Your Right to Decide

The people of Scotland make decisions about their constitutional future in elections

The people of Scotland confer mandates in elections

The Scottish Government’s position is that the decision on whether a referendum should be held ought to be for the Scottish Parliament, empowered to make such decisions by the votes of people who live here.

This is consistent both with precedent, and with the principles of democracy.

In 2011, when the people of Scotland elected an SNP majority in the Scottish Parliament that supported independence and was committed to holding an independence referendum, the UK Government acknowledged and respected their decision. It negotiated with the Scottish Government to agree the transfer of power that allowed the Scottish Parliament to legislate for an independence referendum.

As the Welsh Government has acknowledged:

“… provided a government in either country [Scotland or Wales] has secured an explicit electoral mandate for the holding of a referendum, and enjoys continuing support from its parliament to do so, it is entitled to expect the UK Parliament to take whatever action is necessary to ensure that the appropriate arrangements can be made.”^[38]

Welsh Government, 2021

The UK Government has accepted that it was the clear manifesto pledge and the Scottish Parliament election result in 2011 that led to the agreement to hold an independence referendum:

“The Scottish National Party entered the May 2011 election with a manifesto pledge for a referendum on independence. They have campaigned consistently for independence, and while the UK Government does not believe this is in the interests of Scotland, or the rest of the United Kingdom, we will not stand in the way of a referendum on independence: the future of Scotland’s place within the United Kingdom is for people in Scotland to vote on.”^[39]

David Cameron, Prime Minister and Nick Clegg, Deputy Prime Minister, 2012

“This process began with the Scottish National Party’s victory in the May 2011 Scottish parliamentary elections and its manifesto pledge to hold an independence referendum. From the very beginning, we recognised the political mandate that the SNP had secured for a referendum.”^[40]

Michael Moore, Secretary of State for Scotland, 2013

“… a referendum was unavoidable. People had voted for it. We would deliver it.”^[41]

David Cameron, former Prime Minister, 2020

Scottish Parliamentary election campaigns have included commitments to the holding of independence referendums and also commitments to oppose one being held, acknowledging that, regardless where the legislative competence on the matter lies, the decision is one that can be made in votes in these elections.^[42] It has been accepted by leading political figures within Scotland that the decision whether to hold an independence referendum is a matter that the people of Scotland can vote on in an election:

“Mandates come from the electorate in an election … it should be the people of Scotland that decide when the next referendum is.”^[43]

Anas Sarwar, 2016

The Scottish Government believes that it is a fundamental feature of Scottish parliamentary democracy that the Scottish people can decide to hold a referendum through their votes in Scottish Parliament elections, with the UK Government and Parliament recognising and giving effect to that decision as they did in 2014.

It is worth noting that in 2011-14, when the UK Government acknowledged and helped implement the decision by the people of Scotland to hold a referendum, a majority of MSPs had been elected on a manifesto commitment to a referendum, but a majority of MPs, or MPs from Scottish seats, had not. Nor did polling at that time suggest public support for independence itself.^[44] It was accepted that it was in the Scottish Parliament, and in the votes that elected that Parliament, that the decision had been made and the mandate secured.

It is only in the Scottish Parliament that a decision taken by the people of Scotland can result in a majority of the legislature elected on such a question, either in support or otherwise.^[45] It is only in an election to the Scottish Parliament that the focus is on distinctly and discretely Scottish questions, with only the electorate who live and work in Scotland asked to make decisions.

There are precedents at both the UK and Scottish level for securing mandates for referendums through elections. The 1997 devolution referendums followed manifesto commitments to consulting the people of Scotland and Wales on devolution. The 2014 independence referendum followed a manifesto commitment to an independence referendum. And the 2016 EU exit referendum followed a manifesto commitment to hold one. In no case was the holding of a referendum subject to any additional tests about public support for the underlying change being proposed.

