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Scotland: going solo?

This article first appeared in the New Law Journal.

Holyrood & Westminster: a consensual divorce? With talk of Scottish independence back on the table, Marc Weller examines the legality of the routes available

  • In June, Scottish first minister Nicola Sturgeon declared her intention to hold a second referendum on Scotland’s independence, stressing the need for such a referendum to be legally and constitutionally sound.
  • If a formal referendum is denied, the next election to the Scottish parliament will instead serve as a de facto referendum on the issue of independence.

There was a sudden rush and flutter. Late in 2020, opinion polls in Scotland appeared to swing towards independence, ahead of the regional elections scheduled for May the following year. A strong mandate for the Scottish National Party (SNP), which had promised a second referendum on independence in its manifesto, was expected.

In response, the constitutional unit in the Cabinet Office was instructed to devise a plan for making a continued union attractive. Labour activated senior stalwarts of the 2014 Scotland referendum campaign to develop an alternative to independence in the form of a looser union. The Liberal Democrats, too, scrambled to offer a third way in order to blunt the spectre of secession.

In the end, the SNP narrowly missed the supposed aim of an outright, absolute majority in the Scottish parliament. In the poll of May 2021, it gained 64 instead of the 65 required seats. On the other hand, when combined with the eight seats awarded to the Green Party, also favouring independence, Scottish first minister Nicola Sturgeon could argue that there was an overall mandate to press for a referendum.

Strangely, though, the issue then appeared to disappear from the radar screen. COVID and the need to navigate the difficult economic circumstances in the months that followed appeared to drown out the independence debate. Comfortable paralysis resumed its hold on the Westminster establishment.

However, it is now clear that the SNP was doing anything but bide its time passively. Instead, it developed a carefully crafted plan of putting maximum pressure on the government.

Nicola Sturgeon’s initiative

The first sign of movement on this issue came some weeks ago. The Scottish government introduced the first in a planned series of studies, seeking to make the case for a ‘wealthier, happier and fairer’ Scotland—and an independent one.

This series is meant to overcome the principal problem for the independists of 2014. Then, as now, there seemed to be a general sense among Scots that independence might better address their aspirations concerning the environment, social justice, immigration, etc. But, as James Carville, the campaign adviser to then US presidential hopeful Bill Clinton famously noted in 1982: ‘It’s the economy, stupid!’

In other words, considerations in favour of independence may be displaced if a radical change of the status quo seems to risk the economic wellbeing of the population. In 2014, the electorate rejected independence with a margin of 45% to 55%.

This time, the Scottish government started by making the economic case for independence, pointing to the success of several other smaller states. Then, on the last Tuesday of June, the first minister turned to the question of how to get there.

Since the flurry of activity early in 2021, there had been a standoff between London and Edinburgh. Prime minister Boris Johnson had simply refused to countenance a further referendum for an indefinite period. He could rely on the traditional presumption that Holyrood lacks the legal competence to call a referendum without agreement from Westminster.

According to Annex 4 of the Scotland Act 1988: ‘An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, the law on reserved matters’. Reserved matters are defined in Annex 5, including constitutional issues, in particular also those involving ‘the Union of the Kingdoms of Scotland and England.’

The conventional wisdom was that the UK government would in the end need to give in and accept a referendum in the shape of an order in council, also known as a section 30 order. That order would confirm that Edinburgh can legislate for a referendum in deviation of the Scotland Act 1988.

After a full year of apparent stalemate over this question, Nicola Sturgeon has now cut through that Gordian knot in one fell swoop. She simply presented a draft bill providing for a referendum on 19 October 2023. The bill includes the question to be asked, the determination of who is eligible to vote, and even the font to be used on the ballot paper.

Rather than waiting for the government to challenge the draft in the courts, the first minister reversed the order of proceedings. She accepted that the authority of the Scottish parliament to go ahead without the agreement from Westminster would be legally disputed. To clarify the situation at the outset, she reported that she had asked the Lord Advocate of Scotland to refer the matter to the Supreme Court. This reference would be made the very day of the announcement of the draft bill.

Should the ruling go against the government, she added, the SNP would run in the next electoral campaign on the single issue of Scottish independence, turning the poll into a de facto referendum. In the meantime, she remained open to agree terms with the government.

The SNP strategy appears to consist of three elements, seeking to move the issue onto a railroad track that only goes one way—towards a referendum and independence. It relies on the principle of legality, the doctrine of democracy and finally, after all, the hope for eventual consent from Westminster.

The need for legality & a consensual divorce

First, the Scottish government lays claim to the principle of legality. ‘Respect for the rule of law means that a referendum must be lawful,’ the first minister noted. ‘An unlawful referendum would not be deliverable. Even if it was, it would lack effect. The outcome would not be recognised by the international community.’

This view is correct. Independence has to be brought about through a divorce by agreement. Otherwise, Scotland might fall into a position of international legal limbo. Somaliland, for instance, has governed itself as an independent state for some three decades. However, pending acceptance of this fact by the dysfunctional, central authorities of Somalia in Mogadishu, there have been no significant international recognitions.

