Shades of legal grey Part 3

Scottish Independence Referendum H of C Briefing paper

Molly Pollock in Part 3 notes the impact of Brexit on Scotland’s right to hold another independence referendum, alternatives to a section 30 order and implications of Westminster response.

By Molly Pollock

This briefing paper has been produced by former journalist David Torrance, now working as a researcher in the House of Commons library. Briefing papers are produced to provide information on issues of current or impending importance.

Brexit and independence referendum
Shortly after the 2015 general election, in an interview with the Guardian, Scottish Conservative leader Ruth Davidson said that: “If the SNP puts in its manifesto that it has an intention to hold a second referendum, and if it wins an outright majority, I think it does have a mandate to hold one.” [Editor: Unsurprisingly her belief has now changed.]

Although not in favour of a referendum, David Mundell, then Secretary of State for Scotland, said that if the people of Scotland ultimately determine they want to have another independence] referendum there will be one. To the question of could there be another, his answer was yes.

The following year in its manifesto the SNP stated: “the Scottish Parliament should have the right to hold another referendum if there is clear and sustained evidence that independence has become the preferred option of a majority of the Scottish people – or if there is a significant and material change in the circumstances that prevailed in 2014, such as Scotland being taken out of the EU against our will.”

In October 2016, the Scottish Government launched its Consultation on a Draft Referendum Bill, which assumed that the 2014 precedent would be followed. On 31 March 2017, the First Minister wrote to Prime Minister Theresa May requesting a Section 30 order to enable an independence referendum to be held. The Prime Minister did not respond and instead a “snap” general election was called for 8 June 2017. In its manifesto the Tories did not entirely rule out a second independence referendum but repeated May’s statement “that now is not the time”, going on to say: “In order for a referendum to be fair, legal and decisive, it cannot take place until the Brexit process has played out and it should not take place unless there is public consent for it to happen.”

Alternatives to a Section 30 Order
With the likelihood of another Section 30 Order being granted looking doubtful, the briefing paper turns its attention to possible alternatives. An unofficial referendum, redress through the courts, a Plan B.

At the October 2019 party conference Nicola Sturgeon addressed the idea of these alternatives.

“To be clear, if we were to try to hold a referendum that wasn’t recognised as legal and legitimate – or to claim a mandate for independence without having demonstrated majority support for it – it would not carry the legal, political and diplomatic weight that is needed. It simply wouldn’t be accepted by the international community, including our EU friends and partners.”

Following the election, the Scottish Government published Scotland’s Right to Choose: Putting Scotland’s Future in Scotland’s Hands. This argued for a permanent transfer of the power to hold a referendum on independence, either by a Section 30 Order or via UK primary legislation, as well as an explicit statutory recognition of Scotland’s right to self-determination. This was turned down by Boris Johnson on the basis that both she and Alex Salmond had: “made a personal promise that the 2014 Independence Referendum was a “once in a generation” vote. The people of Scotland voted decisively on that promise to keep our United Kingdom together, a result which both the Scottish and UK Governments committed to respect in the Edinburgh Agreement.”

On 29 January 2020, the Scottish Parliament voted to agree that another independence referendum ought to take place. In a statement the First Minister said:

“The issue of whether the specific constitutional reservation in the Scotland Act puts any form of independence referendum outside the powers of the Scottish Parliament – or instead leaves open scope for a non-binding consultative vote – has never been tested in court.

“That means it cannot be said definitively that it would not be legal, but equally it cannot be described as being beyond legal doubt. If a proposal for a referendum on that basis was brought forward it would be challenged in court. If a court ruled that it was legal, it wouldn’t be a “wildcat referendum” as our opponents like to brand it – it would be within the power of the Scottish Parliament.

“Should the UK Government continue to deny Scotland’s right to choose, we may reach the point where this issue does have to be tested. I am not ruling that out. But I also have to be frank. The outcome would be uncertain. There would be no guarantees. It could move us forward – but equally it could set us back.”

In preparation for a referendum Royal Assent had been granted to the Referendums (Scotland) Act 2020, which provided a general framework for holding referendums on devolved matters, with The Scottish Elections (Franchise & Representation) Act 2020 receiving Royal Assent on 1 April 2020. A further short Bill authorising a second independence referendum was to be prepared along with other independence-related tasks but this was overtaken by the global pandemic and the need to deploy civil servants on dealing with this.

A draft bill is due to be published in the next few days. Last year the First Minister said that “at next year’s election, we will make the case for Scotland to become an independent country, and seek a clear endorsement of Scotland’s right to choose our own future.”

Mike Russell, the Scottish Government’s Cabinet Secretary for the Constitution, published a party document entitled The Road to a referendum that is beyond legal challenge. In this he stated that:

“the choice of the UK Government will be clear; to either (1) agree that the Scottish Parliament already has the power to legislate for a referendum or (2) in line with precedent, agree the Section 30 order to put that question beyond any doubt or (3) take legal action to dispute the legal basis of the referendum and seek to block the will of the Scottish people in the courts. Such a legal challenge would be vigorously opposed by an SNP Scottish Government.”

In response to this Douglas Ross MP, the Scottish Conservative leader, said he would take no part in “these wildcat, unofficial referendums” and urged others to boycott them also.