With the May 2021 Scottish Parliament elections approaching, and the recent attention on the continuing political conflict between First Minister Nicola Sturgeon and her predecessor Alex Salmond, eyes are very much on Scotland and the prospect of a second independence referendum (‘Indyref2’).
Boris Johnson has said he would refuse a referendum, but is this possible, and what would be the ramifications? To explore the possibility of Indyref2 and how such a referendum would be brought about, the Constitution Unit hosted a webinar with three experts: Professor Aileen McHarg of Durham Law School; James Forsyth, political editor of The Spectator magazine; and Dr Alan Renwick, Deputy Director of the Constitution Unit. The summaries below are presented in order of the speakers’ contributions.
Professor Aileen McHarg
Professor McHarg explored a number of pathways to a referendum from a legal perspective. She first addressed if the UK government can prevent a second Scottish independence referendum: it can, and it isn’t required to agree to a Section 30 order, or amendments to the Scotland Act to enable Holyrood to legislate for a second referendum – as was the case for the 2014 referendum.
But can the Scottish Parliament legislate for a referendum without a Section 30 order? This is less clear. The SNP has marked its intention to unilaterally introduce a referendum bill with or without a Section 30 order if it wins a majority in Holyrood following the May elections. If the bill passed, it would be subject to legal challenge. If the bill were judged as beyond the Scottish Parliament’s competence, any referendum which followed would not have a legal grounding, and in Aileen’s view, the idea of a referendum was ‘a non-starter’. She described talk of a wildcat referendum – such as that experienced in Catalonia in 2017 as ‘entirely misplaced’. There would be questions concerning the legitimacy of a unilaterally-called referendum, even if it were ruled lawful by the Supreme Court; unionists may be unwilling to engage in such a referendum.
Another possible pathway, although unlikely, is Westminster legislating to dissolve the Union. This is possible because a referendum on Scottish independence is not a legal requirement of independence.
A unilateral declaration of independence is also an option. Such a declaration grants nations the right to secede in quite limited circumstances. However it is questionable if this applies to Scotland as a nation with an existing high level of autonomy. Importantly, universal declarations of independence depend on other states recognising the newly formed state. Rejoining the European Union post-independence would require all EU member states to recognise Scotland as an independent state; considering some states are facing their own secessionist pressures, this could be problematic.
It is clear that there is no legal silver bullet to trigger a second independence referendum. Ultimately, Aileen concluded, it is a matter for politics but the only realistic pathway is one that is deemed to be lawful within the current constitutional order.
James Forsyth argued that the SNP securing a majority in the Scottish Parliament elections shouldn’t be taken for granted. From looking at polling the result of the elections is on a knife edge, with the likelihood of the SNP winning a majority looking much less certain than it was a couple of months ago. History tells us that voting in Scottish parliamentary elections is heavily influenced by political campaigning; often the outcome is not what was expected at the start of the campaign. Such unpredictability in the polling has left the UK government split on whether it should act to preserve the Union before or after the election – those who wanted to wait and see how the election plays out before acting won the argument. This could be significant as the question of a referendum might not even emerge if the SNP doesn’t win a majority.
If the SNP were to win a majority, the UK government is likely to refuse a Section 30 order and state that ‘now is not the time’. This might in fact be beneficial to the SNP as delaying a referendum could attract swing voters or those who see recovery from the impact of COVID-19 as a much higher priority than the question of Scotland’s constitutional future. James speculated that the UK government is likely to use the UK Internal Market Act to re-establish the UK’s status in Scotland by providing more funding to devolved matters, and it will be very difficult for the SNP to reject such support.
So how long does ‘now is not the time’ hold up as an argument against a second independence referendum? It is unlikely that the UK government will grant a Section 30 order before the end of the current government’s tenure in 2024. Towards the end of this parliament, however, it will be more difficult to maintain that stance, and there may be more pressure to find an answer to the constitutional question that appeals to middle Scotland. It is clear that people are not in favour of more devolution and the option of devo-max is much less popular than it once was. People are more likely to support a wide-ranging review of how the UK constitution works as a whole; this is particularly pertinent in a post-Brexit landscape in which some powers are coming back to the UK from Brussels, and combined with the tensions in the devolution arrangements surfaced by the pandemic. One obvious option to try to resolve the constitutional question is establishing a royal commission at the end of this parliament. It would be the UK government’s hope, however, that by 2024 the SNP doesn’t have the same level of support as it does currently, giving Boris Johnson further reason to argue that now is not the time.
