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A New State in the Making?

The Scottish Government today made public its legislative programme for the coming year. The most interesting aspect is the plan for a Referendum Bill to be put before the Scottish Parliament at some point in 2010. In short, the Scottish Government, led by the Scottish National Party (SNP), plans to hold a referendum on Scottish independence.

Leaving aside the political issues, such as for example the problem facing the SNP minority government of gaining political support for the Bill in parliament, a number of legal questions arises out of the Government’s plans. For instance, the status of referendums under UK constitutional law has always been one of ambiguity. Historically, very few referendums have been held in the UK compared to other European countries. Notable exceptions, however, are the 1975 EC membership referendum and the Scottish and Welsh devolution referendums in 1997. One reason for this is the strong emphasis in the UK constitutional setup on the doctrine of parliamentary sovereignty. In brief, parliamentary sovereignty, as argued by A. V. Dicey, means that the UK parliament (in Westminster) is sovereign and has “the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament”. Although the doctrine has been gradually weakened by, for instance, the devolution arrangements, the enactment of the 1998 Human Rights Act and most notably by the UK’s accession to the EC, it very much remains a central principle in UK constitutional law. Hence, the historical lack of referendums in the UK can be summed up by the rather outdated sentiment that such referendums would be a waste of time as Parliament was not legally obliged to adhere to them. Whether this is still the case is probably doubtful but as far as a Scottish referendum goes it raises some interesting quandaries.

For example, should the Scottish people vote yes (which would seem to be somewhat unlikely as polls continue to indicate support for Scotland to remain in the UK), it is not a matter for the Scottish Parliament to decide. The 1998 Scotland Act specifically reserves (in Schedule 5) constitutional matters relating to the United Kingdom to the Parliament in Westminster. Hence, Scottish independence would have to be granted by Westminster rather than taken by the Scottish Parliament in Holyrood. Obviously, the will of the Scottish population would carry significant weight – rightly so. And should they vote yes in a referendum, it would take some political guts from any UK government to deny them independence. Of course, were this to happen, a long range of other legal issues would arise. For instance, would Scotland want to be a member of the EC (all indications are that the SNP would like to)? If so, this would have to be approved by the other member states of the Community although this would likely not cause much of a problem.  Thus, the answer to the question of whether a new state is in the making is probably “not for a foreseeable future” despite the SNP’s intentions to the contrary.


  1. Michael Follon Michael Follon 3 September 2009

    You write:
    ‘One reason for this is the strong emphasis in the UK constitutional setup on the doctrine of parliamentary sovereignty.’
    That statement exposes a widespread misunderstanding about what the UK is and what it is not. There are many who would like to believe that parliamentary sovereignty is applicable to the whole of the United Kingdom. Parliamentary sovereignty was a tenet of English constitutional law before the Union of 1707. At no time since then has it ever been agreed that the UK Parliament at Westminster is sovereign. The UK Parliament is also the location of the former English Parliament and has therefore only been assumed to be sovereign.
    ‘greater power can only be granted to Scotland by the UK Parliament and here there is potential for conflict. To take the extreme example, constitutional matters are reserved but it is hard to see how the Scottish Parliament could be prevented from holding a referendum on independence should it be determined to do so. If the Scottish people expressed a desire for independence the stage would be set for a direct clash between what is the English doctrine of sovereignty and the Scottish doctrine of the sovereignty of the people.’
    SOURCE: ‘The Operation of Multi-Layer Democracy’, Scottish Affairs Committee Second Report of Session 1997-1998, HC 460-I, 2 December 1998, paragraph 27.

  2. Ole W. Pedersen Ole W. Pedersen Post author | 4 September 2009

    Thanks for your comment.
    You are right in pointing out that parliamentary sovereignty has a different meaning under Scottish law than English law. Likewise, the doctrine of parliamentary sovereignty is of English origin and it could be argued that the Scottish political system as such has historically maintained a stronger focus on sovereignty of the people rather than the parliament as you say. It could even be argued that this was accepted by Westminster when it created the devolved institutions. Nevertheless, the reference above to ‘One reason for this is the strong emphasis in the UK constitutional setup on the doctrine of parliamentary sovereignty’ is in relation to the number of referendums in the UK which has historically remained low (partly as a result of the doctrine of parliamentary sovereignty). However, there is a strong argument in favour of this starting to change.
    As for referendum itself, your reference to the right for the Scottish people to hold a referendum is as such correct. There is nothing to prevent the Scottish Parliament from having such a referendum. The legal effect of it, should it be a positive vote, is another matter. As a constitutional matter, Scotland cannot declare outright independence – this would have to be granted from the UK Parliament in Westminster. Of course, should the Scottish people vote yes, it could be argued that the UK Parliament ought to, as a matter of law, recognise the outcome. In all likelihood, this would probably be the outcome. In the words of Vernon Bogdanor a positive outcome of a referendum would be “the starting point” of independence negotiations between the UK and Scotland (settling issues of national debt, defence and oil and gas revenues). Most likely, another referendum would have to follow once a deal has been hammered out.

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