The UK Supreme Court in London is considering whether Scotland can have a referendum on its constitutional future. The case will be heard in the Supreme Court on 11-12 October 2022.
This week, lawyers acting on behalf of the Scottish National Party submitted a written case as to why the Scottish Government has the legal right to call a vote. Here are five key points it makes.
1 Scotland is a country within the UK
Scotland has a long history as a separate country. The laws of the UK recognise the UK is made up of four countries. When King Charles III acceded to the throne he had to make separate declarations in regard to Scotland. The written submission says:
“The Union With England Act 1707 refers expressly to ‘the two kingdoms of Scotland and England’….the 1707 Act makes express provision for Scotland’s separate legal, educational, and ecclesiastical systems to remain separate from those of England.”
Many recent laws, including the Scotland Act 2016, recognise Scotland as a separate entity within the UK. This section of the legal response concludes there is ample legal proof that:
“The people of Scotland are ‘a people’ for the purposes of the right to self-determination.”
2 In Scotland, the people are sovereign
The UK Government argues that it can decide whether or not Scotland is allowed to hold a referendum because it is ‘sovereign’ over the whole of the United Kingdom. Its lawyers argue that Westminster effectively holds all power to make law and only lends some to Holyrood.
Scotland’s lawyers argue that this is an English idea; it does not respect the traditions of Scotland where sovereignty rests with the people. It quotes a famous judgment by Lord President Cooper in MacCormick v Lord Advocate 1953:
‘The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law. It derives its origin from…considering that the Union legislation extinguished the Parliaments of Scotland and England, and replaced them by a new Parliament. I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament but none of the Scottish Parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done.’
3 The UK has argued strongly for the inalienable right of self-determination of all peoples
The UK government has made strong representations to the UN to support “the inalienable right of self-dermination”. One example is over Kosovo, leaving union with Serbia. Another is the Falkland Islands. That archipelago was recognised as having the right to self-determination and chooses to be an overseas territory of the United Kingdom. The UK called on other nations to support this right after the Falkland war.
The UK representative to the UN General Assembly in 1983 said:
“The Committee has repeatedly declared its belief in the inalienable right of self-determination. Inalienable is a very strong word. It means birthright; it means you cannot get rid of it; it means that the Falklanders have a right of self-determination which no one can take from them. The United Kingdom shares that view.”
In 1984, the UK representative told the UN:
“Self-determination is not a one-off exercise. It cannot be achieved for any people by one revolution or one election. It is a continuous process. It requires that peoples be given continuing opportunities to choose their governments and social systems, and to change them.”
The Scottish submission concludes that:
“The United Kingdom’s position, therefore, at least on the international stage, appears to be clear in that ‘a people’ has an inalienable right to self-determination which cannot be taken away from them, and that ‘a people’ can exist within a state boundary.”
4 The Scottish Government has a mandate to deliver a referendum
The UK’s lawyers argue that a manifesto commitment is a matter of party politics and has no standing in law. But Scotland’s lawyers argue that the people have a right to expect their elected representatives to do what they said they would do. It says:
“A people is entitled to expect its government to seek to govern on the basis on which it sought to be elected. That is a fundamental principle of government and to find otherwise would wholly undermine the legitimacy of any executive branch of government and the trust of the public in government as a whole.”
When the SNP (and the Greens) fought the recent Scottish election:
“Holding a referendum on Scottish independence is, and was understood by the public to be, at the core of its policy offer and programme of government.”
5 If the Supreme Court says no, it means Scotland has no effective right to self-determination
The UK argues that the issue of Scottish independence is a matter for the whole UK to decide and not for Scotland alone. But Scotland’s lawyers argue that self-determination can’t depend on what another country wants. It quotes a judgement by the Canadian Supreme Court which allowed Quebec to hold two referenda on independence.
“The Advocate General, in his written case to this court, has suggested … that the Union of Scotland and England is, ‘par excellence’, a UK-wide matter and that is why it might be reserved. The clear implication of that is that the Advocate General believes as a matter of law that, should Scotland wish to become an independent country but the remainder of the United Kingdom does not want that, the remainder of the United Kingdom should have the ability to prevent Scottish independence.
“A right to self-determination is not dependent or conditional on others agreeing with that decision. The right to self-determination of a people is exercised by that people and that people alone.”
It concludes that if the Supreme Court rejects the right of the Scottish Parliament to hold a referendum, it effectively will be saying that Scotland does not have the right to self-determination.
“Of the 650 seats in the House of Commons, 59 are for Scottish constituencies. MPs from Scottish constituencies account for less than ten percent of the chamber. The UK leaders of the Conservative and Labour parties have indicated they will not countenance a further referendum on Scottish independence. There is accordingly no practical way in which the right to self-determination can be advanced through that legislature. If there is no way in which to exercise a right, it is no right at all: ubi jus ibi remedium.”
After the Scottish general election of May 2022, the Scottish Government published a draft bill for a referendum. That was passed by the Scottish Parliament. The Lord Advocate of Scotland submitted this to the Supreme Court rather than waiting for the UK Government to rule it out of order, which could have meant a long delay.
The UK government originally tried to have the case thrown out, but it will now be heard. Scotland has a strong case for being allowed to hold a democratic referendum.
Read the written response on behalf of the Scottish National Party, of September 26 here
Read the Scottish Government’s original submission, of August 10 here