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

Scotland as a nation

Scotland is one of Europe's oldest nations. Following the integration of the Parliament of England and Wales and the Parliament of Scotland in 1707, Scotland remained a nation within the new Union state. The nationhood of Scotland and the multi-national character of the United Kingdom have been widely recognised, including by the UK Government, by parties across the political spectrum and by civic society in Scotland.^[1] Annex A contains a brief summary of the constitutional history of the nation of Scotland.

Scottish nationhood is more than just a matter of history or a set of national institutions, however. It is also about shared values and aspirations, and follows from the idea of the people of Scotland as a distinct political community, with a right to choose their own future.

Before the independence referendum, the leaders of the parties in Scotland campaigning against independence made a joint statement supporting Scotland's right to choose-

Power lies with the Scottish people and we believe it is for the Scottish people to decide how we are governed.^[2]

This understanding of the constitutional position of the people of Scotland within the United Kingdom is not seriously disputed. It has long been accepted by successive UK Governments, and by the wider political community, that the people of Scotland have the right to determine Scotland's continued place in the UK.^[3] The Claim of Right for Scotland, signed in 1989 by a range of leading figures and organisations from across political and civic life in Scotland, begins by acknowledging-

the sovereign right of the Scottish people to determine the form of Government best suited to their needs.^[4]

The Claim of Right has since been recognised and endorsed by both the Scottish Parliament and the UK Parliament.^[5] Scotland's continuing participation in the Union is based on the ongoing agreement and consent of the people that live in Scotland.^[6]

This is because the United Kingdom is not a unitary nation-state; it is a Union state. It is a multi-national country whose constituent parts enjoy different constitutional settlements and rights.^[7]

It is compatible with being a Union state for constituent parts of that state to have a recognised right to become independent, in line with the wishes of the people. The United Kingdom recognises, as a matter of both international^[8] and domestic law,^[9] the right of the people of Northern Ireland in certain circumstances to hold a referendum on Irish reunification; and the UK is legally obliged-again under international and domestic law-to implement unification if that is the will of the people of Northern Ireland.^[10]

Even those that support Scotland's continuing place in the Union recognise Scotland's right to choose. Following the independence referendum in 2014, the Smith Commission brought together the political parties represented in the Scottish Parliament to agree proposals for further devolution. The Smith Commission took place in the context both of all participants accepting the outcome of the independence referendum, and of three of the five parties represented having campaigned for Scotland to stay part of the United Kingdom. Nevertheless, under its heads of agreement, the Commission concluded-

It is agreed that nothing in this report prevents Scotland becoming an independent country in the future should the people of Scotland so choose.^[11]

In 2018, the Constitution Reform Group, a cross-party association of parliamentarians, introduced into the House of Lords an Act of Union Bill intended to give effect to the principle that "each of England, Scotland, Wales and Northern Ireland is a unit that both can and should determine its own affairs to the extent that it considers it should".^[12] Their Bill would have placed in law the principle that each part of the UK-

remains a constituent nation or part of the United Kingdom unless and until a majority of the people of that nation or part vote to leave in a referendum.^[13]

The constitutional history of the UK and its nations has been exemplified by change as much as it has continuity. The UK's constitution is said to be based on the idea of parliamentary sovereignty: that the UK Parliament is the sole source of sovereignty, and that the Crown-in-Parliament can make or unmake any law whatever. This theory of the constitution is the product of Victorian legal thinking, and it has been questioned whether it remains an accurate or sensible description of the constitutional reality in the UK.^[14]

Scotland has a historic constitutional tradition different from that described by the doctrine of parliamentary sovereignty. In Scotland, sovereignty is traditionally said to lie with the people, and to favour a limited rather than absolute form of authority, with the right to rule being subject to the consent of the people.^[15] The question has been asked why the constitution of a Union state should reflect only one of the constitutional traditions of its constituent nations.^[16]

More recent developments also require to be accommodated within a correct understanding of the constitution of the UK and its nations. Devolved governments and parliaments in Scotland gained their democratic legitimacy from referendums and maintain them through regular elections.^[17] It has been accepted that parliamentary sovereignty alone would not justify their abolition. Following the recommendations of the Smith Commission, provision respecting their permanence was included in the Scotland Act 2016, promoted in the UK Parliament by the UK Government.^[18]

The principle of the sovereignty of Parliament needs to take account not only of the devolution settlements, but also of UK membership of the European Union, of international obligations and international human rights regimes, and of recent case law, which suggests other principles that require to be taken into account when assessing what the constitution requires of governments and parliaments in the 21st Century.^[19]

Despite this, the UK Government has recently sought to secure recognition in statute that parliamentary sovereignty is a permanent legal principle in the UK's legal systems.^[20] But just as the principle of parliamentary sovereignty emerged when it was understood to be an accurate description of the UK's constitution, enshrining it in law would prevent it changing or being replaced or adjusted where it is no longer an accurate description of the modern constitution.

It is the Scottish Government's view that parliamentary sovereignty, whatever its historical origins or traditional content, is no longer an accurate description of the constitution in Scotland or the UK. As the Welsh Government argues-

If … it is accepted that sovereignty (some of which should be shared) lies with each part of the UK, the traditional doctrine of the sovereignty of Parliament no longer provides a firm foundation for the constitution of the UK.^[21]

The people of Scotland (and of the other parts of the UK) have the right to determine the form of government that best suits their needs, and the constitution of the Union state must recognise that.