Analysis: There are two conceivable paths for Scotland to embark on another referendum for independence but both pose their own problems and neither is guaranteed to succeed.

It has been less than seven years since the last referendum on Scottish independence, which saw the Yes campaign defeated with a 55% majority.

While this vote was meant to settle the independence question for at least a generation, the UK's vote to leave the EU and the subsequent decision by the UK Government to pursue a hard Brexit, despite 62% of Scots voting to remain, have led to calls for an earlier second independence vote.

Support in Scotland for independence remains high with the majority of polls conducted over the past twelve months showing a small lead in favour of it, even though more recently the picture has become less clear with several polls showing a small pro-Union lead.

The Scottish Parliament elections on 6th May will be the first such elections held after the Brexit referendum.

The question of another independence vote looms large in the campaign and overshadows most other issues. While the polls are not clear on whether First Minister Nicola Sturgeon’s Scottish National Party (SNP) will win an outright majority of the 129 seats at Holyrood, it is fairly likely that there will be an overall pro-independence majority.

Both the Green party and the ALBA party – recently formed by Sturgeon’s disgruntled predecessor Alex Salmond – are likely to win a sufficient number of seats between them to make up for any shortfall on part of the SNP.

Translating such a majority into an independence referendum, however, is far from straightforward.

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From Radio 1's Morning Ireland, Sean Whelan, London Correspondent, discusses the Scottish parliament election due on Thursday and the final live TV debate in the race to Holyrood.

Referendum or no referendum?

In contrast to the Northern Ireland Act which expressly provides a route for Northern Ireland to leave the United Kingdom and become part of a united Ireland, the Scotland Act does not envisage the dissolution of the Union, which could in theory happen by way of an Act of the Westminster Parliament.

Yet it is widely accepted that the only legitimate way of bringing about constitutional change on such a scale is by way of first obtaining the consent of the people in a referendum.

This also means that suggestions on the fringes of the pro-independence movement that the SNP should simply use an overall majority in the Scottish Parliament to declare independence unilaterally are ill-advised.

In order for independence to work in practice, newly independent countries require to be recognised by other states, most importantly of course by their immediate neighbours.

It is, however, inconceivable that e.g. EU countries would recognise a Scottish unilateral declaration of independence, which would be decried as illegal and illegitimate by the UK government. Any unilateral move of this kind would thus not lead to the desired outcome (i.e. an independent Scotland that is recognised as such and can thus act internationally and participate in organisations such as the European Union).

Thus the Scottish Government rightly wishes to bring about independence in a way that is compatible with the UK’s constitutional arrangements. There are two conceivable paths: to follow the 2014 precedent and obtain Westminster consent or for the Scottish Parliament to simply legislate for a referendum.

Both pose their own problems, however, and neither is guaranteed to succeed.

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From Radio 1's This Week, Scotland's parliamentary elections take place this week with Nicola Sturgeon's SNP in the hunt for an overall majority that could ease the way forward to a second Scottish independence referendum. Journalist Lesley Riddoch is following the campaign.

Following the 2014 precedent

The 2014 independence referendum was preceded by negotiations between the governments in London and Edinburgh. These negotiations happened on the back of the SNP’s absolute majority obtained in the 2011 Scottish Parliament elections.

They resulted in the 2012 Edinburgh agreement, which provided that a referendum on independence should 'deliver a fair test and a decisive expression of the views of people in Scotland and a result that everyone will respect’..

As will be discussed below, it is not clear whether the Scottish Parliament has the legislative competence to legislate for a referendum on independence.

For this reason, the Edinburgh Agreement envisaged that the UK Government would make an Order under section 30 of the Scotland Act, which allows it to modify the restrictions on the Scottish Parliament’s powers. According to that section 30 order, the Scottish Parliament was given the power to arrange for a referendum on independence by 31st December 2014 the very latest.

The Order also specified that the referendum question had to give voters a choice between two responses (i.e. a yes/no referendum). Following the section 30 order, the Scottish Parliament adopted legislation to hold a referendum on 18th September 2014.

The SNP’s preferred option would be to repeat this precedent. It has clear advantages in that it avoids constitutional ambiguity and it would lead to Westminster – and the rest of the world – respecting the referendum result in case of a yes vote. The SNP’s hope is that a majority of seats for the SNP in the upcoming elections will make the political pressure on the UK Government irresistible.

However, the UK Government has indicated that it would not agree to another referendum any time soon and there is no legal way of compelling it to make a section 30 order.

A man after the last referendum on Scottish independence seven years ago, which saw the Yes campaign defeated with a 55% majority.

