44

All conservatives members so far confirmed that it is an absolute No to second Scotland referendum. As per that, assuming that no approval is given for a second referendum in the coming months, is there anything that Scotland can do legally/constitutionally to get it despite the disagreement of Westminster?

  • 9
    Are you interested in legally holding the referendum, or in Westminster legally being required to accept the results of the referendum? – Peter Dec 16 '19 at 0:05
  • 4
    Both really. Whether Westminster have to accept or don't accept but still legal. – Mocas Dec 16 '19 at 9:26
  • 10
    Gaining independence is, almost by definition, the establishment of a new legal system. The process is almost never legal under the old system. – StackOverthrow Dec 16 '19 at 17:12
  • 5
    @ReinstateMonicaSackTheStaff Not really correct. Canada and Ireland spring to mind as obvious examples, but I'm sure there are others. The proposed Scottish independence would have been legal under UK law - I'm not sure what gave you the idea that it wouldn't. – JBentley Dec 17 '19 at 18:09
  • 1
    @ReinstateMonicaSackTheStaff many of the answers to this question are interesting thought experiments. In fact, any actual independence for Scotland will most likely be effected legally by bringing about circumstances under which the UK parliament passes an act to supersede the acts of union. But an assumption of the question is that this won't happen. So for the purpose of this question, pretty much all they can do is lobby parliament to change enough members' minds. – phoog Dec 18 '19 at 15:42
15

Apart from the indirect but legal techniques of obstruction, there don't seem to be legal options.

Obstruction

The Scottish Parliament could pass all sorts of laws in the health, agriculture and justice departments, designed to frustrate the workings of the United Kingdom up to the point where Westminster might concede.

This obstruction process would be ethically questionable, but it seems to be the only element of power the Scottish Parliament would have, since there is no formalized way for Scotland to leave the United Kingdom (as opposed to, say, the formalized way the United Kingdom has for leaving the European Union).

Historical comparison

As a comparison, a famous 20th century obstruction process was the Montgomery bus boycott. By collapsing the Montgomery bus system (40000 of the users suddenly stopped using the system, preventing over fifteen million bus fare tickets being collected), the African American community brought the system to its knees, while garnering country-wide and worldwide attention.

Ethics and risks

As to the ethical concerns, the fact that the Scottish Parliament has no say in activating a referendum, combined with the fact that the previous referendum was based on the premise that leaving the UK would likely mean Scotland dropping out of the European Union, a claim echoed by then European Commission President Jose Barroso, combined with the very high percentage (64%) of Scottish citizens voting to Brexit-remain, makes the obstruction process a morally-acceptable option to some. Politically-wise, though, it's much more likely that obstruction in the case of Scotland independence would result in popular backlash at home and abroad, not to mention the possibility of Westminster restraining the Scottish Parliament's power, in a move reversing part of the 1998 and 2012 Scotland Acts.

Brexit Remain vote and Scotland

Remain is in yellow, leave in in blue.

For visual aid, here's a map showing Brexit remain in Yellow

|improve this answer|||||
48

There is no formalised way for Scotland to leave the UK so for that to happen Parliament would have to agree because that is the supreme legislative body of the UK (Scotland has its own devolved parliament but that only has the powers granted to it by the UK parliament). So they can do nothing legally without the consent of Parliament.

|improve this answer|||||
  • 6
    @MikeBrockington the UK has not adopted any international law which takes priority over primary legislation enacted by Parliament. So no, without the consent of Parliament there is no application of international law through which Scotland could obtain independence. – Will Dec 16 '19 at 12:18
  • 2
    @Will I don't think that's a full and accurate summary of the interaction between ECHR and primary legislation (see also Factortame), but on the other hand I don't think there is anything applicable from ECHR or international law. There's UN charter right to self-determination, but in practice that's extremely weak. – pjc50 Dec 16 '19 at 12:40
  • 14
    @MikeBrockington if such a thing were available, the Catalans might have tried it before now... might also have helped their leaders in prison too. – gbjbaanb Dec 16 '19 at 13:58
  • 3
    @gbjbaanb indeed :-( The EU won't do anything to upset the status quo, and the UN has no actual power to do anything. Regarding the Catalan situation, it's not going to be long until enough people realise that the Basques have their special dispensations due to one reason: ETA. Once they've exhausted all peaceful methods, what's left? Give up, or embrace violence. Non-violent independence is a historical rarity. – Aaron F Dec 16 '19 at 14:27
  • 2
    @MikeBrockington I think you'll find that the right to self determination is regularly cited in connection with Catalonia. So Catalonia has, and Catalans have, made regular use of it. The reason it has had no effect is that it has no force of law. – phoog Dec 17 '19 at 10:12
3

The next election to Scotland's parliament occurs in May 2021. While the SNP will try to claim a mandate for another independence referendum now, to build support, they know that many of their backers in the General Election voted to try to stop Brexit.

