Once More unto the Breach? An Independent Scotland, Europe, and the Law

von Tobias Lock

When Scotland voted to remain part of the United Kingdom on 18 September 2014, many people thought that the question of Scottish independence had been settled for at least a generation. The EU referendum of 23 June 2016, where 62% of Scottish voters opted to remain in the EU, but 51% of the overall UK electorate voted to leave, changed this perception. In the words of the Scottish First Minister Nicola Sturgeon, another independence referendum was ‘firmly back on the table’.

Indeed, on Monday she announced that she would ask the Scottish Parliament to allow her to agree with the UK Government on another independence referendum. The Scottish people should be given a right to decide – once the terms of Brexit are known – whether to stick with the UK and leave the EU or pursue the route of independence and stay within ‘Europe’.

This blog post will briefly outline some of the legal obstacles on the way, both internal and external.

The internal dimension

Internally, mirroring the procedure resulting in the 2014 vote, the Scottish Government will seek an Order in Council under section 30 of the Scotland Act 1998. The section 30 order would grant the Scottish Parliament the powers under the UK devolution settlement to call another independence referendum. According to schedule 7 of the Scotland Act, such an order must be approved by a resolution of both the House of Commons and the House of Lords as well as by the Scottish Parliament.

This means that the Scottish Government would need the backing of the UK Government and Parliament for such a move. Whether this backing is forthcoming is currently unclear. What is politically important, however, is that Sturgeon has kicked the ball firmly into Westminster’s court ...

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