Alternative Pathways to an Independence Referendum – Some Reflections Based on the Experience of Catalonia

Document Cited authorities (1) Cited in Related
DOI10.3366/elr.2021.0680
Published date01 January 2021
Date01 January 2021
Pages125-130
Author

Despite the current focus on the responses to the COVID pandemic and the constitutional developments surrounding the Brexit process, the issue of Scottish independence remains very much at the forefront of the Scottish political and constitutional debate. As is well known, the Scottish Parliament has enacted the Referendums (Scotland) Act 2020, which sets out the legal framework for a second independence referendum to take place, and the First Minister, Nicola Sturgeon, has promised an Independence Referendum Bill before the end of the current Parliamentary session.1 The UK Government's refusal to grant a section 30 order transferring the competence to the Scottish Parliament to legislate for the referendum, thus putting its legality beyond doubt, has also led to proposals for alternative avenues to enable the vote to be held.2 In a sign that these may be gaining further significance, a motion has been submitted for debate at the Scottish National Party's (“SNP”) forthcoming conference which calls on the Scottish Government to establish the legal competence of the Scottish Parliament holding the referendum without the approval of the UK Parliament, and if this is not established, then it states that the election of a pro-independence majority of seats in the 2021 Scottish elections will be considered a mandate to commence independence negotiations with the UK Government.3 It is also worth noting that there is already a case pending before the courts regarding the need for a section 30 order.4

These recent proposals present many similarities with the process that led to Catalonia's controversial referendum in 2017. This piece will therefore provide some reflections on the use of alternative pathways to hold an independence referendum based on the recent experience of Catalonia.

The search for alternative legal avenues to hold an independence referendum without the agreement of the central authorities inevitably leads to legalisation of the conflict, and as a consequence, to the involvement of the courts. In the case of Scotland, the proposals and initiatives in this sense have so far been pre-emptive; in the case of Catalonia, the challenges came from the central authorities.5 There is of course, on the one hand, a benefit in securing clarity and legal certainty regarding the constitutional provisions regulating the competence of the Scottish Parliament to legislate for an independence referendum. The Edinburgh Agreement in 2014 left this question unresolved, and many scholars have highlighted that the answer is unclear.6 From the perspective of the Scottish Government, a decision in their favour would also mean that they would be able to hold the referendum without the need to wait for the agreement from the UK authorities. However, if this...

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