Rising star in the field of Scottish and UK law Sionaidh Douglas-Scott, who is a fellow at Princeton in the US, argues the UK government risks undermining the rule of law and should change its stance to allow a referendum on Scottish independence.
In a hard-hitting legal analysis in the current issue of Prospect magazine, Douglas-Scott writes: "The UK government’s refusal to negotiate the independence issue with Scotland (including to permit a referendum) is unreasonable". She goes on to argue that:
“By ignoring the mandate of a lawful government, the UK government’s conduct in this context also undermines the rule of law."
Douglas-Scott, who is also a chair of law at Queen Mary University in London, argues that democracy is a key constitutional principle. She writes:
“The UK government has undermined democracy by ignoring the SNP’s 2021 manifesto pledge to hold another referendum, the endorsement of that pledge by the Scottish people, as well as the vote in the Scottish parliament in January 2020 for a further referendum.”
Supreme Court wrong to dismiss the issue of self-determination
Douglas-Scott argues that the Supreme Court under its current President Lord Reed defined devolution too narrowly:
“The Reed Court inclines toward legal formalism—in that it takes a narrow reading of the rule of law, adopts a close reading of legal texts and eschews arguments which stray into broader issues (such as those relevant to Scottish independence which rest on the principle of democracy).”
Many Scots would have been surprised to read that the Supreme Court summarily dismissed the argument that Scotland has the right to self-determination under international law. It said that this right only belongs to a colony, that Scotland is clearly not a colony and has no right to “secede”.
That begs the question - what is Scotland then? Is it merely a region of the UK or is it an ancient country which entered by agreement into a voluntary union?
Douglas-Scott argues it is the latter. She writes that “time and time again” the UK government has indicated that Scotland is a voluntary partner in the Union and has the right to consider its future.
“Through its own conduct over many years, the UK government has generated an expectation allowing for independence in principle. If the UK government refuses to countenance any new independence referendum, it will undermine the characterisation of the Union as voluntary.
“Its behaviour will also fly in the face of history, reducing Scotland to the status of a colony or a region with no history of independent statehood, while undermining any claims (made by UK government ministers) for the exceptional, “family” nature of Union.”
The Union is an ongoing agreement between two independent nations
Douglas-Scott argues that the Treaty of Union was not a one-off act but the basis for an ongoing agreement between two nations.
“Constitutional relations between Scotland and England have existed for over 300 years, since the UK was established by a Treaty of Union between two sovereign states, which was then ratified by two Acts of Union in the respective parliaments.
“But this relationship, and the issue of consent of both parties to it, is an ongoing one, not something over and done with thanks to an Act of Union three centuries old. Since 1707, Scotland has maintained its own distinct civic institutions, legal system, church and cultural heritage—all factors which point to the Union as a continuing agreement between two independent nations.”
Scotland must demonstrate support for independence
Douglas-Scott argues that:
“All these arguments must be supported by evidence that the Scottish people desire to exercise their right to self-determination and leave the Union.”
Douglas-Scott acknowledges that Scots were misled in the 2014 referendum:
“During that campaign, the pro-UK Better Together alliance conspicuously argued that Scotland could only retain its EU membership by remaining in the UK. This was not so; and since then, Brexit has taken place. In the 2016 EU referendum, Scotland voted 62 percent in favour of Remain. Although the Scottish government protested that it was undemocratic for Scotland to be taken out of the EU against its will, this argument was ignored by the UK government, and the whole UK exited the EU on 31st January 2020.”
A referendum would be the clearest way to demonstrate the desire for independence, but there is precedent for using a general election to give voters a voice on a single issue.
“The 1910 general election was fought on the issue of the Liberal government’s “People’s Budget”. The 1918 general election was fought by Sinn Féin on a manifesto commitment to establish an Irish Republic.”
According to Douglas-Scott’s analysis, the UK government is acting unreasonably when it refuses to negotiate over a referendum on Scottish independence. The Supreme Court took a narrow, procedural view in its judgment and refused to consider the broader issue of democratic principles.
Denying Scotland the right to self-determination and to consider its future “flies in the face of history”. The Union is an ongoing agreement between two independent nations.
Douglas-Scott still argues that the UK government should change its mind and allow a referendum on independence. But if the referendum route continues to be blocked, the Scottish government can legitimately use the next general election to test support for independence.
The UK Supreme Court has not settled the Scottish independence question by Sionaidh Douglas-Scott, Prospect Magazine