Since the independence referendum in 2014, the people of Scotland have twice elected Scottish Parliaments with mandates to hold an independence referendum:

• in the 2016 Scottish Parliament elections, a majority of MSPs elected supported independence and the holding of an independence referendum in the event of the UK voting to leave the EU without the support of the Scottish electorate^[46]
• in the 2021 Scottish Parliament elections, a majority of MSPs were elected on manifesto commitments to a further independence referendum^[47]

Reflecting these commitments, the Scottish Parliament has itself voted for a further independence referendum. Following the EU exit referendum, the Scottish Parliament voted for a motion that acknowledged:

“… the sovereign right of the Scottish people to determine the form of government best suited to their needs and therefore mandates the Scottish Government to take forward discussions with the UK Government on the details of an order under section 30 of the Scotland Act 1998 to ensure that the Scottish Parliament can legislate for a referendum to be held that will give the people of Scotland a choice over the future direction and governance of their country at a time, and with a question and franchise, determined by the Scottish Parliament …”^[48]

Scottish Parliament motion, March 2017

And the current Scottish Parliament voted for a motion that:

“… acknowledges the decision of the UK Supreme Court in the reference by the Lord Advocate of devolution issues under paragraph 34 of schedule 6 to the Scotland Act 1998; reaffirms its belief that people in Scotland have the sovereign right to determine the form of government best suited to their needs; believes that the United Kingdom should be a voluntary association of nations and that it should be open to any of its parts to choose by democratic means to withdraw from the union, and calls on the UK Government to respect the right of people in Scotland to choose their constitutional future.”^[49]

Scottish Parliament motion, January 2023

The UK Government did not, following these election results or these motions, enter into discussions with the Scottish Government about the devolution of power over the holding of a referendum.

The Scottish Government believes that, if the people of Scotland have the right to decide Scotland’s place in the Union, and therefore the right to decide to hold an independence referendum, then the way they exercise that right is through the election of a Scottish Government in a Scottish Parliament that supports one.

As one commentator put it, if in response to a clear manifesto commitment to hold a referendum, a Scottish Parliament that supports one is elected:

“ … it will be impossible to argue that this was not a conscious choice by Scottish voters in favour of a referendum.”^[50]

Professor Ciaran Martin, 2021

The Supreme Court judgment

The law about the power to legislate for an independence referendum is now clear.

The Supreme Court in November 2022 ruled that any Bill in the Scottish Parliament which made provision for the holding of an independence referendum would relate to reserved matters under the Scotland Act 1998, and therefore would not be within the legislative competence of the Scottish Parliament.

The Scottish Government accepts and respects this judgment. It means that, without the UK Government agreeing a transfer of power, no Scottish Parliament could legislate to consult the people of Scotland about independence.

It is worth noting the reasons the Supreme Court gave for their ruling. They said, of an independence referendum, that:

“A clear outcome, whichever way the question was answered, would possess the authority, in a constitution and political culture founded upon democracy, of a democratic expression of the view of the Scottish electorate.”^[51]

The UK Supreme Court, Lord Advocate’s Reference, 2022

Part of the reason why legislating for an independence referendum would be beyond the Scottish Parliament’s competence, therefore, is because of the power that the people of Scotland’s votes would have if one was allowed to be held. In a voluntary Union, the people of Scotland’s decision whether to become independent, or not, could not simply be ignored. It would be, in the Supreme Court’s phrase, “a democratic expression of the view of the Scottish electorate.”^[52]

Even the act of electing a Parliament that supports the holding of a referendum is, in the Scottish Government’s view, “a democratic expression of the view of the Scottish electorate” that should “possess … authority, in a constitution and political culture founded upon democracy.”^[53]

The Scottish Government believes that, while the Supreme Court’s decision sets out the legal position as to the Scottish Parliament’s legislative competence, the decision does not affect the existence of a political and constitutional right for the people of Scotland to choose their future, nor prevent a mandate for a referendum being conferred in a Scottish Parliament election.

