The Legal Implications Of Scottish Independence

The SNP have returned to power with a majority government.  This means that they can hold a referendum on independence within the next 5 year term of government.  Alex Salmond, the SNP leader, has indicated he wishes to hold a referendum in the second half of the 5 year term.

The first step towards independence would be Referendum Bill in the Scottish Parliament, set to MSPs.  This would have to be passed by majority by the Scottish Parliament.  As the SNP has the most MSPs the Referendum Bill would most certainly be passed.

There would then be a period of Yes/No campaigning, similar to the AV referendum, before Scottish voters went to the polls on the issue of independence.

Is It Legitimate For The SNP To Even Discuss Independence?

The Scottish Parliament does, in itself, not have the authority to declare Scotland an independent country, a “Yes” vote in the referendum would mark the start of talks with the UK government.  Having a successful “Yes” vote would allow the Scottish Government to negotiate an independence settlement with the UK government.

There are no legal obstacles to the referendum itself but there are a small number of legal and constitutional obstacles to independence.

Potential Constitutional Obstacles?

The UK Government has effectively said that they would not stand in the way of an independence referendum.  In the event of a “Yes” vote the UK Government would essentially have to agree to it, as it is an effective display of what the Scottish people wish.  The UK Government could reject the “Yes” referendum as any referednum would not be legally binding on the UK Government but this would be a political disaster and almost unthinkable.  The Uk Government commissioned lawyers to study the legal and constitutional position and to advise ministers in London on their best course of action in the event of a “Yes” vote.

A further dispute centres on the status of the SNP referendum: the Scottish parliament does not have the legal powers to stage a referendum on the future of the UK because the constitution is reserved to Westminster. The SNP are proposing a consultative or advisory referendum, which would give the Scottish government political but not legal authority to start negotiations on independence.

The last Labour government stated that their legal advice was that any Scottish referedum would be unconstitutional, as any changes to the constitution are a reserved matter for Westminster.  However the current Coalition government have now rejected this notion.  They say, “In terms of constitutional law, at present, a binding referendum would be for the UK government to determine but there’s scope for an advisory referendum within the existing rules and regulations.”

How would Scotland be recognised internationally? Would Scotland automatically be allowed in the EU?

Scotland would almost certainly be allowed to join the EU as soon as Scotland was independent.  This is because there is already a strong link between Scotland and the EU, such as already having Scottish MEPs in Europe.  It is highly likely all of the countries within the EU would recognise Scotland, just as some have recognised Kosovo’s de facto independence claims.

If Scotland was not allowed into the EU it would be an economic disaster as the free trade between EU member states would not cover Scotland and Scotland’s exports would take a sharp decline.

In relation to joining the United Nations,only soverign states can join the U.N. so, Scotland would have to first be independent in order to successfully join.  Currently Scotland could apply for observer status at the U.N.  This could be an effective prelude to full membership if independence is successful.  Being an observer would make it more likely that Scotland would be granted full membership if the time comes.  This would avoid Scotland being somewhat like Kosovo, being recognised by the E.U. but not the U.N.

Joining the UN may also prove difficult because the United Kingdom is a permanent Security Council member so any alteration of the United Kingdom within the United Nations may end up with the U.K. losing its Security Council place.

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