Building a New Scotland: Renewing democracy through independence

Scotland's place in the United Kingdom

The debate over Scotland's future involves two different views of the United Kingdom and Scotland's place within it.

The 'Scotland as a nation within a union of nations' view

In one view, Scotland is a nation, not a region, within a United Kingdom that is "a union of nations".^[11]

The range of voices recognising that Scotland is a nation within a voluntary partnership of nations, with a right to democratic self-expression and determination, is longstanding and reaches across the political spectrum:

"Scotland is not a region, but a member nation of the United Kingdom."

Submission to the Kilbrandon Commission by the Labour Party 1970^[12]

"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."

Margaret Thatcher 1993^[13]

"the Scottish Parliament, which adjourned on March 25, 1707, is hereby reconvened."

Winnie Ewing, 12 May 1999^[14]

"Power lies with the Scottish people and we believe it is for the Scottish people to decide how we are governed."

Joint statement by the leaders of the Scottish Conservatives, Scottish Labour Party and Scottish Liberal Democrats. June 2014^[15]

"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".

Theresa May 2019^[16]

The status of Scotland as a nation is established through historical developments and reflected in current realities. Scotland is a recognised political and territorial entity, with its own legal and education systems; and sporting, religious and cultural institutions. Many of these aspects of Scotland's distinct national status were deliberately retained within the Treaties of Union as conditions of Scotland's entry into that Union and remain in effect today.

More fundamentally, that the people of Scotland are a distinct nation, with the right to determine our own form of government, has been recognised in practice repeatedly, in the referendums of 1979, 1997 and 2014.

Scotland's status as a nation is recognised in the nature of the Scottish Parliament: a body that makes law and provides a democratically elected, national, political voice on all matters concerning Scotland. This was famously expressed by Donald Dewar at the opening to the first Scottish Parliament in 1999:

"Today there is a new voice in the land, the voice of a democratic Parliament. A voice to shape Scotland, a voice above all for the future."^[17]

Extensions to the powers and responsibilities of the Parliament after the 2014 independence referendum reflected the clear support of the people of Scotland for greater self-government that had emerged during the campaign. Continued widespread support for the Scottish Parliament and Scottish Government^[18] reinforces the status of these bodies as national political institutions, reflecting the views of the people of Scotland on the place of the nation within the United Kingdom.

The 'Westminster sovereignty' view

The other view is that the United Kingdom is a "unitary state in which Westminster has merely 'lent' powers to Scotland, Wales and Northern Ireland and can take them back at any time".^[19]It is part of the UK's constitutional system that Westminster has 'unlimited sovereignty' which it can exercise without legal constraints, and that no Parliament can bind its successors. This doctrine was also set out in the Scotland Act^[20], which made clear that devolution did not affect the power of the Westminster Parliament over all matters, devolved and reserved.

The practical effect of this view is that Westminster can, at any time, by a simple majority in each House, change the powers of the Scottish Parliament or Government. There are no legal safeguards for the devolved institutions and the courts could not intervene. The position of devolved institutions is entirely contingent on the decisions of Westminster Governments and Parliament.

Despite these inherent features of the UK constitutional system, until 2016 there was some basis to argue that the United Kingdom could operate as "a multi-national country whose constituent parts enjoy different constitutional settlements and rights"^[21] with Scotland's democratically-expressed identity within that voluntary union respected. This system depended on the Westminster Government and Parliament exercising self-restraint in the use of their powers and abiding by the Sewel Convention, which provided a non-legal safeguard for devolved institutions, as set out in the box below.

The Sewel Convention

The Sewel Convention is a constitutional convention that describes how the UK Parliament will act when legislating on devolved matters (matters within the competence of the Scottish Parliament, Senedd Cymru/Welsh Parliament or the Northern Ireland Assembly), or changes to the powers and responsibilities of the devolved institutions.

