The Legal and Political Authority of the

Scottish Independence Referendum

Ruairidh D. Morrison

2015141M

Advisor: Professor Adam Tomkins

Dissertation in Law

LLB Hons.

Academic Session 2015/2016

Word Count: [9692]

1

TABLE OF CONTENTS

Acknowledgements…………………………………………..3

Introduction……………………………………………………4

Law and Politics................................................................7

Chapter I: The Authority to Hold the Referendum….10

Chapter II: The Importance of Political Authority…………...23

Chapter III: Quebec: A Comparative Analysis……...…………34

Conclusion…………………………………………….......42

Bibliography…………………………………………………45

2

Acknowledgements

I am grateful to my supervisor, Professor Adam Tomkins, for his guidance and

support while writing my dissertation.

I would also like to extend my gratitude to my parents, Fiona and John, for their

encouragement and guidance throughout the process.

3

Introduction

4

The Scottish Independence referendum brought the complex relationship between law

and politics in the British Constitution into mainstream public discourse. The

seriousness of the complex constitutional questions that Scottish independence would

cause was triggered by the landmark 2011 SNP election victory. With an ordained

commitment to hold a referendum on independence, Scotland’s two governments

stood against one another. In this paper I will examine the complicated relationship

between law and politics within the British constitutional order. I will seek to unpack

the various legal and political quandaries that arose during the campaign and

demonstrate the balance that was struck between the two.

This dissertation will principally argue that while both law and politics were

important to ensure the smooth running of the referendum campaign, the role of

politics was fundamentally of more influence than the role of the law. In short, I will

be arguing that politics drove the law, which functioned as a facilitative device to

ensure that democracy could function. Underlying this central thesis, however, is a

recognition that the relationship between law and politics in the UK is one that is

related; that the two concepts are incapable of formal separation and are

interdependent.

Thus, my response begins with a brief mapping of law and politics as concepts in the

UK. I will show their intertwined nature in British constitutional theory. Having

established this, I will work chronologically to map the progression of the referendum

beginning with the aforementioned 2011 election. I will consider the positions of both

Westminster and Holyrood in relation to the referendum, outlining why the legal

authority lay with Westminster. At this point it will be necessary to take a detour to

analyse the complex constitutional relationship Scotland has with the UK, following

the Union Agreement. Having firstly established that legal authority lay with

5

Westminster, I will then go on to discuss my central thesis, proving that political

power was more important than legal authority, examining the Edinburgh Agreement,

the section 30 Order in Council and the constitutional relationship of the Scottish

people with the rest of the United Kingdom. Finally, the last chapter is dedicated to a

comparative analysis with Quebec and Catalonia, which I submit are both examples

of a more legalised approach to secession questions. This will further support my

argument about the influence of political authority in the Scottish referendum.

6

Law and Politics in the United Kingdom

7

Law and politics are interdependent disciplines, inseparable practically and

theoretically. To represent them as competing principles would be a false initial

premise: ‘Any separation between legal and political power is purely conceptual…

there can be no real legal authority without some political power… [and] there is

rarely real political power without some political authority.’1 The relationship

between the two concepts does not always fit perfectly, and on occasion they clash

posing real practical problems. As Tomkins notes, ‘Law and politics collide and

combine in a dazzling variety of (not always compatible) ways’.2 At its broadest

encapsulation, law and politics can encompass the academic relationship between the

two, the practical relationship or theoretical relationships. The relationship between

the two in relation to the question of Scottish independence depends on how one

views the question. The reality is that the issue is neither wholly political nor wholly

legal. It contains the essence of both.

The Scottish question is, therefore, both a political and a legal one. On the one hand it

concerns the democratic expression of the Scottish people; yet on another it requires

legal formality to enable legitimacy. As the dissertation progresses, the intertwined

relationship of the two concepts will become apparent. Indeed much of the political

disagreement that occurred at the outset was based on competing understandings of

the law. Within the framework of the UK’s unwritten constitution this becomes more

interesting, as political expression is often the vehicle for effecting the change of law.

It has been said of law that it ‘is neither separate from nor superior to politics, but is

itself a form of political discourse.’3 This, to me, is an accurate expression of the

1 E. Christodoulidis et al, Jurisprudence: Themes and Concepts (London 2007), 4. 2 A. Tomkins ‘In Defence of the Political Constitution’ (2000) 22(1) Oxford Journal of Legal Studies 157, 169. 3 G. Gee & G. Webber ‘What is a Political Constitution?’ (2010) 30(2) Oxford Journal of Legal Studies 277.

8

relationship between the two in the UK; the two are interwoven in both theory and

practice. It is upon this premise that I my thesis begins.

9

Chapter I: The Authority to Hold the Referendum

10

Introduction

‘We think the people of Scotland should decide on the nation’s future in a democratic

referendum’.4 The emphatic election victory of the SNP in 2011 cast doubt on

Scotland’s future constitutional relationship with the United Kingdom (UK). What

ensued was a large amount of political disagreement between two entirely opposing

regimes: on the one hand, a left-leaning, nationalist government in Edinburgh; on the

other, a centre-right, Unionist coalition in Westminster. However this political dispute

related also to law; for the foremost question which had to be answered was who had

the legal authority to put the question to the people of Scotland. Many argued that the

legal authority to ask the question was a power reserved to Westminster. There was,

though, an alternative view; namely that the power to ask the question was one vested

with the Scottish Government, in Holyrood. Thus the political disagreement was

inexorably one of a fundamentally legal nature, too. This chapter begins by briefly

setting out the legal positions of the two governments. Thereafter, I will illustrate that

the legal authority to hold the referendum did indeed lie with Westminster. I will also

analyse an academic argument that accords constitutional status to the Union

Agreement, illustrating why it is false and legally incorrect. In developing my

argument, I have engaged in a detailed analysis of both the Scottish Government and

Westminster’s starting positions, relying on a variety of sources, including case-law,

academic commentary and speeches from renowned parliamentarians. Premising my

analysis, however, I will set forth the positions of both governments.

The Positions of Holyrood and Westminster

Both positions relied on differing interpretations of the Scotland Act. The position of

the UK Government was made clear in their consultation paper, Scotland’s 4 ‘Re-elect a Scottish Government Working for Scotland’, SNP Election Manifesto 2011, p. 28.

