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A second independence referendum 

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On Tuesday 28 June 2022 the First Minister made a statement to Parliament on a second independence referendum. Following the First Minister’s statement the Scottish Government published a draft ‘Scottish Independence Referendum Bill’.  

The statement and draft Bill followed the publication (on 14 June 2022) of the first in what the Scottish Government is calling its series of ‘Building a New Scotland’ papers “designed to contribute to a full, frank and constructive debate on Scotland’s future.” 

This blog considers the detail of the First Minister’s statement and the draft Scottish Independence Referendum Bill.  

The date and question 

The Scottish Government has published a draft Scottish Independence Referendum Bill. The draft Bill is the legislation the Scottish Government says that it would introduce in the Parliament to provide for a second referendum. The publication of a draft Bill is not therefore the same as introduction of a Bill in the Parliament.  

The draft Bill sets out the date of the proposed referendum: 19 October 2023. 

It also provides the question to be asked at the referendum. It is the same as the question asked at the first independence referendum on 18 September 2014: 

Should Scotland be an independent country?

More discussion on the question is provided later in this blog.  

A consultative referendum  

The First Minister was clear that the referendum would be “consultative”. Consultative referendums are sometimes referred to as pre-legislative referendums, meaning that those eligible to vote are asked to vote on a principle rather than a set proposal. Further legislation is usually required to give effect to the outcome of the referendum (the First Minister used the term ‘not self-executing’ to describe this). As the First Minister said, previous Scottish and UK referendums have also been pre-legislative: 

In common with the 2014 referendum – indeed, in common with the Brexit referendum and the referendum to establish this Parliament – the independence referendum proposed in the Bill will be consultative, not self-executing.

In some countries, binding referendums can be held. In Denmark, for example, binding referendums must be held on any proposal to change the Constitutional Act or to change the age at which people can vote. 

A blog by The Constitution Unit ‘Referendums in UK democracy’ looks at the types of referendums in more detail.  

The draft Bill contains one additional section compared to the draft Bill published on 22 March 2021 ahead of the 2021 Scottish Parliament general election, section 1. Section 1 makes clear the consultative nature of the referendum, by describing the purpose of the legislation as being: 

to make provision for ascertaining the views of the people of Scotland on whether Scotland should be an independent country.

There was not an equivalent provision to this in the legislation for the first referendum on independence in 2014

Legal clarity  

The question of whether providing for an independence referendum is within the legislative competence of the Scottish Parliament has dominated much of the debate around a second independence referendum. To date, however, it is not a question on which the courts have ruled. 

Introducing the issue of legal clarity in her statement the First Minister said: 

We know that the legislative competence of the Scottish Parliament to pass the bill in the absence of a section 30 order is contested. We know that legislative competence can be determined only judicially. We know that, for as long as there is no judicial determination, opinions will differ and doubt will continue to be cast on the lawful basis for the referendum.

Ahead of the 2014 referendum on independence, the UK Government and the Scottish Government agreed a transfer of power which put beyond legal doubt the Scottish Parliament’s ability to legislate for that independence referendum. This was achieved through a “Section 30 Order” (a type of subordinate legislation which is made under the Scotland Act 1998) which can be used to increase or restrict the Scottish Parliament’s legislative competence.  

A Section 30 Order can be initiated either by the Scottish or UK Government but requires approval by resolution of the House of Commons, House of Lords and the Scottish Parliament before it can become law. A Section 30 Order is made as an Order in Council (i.e., at a meeting of the Privy Council with the Queen in person). 

The Scottish Government has already sought two Section 30 Orders (in 2017 and 2019) to legislate for a second independence referendum. On both occasions the UK Government did not agree to the request. Nevertheless, earlier this year the First Minister said “I only want a referendum that is capable of delivering independence, which means it has to be legal, it has to be constitutional.” This was seen as an indication that the First Minister would again seek a Section 30 Order to transfer powers to the Scottish Parliament to put beyond legal doubt the Scottish Parliament’s ability to hold a second independence referendum.  

In her statement on a second independence referendum on 28 June 2022, the First Minister said that she had written to the Prime Minister indicating that she stands ready to negotiate the terms of a section 30 order with you, as we did with the UK Government in 2012, to respect the mandate given by the people of Scotland.” 

Anticipating, however, that a Section 30 Order may not be forthcoming from the UK Government, the First Minister used the statement to set out how the Scottish Government plans to proceed in the absence of a Section 30 Order to ensure that the “issue of independence” is “resolved democratically… through a process that is above reproach and commands confidence.”  

The First Minister set out the legal challenges which would likely exist “If the issue of legislative competence remains unresolved at the point of formal introduction of the bill”, saying that “the UK Government will almost certainly use section 33 of the Scotland Act 1998 to refer the matter to the Supreme Court after the legislation has passed.” Similarly, challenge could be brought by private individuals in the form of judicial review. The First Minister stating that “Either way, at the point of Parliament passing the bill, there would be no certainty about when or even if the legislation could be implemented. A court challenge would still lie ahead and the timetable that I have set out today would quickly become difficult to deliver.” 

This means the Scottish Government wishes to seek an answer from the courts as to whether a referendum on independence is within the Scottish Parliament’s legislative competence prior to introduction of a Bill. In the words of the First Minister “We must establish legal fact.” 

