Stephen Tierney (Edinburgh Law School)
Although the Scottish National Party emerged as the largest party in the Scottish parliamentary elections held on 6 May, it has fallen short of an overall majority, winning 64 of 129 seats. Nicola Sturgeon who will be reappointed as First Minister within the devolved administration is bullish about the SNP’s quest for independence, claiming that the result is nevertheless ‘the will of the country’. She will hope to count on the support of the Green party in her campaign to hold a second referendum on independent statehood.
Such a referendum was held in 2014, and the proposition was rejected by a majority of voters by 55%-45%. The SNP claims political legitimacy for its demand to hold a second referendum on various bases, not least the withdrawal of the United Kingdom from the European Union. Voters in Scotland opted for the remain option by 62%-38% in the 2016 UK referendum on EU membership.
This political story is set to be a long one. The UK Government has rejected calls for another referendum, in the medium term at least. It acceded to the 2014 referendum and helped facilitate a lawful vote which was widely seen to have been a success in containing the kind of political friction that often attends secessionist processes, not least the trauma that Catalonia has endured over the past decade. The Spanish experience casts a shadow over the post-election drama in Scotland. The new minority SNP administration will almost certainly seek to bring forward a draft independence referendum bill which it has already drafted.
There are several legal hurdles to a second referendum under the Scotland Act 1998. The first is that the Scottish Government’s own law officers would need to attest to the legality of such a bill in a statement to the Scottish Parliament; secondly, the Presiding Officer of the Scottish Parliament would also have to confirm his or her view of its legality. And even if admitted to the Parliament it could be challenged both during and after its passage, either by UK law officers, most obviously the Advocate General, or by a private citizen.
It would appear, based upon the interpretation of the Scotland Act by the courts in several important recent cases and in the eyes of expert commentators that such a referendum bill would most likely be found to be beyond competence. Under s.29 of the Scotland Act an Act of the Scottish Parliament is outside competence if it ‘relates to reserved matters’. What constitutes reserved matters falls to be determined ‘having regard … to its effect in all the circumstances’ (s.29(3)). In Schedule 5 ‘the Union of the Kingdoms of Scotland and England’ is a reserved matter. On one reading it seems intuitively obvious that a referendum that seeks to end the Union of Scotland and England ‘relates’ to that Union and therefore be unlawful. In a recent case the Inner House of the Court of Session, Scotland’s highest appeal court below the UK Supreme Court, refused to declare that the Scottish Parliament has the power to introduce a referendum bill, stating that the matter was ‘premature, hypothetical and academic.’ Lord Carloway, the Lord President, also stated that while the issue of substance was perhaps an issue for another day, ‘it may not be too difficult to arrive at a conclusion’. This seems to hint that the court does not view such a bill as lawful. Any case would however fall to be determined finally by the UK Supreme Court. It will be interesting to see if it takes the same view; notably Lord Carloway was applying the competence test previously used by the Supreme Court here and here.
If the Bill is blocked legally then the onus will be upon political actors either to agree to such a referendum or to make efforts to restore faith in the Union by those who challenge its legitimacy, possibly testing a new constitutional settlement by way of popular democracy. Other moves are afoot which seek to answer the pressing call by Scottish nationalists for a louder voice in central decision making. For example, a review headed by Lord Dunlop on the Union and an ongoing inquiry by the House of Lords Constitution Committee on the Future Governance of the UK, which follows upon earlier reports by that Committee on the Union and devolution and on Intergovernmental Relations. In much of this work the ‘shared rule’ dimension of the United Kingdom’s territorial arrangements has been found to be lacking. The Prime Minister has also now called for a summit on the future of the UK after the Covid pandemic. Many will ask why this has taken so long, given that imaginative ways of better involving the diverse territories of the UK in central governance has for a long time been of clear and vital importance. Moves towards improved intergovernmentalism are indeed crucial as the UK Internal Market Act takes effect and the UK seeks to build a strong internal economy after the Covid pandemic, focused also upon international trade and upon UK investment throughout the country. The UK government in rejecting the legality of any second referendum must, if such a rejection is to enjoy widespread political legitimacy, also offer a political alternative that will meet with widespread support as a way to forge a stronger United Kingdom.
The issue of secession is of course not unfamiliar to the European Union. During the Catalan crisis of 2017 it showed that it had no willingness to support claims by separatist movements to independence, particularly if the referendum is illegal under domestic law; the Lisbon Treaty also commits the Union to ‘ensuring the territorial integrity of the State’. The United Kingdom is of course not a member state and voices within the EU may seek to weaponise friction over the Anglo-Scottish union as a way of perpetuating a campaign of grievance over the UK’s withdrawal, in the way Northern Ireland has arguably been used. To do so however would be contrary both to the spirit of the Trade and Cooperation Agreement and to wider commitments to a close and fruitful relationship between the UK and the EU; it would also set a dangerous precedent for Spain, Belgium and possibly other EU member states. While the EU will watch political developments with interest it is imperative that the UK, and Scotland within it, are left to settle this difficult question through their own legal and political processes.
Stephen Tierney is Professor of Constitutional Theory, Edinburgh Law School and Legal Adviser, House of Lords Constitution Committee.
The views expressed in this blog reflect the position of the author and not necessarily that of the Brexit Institute Blog.