The First Minister, Nicola Sturgeon, has announced at the Scottish National Party Conference that the Scottish Government will produce a new ‘draft’ Independence Referendum Bill during the week of 17th October.
The proposed bill was included in the Government's 2016-17 legislative programme and its announcement brings to the fore the debate about Scotland’s place in the UK, and its place as a constituent part of the UK within the EU (read our article on Scotland, Brexit and Devolution here).
"Protecting Scotland's Interests"
The First Minister is reported to have told conference delegates that she considers that a new Referendum Bill is being produced to “protect (Scotland’s) interests” in the event of a so-called ‘Hard Brexit’, which might see the UK leave the EU Single Market (read our article on what the Single Market is here). The First Minister added that in that case, she would be “determined that Scotland will have the ability to reconsider the question of independence – and to do so before the UK leaves the EU”.
Whilst it appears unlikely that the new Bill will be introduced to the Scottish Parliament at any stage soon, we can look to the Scottish Independence Referendum Act 2013, which legislated for the 2014 Referendum, for guidance on the manner in which this might be done.
Before the then-Scottish Independence Referendum Bill 2013 came into existence, both the UK Parliament and the Scottish Parliament reached an extraordinary agreement allowing the Scottish Parliament to legislate on constitutional matters, which are usually reserved to the UK Parliament. Known as the Edinburgh Agreement, it set out the basis on which the 2014 Scottish Independence Referendum would take place.
Another Scottish Independence Referendum?
In the case of a new Scottish Independence Referendum Bill, again, it would therefore, be a matter for both Parliaments to agree a way forward. It is possible, given the current uncertainty over the manner and timing of the UK’s exit from the EU, that the UK Parliament might refuse consent for the Scottish Parliament to legislate on a new Referendum Bill.
The First Minister’s timetable appears to project the timing of a possible Scottish Independence Referendum prior to the end of the negotiations during the Article 50 process (read our article "What is Article 50?" here). This would mean that, on current estimates, a Referendum might take place prior to April 2019.
It should be pointed out that the Bill which the First Minister has announced will only be produced next week in draft, for public consultation, and there is no indication at this stage that her government intends to introduce it to the Scottish Parliament in the immediate future. Even if it was, the UK Parliament having allowed such a Bill to be dealt with by the devolved legislature, there would be three stages which the Bill would need to navigate in the Scottish Parliament before it became an Act. These stages comprise debates in the parliamentary chamber and scrutiny by a specialist Parliamentary Committee.
It is clear that the current constitutional circumstances in which the UK finds itself are fluid, and the integrity of the UK might now depend on the outcome of the UK’s ‘Brexit’ negotiations with the EU. We cannot yet know whether the UK Parliament would give consent to the Scottish Parliament to legislate on a new Independence Referendum Bill. It does, however, appear that whilst the Scottish Government is to produce the draft Referendum Bill next week, it is unlikely to be introduced to the Scottish Parliament in the immediate future.