A Not So United Kingdom: Can Scotland conduct an independence referendum without UK approval?

February 21, 2021

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3 min read

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What's going on here?

A second Scottish independence referendum could be looming on the horizon. With permission for a second referendum unlikely to come from the UK government, Scottish independentists are investigating if a vote could be legally held without consent from Westminster.

What does this mean?

Nicola Sturgeon, Scotland’s First Minister and leader of the Scottish National Party (SNP) is pushing for a second Scottish independence referendum. The first referendum occurred in 2014, where 55% of voters voted to stay within the UK. Scottish parliamentary elections are due to be held in May and a second referendum is the SNP’s flagship policy. The SNP hopes to gain from the dissatisfaction of Scottish voters with Brexit since Scottish citizens have much more pro-EU attitudes than their (current) compatriots in England and Wales.

It is thought the referendum can only be formally authorised by the UK government, via a section 30 order under the Scotland Act of 1998. Boris Johnson, the UK Prime Minister, has insisted the first referendum was a “once-in-a-generation” opportunity and should not be repeated for at least another 40 years. However, Mrs Sturgeon has hinted at circumventing this process, arguing that the UK cannot stand in the way of a democratic mandate. Pro-independence activists have reached out to the Scottish courts to see whether the Scottish government can carry out its own referendum in the absence of the UK’s consent. Soon enough, the issue of Scotland’s right to hold the referendum will reach the UK Supreme Court.

What's the big picture effect?

As pro-independence activists begin the uphill journey through the UK courts, the issue has sparked discussion in relation to existing international laws and developments. The notion that this referendum is a “once-in-a-generation” opportunity is quite fanciful. For example, New Caledonia repeated an independence referendum only two years after the first vote in 2018. Marc Weller, Professor of International Law and International Constitutional Studies at the University of Cambridge, argues that Scotland wanting another referendum after seven to eight years is “quite reasonable in a democratic society” and that they can “point to the fundamental change in circumstances brought about by Brexit”.  

Scotland could also try and rely on the right to self-determination under international law meaning that “all peoples” have a legal right to decide the destiny of their nation. Historically, Scotland has developed its own territory and government, albeit devolved from the UK’s central government. However, there are many other economic factors to consider, such as the possibility of its own currency and a hard border with England. Hence, it remains uncertain as to whether Scotland could operate on its own. Nonetheless, the UK’s unwritten constitution does not provide any express provisions that prevent Scotland from seceding. This is in stark contrast to the Catalan independence referendum of 2017 where Spain’s constitution expressly prohibited the act of secession. 

However, there is no doubt that this will be a bumpy road for the Scottish government and an attempt to circumvent the official legal process will come with its consequences. Douglas Ross, leader of the Scottish Conservative Party, said this route “shouldn’t be given any credibility”. There would also be far-reaching implications on Scotland’s relationship with the EU. If in the unlikely event, Scotland went ahead with the vote in the absence of the UK’s consent and voted in favour of independence, it would currently be deemed as illegitimate. Subsequently, many EU member states would veto (block) its application to join the union, especially those with independence movements, such as Spain.

Support for independence is on the rise, with polling showing an average of 54% for independence since summer 2020. There are still legal questions to be answered, but much of this will come down to politics. One thing is for sure, the current law will be tested.

Report written by Dan Furniss

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