Déjà VUCA – the (formal) return of the Scottish Referendum debate…

by Hogan Lovells
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The Scottish Government has a track record in taking pre-emptive action when it comes to Scottish referendums on independence.

Back in January 2012, the UK Government accepted a request to legislate to provide the Scottish Parliament with the powers to hold a referendum provided that it would be "fair, legal and decisive". In March, at a time when the legal details were still in the process of being worked out, such as the timing of the vote, the then First Minister, Alex Salmond, made a pre-emptive announcement of an intention to hold the independence referendum in the autumn of 2014. Negotiations on the details then continued between the two governments only concluding in October 2012 when the Edinburgh Agreement was signed.

Noting the absence of a legal perspective in the debate which followed, Hogan Lovells undertook an analysis of what would be involved in achieving a legal separation of Scotland from the UK which was published before the referendum in September 2014. It shone a light on the magnitude of the technical complexity of what would be involved in separating a highly integrated union of countries in place for over 300 years. Indeed, the insight gained in that process led us to establish a taskforce with a remit to analyse and improve understanding of the legal issues associated with a potential Brexit at a time when a referendum on the UK's EU membership was just a suggestion…

In September 2014, the will of the Scottish people determined that Scotland should remain part of the UK by 55.3% (2,001,926 votes) to 44.7% (1,617,989 votes). Passions ran high delivering a turnout of 84.6% which was the highest recorded for an election or referendum in the UK since the introduction of universal suffrage. The EU Referendum was a whole UK vote calculated by reference to one voter one vote across the United Kingdom, with an overall vote of 51.9% to Leave, but figures are available for voters in Scotland. Perhaps due to referendum ennui or simply that EU membership is not considered to be of such significance, the turnout in Scotland for the EU referendum was significantly lower at 67.2 %, delivering a victory for Remain at 62% (1,661,191 votes) with Leave at 38% (1,018,332 votes).

Although significantly more people voted for Scotland to remain part of the UK than voted for it to remain part of the EU, allegiances are not simple to assess as there are Remain voters in favour of independence and Leave voters against it.

On Monday 16 March 2017, the current First Minister, Nicola Sturgeon, pre-empted the service of an Article 50 notice by announcing an intention to ask the UK Government to legislate for another Scottish Referendum to be held before Brexit occurs. It has quickly became known as IndyRef2 – despite that tag reportedly being resisted by the Scottish Government - which just reinforces how a referendum debate can be difficult to tame once unleashed. The UK Government has now indicated that it does not consider that timing to be appropriate and that voters in Scotland should have the opportunity to assess how a post-Brexit UK is operating before being asked again whether they wish to leave the UK. The topic may crop up at the SNP conference this weekend.

In 2012, an order under Section 30 of the Scotland Act was a legal technical detail which no one focused on but in the new era of Brexit, even legal clause references can become "reality TV celebrities" in their own right. So will Section 30 become the new Article 50 – with its own headlines and a place in common parlance? Unlikely - the public's appetite is surely sated on that front. But we could expect considerable thrashing around on the legal technicalities of another Scottish Referendum – if it should be held/when it should be held/what the question should be/what the answer would mean/should a simple majority of those voting prevail/should it require a minimum percentage of those eligible to vote/who should decide all of the above… For the moment, the UK Government is simply aiming to defer.

VUCA is the latest fashion in management acronyms, volatiility, uncertainty, complexity and ambiguity. Two and a half years on from a referendum which decided that Scotland would remain in the United Kingdom, we have learned at least one thing. A simple "yes" or "no" question on a ballot paper can fire the starting gun for plenty of VUCA rather than being "decisive"…

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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