The First Minister announced that the Lord Advocate has exercised the power under paragraph 34 of schedule 6 of the Scotland Act 1998 to refer the provision in the draft Scottish Independence Referendum Bill to the Supreme Court. The reference to the Supreme Court was filed on the afternoon of 28 June 2022. 

The Scottish courts have previously been asked, by a private individual, to rule on whether Scottish Parliament legislation for a second independence referendum would be within legislative competence. In early 2021 Martin Keatings sought two ‘declarators’ (findings of a court that a right exists or determining what the law is): 

The first is that the Scottish Parliament has power under the Scotland Act 1998 to legislate for a referendum on whether Scotland should be independent, without requiring the consent of the United Kingdom Government. The second is that the Scottish Government’s “proposed Act” concerning an independence referendum contains no provisions which would be outside the Parliament’s legislative competence

The ‘proposed Act’ referred to the Scottish Government’s draft independence referendum Bill which was published in March 2021. It had not yet been published when the case was considered at first instance (in the Outer House of the Court of Session) but had been published by the time the reclaiming motion (appeal) was heard by the Inner House. The Court of Session did not rule on the substance of the claim. The Outer House found, and the Inner House agreed, that Mr Keating’s action was not competent, being “hypothetical, academic and premature.”  

Next steps 

What happens next is in the hands of the Supreme Court.  

The Supreme Court has indicated that the reference does not need permission for it to proceed and that the first step will be for the reference to be referred to the President of the Supreme Court. The President will decide whether there are preliminary matters to be addressed, when the case will be heard, how many Justices will consider the reference and who they will be. If the Court gives a determination on the substance of the referral and finds it within the legislative competence of the Scottish Parliament to hold a referendum on independence then the Scottish Government has said that it will introduce the draft Scottish Independence Referendum Bill in the Parliament immediately. 

If the Supreme Court finds that legislating for the proposed referendum is not within the Scottish Parliament’s power, and the UK Government continues to refuse to agree to a Section 30 Order, then the First Minister stated that the SNP would fight the next UK Parliament general election on the sole issue of independence, saying: 

the General Election will be a ‘de facto’ referendum.

The Referendums (Scotland) Act 2020  

The Referendums (Scotland) Act 2020 provides the legal framework for the administration and campaign conduct rules for any referendum held within the competence of the Scottish Parliament (although further primary or secondary legislation could amend the Act for a specific referendum). The Act sets the rules for things like campaign financing, digital imprints and the role of the Electoral Commission in considering any question asked at a referendum.   

From the draft Scottish Independence Referendum Bill published on 28 June 2022 it appears that the Referendums (Scotland) Act 2020 would form the basis for the campaign rules at the proposed referendum.  

The Electoral Commission and the question 

Under the terms of the Referendums (Scotland) Act 2020, which is the legislation which sets the rules for any referendums held within the competence of the Scottish Parliament, the Electoral Commission must consider the question to be asked at any referendum and report on its intelligibility.  

Section 2(5) of the Referendums (Scotland) Act 2020 provides that where a Bill is introduced in the Parliament which provides for the holding of a referendum and specifies the wording of the question to be asked at the referendum: 

The Electoral Commission must— 

(a) consider the wording of the question, and 

(b) publish a statement of any views of the Commission as to the intelligibility of the question— 

(i) as soon as reasonably practicable after the Bill is introduced, and 

(ii) in such manner as they may determine. 

However, section 2(7) states that this does not apply: 

in relation to a question or statement if the Electoral Commission have, in the validity period— 

(a) published a report setting out their views as to the intelligibility of the question or statement, or 

(b) recommended the wording of the question or statement. 

The ‘validity period’ is defined as “the period composed of the session of the Scottish Parliament in which the proposed date of the referendum falls”, or in certain circumstances it can be the session of Parliament in which the referendum falls and the preceding session.  

On 8 June 2022 the Scottish Government published under Freedom of Information some legal advice relating to a second independence referendum. That advice, which dates back to 2020, would appear to indicate that the Electoral Commission may be asked to consider the question for a future independence referendum prior to a Bill being introduced in the Scottish Parliament: 

Section 10 of the Political Parties, Elections and Referendums (2000) Act (PPERA) allows Scottish Ministers to request advice from the Electoral Commission. The request in 2012 to test the 2014 question made use of the section 10 powers. Enactment of the Referendums Bill does not affect the powers available through section 10 of PPERA. When the request was made to the Commission in 2012, the section 30 Order was not yet law, although the Edinburgh Agreement was in place and the Order approved by Parliament. There was a risk in 2012 that, because there was not yet a transfer of competence the Commission could have taken the view it should not agree to test a referendum question which was not beyond challenge. That risk will have increased with the PM’s response refusing a section 30 Order. However, it does not create additional underlying legal difficulties, as the situation is similar if not identical to in 2012 where the Commission agreed to the request before a transfer of competence.  

Under the Referendums Bill, the Commission must report on the intelligibility of a question as soon as practicable after a “trigger” Bill is introduced. This would effectively compel the Commission to test the question. The constraints on timetabling mean we must request question testing before we are in a position to introduce any Bill so we cannot use this route to compel the Commission to test a question. However, the Commission will be aware that it would be required to test a question on introduction of a Bill.

Sarah McKay, Senior Researcher, SPICe