Come 2021, if the SNP pursues independence as a single issue, in an election where the voting system does not encourage tactical voting, AND independence-supporting parties get over 50% of the vote, then they are likely to be given a 2nd independence referendum, regardless of what English politicians have promised.

|improve this answer|||||
  • I don't think you need the "tactical voting" condition on that. Almost every voting system encourages tactical voting, but a strong enough push for a single issue can override that. – Brilliand Dec 16 '19 at 23:23
  • @Brilliand STV means no need to tactically vote. – Tim B Dec 17 '19 at 13:47
  • 1
    @TimB Unfortunately almost no voting system can preclude tactical voting, given enough information on everyone else's predicted vote. This includes STV (see e.g. the discussion at en.wikipedia.org/wiki/…) – origimbo Dec 17 '19 at 14:34
  • 1
    This answer has problems. Firstly, since when does a major political party such as SNP campaign on a single issue? On the contrary, it will have a full manifesto, and you can't conclusively point to a 50%+ outcome and say "all of those voters did so because they want independence". Secondly, even if this happens, you haven't provided a convincing case that "they are likely to be given a 2nd independence referendum" given that (a) they have already been given one which should have "settled" the matter for the foreseeable future and (b) the Conservatives are firmly opposed to the idea. – JBentley Dec 17 '19 at 18:24
  • @JBentley The problem is that a major thrust of the anti-independence campaign was that leaving the UK meant leaving the EU. Brexit means there has been a legitimate and significant change of circumstances that justifies a further referendum on scotland - whether the conservatives want it or not – Tim B Dec 17 '19 at 19:31
1

If you pass a law saying it's illegal for a certain minority group to have human rights, should they (and the rest of the world) be OK with it just because it's legal?

It would be quite funny if you "capture" a nation, pass a law where they got no rights, and expect they should just be OK with it because otherwise it would be illegal. Kinda oppressive, where its outlawed to criticize your master.

Point is: No sense in discussing is it legal or not. If an entire nation wants independence, there is nothing that can or should, legally or morally hold them back.

|improve this answer|||||
  • I've just looked it up, that Scots are indeed a < 10% minority (by census). – user26216 Dec 17 '19 at 8:46
  • 3
    Hi, This isn't really an answer to the question, but instead a comment on the general subject matter. I recommend you edit it to actually provide an answer to what OP is asking – CoedRhyfelwr Dec 17 '19 at 8:47
  • 2
    The urge to forbid criticizing the master has nothing to do with communism. You have this in all authoritarian regimes. And communist authoritarian regimes were by far not the first. You have it even in the most ordinary traditional patriarchy. – Christian Geiselmann Dec 17 '19 at 10:34
  • @CoedRhyfelwr: I take it as a frame-challenge answer. – Fizz Dec 17 '19 at 13:55
  • Scotland is part of the UK because the Scottish king inherited England after the English throne died out. Then a German king inherited the lot. – Clint Eastwood Dec 17 '19 at 17:23
1

In Kheldar's list of options for Scotland, I miss one:

Scotland could invite a foreign power to invade and liberate them. For example Russia.

I know it sounds weird (and the Russia example is even more weird), but technically: If a legitimate Scotish Parliament with a, say, 75 per cent majority asks for this (and it might base its decision even on an additional referendum) - could it be deemed illegitimate?1

This may sound like a joke (and actually it started as one), but interestingly the idea of foreign intervention seems not to be totally beyond (theoretical) consideration. A commenter said: "Indeed, the UN recognizes the right of people to govern themselves, Parliament has enough recognition to be considered to represent the people of Scotland, and we have witnessed recent 'liberations'."

