On Monday, Scotland’s First Minister confirmed her Government’s intention to bring forward legislation setting out the rules for future referendums in Scotland. Today (Wednesday 29 May), the Scottish Government published the Referendums (Scotland) Bill (PDF 1.83 MB). This Insight examines the likely process for a second independence referendum, assuming UK Government consent.

Setting the referendum rules

Nicola Sturgeon says the Bill will “put in place the rules for giving people the choice in an independence referendum over a Brexit future, or a future as an independent European nation.”

In a statement on 24 April, she told MSPs her Government would: “Shortly introduce legislation to set the rules for any referendum that is, now or in the future, within the competence of the Scottish Parliament.”

Ms Sturgeon added that:

“We do not need a transfer of power such as a section 30 order to pass such a framework bill, though we would need it to put beyond doubt or challenge our ability to apply the bill to an independence referendum. As members are aware, the UK Government’s current position is that it will not agree to transfer power, but I believe that that position will prove to be unsustainable.”

The First Minister today confirmed the Scottish Government would “seek agreement to a transfer of power at an appropriate point to enable an independence referendum that is beyond challenge to be held later in this parliament.”

No fixed process but a strong precedent

A section 30 order is a mechanism in the Scotland Act 1998 which can – temporarily or permanently – grant legislative authority to the Scottish Parliament in certain areas. So what is the likely process for a second Scottish independence referendum?

The Northern Ireland Act 1998 makes explicit reference to a constitutional referendum, while the Scotland Act 2016 states: “the Scottish Parliament and the Scottish Government are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum.” But regarding a Scottish independence referendum there is no fixed process. There is, however, a strong precedent from 2014.

The Union of Scotland and England is a reserved matter

Holyrood is unable to legislate on ‘reserved matters,’ which are the responsibility of the UK Parliament. Paragraph 1(b) of schedule 5 of the Scotland Act 1998 states that “the Union of the Kingdoms of Scotland and England” is a reserved matter. This means the Scottish Parliament cannot declare Scotland independent, as it does not have the legislative ability to do so.

It is not clear as a matter of law, however, if the Scottish Parliament can unilaterally hold a referendum on independence. Only if it was judged that such a referendum ‘relates to’ the Union would it likely fall outside competence. Importantly, this debate has not been resolved, rather the Scottish and UK Governments reached an agreement which allowed the 2014 referendum to proceed.

The 2014 precedent

Between 2011-14, the process was as follows:

5 May 2011 – The SNP won an overall majority in the Scottish Parliament with a manifesto commitment (PDF 1.73 MB) to hold an independence referendum.

10 January 2012 – The then Secretary of State for Scotland, Michael Moore, proposed that the powers for a referendum (PDF 1.73 MB) could be devolved “under the section 30 order-making provisions in the Scotland Act 1998.

15 October 2012 – Ministers from the UK and Scottish Governments signed the Edinburgh Agreement, which included a draft section 30 order enabling the Scottish Parliament to hold a single-question referendum by the end of 2014.

22 October 2012 – The section 30 order was laid before the UK Parliament.

5 December 2012 – The Scottish Parliament approved the section 30 order.

15 January 2013 – The House of Commons debated and approved the section 30 order.

16 January 2013 – The House of Lords debated and approved the section 30 order.

17 December 2013 – The Scottish Independence Referendum Bill passed in the Scottish Parliament and received royal assent, setting out the rules for the referendum.

18 September 2014 – The independence referendum was held, with 55.3 per cent voting ‘no’ and 44.7 per cent voting ‘yes’.

Nicola Sturgeon’s 2017 request

More than two years later, on 13 March 2017, First Minister Nicola Sturgeon confirmed she would ask the Scottish Parliament for authorisation to request another section 30 order. MSPs approved this by 69 votes to 59. In response, then Prime Minister Theresa May told MPs: “now is not the time to be talking about a second independence referendum.”

An unofficial referendum?

Following the UK Government’s refusal to grant another section 30 order in March 2017, some supporters of independence suggested holding an “unofficial” referendum, an idea the First Minister has consistently rejected. Speaking at a Women for Independence conference in November 2018, she said:

The beauty of 2014 was that it was an agreed process. All of this has taken me to the point that I don’t have the easy answer to this. We may get into the situation where the UK Government says, ‘No, we’re not going to agree the section 30 order,’ and I think if that happens we need to rise above that, we need to make the case of how unreasonable that is.

The First Minister then suggested that an alternative course of action would be to use the 2021 Scottish Parliament election to seek a mandate for another independence referendum:

“And ultimately if the only way through that is to take that to an election and ask the people of Scotland to use an election to say ‘No, we will have absolutely our right to choose’, I think maybe that’s what that will take.”

It is not clear – from the UK Government’s perspective – whether the granting of a section 30 order is dependent upon a single-party majority in the Scottish Parliament, as in 2011, or a pro-independence majority (i.e. the SNP and Scottish Greens together), as in 2016.

In 2011, the then Prime Minister David Cameron accepted that the Scottish Government had a “mandate” to hold a referendum. In 2017, less than a year after the 2016 Scottish Parliament election produced a pro-independence majority, Theresa May did not.

About the author: David Torrance is a Senior Library Clerk at the House of Commons Library, specialising in devolution and the constitution.

Image: Scottish Parliament Building, Holyrood by Kim Traynor.  Licenced under Creative CommonsAttribution-Share Alike 3.0 Unported license/ image cropped.