Referendum or Citizens’ Assembly? The Plot Thickens

Published: 25 April 2019
We are now only two years from the next Scottish Parliament elections. The current parliament will have sat for five years by May 2021, the extra year designed to prevent a clash with the UK General Election in 2020. Since there is no guarantee that the SNP will still be in power after the next Holyrood vote, the clock is ticking on its attempt to make the case once more for independence and hope that the UK Parliament will extend legal authority to hold another referendum. Right now the prospects do not look good. The UK Government is steadfastly opposed to the idea, and as MPs continue to squabble over Brexit, ‘referendum’ is not the most popular word at Westminster.
A number of points in Nicola Sturgeon’s announcement yesterday are constitutionally interesting. The First Minister seems to accept that the Scottish Parliament does not have the lawful power to legislate for an independence referendum without the consent of Westminster, and instead proposes a more modest ‘framework bill’ to lay out the procedure for such a referendum, were the authority to hold one to be granted: ‘We do not need a transfer of power such as a Section 30 order to pass such a framework bill, though we would need it to put beyond doubt … our ability to apply the bill to an independence referendum.’ Will such a framework bill itself be legal? We won’t be clearer on this until it is published, when the Presiding Officer will be asked for his view; but it is likely to be a cautious measure if the general tenor of the FM’s announcement is anything to go by.
This is clearly a non-confrontational strategy. It is arguable that the Scottish Parliament already possesses the power to go further and stage an ‘advisory’ referendum, but the Scottish Government seems unconvinced by this, and presumably does not relish a battle either with the Presiding Officer (who recently contested the lawfulness of the Continuity Bill) or with the Law Officers. At a time when the SNP seeks to win over wavering voters, a complex and potentially fraught legal battle does not make good sense. The SNP may also be hoping for an early general election, anticipating that a Labour Government would be more amenable to its call for a second independence referendum. If nothing else, the demand for another independence vote will be core to the SNP’s 2021 manifesto.
More intriguingly, the First Minister seems to be returning the SNP to a more gradualist approach to independence. We have seen this both in her embrace of the Scottish Growth Commission report last year, but now also in her proposal for cross-party talks on the constitutional future and for a citizens’ assembly. The latter would presumably be asked to consider a range of constitutional options put forward by unionist as well as nationalist parties, although it is not clear if it will be selected randomly or on a ‘representative’ basis. Given that both Scottish Labour and the Conservatives have been engaged in thinking through various ‘federal’ options for the UK, such a forum could lead to a more intriguing constitutional debate than many may at present anticipate. But would it work? Citizens’ assemblies in other countries tend to be given single issues to consider; it would be ambitious to expect such a body to engage in a much broader assessment of constitutional options, but fascinating all the same.
In making her address, the First Minister no doubt faced a dilemma in trying to appease independence hard-liners within her party while also avoiding any legally-risky steps that might backfire, particularly with undecided voters; all in the context of a Brexit process that remains entirely unpredictable. The upshot is an announcement which is very cautious in its short-term aims but which over time may well lead to a broader and more innovative constitutional debate. 
Stephen Tierney is Professor of Constitutional Theory in the School of Law, University of Edinburgh and a Senior Fellow of the Centre on Constitutional Change. He serves as Legal Adviser to the House of Lords Constitution Committee. This post is written in a personal capacity. 

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