Legislating for a referendum without UK Government consent

While the 2014 precedent would provide a safe route towards Scottish independence, the SNP’s plan B is less straightforward and might result in a constitutional stand-off that may not lead to the desired outcome.

Plan B simply envisages that the Scottish Parliament would legislate for another independence referendum without the prior consent of Westminster. The powers of the Scottish Parliament are, however, limited by the Scotland Act, which says in section 29 that an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.

In other words, the Scottish Parliament cannot legislate on certain matters which are listed in the Scotland Act (so-called reserved matters). Additionally, certain Acts of Parliament are protected from modifications by the Scottish Parliament

The Scotland Act 1998 does not expressly prohibit independence referendums or reserve the power to arrange them to Westminster. In fact, the Scotland Act does not mention independence at all, but this does not automatically mean that the Scottish Parliament has the power to legislate for such a referendum.

Schedule 5 of the Scotland Act reserves certain matters concerning the constitution, among them ‘the Union of the Kingdoms of Scotland and England’.

It follows from this that the Scottish Parliament cannot legislate to dissolve that union. But does it necessarily follow that the Scottish Parliament cannot arrange for a vote on whether Scottish voters preferred to remain part of that union? After all, if such a vote did not have any immediate legal consequences attached (i.e. if the vote itself did not dissolve the union), then would it be covered by that reservation?

On the other hand, a plain reading of Schedule 5 might exclude anything to do with the union between Scotland and England from the powers of the Scottish Parliament. Views amongst constitutional scholars are divided on this matter and this ambiguity in the Scotland Act is precisely what the SNP would like to exploit.

"While the polls are not clear on whether First Minister Nicola Sturgeon's Scottish National Party (SNP) will win an outright majority of the 129 seats at Holyrood, it is fairly likely that there will be an overall pro-independence majority."

The expected reaction on part of the Westminster Government would be a legal challenge to such legislation in the Supreme Court.

Judicial scrutiny of Scottish Parliament bills is provided for in section 33 of the Scotland Act and can be instigated, amongst others, the Advocate General and the Attorney General (i.e. two UK law officers that are also members of the UK Government). In so far as the Supreme Court finds that a Bill is outside the competence, the Bill cannot become law.

One would therefore be tempted to think that if the Supreme Court finds that non-binding referendums on independence are within the powers of the Scottish Parliament, then Scotland can have its independence referendum at a time of its Parliament’s choosing.

There are two issues with this, however, which show that Westminster will have the final say on the matter. First, Westminster retains the power to amend the Scotland Act to include an express ban on legislation providing for an independence referendum.

Such an amendment can be made at any time, even while proceedings before the Supreme Court are ongoing. This became clear in in a reference made by the UK Government to the Supreme Court concerning the so-called Continuity Bill adopted by the Scottish Parliament.

The Bill aimed to preserve Scots legislation in the wake Brexit, but an Act adopted by the Westminster Parliament after the Continuity Bill had been passed, meant that vast parts of the Continuity Bill were no longer adopted with the requisite legislative competence.

Hence Westminster can retrospectively remove the competence base for a Scottish Parliament Bill, a power it might well use given the vast majority of Conservative MPs.

Secondly, even if the Scottish Parliament got the green light from the Supreme Court to hold a non-binding referendum on independence, Westminster might simply not consider itself bound by it.

Without Westminster legislating to dissolve the union between Scotland and England – a reserved matter – that union will continue and Scotland will remain part of the UK.

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From RTÉ Nine News, Scotland readies for election with possible referendum on horizon

The discussion has shown that no constitutional or legal trick the Scottish Parliament and Government can use to force independence without Westminster consent. The question is whether – or rather when – such consent will be forthcoming. And the answer to this question is an entirely political one.

Following the elections of 6th May, the Scottish and Westminster Governments may well enter into a political war of attrition over a second independence referendum.

Buoyed by a majority in the Scottish Parliament – whether SNP alone or together with other pro-independence parties – the Scottish Government may well point to popular support for another independence vote, which the Westminster Government is likely to deny.

Subsequent Scottish Parliament legislation is likely to be thwarted by Westminster also, either through a Supreme Court challenge or through amendments to the Scotland Act that once and for all deprive the Scottish Parliament from legislating on an independence vote.

At the same time, the political pressure on Westminster is likely to continue to build. After all, Westminster refusal to grant another referendum will be interpreted by the SNP as denying the Scottish people their democratic rights as expressed in the 6 May elections and resentment against Westminster rule will continue to stew.

Sooner or later a Westminster government will concede, provided support for independence remains strong. The only viable tactic for Westminster would be to re-build the support for the Union.

How that could work in practice, however, remains to be seen.


The views expressed here are those of the author and do not represent or reflect the views of RTÉ