information on this webpage and in this attached PDF is for general purposes and guidance only and does not purport to constitute legal or professional advice

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Rebound & Remodel-Scottish independence-The road to a second referendum?
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Key contacts

Allan Wernham
Allan Wernham
Managing Director, Scotland
T +44 141 304 6056
Stephen Phillips
Stephen Phillips