A step closer? Indyref2?

Photo by Seán J Crossan

Can you contain your excitement? Indyref2 (or a second Scottish Independence Referendum) is definitely on the horizon…

… except that it isn’t, but this is the impression given by sections of the Scottish and UK media.

On 28 May 2019, Michael Russell MSP, a senior Scottish Government Minister introduced the Referendums (Scotland) Bill in the Scottish Parliament.

Does this pave the way for more constitutional upheaval (as if Brexit woes aren’t enough at the moment?) across Scotland and the rest of the UK?

Well … actually, no it doesn’t.

Are we on the cusp of a political event approximating the Apocalypse or the Second Coming? Hardly.

From a cursory glance of the Bill and its accompanying documents, it’s very hard to see any mention of Indyref2. In fact, the aims of the Bill are incredibly modest:

This Bill provides a legislative framework for referendums. It provides a power for the Scottish Ministers, by regulations, to provide for the holding of referendums throughout Scotland within the legislative competence of the Scottish Parliament.”[my emphasis]

Critically, even Ken MacIntosh MSP, Presiding Officer of the Scottish Parliament has stated:

In my view, the provisions of the Referendums (Scotland) Bill would be within the legislative competence of the Scottish Parliament.

The Bill is very limited in scope (or timid depending upon your viewpoint). There’s nothing problematic about a future Scottish Government wishing to consult the people of Scotland through the medium of direct democracy (i.e. a referendum) on issues that are firmly within the legislative competence of the Scottish Parliament. Off the top of my head, I can think of several matters which might be suitable for direct democracy e.g. local government, NHS reorganisation, Police and Fire Services reform; education and more thorny, ethical and moral matters such as abortion and euthanasia. 

In terms of the Scotland Acts 1998 and 2016, the Scottish Parliament is confined to legislating upon matters or issues which are deemed to be “devolved”. It is not permitted to legislate upon matters which are deemed to be “reserved” to the Westminster Parliament.

In a previous blog (“Bring it on! (or Indyref2?)” published on 26 April 2019), I emphasised that the last Referendum on the question of Scottish Independence (held on Thursday 18 September 2014) was permitted to go ahead because the then UK Government and Parliament gave their consent. This constitutional arrangement became known as the Edinburgh Agreement of 15 October 2012 and operated under the auspices of Section 30 of the Scotland Act 1998.

Currently, it does not seem likely that the UK Government and the next British Prime Minister (who we know will come from the Conservative Westminster Parliamentary Party) are likely to agree to Indyref2 going ahead.

So, what does the Scottish Government hope to achieve?

Be in no doubt: this is about the political long game and the Scottish Government is attempting to shame the UK Government into giving it the right to hold a second referendum.

Scotland’s First Minister, Nicola Sturgeon MSP is calculating that she can portray the refusal of the UK Government to approve another referendum as a deliberate denial of the Scottish people’s fundamental democratic rights. If a UK led Conservative Government becomes even more unpopular, SNP activists and other independence supporters are hoping that it will become politically costly for the Conservatives to continue to oppose a second referendum.

Where will it all end? At the moment, who can really predict the future with any degree of certainty. 

Interesting times indeed!

An infographic (taken from the Scottish Parliament’s website) showing the introduction of the Referendums (Scotland) Bill can be seen below:

A link to the Bill and its accompanying documents can be found below:

https://www.parliament.scot/parliamentarybusiness/Bills/111844.aspx

Finally, you can find links to some news articles below which discuss the implications of the Bill:

https://news.sky.com/story/nicola-sturgeon-clashes-with-tory-hopefuls-over-second-independence-referendum-11731033

Indyref2 ‘framework’ bill published at Holyrood

The Scottish government wants to hold a new independence referendum in the second half of 2020.

Copyright Seán J Crossan, 3 June 2019

Published by

sjcrossan1

A legal blog by the author of Introductory Scots Law: Theory & Practice (3rd Edition: 2017; Hodder Gibson) Sean J. Crossan BA (Hons), LLB (Hons), MSc, TQFE I have been teaching law in Higher and Further Education for nearly 25 years. I also worked as an employment law consultant in a Glasgow law firm for over a decade. I am also a trade union representative and continue to make full use of my legal background. Please note that this Blog provides a general commentary about issues in Scots Law. It is not intended as a substitute for in-depth legal advice. If you have a specific legal problem, you should always consult with a qualified Scottish solicitor who will be able to provide you with the support that you require.

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