An example for Russia having been welcomed to liberate a nation is Bulgaria (1877-1878, Russian war against the Ottoman Empire with Russia invading). Well, okay, one might dispute how welcome that war really was at the time (the part of the population that did not welcome it has been largely ignored by Bulgarian national historiography since), but indeed there were groups in what is today Bulgaria who actively faught for foreign powers to intervene so that the Ottoman Empire might retreat. Which indeed happened.

Can Scotland learn from Bulgaria?

Here is a twist towards reality: We do not believe that Scotland would really want to have a foreign power invading. However, only speaking out the invitation would already have an effect, namely on the field of public opinion. The UK could not ignore this clear vote to leave anymore. Moreover to be safe, Scotland could invite a distinctly small foreign power which does not really present a threat, perhaps San Marino or whatever. The power of the act would lie in its symbolism.2


1 Of course, it is hard to imagine that Scotland would call Russia for help. Perhaps we should consider other powers. Uh... Norway? At least they have some positive track record with conquering these islands...

2 Another twist would be not to invite a foreign power, but to declare war to it. And then immediately surrender. - I admit that this is not my idea. I heared it somewhere in late night comedy, although probably not applied to actually Scotland.

|improve this answer|||||
  • 3
    Inviting a foreign power to invade them would be treated as treason and result in all of the backers being jailed. Russia actually trying to invade would result in Moscow being nuked. – Valorum Dec 17 '19 at 17:27
  • 1
    @Valorum Which would lead to London being "nuked" (as you chose to express it). Which London would not want. So... perhaps curb your aggressiveness? – Christian Geiselmann Dec 17 '19 at 17:29
  • 2
    I was trying to point out the ridiculousness of your answer. Why would Russia risk trying to "liberate" Scotland when the risk to them is so extreme and the benefit is nil? – Valorum Dec 17 '19 at 17:32
  • 1
    He has a point with the "treason" part. That's why international disputes are so complicated, since they stop relying on "law" per se, and become the domain of realpolitik. As proof, I give you the PRC and the island of Taiwan. Legally, China belongs to Taiwan. Reality says otherwise. Play that with any dispute (Israel? Russia? Argentina?) – Kheldar Dec 17 '19 at 17:41
  • 1
    However, inviting might be treason, but requesting United Nations adjudication is legal and works very well. As an example, I give you Palestine. – Kheldar Dec 17 '19 at 17:42
1

In 1937 Ireland had a constitution which (although it went a lot further than the devolved authority today's Scottish Parliament has) subordinated it to UK institutions.

The new Irish constitution was enacted by a plebiscite independent of the Dáil (which set the mechanisms in place). The plebiscite was an in effect an act of popular sovereignty. A key element was that the senior Irish judiciary had personally all agreed to the process, ensuring that any court decisions would underpin this.

Britain had no option (short of military action to reoccupy Ireland) but to accept this situation.

|improve this answer|||||
  • Would it be possible for Scotland to hold a similar plebiscite? Or would it need approval from the UK Parliament? – divibisan Dec 17 '19 at 22:23
  • 2
    Ireland was a very different situation - it was basically independent already from 1922 after a small war. – pjc50 Dec 17 '19 at 22:53
0

Legally, Scotland has been a part of the United Kingdom since the acts of Union, and there is no route provided in current law for Scotland to leave that union. It's no more possible than Yorkshire or London leaving the UK.

So it has to be a matter of moral pressure. The principle was conceded by the government of the UK, that if a majority of Scots voted for independence, it would be granted. A referendum was held in 2014. It was agreed by the SNP that this would settle matters for "a generation". Only 45% of Scots who voted, voted for independence.

That should have settled it until at least 2034. Although I accept it's possible for a woman to be born, conceive and produce a baby in less than 20 years, it's a quite a stretch to call less than twenty years a generation, let alone six.

And it's surely a part of being part of the UK, that a decision about foreign policy taken by a majority of the population of the whole UK is binding on Scotland as much as on Yorkshire and London. That decision is, of course, Brexit.

It would be reasonable to expect another referendum in Scotland in 2034 or shortly after. The Nationalists are indulging in "special pleading". In fact, they did not receive a majority of Scottish votes in the recent general election, and every other party standing was Unionist. So based on the evidence of that vote, they cannot even claim that a putative majority for independence exists today.

