Could Scotland hold a second referendum without Westminster’s permission?

Ferret Fact Service first answered this question in 2017, when Nicola Sturgeon asked Theresa May for the power to hold a second referendum. Now the debate has moved on, we have updated our piece with new context.

The First Minister has set out her plans for securing a second referendum, saying they would “focus on building and winning the political case for independence.”

The speech comes after Boris Johnson denied her request for a section 30 order. This would transfer to Scotland the power to hold a referendum. Nicola Sturgeon had said she would push for a referendum to take place in 2020.

She previously asked Westminster for this in 2017, but was rejected by then-Prime Minister Theresa May.

Since then there have been increasing calls from some supporters and party representatives to explore possible ways to gain independence without requiring Westminster’s permission.

Section 30

The formal route to a second referendum is through a section 30 order, which Sturgeon asked Johnson for at the end of 2019.

Constitutional matters – which include the union of Scotland and England – are considered to be ‘reserved’, meaning that the Scottish Parliament does not have the power to make laws relating to these areas.

But section 30 of the Scotland Act 1998 allows the UK government to temporarily transfer power to the Scottish Parliament to legislate for a referendum.

Crucially, a section 30 order can only be introduced to the Westminster parliament by the UK government, and is not legally obliged to do so. This allows the Prime Minister to reject a section 30 as Johnson has done.

He said he “cannot agree to any request for a transfer of power that would lead to further independence referendums”, suggesting that Sturgeon and her predecessor, Alex Salmond, had promised that the last referendum would be a “once in a generation” vote.

A section 30 was used in 2012 to allow Scotland’s last independence referendum, which took place two years later in 2014.

Even if a new section 30 order were approved and a referendum went ahead, it would be an advisory rather than legally binding referendum, meaning that a change in the legal status of Scotland would still depend on further negotiation with the UK and legislation in both parliaments.

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This is the case with most UK referendums, except for the 2011 alternative vote referendum which explicitly required the government to change the law based on the result.

In 2012, Alex Salmond and David Cameron negotiated the terms of a section 30 order in the Edinburgh Agreement, which was then debated and approved by the UK parliament.

The Scottish Parliament passed a bill which set a “legislative framework” for any future referendum, and in 2017 a motion on a second referendum was passed at Holyrood with the support of the SNP and Scottish Greens.

Does she need a section 30?

It is the preference of Sturgeon to gain a section 30 agreement before holding a second referendum. So far, the First Minister has resisted calls for another route to be explored, and in her speech at the end of January she again called for patience and said any referendum “must be legal and legitimate”.

Her comments suggested that a second referendum was unlikely in 2020, and her government may push for a new vote after the next Scottish Parliament election in 2021, should the SNP be victorious.

The claim to legality depends largely on how the Scottish Parliament’s power over “reserved matters” is interpreted. These differences of interpretation can only be determined by the courts.

While it is widely held that a referendum relating to Scottish independence requires approval from Westminster, this has yet to be tested in court. The Scottish Government has not explicitly conceded that a second vote could not be held without approval from the UK Parliament, and a number of experts have concluded that the matter is not legally settled.

What other routes are there?

According to legal expert Nick McKerrell, a referendum bill could be introduced into the Scottish Parliament regardless.  The Presiding Officer could then decide the bill falls outside the legislative powers of Holyrood although this may not prevent the parliament from debating it.

If a referendum bill were debated and passed, it would then be open to legal challenge by any citizen based in Scotland or organisation directly affected by Scots law. For example, in 2016 the UK Supreme Court, which has the power to overrule the Scottish Government, blocked the “named person” scheme until it had been amended.

If the bill went unchallenged in Scotland, the UK government could then refuse to send it for royal assent and instead ask the Supreme Court to rule on its legality.

A consultative referendum has been suggested as an option by a number of constitutional experts. Stephen Tierney from Edinburgh Law School has suggested there is a “plausible, albeit far from irrefutable” argument that the power to hold referendums could be with the Scottish Parliament.

Another option, should the UK government continue to refuse to issue a section 30 order, would be a legal challenge. Constitutional experts Aileen McHarg and Chris McCorkindale have concluded that this would be very unlikely to succeed, as “there is no duty to make a section 30 order, still less to introduce primary legislation”.

There is a recognition under international law that national minorities have a right to self-determination, including leaving a “parent state”. But given Scotland already has significant autonomy and political representation, McHarg and McCorkindale argue this does not apply.

There’s also the option of an “extra-legal” referendum, meaning it would be without the authorisation of either the UK or Scottish parliaments.

Attempts by Catalonian nationalists to engineer its independence from Spain are often used as a potential parallel for such a move. The autonomous community held an unofficial referendum in 2014 which was found to be unconstitutional.

But while the UK government previously agreed to a referendum, the Spanish government has consistently opposed Catalonia’s calls for independence and the Spanish constitution stated that regions cannot unilaterally hold referendums.

In Scotland’s case an extra-legal referendum looks unlikely. There is no precedent for this on a national level in the UK, so it would be extremely complex legally and there appears to be little appetite for such a vote.

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A further option which has been debated among supporters and promoted by some senior figures in the independence movement is the ‘plan B’ option. This would seek to use a pro-independence majority at the 2021 Holyrood elections as a mandate for independence, and start negotiations with the UK government on that basis.

This has been rejected by party members at the SNP conference and is not supported by the leadership. It also requires the UK Government to agree to talks over Scottish secession, and may be less likely to be accepted by the international community.

Verdict

Nicola Sturgeon could opt to push a referendum bill through parliament without a section 30 order, or begin a legal challenge against the UK government, but neither option would necessarily succeed. While it is theoretically possible that a vote could go ahead without Westminster’s permission, it would likely run into significant legal challenges and it appears unlikely that the result would be respected by the UK or international community.

Ferret Fact Service (FFS) is a non-partisan fact checker, working to the International Fact-Checking Network fact-checkers’ code of principles. All the sources used in our checks are publicly available and the FFS fact-checking methodology can be viewed here. Want to suggest a fact check? Email us at factcheck@theferret.scot or join our Facebook group.

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Note: An earlier version of this factcheck said that the Holyrood Presiding Officer could prevent a Bill from being debated in the Scottish Parliament, if they conclude that a Bill falls outwith the devolved powers of the chamber. This is not correct. The correction was made on the same day of publication, 7 February 2020.