More specifically, in this instance, one of the key aims of Scottish independence is to reclaim EU membership. This requires unanimous support from all existing members. While Kosovo has been recognised by over half of the world’s states, five EU members (Spain, Romania, Slovakia, Cyprus and Greece) have not done so, blocking its entry to the European Union. The stumbling block for these states is the continued opposition of Serbia, from which Kosovo seceded, to Kosovo’s independence.

These five states would likely reject any further precedent in favour of secession without the active support and consent from the central authorities of the affected state. Only if the process towards independence is visibly consensual and lawful could EU membership become possible. Hence, the emphasis on ‘legality’.

Moreover, the SNP seems to have accepted that this is legality according to the UK constitutional order, rather than international law and the principle of self-determination in a broader sense. This is the rather controversial lesson from the case of Catalonia. The Spanish constitution positively prohibits unilateral secession. This provided cover for the Spanish authorities to disrupt, in a rather heavy-handed way, the attempt by the Catalonian regional government to hold a referendum in opposition to Madrid.

The result was unclear and EU states left it to the Spanish authorities to address the issue as a matter of domestic law, rather than in terms of international law and the international principle of self-determination. Hence the Scottish determination to clarify UK domestic law through the Supreme Court.

Reserved matters

If the Supreme Court agrees to rule on the reference, how will it decide? In her statement to the Scottish Parliament, the first minister noted at some length that the proposed referendum would be consultative only. She emphasised that the bill would not be ‘self-executing’.

Under this view, the referendum and any bill providing for it would not amount to legislation in relation to the reserved constitutional arrangements as it would not immediately affect those arrangements. No change to constitutional matters would necessarily flow from holding the referendum, which would merely assess the popular view.

For the opposing side, the Scotland Office in London has asserted that under the Scotland Act 1988, ‘our clear view is that the constitution is reserved to Westminster,’ implying that a consultative referendum would affect the constitution.

On this point, the argument is finely balanced. True, the referendum itself would not cause an immediate change in constitutional arrangements. On the other hand, the intention of holding the referendum would of course be to press for and effect such a change.

A clear referendum result supporting independence would generate a strong constitutional claim for termination of the union. This claim would be based on the democratic principle, and on the rule of self-determination in international law, both of which could not be easily ignored by the government.

Nicola Sturgeon was at pains to explain that this further referendum would be ‘exactly the same as the referendums of 1997, 2014 and 2016,’ which had also been consultative. Yet, the Edinburgh Agreement reached by the sides in 2012 provided for a referendum in 2014 that would deliver ‘a decisive expression of the views of the people in Scotland and a result that everyone will respect’. Presumably ‘everyone’ would include the government and other constitutional organs, who would be expected to implement the result. The agreement also contained a concluding provision pledging mutual cooperation in ‘the light of the outcome, whatever it is’.

If there is such a strong expectation that the will of the people, once made manifest, must be respected, then it could be argued that even a consultative referendum is indeed an act actually or potentially affecting the constitution and the union. Presumably, should it win, the SNP itself would very much insist that the result of the referendum must be acted upon.

Relevance of the previous section 30 order

An additional question might be whether previous practice confirms that a section 30 order is indeed required. After all, the 2014 referendum was preceded by the Edinburgh Agreement and the resulting order. So, if the order was necessary then, why would it not be necessary now? And, indeed, why would the Scottish government have spent a year in futile attempts to obtain a further order in support of the second referendum if no order was required in the first place?

The Edinburgh Agreement states that a section 30 order in council is required to ‘allow’ a referendum to be held. This wording might suggest that no referendum can be held without such an order. However, the drafters of the agreement noted in the next sentence that:

‘The Order will put it beyond doubt that the Scottish Parliament can legislate for that referendum’.

In choosing this wording ‘put beyond doubt,’ the sides were careful to avoid a definite finding on the legal necessity or otherwise of an order in council. As the sides had managed to agree to a section 30 order, the question of whether such an order was legally necessary did not need addressing.

The first minister of Scotland has now used the same formulation when informing the UK prime minister of the reference to the Supreme Court. In her letter of 28 June, she noted that her approaches to the prime minister to achieve a further section 30 order were intended ‘to put the legal basis of a referendum beyond any doubt’. Hence, there has been no admission that such an order would actually be legally required.

Wrong focus of the question?

According to that letter, the reference put by the Lord Advocate to the Supreme Court concerns ‘the question of whether Scottish Parliament legislation for such a referendum relates to reserved matters’.

If that is the full extent of the question asked, the Scottish government may have inadvertently given up on a potentially far stronger challenge to London’s authority. The focus lies exclusively on the issue of competence. If the answer is that Scotland has no competence to pass the bill without a section 30 order, that ends the matter.

But there is a further question that is rather more interesting: even if agreement from Westminster is required for a referendum, can such agreement be unreasonably withheld?

The UK government has accepted that Scotland is a self-determined unit. Having agreed to an earlier independence referendum, it cannot deny that the people of Scotland are entitled to change their status through an act of will.

