‘Sovereignty’ and ‘democracy’ are frequently mentioned in Brexit debates in the UK and Scottish Parliaments. What might seem as ‘dry’ constitutional principles play out very differently in Scottish and British politics. Whether and when the SNP devolved administration could hold a second Scottish Independence referendum has not been far from ongoing debates about the UK leaving the EU since the June 2016 EU referendum result.
The SNP argued in its 2016 Scottish Parliament election manifesto that the ‘Scottish Parliament should have the right to hold another referendum if there is a significant and material change in the circumstances that prevailed in 2014, such as Scotland being taken out of the EU against our will.’
But how would the SNP Government and Scottish Parliament achieve this? Scotland voted 62% to ‘Remain’ for the EU in June 2016. Brexit put a second Scottish Independence back on the political radar and with it political and legal conundrums.
The September 2014 Scottish Independence Referendum was to be a once in a life-time vote. On this, both the Yes Campaign and the Better Together Campaign were agreed. ‘Better Together’ stated that remaining in the UK would protect Scotland’s membership of the EU.
Tensions between the SNP devolved administration and UK Government are not new, but Brexit has intensified debates about Scotland’s constitutional position. What role, if any, would the devolved nations have in the negotiations leading to UK withdrawal from the EU? What would future relationships relations of the UK and Scotland be with the EU following Brexit? The tone of debates sharpened as the Scottish Parliament and Scottish Government perceived themselves as effectively ignored in terms of any meaningful input into the UK negotiations with the EU27. The SNP Government had sought a ‘special deal’ with the EU – retaining the Single Market and Customs Union.
The disjuncture in constitutional relations in the devolved UK is increasingly apparent as we approach 29th March 2019. Twenty years after the establishment of the devolved Scottish Parliament in 1999 intergovernmental relations between the UK and Scottish Government have been tense as have relations between the devolved Scottish Parliament and UK Parliament. Withholding legislative consent motions (LCMs) regarding the EU (Withdrawal) Act and other Brexit related legislation and also the Supreme Court ruling on Continuity Act passed by the Scottish Parliament in March 2018 highlighted disagreements between devolved legislature in Scotland and the UK legislature.
Following the 2016 EU Referendum Nicola Sturgeon confirmed that the SNP Government would draft legislation for a second Scottish Independence Referendum. There are questions about the legality of the Scottish Parliament calling a second referendum. In 2012, the UK and Scottish Government had signed the ‘Edinburgh Agreement’ transferring power (Section 30 order) from UK Parliament to Scottish parliament to hold an independence referendum.
Before the Article 50 vote in March 2017, Sturgeon requested the UK Government to move a Section 30 order for the Scottish Parliament to hold a second Scottish Independence Referendum before the spring of 2019. Sturgeon’s request to the UK Government followed a vote in the Scottish Parliament which sought temporary transfer of power to hold a second referendum. Prime Minister May rejected this request. The option of holding an advisory referendum in the absence of a Section 30 order had its drawbacks for the Scottish Government as it could be challenged via the UK Supreme Court.
The UK vote in 2016 EU Referendum, by removing the European framework from EU membership that underpins existing devolution, has intensified debates on the need for significant change to devolved arrangements within the UK. How ‘independence in Europe’ might be placed in the party’s case for ‘self determination’ is also attracting attention within the SNP.
The snap UK general election in 2017 may have temporarily dampened enthusiasm within the wider Scottish public – a Conservative Party election programme in Scotland which repeatedly attacked the idea of a second independence referendum was followed by an election result increasing the number of Tory MPs in Scotland from one to thirteen. The overall number of SNP MPs fell from 53 to 35.
The SNP confirmed in October 2018 that it would support a second EU referendum but that in a second EU referendum Brexit would require a majority in Scotland and across the UK. If Scotland voted to ‘remain’ and the UK to leave the EU without this electoral ‘safeguard’ the SNP would press for a second Scottish Independence Referendum.
The nearly daily evidence of uncertainty over the outcome of Brexit and the intra-party strife at Westminster will arguably encourage the SNP to persist in advocating a second independence referendum. The when and the how of the referendum, however, remain uncertain.