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By Jason Michael
The general and accepted opinion is that Scotland requires the permission of the London government – in the form of a Section 30 order to the Scotland Act (1998) – to hold another independence referendum. But is this actually the case in law?
When Nicola Sturgeon announced her intention to have another independence referendum on Monday she said that she will “seek the authority of the Scottish Parliament to agree with the UK Government the details of a section 30 order.” In this there is the muted implication that the authority for the process of a constitutional referendum, as she sees it, rests with the Scottish Parliament and that the role of the London government is reduced to a rubber stamping of Scotland’s will. Of course the precedent of the 2012 Edinburgh Agreement and the Section 30 order that followed lends more weight to the position of Westminster than we would like.
Given the absolute intransigence of the British government towards Scotland since England’s decision to leave the European Union it is likely that Theresa May will block the Scottish government’s attempts to hold another referendum before early 2019, thereby depriving the independence movement of the political capital gained over hostility to Brexit in Scotland. As Scotland and England’s difference of opinion in the EU referendum instigated this current crisis the First Minister finds herself on a timescale dictated by the Article 50 negotiations, raising the question of the necessity of a Section 30 order altogether.
According to Professor Aileen McHarg, professor of public law at Strathclyde University, there is reason to believe that Scotland does not in fact require such an order. Her own article on this contains a number of provisos and is more nuanced than we can be here, but she states:
…the Scottish Parliament’s competences do not depend on positive conferral of power to legislate on particular topics, but rather on the absence of relevant restrictions on its powers. While there is currently no express permission in the Scotland Act to hold an independence referendum neither is there any explicit prohibition.
Professor Aileen McHarg, expert in constitutional law
As is the nature with all law, it was impossible – while legislating for the devolution of the Scottish Parliament – to cover all eventualities, and so the devolved Edinburgh parliament was effectively empowered to do anything except for those things that had been explicitly restricted – the “reserved” matters. What is interesting in what McHarg writes is that the requirement for a Section 30 order – that is the permission of the London government to call a referendum – is not actually an expressly reserved matter.
What stands against this argument for Scotland going ahead with a referendum without this order is the rather inconvenient detail of it having been done before. That the Edinburgh Agreement secured the 2012 Section 30 order creates a legal precedent, but, at most, this is only soft law and remains wide open to legal challenge. With the British government set on a course to stymie Nicola Sturgeon’s referendum timeframe, this is certainly a legal argument the Scottish government will and must now be considering.
Aileen McHarg – Constitutional Law (February 2014)
Random Public Journal 
Why, if we’re equal partners do we need the express permission of Westminster then. Surely, the devolved Govt of Scotland has that power within it especially if we are to become an independent country. Have other countries who have left the empire always deferred to Britain? If we’re asking permission then and the uk grant it then if Scotland were to vote for independence then the uk govt in my mind could say you’re not going we won’t allow it. To me just now it’s akin to asking your parents for permission to leave and set up house. People just don’t do that anymore. Secondly, even if NS & Scottish Govt go ahead with an indy ref what are the uk going to do about it especially if Scotland voted to go. Are they (1) going to send in the tanks, (2) hang the devolved government or (3) take them to court or (4) lock up all the Yes voters for treason. I think none of them they couldn’t put it back in the box. So let’s go for it if we’re confident enough to do it. Simplistic perhaps but should we just defer to Theresa May and her band of rogues who treat Scotland with derision
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I am no lawyer, constitutional or otherwise, not even close. However, it would seem to me that the precedent created by the Edinburgh agreement might be linked to some particular aspect of the 2014 referendum, such as rendering it binding. It would seem to me that the point of a second referendum would be first and foremost to demonstrate the will of the Scottish people and that, whilst it would be desirable that this could be done with the full approval of Westminster and with an agreement that the result be binding, it is probably unrealistic to expect this to be so.
Should Scotland decide to conduct a referendum without a Section 30 order then it would seem to me that the timing should be chosen to best means Scotland’s needs. One might even say that “in fairness to the rest of the UK”, as represented by the Westminster government, it might be helpful for them to know how much of the UK is to be covered by the terms of Brexit.
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Given that reply, P. Neil, perhaps you ought to be a constitutional lawyer. I am fairly sure, however, and neither am I a lawyer, that referenda in the UK are all ‘advisory’ – like the Brexit referendum. I will need to go and do some more reading on this. Thanks for the comment.
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It Does seem ridiculous that Scotland a sovereign Country has to ask(beg) for the right to ask its own taxpaying people to hold a referendum to decide what they want to do with their FUTURE
if the outcome is the same as previous then it will finish the Independence CLAIM
for many years.
However with what we are being asked to sign up top (forced to sign up to) we should demand a say not wait till all our assets are stripped and then given a dowry to go away and rule.
that is a Tyrannical attitude to democracy and will and should not be tolerated.
like all FREE PEOPLE we want to make our own decisions with our own money accrued for our honest endeavour not working from HANDOUTS as they are described
so after all that let get this indy ref on the road
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Is May behind the refusal of a referendum or is it the Crown.
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It might be fair then to say at any court of law that as the House of Commons, the House of Lords, the EU Parliament and the 27 nation staes of the EU are able to vote on the UK’s ability to leave the EU, then Scotland should be permitted to decide whether it wanted to remain as part of the UK because the majority of Scots who voted in the referendum were against leaving the EU.It could also be argued that EU citizens who work in the UK should have been allowed a vote in the Brexit referendum because it had a possible effect on their human rights
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This subject has been very eloquently framed and should be required reading for all right minded voters in Scotland, regardless of what they think at present about independence.
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