In this sense, the situation is very different from that in Catalonia. The Spanish constitution positively rules out secession. In this case, through its own conduct over many years, the UK government has generated a legally protected expectation that allows for independence in principle.

But if the people of Scotland have a positive entitlement to self-determination, and if the only way to actualise that entitlement is a referendum, it follows that a referendum may not be unreasonably withheld.

Self-determination means that the people decide. It does not mean that the central government can decide whether the people can decide. That would render the right to self-determination illusory and meaningless.

It is true that the central government is entitled to oppose an unending series of referenda, held in rapid succession until the secessionist side eventually prevails. On the other hand, the argument that a referendum is a ‘once-in-a-lifetime event’ is not persuasive either. This is an argument of political convenience and not a reflection of any constitutional or international legal rule.

The fact that then first minister Alex Salmond is said to have endorsed the ‘once in a generation’ view when the Edinburgh Agreement was concluded is not legally decisive. What matters is the underlying legal right of Scotland and its people.

An interval of around ten years, when the electorate will have changed to a significant extent, sounds reasonable. Indeed, in many places around the world, referenda of this kind have been repeated at shorter intervals. It is also true that Brexit has created a fundamental change of circumstance that would, in itself, be a ground for an early referendum.

We win, even if we lose

Nicola Sturgeon has announced that losing the battle in the Supreme Court on the matter of legislative competence would not end of the matter. The first minister has announced that she will then switch from the ‘rule of law’ track to an alternative argument, relying instead on the democratic principle; even if we lose, we win, as it were.

The argument would be that the will of the democratic majority in Scotland cannot be ignored, however that will is made manifest. If a formal referendum is not possible, the next election to the Scottish parliament will serve as a de facto referendum.

Legally, a major change in status of a territory and population can only take place after the will of the affected population has been established. And it is true that this need not necessarily take the form of a formal referendum. However, even if there is a single-issue manifesto offered by a principal party, it is not always easy to tell what motivated the voters on the day of a general election.

If the elections can be said to represent a clear popular choice in favour of independence, the result might be similar to that of a referendum. As the Canadian Supreme Court has held in a reference concerning Quebec, in a democratic state the central government could ‘hardly remain indifferent’ to a clear expression of popular will favouring independence.

According to that ruling, the central government would be obliged to enter into good faith negotiations. These negotiations might result in a decision to hold a formal referendum after all, to verify that the electoral choice really was a vote for independence. Or there might be immediate discussions about moving to independence, if it is beyond doubt that the election result can be equated to an act of will in favour of independence.

In this sense, the SNP may feel to have settled on a tough-guy strategy that will produce a win in any event. Even if Edinburgh loses on the rule of law track, the central government cannot prevent the Scottish elections, and neither can it determine the manifesto the SNP will campaign on.

As the first minister suggested, losing in the Supreme Court would perhaps even strengthen the SNP argument that the UK constitution disenfranchises the people of Scotland: ‘It will clarify that any notion of the UK as a voluntary union of nations is a fiction and that that the UK is a partnership of equals is false.’ But there are risks. Announcing rigid adherence to legality, but only if the law delivers the result sought by the SNP, exposes the party to allegations of hypocrisy.

A great gamble

It is also not clear whether the SNP could actually make good on its threat to press on regardless if it loses in the court. If the Scottish government visibly departs from the framework of constitutional legality it has so unhesitatingly accepted, it empowers Westminster to oppose any further moves. No10 would claim to defend the law, rather than obstructing the legitimate wishes of the population of Scotland. Edinburgh would lose the one key thing it needs—a consensual process towards independence that would allow other states to recognise it and to approve EU membership.

The narrow framing of the reference at this early point (if indeed it is framed as narrowly as the first minister has suggested) also has risks. It reduces Scotland’s case for independence to one of procedure and competence concerning a referendum. But this is terrain dominated by the unionists, who have after all crafted the legal framework that determines these points.

The broader questions about the right of the people of Scotland to articulate their will and have it acted upon, which would likely favour Edinburgh, could be excluded from the case. In short, the legality of the Scottish campaign would become a matter of process, not of substance. This means giving up a strong set of legal arguments in favour of independence.

Perhaps more likely, both sides may yet step away from the brink. A negotiated outcome is still possible. A compromise might be, for instance, to agree on a referendum for 2024, ten years after the initial poll. This would allow the Scottish government to withdraw in dignity from its risky hard-line strategy on process, and instead focus on substance. The government, too, could claim a win in delaying the poll. And this outcome would also allow enough time for the unionist parties to get their act together and develop a credible alternative to independence they might put on the table before the referendum.

Other related articles:

Marc Weller, ‘A federal Scotland: Proposal for a Memorandum of Offer on how Scotland would be governed according to federal principles’, The Scotsman, 21 March 2021

Marc Weller, ‘How federalism for Scotland could satisfy both nationalists and unionists’, The Scotsman, 21 March 2021

Marc Weller, ‘Could Scotland stage an independence referendum without UK approval?’, The Scotsman, 25 January 2021