Section 30 orders: what are they, and can a referendum be held without one?

First Minister Nicola Sturgeon wants to hold a second referendum on Scotland’s independence next year, but what is the process the Scottish Government must follow to hold a vote?

A transfer of powers

The Scottish Government does not have the legal power to hold a referendum on constitutional matters itself – that is reserved to the UK Government in Westminster, just like other areas of policy such as defence and immigration.

The establishment of the Scottish Parliament and the Scottish Government was provided for in the Scotland Act 1998 (as amended by the Scotland Act 2012), following a referendum on Scottish devolution which was held on 11 September 1997. In that vote, 74 per cent voted in favour of establishing a Scottish Parliament and 63 per cent for the parliament to have powers to vary the basic rate of income tax.

For the Scottish Parliament to pass legislation on a reserved matter, it must have that power transferred to it by the UK Government – either permanently via an act of parliament or temporarily, via a “section 30 order”. Section 30 refers to the section of the Scotland Act 1998 which allows for Holyrood to pass laws normally reserved to Westminster.

Have section 30 orders been granted before?

Section 30 orders have been granted 16 times since the creation of the modern Scottish Parliament in 1999.

Famously, a section 30 order was granted by David Cameron’s Conservative Government in 2012 – “the Edinburgh Agreement” – to allow Alex Salmond’s Scottish Government to hold the 2014 referendum.

A section 30 order was also granted to allow the Scottish Government to extend suffrage to 16 and 17-year-olds in 2015, and prior to that a section 30 order was granted to allow the Scottish Government to legislate for the construction of railways in Scotland.

Will a section 30 order be granted to hold a second independence referendum?

The current Scottish Government, a power-sharing agreement between the SNP and the Scottish Green Party, was elected after both parties promised to hold a second referendum as part of their election manifestos. The Scottish Government therefore says it has a democratic mandate for holding a second referendum.

However – and it’s a big one – the UK Government still has to consent to the section 30 order, and every indication from Boris Johnson’s Conservative UK Government is that such an order will not be granted.

Unionists argue that the question of independence was settled in 2014, after the first referendum, and that voting for the SNP and Greens at the last Scottish Parliament elections does not necessarily represent an endorsement of holding a second referendum.

Can a referendum be held without a section 30 order?

First Minister Nicola Sturgeon has said her government could seek a second independence referendum without getting a Section 30 order from the UK Government.

Making a statement at Bute House in Edinburgh, on June 14, Sturgeon said her government would "forge a way forward - if necessary - without a Section 30 order".

However, the legality of holding a second referendum without UK Government consent – what unionists call a ‘wildcat referendum’ – is not clear, and the Scottish Government has not elaborated on how it would do this.

The battle would likely be contested in the courts, as the UK Government has previously, and successfully, contested Scottish Parliament legislation that fell outside of its devolved powers. One example of this was when the Scottish Parliament passed the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, which the UK Supreme Court found to have elements outside of the legislative competency of Holyrood.

Despite this, the Scottish Government could still hold a softer-worded referendum, or advisory ballot, which could test support for seceding from the United Kingdom, for example by asking voters if they believe the government should begin independence negotiations with Westminster.

The Scottish Conservatives have previously indicated they would boycott any such vote, and would try to persuade other unionist voters to do so.