Michael Keating (University of Aberdeen)
The Supreme Court judgment on the legality of a Scottish independence referendum can be broken down into three elements. Two are unsurprising but the third is problematic.
The first decision was to accept the case at all. The UK Government had argued that the issue was hypothetical and premature and that a judgment should have been made only on a complete Bill. This would have put pressure on the Presiding Officer and the Lord Advocate and caused confusion and a potential politicisation of those roles, while the Supreme Court would have eventually had to rule in any case.
The second decision was that a referendum, albeit consultative, would affect the union. It might not have legal effects but it would have practical effects in the form of political consequences. This is an unsurprising interpretation of the Scotland Act.
The third decision was to reject the SNP’s argument that Scotland has the right of self-determination in international law. International law is not at all clear on this matter but there is a body of opinion that secession is only permissible in the case of colonies or where there has been manifest oppression of a people. This does not apply in the case of Scotland. In making this argument, the Supreme Court invoked the judgment of the Supreme Court of Canada when it was asked by the Government of Canada whether Quebec had the right to secede. As the UK Court notes, the Canadian Court ruled that Quebec did not have that right. What the Court did not mention is the other part of the Canadian judgment, that if Quebec or any other province did vote for independence by a clear majority on a clear question, the Government of Canada would be bound to negotiate. This was because the Canadian Constitution must be read in the light of democratic principles.
The UK Supreme Court, on the contrary, argued that a referendum is not permissible in part because it ‘would possess the authority, in a constitution and political culture founded upon democracy, of a democratic expression of the view of the Scottish electorate (para 81).
Denying a referendum on these grounds comes close to denying that Scotland has a right to self-determination, which goes further than either this or previous UK Governments have gone.
It would perhaps have been unrealistic to expect the UK Supreme Court judges to act otherwise than they did. They have consistently adhered to the letter of the law rather than engaging in broader constitutional reasoning. Yet this risks undermining the conventions and understandings on which our largely unwritten constitution depends. There was a similar over-reach in the Miller judgment a few years ago, when the Court were asked whether the Sewel Convention, under which Westminster only ‘normally’ legislates on devolved matters with the consent of the devolved legislatures, applied to the triggering of the Brexit process. Instead of saying that the situation was not normal or that the matter was reserved, the Court took the opportunity to double down on parliamentary sovereignty and supremacy and effectively declared that the Convention had no constitutional standing at all.
Sometimes legal clarity can get in the way of the margin for interpretation that our constitution gives for politicians to negotiate ways of out deadlocks. The relationship between the right of Scotland to self-determination and the sovereignty of the Westminster Parliament is not simply a matter of black letter law but is highly contested. The way is now open for the UK Government to say that there is no time or way for Scotland to exercise its acknowledged right of self-determination, for no other reason than that it has the power to do so. As others have noted, this turns the UK from a union of consent to one of (narrowly interpreted) law.
Michael Keating is Emeritus Professor of Politics at the University of Aberdeen
Photo Credits: Scottish National Party