Indy Ref 2: Legal or Constitutional?

Michael Keating | 9 March 2021

© 2017 SCER

If pro-independence parties win a majority at the Scottish Parliament elections in May, they will take this as a mandate for a second independence referendum. The fact that Scotland was taken out of the European Union against its will (with 62 per cent supporting Remain), they argue, constitutes the material change of circumstances that would justify another referendum so soon after the last one in 2014. The UK government, for its part, has stated that it would not permit it. So who is right?

This depends on how we interpret the UK’s changing constitution. On the one hand is the Westminster view based on the absolute sovereignty and supremacy of the UK Parliament. According to this view, the Scottish Parliament is the creature of Westminster, which decides on its powers and can even abolish it, subject only to a convention which the Supreme Court has ruled is not binding. According to the Scotland Act, ‘the Union of the Kingdoms of Scotland and England’ is a reserved matter. The 2014 referendum was possible only because the UK government, with parliamentary assent, made a Section 30 order temporarily transferring the power to hold it to the Scottish Parliament. This has no relevance to future demands for a referendum.

Yet another view of the constitution is that the doctrine of parliamentary sovereignty and supremacy is an empty tautology. Westminster is sovereign because, by virtue of its sovereignty, it has declared itself to be so. Yet the historical justification for this is weak, depending on an interpretation of the union of 1707 in which the new Parliament of Great Britain inherited all the prerogatives of the old English Parliament and none of those of the Scottish Parliament, which had not asserted such predominance. A broader epistemic approach is therefore required fully to understand the constitution, drawn from all the relevant sources, including the role of conventions.

There is also an argument from self-determination. UK Prime Ministers, including such ardent unionists and Margaret Thatcher and John Major, have conceded that, Scotland is a self-determining nation and, if it decided to secede, no government could stop it. All but one of Scotland’s then Labour MPs signed up to the 1988 Claim of Right, asserting Scotland’s sovereign right to determine its own status. At subsequent debates in the Scottish and Westminster parliaments, unionist MPs have not denied the Claim, arguing rather that it was met in the 1997 or 2014 referendums. If Scotland does have a right to independence, it would be logical that there should be a means to realize it. If democracy is a foundational principle of the constitution, that means should be democratic. A mandate obtained in an election held under proportional representation, followed by a referendum, would surely meet that test.

This is close to the reasoning of the Supreme Court of Canada when, in 1998, it was asked to rule on a possible secession of Quebec. The Canadian government had been hoping that the Court would confine itself to the wording of the Constitution, which does not contain a secession clause. Instead, they invoked deeper principles of democracy, on which the Constitution itself is founded to rule that, if a province voted to secede by a clear majority on a clear question, the Canadian government would have to negotiate. That is very different from the Spanish case, where the constitution explicitly upholds the unity of the Spanish nation and declares it to be indissoluble. Spanish governments and courts have held that this precludes self-determination referendums in the Basque Country and Catalonia.

There have been few referendums in the United Kingdom so that it is difficult to find precedents and conventions but there are indications of an emerging practice. Referendums on Europe in 1975 and 2016, on devolution in 1997 and on the Alternative Vote in 2011 and on Scottish independence in 2014 were held when a party, having included a referendum in its manifesto, won an election. The Northern Ireland Act indicates that a referendum on Irish unification should be held where the Secretary of State judges that there is a majority in favour.

This means, paradoxically, that an independence referendum could be illegal under the 1998 Act but, in another way, constitutional. It is not likely that the Supreme Court would see it that way, as it has consistently upheld the Westminster doctrine. Legal scholars and even judges (when speaking out of court) have argued that the doctrine of Westminster sovereignty is in need of revision in the light of devolution, human rights law and (until recently) EU membership. The Supreme Court itself insisted on the role of conventions when it overturned Boris Johnson’s attempt to prorogue Parliament; yet it has dismissed the legislative consent provision as merely ‘political’. In my new book, I argue that such a revision is necessary if the UK is to survive as a union of nations rather than a decentralized unitary state.

Michael Keating

Michael Keating is Professor of Politics at the University of Aberdeen. His book State and Nation in the United Kingdom: The Fractured Union, is published by Oxford University Press in April 2021.