Scotland’s constitutional future: a week of debate

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This blog provides a round-up of what has been said on Scotland’s constitutional future during the week of 27 January 2020. A week in which the Scottish Parliament debated Scotland’s future; the Scottish Government sought further powers on immigration and Nicola Sturgeon made a statement on next steps on a second independence referendum.

The latter part of the blog considers the aspects of the statement that relate to the work of the Scottish Government.

What did Monday bring?

The Scottish Government published a paper calling for further powers over immigration. “Migration: helping Scotland prosper” sets out proposals for a Scottish visa system. The paper was a call for devolution of immigration powers to Scotland.

“Responsibility for migration should be devolved to Scotland, as part of a UK framework, to allow new routes to be created for migration to Scotland.”

It’s not a new call; a similar one was made in February 2018 when the Scottish Government published “Scotland’s population needs and migration policy: discussion paper”.

The UK Government dismissed the call within hours of publication of Monday’s paper.

What happened in Parliament?

On Wednesday 29 January the Parliament debated Scotland’s Future. The First Minister opened for the Government saying that:

“I ask Parliament to endorse a basic but fundamental principle: that Scotland’s future should be decided not by politicians at Westminster who have not won a general election in Scotland since the 1950s but by all of us who live here and call Scotland home…It is the sovereign right of the people of Scotland to determine the form of government that is best suited to our needs. That is the declaration at the heart of the claim of right, and it should be endorsed by this Parliament today.”

And it was endorsed by the Parliament at decision time with the SNP and the Greens voting in favour of the Scottish Government motion and the Conservatives, Labour and the Liberal Democrats opposing it. The motion contained more than a call for Scotland’s future to be chosen by the people of Scotland. It called for a second independence referendum in 2020.

What was announced on Friday?

The First Minister made the statement as leader of the SNP, rather than First Minister. However, the statement contained announcements which related to how the Scottish Government would continue to work towards a second independence referendum.

A legal and legitimate referendum

Perhaps the most significant point of the statement was a reiteration that a second referendum must be “legal and legitimate” and that its legality must be beyond doubt:

“To achieve independence, a referendum, whenever it happens – whether it is this year as I want, or after the next Scottish election – must be legal and legitimate. That is a simple fact…And the best way to achieve that, even though it may not be ideal, is to reach agreement on a transfer of power to the Scottish Parliament, just as we did for 2014.”

There has been speculation that the Scottish Government could hold a “consultative” referendum (that is to say one held to judge public opinion but without a transfer of powers to the Scottish Parliament) if the UK Government maintains its position on not transferring powers to the Scottish Parliament to hold a referendum on independence. Setting out her rationale, Nicola Sturgeon explained that the reservation over the unions of England and Scotland contained in the Scotland Act 1998 has not been legally tested, and so the consultative referendum route would be uncertain.

“The issue of whether the specific constitutional reservation in the Scotland Act puts any form of independence referendum outside the powers of the Scottish Parliament – or instead leaves open scope for a non-binding consultative vote – has never been tested in court.

That means it cannot be said definitively that it would not be legal, but equally it cannot be described as being beyond legal doubt.

If a proposal for a referendum on that basis was brought forward it would be challenged in court.”

Electoral Commission testing of a referendum question

The Electoral Commission will be asked by the Scottish Government to retest the question used in the 2014 independence referendum.  This announcement follows the Referendums (Scotland) Act 2020 receiving Royal Assent on 29 January.

Question testing proved an area of intense debate during the passage of the Referendums (Scotland) Bill with changes in this area being made at stage 2. A SPICe blog ‘What’s the framework: the Referendums (Scotland) Bill before Stage 3 considers the debate on question testing during the passage of the Referendums (Scotland) Bill in more detail.

The Act provides that a referendum question which has been tested by the Electoral Commission need not be retested if it is being used within a validity period.

The announcement that the Electoral Commission will test the question means that the same question could be used at a referendum in the next session of the Parliament so long as a motion to that effect was agreed by a majority of MSPs.

A new Claim of Right and a Constitutional Convention

Elected representatives from Scotland (MSPs, MPs, council leaders and MEPs elected in 2019 who cease to be MEPs on 31 January 2020) are, it was announced, to be invited to:

“come together to endorse a modern Claim of Right for Scotland through a new Constitutional Convention.”

Although there was not much detail on this in the speech, Nicola Sturgeon stated that it would be:

“To declare that it is for the Scottish Parliament to decide whether and when there should be an independence choice and build support for that principle amongst civic Scotland.”

In 1989 the Claim of Right declared the sovereignty of the Scottish people to decide their government. It was drawn up by the Scottish Constitutional Convention and was part of the campaign for a Scottish Assembly. It was signed by a range of politicians, business leaders and members of civic Scotland.

A New Scotland – a series of papers by the Scottish Government

The statement didn’t use the term ‘white paper’ (a government report giving information or proposals on an issue), but it was announced that over the coming months the Scottish Government would publish a series of “New Scotland” papers. These will, Nicola Sturgeon said:

“seek to provide the information and answers people want…They will provide detail on how Scotland can make the transition from a Yes vote to becoming an independent country.”

The three key announcements outlined above were set out in response to a Government Initiated Question on Friday 31 January 2020.

What’s next?

What the statement didn’t do was set a timetable for a second independence referendum. The First Minister restated in responses to questions from the media that it was possible to still have a referendum in 2020.

Sarah Atherton, SPICe research