Despite Theresa May's opposition to a second independence referendum, options remain open to the Scottish Government.
While increased political pressure for the Prime Minister to agree or compromise on the timing of another vote seems most likely, Charles Livingstone, constitutional expert and partner at Brodies law firm, details the legal positions:
:: What is a section 30 order?
"Section 30 orders are made by the Queen, on the advice of the UK Government, having first been approved in draft by the Scottish Parliament, House of Commons and House of Lords.
"A section 30 order can therefore only be made if the UK Government, UK Parliament and Scottish Parliament are all agreed. The only other way the reserved matters in the Scotland Act can be amended would be through an Act of the UK Parliament.
"The Scottish Parliament has no power to amend or qualify reserved matters."
:: Could a Scottish referendum be held without UK Government consent?
"The Scottish Government may decide to argue that the Scottish Parliament can legislate for a referendum even without a Section 30 order.
"This was its position at the outset of the previous independence referendum debate, the argument being that holding a referendum would not relate to the reserved matter of the Union because it would merely be a non-binding test of public opinion.
"The legal position was not resolved at that time because a Section 30 order (known as the Edinburgh Agreement) was made, which introduced an exception to Schedule 5 allowing a one-question referendum to take place before the end of 2014.
While the Scottish Government has never expressly changed its view on the legal question, it had recently been proceeding as if a Section 30 order would be necessary.
"However, that may now change in light of the UK Government's position. The Scottish Government may therefore be considering whether to just introduce its draft Scottish Independence Referendum Bill to the Scottish Parliament in the absence of an order."
:: Could it end up in a court battle between the Scottish and UK governments?
"The Presiding Officer of the Scottish Parliament would have to make a statement on whether the Bill would be within the Scottish Parliament's legislative competence, but even if he were to decide it was not, that would not bar the Bill from proceeding.
"If the Bill was then passed there would be a four-week 'standstill' period prior to Royal Assent, in which any of the Law Officers - the Lord Advocate in the Scottish Government, and the Advocate General and Attorney General in the UK Government - could ask the Supreme Court to decide whether the Bill was within competence.
"Alternatively, the legislation could be challenged in court by a third party after it received Royal Assent. In either case the courts would decide whether the legislation was lawful, and so whether the referendum could proceed.
"The issue would be decided well in advance of any referendum actually taking place, so there would be no question of a result being overturned."
Why are you making commenting on The Herald only available to subscribers?
It should have been a safe space for informed debate, somewhere for readers to discuss issues around the biggest stories of the day, but all too often the below the line comments on most websites have become bogged down by off-topic discussions and abuse.
heraldscotland.com is tackling this problem by allowing only subscribers to comment.
We are doing this to improve the experience for our loyal readers and we believe it will reduce the ability of trolls and troublemakers, who occasionally find their way onto our site, to abuse our journalists and readers. We also hope it will help the comments section fulfil its promise as a part of Scotland's conversation with itself.
We are lucky at The Herald. We are read by an informed, educated readership who can add their knowledge and insights to our stories.
That is invaluable.
We are making the subscriber-only change to support our valued readers, who tell us they don't want the site cluttered up with irrelevant comments, untruths and abuse.
In the past, the journalist’s job was to collect and distribute information to the audience. Technology means that readers can shape a discussion. We look forward to hearing from you on heraldscotland.com
Comments & Moderation
Readers’ comments: You are personally liable for the content of any comments you upload to this website, so please act responsibly. We do not pre-moderate or monitor readers’ comments appearing on our websites, but we do post-moderate in response to complaints we receive or otherwise when a potential problem comes to our attention. You can make a complaint by using the ‘report this post’ link . We may then apply our discretion under the user terms to amend or delete comments.
Post moderation is undertaken full-time 9am-6pm on weekdays, and on a part-time basis outwith those hours.
Read the rules hereLast Updated:
Report this comment Cancel