In 2014 a referendum on the future of Scotland in the United Kingdom was held that resulted in 55% voting to remain in the UK. The unionist argument was that by leaving the Union, Scotland would cease to be a member of the European Union, which was imposed with the Brexit referendum in 2016. It was patently obvious that had Scotland become independent then applied for membership, the government of the remaining UK would have vetoed the application. At that time that veto would have been supported by Spain confronted with a proposed referendum in Catalunya. That referendum took place ‘illegally’ in the autumn of 2017. Although over 90% of people able to vote favoured independence, the Madrid government declared the referendum unconstitutional, therefore illegal. This led to a close comparative examination of the positions of Scotland and Catalunya in the respective constitutions. They differ greatly in that Catalunya has never been independent since Spain has been a single country whereas Scotland became part of the Union through Acts of Union in 1706 and 1707; therefore repeal is, at least theoretically, possible. There is no comparison, a position confirmed by Spain with their government clearly stating there would be no veto to a Scots application for membership. As a ‘footnote’ it should be added that part of that support is the Spanish claim for the return of Gibraltar seceded to the UK in 1713 after its 1704 capture by Anglo-Dutch forces during the Spanish War of Succession. Whereas Catalunya is very different to Scotland, in fact Gibraltar is not entirely.

In 2016 the UK held an advisory referendum on membership of the EU. Despite being ‘advisory’ the prime minister of the UK, David Cameron, declared it binding and that the UK would leave the EU. Scotland had voted 62% in favour of remaining in the EU. The UK decision to leave is constitutionally questionable since Northern Ireland also voted in favour of remaining by over 55% and Gibraltar by almost 96%. The latter result was influential in the later end of any possible veto by Spain. The Scottish Parliament asked for consultation on the result which was ignored in the political chaos caused by Cameron’s resignation and the selection of a new Tory party leader, thus prime minister.
Careless words, or overemphatic interpretation of the use of the words ‘once in a lifetime’ by the then First Minister of Scotland, Alex Salmond, led to the position stubbornly adopted by successive prime ministers that justify them saying a new referendum would not be allowed.

The powers given to the Scottish Parliament with devolution did not give an absolute right to hold a referendum on independence, but likewise did not absolutely forbid it. Therefore, as part of policy at the time of the 2010 General Election, David Cameron resolved debate as to whether the Scottish Parliament had the power to legislate for a referendum relating to the issue of Scottish independence, as the constitution is a matter reserved to the UK Parliament. He allowed Scotland to hold a referendum before the last day of 2014. The two governments signed the Edinburgh Agreement, allowing temporary transfer of legal authority to the Scottish Parliament, giving them the necessary powers to hold the referendum. Under the powers temporarily transferred from Westminster under the Section 30 Order, which is secondary legislation made under the Scotland Act 1998 that may be used to temporarily or permanently increase or restrict the Scottish Parliament’s legislative authority, the Scottish Parliament adopted the Scottish Independence Referendum Act 2013. Thus, the referendum was held on 18 September 2014.

After the Brexit referendum, pressure to be allowed a second referendum built up on the basis of the wish to remain in and since to return to the EU. After failed negotiations, the executive of the Scottish government announced a referendum would be held on 19 October 2023. The argument for that is the Scottish government believes a referendum falls within devolved powers, although the UK government says it is a reserved matter. Despite repeated attempts to push for another vote, there has been no agreement with Westminster. Therefore, the Scottish executive decided to seek a judicial decision as to whether or not Scotland has the power to decide to hold a referendum. Even though the judges in the Supreme Court have ruled that there can be a referendum in strict legal terms, it still needs a political settlement over whether there should be a vote next October. The case was to establish whether or not a referendum could be held under the Section 30 Order rather than the actual grounds for that vote. The issue of removal of membership of the EU against the will of the Scots electorate is only presented within the approximately 8000 pages of evidence submitted by counsels of the respective governments.

Scotland’s Lord Advocate Dorothy Bain KC referred the case to the Supreme Court due to uncertainty over whether Holyrood could legislate for a second independence referendum while this was opposed at Westminster. Her case was that the vote would be politically neutral and that the motivations of government ministers should not be considered and that the Scottish government says a referendum would be ‘advisory’ thus have no legal effect on the Union. Sir James Eadie KC, the UK government’s independent barrister on legal issues of national importance, argued that it was obvious that the bill related to reserved matters, thus the Union, therefore it would fall outside of the competence of the Scottish Parliament, thus the Supreme Court should not rule on the case.

Support demonstrations have taken place in five European cities; in Brussels near the European Parliament, in Berlin under the Brandenburg Gate, in Rome in front of the Colosseum, in Paris at The Auld Alliance pub, in Munich in the central Marienplatz and Dublin. Outside of Scotland in the UK Oxford is among the places where support demonstrations have taken place, there was of course a group outside the Supreme Court in London. At each demonstration, a statement of solidarity with the Scottish people in support of the right of self-determination has been read out in the language of each country.

The decision made public today, Wednesday 23 November at 09.45, only says there cannot be a referendum without Westminster’s consent but does not say that a referendum cannot be held. That is a very carefully worded part of the ruling that does not remove the possibility of a political settlement over whether or not there should be a vote next 19 October or at another time agreed by both governments. This decision undermines the likelihood of a 2023 referendum and may somewhat inhibit the possibility of the Scottish government to directly negotiate with the UK government, however that would not work in the favour of Westminster. The ruling does not exclude an indirect advisory referendum taking place factored into the Scottish results of the forthcoming General Election at latest during January 2025. In the House of Commons and other places where political opinions were being expressed, including by both the prime minister and leader of the opposition stating that the matter is now closed, one repeated issue raised was that to say that is undemocratic. The union is voluntary, thus being forbidden to leave that voluntary relationship is to change its nature to that of an unfree relationship. Immediate comparison with Ireland at the end of the 19 century has been made by some commentators. Another question was asked about how the UK would have acted had the EU told the UK they could not hold a referendum in 2016? Thus far nobody has actually responded, preferring give only deflecting irrelevant replies.

Despite the Supreme Court decision, nothing is ruled in or out. It is now entirely in the political domain including the disadvantage for the UK government that this ruling indicates the probability that if they tried to prevent a referendum through the courts it would be highly likely the Supreme Court would not accept the demand for a ruling.

(image credit: Jamie McCaffrey, CC BY-NC 2.0)

Brian Milne
A Social anthropologist who specialises in the human rights of children. In practice Brian Milne has worked on the street with 'street children', child labour, young migrants, young people with HIV and AIDS. Brian’s work has taken him to around 40 countries, most of them developing nations; at least four of them have been in a state of conflict or war, thus taking him to the front line in two. Brian’s theoretical work began with migration; working on, written and publishing on citizenship and generally best known as an 'expert' on the human rights of children. Brian has a broad knowledge of human and civil rights for all ages, environmental issues and has been politically active most of his life. An internationalist and supporter of the principle of European federalisation.

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