Nicola Sturgeon after the SNP won a fourth victory in the Scottish parliament election. Photo: PA Images / Alamy Stock Photo

Does the SNP have the law on its side?

The Scottish and UK governments may force their independence confrontation all the way to the Supreme Court. What happens then?
May 19, 2021

The Scottish parliamentary elections this month resulted in a clear majority for pro-independence parties in Holyrood. The SNP government now claims a mandate to press for a second independence referendum. The Westminster government denies the existence of this mandate, but it is hard to see how it can be denied, after an election in which an independence referendum was a central policy of the SNP and Scottish Green Party manifestos. Moreover, Brexit has provided a clear change in circumstances since the last referendum in 2014. There now lies ahead a legal battle whose outcome could determine the future of the Union.

The SNP has already drafted a bill for an independence referendum which voters were able to scrutinise before the elections. Under the current devolution system, Schedule 5 of the 1998 Scotland Act reserves any legislation on “the Union of the Kingdoms of Scotland and England” to the UK government. So No 10 would deny that Scotland has the legal competence to adopt such legislation. Prior to the 2014 vote, this competence issue was settled by a “Section 30 Order,” namely the legal transfer of power to Scotland to hold the referendum. But Boris Johnson has declared that he will not make such an order this time.

So the question is—does Scotland have the power to adopt the legislation and hold the referendum in any case? Nicola Sturgeon has said that, once the pandemic has abated, she will press ahead. The January 2021 SNP “roadmap” asserted the right to hold a referendum, declaring that if a pro-independence majority were returned to Holyrood, “in such circumstances there could be no moral or democratic justification for denying that request.”  The onus would then be on the UK government to challenge the bill—a legal challenge that would be brought to the UK Supreme Court. And that is probably where this will end up.

What would be the likely result of such a challenge? The Supreme Court would have to decide whether a Scottish referendum bill related to a reserved matter. The relevant law is Section 29 of the Scotland Act, which requires the Court to look at the purpose of the Scottish legislation in regard (among other things) to its effect in all circumstances. On this basis, one might predict that the Court would find an independence bill outside of the Scottish parliament’s competence, because it concerned a reserved matter under Schedule 5, and its purpose and effect was to lead to Scottish independence and therefore end the Union.

There are not many precedents, but in the first of the Gina Miller cases Supreme Court took a narrow approach to devolution, finding the Sewel Convention (which normally requires Westminster to obtain consent from the devolved parliaments before legislating in devolved areas) to be a mere convention and legally unenforceable. In the same case, the Supreme Court took a broad approach to the “effect” of actions—finding that the royal prerogative could not be used to trigger Article 50 and commence the Brexit process, because its real effect led to the repeal of primary legislation. Put together, these examples suggest the Supreme Court would not find a referendum Bill within the Scottish parliament’s powers.

However, that would not end the matter. It is very likely the Scottish government would also argue that the referendum was simply a “consultation” with the Scottish people to ask whether it should discuss independence with the UK government—a sort of opinion poll. Framing the issue in this way, as one of mere consultation rather than intrusion into reserved powers, would be a harder claim to rebut, and the Scottish government might win this argument in court. Yet this could have its drawbacks. If the Court confirmed the referendum could go ahead on a consultative basis, there would be a risk of a boycott, as in Northern Ireland in 1973 (from Catholics in that case), or Catalonia in 2017 (from opponents of secession), leading to it being simply ignored by the UK government and Unionists. The matter would still not be settled.

There has been a fair amount of acknowledgement in Scotland that there needs to be a watertight legal and constitutional case for independence. Scottish independence also needs the approval of the international community. Apart from anything else, Scotland would not be readmitted into the EU if its independence were neither constitutionally solid nor internationally recognised (as it would have been in 2014). One of the reasons why Ireland was able to negotiate its independence in 1921 was the very strong international support it had. Of course, there had also been a campaign of violence, exhausting both Britain and Ireland. Fortunately, there looks to be little chance of a violent struggle for independence in Scotland, although these are certainly bumpy constitutional times.

E79E35 Edinburgh, Scotland, UK. 9th Sep, 2014. First Minister Alex Salmond meets with Scots and other European citizens to celebrate European citizenship and Scotland's continued EU membership with a Yes vote. Supporters hold up 'YES' signs in many Europe E79E35 Edinburgh, Scotland, UK. 9th Sep, 2014. First Minister Alex Salmond meets with Scots and other European citizens to celebrate European citizenship and Scotland's continued EU membership with a Yes vote. Supporters hold up 'YES' signs in many Europe

Alex Salmond campaigning in 2014 for Scotland to retain its EU membership if it voted to leave the UK. Credit: GARY DOAK/Alamy Live News

Would this then produce an interminable stalemate, in which there existed a desire for a referendum in Scotland, and resolute opposition to that in London? Certainly, the present UK government does not look likely to support greater Scottish self-determination. Johnson, despite last-minute panic over the Union, is clearly hoping to kick the issue of independence into the long grass. In the immediate aftermath of the Holyrood results, he suggested a meeting of the four nations to discuss Covid, illustrating the “now is not the right time because of the pandemic” approach.

This is not going to satisfy anyone when it comes to constitutional futures. It is possible Johnson might announce some sort of Royal Commission on the future of devolution, or the constitution more generally. This would take years to report, by which time he would hope the issue of Scottish nationalism had gone away. The UK government might in any case pass legislation to make it absolutely clear that independence referendums of any sort, or secession, are illegal—it has a big enough majority in Westminster to manage this.

The reflections above are somewhat pessimistic. But the UK government would do well to weigh the following four points when considering the future of the Union.

