Public Law

The EU referendum debate has an extra twist in Scotland, with the added variable of whether a UK-wide vote to leave, but a majority in Scotland for ‘Remain’, could be a trigger for a second referendum on Scottish independence. EU and Great Britain flag next to each other.

The question has popped up now and again during the referendum campaign, but has received more coverage in the last week after former First Minister Alex Salmond argued that a ‘Leave’ vote would result in a second independence referendum in the short term – making strange bedfellows with George Osborne, Tony Blair and John Major, who had raised the same issue but meant it as a warning.

The picture is complicated, however, with the current First Minister being more guarded on the issue (or at least on the timing) and some polls suggesting that Scottish support for ‘Remain’ has declined (albeit still in the majority) and in any event does not currently translate into support for independence in a post-Brexit scenario.

The issue is nevertheless receiving considerable attention, including internationally.

I recently wrote a piece for the Business Herald (the original is not online but the text has been posted to our website, as part of our EU referendum hub) explaining that the interplay between Brexit and independence is more complicated than is often discussed. In particular, the relationship between the EU and a post-Brexit UK would play an enormous role in determining what relationship(s) would be possible between the UK and a post-independence Scotland, and as we have recently outlined the former would take some time to become clear. Brexit would also be likely to complicate the prospectus for independence used in the original referendum debate (including on the currency question, which came up again this week).Magnifying glass and map of Scotland

The debate on this issue also raises the question of whether the Scottish Parliament would be able to legislate unilaterally for a further referendum (as Mr Salmond suggested in the link above), or would require the consent of the UK Government. I spoke to City AM about that very issue back in February, and long-time readers will recall the attention the question received back in the early days of the independence referendum. If that interests you, check out our post confirming how the issue was resolved last time, and click here for my 4-part series on the whats, whys, hows and who(m)s of the underlying legal question.

As always, please do get in touch or comment below if you have any queries or thoughts.

Charles Livingstone

Partner at Brodies LLP
Charles works with a broad range of commercial, public sector, charitable and individual clients, advising them on public law issues including judicial review, human rights, information law and the powers and duties of local and other public authorities. He is named by Chambers & Partners in both Competition Law and Administrative & Public Law.
Charles Livingstone

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