11

Constitutional Future, in which it was said it would be ‘outside the powers of the

Scottish Parliament to legislate for a referendum on independence at present and that

any such legislation would be declared unlawful by the courts.’5 This was because

‘legislation providing for a referendum on independence plainly relates to the Union

of the Kingdoms and is therefore outside of the Scottish Parliament’s legislative

competence’6, under Schedule 5 of the Scotland Act 1998.7 The Scottish Government

position, outlined in Your Scotland, Your Referendum,8 was markedly different. The

Scottish Government belief was that they had a ‘clear’9 mandate to hold a referendum,

on the basis that such a referendum would be about extending their powers and so

within their legislative competence.10 Relying on the belief that the purpose of the

referendum was merely to ascertain Scottish public opinion, the Nationalist

Government crafted an argument suggesting that its action would be intra vires and so

within their legislative competence. The legal disagreement thus had an inherently

political dimension, illustrating the interdependency of the two concepts, particularly

in this case.

The novel interpretation of the Scottish Government of section 29 of the Scotland Act

is difficult to reconcile with the more logical argument promulgated by Westminster.

Nevertheless, it was a theory that garnered support from many prominent

commentators and hence cannot be summarily dismissed. In the following section, I

will advance my claim that Westminster had legal authority by analysing the

arguments of both sides.

5 Secretary of State for Scotland ‘Scotland’s Constitutional Future’ (January 2012) Cm 8203, 9. 6 Ibid, 10. 7 Scotland Act 1998, Schedule 5(1), paragraph 1(b). 8 Scottish Government Publication ‘Your Scotland, Your Referendum’ (January 2012). 9 Ibid, [1.9]. 10 Ibid, [1.5].

12

Analysis of the Arguments

The core of the Scottish Government’s claim was based upon the distinction between

binding and advisory referenda. Indeed, there is a precedent of both having existed in

the UK. As MacCormick said: ‘The Scottish Executive has unlimited powers to

negotiate with the Westminster Government about any issue which could be the

subject of discussion between them, therefore it could seek an advisory referendum.’11

In a similar vein, Loveland concurs, arguing: ‘For the Scots [sic] Parliament to seek to

discover if the electorate would welcome further constitutional reform does not

necessarily amount to constitutional reform per se.’12 Related very closely to this idea,

was a blog post co-authored by a group of academics, Anderson et al, who echo this

view, saying that the UK Government’s view ‘conflates the intention of the Scottish

Government with the intention of the Scottish Parliament’.13 This is the most plausible

argument to support the Scottish Government’s contention as MSPs could vote in

favour of holding a referendum for a variety of reasons. Indeed, many Unionists

favoured a referendum to put the issue to rest. Parliament’s intention would not,

therefore, be to dissolve the Union; rather it would be to ascertain public opinion.

Within this framework, a hypothetical argument might be advanced on the basis of

Lord Brodie’s statement in Imperial Tobacco14 where he said: ‘The scheme whereby

legislative competence is conferred on the Scottish Parliament is one where what is

not specifically identified as being outside competence is devolved’.15 Consequently,

11 N MacCormick, ‘Is There a Constitutional Path to Scottish Independence?’ (2000) 53 Parliamentary Affairs 72.12 I. Loveland, Constitutional Law, Administrative Law and Human Rights: A Critical Introduction 4th edn. (Oxford, 2006), 441. 13 ‘Gavin Anderson et al: The Independence Referendum, Legality and the Contested Constitution: Widening the Debate’, G. Anderson et al, 31st January 2012, https://ukconstitutionallaw.org/2012/01/31/gavin-anderson-et-al-the-independence-referendum-legality-and-the-contested-constitution-widening-the-debate/, accessed on 1st March 2016. 14 Imperial Tobacco Ltd. v The Lord Advocate [2012] CISH 9.15 Ibid, [167].

13

as advisory referenda are not specifically reserved in the Scotland Act, they must be

devolved to Holyrood. While this line of argument seems prima facie persuasive, it is

not one to which I adhere; nothing can relent from the fact that it conflicts with the

basic provisions regarding legislative competence in the Scotland Act. I will now

tackle this ‘purpose argument’ put forward by the Scottish Government.

When ascertaining the purpose of an Act of the Scottish Parliament, the court looks to

a broad range of background materials, including reports, policy memoranda and

ministerial statements.16 Similarly, Lord Reed said in Imperial Tobacco that ‘[t]he

focus is […] primarily upon why the provision has been enacted rather than upon

what it does, although the latter is also relevant.’17 It is an indisputable truth that the

SNP had the aim of severing Scotland’s tie with the Union; consequently any

referendum held would be one with the purpose of achieving independence. The 2011

manifesto makes explicitly clear their position: ‘A yes vote will mean Scotland

becomes an independent nation’.18 Why, therefore did the SNP want to hold a

referendum? The answer is logically to secure independence for Scotland and not, as

some have suggested, to ascertain public opinion on the issue. I will now turn to a

body of academic and legal commentary to support my proposition.

Professor Tomkins makes very clear that the purpose was to dissolve the Union: ‘The

purpose of the referendum for which the First Minister claims his famous mandate is

unambiguously to deliver independence. It is not to begin negotiations with a view to

exploring the possibility of rethinking the Union. It is to deliver independence: to

16 Martin v HM Advocate [2010] UKSC 10 [25]. 17 Imperial Tobacco Ltd. v The Lord Advocate [2012] CISH 9. 18 SNP Manifesto, 2011, p. 28.

14

break the Union, to break up Britain.’19 Professor Alan Page concurred in oral

evidence he gave to the Scottish Affairs Committee:

When regard is had to the effect of the legislation, including its effect

on the reserved matter of the Union, that it becomes clear in my opinion

that its true purpose is not to solicit the views of people in Scotland on

a proposal about the way Scotland is governed, but to further the

Scottish government's aim of achieving independence.20

Given the political commitment of the SNP, it is unrealistic that the courts would

attach much weight to the smokescreen they used of ascertaining public opinion. If

they were to do so, it would be to alter fundamentally the nature of devolution and

would challenge the credibility of devolution in the future. This is an enterprise which

the courts would be unwilling to engage in, as Iain Jamieson suggests: ‘it would be

difficult, realistically, for a court to take the view that the purpose of the Bill was

merely to carry out a market research exercise’.21

When viewed against the backdrop of the Scotland Act, the distinction between

binding and advisory referenda becomes meaningless. While both can exist in theory,

they are subservient to the unequivocally clear provisions of the Scotland Act. The

proposed referendum related to the Union – regardless of its binding nature – and so

19 ‘The Scottish Parliament and the Independence Referendum’, A. Tomkins, 12 th January 2012, https://ukconstitutionallaw.org/2012/01/12/adam-tomkins-the-scottish-parliament-and-the-independence-referendum/, accessed on 2nd March 2016. 20 The Referendum on Separation for Scotland: Oral and written evidence, Session 2010-12, HC 1608, Ev 166.21 Jamieson, ‘Playing Politics with the Law’ (n103) at 63 in, I. Halliday, ‘The Road to the Referendum on Scottish Independence: the role of law and politics’, (2015), 15.

15

would fall foul of the reserved matters in Schedule 5. Professor Tomkins again

explains this in quite clear terms:

Now, Schedule 5 to the Scotland Act reserves “the Union of the

Kingdoms of Scotland and England”. Thus, an ASP that related to the

Union would, quite clearly, not be law… Would an ASP authorising a

referendum on Scottish independence be one that related to the Union?

Of course it would.22

Thus the clear division that exists between reserved and devolved powers precludes

any discussion about the nature and character of a referendum. As the Scotland Act

reserves the ‘Union of the Kingdoms of Scotland and England’23, it is an unnecessary

exercise to distinguish between advisory and binding referenda. Finally, to support my

supposition, there is a statement from the Secretary of State for Scotland at the time

the Scotland Act was being debated in Parliament, who said that ‘a referendum that is

purported to pave the way to something ultra vires is itself ultra vires’.24 This is yet

another detail in a strong line of opinion that supports my central argument: namely,

that the legal authority to hold a referendum lay with Westminster. Before I conclude,

however, I will contest some of the other, less influential arguments from supporters

of the Scottish Government’s position.

As Anderson et al argue, the decision in Robinson25 meant that devolution statutes

should be read using a ‘generous and purposive’ approach given their constitutional

22 Ibid. 23 Scotland Act 1998, Schedule 5(1), paragraph 1(b). 24 Hansard HC Deb vol 312 col 257 (12 May 1998). 25 Robinson v Secretary of State for Northern Ireland [2002] UKHL 32, [2002] NI 390.

16

nature.26 According the statute this level of immunity from stricter investigation would

enable the Scottish Government to legislate. The argument, once again, is

unconvincing for a variety of reasons spelt out in the aforementioned Imperial

Tobacco case. The two can be differentiated on a contextual level; Robinson was

grappling with the reality that devolved government in Northern Ireland might once

again be suspended. And, let us not forget that the Northern Ireland Act had been

implemented in the backdrop of the Belfast Agreement; essentially to give effect to

said Agreement. As the House of Lords Select Committee on the Constitution noted:

‘There would be no immediate question of devolution being suspended, no issue

would arise as to "governmental vacuum", and there is of course no equivalent in

Scotland of the role that the Belfast Agreement has played in Northern Ireland.’27

Furthermore, Lord Brodie seems to quash this argument when he opined: ‘the

principle derived from Robinson that legislation should be interpreted generously and

purposively … is not readily applicable to resolving the issue of what has been

devolved as opposed to what has been reserved.’28 It is an unconvincing argument

advanced by Anderson et al because it fails to differentiate between the two cases.

Imperial Tobacco suggests, albeit in guarded language, a degree of settlement attached

to the Scotland Act which cannot be subjected to judicial tweaking: ‘the Scotland Act

was intended, within carefully defined limits, to be a generous settlement of legislative

authority’.29

There is perhaps an argument that can be put forth on the basis of section 101(2) of the

Scotland Act that a provision of an ASP is to be read as narrowly as possible for it to

26 Ibid, [11]. 27 House of Commons Scottish Affairs Committee, ‘The Referendum on Separation for Scotland: Oral and written evidence’ Report of Session 2010-12, 4th September 2012, HC 1608, Ev 166, [28]. 28 Imperial Tobacco Ltd. v The Lord Advocate [2012] CISH 9, [182]. 29 Ibid, [15].

17

be within competence. However, for the reasons I have given, I do not believe this to

be possible, given the division of reserved and devolved powers in the Scotland Act.

The House of Lords Select Committee agree, and, accordingly, this argument can be

hastily dispensed with.

Finally there is a broader contention under the principle of democracy that a

democratic legislature is better placed than a court when adjudging what is in the best

interests of a country. As Lord Hope submitted in the AXA30 case: ‘‘…the elected

members of a legislature… are best placed to judge what is in the country’s best

interest as a whole… This suggests that the judges should intervene, if at all, only in

the most exceptional circumstances.’31 This point in its broadest understanding is of

course true; democracy would be worthless if judges were able to rule on every action

a legislature could take. However, democracy would be equally worthless if

legislatures acted in a manner that was contrary to the rule of law. In the same

judgement, Lord Hope said ‘the Scottish Parliament’s power to legislate is not

unconstrained. It cannot make or unmake any law it wishes’.32 Moreover, as Professor

Tomkins explains: ‘…winning a Scottish parliamentary election entitles a party to

govern subject to the rule of law; it does not entitle a party to seek to rule in a manner

that disregards the legal limits to its powers’.33 Democracy is not a viable excuse for a

government to act in a manner that is ultra vires; for the Scottish Parliament to

legislate to hold a referendum would be outside the limits of its legal powers.

Fundamental Law Argument

30 AXA General Insurance Ltd v HM Advocate [2011] UKSC 46.31 Ibid, [49]. 32 Ibid, [46]. 33 Scottish Affairs Committee ‘The Referendum on Separation for Scotland: Oral and written evidence’, 155.

18

It is necessary at this stage to summarise briefly a broader counter-argument that

affords the Union Agreement constitutional status. Such a proposition elevates articles

of the Treaty of Union to a fundamental law status. If true, such a view would call

into question any attempt for Scotland to secede from the UK, even in the face of a

Yes vote. It is, however, a view which is unpersuasive in this context, despite being

applicable to other issues.

That the UK has a written constitution and a constitutive document is certainly a

radical proposition. T. B. Smith’s view that ‘Scotland surrendered her sovereignty—

not to England, but to the new Kingdom of Great Britain—in reliance on a

fundamental written constitution’34 is in sharp contrast to orthodox academic thought

and a body of judicial precedent. Nonetheless it is a view that carries some academic

sway. MacCormick has outlined his own take on sovereignty, which again affords a

special status to the acts of Union: ‘[w]hatever the Queen in Parliament enacts, unless

in derogation from the justiciable limits set by the Articles of Union, is law.’35 While

Elizabeth Wicks holds to a belief affording the Articles of Union special character

because they are constituent in nature, and, logically, a statutory body cannot repeal

the statute that created it.36 Finally, Lord Hope did not summarily dismiss the idea

when saying: ‘… the argument that the legislative powers of the new parliament of

Great Britain were subject to the restrictions expressed in the Union Agreement by

which it was constituted cannot be dismissed as entirely fanciful’.37

34 T. B. Smith, British Justice: The Scottish Contribution (London, 1961), 207. 35 N. MacCormick, ‘Does the United Kingdom Have a Written Constitution?’ (1978), Northern Ireland Legal Quarterly, 11. 36 E. Wicks, The Evolution of a Constitution (Oxford, 2006), 50. See also, M. Upton, ‘Marriage Vows of the Elephant: The Constitution of 1707’ (1989), 105 Law Quarterly Review, 79, and T. B. Smith, ‘The Union of 1707 as Fundamental Law’ (1957) 99 Public Law, 109, for similar viewpoints. 37 House of Lords Committee for Privileges ‘Whether the House of Lords Bill (as amended on Report) would, if enacted, breach the provisions of the Treaty of Union between England and Scotland’ 2nd Report of Session 1998-99, 20 October 1999, HL 108-I.

19

While the wording of the Union Agreement might seem to indicate a higher level of

law, Dicey contends that this makes no difference to the effect of it. Indeed, he

maintains that the Act of Union has no more a claim to supremacy than any other

piece of legislation.38 Happold approves of this orthodox Diceyan conception of

sovereignty saying, ‘The Acts of Union have no higher status in UK constitutional

law than any other law’.39 It is against those competing premises that my argument

develops. On the one hand, there is the orthodox view espoused by Dicey, that all

legislation is equal, that there is no legal hierarchy in the UK Constitution. This view

is set against the radical interpretation of the Union Agreement, throwing into

question traditional political constitutionalism.

Examining the Union Agreement in closer detail there are scattered throughout

history examples of provisions being repealed, altered and replaced. For example,

every article of the Union with Ireland Act 1800 has been subsequently repealed. The

justification for the fundamental law argument is the use of language in Article I; the

idea of unity forever being widespread. Language, however, is a weak argument on

which to justify such a far-reaching understanding of the law. Language has changed

over time, and to base one’s understanding of the Union on what is now

fundamentalist language is unsustainable. Indeed, Wicks’ agrees, opining that the

language used was akin to the legislative language at the time. Thus, the language

used in the statute was no different to that used in other statutes of the same era.40

Furthermore, it is widely understood by historians that few people at the time

envisioned any degree of permanency regarding the Union; a view to which Ferguson

subscribes: ‘…at the time the union was passed few politicians seem to have regarded

38 A. V. Dicey, Introduction to the Study of the Law of the Constitution 10th edn., (London, 1962), 145. 39 M. Happold, ‘Independence: in or out of Europe? An independent Scotland and the European Union’ (2000) 49(1) International & Comparative Law Quarterly 15, 18. 40 E. Wicks, ‘A New Constitution for a New State? The 1707 Union of England and Scotland’ (2001), 117 Law Quarterly Review, 118.

20

it as permanent’.41 In a similar vein, Munro contends that in the Anglo-Scottish Union

‘examination reveals that almost all of the Article and sections of the legislation have

been repealed or amended in whole or in part’.42

At a more general level, the courts have not afforded the Union Agreement any

special treatment. Scottish courts, however, have not discarded the idea either. Indeed,

Lord President Cooper’s famous dictum in MacCormick43 was suggestive of the idea

that parliamentary sovereignty, in a Scottish context, might not be applicable and so

there is a possibility that the Union Agreement could be of an elevated status. It was,

nevertheless, opined as remarks in obiter and it is unlikely that a court seized of the

issue would shift the parameters of constitutionalism so much in the opposite

direction. While, the UK Constitution is slowly moving away from being political in

nature, such a seismic shift would be an unprecedented change in legal direction.

Furthermore, the prevalent view is that the Union Agreement is actually sustainable

only in relation to Articles XVIII, XIX and XXV, concerning Scots private law, the

Court of Session and the Church of Scotland.44 Accordingly any challenge to Scottish

independence based on the fundamental law challenge would certainly be thrown out.

The fundamental law argument is one that is primarily academic, untested in the

courts, and put together on the basis of a loose collection of evidence that carries little

weight. If it were to be true, it would prevent – at least legally – any form of

secession. Equally, however, if it were to be upheld by the courts it would fly in the

face of centuries of case-law, orthodox, academic literature and political

constitutionalism. Such an outcome would be unfathomable and, consequently, this

argument would almost certainly fail under close scrutiny.

41 W. Ferguson, Scotland’s Relations with England: A Survey to 1707 (Edinburgh, 1977), 273. 42 C. Munro, Studies in Constitutional Law 2nd edn., (London, 1999), 138. 43 MacCormick v Lord Advocate 1953 SC 396. 44 See, Gibson v Lord Advocate 1975 SC 136 and Murray v Rogers 1992 SLT 221.

21

Conclusion

The questions as to who had authority to hold the referendum initially was one that

invoked a number of political and legal considerations. It was quite difficult to

reconcile the diametrically opposing viewpoints of two governments whose legal

disagreements also became political. The orthodox view was undoubtedly that

Westminster had legal authority to legislate to hold a referendum in this case, as it

pertained to the Union and so was a reserved power. This is view that I share;

throughout I have tried to dissect the counter-arguments to my claim, but I find them

both unconvincing and, at best, legally doubtful. The orthodox view, by contrast, is

one founded upon a breadth of sources, including case-law, legislation and influential,

expert opinion. For these reasons I conclude that the legal authority to hold the

referendum was vested with Westminster. This is only part of the story, though; as the

political process had a far more influential role in what followed.

Chapter II: The Importance of Political Authority

22

Introduction

The Edinburgh Agreement was the encapsulation of the importance of politics in the

British constitutional order. While the existence of the Union hung in the balance,

there was a sturdy determination on the part of both sides to avoid recourse to the

courts. The upshot of this was that the debate was framed very much in political

terms. That is not to say, however, that the law was worthless in all of this. The

intertwined concepts of law and politics were once again prevalent, albeit to varying

degrees. This is the first of two chapters detailing the comparative influence of the

two, in the Scottish referendum. Throughout these chapters I will be developing a

thesis that, of the two, the role of politics was more influential than law. I will also

prove, though, that law was a vital but less influential component part in the process.

My analysis begins by contextualising the EA, setting out its influence in political and

legal terms. Having established that the EA was a document of little legal standing, I

will link the political implications of the EA to the legal, with an analysis of the

section 30 Order in Council. This well reaffirm a core theme throughout this paper:

that law and politics, in the UK, are interdependent concepts. Thereafter, I will turn

briefly to the fundamental law argument, questioning its utility in the context of this

debate. My examination will rely on opinions issued by prominent academics and

case-law. Preceding any analysis, however, it is necessary to unpack the EA and its

significance on both a political and legal level.

The Edinburgh Agreement

The EA was one that was reached with differing motivations for both parties. While

the Nationalists realised they would lose any court case on the authority to hold the

referendum, it would be politically dangerous for Unionists to do the same. A political

23

outcome was thus preferable for both parties. Michael Moore described the EA as ‘a

statement of political intent by Scotland’s two Governments’45 demonstrating the

political ramifications of the issue. While Anderson et al agreed that it would

probably be ‘wiser to agree on an express transfer of powers’.46

The UK Government agreeing to pass an order in Council under section 30 of the

Scotland Act would give the referendum the ‘clear legal base’47 that both parties

desired. The smooth passing of two Acts48 ensured that this became a matter settled by

political cooperation. It does, however, illustrate the closeness, and at times overlap,

between law and politics in the sphere of British constitutionalism. Having

summarised the EA, I will now outline why I believe it was more significant on a

political plane that it was legally.

The Legal and Political Significance of the EA

There is strikingly little legal commentary to suggest that the EA is binding. Alan

Trench suggested that it might give rise to legitimate expectations if the UK

Government were to pass legislation ‘materially at variance’ with the Agreement.49

Professor McHarg, giving evidence to the same committee, expressed a ‘slight doubt’

that it could actually give rise to legitimate expectations that were legally enforceable

but then went on to say that she could not foresee ‘a situation in which this would

happen.’50 In the sphere of devolution, Henry McLeish – a then, junior Minister –

noted that if a government did not follow the procedure set out in a concordat then ‘it

45 Hansard HC Deb vol 556, col 745 (15 January 2013).46 Gavin Anderson et al: The Independence Referendum, Legality and the Contested Constitution: Widening the Debate’, G. Anderson et al, 31st January 2012, https://ukconstitutionallaw.org/2012/01/31/gavin-anderson-et-al-the-independence-referendum-legality-and-the-contested-constitution-widening-the-debate/, accessed on 8th March 2016.47 Edinburgh Agreement 2. 48 Scottish Independence Referendum (Franchise) Act 2013 and the Scottish Independence Referendum Act 2013. 49 Referendum (Scotland) Bill Committee ‘The Scotland Act 1998 (Modification of Schedule 5) Order 2013 [draft]’ 1st Report, 2012 (Session 4), 23 November 2012, SP Paper 221 [23].50 Ibid.

24

could be judicially challenged on the ground that the concordat had created a

legitimate expectation that the procedure would be followed.’51 Similarly, Lord

Falconer, then Solicitor General, suggested that concordats could create legitimate

expectations to consult.52 Finally, there is a suggestion that the constitutionally

unusual nature of concordats and the apparently unequal bargaining power between

the parties would be another possible avenue establishing legitimate expectations. As

Richard Rawlings articulated from a Welsh perspective: concordats are ‘qualitatively

different, uncharted constitutional territory, precisely because the Assembly is not a

Whitehall animal. The parties are not equal parties.’53 These arguments are both

unstable and without strong legal authority; they are dependent upon hypothetical

reasoning and are overly general to provide any real spine to the more specific case of

the Edinburgh Agreement. Below, I will refute the hypothetical arguments I have

given above, before reinforcing my claim that the EA was not legally binding.

A simple, preliminary point is that there are differences in doctrine between Scots

Law and English Law on the grounds of legitimate expectations. This would present a

challenge in itself that would be difficult for courts to settle. Given the nature of the

Agreement, Christine Bell argues that ‘it would be difficult to imagine the facts in

which a doctrine of legitimate expectations could play out with respect to the

Edinburgh Agreement’.54 Bell goes on to say that failure on the part of either side to

implement the section 30 order would simply return both to the negotiating table; ‘a

return to the status quo ante’.55 Indeed the nature of the agreement left little to be

disputed; both parties had reached agreement in advance about the Scottish

51 Hansard HC Deb vol 312 col 194 (12 May 1998).52 HL Deb April 1998 vol. 588 21 c 1132. 53 R. Rawlings, ‘The New Model Wales’ (1998) 25 Journal of Law and Society 502. 54 ‘The Legal Status of the Edinburgh Agreement’, C. Bell, 5th November 2012, http://www.scottishconstitutionalfutures.org/OpinionandAnalysis/ViewBlogPost/tabid/1767/articleType/ArticleView/articleId/431/Christine-Bell-The-Legal-Status-of-the-Edinburgh-Agreement.aspx, accessed on 8th March 2016. 55 Ibid.

25

Parliament’s ability to legislate on the issue. Much of what might have been

disputable was actually ‘locked down by different forms of legal enforcement,

meaning that enforcement of “legitimate expectations” is not necessary.’56 For

example, the Memorandum of Agreement commitment that only poll was to be held

on the day of the vote was included in the section 30 order, defusing the need for

legitimate expectations.

The Section 30 Order

Distinguishing the Memorandum of Agreement with the section 30 order helps to

clear up queries regarding the legal standing of the EA. Aileen McHarg draws such a

distinction: ‘it is highly unlikely that the Memorandum of Agreement (as distinct from

the section 30 Order) is legally binding.’57 This distinction is important and Professor

McHarg contrasts the two, opining that while the Memorandum of Agreement ‘does

not confer any power legal powers on the devolved institutions’ the section 30 Order

‘is a power-conferring measure’.58 Tomkins concurs stipulating that before any

referendum was held ‘a section 30 order would first be made so that the legality of the

referendum could be placed beyond doubt.’59 This illustrates my argument that the

law was a facilitative function in this process, giving effect to the more important

political agreements.

There is, finally, a suggestion that the Edinburgh Agreement could be conceived as an

aid to interpretation. McHarg believes this to be a ‘plausible’ stance.60 Indeed, the 56 Ibid. 57 ‘The Legal Effects of the Edinburgh Agreement – Again’, A. McHarg, 8 th November 2012, http://www.scottishconstitutionalfutures.org/OpinionandAnalysis/ViewBlogPost/tabid/1767/articleType/ArticleView/articleId/468/Aileen-McHarg-The-Legal-Effects-of-the-Edinburgh-Agreement--Again.aspx, accessed on 8th March 2016. 58 Ibid. 59 ‘Confusion and Retreat: The Supreme Court on Devolution’, A. Tomkins, 19 th February 2015, https://ukconstitutionallaw.org/2015/02/19/adam-tomkins-confusion-and-retreat-the-supreme-court-on-devolution/, accessed on 8th March 2016. 60 ‘The Legal Effects of the Edinburgh Agreement – Again’, A. McHarg, 8th November 2012, http://www.scottishconstitutionalfutures.org/OpinionandAnalysis/ViewBlogPost/tabid/1767/articleType/ArticleView/articleId/468/Aileen-McHarg-The-Legal-Effects-of-the-Edinburgh-Agreement--Again.aspx, accessed on 8th March 2016.

26

Belfast Agreement was afforded ‘quasi-constitutional’ status that affected its

implementing legislation – the Northern Ireland Act 1998 – where the legislation was

ambiguous. While there is little ambiguity about the section 30 order, Bell notes it

‘would be likely that any ambiguity would be resolved by recourse to the background

Agreement text.’61 There is, therefore, a potent argument that the Edinburgh

Agreement could be used as an aid to interpreting the section 30 order and there is

little reason to dispute why this could not happen, hypothetically. Realistically,

however, the simplicity of the section 30 order made such a situation unlikely.

It was deemed preferable to leave much of the deliberation about the campaign to the

political sphere. For example, the Electoral Commission was to examine the

referendum question and issue a report before the Scottish Parliament, and the

Scottish Parliament would ‘respond to the report, indicating its response to any

suggestions that the Scottish Parliament may make’.62 It is noteworthy that there was

no pre-commitment on the part of the Scottish Parliament to accept what the Electoral

Commission had to say. Political debate and public opinion were sufficiently strong

pressures to ensure the campaign was conducted fairly; the impact of law was lesser.

Professor Bell, thus, asked: ‘What then, is to stop the Scottish Government from

ignoring this advice?  The answer appears to be, “public opinion, and political

debate”.’63 The political implications of reneging on the deal, for both parties, would

be disastrous and lead to a defeat in the poll. It was natural, therefore, for politics to

be centre-stage, once the law had been settled.

61 ‘The Legal Status of the Edinburgh Agreement’, C. Bell, 5th November 2012, http://www.scottishconstitutionalfutures.org/OpinionandAnalysis/ViewBlogPost/tabid/1767/articleType/ArticleView/articleId/431/Christine-Bell-The-Legal-Status-of-the-Edinburgh-Agreement.aspx, accessed on 8th March 2016.62 Edinburgh Agreement 8. 63 ‘The Legal Status of the Edinburgh Agreement’, C. Bell, 5th November 2012, http://www.scottishconstitutionalfutures.org/OpinionandAnalysis/ViewBlogPost/tabid/1767/articleType/ArticleView/articleId/431/Christine-Bell-The-Legal-Status-of-the-Edinburgh-Agreement.aspx, accessed on 8th March 2016.

27

It is apt, at this point, to question what function the law had in the campaign, if any. If

the debate was one that essentially policed itself through the mechanisms of political

accountability to Parliament and the Public, was there any necessary function for the

law? Bell opines that the lack of legal status of the EA ‘challenges ideas about the

usefulness of law’.64 With this point I take issue. The EA and the section 30 order,

although formally separate, were two inherently linked documents. While the EA was

a purely political document, the section 30 order contained the real substance

conferring the legal power onto the Scottish Parliament. The law acted as the output

of the political process; it was the link that made the vote a reality. Put simply,

without it the referendum would have been without credibility and internationally

worthless. It is correct to state that politics were of greater influence; after all it was

the political expression of the Scottish people in the 2011 election that prompted the

section 30 order to be made in the first place. That said, however, the law’s role in this

process cannot be understated; it attached credibility and formality to proceedings. It

served an important facilitative function, without which the vote would be

meaningless.

Legal and political authority played important roles in the shaping and enforcement of

the Edinburgh Agreement. The Agreement was primarily political, with the legality

rooted in the section 30 order it effected. This is proof of the political overtones of the

process, coupled with the legal framework.

Parliamentary Sovereignty: A Contested Concept

In Scottish terms there has long been a challenge to the traditional Diceyan concept of

parliamentary sovereignty. The sovereignty of the Scottish people has become an

accepted tenant of our constitution, and as a concept, is one that can be traced back 64 Ibid.

28

centuries. In this context, I will examine the idea further and outline its meaning in a

legal, political and constitutional framework.

The Scottish Constitutional Convention in 1989 established its Claim of Right,

acknowledging ‘the sovereign right of the Scottish people to determine the form of

government best suited to their needs’.65 This challenge to the unitary model of British

constitutionalism found expression in Lord President Cooper’s obiter remarks in

MacCormick where he declared parliamentary sovereignty to be a ‘distinctively

English principle which has no counterpart in Scots law’. It is upon this grounding

that the sovereignty of the Scottish people has developed into a principle of

constitutional law.

For example, in the 1998 devolution referendum there was recognition from

Westminster that an outcome in favour of devolution would naturally lead to

devolution. This amounted to an acceptance of the sovereignty of the Scottish people.

Thus when there was a clear and settled demand for home rule in Scotland it was duly

delivered. Similarly, in the context of the referendum there was the same recognition

that a Yes vote would inevitably lead to independence. Undoubtedly there would be

political dispute as to the breakdown of assets and liabilities, and on other current

issues. However, the broad point remains that in such an event the UK Parliament

would accede to the demands of the Scottish people.

The implications of this are potentially far-reaching. Legally, however, the

sovereignty of the Scottish people as a principle amounts to very little; it is a principle

unenforced by courts and, as a matter of strict law is ‘heresy’ being ‘straightforwardly

incompatible with the law of parliamentary sovereignty.’66 Neil Walker agrees,

maintaining that the ‘dominant… settled position is the traditional Diceyan one… in

65 Claim of Right, Scottish Constitutional Convention, 1989. 66 A. Tomkins, ‘Scotland’s Choice, Britain’s Future’ (2014), Law Quarterly Review, 218.

29

which the founding principles of the old English constitutions continued to prevail,

including the capacity of the Westminster Parliament to repeal all earlier

legislation.’67 This, though, is not an end to the matter; UK governments have

recognised that should the Scots wish to leave the Union, the rest of the UK would not

stand in their way.68 Margaret Thatcher articulated this position neatly: ‘As a nation,

they have an undoubted right to national self-determination; thus far they have

exercised that right by joining and remaining in the Union. Should they determine on

independence no English party or politician would stand in their way, however much

we might regret their departure.’69 This position was supported by the Royal

Commission on the Constitution, which said that the ‘paramount reason for

demanding or rejecting independence must always be political.’70 Thus the Claim of

Right has come to be recognised as ‘political orthodoxy’71 in the UK, evidenced by

the referendum on devolution, devolution itself and the independence referendum. It

is an undeniable truism that had Scotland voted to secede from the UK in September

2014, it would have happened.

This is the sovereignty principle in action and this adheres to my argument. The

constitutional and political recognition of the sovereignty of the Scottish people led to

the referendum taking place; by virtue of the election of an SNP government in 2011.