If they were really sure, I don't think there is any provision in UK law to prevent the Scottish Parliament conducting a purely consultative referendum, such as that which was recently attempted (and violently suppressed and prosecuted) in Catalonia. I do not expect that the UK government would emulate the government of Spain. This referendum would take place, and if there was a majority for independence, the moral case for refusing to enter into negotiations would be very weak. So why, I wonder, doesn't the Nationalist-dominated Scottish parliament do exactly this?

My own opinion, is that they believe they would lose again.

|improve this answer|||||
  • 1
    Arguing that the referendum result should be held for "a generation" in the face of the massive constitutional change that would accompany departure from the EU, especially in light of Scotland's vote in the EU referendum, seems to have little more legitimacy than arguing that Scotland can't leave because the acts of union state that the union is to be perpetual. – phoog Dec 18 '19 at 15:31
  • @phoog Why does your argument not apply equally to Yorkshire or London (or Mercia, which we know historically to have been a separate kingdom, just longer ago than Scotland). Scotland has been granted some devolved powers, but foreign policy is not and could not be one of them! – nigel222 Dec 18 '19 at 15:37
  • @phoog and why doesn't the SNP dominated Scottish Parliament organise a consultative referendum/ opinion poll like Catalonia attempted to do? – nigel222 Dec 18 '19 at 15:40
  • Yorkshire and London haven't had recent independence referendums, and they don't as far as I know have independence movements. But if they had, perhaps the argument would apply. They and Mercia are also not considered separate countries under the current constitution, as Scotland is. As to the consultative referendum, I have no idea. Maybe you're right, maybe they don't do it because they think they'd lose. Maybe they don't do it because they worry that a referendum that doesn't count would yield misleading results. Maybe there's another reason. – phoog Dec 18 '19 at 15:56
  • It seems to me that precisely because Scotland recently rejected independence, its case is actually weaker. Also disliking what was decided by the whole UK has not caused >50% of the voters to vote for the SNP in the 2019 election (55% voted for parties which are pro-union, and that just happens to be the same percentage as in 2014). – nigel222 Dec 18 '19 at 16:01
-8

There is no legal base as long as the parliament doesn't allow for it. There is also no legal base for it being binding in any way (unless... etc etc), even if a referendum was allowed.

But, more importantly, there is absolutely no practical base. Therefore, no matter what, Scotland leaving will not be granted.

The 2014 referendum was a posse charade. UK tolerated it knowing well that after the fear and uncertainity that was deliberately spread as well as the deliberate Brexit misinformation, it would almost certainly not get through (but they could say "We did ask you, you know!" afterwards). But even if it had gone through, they could have and would have ignored it.

There is no practical base because UK needs Scotland, fullstop. It is the same situation as with Spain and Catalonia -- very similar situation, Spain cannot afford to lose Catalonia.

If Scotland leaves, the UK (or rather "England") is factually dead. Scotland isn't just a couple of whiskey drinking shepherds.
Virtually all the UK's oil (and gas) is indeed Scotland's oil (and gas). A sizeable proportion of UK's gold is located in the Highlands. Scotland is producing huge amounts of (renewable) energy which, of course, the UK uses. It has one of the biggest potentials in the entire EU for (future) wind and tide energy, too. Where would UK submarines and nuclear bombs be located if Scotland is no longer UK?

Glasgow gone? Yeah, who cares, nobody needs machining and heavy industry. Edinburgh gone? Who cares about that silly tech stuff and them start-ups. Royal Bank of Scotland gone? Ouch. Alright, now, that one really hurts.

The UK will not let this happen, they cannot let it happen, since they cannot afford. The question about a legal possibility never arises. There is no way they'll ever agree to Scotland leaving (short of losing a civil war).

|improve this answer|||||
  • Comments are not for extended discussion; this conversation has been moved to chat. – Sam I am says Reinstate Monica Dec 18 '19 at 5:29
  • This is plain wrong. The UK redistributes wealth from South to North, and Scotland benefits rather more than it should do (it gets more than Northumbria, despite having a better economy). England would be financially better off if Scotland decided on independence. So parliament will allow another independence referendum, when its time comes due the agreed "generation" after the 2014 referendum. 2034 at earliest. – nigel222 Dec 18 '19 at 13:56
  • @nigel222 is that agreement binding? I think not. And the change in circumstances is substantial, sufficiently so that it is not particularly reasonable to hold the SNP to that nonbinding agreement. – phoog Dec 18 '19 at 15:37

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .