Scottish Affairs CommitteeWritten evidence submitted by Michael Keating, Professor of Politics, University of Aberdeen

There has been some question as to whether a referendum to permit the Scottish Government to negotiate with the UK Government for Scotland to become independent would be legal and constitutional. These are two slightly different questions, because of the nature of the UK constitution. There is no single written document to which one can refer to resolve constitutional issues. Some of the constitution and many of the procedures are written down in statutory law, while others are matters of convention and understanding. A third consideration concerns democracy.

The Law

The issue of legality is a narrow one, whether this would be permitted under the Scotland Act. This clearly states that the Union is reserved to Westminster, so that the Scottish Parliament could not, under its terms, unilaterally secede from the United Kingdom. This, however, is not what is proposed; rather the proposal is to give the Scottish Government a negotiating mandate. I do not think that this would in itself violate the legislation, although the point is not clear and an argument might be made to the contrary.

The Constitution

The constitutional argument is more complex and hinges on interpretation rather than a simple reading of the law. Westminster governments and English lawyers have usually taken the view that the Westminster Parliament is supreme on all matters and that this supremacy is the fundamental basis for the constitution. Scottish constitutionalists, on the other hand, have tended to see the United Kingdom as a union rather than a unitary state. Scotland never surrendered its sovereignty and is free to resume it when its people so choose. The Scottish Parliament, established by referendum, is the expression of this and entitled to take the initiative on constitutional change, although not to act unilaterally since that would violate the principles of union.

Interestingly, in spite of the Westminster doctrine, the principle of self-determination has been conceded by prominent unionists. Margaret Thatcher wrote that Scotland as a nation has an undoubted right to national self-determination and to independence if Scots should chose it. John Major declared that no nation could be kept in a union against its will. Almost the entire Scottish Parliamentary Labour Party accepted the sovereignty of the Scottish people when they signed the Claim of Right in 1988. Even opponents of independence nowadays usually share this notion. It must therefore be accepted as one of the shared understandings of the constitution, although not written into law. It follows logically that if the Scottish people have the right to self-determination, they must have the means to exercise the right. There is no more proper way to do this than by a referendum called by the national parliament, and endorsed by the people as a whole. If only Westminster can decide on the holding of an independence referendum, including its timing and wording, then the claim to self-determination is meaningless.

Democracy

The best international guidance we have on these matters comes from the Canadian Supreme Court’s judgement in the Quebec secession reference. The court declared that the wording of the Canadian constitution did not give Quebec the right to secede. On the other hand, it ruled that, if the people of Quebec did so decide, by a clear majority on a clear question, then the government of Canada would have a duty to negotiate. It came to this conclusion by applying the principles of democracy, to which the Constitution has to bend.

In Scotland, a government with a mandate to hold a referendum at a time announced before the election, proposes to put the question to the people. This is an exercise in the proper workings of democracy.

The Question

There is always going to be an argument about the question, since independence can mean different things, depending on the relationship to the rest of the United Kingdom and Europe, on matters like border controls, the currency and joint institutions. There is nevertheless a case for a clear question, such as that proposed in 2007 ‘I agree that the Scottish Government should negotiate a settlement with the Government of the United Kingdom so that Scotland becomes an independent state’. The political parties will then offer their own interpretations of this and of the consequences, for the voters to decide.

Opinion polls have regularly suggested that the largest body of voters in Scotland favours neither the status quo nor traditional independence, but what have become known as ‘devolution-max’. Considerations of democracy indicate that they should be able to choose this option.

The Consequences

The referendum would on a mandate to negotiate. Any settlement, whether independence or devolution-max, would have to be negotiated with the UK Government and ratified by both parliaments. If negotiations were to break down completely, we would beyond the limits of constitutionalism.

Conduct of the Referendum

The Electoral Commission has a proven record and a reputation for impartiality. It would be appropriate for it to be given the responsibility for the supervision of the referendum.

November 2011