Scotland's right to choose: putting Scotland's future in Scotland's hands

Endnotes

1. For example, "And if the Union is to flourish in the future a more concerted recognition of Scotland's status as a nation will be necessary. It should be a mark of Scotland's self-confidence in her own status as a nation that she shares her sovereignty with the other parts of the United Kingdom. But the willingness to share that sovereignty must never be taken for granted." Scotland in the Union: a partnership for good. HMSO, 1993 (Cmnd. 2225); "Scotland is a proud historic nation in the United Kingdom and the plans we put forward in this White Paper will give it an exciting new role within the United Kingdom." Scotland's Parliament. HMSO, 1997 (Cmnd. 3658); "as a nation, [the Scots] have an undoubted right to national self-determination; thus far they have exercised that right by joining and remaining in the Union. Should they determine on independence no English party or politician would stand in their way." Thatcher, M., The Downing Street Years. 1993; "Scotland is not a region, but a member nation of the United Kingdom". Submission to the Kilbrandon Commission by the Labour Party. 1970.

2. Joint statement by the leaders of the Scottish Conservatives, Scottish Labour Party and Scottish Liberal Democrats. June 2014. Available at www.centreonconstitutionalchange.ac.uk/news_opinion/joint-statement-more-devolution-uk.

3. "successive UK Governments have said that, should a majority of people in any part of the multi-national UK express a clear desire to leave it through a fair and democratic process, the UK Government would not seek to prevent that happening." Scotland analysis: devolution and the implications of Scottish independence. HMSO, 2013 (Cmnd. 8554).

4. A Claim of Right for Scotland. The Campaign for a Scottish Assembly. 1989.

5. The Scottish Parliament on 26 January 2012, and the House of Commons on 4 July 2018.

6. "Our Union rests on and is defined by the support of its people … it will endure as long as people want it to-for as long as it enjoys the popular support of the people of Scotland and Wales, England and Northern Ireland". Prime Minister Theresa May. Speech on the Union. 4 July 2019.

7. "Scotland is a nation and voluntarily entered into Union with England as a partner and not as a dependency". Report of the Royal Commission on Scottish Affairs. HMSO, 1954 (Cmnd. 9212); "The Acts of Union of 1707 […] marked the beginning of a single multi-nation state." Scotland analysis: devolution and the implications of Scottish independence. HMSO, 2013 (Cmnd. 8554); MacCormick, N., Is There a Constitutional Path to Independence? Parliamentary Affairs, Vol. 53(4), 2000, pp.721-736; Brazier, R., The Constitution of the United Kingdom (1999) Cambridge Law Journal, Vol. 58, 1999, pp. 96-128; Walker, N., Beyond the Unitary Conception of the United Kingdom? Public Law, Autumn 2000, pp. 384-404; Feldman, D., One, None or Several? Perspectives on the UK's Constitution(s), Cambridge Law Journal, 2005, Vol. 64 (2), pp. 329-351; Walker, N., Out of Place and Out of Time: Law's Fading Co-ordinates, Edinburgh Law Review, 2010, vol. 14 (1), pp.13-46.

8. The UK Government and Irish Government agreed to "(i) recognise the legitimacy of whatever choice is freely exercised by a majority of the people of Northern Ireland with regard to its status, whether they prefer to continue to support the Union with Great Britain or a sovereign united Ireland; (ii) recognise that it is for the people of the island of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland". Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland (known as the 'Good Friday Agreement'). April 1998.

9. The Northern Ireland Act 1998, ch. 47, Schedule 1: "1. The Secretary of State may by order direct the holding of a poll for the purposes of section 1 on a date specified in the order. 2. … the Secretary of State shall exercise the power under paragraph 1 if at any time it appears likely to him that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland." The Constitution Unit has expressed the view that this condition could be satisfied by the Northern Ireland Assembly calling for a poll: A Northern Ireland Border Poll. The Constitution Unit. University College London, 2019, p. 7.

10. "[The parties] affirm that if in the future the people of the island of Ireland exercise their right of self-determination on the basis set out in sections (i) and (ii) above to bring about a united Ireland, it will be a binding obligation on both Governments to introduce and support in their respective Parliaments legislation to give effect to that wish." Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland (known as the 'Good Friday Agreement'). April 1998.

11. The Smith Commission, Report of the Smith Commission for further devolution of powers to the Scottish Parliament. 2014. p.12.

12. Explanatory Notes to the Act of Union Bill. Constitution Reform Group. 2018.

13. Act of Union Bill, clause 1 'status of United Kingdom'. The Bill received its first reading in the House of Lords on 9 October 2018.

14. See, for example, Green, D.A., Escaping the shadow of AV Dicey and putting parliament in its place, Prospect, Nov 2019.

15. "The Union between Scotland and the other nations of the UK did not remove from the people of Scotland their fundamental political right to determine their constitutional future […] The people of Scotland remain sovereign and have the same right to choose the form of their own Government as the people of other nations that have secured independence after periods of union with, or in, other states." Scottish Government. Choosing Scotland's future-a national conversation: independence and responsibility in the modern world. 2007. See also, for example, Buchanan, G., De jure Regni Apud Scotos. Saltire Society, 2006; or MacCormick, N., Questioning Sovereignty. Oxford University Press, 1999. For a critical analysis of the historic claim of popular sovereignty, see Kidd, C. Sovereignty and the Scottish Constitution Before 1707, Juridical Review, 2004, pp. 225-236.

16. Most famously by Lord President Cooper in the case of MacCormick v Lord Advocate, 1953 SC 396, where he said "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 Coke and Blackstone, and was widely popularised during the nineteenth century by Bagehot and Dicey, the latter having stated the doctrine in its classic form in his Law of the Constitution. 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."

17. See, for example, the comments of Lord Hope of Craighead in Axa General Insurance v. Lord Advocate [2011] UKSC 46, para. 46: "The Scottish Parliament takes its place under our constitutional arrangements as a self-standing democratically elected legislature. Its democratic mandate to make laws for the people of Scotland is beyond question". The primary responsibility of the Scottish Parliament in relation to matters within its competence is acknowledged, as a matter of constitutional convention, by the legislative consent convention (known as the 'Sewel Convention'), and by the arrangements for the Scottish Government's accountability to the Scottish Parliament for matters within its competence.

18. "(1)The Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom's constitutional arrangements. (2)The purpose of this section is, with due regard to the other provisions of this Act, to signify the commitment of the Parliament and Government of the United Kingdom to the Scottish Parliament and the Scottish Government. (3)In view of that commitment it is declared that the Scottish Parliament and the Scottish Government are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum." The Scotland Act 1998. c. 46, section 63A.

19. For example, see the cases of R (Jackson) v Attorney General [2005] UKHL 56; AXA General Insurance Limited and others v The Lord Advocate and others [2011] UKSC 46; Imperial Tobacco Limited v the Lord Advocate, [2012] UKSC 61; R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5; and R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland [2019] UKSC 41.

20. The European Union (Withdrawal Agreement) Bill 2019, clause 36. See also the Legislative Consent Memorandum for the European Union (Withdrawal Agreement) Bill 2019, Scottish Government.

21. Reforming our Union: shared governance in the UK. Welsh Government. 2019.

22. Reforming our Union: shared governance in the UK. Welsh Government. 2019.

23. Jennings, I., The approach to self-government. Cambridge University Press. 1956.

24. "no nation could be held irrevocably in a Union against its will". Prime Minister John Major. Scotland in the Union: a partnership for good. HMSO, 1993 (Cmnd. 2225)

25. "Following a vote for independence the Scottish Government will immediately seek discussions with the Westminster Government, with member states and with the institutions of the EU to agree the process whereby a smooth transition to independent EU membership can take place on the day Scotland becomes an independent country." Scotland's future: your guide to an independent Scotland. Scottish Government. 2013.

26. Scotland's future: your guide to an independent Scotland. Scottish Government. 2013.

27. For example, "It's disingenuous to say No means out and Yes means in, when actually the opposite is true. No means we stay in, we are members of the European Union." Leader of the Scottish Conservative Party Ruth Davidson, STV referendum debate, 2 September 2014; "[The Scottish Government] want to try and pretend that if we stay in the United Kingdom we will be out. What we have got in the United Kingdom is three party leaders - Nick Clegg, Ed Miliband and David Cameron - all who say that they support the continued membership of the European Union. The only guaranteed way of leaving the European Union is to leave the United Kingdom." Secretary of State for Scotland, Alistair Carmichael, Scotland Tonight Debate, 28 November 2013; "But there is little real danger of the UK leaving the EU. Any Yes campaigner arguing in 2014 that the only way of securing Scotland's membership of the EU is to vote Yes is scaremongering, plain and simple." Prof Adam Tomkins. 29 August 2014. Available at notesfromnorthbritain.wordpress.com/2014/08/29/scotland-and-the-eu/.

28. Scotland analysis: Europe and International Issues. UK Government. 2014.

29. "The EU needs to change. And it is time for the British people - not politicians - to have their say. Only the Conservative Party will deliver real change and real choice on Europe, with an in-out referendum by the end of 2017." Strong Leadership: A Clear Economic Plan A Brighter, More Secure Future (The Conservative Party Manifesto). 2015.

30. The European Union Referendum Act 2015. c. 36.

31. House of Commons, Official Report, Parliamentary Debates (Hansard), 16 June 2015.

32. Scottish Parliament, Official Report, Scotland's Future in the European Union, Motion S5M-00190, "that the Parliament supports Scotland and the rest of the UK remaining part of the EU." Agreed: for 106, against 8, abstentions 3 on 26 May 2016.

