UK Constitutional Law Association

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Stephen Tierney: A Second Independence Referendum in Scotland: The Legal Issues

Scottish First Minister Nicola Sturgeon today announced the Scottish Government’s intention to hold a second referendum on independence between the autumn of 2018 and the spring of 2019. The move comes in the week when it is widely anticipated that the United Kingdom Government will serve notice under Article 50 of the Treaty of European Union of the UK’s intention to withdraw from the EU. The next two years are set to be consumed by two parallel processes that will see the UK leave the EU and could also see Scotland leave the UK in an effort to remain within the EU.

Can the Scottish Parliament hold a referendum without the consent of Westminster?

Whether the Scottish Parliament can unilaterally hold an ‘advisory’ referendum on this issue has never been finally resolved. But it seems clear that the Scottish Government does not propose to test this issue; instead it will seek the consent of Westminster to a so-called s. 30 Order, thereby ensuring that the UK Government will have to accept the referendum result.

A s. 30 Order would involve a temporary transfer of power from the UK Parliament to the Scottish Parliament to allow the referendum to go ahead, along similar lines to the 2014 process. The Scottish Government indicated its intention to go down this route in its white paper, ‘Consultation on a Draft Referendum Bill’ published in October last year, and this was also confirmed by the First minister today when she stated that she will ask the Scottish Parliament next week for permission to request a s. 30 order.

Will the UK Parliament grant such an order?

It is of course under no legal obligation to do so. The issue is, as it was in 2012 when the Edinburgh Agreement was signed, essentially political. The UK Government does not need the distraction of a Scottish independence referendum during Brexit negotiations, particularly as it will find it very difficult to concentrate fully on saving the Anglo-Scottish union while engaged in what could be very fraught and complex talks with Brussels; but nor will it want to be presented as frustrating the will of the Scottish Parliament, thereby strengthening support for independence.

In the end, it may well acquiesce in principle to a second referendum, but lay down requirements as to timing, insisting that the referendum only be held after an exit agreement with the EU has been achieved. One argument will be that Scots are unable to make an informed choice on independence until they know what the final terms of Brexit will be.

Framing the referendum’s rules

The Edinburgh Agreement in 2012 laid out the rules for the 2014 referendum, providing that it would be overseen by the independent Electoral Commission, stating that it had to be held by the end of 2014 and that the question could only offer two options: independence or the status quo, and not a third option such as devo-max. The Scottish Parliament was given discretion to determine the franchise (which it set at 16 years), to set the wording of the question and to frame the funding and spending rules. These latter two powers were framed in line with UK legislation on referendums and elections (PPERA 2000) and as such they were also regulated by the Electoral Commission.

The process rules were relatively uncontroversial in 2014 and overall can be taken to have worked well. The indications are that the Scottish Government is looking for similar controls this time.

The big argument could well be over timing if the UK Government insists that the referendum be held later than the Scottish Government would like. Another pressure point could be the wording of the question. The Scottish Parliament had relative control over this for the 2014 referendum but it is not inconceivable that the UK Government would want the UK Parliament to have a say on this for a second referendum: perhaps framing the options as Leave/Remain, rather than Yes/No.

Another issue is how many options should appear on the ballot. Interestingly, it was the UK Government that insisted upon only two options last time while the Scottish Government mooted the possibility of a third option on ‘devo-max’. It is possible this time that unionist voices may suggest a third option. Federalism, long the constitutional solution favoured by the Liberal Democrats has found growing support among Conservatives and is now the official policy of the Scottish Labour Party. It is possible that a radical proposal for a written constitution, entrenching federalism, and proposing a significant reform of the House of Lords as a territorial second chamber of Parliament, could be put forward either for inclusion as an option on the ballot, or as a new ‘Vow’, similar to that presented just before the 2014 referendum.

Is a second independence referendum inevitable?

The UK Parliament could of course refuse a s. 30 Order. But this seems unlikely. It is also possible that the Scottish Government will, over time, withdraw its plan. The First Minister has indicated that there could be room for compromise with the UK Government if the latter is willing and able to negotiate a special status for Scotland in the Brexit negotiations. Even in the absence of this there are other factors that could frustrate the Scottish Government’s plans. For example, moves towards a good deal for the UK in Brexit negotiations and opinion polls showing support for independence diminishing, added to a commitment to further constitutional reform in a federal direction, could possibly combine to halt the process.

But what seems clear is that the Scottish Government is not bluffing. If, as looks likely, it can gain a majority in the Scottish Parliament to request a s. 30 Order, and can convince Westminster to grant this, then the path will be set for a referendum process that could see Scotland leave the UK just as the UK leaves the EU. The onus is now firmly upon the UK Government to take extremely seriously the distinctive priorities of the devolved territories – Northern Ireland and Wales, as much as Scotland – as it begins the Brexit process.

Stephen Tierney is Professor of Constitutional Theory and Director of the Edinburgh Centre for Constitutional Law. He is Legal Adviser to the House of Lords Select Committee on the Constitution and Co-Editor of the UK Constitutional Law Blog.

