In a extract from their contribution to the recent ebook ‘Scotland’s new choice: Independence after Brexit’, Chris McCorkindale and Aileen McHarg explore the legal route to independence, but ultimately conclude the vote "will be a matter of politics and not law."
On March 22nd 2021, the Scottish Government published a Draft Independence Referendum Bill. The Bill envisages a significant degree of continuity with the 2014 vote, notably in the proposal – subject to testing by the Electoral Commission – to repeat the yes/no ballot on the question ‘should Scotland become an independent country’. However, despite a desire for continuity, there are some notable proposed changes from 2014. First, whereas the 2014 referendum question was published in English only, the Scottish Government has made a commitment to translate the referendum question into Gaelic (subject to additional testing by the Electoral Commission). Second, and bringing the referendum franchise back into line with the now expanded franchise for local government and Scottish Parliament elections, the Bill would extend the right to vote in a second referendum to foreign nationals with leave to remain in Scotland (or who do not require such leave) and to prisoners sentenced to terms of 12 months or less. On timing, the Bill leaves it to the Scottish Parliament to determine when the referendum should be held, subject to a number of considerations including the state of the Covid-19 pandemic, but sits alongside the stated preference of the Scottish Government to hold a referendum in the first half of the next Scottish Parliament. Finally, the Scottish National Party has committed to introduce the bill into the Scottish Parliament only if a pro-independence majority (though not necessarily an SNP majority) is elected to the Scottish Parliament in May.
In our chapter, which preceded but anticipated the publication of the draft bill, we are concerned less with the legal form of a second independence referendum and more with its legal validity. In short, we are concerned with where the constitutional power lies to authorise the introduction, passage and enactment of any independence referendum bill. We ask, why does the legality of a second referendum matter, and how might a legally valid referendum be secured. Legality matters for both internal and external reasons. In order for independence to gain losers’ consent and to encourage good-faith negotiations by the UK Government in the event of a “yes” vote, it is essential that it is secured on a consensual basis according to legally valid rules that bind all those involved. Moreover, independence is much more likely to be effective on the international plane (i.e., a new Scottish state recognised by the international community of states and by international organisations such as the EU) if it is seen to be legally valid as a matter of domestic constitutional law.
In order to proceed on an unambiguously lawful basis, the Draft Independence Referendum Bill might draw its authority from one of two sources. The Scottish Government’s preferred option would be for the UK government (as was the case in 2014) to transfer power to the Scottish Parliament to legislate for a referendum via an Order under section 30 of the Scotland Act 1998. This would put the legal validity of the Bill beyond doubt but might come at the political cost of negotiation over the form of the referendum (the question, the timing, and/or the franchise). As it stands the UK Government’s position is to refuse any request for a section 30 Order, on the ground that there has been an insufficient passage of time to justify re-visiting 2014’s “once in a generation” vote. Contrary to some suggestions, the UK Government cannot be forced through litigation to make a section 30 Order. So, whilst political pressure might be exerted to change the UK Government’s position (most obviously, via the election of a clear pro-independence majority in May) the Scottish Government has also had to consider alternative legal pathways to a second referendum. Its Plan B, if a pro-independence majority is elected in May, is to introduce the proposed Independence Referendum Bill even in the absence of a section 30 Order and to face down the inevitable legal challenge to that legislation (either via a pre-enactment reference to the UK Supreme Court by the UK Law Officers, or by a post-enactment challenge by any interested party). In this scenario, either the Bill will be held to be outside of the Scottish Parliament’s legislative competence and no referendum will take place (any talk of a so-called “wildcat” or “Catalan-style” referendum is therefore highly misleading), or the Bill will be held to be within the competence of the Scottish Parliament and (assuming there is no subsequent amendment of the Scotland Act by the UK Parliament to pre-empt the court’s decision, as happened with regard to the Scottish Continuity Bill in 2018) any resulting referendum will be lawful.
While there is room for debate on who may authorise a referendum, there is no doubt that only the UK Parliament can authorise the dissolution of the Union itself. This is why the commitment in the Edinburgh Agreement to abide by the result of the 2014 referendum was so important, albeit not itself legally binding. It with this fundamental legal reality that all proposals that try to circumvent the need for a referendum (for example by drawing the authority to begin independence negotiations themselves from a pro-independence Holyrood majority) eventually collide. Certainly, there is no legal requirement that independence be triggered by a referendum. All that is required is to persuade the UK Parliament to legislate to dissolve the union. However, there is no legal short cut to that result. Ultimately, we argue, that will be a matter of politics and not law.