Brexit: Path to Scottish Independence?

Justin Lee
J.D. Candidate, Columbia Law School, 2017

A referendum on the United Kingdom’s membership in the European Union (the Brexit referendum) is set to take place on June 23, 2016. Facing the rise of the anti-EU UK Independence Party and convincing predictions for a hung parliament, UK Prime Minister David Cameron had promised the Brexit referendum as part of his 2015 General Election campaign. Cameron led his Conservative Party to victory and become the second Prime Minister of the UK, only after Margaret Thatcher, to increase his party’s majority while in power. The Prime Minister, who is in the anti-Brexit camp, now faces more than just the possibility of the UK leaving the EU—a vote for Brexit could trigger another Scottish independence referendum.

Scotland had voted to remain part of the United Kingdom through the Scottish independence referendum less than two years ago on September 18, 2014. This referendum garnered unprecedented interest with an 84.6% turnout, the highest turnout since the introduction of universal suffrage in the UK. The high turnout reflected the then First Minister of Scotland Alex Salmond’s remarks on the referendum as, “once in a generation opportunity.” The results of the upcoming Brexit referendum, however, could present this generation of Scots a second opportunity to decide whether to leave the UK.

According to research published by NetCen Social Research in December 2015, the Brexit referendum could result in either way. If the UK votes to remain part of the EU, there is not much argument for Scotland to call for a second Scottish independence referendum. If the UK votes to leave the EU, on the other hand, the incumbent First Minister of Scotland Nicola Sturgeon goes as far to argue that a second Scottish independence referendum would “almost certainly” be triggered. Sturgeon believes the Scottish public will rise to support Scotland’s independence and to retain its seat in the EU in such a scenario­—the Ipsos MORI poll found that 54% of Scots would support Scottish independence in a post-Brexit referendum.

Despite domestic support for Scottish independence in case of Brexit within Scotland, it is unclear whether the country will have legal authority to hold a legitimate second referendum to leave the UK. Although the Scottish Parliament acquired its devolved authority on July 1, 1999, the UK Parliament remains the supreme legal authority throughout the union. Accordingly, the UK government and the Scottish government signed the 2012 Edinburgh Agreement prior to the 2014 Scottish independence referendum to give the referendum legal authority. The agreement, however, did not indefinitely grant Scotland authority to unilaterally hold independence referendums post the 2014 referendum. Unlike in 2012, Cameron made it clear that the UK government will not endorse a second Scottish independence referendum. Without the blessing of the rest of the union, even a resounding vote in favor of leaving the UK by the Scotts will have no binding legal effect. Nonetheless, a strong enough Scottish public opinion that calls for independence post-Brexit manifested through a national referendum would create political turmoil difficult for Cameron and the UK government to ignore.

The fate of the UK and the Scotland regarding their collective or respective EU membership has too many variables to predict with certainty. To further complicate matters, Scotland could even negotiate to remain part of the EU despite the Brexit—the EU has previously taken a flexible approach for the Faroe Islands, which is part of the EU member Denmark, to independently negotiate special relations with the EU. Only time will tell for certain.

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