(Suggested citation: S. Tierney, ‘A Second Independence Referendum in Scotland: The Legal Issues’, U.K. Const. L. Blog (13th Mar 2017) (available at https://ukconstitutionallaw.org/))

13 comments on “Stephen Tierney: A Second Independence Referendum in Scotland: The Legal Issues

  1. John
    March 13, 2017

    What if the Westminster Parliament does not say “Yes” and does not say “No”, i.e. defers the matter indefinitely or until the UK has left the EU?
    Any Westminster MP can move a motion to that effect.
    I would also question whether or not the Scottish Parliament is truly representative of the will of the people of Scotland on this issue.
    I do not think current opinion polls support any such conclusion.
    Indeed, is this possibly not just a cheap stunt by Mrs Sturgeon to reflate her falling support among Scottish voters – if current opinion polls are anything to go by?

  2. Martin Rowe
    March 13, 2017

    Oh, the irony: the Scots are unable to make an informed choice on independence until they know what the final terms of Brexit will be. Whereas the UK had a referendum without knowing what the final terms of Brexit will be

  3. Nunn The Wiser
    March 13, 2017

    Really pleased to see that Nicola Sturgeon has done the right thing and called Chairman May’s bluff on Scotland remaining in the U.K.

    Not that I want to see the United Kingdom become the Untied Kingdom, but May has proved beyond question that her promises to Nicola Sturgeon last year that Scotland will have an equal partnership with England in the triggering of the Article 50 process was at best placatory drivel and at worst ideologically-driven nonsense.

    May has conceded nothing – to anybody. She has a Tory-led, one-eyed approach not only to Breggzit but also to Government. She is the fanatical tank commander insistent on leading her tanks straight into the swamp – “no ifs, no buts”! (or: “The lady’s not for turning” to quote her alter-ego.)

    It’s interesting to see that she is today using the self-same arguments to convince Nicola Sturgeon she should not hold a “divisive”, “damaging” 2nd. Referendum in Scotland, as the Remain party used in the lead-up to the E.U. Referendum last year – which she herself has subsequently totally ignored! There’s a healthy bucket of irony for you!

    May thinks she can dictate how Scotland should be run – and it had jolly well better do as it is told! Admittedly, there would be huge difficulties for Scotland if it were to break away from the U.K. although if it succeeded in remaining in the E.U. the blow would be lessened, and Scotland would be free from the oppressive diktat of Tory-run Government that seems to be on the cards for the next 13 years – thanks to an inept Jeremy Corblimey and his “Back to the ’70’s” mob. To me there is a feeling of Scotland being prepared to do the right thing and sacrifice short-term comforts and benefits for the long-term benefit of its citizens – its youth in particular. In the long term I can see Scotland outperforming “Little England” altogether.

    One option is a Celtic Union: an economic tie-up between Scotland, a United Ireland, Wales and possibly Cornwall. Not a likely possibility at present, admittedly, but there could be big benefits and huge political gains in establishing such an organisation – except for England, of course!

    For the U.K. to lose Scotland and all the benefits it brings would be a hugely damaging blow. Not only financially, but intellectually, socially and morally too. It takes a particularly morbid and twisted mindset to encourage – albeit indirectly – anything which would increase the likelihood of that actually happening. No. 10’s announcement today that it will do nothing to encourage a 2nd. Scottish Referendum (“because it was a “once in a generation” vote” it cries – this from the same party which very clearly told the electorate that there would be no increase in NIC contributions then went ahead and increased them once they had secured the votes) is a clear indicator of exactly how that stated relationship between Scotland and the U.K. government actually stands i.e. pure hogwash.

    Nicola Sturgeon is right to proceed in the way she has outlined, and I wish her the best of luck in her attempts to get the right deal for Scotland within the E.U. and the Single Market.

    If this process should just happen to trip-up, undermine, delay or totally disrupt Chairman May’s strategy for taking the U.K. straight over an economically-disastrous cliff-edge – “at the worst possible moment”, whinge, whinge – well, them’s the breaks!

    GO NICOLA!

    • John
      March 13, 2017

      Nunn The Wiser seemingly remains none the wiser.

  4. GW
    March 13, 2017

    With the current views, no election result in the future based on, ‘First Past the Post’ is unlikely to survive. The current mischief will fatally undermine that system but, what is to replace it: the people have already roundly rejected proportional representation.

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  6. Anthony Tsang
    March 14, 2017

    It is interesting, is it not, that the planned timing of the proposed second Scottish independent referendum roughly coincides with the end of the two-year Brexit negotiation period. Constitutional Law is not that boring after all.

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  8. CONNELL
    March 14, 2017

    Prof Tierney

    Basic Constitutional Points.

    1 The United Kingdom is a parliamentary representative democracy it is general elections that compose the United Kingdom not referendums. That is what we do when we send MP’s to Parliament. 59/59 MP’s were sent to the British Parliament from constituencies across Scotland in 2015. No candidates were elected on abstentionist manifesto’s

    2 Authority is singular and cannot be in MP’s and a referendum at the same time.
    A referendum is simply an opinion poll.

    3 The devolved parliament is prevented by the 1998 Scotland Act Schedule 5 from intruding into the constitution, defence or foreign affairs.

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