Scottish referendum: the law may not be on SNP’s side, but Boris Johnson’s refusal makes for increasingly unstable union

It’s happening again. As the dust settled on the general election, Scotland’s first minister Nicola Sturgeon announced that Boris Johnson has “no right” to prevent another Scottish independence referendum. Now the Scottish government has published a 40-page document, Scotland’s Right to Choose, which sets out the “democratic case” for indyref2.

Speaking in the Scottish parliament, Sturgeon declared the election to be a “watershed” that fundamentally altered the relationship between Scotland and the rest of the UK.

This echoed her speech of March 2017 when she wanted to hold an independence referendum in the wake of the UK’s vote to leave the EU. This request was rejected by Theresa May and led to a fall in support for the SNP in the shock election of that year. Most of that support was recovered in December’s election and the campaigning drums for indyref2 have begun again. What has still not been resolved though are the legal issues surrounding another vote on independence.

In 2012, the Edinburgh Agreement was signed by the UK and Scottish governments, following negotiations that determined the legal basis of the first 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”.

The 2012 order gave the Scottish parliament the right to pass the 2013 Scottish Independence Referendum Act, then that right was quickly transferred back to London after the 2014 vote.

When the demand was resurrected in 2017, the terrain was very different compared with five years before. In 2012, the UK coalition government played gentler mood music and recognised the authority of the SNP administration and its electoral mandate to hold a referendum.

Yet May’s government was quick to dismiss the demand. It stated baldly that “a majority of people in Scotland do not want a second independence referendum”. If anything, Johnson’s response, bolstered by a huge parliamentary majority, is even more recalcitrant.

A matter of days after his triumph he was dismissive of the demand. The Conservatives, he said, represent “a majority of people in Scotland who do not want to return to division and uncertainty”. So can the law provide any help to resolve this?

Nicola Sturgeon is pushing hard for Indyref2 in 2020. Shutterstock

Where do powers lie?

The root legal problem stems from devolution. The Scottish parliament is not completely sovereign. Reserved powers – those that remain with the UK government in Westminster – include defence, foreign affairs and immigration. The list of reserved areas can be changed and have been in the past, with more powers on tax and welfare being transferred to the Scottish parliament. However, reserved areas continue to include constitutional issues – including matters relating to “the Union of the Kingdoms of Scotland and England”.

Scottish politicians can debate these matters in Edinburgh – for instance, the Scottish parliament made its opposition to Brexit known – but the parliament cannot pass legislation on them.

Before the Edinburgh Agreement of 2012 there was a debate on whether a referendum could be held without permission from Westminster. This remained theoretical, as negotiations were concluded between the UK and Scottish governments and a legal agreement was struck for Scotland to hold a referendum on independence. Given a similar agreement does not seem imminent this debate could be resurrected, but Sturgeon is adamant that she only wants an independence referendum “that is beyond legal challenge”.

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 is a political decision – as both May and Johnson have shown.

Yet the very recent memory of the UK government’s humiliating defeat in the Supreme Court over their prorogation of Westminster in September 2019 has spurred many to consider that a similar legal action could be launched to force Johnson to concede a second referendum. Such hope is likely to be fruitless.

This is because the lack of a positive legal obligation and the refusal of the UK government to concede anything means that any court action would be seeking to review the absence of a decision rather than a proactive move like the suspension of Westminster. This is much more difficult.

Indeed, the Scottish government has been much more circumspect on the potential for legal action. Sturgeon has chosen to use the language of the “democratic case” for transferring powers rather than a legal one. Scotland is being “imprisoned in the UK against its will” – sets the tone. But again these are political pressures.

Even the newly published document by the Scottish government makes no mention of proactive legal action but rather makes a series of political demands for legal reform.

Looking ahead

If there is no section 30 order or negotiated agreement the Scottish parliament could still debate a second independence referendum bill. Normally, if the bill is outside the powers of the parliament and deals with a reserved matter, the presiding officer who chairs the Scottish parliament can give a view that the law should not be discussed.

Last year he did this with the Scottish government’s proposed Continuity Bill which dealt with the potential aftermath of Brexit. However, it was still debated and voted on as the Scottish government and the Lord Advocate took a different legal position.

Boris Johnson has refused point blank to consider a second independence referendum. Shutterstock

So a specific second independence referendum could theoretically be debated without the presiding officer’s approval and it could even be passed by the parliament. But it could then be referred to the Supreme Court by the UK government to prevent it becoming law as it is outwith the Scottish government’s powers. This was done in the case of the Continuity Bill, which was not approved by the court.

Even if this did not happen, any act could face legal challenges in court after it is passed. The legal challenge does not need to be brought by the UK government; any Scottish citizen has the right to bring a legal action.

So a referendum without a section 30 order is full of potential legal pitfalls, and there is no clear route to use the law to force the UK government to give such an order.

Curiously though, there is a Referendums Bill being debated by the Scottish parliament which is being voted on just before Christmas. This makes no mention of independence or any substantive topic but instead deals with the mechanics of how any referendum could be organised by the Scottish government.

This is a bit of a sideshow to the main attraction, but even in the discussions about this procedural law there was a concession that the question and substance of any future independence referendum would have to go through the legal process of the Scottish parliament again.

This likelihood though is purely theoretical until the fundamental division between the UK and Scottish governments is resolved. It does not seem possible that the law can resolve the issue but equally, a point-blank UK refusal to consider any change seems to promise a very unstable future for the union.

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