Under the Sewel Convention, the UK Parliament will "not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament."^[22]

The Sewel Convention was observed from 1999. Although the Scotland Act 1998 was amended in 2016^[23] to mention the convention, in 2017 the UK Supreme Court ruled that that this did not convert the Convention into a judicially enforceable or legally binding rule, but rather that it remained only a 'political convention' which the UK Government could set aside without the risk of legal challenge or any binding sanction or remedy.^[24]

Since 2016, however, the underlying authority of Westminster within the UK system has become more prominent and more strongly asserted, and the difficulties of accommodating and securing any measure of national self-government for Scotland within this view of the Union has become clear. For example:

• the Westminster Parliament has repeatedly legislated on devolved matters – and to limit the powers of the Scotland's Parliament – without the consent of the Scottish Parliament, which voted against consent on seven occasions between 2016 and February 2022^[25]
• there was no meaningful engagement by the Westminster Government with the devolved governments on the crucial issue of Brexit or the manner of implementing it^[26]
• the absence of any legal or constitutional machinery to ensure effective intergovernmental working relations and respect for devolution has become clear, with the 2022 procedural reforms dependent, in the Scottish Government's view, on a "step change in attitude and behaviour from the UK government"^[27]
• the Westminster Government has repeatedly refused to acknowledge the electoral mandate of the Scottish Parliament for an independence referendum, ignoring both the principle of self-determination that underpins any notion of the UK as a voluntary union, and the precedent set for the 2014 referendum.^[28]

The Westminster Government's encroachment on devolution is also being felt in Wales. Concerned by the impact of the United Kingdom Internal Market Act 2020 on the competence of Wales' devolved parliament, the Senedd, the Welsh Government has sought to challenge the actions of the UK Government through the courts, with the Counsel General for Wales seeking permission to take the matter to the UK Supreme Court. The issue at stake for the Welsh Government, as it is for the Scottish Government, is for its democratically elected parliament to legislate in devolved areas without interference from the Westminster Parliament and the UK Government.^[29] The impact of the 'Westminster sovereignty' view of the Union on the Scottish Parliament and self-government in Scotland (as well as Wales) is obvious. Westminster sovereignty, exercised without restraint, constrains, undermines and destabilises devolution. The Welsh Government has called this "grace and favour devolution" or "get what you're given devolution".^[30]

Scotland's democracy and independence

This paper sets out the practical implications for Scotland of decisions taken in Westminster without regard to Scotland's interests; by contrast, what can be delivered when Scotland's democratic institutions work for Scotland; and the consequences if a centralised Westminster-based view of Scotland's place in the Union prevails.

The paper also demonstrates that only independence can provide the assurance that Scotland's democracy can thrive and its democratic institutions be protected.

The Scottish Government's view, shared by the Welsh Government, is that the United Kingdom should be recognised for what it is – a voluntary union of countries.^[31] As the Welsh Government has put it, the law should "recognise the constitutional and political reality".^[32] In the view of the Scottish Government, for as long as Scotland remains in the United Kingdom, its constitution should enshrine:

• the right of the people of Scotland to choose the form of government best suited to their needs
• the primacy of the Scottish Parliament on matters within its control, with protection against any Westminster decision to override
• the ability of the Scottish Parliament to choose whether and when to hold a referendum on Scotland's constitutional future
• the right of Scotland to become an independent country, should the people of Scotland vote for it to become one.^[33]

The Scottish Government believes that Scotland should exercise these powers to become an independent country.

Independence will ensure the people of Scotland will always get a government chosen by the people of Scotland and that those governments can exercise decision-making over all the key policy levers that impact on life in Scotland.

By becoming an independent country, Scotland and the UK can become partners on the basis of genuine equality, co-operating closely when it is in our respective national interests – as on many issues it will often be.

Independence will also provide an opportunity to build new or strengthen existing arrangements to co-ordinate and develop relationships between the nations and governments of these islands. These will enable cooperation where that is in our mutual interests.

For example, there is the potential to promote positive, practical relationships through forums like the British-Irish Council and the British-Irish Intergovernmental Conference. International regional bodies are a feature of other successful partnerships in the world (for example, the Nordic Council). While Scotland currently sits at the table of the British-Irish Council, "co-operating on the basis of equality as an independent country will be much, much better than the situation just now".^[34]

Whether in formal or informal structures, an independent Scotland will be able to negotiate and function from a position of parity with the rest of the UK and Ireland. Shared arrangements governed by the principles of equality, fairness and accountability will provide for mutual respect and parity of esteem, and strengthen relationships across these islands.

Scotland will continue to share both a history and future with people across the British Isles. The Scottish Government believes an independent Scotland would be a vibrant, diverse nation keen to work in partnership with the UK, fellow Europeans and the wider world. In contrast to Scotland's position in the Union, through which our influence is limited and curtailed, joining the EU as a member state would make Scotland an equal partner, able to take part fully in decision-making processes.