33. Re-elect: the Scottish National Party Manifesto. 2016.

34. First Minister Nicola Sturgeon, EU Referendum result, 24 June 2016. Available at news.gov.scot/speeches-and-briefings/first-minister-eu-referendum-result.

35. Scottish Parliament, Official Report, Implications of the EU Referendum for Scotland, Motion S5M-00601, "that the Parliament welcomes the overwhelming vote of the people of Scotland to remain in the European Union; affirms to citizens of other EU countries living here that they remain welcome and that their contribution is valued; mandates the Scottish Government to have discussions with the UK Government, other devolved administrations, the EU institutions and member states to explore options for protecting Scotland's relationship with the EU, Scotland's place in the single market and the social, employment and economic benefits that come from that, and instructs the Scottish Government to report back regularly to parliamentarians, to the European and External Relations Committee and the Parliament on the progress of those discussions and to seek Parliament's approval of the outcome of that process." Agreed: for 92, against 0, abstentions 31.

36. Scottish Parliament, Official Report, Scotland's Choice, Motion S5M-04710, "that the Parliament acknowledges 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, which would most appropriately be between the autumn of 2018, when there is clarity over the outcome of the Brexit negotiations, and around the point at which the UK leaves the EU in spring 2019; believes that this gives people in Scotland a choice at a time when there is both the most information and most opportunity to act; further believes that 16 and 17-year-olds and EU citizens, who were excluded from the EU referendum, should be entitled to vote, and considers that this referendum is necessary given the Prime Minister's decision to negotiate a hard exit from the EU, including leaving the single market, which conflicts with assurances given by the UK Government and prominent Leave campaigners, and which takes no account of the overwhelming Remain vote in Scotland." Agreed: for 69, against 59.

37. Scottish Government. Scotland's Place in Europe: People, Jobs and Investment. 2018.

38. Scottish Government. No-deal Brexit: economic implications for Scotland. 2019.

39. Scottish Government. Scotland's Place in Europe. 2016.

40. UK Government, Joint Ministerial Committee communique, 24 October 2016. Available at www.gov.uk/government/publications/joint-ministerial-committee-communique-24-october-2016.

41. For example, UK Government papers published in advance of formal negotiating rounds with the EU to inform discussion: Continuity in the availability of goods for the EU and the UK - position paper (21 August 2017) Confidentiality and access to documents - position paper (21 August 2017 ); Northern Ireland and Ireland - position paper (16 August 2017); Ongoing Union judicial and administrative proceedings - position paper (13 July 2017); Nuclear materials and safeguards issues - position paper (13 July 2017); Privileges and immunities - position paper (13 July 2017); Safeguarding the position of EU citizens in the UK and UK nationals in the EU (26 June 2017).

42. The Joint report on progress during phase 1 of negotiations under Article 50 TEU on the UK's orderly withdrawal from the EU (8 December 2017), the draft (partial) Withdrawal Agreement in March 2018, Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (14 November 2018); Outline Political Declaration on the Future Relationship (14 November 2018) were all published before or at the same time as devolved administrations were provided access to them. The updated Political Declaration Setting out the framework for the future relationship between the European Union and the United Kingdom (22 November 2018) was provided to devolved administrations under embargo a few hours ahead of its publication.

43. For example, see motions S5M-01412 (14 September 2016) on agreeing a UK approach and objectives for negotiations; S5M-02488 (15 November 2016) on seeking clarity from the UK Government its proposals for leaving the EU; S5M-03427 (17 January 2017) on Scotland's Place in Europe; S5M-03858 (7 February 2017) calling for the European Union (Notification of Withdrawal) Bill not to be passed until effective consultation with the devolved administrations has been agreed.

44. Motion S5M-01412, "that the Parliament recognises the importance of EU membership to Scotland and welcomes the Prime Minister's assurance that she will not trigger Article 50 of the Lisbon Treaty until there is an agreed UK approach and objectives for negotiations; agrees that Scotland's interests are best served within the EU and that a key objective must be for Scotland and the UK to remain inside the EU Single Market; supports the Scottish Government participating fully in all negotiations between the UK Government and the EU in the run-up to, and during, the Article 50 process, while consulting and reporting back to the Parliament on its objectives, and supports an approach that protects Scotland's democratic and economic interests, social protection, the principle of solidarity and the ability to influence decision-making within the EU." Agreed: for 87, against 34.

45. For example, see motions S5M-08352 (25 October 2017), S5M-15032 (5 December 2018), S5M-16107 (5 March 2019), and S5M-18695 (5 September 2019) opposing a 'no deal' outcome and opposing withdrawal agreements negotiated by the UK Government.