Westminster’s response to this was to legislate in order to allow the Scottish

Government to put the independence question to the Scots. Thus, politics was

important in this happening; but the law, too, had a role in the referendum to take

place. And, had the Scottish people opted to leave the UK, the law too would have a

part to play in facilitating this. Undoubtedly, then, sovereignty is a political principle 67 N. Walker, "Scottish Self-Government and the Unitary Constitution", in L. Farmer and S. Veitch (eds), The State of Scots Law (London 2001), 99.68 A. Tomkins, ‘Scotland’s Choice, Britain’s Future’, 218. 69 M. Thatcher, The Downing Street Years (London, 1993), 624. 70 Royal Commission on the Constitution, n. 70, ch. 12, [497]. 71 A. Tomkins, ‘Scotland’s Choice, Britain’s Future’, 218.

30

and, as a consequence, its expression – in the voice of the Scottish population – helps

to mould the law in response.

Conclusion

The Edinburgh Agreement was the epitome of political constitutionalism in practice.

The political nature of the Agreement was apparent, while its status legally was

virtually non-existent. This highlights my central thesis; namely that politics was at

the fore in the referendum campaign, while the law played a facilitative role to enable

the campaign. This is not to say that the law was useless; rather it was an imperative

utility that enabled the referendum to take place. Both law and politics, therefore,

played important roles; however, politics was the more influential of the two, in that it

was political expression that forced the law to be changed. The second section of the

Chapter highlights again the influential role that politics plays in our legal system.

The sovereignty of the Scottish people is a concept embedded in our political system.

It is accepted by Westminster, and much of their legislative action in answer to

Scottish questions is a direct response to the sovereign expression of the Scots. This

chapter has demonstrated the different functions that law and politics played in the

referendum campaign, with the politics being at the fore and the law playing a minor,

yet vital, role. The chapter that follows will draw on a comparison with Quebec,

highlighting the differences in a system where legal questions dominated the debate.

31

Chapter III: Quebec: A Comparative Analysis

32

Introduction

The Quebec session question can be contrasted markedly with the Scottish question.

While the Scottish referendum was a noticeably political venture, with the law

intervening only to enable the political process to continue, the Quebec question was

determined almost entirely by law. In this chapter I will summarise the key

differences between the two campaigns, highlighting the important and powerful role

the Supreme Court of Canada (SCC) played in the process, comparing what happened

in Quebec with the Scottish question. Much of this chapter will, therefore, focus on

the Quebec reference question.72 This forms a solid base on which I can develop my

core argument, as I will highlight the comparative influence of political power with

legal authority. Having analysed Quebec, I will turn concisely to more current events

in Catalan. I shall begin, however, by giving an overview of the events that led to the

SCC adjudicating on the topic of Quebec secession.

Quebec

Having held two secession referenda in 1980 and 1995, the Governor in Council

referred the matter to the SCC asking whether Quebec had a right to secede under

Canadian law and International law. The precise reasoning for referring this matter to

the court was to clarify the seemingly ambiguous nature of events; there was a distinct

lack of clarity in Canada about how much of the debate was political and how much

was constitutionally grounded. As a consequence, the SCC was seized to adjudicate

on the matter.

Using a reference procedure, under section 53 of the Supreme Court Act, the

Governor in Council referred the question to the SCC. Thus, despite the similarities

between the Scottish and Canadian legislative structures for referring disputed matters 72 Reference Re Secession of Quebec [1998] 2 S.C.R. 217.

33

to the highest courts, the approaches taken were diametrically opposing. The

Edinburgh Agreement was resolute in its determination to solve the constitutional

question with a political remedy; the reference to the SCC was, as I will show, a legal

remedy.

The Quebec plebiscites were marred by uncertainty throughout. The lack of a political

agreement between the two sides is something that can be contrasted with the political

deliberation that led to the Edinburgh Agreement. Indeed, as Walters explained:

‘[p]rior to the 1995 referendum, Canada’s federal government insisted that a separatist

referendum victory was unlikely and there was no need to debate or challenge the

legality of PQ plans for independence.’73 This ambiguity was not present in the

Scottish referendum; the UK Government, despite being opposed to independence,

made clear that they would respect the outcome of the vote.74 The Edinburgh

Agreement gave body to this political pre-commitment, while the section 30 order

ensured it had a legal base. Conversely, in Canada, no similar consensus had been

reached, or even attempted to have been reached, as Sujit Choudhry observed, ‘[i]n

the event of a positive referendum vote, the most likely response was for the federal

government to insist that any change in Quebec’s political status occur from within

the Canadian constitutional framework, and for Quebec to simply reject this

position.75 The political determination that led both parties to the negotiating table in

Scotland was absent in Canada. The voluntariness of both sides that was present in

crafting the Edinburgh Agreement was noticeable absent in Canada; hence why the

case ended in court. This, along with the more complicated provisions of a written

constitution, led to the case being referred to the SCC. 73 M. Walters, ‘Nationalism and the Pathology of Legal Systems: Considering the Quebec Secession Reference and its Lessons for the United Kingdom (1999), Modern Law Review, 372. 74 See, Scotland’s Constitutional Future, 5. 75 S. Choudhry, ‘Popular Revolution or Popular Constitutionalism? Reflections on the constitutional politics of Quebec secession (2005), University of Toronto Legal Studies Series Research Paper No. 13-05, 8.

34

The judicial creativity that was apparent in this case ensured that questions of Quebec

secession were entrenched firmly within the realms of the law. The astonishing and

unanimous response of the court to craft four unwritten principles underlying the

constitution is demonstrative of a court actively participating in the process. As

Choudhry notes, ‘in addition to functioning as interpretive aids, these principles are

free-standing sources of binding constitutional obligations.’76 The court’s response to

create new common law rules governing the constitution is a remarkable display of

judicial activism. Michael Behiels acknowledges that it was ‘perceived as a highly

politized [sic] legal process and court ruling.’77 While in Scotland the Edinburgh

Agreement tipped the balance between law and politics more in favour of politics, the

opposite is true in Canada. With the court filling the vacuum that political

disagreement created, the judiciary had greater room to develop principles with

‘binding normative force’ which ‘are binding upon both courts and governments’.78

Broadly speaking there are few differences between the principles governing the two

referenda in comparison. The requirement that the Scottish referendum be ‘legal, fair

and decisive’ incorporates most of the general principles about democracy and the

rule of law given legal force in the Secession case. The real difference between the

two lies in their source; in Scotland, these principles were clearly reached as a result

of political dialogue, while in Quebec, they required a court ruling to give expression

to them. This is indicative of the far- reaching impact law had in Canada, compared to

Scotland. I will now focus on one further element of the court’s judgement that

establishes a noticeable difference with the Scottish campaign.

