In the run up to the Scottish Parliamentary election on 6 May, the possibility of another Scottish independence referendum has been at the centre of the political and constitutional debate. The SNP published an 11-point plan that states that, if it remains in government and there is a parliamentary majority to do so, it will request a section 30 Order from the UK government to put the legality of the referendum beyond doubt and enable it to go ahead on a negotiated basis. However, the SNP’s plan also states that if the UK government refuses to grant the order, they will proceed with the referendum regardless, and it has recently published a draft independence referendum bill to his end. On the other hand, the UK government has consistently stated it will not grant the section 30 Order, whatever the outcome of the vote, and claimed that it would be illegal for the Scottish Parliament to legislate for the referendum without it. A recent private challenge brought to clarify whether the Scottish Parliament has the competence to unilaterally legislate for an independence referendum was unsuccessful, as the Outer House of the Court of Session said that the matter was still hypothetical, academic and premature. This has just been confirmed by the Inner House on appeal.
The above seems to point to a very different situation to that which occurred in 2014. Then, the Scottish referendum was conducted on the basis of the ‘Edinburgh Agreement’ between both governments. The contemporary situation, by contrast, presents parallels with the process that led to the contested independence referendum held in Catalonia in 2017. This post aims to consider the similarities and differences of the current context in Scotland with the Catalan process.
1. Would legislation for the referendum enacted by the Scottish Parliament be illegal?
The 2014 Scottish independence referendum sets a clear precedent that such a referendum is compatible with the UK constitutional framework. This is a significant difference from the Catalan case, where the Constitutional Court ruled on successive occasions that such a referendum would not be compatible with the Spanish Constitution. Any debates on the ‘legality’ of a second Scottish independence referendum then refer to the question of whether the Scottish Parliament can legislate unilaterally for the referendum to take place. The competence of the Scottish Parliament to legislate for an independence referendum has so far not been tested, so it is therefore unclear if it can do so in accordance with the provisions of the Scotland Act 1998. Furthermore, as matters currently stand, and in particular in the light of the Inner House’s recent decision confirming that a court cannot decide on this question in the abstract, it appears that this can only be resolved with a specific bill being considered and passed in the Scottish Parliament.
As a result, if there is a pro-independence majority in the Scottish Parliament after this week’s election, it is perfectly legal and legitimate for the Scottish Parliament to legislate for a second independence referendum if the Scottish and UK governments cannot reach an agreement. It does seem, however, that in such a case the Scottish Parliament’s bill would be referred to the Supreme Court by the UK Law Officers for being outwith the Scottish Parliament’s competence. The question of whether the Scottish Parliament has the competence to legislate for an independence referendum is, of course, a legal question regarding the interpretation of the Scotland Act 1998 that can be decided by the courts. However, as occurred in Catalonia, this will place the Supreme Court at the centre of the political conflict between the Scottish and UK governments, and will risk the court’s decision being seen as politicized and thus affecting its perception of legitimacy. The Catalan case also highlights that the judicialization of the political conflict between the Scottish and UK governments will not resolve it and, depending on its outcome, may even potentially lead to further confrontation.
There is also the possibility that while the challenge is pending before the Supreme Court, the Westminster Parliament could legislate to amend the Scotland Act 1998 to specifically exclude the competence of the Scottish Parliament in this sense, as happened in the challenge to the Scottish EU Continuity Bill. Yet, in the context of a recently elected pro-independence majority in the Scottish Parliament, it seems this would only increase support for independence in Scotland and escalate the conflict further.
2. A legal referendum without the UK government’s consent?
If the Supreme Court decides that the Scottish Parliament does have the competence to legislate for an independence referendum, then the process could go ahead without the consent of the UK government. However, the process may face further obstacles, such as new legal challenges in relation to specific procedural decisions. The unionist parties may also refuse to engage with the process. If they decline to contribute to the deliberation that ensures well-informed decision-making, this may result in accusations that the final outcome is illegitimate. The perception of legitimacy is fundamental for the outcome’s recognition both internally and in the international sphere. This occurred in the case of the Catalan referendum process, which the Spanish authorities considered to be unconstitutional. In the Scottish case, however, a boycott would be a notable gamble on the part of the unionist parties as the referendum would have been declared fully legal and, without a well-organised campaign in defence of the Union, could potentially result in a high turnout and a vote in favour of independence.
