Nicola Sturgeon, Scotland’s first minister, has announced her intention to hold another Scottish independence referendum in the wake of the UK’s vote to leave the European Union. Campaign badges are being looked out and banners dusted down. But there are significant question marks as to what the legal basis will be for what is being dubbed indyref2.
In 2012, the Edinburgh Agreement was signed by the UK and Scottish governments, following negotiations that determined the legal basis of the referendum. What is known as a section 30 order was granted by the UK government which temporarily gave the Scottish parliament the power to pass a law allowing an independence referendum to be held. But the crucial word here is “temporarily”.
While the Scottish parliament had the right to pass the 2013 Scottish Independence Referendum Act 2013, that right was quickly transferred back to London after the 2014 vote.
Now in 2017, the terrain is very different. The UK government was quick to dismiss Sturgeon’s speech announcing her intention to push for a fresh vote. In its response, the government said: “A majority of people in Scotland do not want a second independence referendum.” In 2012, the UK coalition government played gentler mood music and recognised the authority of the Scottish National Party (SNP) administration and its electoral mandate to hold a referendum.
Where powers lie
The root legal problem stems from devolution. The Scottish parliament is not completely sovereign. There are areas, called reserved matters, where it is simply not allowed to legislate. These include defence, foreign affairs and immigration. The list of reserved areas can be altered, but it continues to include constitutional issues – including matters relating to “the Union of the Kingdoms of Scotland and England”.
Scottish politicians can debate such matters in Edinburgh – for instance, the Scottish parliament made its opposition to Brexit known – but the parliament cannot pass legislation on them.
Prior to the Edinburgh Agreement of 2012 there was debate on whether a referendum could be held without permission from Westminster. This remained theoretical, as negotiations were concluded and a legal agreement was struck.
Could May withhold permission?
Under the Scotland Act 1998 there is no legal requirement for the UK government to hand the Scottish parliament temporary powers under section 30 to allow a vote on the constitution and the future of the union. Withholding such powers would be a political decision – but it’s possible the UK government would face a massive backlash if it did so.
If May’s government refuses to give the Scottish parliament powers to hold a vote on the referendum, it could give the Scottish government a legal problem. Given the 2012 agreement it would now be difficult to argue that permission was not needed. In her speech, Sturgeon spoke of the need for an agreement with the UK government, although in her view key elements, including the timing of the referendum, should be made in Scotland.
If there is no section 30, the Scottish parliament may not even have the chance to debate a proposed second referendum bill. The decision on whether to debate a referendum bill would be in the hands of the chair of the Scottish parliament – the presiding officer, a position currently held by Ken MacKintosh. If the bill is outside the powers of the parliament and deals with a reserved matter, the presiding officer can block the proposal from being debated at all. If there is no section 30 order, that could be quite likely as it would be clear that the powers had not been transferred from Westminster to Holyrood.
The presiding officer could allow it to be debated and it could be passed by the parliament. But it might then face legal challenges in court. Acts of the Scottish parliament can be overturned by judges if it is thought the law is outside the powers of Holyrood. The legal challenge does not need to be brought by the UK government – any Scottish citizen has the right to bring a legal action.
Notoriously this was done in 2016 when the controversial Named Persons law was challenged in court by a number of campaigners and charities. The Children and Young Persons (Scotland) Act 2014 was ruled as illegal by the UK Supreme Court. It is now currently being amended.
To ramp up the pressure on the UK government, Sturgeon has called for a vote of the Scottish parliament in mid-March to request a section 30 order. But this is one of those “symbolic” votes and would have no legal standing. It is up to May’s political judgement whether she feels she could ignore the view of Scotland’s elected parliament.
Ultimately, the legal complexities of navigating the law around a second referendum would be immense if no section 30 order was granted. This intersection of law and politics will make for a gripping situation over the next few months.
Nick McKerrell, Lecturer in Law, Glasgow Caledonian University