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With the recent events of the Brexit, the SNP want another referendum.

  • Is it possible that Westminster would block this possibility?
  • How could Scotland become independent without the approval of Westminster?

Another question:

  • Would every agreement with the EU have to be written again between the new Scottish state and EU, or is it possible to keep what currently links Scotland and the EU?

Edit: There is some really good answers, but I would like an answer with some abstracts from laws related to the subject or something, etc.

  • Concerning your edit: You aren't going to get any answers with extracts from the UK constitution, since there isn't such a single codified document, but rather successive sets laws applied on top of and interacting with each other. – origimbo Jun 24 '16 at 16:54
  • @origimbo no documents about parlement's power with local parlement etc ? – Gautier C Jun 24 '16 at 16:56
  • Short answer to the title of your question: Nope. – PCARR Jun 25 '16 at 2:42
15

To address your questions in order:

  1. It is constitutionally possible for the Westminster parliament to hold any referendum held by the Scottish parliament to be non-binding on itself and thus effectively worthless. Indeed, unless I'm misreading the Scotland Act 1998, Westminster could (in principle) abolish Holyrood at any time it chooses. As to whether it could stop a referendum being held, I believe that's more complicated, and the answer is probably not without considerable loss of political capital.

  2. Fundamentally Scotland is independent if enough of its trading partners (in terms of size and power) recognise it as independent and it can prevent (through force of arms or political pressure) the UK government from re-seizing the land it claims to govern. Unfortunately for the SNP several of the other members of the EU also have subnational regions seeking greater autonomy (for example Catalonia in Spain), which means it's not likely there would be huge support for a breakaway nation from them.

  3. Currently I don't know that there aren't direct agreements between Scotland and the EU, since it is still a constituent country of a member state of the EU rather than a member state itself. It could in theory negotiate an entry package for itself which matched the current state of affairs, but that would require multiple existing rules governing the conditions on the entry of new states to be rewritten, which might run into some of the resistance existing in 2)

  • 1
    Just to add to your qualifier, "unless I'm misreading the Scotland Act 1998", it doesn't actually matter what the contents of that Act are (or whether you misread it). By the principle of parliamentary sovereignty, Parliament can never bind itself permanently. Even if the Act required Scottish referendums to be upheld, Westminster could simply amend or repeal the Act at any time that it wishes. Whether or not it would be politically viable to do so is of course another matter. But from a legal point of view, Westminster has ultimate power over all devolved governments on any issue. – JBentley Jun 15 '18 at 22:46
7

Referendums in the UK are not binding, but, the tradition of democracy requires that the results are observed. All matters proceed by agreement. Furthermore there is an overriding principle of governance by consent.

Constitutional matters are, by tradition reserved to the Westminster Parliament. Accordingly, if the Scottish Parliament were to pass a referendum bill, they would be exceeding their powers. In reality the parliament would proceed by consensus, and only pass a referendum bill with the consent of Westminster.

What if Westminster did not consent? Then there is a major constitutional crisis. Holyrood could try to hold a referendum, it would be chaotic. If the referendum passed a majority in favour of leaving the UK, then Westminster could prevent it by force. However, both parliaments know that this would be a disaster for the whole of Britain. Britain is a mature democracy, we just don't do that.

So, while Westminster has the constitutional basis for blocking a Scottish referendum, and holds financial and military dominance over Scotland. In real politics it wouldn't block a clearly expressed will to hold a referendum, nor a clear vote to leave.

As for your second question, you should split it off, I suspect it has been asked before. It would be possible for an Independent Scotland to rejoin the EU, but it would be a matter of negotiation between the EU and an independent Scottish government.

  • What is the climat right now in UK about that ? – Gautier C Jun 24 '16 at 10:55
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    The AV referendum was binding. Admitted it took a specific wording of the act to cause it to be (effectively listing what the effects of a yes vote would be). – origimbo Jun 24 '16 at 13:13
  • 1
    @origimbo The AV referendum was binding, but Parliament could still have passed another law to annul it before it took effect. Parliament is sovereign, and can do whatever it wants. – Mike Scott Jun 15 '18 at 20:00
6

For the 2014 Scottish Referendum, Nicola Sturgeon MSP introduced it through the Scottish Independence Referendum Bill 2013 and the Scottish Independence Referendum (Franchise) Act 2013. The bill was passed as the majority of the house (unlike Westminster, it's unicameral - so it only has one legislative building), mainly made up of the SNP, supported the bill. It was only truly possible because of an agreement between Westminster and Holyrood to make an exception to the Scotland Act 1998 for this referendum, called the Edinburgh Agreement. This was signed in 2012, and said that:

The governments have agreed to promote an Order in Council under Section 30 of the Scotland Act 1998 in the United Kingdom and Scottish Parliaments to allow a single-question referendum on Scottish independence to be held before the end of 2014. The Order will put it beyond doubt that the Scottish Parliament can legislate for that referendum.

But what has Nicola Sturgeon MSP done so far to enact a new referendum? At the time that I post this, it's barely been 24 hours since polling finished, and 7 hours since the MSP held a news conference. Here is a relevant piece from her speech:

I can therefore confirm today that in order to protect [our place in Europe] we will begin to prepare the legislation that would be required to enable a new independence referendum to take place if and when Parliament so decides.

From what I can tell, Westminster could do the following:

  1. Refuse to sign over legitimacy through an agreement similar to the 2012 Edinburgh Agreement

  2. Remove Holyrood's legitimacy all together (unlikely) by repealing the Scotland Act 1998

Additionally, in Holyrood the bill calling for the referendum could be rejected, either in a reading or by a committee.

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