The Scottish Parliament voted to hold another independence referendum but what happens next?

The Scottish Parliament voted to hold another independence referendum but what happens next?

What is Nicola Sturgeon’s plan?

She aims to seek agreement with the UK government for a temporary adjustment to be made to the Scotland act. This process, which is called a Section 30 Order, would give Holyrood a time limited power to produce legislation that would enable us to hold a second independence referendum.

What’s the hitch?

Westminster can just refuse to grant this power. Or, more likely, they can allow a referendum but only under certain conditions. If they allow a referendum, Westminster is likely to insist on harsher conditions. There is talk of them permitting a referendum only if the SNP get a Holyrood majority in 2020. They may also try to insist that there needs to be a super majority in favour of independence in the referendum for the union to be dissolved.

Couldn’t we just have a referendum anyway?

This is a matter of debate. There is currently nothing in the Scotland Act stopping Scotland having a second referendum but neither is there anything allowing Scotland to have one. The ‘union’ itself is a reserved matter. This means that while the Scottish Parliament is unlikely to have the legal right to dissolve the Union in a UDI type scenario, it may be able to unilaterally hold a non legally binding independence referendum.

As we have discussed before, just like the recent EU referendum, the last indyref was only advisory anyway and legislation needed to be put through Westminster to end the Union.  Because both parties agreed in 2014 then Westminster would probably have been bound by the result. The question then is not so much can Scotland hold a referendum without agreeing with Westminster but would that be legal and would parliament act in the event of a Yes vote?

What is the legal opinion on that?

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  • Some lawyers think that only Westminster has the right to legislate for an independence referendum(Unitary State Theory).
  • Some think that only the Scottish parliament can do so as the Scottish people have a right to self determination(Union State Theory).
  • Some think that the decision has to be a joint decision between the two parliaments (Quasi Federal Theory).

This has never been tested in court but there are reasonable legal arguments to support each viewpoint as described by Aileen McHarg.

 

While the unitary state account appears implausible as an account of the constitutional significance of the 2014 referendum viewed from a political perspective, from a legal perspective it remains incontrovertibly true that the referendum could not have taken place without the legal authority – whether express or implied – conferred by the UK Parliament.

The union state account finds plenty of political endorsement in Scotland’s recent constitutional history – from the 1988 Claim of Right, the 1997 devolution referendum, the 2014 independence referendum, and the Smith Commission’s post-referendum endorsement of the ‘sovereign right of the people of Scotland to determine the form of government best suited to their needs’.  However, it has received no unequivocal legal endorsement, and as the Miller case has also recently reminded us, constitutional claims which are recognised only politically rather than legally are vulnerable to being overridden or ignored.

Arguably, the quasi-federal account best fits the negotiated and conditional agreement that underpinned the 2014 referendum.  But a quasi-federal account is hard to reconcile with other aspects of the territorial constitution.  The kind of shared approach to constitutional change that it implies has, for instance, been notably absent from the Brexit process – and indeed is the reason why a second independence referendum has been called.

So what if we just held indyref2 without the blessing of the UK?

The problem with this approach is it is unlikely to result in independence even in the event of a Yes vote. Many people who support the union would boycott this referendum as they would feel it wasn’t legitimate. A referendum called on debatable legal grounds, which half the population didn’t participate in, at a time when that population is evenly split on the issue, will not have a great chance of making it through Westminster and the court system in my opinion.

What about unilaterally declaring independence?

This idea does seem quite popular in nationalist circles and we have talked about it before. It seems like a bad idea to me on political and legal grounds. On legal grounds it would run into some of the same problems as discussed above regarding who has the right to make these decisions. Therefore it would result in a lengthy legal challenge and no doubt a lot of bad blood between the opposing sides.

However, on political grounds there is little justification for it. I can see the point of going down that route if there was mass support for independence that was being repressed. However, support for independence is still a slight minority viewpoint in Scotland. The minority can’t decide for the majority in a democracy.

Where does that all leave us?

We are now in a situation in which the UK government is likely to try to put conditions on the holding of a second referendum. The conditions will likely try to delay indyref2 and reduce the chances of a Yes vote. However, as these conditions will be seen as political rather than principled, they may unintentionally bolster support for a Yes vote by highlighting Scotland’s lack of sovereignty.

So, I suspect to see the UK government dragging its feet and the Scottish Government kicking up a fuss about it. Maybe the SNP will go as far as holding an unofficial referendum in order to put the legal rights of the Scottish parliament to test in a court of law. Most likely they will just make political hay with the sovereignty issue.

An official referendum will no doubt happen sooner or later happen. One of the defining factors in that vote will be how the UK government is perceived to have treated Scotland with regards to the whole Brexit process. In that respect, being too draconian with regards to indyref2 will only play into the hands of the Scottish government.

Let us know what you think will happen or you want to happen in the comments below.

Much of the legal opinion in this blog came from a longer article by Aileen McHarg in the Scottish Constitutional Futures Forum.

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Bobby Hainey

Joint founder of Autonomyscotland. In my spare time I enjoy Road Cycling, Munro bagging and beer.

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4 Comments on "The Scottish Parliament voted to hold another independence referendum but what happens next?"

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Angus Skye
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I have no expertise in this whatsoever but there may be others who can comment on the merits, or otherwise, of taking the matter of an independence referendum – and the UK government’s blocking of one – to the United Nations. I believe that there is a principle of recognition of self-determination that, even if it does not win the full support of all members (the UK would veto), will put Scotland’s position on the world stage and could result in pressure on the UK government to back down.

autonomyscotland
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Might be. Although, a lot of countries seem to ignore the UK with impunity these days. Israel is the obvious example but I’m pretty sure the UK is ignoring them with regards to benefits sanctions.

Colony Dawson
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Is it possible to bring the issue before a European court/body? ISTR this was done in the years following the ’79 referendum and was a major reason why the ’97 referendum came about.

Mark Gordon
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Theresa May’s supposed blocking of Indyref2 really is no such thing. She only said now is not the time – which is just a political gamesmanship. However it is very poor gamesmanship. If she wanted to improve the chances of keeping Scotland in the UK she should agree to a referendum being held. She will then appear more reasonable – or at least no so unreasonable – and wont alienate so many who might be tempted to vote Yes instead of No. Theresa May’s supposed blocking of Indyref2 actually serves her no purpose. I fully expect her to be “persuaded”… Read more »
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