As you may know, on Thursday Scotland will vote on whether or not to remain part of the United Kingdom. Some estimates put the number of voters registered to participate in the referendum at over 4 million, which is more than 95% of Scotland’s adult population. And, campaigning has remained active, and in some cases heated, in the weeks and months leading up to the referendum, with voices as disparate as the Pope and David Beckham supporting unity with Great Britain and everyone from Sir Sean Connery to Vivienne Westwood supporting independence. Even Groundskeeper Willie from the Simpsons (as seen below) and John Oliver (not entirely safe for work) have weighed in. Polls have differed in the exact vote predicted, but everyone seems to agree that the vote is likely to be quite close.
While this may seem largely like a political issue, there are some important laws and legal decisions underlying the vote. The first, and perhaps most important, is the Edinburgh agreement. This agreement, which was signed on October 15, 2012, set forth the agreement between the United Kingdom government and the Scottish government regarding the referendum and specified what would be included in the referendum legislation. The Memorandum of Agreement attached to the Edinburgh agreement further specified that “The two governments are committed to continue to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom,” a passage that has led to much speculation about what would occur if the people of Scotland ultimately vote to leave the United Kingdom.
After this agreement was signed, the Scottish Independence Referendum Act of 2013 was passed to set forth the exact procedure for the referendum. This Act includes provisions on who may vote in the referendum and restrictions on legal challenges to the outcome of the referendum among other provisions. You can see the full Act below:
Campaigning has been active on both sides of the vote and many are eager to cast their votes, including at least two prisoners who appealed the ban on inmates voting in the referendum all the way to the UK Supreme Court. The case, entitled Moohan and another (Appellant) v The Lord Advocate (Respondent), was fast-tracked to ensure that it was decided before the referendum and was heard by a panel of 7 Justices on July 24, 2014. On the same day, they issued their, in the words of The Guardian, “unusually quick summary decision less than an hour after hearing final oral submissions on the case,” in which they upheld the lower courts’ rulings that European court rulings which hold that banning prisoners from voting violates their human rights do not apply in the case of a referendum. This decision means that the referendum will go forward without the vote of prisoners, but other than this small group, voter registration has proved to be quite high. According to the BBC, 4,285,323 people registered to vote in the referendum by the September 2nd deadline, “making it the largest electorate ever in Scotland.”
While it is still unclear which side will win, if the majority of voters do cast their ballot in favor of independence, this will only be the start of a long road to complete independence. Some scholars have estimated that the timeframe for negotiated independence would take between 18 and 36 months in total. Moreover, Scotland’s status in the European Union would be uncertain if it became independent, with the two sides of the campaign disagreeing over the process the new country would have to follow to gain re-admittance into the EU and the European Commission declining to comment. No matter what the outcome of the vote, this referendum has presented a number of fascinating legal issues!