Finally, and fundamentally, in the case of the referendum being held and of the outcome favouring independence, the dissolution of the Union would require legislation by the Westminster Parliament. As in 2014, any referendum would be advisory, and in the case of a unilateral process there would be no certainty that the UK government would accept the outcome. Thus, even if the Supreme Court decides that the Scottish Parliament has the competence to legislate for the referendum, the process will still require negotiation with, and the agreement of, the UK government further down the line. Here, the lack of international support for or recognition of the Catalan referendum process highlight the risks of trying to attain independence without being seen to comply with internal constitutional requirements. Yet, again, in the Scottish context it seems that a clear outcome in favour of independence in a legally organised referendum would put considerable pressure on the UK government and its refusal to recognise it would be notably difficult to justify.
3. Are there any alternative options to enable the referendum to go ahead?
If the Supreme Court decides that the Scottish Parliament does not have the competence to unilaterally legislate for an independence referendum, what could the Scottish government do? There have been proposals of a ‘Plan B’ which would involve treating the parliamentary elections themselves as a referendum, or at least as a mandate for the Scottish government to begin negotiations with the UK government to secure Scottish independence. The Catalan pro-independence parties also attempted to hold a plebiscitary election on independence in 2015, and this was not recognised as such by the unionist parties, other states or the EU. It seems that the same would happen in Scotland, in particular, as the recent focus on the electoral system has highlighted the difference between representation resulting from a parliamentary election and the one-person, one-vote outcome in a referendum. It is also hard to imagine that the UK government would agree to begin negotiations on Scottish independence after the election, given that they would have refused to provide a section 30 Order to enable an independence referendum to go ahead.
However, this does not mean that the Scottish government would be left with no other options. While a pro-independence majority in the Scottish Parliament could not force the UK government to grant a section 30 Order, the precedent set by the 2014 independence referendum means that the UK government cannot refuse one indefinitely or without providing good reasons. The UK government’s initial argument that the matter had been decisively resolved in 2014 has been called into question due to the significant changes in circumstance resulting from Brexit. More recently, the UK government’s response has been that ‘now is not the time’ to hold an independence referendum, citing the aftermath of Brexit and the ongoing pandemic. While these reasons may be presented as currently justified, they will only be sustainable for a limited time. A pro-independence majority in the Scottish Parliament would give the Scottish government the backing to keep a second independence referendum at the centre of political debate and put considerable pressure on the UK government to accede to their request. Here, the example of Catalonia serves as a warning for the UK authorities. Years of the Spanish government blocking an independence referendum, including by force, have not reduced support for independence in the region or removed the issue from the centre of the constitutional and political debate. The recent Catalan elections have again returned a pro-independence majority which is currently negotiating the formation of a new government that will continue to work towards a new referendum.
If there is a pro-independence majority in the Scottish Parliament after this week’s election, the Scottish government will initiate the process for a referendum to take place. As the law currently stands, and in the context of a lack of agreement with the UK government, it is perfectly legal and legitimate for the Scottish government to proceed with the referendum bill; this appears to be the only way the legal question regarding the Scottish Parliament’s competence can be resolved. If, as expected, the Scottish referendum bill is then referred to the Supreme Court, its decision will determine the legal pathway that the referendum process will need to follow in the future. There is no indication that the Scottish government will refuse to follow the Supreme Court’s decision. Whatever the court decides, it seems that a pro-independence majority in the Scottish Parliament will be difficult to ignore. Concerns about a wildcat illegal Scottish independence referendum therefore seem unfounded or, at least, premature. However, while the current Scottish context is currently different in many aspects to the developments that led to Catalonia’s contested referendum in 2017, there are still significant lessons both sides can learn from the Catalan conflict.
Dr Elisenda Casanas-Adam is Lecturer in Public Law and Human Rights at Edinburgh Law School and Associate Director of the Edinburgh Centre for Constitutional Law.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.