2. Scotland's constitutional journey
Throughout its recorded history Scotland has engaged closely with its island and continental neighbours in the north west of Europe.
Whether on their own or as a voluntary member of the United Kingdom, the people of Scotland have always retained a strong sense of their Scottishness while also being comfortable with diverse identities - for example, British and European.
The nation of Scotland emerged gradually in the early medieval period from the unifying of different peoples, but is generally considered to date from around the mid-9th century. A sense of nationhood was reinforced when in 1320 under the rule of Robert the Bruce, the barons of Scotland appealed to the Pope in Rome regarding their independence.
The separate crowns of Scotland and England were joined in 1603. Just over a century later, in 1707, a political union was formed. This created a new "United Kingdom" of Scotland and England. However, it also preserved as of right distinctive Scottish institutions and systems including the Scottish legal system, the Scottish education system and the Scottish Presbyterian Church, which all remain distinctive to this day. Driven by a range of constitutional and economic forces and following passionate debate and discussion, the Union was ultimately passed by votes in the Scottish and English parliaments. Scotland's place in the Union was entered into voluntarily and, then and now, relies on the consent of the people.
By the end of the 19th century there was an active debate about ensuring greater powers for Scotland, and throughout the 20th century this demand for more self government grew. In 1997, 74% of the people of Scotland who voted in a referendum expressed support for re-establishing the Scottish Parliament which came back into being in 1999 after an adjournment of 292 years. A parliament was also re-established in Wales at that time, though with fewer powers, and a new Northern Ireland Assembly (the NI Parliament was abolished in 1973) was formed as a result of the Good Friday Agreement.
The creation of the new Scottish Parliament restored key legislative powers to Scotland. The devolution settlement is based on a reserved powers model whereby the Scottish Parliament has legislative competence over all matters other than those that are explicitly reserved to the UK Government and Parliament. There is no hierarchy of governments under the devolution settlements but the doctrine of absolute Westminster sovereignty means the UK Parliament can in principle over-rule any of the devolved institutions. In practice, the constitutional convention that Westminster will not legislate on devolved matters without the consent of the Scottish Parliament was unfailingly observed in the years prior to the 2016 referendum. However, since then there have been repeated breaches of this important constitutional rule by the current UK Government under successive Prime Ministers.
The principal powers which are reserved to the UK in the devolution settlement are some aspects of the constitution including the Union between Scotland and England, defence, economic and monetary policy, most taxation and social security, employment, foreign policy, equal opportunities, consumer protection, immigration and telecommunications. Nearly all other matters including justice, health, education, the environment, farming and fishing, are devolved.
After more than a decade, a further extension of responsibilities was agreed through further Scotland Acts in 2012 and 2016, including the partial devolution of tax powers.
The devolution settlement does not prevent the Scottish Parliament considering reserved matters such as the Union between Scotland and England, but it cannot make decisions on them. This means that it would require a vote in the UK Parliament at Westminster, as well as in the Scottish Parliament, to ensure a referendum on independence can be held without the risk of legal challenge.
The Scottish Parliament has voted in favour of such a referendum on 28 March 2017 and 29 January 2020 but the UK Government has refused to have a vote in the UK Parliament. The UK Government has suggested that no such referendum should take place for up to 40 years, even if the people of Scotland vote for a Scottish Parliament that supports a referendum, and vote into office a Scottish Government committed to delivering one.
The position of the UK Government is also contrary to the clear precedent set for the 2014 referendum. The Scottish Government received a democratic mandate for that referendum in elections to the Scottish Parliament, following which the UK and Scottish Governments and the UK and Scottish Parliaments reached the necessary agreements to allow the people of Scotland to have their say on the future of the nation.
During the campaign for the 2014 referendum a prominent argument from those opposed to independence was that only by voting against independence, and remaining part of the UK, would Scotland retain its position in the EU. In a turnout of 85% of the Scottish electorate, including EU nationals resident in Scotland, 55% voted against independence and 45% in favour. In recognition of the result and as part of the post-referendum commitment, the cross-party Smith Commission was established, which resulted in the further devolution of powers, including over income tax and some aspects of social security.
However, in the following years, the divergence between the views of the people of Scotland and those of people elsewhere in the UK became further evident at the 2016 EU Referendum. Whilst the UK vote ultimately returned a narrow majority in favour of leaving the EU, 62% of those who voted in Scotland chose to remain within the EU. Every local authority in the country returned a remain vote, and all the political parties in the Scottish Parliament supported remain.
Despite the Scottish Government setting out compromise proposals designed to limit the economic and social damage Brexit would impose on Scotland, the UK Government opted to pursue a policy that not only ignored the democratic wishes of the Scottish people but which the Scottish Government believes will have potentially devastating consequences for our economy and society, and which sever the long-standing and highly valued relations we have with our European partners.
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