Constitutional Questions - Scottish Independence Referendum

Morton Fraser Director of Public Law Lynda Towers
Lynda Towers
Director of Public Law
23 June 2022
Public Sector

Following a busy week for constitutional issues, the final blog in our three-part series addresses the potential future Scottish Independence Referendum. 

Last week saw what has been described by the Scottish Government, as the start of the campaign which will lead to an Independence Referendum in October 2023. This was the publication of the first of a series of position papers explaining the Scottish Government's position: "Independence in the Modern World. Wealthier, Happier, Fairer: Why Not Scotland?". This also occasioned the first controversy of this campaign. The publication was introduced by the First Minister and Patrick Harvie, leader of the Greens, at a press event. The Scottish Government hoped to introduce it formally in a debate the next day in the Scottish Parliament. However, the Presiding Officer considered it should have been presented to Parliament before the press and refused to allow the debate.

The potential date of October 2023 was revealed in a press interview the day after the press event but seemed to miss the Presiding Officer's ire. There is already legislation setting out the process for any referendum in Scotland relating to a devolved matter. There would need to be a further short piece of legislation to set out the date and the question, but those requirements could be achieved to allow a six month pre referendum campaign which was what was recommended last time as a minimum by the Scottish Electoral Commission.

The content of the document is a comparison of small independent nations which it is suggested compare with Scotland. The proposition is that an independent Scotland could be more "prosperous" in line with these countries as opposed to remaining part of the UK. Some commentators have queried if all the comparisons are apt. This document is described as a scene setter and further papers will set out major policy proposals on currency, trade, economy, defence and other issues.

The First Minister has been clear she looks to hold a legal referendum which will be recognised, along the lines of the 2014 Referendum where the UK Government made a section 30 order under the Scotland Act 1998 to allow the Scottish Government to hold the referendum within a set timescale. That time period has now expired, and the current position of the Prime Minister is that no similar permission will be granted to allow a further referendum at present.

The First Minister has indicated she will reveal in the next few weeks how she proposes to proceed to achieve a legal referendum. Current speculation is that there might be a softer question around negotiating a referendum leading to an advisory referendum. If that could be done legally, which is not clear at present, there are huge political issues as to how that would be seen and whether a truly representative vote could be achieved. If any of the decisions taken by the Scottish Government to attempt to give it the status of a legal referendum are challenged in court, then the October 2023 date begins to look more difficult.

Those of us who lived through this debate last time, legal academics and practitioners alike, have been looking out our previous advice and articles and putting pen to paper again on legal referendums and whether they can be achieved without a section 30 order. We all put our papers and books back on the shelves when the Edinburgh agreement was signed last time on 15 October 2012. We are at the very beginning of this campaign, but already the legal issues are being identified and few of us would bet against at least one constitutional aspect of this matter ending up in the Supreme Court. There is still a feeling of déjà vu about all this but there is nothing a lawyer likes more that revisiting old legal arguments which the courts have not yet decided and arguing them all over again.


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