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

A voluntary association of nations

The Welsh Government has set out its understanding of the relationship between the nations of the United Kingdom and the Union state. If the UK is truly a voluntary association of nations, it argues that-

it must be open to any of its parts democratically to choose to withdraw from the Union. If this were not so, a nation could conceivably be bound into the UK against its will, a situation both undemocratic and inconsistent with the idea of a Union based on shared values and interests.^[22]

The Scottish Government agrees with this analysis.

Scotland has already demonstrated its right to choose its constitutional future, in the independence referendum in 2014. Every vote in that referendum, whether for Scotland to become independent or not, was part of an act of self-determination by the people of Scotland. The Scottish Government never suggested that it could secure independence for Scotland without a decision of its people, and the UK Government accepted that Scotland's continued place within the United Kingdom required the consent of its people.

Scotland's current place in the United Kingdom therefore rests on the principle that it is for the people of Scotland to decide on their constitutional future, and on the outcome of the independence referendum in 2014. The outcome of the 2014 referendum was accepted by both governments, and by the people of Scotland and the UK; but Scotland's ability to decide its constitutional future cannot be permanently foreclosed by it. Either the people of Scotland continue to have the right to choose-and to decide to make that choice again-or they do not have an effective right to determine their future. Without such a right, Scotland would be bound indefinitely to the Union without any possibility of the people who live here to express their approval, or otherwise.

The Scottish Government believes that it is for the people of Scotland alone to make a judgment about when they should again make a decision about their future; and believes that the people express their judgment on this matter through elections and through their democratic representatives.

The alternative is that such decisions could only be made by the UK Government alone, or by Westminster. This would leave no mechanism for the people who live in Scotland, as a distinct political unit, to express their desire for a future referendum on independence or on any other constitutional reform. The decision would not be theirs to take.

It has never-until now-been suggested that these decisions are for anyone other than the people of Scotland. It has been said of the principle of self-government that-

the people cannot decide until someone decides who are the people.^[23]

For questions of Scotland's constitutional future, who the people are has been conclusively decided. In 1979, 1997 and 2014 the electorate for referendums about Scotland's place in the UK was the people living in Scotland alone. The decision was for them, not the UK as a whole or any other part of it, to take.

This is what it means for the people of Scotland to have the right to decide on their future. It is not enough that they can and have made choices in the past. Their right to make those choices in the future and at a time of their choosing must be respected.^[24]

Given that the people of Scotland have voted on manifestos containing pledges on an independence referendum, and have elected a Scottish Parliament where a majority of the MSPs support such a referendum, it risks substantial damage to democracy in Scotland, and the UK as a whole, if the UK Government continues to refuse to acknowledge that mandate, by refusing to enter into discussions with the Scottish Government.

To their credit, in 1997 and 2014 UK Governments acknowledged and accepted mandates delivered by the people of Scotland through elections, and enabled constitutional referendums to take place. The current UK Government's commitment to Scotland's right to choose will be tested by its willingness to acknowledge the Scottish Government's current mandate, reinforced in the recent General Election, and enter into discussions about it.

The Scottish Government does not believe that it is for the UK Government to decide whether to respect a mandate given by the people of Scotland to their government, endorsed by their Parliament.

The Scottish Government believes that both the UK Government and the law should now recognise the constitutional and political reality: that decisions about whether to hold a referendum on Scotland's constitutional future are for the Scottish Parliament, as the democratic voice of Scotland, to make.

This does not mean that the current Scottish Government proposes, or any Scottish Government would propose, that such referendums should become a regular part of the governance of Scotland. No political party or Scottish Government could expect to receive a mandate from people living in Scotland if it proposed an unwarranted referendum. If one did, it would be a matter to be resolved between the Scottish people and their Parliament. A Scottish Parliament which insisted on a referendum without the circumstances to justify it could expect to receive the verdict of the Scottish people on their judgment at parliamentary elections, as well as in any referendum itself. That is the nature of democratic accountability, and there is no reason that it should apply any differently to the question of whether a referendum should be held.

To make real this relationship between the people of Scotland and their decisions about their constitutional future, three things need to be enshrined in law-

• the right of the people of Scotland to choose the form of government best suited to their needs,
• the ability of the Scottish Parliament to choose whether and when to hold a referendum on Scotland's constitutional future, and
• the right of Scotland to become an independent country, should the people of Scotland vote for it to become one.

The Scotland Act 1998 recognises that the devolution settlement can be changed to transfer competences to the Scottish Parliament. There has been a consistent practice since devolution of the Scottish and UK Governments working together to consider and negotiate proposed adjustments to the devolution settlement. There is a well-established process for jointly producing and considering Scotland Act Orders and provisions in Bills for adjusting the devolution settlement. The Scotland Act 1998 makes clear that both the Scottish and UK Governments and Parliaments have a role in, and responsibility, for this process.

Powers to hold a referendum on independence can be transferred by Order under section 30 of that Act, as they were in 2013, or by an Act of the UK Parliament. Annex B sets out draft provisions which would achieve this in a way that reflects the principles outlined in this paper.

These measures would enshrine in law the United Kingdom as a voluntary association of nations, and bring to life the promise that the people of Scotland-as has been repeatedly asserted-enjoy the right to choose their future.