Scottish independence and the law

21 March 2017

Theresa May says that “now is not the time” for a Scottish independence referendum. Who gets to decide when the right time for a vote is?

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A legal referendum

The UK government thinks that the UK parliament has to pass a law before a referendum can legally be held. That’s because the Scottish parliament’s powers to pass laws are limited when it comes to, among other things, “the Union of the Kingdoms of Scotland and England”.

This has been disputed by some legal academics, who argue that the Scottish parliament might have the power to call a referendum. The Scottish government also argued as much in 2012.

Only the courts can ultimately decide who’s right, as the House of Lords Constitution Committee noted in 2012 (although it agreed with the UK government).

The courts didn’t need to get involved last time around, because the UK and Scottish governments agreed to put the legal situation beyond doubt. This was achieved by a ‘section 30 order’ (referring to section 30 of the Scotland Act 1998) that temporarily lifted any restriction on the Scottish parliament’s power to arrange a referendum.

That order was approved by both the UK and Scottish parliaments.

Nicola Sturgeon, in her speech on 13 March calling for a second independence referendum, proposed another section 30 order. As that seems to have been ruled out for now by the Prime Minister, we may see a fresh legal debate about the Scottish parliament’s power to proceed without Westminster’s go-ahead.

A legally binding referendum

It’s tempting to assume that, if the Scottish parliament can’t hold a legal referendum, it could still opt for an “advisory” or “consultative” referendum with moral rather than legal force. But this is to confuse the legality of holding a referendum with the legal force of the result.

If the Scottish parliament passed a referendum act along the same lines as last time, it wouldn’t be legally binding even if authorised by the UK parliament. A vote for independence wouldn’t by itself lead to an automatic change in the legal status of Scotland.

This was acknowledged by the Scottish government in its consultation ahead of the last referendum:

“Any changes to Scotland’s position within the United Kingdom will require negotiation with the UK government and legislation in the UK and Scottish parliaments.”

It’s the same as for the EU referendum: the leave vote is an instruction to politicians, who would then have to pass the laws necessary to actually make it happen.

So in that sense, any referendum in the UK is technically advisory.

The exception is where the law setting it up makes the vote legally bindingas was the case with the Alternative Vote referendum in 2011. The law on the last Scottish referendum wasn’t like that, and the complexity of legislating for Scottish independence means that a future one is unlikely to be either.

So, strictly speaking, any Scottish independence referendumwhether held with the agreement of Westminster or notwould be an “advisory” political instruction to Scottish and UK lawmakers to act upon.

But if one were held without the UK parliament’s agreement, it may not feel the same political obligation to pass the laws necessary to actually implement the result.

As we saw last week, the UK parliament felt obliged to act upon an EU referendum vote most members reportedly disagreed witheven though it could have refused in legal theory. Similarly, there’s little doubt that it would have passed the laws necessary to facilitate Scottish independence in the event of a “Yes” vote in 2014.

Legally organised referendums “are not opinion polls”, in the words of the Constitution Committee.

The constitutional situation would be much less clear if a second Scottish referendum vote hadn’t been authorised at UK level to begin with. The argument that the UK parliament should act on the result of an “informal” referendum wouldn’t have those constitutional precedents to rely upon. It would be uncharted political territory.

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