Could Westminster block the possibility of a referendum on Scottish independence?

Question

With the recent events of Brexit, the SNP wants 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 are some really good answers, but I would like an answer with some abstracts from laws related to the subject or something, etc.

Answer 1

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)

Answer 2

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.

Answer 3

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.

Answer 4

Concerning question number 3. From a legal perspective Scotland would be a new entity. It would therefore be treated as wholly separate from the United Kingdom in terms of EU membership and would have to join as a new member, rather than rejoin.

It would start the entry process from scratch using much the same process as any new applicant would.

In this regard, Scotland would be well placed when it comes to regulations and human rights, as it is already closely aligned with the EU it, but it would face considerable difficulties when it comes to economic alignment as Scotland originally joined the EU as part of a much larger entity, and was dependant on the English economy to meet some criteria.

In particular, Scotland would need to restructure its public sector and its economy in order to meet EU requirements over its budget deficits. This would entail significant cuts in public spending or substantial increases in taxation.