Núria González Campañá
Lecturer in Constitutional Law at the University of Barcelona
A recent decision of the Supreme Court of the United Kingdom has once again put the spotlight on the Scottish independence movement and the flexible British legal system. Some lessons can be drawn from Spain and, above all, we can shed some constitutional complexes.
After the 2016 Brexit referendum, the Scottish Government has insisted on several occasions on the need to call a second independence referendum, as the exit from the European Union would have significantly altered the terms of the Union between Scotland and the rest of the United Kingdom, which, in its view, invalidates the 2014 result. However, so far, the British Government has refused to agree to hold a legal referendum, as was done eight years ago. Faced with this lack of agreement, First Minister Nicola Sturgeon showed her willingness to organize a referendum again in 2023 and the Lord Advocate (the Scottish Government’s chief legal advisor) raised a query to the UK Supreme Court on whether a bill on an advisory referendum on Scottish independence would fall within the powers of the Scottish Parliament. That is, whether Scotland can unilaterally organize such a referendum.
On 23 November 2022 the Supreme Court published its decision. Its arguments can be summarized as follows: what must be elucidated is whether an independence referendum in Scotland concerns (“relates to”) matters reserved to the British Parliament of those mentioned in the Scotland Act 1998. For if that is the case, according to section 29(2)(b) of that Act, the organization of the referendum would be outside Scotland’s powers. Paragraph 1 of Schedule 5 states that the Union between the Kingdoms of Scotland and England and the sovereignty of the British Parliament are included in the reserved matters.
To decide whether an advisory independence referendum “relates to” reserved matters there must be some connection, but not necessarily a direct and legal effect between the rule and the reserved matters, the Court cautions. The objectives and effects of the aforementioned rule must be examined. As regards the objectives, they are made explicit in the bill: to organize a legal referendum on independence, which, “evidently”, says the Court, is related both to the Union and to the sovereignty of the British Parliament (para. 77). And, on the effects, the Court rejects that only the direct effects prescribed in that rule should be considered. The practical consequences must also be taken into account. Thus, even if the referendum is not self-executing, it cannot be equated with a mere public consultation exercise. Here the Court agrees with arguments of the Italian Constitutional Court developed in Judgment 118/2015 on the unconstitutionality of an independence referendum in Veneto. The political importance of the referendum cannot be disdained, as the history of referendums in the United Kingdom has shown and as has also been admitted by the Court in the past (para. 79). Thus, a legal referendum, even if it did not generate any concrete obligation for the UK Government, would constitute a democratic expression and would strengthen or undermine the democratic legitimacy of the Union, depending on the sign of the response, and would support or detract from the democratic credentials of the Scottish independence movement. Consequently, it is clear to the Court that the organization of such a referendum concerns matters reserved to the British Parliament and is therefore excluded from Scotland’s powers.
Finally, the Supreme Court also examines an argument raised by the SNP concerning the right to self-determination. The Court rejects that this public international law right has any application in this case and refers to the well-known 1998 Supreme Court of Canada opinion on the secession of Quebec. The British High Court understands that the arguments applied then to Quebec are equally applicable to Scotland (para. 89). Following the Canadian reasoning, the British Supreme Court assumes that the right to external self-determination (which could lead to secession) applies only in situations of former colonies or oppressed peoples, a situation that is not comparable to Scotland, endowed with institutions of self-government (internal self-determination).
In short, if the Scottish Government wants to legally organize a new independence referendum, it will have to reach an agreement with the British Government. In any case, even if no agreement is reached, it does not seem that the Scottish Government intends to initiate an insurrectionary path. However, the SNP may present the next general election in Scotland as a plebiscite.
It is a commonplace in comparative constitutional law to speak of the flexibility of British constitutionalism and it has even been argued, when analyzing the various ways in which the legal systems of liberal democracies deal with secession demands, that the British model, together with the Canadian model, represent a new paradigm, far removed from the rigidities of the classic American and continental European models. However, there are more similarities than differences between the old and the new paradigm and this recent decision proves it. The so-called democratic principle cannot, on its own, alter the scheme of distribution of powers and what is in the common interest must be decided by the bodies that exercise the sovereignty of the country. It never hurts to remember these basic principles in Spain.
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