How could a second Scottish independence referendum happen?

Talk of a second vote on whether Scotland should become an independent country heated up on Tuesday, when the country’s first minister Nicola Sturgeon set out new plans for another referendum on the issue next year.

If the Scottish National Party leader has her way, then a Scottish Independence Referendum Bill will be introduced which will call for a consultative referendum on 19th October 2023, and ask the same question as the one asked in 2014: should Scotland be an independent country?

Ms Sturgeon told the Scottish Parliament: “Independence will give us the opportunity to chart our own course; to build a wealthier, greener, fairer nation; to be outward looking and internationalist; to lift our eyes and learn from the best.

“Now is the time, at this critical moment in history, to debate and decide the future of our country … Now is the time for independence.”

What is a “Section 30 order”?

When there’s talk of an independence referendum, it likely isn’t long before a Section 30 order is mentioned, but what does that mean, exactly?

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It refers to Section 30 of the Scotland Act 1998, which allows for “modifications” to be made to the list of Scotland’s devolved powers which are considered “necessary or expedient”.

It was an order under this section which “temporarily devolved authority [to Scotland] to legislate for a Scottish independence referendum” in 2014. It had to be approved by the House of Commons, the House of Lords and the Scottish Parliament before it became law.

Ms Sturgeon said in parliament earlier today: “The UK and Scottish governments should be sitting down together, responsibly agreeing a process including a Section 30 order that allows the Scottish people to decide.

“That would be the democratic way to proceed, it would be based on precedent, and it would put the legal basis of a referendum beyond any doubt.”

Now, however, the UK Government has been reluctant to grant that order again, with Boris Johnson’s official spokesman saying earlier this month that “the UK Government’s position is that now is not the time to be talking about another referendum”.

He said: “We are confident that the people of Scotland want and expect their governments to be working together to focus on issues like the global cost of living challenges, like the war in Europe and the issues that matter to their families and their communities.”

“The position on the referendum remains unchanged. It’s not something the prime minister believes the public want either government to be focused on at a time when there are other challenges facing them right now.”

On Tuesday, No 10 said: “We will carefully study the details of the proposal and the Supreme Court will now consider whether to accept the Scottish government’s Lord Advocate referral.”

The first minister said she has written to Mr Johnson setting out her latest stance on the issue, but what happens if the UK Government still refuses to budge on introducing a Section 30 order in Westminster?

Legislation without a Section 30 order

The SNP has proposed a new Scottish Independence Referendum Bill which would call for a referendum without a Section 30 order being required, but Ms Sturgeon has acknowledged that it is “inevitable” the bill “will go to court” if it passes through the Scottish parliament.

In terms of the UK Government, they could refer the bill to the Supreme Court for judges to decide if the contents fall within the “legislative competence” of the Scottish Parliament – in other words, whether the parliament actually has the power to do what the bill sets out.

Private individuals could also file judicial reviews against the legislation, if they so wish.

Though in a bid to nip things in the bud and beat them to it – not least because lengthy legal battles could prevent a vote happening in October 2023 – Ms Sturgeon confirmed she asked the Advocate General to look at the bill and decide whether to refer the issue to the Supreme Court, which she has.

If the Court decides the bill is within the authority of the Scottish parliament, then if it passes, the referendum can be held.

If, after that referendum, Scotland does indeed vote to become an independent country, then because it is a consultative referendum, it would be down to the UK and Scottish parliaments to legislate to make that vote lawful.

Basically, it would be a repeat of what happened after the 2016 referendum, where the UK parliament still had to vote on enacting Article 50 in order to effectively make the triggering of Brexit legal.

But all of this is dependent on the Supreme Court deciding the Scottish government’s Scottish Independence Referendum Bill is lawful without a Section 30 order. What happens if it doesn’t?

The next UK general election

Ms Sturgeon has claimed that if the Court rejects the bill as one the Scottish government can pass on its own, then it would be the “fault of Westminster legislation, not the court”.

She would, however, have one final trick up her sleeve.

She told MSPs: “If it does transpire that there is no lawful way for this parliament to give the people of Scotland the choice of independence in a referendum, and if the UK Government continues to deny a Section 30 order, my party will fight the UK general election on this single question: should Scotland be an independent country?”

In other words, the next Westminster election would become a “de facto referendum” on Scottish independence, with success for the SNP effectively counting as a “yes” vote on that issue.

Basically, a lot of voting could soon be on the horizon…

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