Friday, 21 October 2016

Scottish Independence ~ a further referendum?

The European Union (EU) referendum on 23rd June 2016 concluded with a UK-wide vote in favour of leaving the EU but Scotland voted by 62% to 38% to remain.  Earlier post - It is Brexit (1).

Politically, this was bound to result in calls for a further referendum on Scottish Independence.  The referendum held in 2014 rejected Scottish Independence but that was before the 2015 General Election when the Conservative Party secured a small overall majority in the House of Commons.  The Conservative Party's election manifesto promised a referendum on EU membership before the end of 2017 and it was held on 23rd June 2016.


On 20th October 2016, the Scottish government announced a consultation on Scottish Independence and published a draft Bill aimed at achieving a further independence referendum.  See the draft Bill.

The announcement states that - "Following a commitment in last month’s Programme for Government, the draft bill has been prepared to protect Scotland’s interests in light of the UK vote to leave the EU and the overwhelming vote across Scotland to remain. Having the bill available will allow all options to be available to the Scottish Parliament to protect Scotland’s continuing relationship with Europe.

The draft bill proposes that any referendum would be run in a way similar to 2014, with technical adjustments to reflect recent changes in elections law and procedures such as individual registration.  The franchise will be the same as that for the Scottish Parliament."

The consultation points out that the franchise will extend to 16 and 17 year-olds and citizens of EU countries who have made Scotland their home.  Those groups did not have the right to vote in the 23rd June EU referendum.

Legislative competence:

The draft Bill  seeks to apply the Scottish Independence Referendum Act 2013 to the proposed independence referendum.  The 2013 Act was an Act of the Scottish Parliament to make provision, in accordance with paragraph 5A of Part 1 of Schedule 5 to the Scotland Act 1998, for the holding of a referendum in Scotland in 2014 on a question about the independence of Scotland.

For the purposes of the 2014 independence referendum, Schedule 5 of the Scotland Act was modified by Order in Council made under powers in the Scotland Act 1998 section 30.  That modification specified that the Scottish Independence referendum had to be held by 31st December 2014.

Interestingly, the Union of the Kingdoms of Scotland and England is a reserved matter and the Scottish Parliament does not have competence to legislate for reserved matters.  However, the view in Scotland appears to be that further modification to the Scotland Act 1998 will not be required to permit a further consultative independence referendum to lawfully proceed.  

This is a point to which we may have to return at a later date because it must be arguable that for Scotland to legislate for an independence referendum must necessarily amount to legislating about a reserved matter.  The use of the section 30 Order referred to above circumvented this problem in relation to the 2014 referendum.  For an interesting discussion on this point see UK Constitutional Law Association blog - Graeme Cowie - Scotland and a Second Independence Referendum.

Other points:
If the result of the proposed referendum was in favour of independence then the Scottish government would certainly have a strong hand in pursuing actual independence with the British government.

The UK government is pressing ahead with its "Brexit means Brexit" plans to give notice to the EU under Article 50 of the Treaty on European Union.  So far, the UK government is determined to implement the EU Referendum result and appears to plough on regardless of many consequences including the potential for break up of the United Kingdom as a Union of four nations (England, Wales, Scotland and Northern Ireland).

The role of the UK Parliament in Brexit has been the subject of a High Court hearing and an appeal to the UK Supreme Court will be likely regardless of which side is successful in the High Court.  There are similar proceedings in Northern Ireland.   The key issue in the litigation is whether, following the 23rd June referendum, Ministers are empowered to use Royal Prerogative powers in relation to treaties to issue the notice under Article 50.  The High Court judgment is expected in the near future. 

The UK government certainly seems determined to prevent the UK Parliament voting on whether notice should be given to the EU.  A vote has been promised on the eventual terms of leaving but for many that presents a stark choice between accepting the deal or leaving the EU without a deal.  It is here that the question of whether a notice under Article 50 is reversible could assume particular importance.  Legal opinion is divided on this and, as a question of EU law, it could only be decided finally by the Court of Justice of the EU. 

Those who wish to respond to the Draft Bill proposal may do so up to 11th January 2017.

1 comment:

  1. Here is what I wrote in a letter to The Times in February 2012. It applies equally to any new independence referendum.

    Sir, Yet again an article in your pages (“Ministers to discuss vote as one-question”, Feb 4) proceeds upon the assumption that before the Scottish Government can lawfully hold an independence referendum there must be a transfer of powers (by means of a section 30 order) by the United Kingdom Government; and that this fact gives the UK Government the opportunity to attach restrictive conditions as the price of any such transfer. This is an all-too prevalent misconception.

    The Scottish Government’s present legal position on entitlement to hold a referendum is a strong one. Any conditions sought to be imposed by the UK Government can therefore be considered strictly on their merits and not as a price that must be paid, however reluctantly, in order to secure authority lawfully to hold a referendum at all.

    Notwithstanding the restrictions on the Scottish Government’s devolved competence contained in the Scotland Act 1998, no-one disputes that it can lawfully make proposals to, or hold conversations or enter into negotiations with, the United Kingdom Government about (i) altering the constitutional position of Scotland or (ii) widening the devolved powers of the Scottish Government and Parliament (including amending or removing some or all of the matters reserved to the United Kingdom which are set out in Schedule 5 of the Act).

    That being the case, it is inconceivable that any court would hold that it was beyond the legal power of the Scottish Government to promote legislation to enable it to consult the Scottish electorate (by means of a referendum) about whether the Scottish Government should or should not make such proposals to, or hold such conversations or enter into such negotiations with, the Government of the United Kingdom. This is reinforced by section 101(2) of the 1998 Act which provides that any provision of an Act of the Scottish Parliament is “to be read as narrowly as is required for it to be within competence, if such a reading is possible, and is to have effect accordingly”.

    That does not, of course, exclude the possibility that referendum legislation might be challenged, as being beyond the Scottish Parliament’s powers, in the courts of Scotland and all the way to the UK Supreme Court. But any such challenge would be doomed to failure.

    Professor Robert Black QC