Dr Alan Renwick
Dr Renwick explored how such a referendum might work in practice in accordance with good democratic principles. Such a referendum should produce an outcome that a broad spectrum of people recognise as fair and legitimate, and importantly, would stand the test of time. The process should enable people to make an informed choice – so what mechanisms would enable this, and are they politically feasible? Alan outlined three such mechanisms: high-quality information during the campaign; the timing of the referendum; and public participation.
High-quality information refers to accurate, unbiased and accessibly presented information available for voters during a referendum campaign. Voters should know, for example, what processes would follow a vote for independence, what arrangements there would be on the border, currency options, and the division of assets and liabilities. Whoever supplies such information should be impartial and expert. Alan suggested that lessons can be learnt from Oregon where citizens’ panels are used to give a considered public perspective on the arguments that people find more or less convincing.
Any referendum should be timed to take place when it is known what an independent Scotland would look like, so far as that is possible. The 2014 referendum took place with many questions unresolved – relating, for example, to EU membership and the currency – meaning voters couldn’t make a fully informed decision. Alan suggested two ways to avoid this recurring: hold the referendum after the ‘divorce’ terms have been negotiated, or, have a two-stage referendum process. The first referendum in a two-stage process would ask voters whether there should be negotiations on the terms of an independent Scotland. If the answer to that first question was yes, the second referendum would ask voters if they agreed to the terms set out in those negotiations.
The public should be involved in deciding what options should be on the ballot paper. This is best illustrated by the Irish referendums on same-sex marriage in 2015 and abortion in 2018. Facilitating public discussion through which people have space to weigh up the arguments on different sides can lead to more measured decision-making on referendum day. Citizens’ assemblies could, for example, explore issues such as what a constitution of an independent Scotland would look like, or discuss alternative constitutional arrangements in the UK. Dr Renwick warned against sleepwalking into a binary choice between the Union and independence when perhaps there is an alternative third option which would garner a higher level of support.
Panel discussion and Q&A
The panel speculated as to how Boris Johnson might respond to heightening demands for a second referendum should the SNP prevail in the May elections. The government may give the answer of ‘no, but…’ i.e. maybe sometime but now is not the time. Or, the answer may be ‘yes, but…’, i.e. offering a referendum on a conditional basis. Alan Renwick argued that the UK government could say ‘no, but’ for a short period, but that it will be difficult to maintain such a stance for long: Scotland’s right to self-determination is presumed as part of the Union settlement; to deny it could stoke discontent.
The panel discussed the possibility of a third way which offers something that is more popular across the population than the current binary offer of remaining in the UK or establishing an independent Scotland. Aileen McHarg argued that any third option would have to include more fundamental reform of the UK constitution because of the sovereignty of the UK parliament. It is questionable how much political support this would have, however. Establishing a royal commission on the matter is unlikely to lessen the appetite for independence. Rather, the government has a responsibility to step back and let the voice of the population be heard on this matter, and should be genuinely willing to listen to public opinion.
The Q&A illuminated further questions for consideration if a referendum were to take place: Who would be eligible to vote? Would, for example, expat Scots be eligible? Is a second referendum likely to settle the constitutional question once and for all? How can it be ensured that the referendum result is accepted? And why has Westminster’s interest in devolution declined even further?
First published by the Constitution Unit at UCL
This post is a summary of the main contributions of the three speakers, and includes only a very brief summary of the interesting discussion and Q&A session that followed. You can watch the complete event here, or listen to a podcast version here. Recordings of previous events are available on CUnitYouTube and podcast pages. We also recommend that you join our mailing list to be notified about future events, which are free and open to all.
Photo of Sturgeon demanding right to choose courtesy of Scottish Government via Flickr CC BY-SA 2.0