Stages along the way
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How can the people of Scotland decide on whether they want to be an independent country, and achieve independence if that is their decision? There are various possible stages on the way.
The Edinburgh Agreement process
The preferred route of the Scottish Government is for the Scottish Parliament and the UK Parliament to agree that an independence referendum should be held.
This is what occurred with the 2012 Edinburgh Agreement, signed by then UK Prime Minister David Cameron and then First Minister of Scotland Alex Salmond for the 2014 independence referendum. Both the Scottish Parliament and UK Parliament consented to this Agreement, which allowed temporary powers for holding the referendum to be transferred from the UK Parliament to the Scottish Parliament, via Section 30 of the Scotland Act (1998). While it was a consultative referendum, not a legally binding one, it was widely accepted that a Yes result would have set in motion negotiations between the Scottish and UK Governments on the establishment of an independent Scottish state.
Current First Minister of Scotland Nicola Sturgeon is on record as saying she wants the precedent set by the Edinburgh Agreement to be used for a future independence referendum: "I want and consider that the basis of the referendum should be the same as the last time. [The] legal basis in future should be the same as the legal basis in the past."
Advantages and disadvantages
The advantages of repeating the Edinburgh Agreement process is that its legitimacy is likely to be beyond reproach, meaning that the result will be respected by the people, by the UK state and by the international community. If the result is a Yes vote, such legitimacy would smoothe the transition to a Scottish state: it would ensure that bilateral negotiations took place with the rest of UK, it would help Scotland to get accreditation with the United Nations as part of becoming a member state, and it would help with possible European Union membership.
The disadvantage of the Edinburgh Agreement process is that it relies on the agreement of the UK Parliament, and the UK Parliament has shown no willingness to agree to another referendum in any of the six years since the No vote in 2014. Three successive Conservative Prime Ministers - David Cameron, Theresa May and Boris Johnson - have explicitly stated their opposition to a new independence referendum, despite the SNP winning mandates for a referendum in all six elections held in Scotland since the 2014 referendum (the European Parliament elections in 2014, the General Election in 2015, the Scottish Parliamentary Elections in 2016, the General Election in 2017, the European Parliament elections in 2019 and the General Election in 2019).
Prime Minister Boris Johnson officially rejected a request by the Scottish Government in January 2020 for the transfer of powers under Section 30 to hold an independence referendum. He had previously stated, in November 2019, that there would not be another independence referendum as long as he was Prime Minister.
A crowdfunder has raised significant sums of money to legally challenge in the courts the Prime Minister's rejection of a Section 30 order, but the consensus among legal experts is that such efforts are like to prove unsuccessful, because Section 30 powers are 'reserved' in the UK constitution.)
A unilateral process
Another possible route to deciding on independence is for the Scottish Parliament to pursue the process unilaterally, without the consent of the UK Parliament. This could take various forms.
One is for the Scottish Parliament to pass a Bill for an independence referendum to be held irrespective of whether the UK Government consents to this or not. If that referendum produced a Yes vote, the Scottish Government would then either claim the result to be legally binding, through a Unilateral Declaration of Independence (UDI), or use the result to open negotiations with the UK state. This is sometimes described as a 'wildcat' referendum, and is associated with the Catalan independence referendum held in 2017, in defiance of the Spanish state.
The legality of a wildcat referendum has been hotly disputed. Constitutional law experts Aileen McHarg and Chris McCorkindale have found that "although it is frequently asserted that a referendum on independence falls outwith devolved competence..., that issue has never been conclusively settled. Nevertheless, any attempt to legislate for a referendum without a further explicit transfer of power is certain to be challenged in the courts; could cause significant difficulties within the Scottish Government, possibly including resignation of the Scottish Law Officers; and might also provoke retaliatory legislation from Westminster to make clear that such legislation is not within Holyrood's competence...Moreover, even if such a Bill were to survive, a unilateral approach to authorising a second referendum might again lead to a unionist boycott and could not be certain of co-operation from the UK Government in implementing a vote for independence."
Another unilateral approach is for Scottish Parliamentary elections to act as a proxy referendum on independence, with parties standing on a mandate of UDI if they win a majority of seats. This manoeuvre is sometimes called a 'plebiscite election'. McHarg and McCorkindale find that although UDI was accepted by the International Court of Justice (ICJ) in 2010 as a basis for Kosovo to become independent, "it is a less certain and less satisfactory route to independence. This is because achieving effective independence is a matter of securing recognition by other sovereign states, including the parent state, and this, as the ICJ pointed out, is essentially a political rather than a legal matter."
So the challenge of any unilateral process is how to secure legitimacy in the process and in the result, at the level of the population, the courts, the state and the international community.
We have so far considered government mechanisms for pursuing a right to decide, but as this is fundamentally a question of democratic rights, we should also consider the possibility of civil disobedience: where a mass of citizens actively challenge legal norms to achieve their aims, up to and including direct action to disrupt or take over government institutions.
Civil disobedience has played an important role in the history of UK democracy, from the non-violent protests led by Mahatma Ghandi for Indian independence from the British Raj in the 1920s, through the Suffragettes' use of disruptive tactics in demanding votes for women in the UK after the end of World War I, to the Easter Rising for Irish independence in Dublin, 1916, when armed insurrectionists attempted to defeat the British army.
Former SNP MP George Kerevan has proposed blocking London's underground tube as part of a "phased escalation of civil disobedience" to secure the right to decide on independence.
These three processes - an Edinburgh Agreement process, a unilateral process, and civil disobedience - are not mutually exclusive, and can be used in combination with each other. Stages on the way to independence can also be thought of as a sliding scale, with the most official and consensual on one side, and the most unofficial and divisive on the other. Which step is the best step to take at any next stage depends on the political context at the time, and rests on such factors as the determination of those advocating such a process and the popular support it has within Scotland.
- https://www.theguardian.com/politics/2019/mar/07/scotland-can-hold-referendum-without-go-ahead-from-uk Accessed 19/10/2020.
- https://www.aljazeera.com/news/2020/1/14/a-second-scottish-independence-referendum-johnson-says-no"> Accessed 19/10/2020.
- https://www.scotsman.com/news/politics/scottish-independence/no-second-independence-referendum-long-im-pm-boris-johnson-tells-scotland-1402069 Accessed 19/10/2020.
- https://www.crowdjustice.com/case/pas30/ Accessed 19/10/2020.
- https://ukconstitutionallaw.org/2020/01/13/chris-mccorkindale-and-aileen-mcharg-constitutional-pathways-to-a-second-scottish-independence-referendum/ Accessed 19/10/2020.
- https://www.thenational.scot/news/18102319.without-section-30-law-wont-help-scottish-independence/ Accessed 19/10/2020.
- https://www.crf-usa.org/black-history-month/gandhi-and-civil-disobedience Accessed 19/10/2020.
- https://theconversation.com/militant-suffragettes-morally-justified-or-just-terrorists-52743 Accessed 19/10/2020.
- https://www.history.com/topics/british-history/easter-rising Accessed 19/10/2020.
- https://www.heraldscotland.com/news/17390419.former-snp-mps-indyref-tube-plan-branded-unhinged/ Accessed 19/10/2020.