First, there is no overwhelming constitutional case for the continued existence of the UK Union. There is no provision in UK constitutional law prohibiting the secession of one of its nations. In contrast, Article 2 of the Spanish Constitution, which states that “The Constitution is based on the indissoluble unity of the Spanish nation, the common and indivisible country of all Spaniards,” made the case for Catalonian independence hard, if not legally impossible, without a constitutional amendment. Since the 1869 US Supreme Court case of Texas v White, secession has been held unconstitutional in the US. There is no such provision in the British constitution. Scotland was not conquered by England, but was an independent sovereign nation that voluntarily chose the union, achieved by an international treaty. The United Kingdom of Great Britain is based on consent. If that Union is to continue, there needs to be a stronger case for the affective dimension of membership, a case that has not yet been made. Coercion will not make the case.

Second, there is no overwhelming case for illimitable and undivided UK parliamentary sovereignty. Such sovereignty is usually presented as an obstacle to greater self-determination for devolved nations, and as ruling out federalism, because it prevents the written constitution with entrenched provisions and divided sovereignty that federalism would require. The argument is that parliament could always overturn such legislation because it is sovereign. Indeed, Brexit seems to have engendered an ever more aggressive unionism, resting on assumed Westminster parliamentary sovereignty.

But strong historical precedents for illimitable, undivided parliamentary sovereignty are lacking. The jurist AV Dicey, writing in the 19th century, argued it was a matter of logic. But that cannot be right, because many systems (such as the US) exist where sovereignty is divided under federalism. This means the case must be contingent, based on a state’s specific history. Dicey’s case also looks suspiciously tautological—parliament is sovereign because it is said to be sovereign.

“There is no provision in UK constitutional law prohibiting the secession of one of its nations”

Besides, in Scotland, there is much less support for the doctrine. In the 1953 Scottish case of MacCormick v Lord Advocate, Lord Cooper stated: “The principle of the unlimited sovereignty of parliament is a distinctively English principle which has no counterpart in Scottish constitutional law…” Continued insistence on parliamentary sovereignty as a fundamental principle of the British constitution distorts the situation today.

To be sure, the Scotland Act, as currently drafted, reserves certain matters, including the UK Union, to London. That presents an obstacle to an independence referendum if Westminster does not agree to one. But this could be changed. Such change is unlikely with the current government, but that is different from saying the allocation of powers could never be altered because of parliamentary sovereignty. Federalism, or other major constitutional changes, would be possible.

Third, it is likely that power underlies claims for parliamentary sovereignty, and rejections of S30 orders, today. Both sovereignty and power are concerned with the ability to control others and to have the ultimate final say. But whereas political power itself is often exerted by coercion, to claim sovereignty is to assert a legitimacy and authority that power by itself lacks. Power must be validated by something else. That normative grounding is lacking in the UK today. Indeed, a system which divided power more fairly, not allowing its concentration in the UK government, but to use Madisonian terminology, split the atom of sovereignty, seems ethically superior.

Fourth, other constitutional solutions are possible—the choice is not just independence or concentrated central government. Here are two possibilities.

The first is the Dominion concept that operated in the British Commonwealth. By the late 19th century, Canada, Australia and New Zealand all had considerable autonomy and systems of “responsible self-government.” The Balfour declaration of 1926 (not to be confused with that of 1917) asserted that “Equality of status, so far as Britain and the Dominions are concerned, is thus the root principle governing our Inter-Imperial Relations.” Dominions had control over all domestic matters and could conclude their own treaties. Five years later, the 1931 statute of Westminster provided legal autonomy and equality for the Dominions. Of course, the term “Dominion” need not be used today, given its past associations with the British Empire—another term, such as “Devo Max” or “Free State” (bearing in mind that the Irish Free State had Dominion status at first) might be preferable. Another possible alternative is the Federacy, an arrangement that has much in common with the asymmetrical devolution that exists in the UK, in that it concerns the relationship between a smaller territorial unit and a larger state, in which the smaller unit shares the benefits of association with the larger polity. But, unlike UK devolution, Federacies have internal autonomy and very often full self-government.

Both examples offer two pertinent advantages. First, they leave the rest of British constitution unchanged. In either a Dominion or a Federacy, autonomous institutions of a sub-state territory, such as Scotland, may be made permanent, but without the necessity of dividing the rest of the state and therefore “federalising” the rest of the country. They require no alteration to the constitution as it applies in England, which might be attractive for those who want no English devolution. Second, they may, but do not have to, lead to independence, support for which presently stands at just over 50 per cent.

The Dominion solution was effective because the UK government and Westminster parliament acted in good faith. Is that still possible? Such a situation depends on mutual trust and the observance of conventions—qualities that may no longer be in great supply post-Brexit. Peter Hennessey captured this when he wrote that the “good chaps” (and surely this must include “chapesses”?) are no longer in charge of government. With no equivalent of the 1926 Balfour declaration, not to mention the statute of Westminster, in the offing for Scotland, a lack of trust in the good faith of Westminster itself and Whitehall may mean independence appears the only possibility.

But what is the alternative? A UK Union kept together by coercion, against the will of a Scotland whose claim to self-determination has been successively asserted at the ballot? An unhappy, deadlocked United Kingdom, where every further move seems less than optimal? A huis clos? It is time Westminster started taking Scottish claims for independence seriously, and stopped hiding behind flimsy and inadequate concepts. It is time for some intellectual honesty, whereby abusive exercises of power are not justified on the basis of an asserted insurmountable trump card of unlimited sovereignty. The British constitution does not provide an unassailable counter to either Scottish independence, federalism, or Home Rule, and it is dishonest to claim it does.