Is little Britain getting smaller?: Constitutional questions for a disunited Kingdom in the aftermath of the EU referendum
As I am sure you have heard by now, on June 23rd The United Kingdom voted to leave the European Union by 52 per cent to 48. However this result was not echoed in Scotland where the electorate voting by an overwhelming 62 per cent to remain a member of the EU.
Unlike England and Wales, Scotland is committed to staying put and First Minister Nicola Sturgeon has already declared that Indy ref 2 as it is often known is “highly likely”. Sturgeon would then seek to make an independent Scotland part of the EU. We are not concerning ourselves right now on whether an independent Scotland could join the EU, rather whether a second independence referendum is legally possible, and if so is it likely? Additionally why is Wales so different from Scotland in demanding the constitutional football be passed its way.
The Short answer to whether Indy ref 2 is possible, is probably not, although it is unlikely to stop the Scottish First Minister from trying.
The long answer however is a bit more complicated.
The 2014 Scottish Independence referendum was forged of the fires of the Edinburgh agreement, and was apparently a “Once in a generation” event according to the then First Minister Alex Salmond. Neverendum was ruled out as an option. There would not be another Independence referendum for a generation, defined for this purpose as 15 years. However, this is where the phrase "significant and material change” comes into play. The SNP accepted the result in 2014, yet with a caveat, that if "significant and material change” were to occur to Scotland’s Constitutional arrangements, then another referendum could occur. You do not have to be that much of a politico to realise that leaving the European Union and fundamentally altering the very nature of Law and Politics in the devolved administrations and Westminster is a pretty significant and material change. Nicola Sturgeon is therefore justified in starting calls for a second referendum, given that, in her own words she need to “act in the best interests of Scotland”, a Scotland that doesn’t want to leave the EU.
Legally there is probably two ways of looking at this. Firstly, the Scottish Parliament, have no authority to call for a second referendum on independence. All the LEGAL power to call the 2014 referendum was contained in the Scottish Independence Referendum Act 2013, which permitted a one off referendum on the future of Scotland’s place in the UK. There is therefore no pre-existing piece of legislation that allows for the SNP to call another Indy ref. There would need to be negotiations between Scottish and Westminster Governments, as well as a drafting process and parliamentary debate. This would not be a quick process, however there are technically two years before the U.K. would leave the EU. Via this route, an independent Scotland looks unlikely.
Secondly, it appears that in order to leave the EU, Westminster needs the consent of the devolved administrations. This is usually acquired through a process called a legislative consent motion. (These used to be called Sewel motions, named after Lord Sewell a former Scottish politician, but we don’t mention him anymore for some reason). During legislative consent motions, a vote is usually taken by the members of the devolved legislature in order to allow Westminster to legislate on something within devolved competence. Prior to the Scotland Act 2016, this would not have been an issue for Westminster. Section 28(7) of the Scotland Act 1998 ensured that Westminster retained the ability to legislate on devolved matters for Scotland, yet section 2 of the 2016 Act codified legislative consent motions, turning them from a parliamentary convention into a binding piece of law. Here the wording of the provision is vital. Section 2 of the 2016 Act states that Westminster will not “usually” legislate on devolved matters without the consent of the Scottish Parliament. It does not say, it will definitely not legislate on devolved matters. Therefore Westminster could remove Scotland from the EU via a piece of legislation, yet doing something so undemocratic just after one of the biggest displays of democracy in British history, would not look so good.
Therefore a third option is presented. It is suggested that Nicola Sturgeon and the Scottish Parliament passes the legislative consent motion on the basis that Scotland is allowed to hold a second referendum on its continued membership of the United Kingdom. This is Scotland’s best hope of continued EU membership given the lack of legal mechanisms to force a second referendum on their own.
Finally, we ask why Wales is not surging forward and declaring its constitutional importance in the wake of brexit. Well the answer to that is simple. On June 23rd Wales voted to leave the European Union by a margin of 52.5 per cent to 47.5. It is unlikely that even a slight vote in favour of remaining in the EU from Wales would have turned the tide of the overall result in favour of remain, yet it could have highlighted Wales’ difference from England. Highlighted the need for attention to be paid to the Welsh polity and the respect that ought to be paid to a quickly maturing democracy. Instead Wales now appears to many to be much like England, leaving the EU and confused why Scotland wants to leave us behind.