After the referendum on Scottish independence in 2014 fell on the side of remain many thought that would be an end to the question for a generation. However a combination of Brexit altering the playing field and, most recently, another victory for the Scottish National Party (SNP) in the Holyrood elections, has led to a renewed push for a second vote.
Unfortunately for the SNP the solution is not as simple as holding a vote, and the legal intricacies might end up presenting a roadblock. Legislation needs to be passed in order for a referendum to take place and it is not clear whether the Scottish Parliament has the power to pass such a law without the consent of the UK government in Westminster. Relations between the political leaders in Edinburgh and London have never been strong and have only become more strained during the coronavirus pandemic. Even after the SNP's electoral performance, the chances of Boris Johnson agreeing to a second independence referendum are slim. If Nicola Sturgeon decides to press ahead regardless then that is when the legal wrangling will truly begin.
Once an Act of the Scottish Parliament has been passed there is a holding period before it receives Royal Assent. During that time the legislation can be challenged on the basis that it is outside of the powers granted to the Scottish Parliament. At that point the question would be presented to the Supreme Court and it would be up to the Justices to potentially have a huge impact on the constitutional future of the UK.
In theory the answer ought to be a simple one. The Union is a reserved matter and so the Scottish Parliament should not be allowed to legislate on the subject. However there is potentially a bit of a loophole here. A referendum is not binding but only acts as a persuasive vote. It would still be up to the Westminster Parliament to pass a law that would grant Scotland independence in the event of a result favouring that option and so, the argument follows, a Scottish Act wouldn't touch directly on the Union.
If that line of reasoning sounds a bit dubious then you're not alone. The Supreme Court could follow along with the reasoning up to a point but the Justices would be as likely to strip away the veil and point out that any such legislation does touch upon the Union, however indirectly.
Ultimately this is also a political question. The real battle is going to be fought between Nicola Sturgeon and Boris Johnson; two leaders who have come under immense pressure over the past year but do not appear to be going anywhere anytime soon. The advantage certainly remains South of the border but if the SNP can bide their time then pressure will continue to build and another referendum will be a question of 'when', not 'if'.
In this week’s episode of the podcast a dispute over the proceeds from the sale of a school traces its origins back more than 100 years. We discuss how Victorian legislation should be interpreted in the 21st Century.
Episode link: http://uklawweekly.com/2021-uksc-13/
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