Cross posted from The United Kingdom Constitutional Law Association (UKCLA)
The Scottish National Party emerged as the largest party in the Scottish parliamentary elections held on 6 May. It fell short of an overall majority but still won an impressive 64 of 129 seats. Nicola Sturgeon, who will be reappointed as First Minister within the new devolved administration, has reiterated the SNP’s quest for independence, claiming that a second referendum is ‘the will of the country’. She will count on the support of the Green party in her quest to hold a popular vote on separate statehood.
Such a referendum was of course held in 2014, and the proposition was rejected by a majority of voters: 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. Others argue that a devolved election cannot provide a mandate for policy that falls within reserved matters or that ‘the doctrine of the mandate plays, at best, a marginal role in UK constitutional law and practice.’
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. Given the UK Government’s rejection of a second vote the new 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 would need to attest to the legality of such a bill in a statement to the Scottish Parliament – a statement that would require to be underpinned by legal advice from the Lord Advocate; secondly, the Presiding Officer of the Scottish Parliament would also have to confirm his or her view of its legality. Ken Macintosh, who has stepped down from this role showed himself to be robustly independent in the last Parliament. We await election of a new person to this role. Thirdly, even if admitted to the Parliament, the Bill could be challenged both during and after its passage, either by UK law officers – most obviously the Advocate General – or by a private citizen, if the UK Government decides not to get involved.
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 would therefore be unlawful. There is however an argument that an ‘advisory’ or ‘consultative’ referendum could be within competence as not ‘relating’ to the Union given its limited purported effect. While such an argument had some plausibility in 2012, the legal landscape seems clearer today. In the lead up to the 2014 referendum the Scottish Government accepted that it required an Order in Council to transfer temporary competence to hold the referendum under section 30 of the 1998 Act. In a thorough review of the legal issues Aileen McHarg and Chris McCorkindale have concluded that ‘there is no legal right to insist upon Scotland’s independence or its competence to hold a referendum’.
This view is bolstered by a number of important cases in which s.29 has been interpreted. Most notably, in the very recent case of Keatings, the Inner House of the Court of Session, upholding the opinion of Lady Carmichael in the Outer House, refused to declare that the Scottish Parliament has the power to legislate for the holding of a referendum on Scottish independence, 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 suggest that the Court of Session would be very sceptical of the legality of such a bill. Any case would of course fall to be determined finally by the UK Supreme Court. But notably Lord Carloway was applying the competence test that has been repeatedly used by the Supreme Court – in Martin, Imperial Tobacco and the Continuity Bill Reference. A provision will be considered to be outside competence if it has more than a ‘loose or consequential connection’ to a reserved matter. The key question for the Supreme Court would be whether a referendum on Scottish independence would have more than such a loose or consequential connection to the Union of the Kingdoms of Scotland and England. It seems probable that it would find such a connection to exist.
If there is no legal route for the Scottish government to take then the onus will be upon political actors either to find a way to arrive at political agreement for the holding of a referendum or to make renewed efforts to restore faith in the Union, possibly arriving at a new constitutional settlement that could itself be tested by way of popular democracy. Moves are afoot which seek to reform how the UK is governed, in particular the ‘shared rule’ dimension. 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, the latter following upon earlier reports by that Committee on the Union and devolution and on Intergovernmental Relations, from which a number of recommendations have gone unimplemented. The Prime Minister has also now called for a summit on the future of the UK as the Covid pandemic seemingly eases. Many will ask why this has taken so long, given that finding 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, focused also upon international trade and renewed central investment throughout the country. We await to see how much political legitimacy the Government can generate for new efforts to revitalise the Union, taking account also of the opportunities to revitalise local democracy in England.
The political landscape therefore remains both uncertain and challenging and may well remain fraught for a long time to come. The legal issue could however be resolved before too long. The SNP administration is likely to bring forward a bill within months rather than years. If, as seems inevitable, this is challenged before the courts, the question of the Scottish Parliament’s competence to hold such a referendum without Westminster’s consent may well be settled within the next year.
Stephen Tierney is Professor of Constitutional Theory, Edinburgh Law School and Legal Adviser, House of Lords Constitution Committee. This blog is written in a personal capacity.
(Suggested citation: S. Tierney, ‘The Scottish Parliamentary Elections and the “Second Referendum” Debate’, U.K. Const. L. Blog (10th May 2021) (available at https://ukconstitutionallaw.org/))
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