It perhaps says something about the times when a full-blown row between the Scottish and UK Governments about whether there should be a second referendum on Scottish independence is only one of the nominees for most significant constitutional event of the last year.
The full text of the First Minister’s speech of Monday morning, in which she called for a second referendum to take place, can be found here. To summarise, the Scottish Government plans to ask the Scottish Parliament next week to endorse the making of a request to the UK Government for an order under section 30 of the Scotland Act 1998 that would enable a further referendum on Scottish independence.
This would put the onus on the UK Government to decide whether to issue a Section 30 order, and in particular whether to make one in the terms sought by the Scottish Government. The First Minister’s stated intention is to hold the referendum “at a time when the terms of Brexit are known”, but before the UK departs the EU – which she envisages as between autumn 2018 and spring 2019. Providing that the Scottish Parliament votes to endorse the Scottish Government’s request for a section 30 order, it is likely that a formal request for a Section 30 Order will be made to the UK Government shortly afterwards.
However, the Prime Minister and Secretary of State for Scotland indicated yesterday that the UK Government will reject any request for a Section 30 Order that would allow a referendum to be held before Brexit. They did appear to leave the door open for a referendum after the UK has left the EU, although they did not propose any timescale of their own and Secretary of State David Mundell said specifically that the Government would not be entering into “any discussions or negotiations” on the matter at this time.
Charles Livingstone appeared on the BBC on Monday to explain the Section 30 process and his (written) explanation can be viewed here. In the early stages of the last independence referendum we produced a series of blogs on what might happen in the event that no Section 30 Order was agreed but the Scottish Government legislated for a referendum anyway. You can find that series here, here, here and here.
If events proceed as yesterday’s events suggest, we will be in an unprecedented situation in terms of conflict between the UK Government and a devolved administration. Whether and how that conflict is resolved, and which side is ultimately successful, will be as much a question of politics as of law.