Scottish independence: Holyrood could stage referendum without Westminster approval under two-vote plan

Holyrood may have the power to stage an opening referendum on independence as part of a two-vote process on Scotland leaving the UK, a constitutional expert has claimed.

The "two referendum" plan was suggested for former Tory prime minister Sir John Major last week, and the first vote could be staged by the Scottish Government without authority from Westminster, according to Alan Trench, who publishes the Devolution Matters blog.

It may allow the Scottish Government to bypass the need for authority from Westminster, which has control over the constitution, to put Scotland’s constitutional future to the people again.

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The process would involve an initial referendum, perhaps authorising the Scottish Government to open negotiations on the terms of how Scotland may become independent in future. The second would be a "confirmatory" referendum on whether Scots backed the deal reached on future relations, along the lines of the People's Vote that was backed by opponents of Brexit in the aftermath of the 2016 EU referendum.

Polling shows a majority of Scots now back independence
Polling shows a majority of Scots now back independence

But there are concerns such an approach could result in UK ministers negotiating in "bad faith" to present Scots with the worst-case scenario in a confirmatory vote.

Mr Trench, a senior honorary research fellow at University College London, said the approach would help "clarify the issues" in advance and offset much of the resentment caused over Brexit.

"It forces everybody to behave in a more open and engaged way rather than simply trying to treat the electorate as somebody to be ransomed or hoodwinked or bamboozled," he said.

"If you're talking about democracy and making a decision that can command support of those who disagree with it as well as those who agree with it, that seems to be pretty important.

"There is a second advantage in the Scottish case that there is at least a good argument that a first referendum of the sort that [Sir John] Major canvasses would be within devolved competence.

"It depends on exactly how the question would be phrased and what the overall structure was, but I think there is certainly an argument.

"My view is that if you did it in the right way, a referendum on whether negotiations to discuss the terms on which Scotland might become independent would be outside the scope of the reserved powers in the Scotland Act. It's to negotiate terms on which something else might be decided at another point.

"The reservation in the Scotland Act relates to the union of Scotland and England, so a referendum that directly discussed whether Scotland should be part of the United Kingdom would be in breach of that. It depends very much on the wording of the question and the framework overall.

"What that means is the initiative is within Scotland's hands if it's within devolved competence."

Consistent polling shows that a growing majority of Scots now back independence and the SNP Government is demanding a repeat of the 2014 referendum, perhaps as early as next year.

Nicola Sturgeon is to publish legislation on the "terms and timing" of such a vote in coming months and the Scottish Government has also not ruled out taking the matter to court.

But the UK Government, which has control over the constitution, has ruled out another referendum any time soon, with Scottish Secretary Alister Jack last week putting a 40-year timescale on this.

Dr Coree Anderson Brown, deputy director of Edinburgh University's Centre on Constitutional Change, warns a two-referendum strategy could raise questions over the approach of the UK Government in negotiations if it was seeking a No vote in a confirmatory referendum.

She also suggested that a two-vote approach may not go down well with the Scottish electorate.

"The main question I have about that is whether people would perceive such an an effort in good faith - would they perceive it as an attempt to undermine a popular democratic vote?" she said

"It could be seen as an opportunity to counter independence.

"And then what would the incentive be for the UK Government to negotiate in good faith?

"What would be the incentive for both sides to take part in negotiations, particularly from the UK side because the UK Government could say 'well our position on these negotiations is that we will have a physical border, we will restrict free movement' and things like that.

"And from a democratic perspective I was a bit of uncomfortable with the idea of a confirmatory vote if it hadn't been negotiated from the outset. Perhaps if it was negotiated from the outset then it's perhaps something you can get by with."

Kirsty O'Brien was head of strategic communications with the People's Vote campaign that spearheaded the case for a "confirmatory" referendum during the Brexit process. It was a call supported by Ms Sturgeon and the SNP leadership.

Ms O’Brien said voters deserve to know what the final picture would be when negotiations had been completed, whether that's with leaving the EU or Scottish independence.

This would “ideally” be provided in one referendum, but the nature of politics makes this practically difficult, she said.

"You should go into a referendum with the main questions answered if you like so people are voting with their eyes wide open," said Ms O'Brien, who was previously a Labour candidate for the European Parliament.

"Our arguments around a People's Vote centred on the fact that when the facts change, that's why we need another vote. We were told a lot of things during the referendum campaign that were changing."

In the Scottish context, that would mean clarity for voters on what the currency would be, the terms of rejoining the European Union, such as adopting the euro, and if there was a hard border with England as well as the future of public pensions and benefits.

"You can't ask people to take a step into the dark which is what we did with Brexit," she said.

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