Scottish independence referendum: legal issues

Summary:

A briefing paper on the legal issues surrounding a Scottish independence referendum.

Further information:

On 18 September 2014 Scotland voted in an independence referendum. It was said at the time that the process was beyond legal doubt. Not only had the Scottish and UK governments agreed to honour the outcome, but both Holyrood and Westminster had temporarily guaranteed (via a statutory device known as a Section 30 Order) that the Scottish Parliament would have the legislative competence for that historic event.

The Edinburgh Agreement, however, paused rather than resolved disagreements over the Scottish Parliament’s ability to legislate in this area. The Scottish Government maintained that a referendum of some sort was already within its devolved powers. Successive UK Governments, on the other hand, maintained that it was  reserved to Westminster.

Even in 2014 this debate was not new, having first arisen during parliamentary debates around what became the Scotland Act 1998. And having been paused between 2012 and 2014, the arguments resurfaced following the European Union referendum in June 2016. By 2020-21, the Scottish Government was indicating that the question might have to be referred to the Supreme Court.

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