The right to hold a referendum on Scottish independence is a reserved power under the Scotland Act 1998 so the Scottish Parliament has no power to put in place legislation to hold one. That power is reserved to the Westminster Parliament.
Under the Edinburgh Agreement of the 15th of October 2012 the Westminster Parliament agreed to change the Scotland Act 1998 using an Order in Council to give the Scottish Parliament the temporary power to legislate to hold an independence referendum in Scotland.
That was done by modifying Schedule 5 of the Scotland Act 1998 by inserting another paragraph, namely paragraph 5A under the The Scotland Act 1998 (Modification of Schedule 5) Order 2013
Modification of Schedule 5 to the Scotland Act 1998
- In Part 1 of Schedule 5 to the Scotland Act 1998 (general reservations), after paragraph 5 insert-
“5A.-(1) Paragraph 1 does not reserve a referendum on the independence of Scotland from the rest of the United Kingdom if the following requirements are met.
(2) The date of the poll at the referendum must not be the date of the poll at any other referendum held under provision made by the Parliament.
(3) The date of the poll at the referendum must be no later than 31st December 2014.
(4) There must be only one ballot paper at the referendum, and the ballot paper must give the voter a choice between only two responses.”.
The UK Government could do this with an Order in Council rather than by amending the Scotland Act 1998 and having to go through Parliament again by using Section 30 which is embedded within the Scotland Act 1998. Hence the name, Section 30 order.
“This Order is made by Her Majesty in Council in exercise of the powers conferred upon Her by section 30(2) and (4) and 113(4)(a) of the Scotland Act 1998(1).”
This Order in Council which inserted paragraph 5A into the Scotland Act 1998 allowed the Scottish Parliament to legally pass the Scottish Independence Referendum Bill which paved the way for the independence referendum.
That paragraph 5A modification was removed by the Scotland Act 2016 but it was time limited to the 31st of December 2014 anyway, as can be seen from the excerpt above.
This means that to hold another referendum with the consent of the UK parliament the Scotland Act needs to be amended again with another Section 30 order.
The problem is that Scotland will never get another one.
In simple terms to make sure that a referendum never changes the status quo you simply don’t allow one to be held. The closeness of the last referendum was a wake up call for the British Establishment and they are going to redouble their efforts to hold onto Scotland and if Scotland can’t hold a referendum then that’s a big step towards stopping any move towards independence.
To get another Section 30 order through Parliament it needs to pass through both the House of Commons and the House of Lords and apart from the need to get both Houses of Parliament to agree on putting another Section 30 order in place the Conservative party is not going give Scotland the power to hold another independence referendum from the very start.
The Conservative 2017 manifesto doesn’t rule an independence referendum out as explicitly as the Labour and Lib-Dem manifestos but it does contain that classic phrase, “Now is not the time”, and they’ve already made noises about refusing a Section 30 order. Nicola Sturgeon asked to start Section 30 talks in a letter dated the 31st of March 2017. So far there appears to have been no reply. There will be no Section 30 order from the Conservatives.
Quite apart from the fact that Labour are more British nationalist than the Tories in Scotland, Labour state explicitly in their 2017 manifesto on page 104 that, “Labour opposes a second Scottish independence referendum.” so Labour will not give Scotland a Section 30 order either.
The Lib Dems in their 2017 manifesto on page 92 say that, “We will oppose a second independence referendum and oppose independence.” so any hopes of the Lib-Dems giving a Section 30 order as part of a coalition are simply pointless.
The statement by Alex Salmond that the 2014 referendum was a once in a lifetime opportunity was essentially correct, however he was being overly-optimistic. That was the first and last opportunity for an independence referendum to be held with the approval of the Westminster Parliament. The question now is the mechanism or pathway which will allow Scotland to gain independence in a form which the international community recognises as valid without the approval of the Westminster Parliament.