This is for a number of reasons:

• firstly, the people of Scotland’s right to decide was established and widely recognised long before the devolution of power to Scotland and the establishment of the Scottish Parliament. It cannot have been limited by it
• secondly, the UK Government, whose position has always been that it was not within legislative competence for the Scottish Parliament to hold an independence referendum, acknowledged the decision of the people of Scotland made in the 2011 Scottish Parliament election to exercise their right to decide. It has therefore been established as precedent already that mandates can be established through Scottish Parliament votes, even if legislative competence does not lie with the Scottish Parliament
• and, finally, the Scottish Parliament is the only national political forum Scotland has. Scottish MPs could never form a majority in the UK Parliament, and Scottish MPs are elected on a less proportionate basis than members of the Scottish Parliament. When exercising their political right to decide about Scotland’s constitutional future, the Scottish Government believes that the people of Scotland do this in elections which are only about Scottish issues, where the voters are those who live and work in Scotland, in their national Parliament

The people of Scotland can decide when to choose again

The Scottish Government accepts, and has always accepted, that in 2014 the people of Scotland decided that Scotland should continue to be part of the UK.

The Scottish Government does not agree that, in so doing, the people of Scotland also imposed a limit on themselves about whether—if they chose—they could again seek to determine their constitutional future.

Though the 2014 independence referendum was described at the time as a “once in a generation” opportunity,^[54] in the Scottish Government’s view it being described in this way this does not and could not prevent the people of Scotland from having the option of supporting a new referendum. Whether sufficient time has passed since they were last asked about their constitutional future, or whether there has been a material change justifying the question being again asked, is a matter for the people of Scotland to decide.

The referendum in 2014 allowed for 16 and 17 year olds to vote for the first time.^[55] By 2029 it is estimated that over a million people who have not had the opportunity to vote in an independence referendum—based on age only—would have the opportunity if a referendum was held then or in subsequent years.^[56] The Scottish Government believes that is a significant number of people who have not had their voices heard.

The Scottish Government also believes that circumstances have changed since 2014 regarding Scotland’s place in the UK, and the UK’s place in the world, so that the decision the people of Scotland made then, to stay part of the United Kingdom, deserves to be re-considered.

Since 2014, the UK has left the European Union. Scotland’s continuing place in the EU was a significant issue in both the 2014 independence referendum and the 2016 referendum on EU membership. The people of Scotland voted to remain in the European Union by a margin of 24 percentage points: 62% for remain, and 38% for leave. Five years after the UK’s departure, this Scottish Government believes that EU exit has resulted in significant damage to Scotland’s economy and society.^[57] One of the legacies of EU exit has been the erosion of respect for devolution and the continued bypassing of the Scottish Parliament by Westminster.^[58]

There is also the precedent of Northern Ireland. The constitutional settlement that led to Northern Ireland’s right in domestic and international law, in certain circumstances, to hold a referendum on unification with Ireland is very different to the position of Scotland’s right to decide. The Scottish Government does not draw any direct parallels, but it is worth noting that, as well as having the right to a referendum enshrined in law, that law specifies the minimum period that should be observed between any referendums on unification.

Following any referendum, the law stipulates that there should not be another:

“ … earlier than seven years after the holding of a previous poll …”^[59]

Northern Ireland Act 1998, Schedule 1

In the Scottish Government’s view, between the significant and material changes both domestically and internationally since the 2014 independence referendum, and the precedent of the seven year rule applying to referendums in Northern Ireland, enough time has passed since the last independence referendum to justify the question being asked again.

But more fundamentally, the period of time between independence referendums—including the question, if relevant, of whether a generation has passed since the last one—is a matter which the people of Scotland are best able to judge. And if they choose to elect a Scottish Parliament that supports the holding of a referendum, then it is their judgment that sufficient time has passed, and it is for their elected representatives to take the steps required to give effect to that decision, including making requests of the Scottish and UK Governments to negotiate the transfer of power required for a lawful referendum.