Aileen McHarg, Professor of Public Law and Human Rights, discusses the paths to independence for Scotland following the First Minister's statement earlier this week, including a new 'plan C' - the next UK general election.
On Tuesday, Nicola Sturgeon set out her “route map” for securing Scotland’s independence, setting a date for a second independence referendum to be held on 19 October 2023. Her “Plan A” remains a consensual referendum, following the precedent set in 2014, and she has renewed her request to the Prime Minister to, once again, amend the Scotland Act 1998 (via a s.30 Order) to make clear that Holyrood can legislate for a referendum. However, she gave more details of how she would seek to advance Plan B: a unilateral referendum held in the absence of a s.30 Order. And, for the first time, she set out a Plan C, for use in case both previous options fail.
For Holyrood to authorise a referendum unilaterally, two obstacles must be overcome. First, the minister introducing a referendum Bill must certify that it is within the Parliament’s legislative competence, and under the Scottish Ministerial Code, that certificate must be cleared with the Scottish Government’s Law Officers. Secondly, if legislation is passed by the Parliament, it must survive the inevitable legal challenge to its competence. Given that no Bill has yet been introduced into the Parliament, though a draft Bill was published in March 2021, it is reasonable to assume that the Law Officers have significant doubts about whether a Bill is within competence.
On Tuesday, a revised independence referendum Bill was published, but still not introduced into the Parliament. Instead, in an unexpected move, the First Minister announced that the Lord Advocate had agreed to refer to the Bill to the Supreme Court, prior to its introduction, using an obscure provision in the Scotland Act. This provision enables the Lord Advocate to refer “devolution issues” to the Supreme Court which are not the subject of any other legal proceedings, including “any … question arising by virtue of this Act about reserved matters”. That reference was also made on Tuesday.
This is a clever move in three respects. First, it seeks to accelerate the resolution of the long-running legal dispute about whether Holyrood can legislate unilaterally for a referendum. In so doing, the First Minister hopes both to make it more likely to that her preferred referendum timetable will not be derailed, and to move the independence debate on from issues of process to questions of substance. Secondly, it wrong-foots opponents of a second referendum. Since a Bill will only be introduced into the Parliament if the Supreme Court has held that it is within competence, allegations that it is an illegal, or unofficial, or “pretendy” referendum will be less credible. Unionists may still choose to boycott it of course (as nationalists in Northern Ireland did in relation to the unimpeachably lawful 1973 Border Poll), but the political risks of doing so will be higher. Thirdly, a pre-introduction reference avoids the need for the Lord Advocate to commit to a statement that a Bill is within competence until such times as its lawfulness has been established. In referring the Bill at this stage, she is only recognising that there is a legal issue to be resolved, not committing personally to the view that it would be within competence.
However, this strategy is not without risks.
To begin with, it is not clear whether the Supreme Court will agree to accept the reference. On the only two previous occasions (in 2019 and 2020) where this reference procedure has been used, the Supreme Court refused to accept references made by the Attorney General for Northern Ireland, holding in both cases that there were alternative live proceedings in which the legal issues could be addressed and, in the second case, that it did not in any case raise devolution issues. These specific arguments do not appear to apply here. Nevertheless, lower courts in both Scotland and England and Wales have previously refused to decide what they regarded as hypothetical cases seeking to resolve issues regarding the scope of devolved competences, instead insisting that challenges be brought to particular pieces of legislation actually passed or enacted by the devolved legislatures using the statutory procedures specifically designed for that purpose. Although these previous cases did not explicitly address the possibility of using this alternative reference procedure (indeed, it is unlikely that anyone even thought of the possibility), the Supreme Court may be reluctant to open up a new mechanism for testing the competence of proposed rather than actual Bills. On the other hand, if it refuses to accept the reference, it may leave the devolved governments in a Catch-22. In other words, there may be such significant uncertainty about the lawfulness of legislating in particular ways that no Bill can ever be introduced and hence the uncertainty can never be authoritatively resolved.
The second risk that the First Minister’s strategy faces is, of course, that the Supreme Court will hold that a unilateral referendum is not within the Scottish Parliament’s legislative competence. The latest draft Bill differs from the previous draft in that it contains a clause stating that “The purpose of this Act is to make provision for ascertaining the views of the people of Scotland on whether Scotland should be an independent country.” In other words, this stresses that the intended effect of the referendum is advisory only; it will not, by itself, have any legal effect on the future of the Union. In so doing, the Scottish Government is seeking to reinforce its argument that a consultative referendum would not “relate to” the reserved matter of the Union, in the more than “loose or consequential” sense that the courts have hitherto required. In a forthcoming article, Scott Wortley points out that such clauses have previously been taken into account in resolving disputes about the competence of Bills. Nevertheless, it does not change the fact that the Supreme Court is more likely than not to hold that even a consultative referendum relates to the reserved matter of the Union.
If the Supreme Court finds that the Bill is outwith competence, then Nicola Sturgeon has made clear that no referendum will be held, unless the UK Government has a change of heart and agrees to grant a s.30 Order. In so doing, she has re-emphasised what was already clear: that she will not risk the lack of international recognition that would be likely if independence were to be secured via an extra-constitutional route.
Even if the Supreme Court does hold that a unilateral referendum is within competence, that would not necessarily be the end of the matter. It would still be open to the UK Parliament to amend the Scotland Act to reverse the Supreme Court’s decision. That would, however, require primary legislation, and an open defiance of the Sewel Convention. The UK Government could also simply ignore the outcome of a unilateral referendum. But again that would be more difficult politically if the referendum has the backing of a Supreme Court ruling.
If it proves impossible to hold a lawful referendum, Plan C will come into play: to make the next UK general election into a “de facto referendum”, with the SNP fighting the election on the single question “should Scotland be an independent country?”
It has been suggested that there is no such thing as a “de facto referendum”. But there certainly are historical precedents for general elections being fought on single issues (for example, the January 1910 General Election on the Liberal Government’s People’s Budget), and at one time it was quite widely argued that extraordinary general elections should be required to authorise constitutional change (such as home rule for Ireland). More pertinently perhaps, Sinn Féin fought the 1918 General Election on a manifesto commitment to establish an Irish republic and regarded its landslide victory in Irish seats as giving a mandate to establish a provisional Dáil Éireann and issue a Declaration of Independence. Indeed, prior to the establishment of the Scottish Parliament, the SNP’s policy was to treat the election of a majority of SNP MPs in Scottish seats as a mandate to negotiate independence.
Plan C is, however, a much less attractive route to independence than a referendum. It is unclear what would constitute a majority (seat or votes?); the electorate would be less inclusive (e.g., 16 and 17 year olds, and non-Commonwealth citizens lawfully resident in Scotland would not have a vote); and there is no guarantee that either the electorate or other parties would play along (although there is less risk of other parties boycotting the vote altogether). And, of course, there is again no guarantee that the UK Government would agree to respect the SNP’s mandate.
Issues of process are therefore likely to continue to dominate the independence debate for some time to come, although the First Minister’s announcement has moved the terms of that process debate on somewhat.
What the SNP is more clearly facing up to are both the opportunities and obstacles created by the silence of the UK constitution on the question of Scottish secession. Ultimately, all that is necessary to achieve independence is the agreement of the UK Parliament, and there are different potential routes by which sufficient political pressure can be brought to bear to secure that agreement. However, the consent of the UK Parliament is undeniably necessary at some point in the process, whether that is freely given at the outset, or reluctantly forced at the end.
By Aileen McHarg, Professor of Public Law and Human Rights, Durham University