46. Legislative Consent Memorandum for the European Union (Withdrawal) Bill. Scottish Government. 12 September 2017.

47. Motion S5M-12223, "that the Parliament notes the legislative consent memorandums on the European Union (Withdrawal) Bill lodged by the Scottish Government on 12 September 2017 and 26 April 2018, and the reports of the Finance and Constitution Committee of 9 January and 10 May 2018, and, because of clause 15 (formerly 11) and schedule 3, which constrain the legislative and executive competence of the Scottish Parliament and Scottish Government, does not consent to the European Union (Withdrawal) Bill, and calls on both the UK and Scottish Governments to convene cross-party talks in an attempt to broker an agreed way forward." Agreed: for 93, against 30.

48. "the consequence is that it is legally possible for the UK Government to react to the passage of a Bill in the Scottish Parliament by making a reference and then persuading the UK Parliament to amend the Scotland Act so as to render the Bill invalid." Scotland's devolved settlement and the role of the courts. Lord Reed, Deputy President of the Supreme Court. February 2019.

49. The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill - A Reference by the Attorney General and the Advocate General for Scotland (Scotland). [2018] UKSC 64. 13 December 2018. One section of the Bill was held to be outside competence on other grounds.

50. "We think that the people of Scotland should decide our nation's future in a democratic referendum and opinion polls suggest that most Scots agree. We will, therefore, bring forward our Referendum Bill in this next Parliament. A yes vote will mean that Scotland becomes an independent nation." Re-elect: the Scottish National Party Manifesto. 2011.

51. UK Government. Scotland's constitutional future: a consultation on facilitating a legal, fair and decisive referendum on whether Scotland should leave the United Kingdom. HMSO, 2012 (Cmnd. 8203).

52. Scottish Government. Your Scotland, Your Referendum. 2012.

53. "The decision on Scotland's future should be taken through a process which is beyond reproach. The Scottish Government is committed to a referendum that is conducted to the highest standards of fairness, transparency and propriety." Scottish Government. Your Scotland, Your Referendum. p.8. 2012.

54. "The Scottish Government's preference is for a short, direct question about independence '...'. It is ready to work with the UK Government to agree a clarification of the Scotland Act 1998 that would remove their doubts about the competence of the Scottish Parliament and put the referendum effectively beyond legal challenge by the UK Government or any other party." Scottish Government. Your Scotland, Your Referendum. 2012. p. 9.

55. "That is not to say that the UK Government wishes to put obstacles in the way of a referendum. Quite the reverse, we firmly believe that we must explore the appropriate ways in which we can put beyond doubt the legal authority to hold a referendum on independence." Scotland's constitutional future: a consultation on facilitating a legal, fair and decisive referendum on whether Scotland should leave the United Kingdom. HMSO, 2012 (Cmnd. 8203) p. 6.

56. "We want to assist people in Scotland, in all reasonable ways, to participate in a referendum "Made in Scotland", whose outcome is legal, fair and decisive." Scotland's constitutional future: a consultation on facilitating a legal, fair and decisive referendum on whether Scotland should leave the United Kingdom. HMSO, 2012 (Cmnd. 8203) p. 6.

57. Agreement between the United Kingdom Government and the Scottish Government on a referendum on independence for Scotland. 15 October 2012.

58. The United Kingdom and Scottish Governments "look forward to a referendum that is legal and fair producing a decisive and respected outcome. The two governments are committed to continue to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom." Agreement between the United Kingdom Government and the Scottish Government on a referendum on independence for Scotland. 15 October 2012.

59. The Scotland Act 1998 (Modification of Schedule 5) Order 2013 S.I. 2013/242.

60. Meeting of the Scottish Parliament, 5 December 2012.

61. The House of Commons on 15 January 2013, and the House of Lords on 16 January 2013.

62. The Electoral Commission, Scottish Independence Referendum Report on the referendum held on 18 September 2014. ELC/2014/02. December 2014.

63. Secretary of State for Scotland Michael Moore, House of Commons, Official Report, Parliamentary Debates (Hansard), 15 January 2013, vol. 556, col. 742.

64. The acting leader of the Scottish Conservatives has called for 40 years to pass before a further independence referendum can be held: "Jackson Carlaw: No Indyref2 until after 2050", The Herald 26 November 2019; and Scottish Labour have a manifesto commitment that "in the early years of a UK Labour Government will not agree to a section 30 order request if it comes from the Scottish Government." Scottish Labour Manifesto. 2017.

65. See, for example, Lord Campbell LC in Stuart v. Moore (1861) 4 Macq 1, 49 (quoted with approval by Lord Hope of Craighead in R v. Manchester Stipendiary Magistrates ex parte Granada Television [2001] 1 AC 300): "As to judicial jurisdiction, Scotland and England, although politically under the same Crown, and under the supreme sway of one legislature, are to be considered as independent foreign countries, unconnected with one another."