The Legal Viability and Implications of Scottish Independence

In June 2016, 62% of Scots voted to remain in the European Union, yet in February 2020, the United Kingdom officially withdrew. Consequently, the debate over the legal validity of holding a second Scottish independence referendum (‘IndyRef2’) reignited, with ardent advocates such as Scottish Greens co-leader Lorna Slater stating that, “[w]hether it's the botched handling of the coronavirus crisis, the Brexit catastrophe or just the heartlessness of Tory governments […] it's clear that the UK isn't working for Scotland” (BBC, January 2021).

Image: Flickr/ Alistair

In January 2021, the Scottish National Party (SNP) promised voters that if pro-independence parties win the majority in the upcoming Parliament elections, the Scottish Government would pass a bill permitting a referendum to happen. This is exactly what happened in early May, when pro-independence parties won the majority in Scotland's Parliament. But will IndyRef2 actually occur, and what are the legal and political implications of Scottish independence? 

Legal Validity of IndyRef2 and Boris Johnson’s Tantrums

A Section 30 order is required for a binding referendum to take place, and this can only be granted by the UK Government. Notably, the transfer of power for an independence referendum under Section 30 has never been sanctioned by any prime minister, and Boris Johnson (the current officeholder) reiterates the same position, arguing that IndyRef2 “in the current context is irresponsible and reckless" (The Telegraph, May 2021). Furthermore, Johnson dismisses pressure from opponents because, when the first independence referendum took place in 2014, the Scottish government stated that it was a "once in a generation opportunity”, which Alex Salmond (former First Minister of Scotland) and Nicola Sturgeon (the current First Minister), affirmed back then.

However, Johnson’s resistance against the referendum has been criticised on the basis that Brexit has materially altered circumstances since the first referendum, thereby mitigating the “once in a generation” promise. Interestingly, the Court of Session has also entertained a case regarding the legality of the Scottish Parliament holding a referendum without a Section 30 order, but this was dismissed as being "hypothetical, academic and premature" (Lady Carmichael [2021]). However, given the  SNP’s campaign pledge, a situation where IndyRef2 takes place without a Section 30 order no longer seems very hypothetical, academic or premature. 

Additionally, there is also the possibility of a ‘wildcat’ referendum,  such as the one Catalonia had in 2017.  However, the SNP has expressed  little interest in following that path, with Sturgeon asserting that Scottish independence will be achieved by legal means for the purposes of international recognition (Euronews, May 2021). Furthermore, commentators have argued that, although there are similarities between the two nations in their fight for secession, the differences between the two are profound – in Catalonia’s case, the population experienced a forcible removal of its cultural and political autonomy by the Spanish government, and has still not come to terms with the Civil War and divisive Franco years. The difference with Scotland is stark,  considering (among other things) David Cameron’s concession in holding the first Scottish independence referendum.

Nevertheless, expecting reduced demand for IndyRef2 is akin to demanding Johnson to abandon Brexit: it’s unrealistic. Though the SNP is divided on how to secure another referendum (and there’s no certainty that it will return a ‘Yes’ vote), it would be useful to consider what the legal and political implications of Scottish independence would entail.

Legal and Political Costs of Scottish Independence

Unionists stress the advantages of devolution, particularly the tangible benefits of economic strength, national security and international influence. In fact, there is now strong economic data which indicates that the UK is on a path to “fast and full recovery” following Brexit (Financial Times, May 2021). In contrast, the economic impact of a referendum and Scottish independence remains uncertain and too premature to forecast.

If Scotland was to achieve independence, it would also mean that the Scottish government would have to either establish its own domestic institutions (a formidable challenge given that there are over 200 UK public bodies present in Scotland), or negotiations with the UK would need to continue. This would also make the implementation of a ‘Yes’ vote significant and duly delicate.

Additionally, Scotland would need to re-apply for membership of  international bodies, including the United Nations and the European Union. If Westminster explicitly disapproves of Scottish independence, a severe issue of state recognition could arise, similar to that of Kosovo and Palestine — though this is an extreme scenario. It is generally agreed that the EU would welcome an independent Scotland, though studies estimate that membership wouldn’t immediately follow after independence, and would likely take years (The Herald, March 2020),giving rise to further significant economic implications.

Johnson and his government cannot swiftly dismiss IndyRef2, as it seemingly only bolsters the campaign for Scottish independence. Given that the SNP has an 11-point “roadmap” for IndyRef2 and the Scottish Parliament’s majority is now comprised of pro-independence parties, it can be stated with certainty that the independence of Scotland is  no longer  a hypothetical scenario.