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If it taught us anything, December’s UK General Election confirmed that Scotland and England are on increasingly divergent paths. In England, Boris Johnson’s pro-Brexit Conservative Party swept the board, capturing previous Labour strongholds such as Bolsover. For those not intimately familiar with UK politics, that constituency voting Conservative was about as surprising as San Marino beating Germany at football. In Scotland, however, Nicola Sturgeon’s pro-EU Scottish National Party (SNP) made spectacular gains, winning 48 out of 59 Scottish seats. Does this make Scottish Independence inevitable? Perhaps. Support for it is certainly growing, with three recent opinion polls showing a narrow majority in favour of independence. But for now, the debate has shifted to a subtler question, namely ‘who has the right to hold a referendum on Scottish independence?’ Nicola Sturgeon wants another independence referendum this year. But her ultimate goal is not simply a referendum, nor even victory in such a referendum, but rather independence. The latter, she argues, requires any vote for independence to be beyond legal challenge, and be recognised by the international community. So she doesn’t want to hold an ‘advisory’ referendum, which could be boycotted by her opponents. Instead, she wants the same arrangement as in 2014, where the UK Government grants Scotland a ‘Section 30 Order’, allowing a referendum. That’s because UK law reserves constitutional matters to the UK Parliament, meaning that, at least in theory, the Scottish Parliament could not hold a binding referendum on independence without London’s consent. And Nicola Sturgeon’s problem is that Boris Johnson has just refused her request for a Section 30 Order.

Divergent Paths
His supporters say one should not be granted for decades, citing a remark by the then SNP Leader, Alex Salmond, in 2014, that the referendum was a ‘once in a generation opportunity’. In response, independence supporters point both to December’s UK election result, and to the SNP’s 2016 Scottish election manifesto, which promised another referendum ‘if Scotland were dragged out of the EU against her will.’ Some senior figures in the SNP, such as Joanna Cherry, a lawyer, and Member of the UK Parliament, are suggesting that one way to get round this problem would be legal action: the requirement for the UK Government to agree to an independence referendum has never been tested in the courts. While the outcome is open to doubt, not least because the UK does not have a written constitution, many lawyers suggest that the UK Supreme Court would probably rule in favour of the UK Government in such a case, because the provision is in an Act of Parliament, and in English Law, Parliament is sovereign. International law is a different matter. The right to self-determination is enshrined in the UN Charter. And in its judgement on Kosovo, the International Court of Justice (ICJ) ruled that the agreement of the state being seceded from was not necessary for independence. In its own submission to the ICJ in that case, the UK Government made precisely that point, saying also that in most cases, countries gaining independence have not complied with the law of the states that they were leaving. So if Scotland’s right to hold a referendum without London’s permission did come to an international court and was contested by the UK Government, the latter would, embarrassingly, have to argue the exact opposite of its position on Kosovo. And the ICJ’s decision in the Kosovo case is hardly surprising: the right to self-determination isn’t self-determination if you have to ask another country to exercise that right. No court case has yet begun, but it may be the SNP Government’s best option. Many of its own supporters are already restless at what they perceive as a lack of urgency in securing another referendum. They will become more so if its only tactic is repeatedly to ask London for Section 30 Order, only repeatedly to be rebuffed.

Author: John Cooke