76 Ibid, 12. 77 M. D. Behiels, ‘Canada’s Supreme Court, Constitutional Principles, and the 1998 Quebec Secession Reference Case: New Wine in a Very Old Bottle’ (2010), Paper for the VIIIth World Congress of the International Association of Constitutional Law. 78 Reference Re Secession of Quebec, 54.

35

From the aforementioned unwritten principles another interesting legal norm was

created, namely the duty to negotiate. Taking account of the fact that a clear majority

of people expressing their opinion in a poll cannot be ignored, the court imposed a

duty on both sides to come to the negotiating table, in the event of a province voting

to leave the federation.79 This duty is interesting for two reasons: firstly, it contains a

tacit acknowledgement that secession can occur, a fact which was until then, not

clear; and more importantly, it adds an additional legal barrier to provinces hoping to

achieve secession. I submit that the court’s ruling adds additional legalistic obstacles,

designed to preserve the Canadian Federation. The duty to negotiate, is in reality, one

that is incredibly weak, obligating the parties merely to come to the table and discuss.

There is no requirement that it be in good faith, and no requirement that it lead to

anything meaningful. As Schnelderamn states: ‘the duty to negotiate does not give

rise to a right of secession – negotiated secession is not inevitable and stalemate is a

real possibility’.80 The legal duty of mere negotiation leaves the political actors in a

weak position without the power to compel the other negotiating party to accede to

demands or to ensure the smooth transition to independence, it does raise questions

about the futility of the duty. Furthermore, it leads to the conceivable, and imaginable,

possibility that a Yes vote does not lead to secession. Thus in the Quebec example, it

is certainly imaginable that even a Yes vote would not be enough to encourage the

rest of Canada to accept the outcome. As Leslie said, ‘the process entails such

intrinsic difficulties and would probably take so long to be brought to a conclusion,

that it might be of little avail to a province that invoked it.’81 Both of the points

outlined are a marked contrast with events in Scotland. Inevitably there would have to

79 Ibid, 87-93. 80 D. Schnelderman, The Quebec Decision: Perspectives on the Supreme Court Ruling on Secession (Toronto, 1999), 11. 81 P. Leslie, ‘Canada: The Supreme Court Sets Rules for the Secession of Quebec’, Publius, Vol. 29, No. 2, 135.

36

be political negotiation to precipitate the formation of the ‘new’ Scotland; this

negotiation, however, would lead to independence. There would be no ambiguity or

uncertainty attached to it, as Alan Trench notes, one of the ‘few certainties’ would be

that ‘a Yes vote will trigger a process leading to independence’.82 In addition, Article

30 of the Edinburgh Agreement makes clear that any such discussions would be held

in good faith, another distinction from Quebec. Furthermore, the notion that Scottish

independence would require assent from the rest of the UK is not laudable. In a purely

formalistic sense, independence would have probably required an Act of the UK

Parliament, severing the Union between Scotland and England. In reality, however,

the UK Parliament would likely legislate for this and begin the political negotiation to

reach a settlement. There would be no question of equal and competing principles in

dispute. Furthermore, as I argued earlier, the constitutional recognition of the Scottish

people as a sovereign collective is now a strongly established political principle in the

UK. Thus the duty to negotiate, coupled with the strong possibility that a Yes vote in

Quebec would not lead to secession marks another sharp contrast between the Scottish

and Canadian examples. This was due to the differing influence of politics in both;

with political actors in Scotland keen to keep the issue within the sphere of political

legitimacy by submitting voluntarily to the Edinburgh Agreement, the situation was

quite the opposite in Canada. Seizing the SCC and asking them to carve out the law in

Canada made the issue one that was inherently legal and the SCC’s decision ensured

that this was the case.

While most of this chapter has focussed on Quebec, I will fleetingly turn to Catalonia,

and address some differences there, which again highlight the difference between

political and legal resolutions to secession questions.

82 ‘Negotiations after a Scottish referendum Yes vote’, A. Trench, 9 th September 2014, https://devolutionmatters.wordpress.com/2014/09/09/negotiations-after-a-scottish-referendum-yes-vote/, accessed on 15th March, 2016.

37

The Catalonian question highlights the rigidity of legal constitutionalism when faced

with political pressure. Much of the background is similar, and following the impasse

between the regional Government of the Catalan region and the National Government,

the court was called to adjudicate. The lack of political agreement preceding the court

case meant that ‘the UK and Scotland offer a contrasting example of a legal and

political way to settle a secessionist dispute.’83 The court, when seized of the matter,

went to great lengths to comment upon the issues in Catalonia, as Comella iterated,

the case revealed ‘the Court’s willingness to say something about the political

developments in Catalonia.’84 This is similar to the approach taken by the SCC. And,

in a similar fashion the court ruled that a unilateral declaration of independence by

Catalan would be unlawful, for it would impinge upon the constitutional sovereignty

of the Spanish people. The court ruled that ‘a region in Spain cannot unilaterally call a

referendum of self-determination to decide on its integration in Spain.’85 Thus, ‘the

Catalan people cannot be sovereign, for its sovereignty would involve a denial of the

sovereignty of the Spanish people. The two sovereignties cannot legally co-exist.’86

This marks the real difference with the Scottish case. The sovereignty of the Scottish

people was recognised, to the extent, that the right to decide their future was not

subject to the expression of the rest of the UK. In Catalonia, the lack of dual-

sovereignty, being Catalonian and Spanish, was not permitted, as per the Constitution

of Spain, Article 2 which proclaims the indissoluble unity of Spain.87 Furthermore,

given the arduous process necessary to ratify amendments to the Spanish constitution,

it would be likely that secession might not happen. Thus, in a similar vein to the

83 ‘Catalonia: From Secessionism to Secession’, M. Sanjaume-Calvet, 15th January 2016, http://www.e-ir.info/2016/01/15/catalonia-from-secessionism-to-secession/, accessed on 16th March 2016. 84 V. F. Comella, ‘The Spanish Constitutional Court Confronts Catalonia's ‘Right to Decide’ (2014), 10 European Constitutional Law Review, 579. 85 See, Fundamental Juridico 3. 86 Comella, ‘The Spanish Constitutional Court Confronts Catalonia’s ‘Right to Decide’, 580. 87 Constitución Española, Article 2.

38

Quebec case, there is another difference between the legal process and the political. A

Yes vote in Scotland undoubtedly would have led to independence; it is unlikely the

same would be true in Catalonia, as a result of additional legal requirements set forth

by the Spanish Constitutional Court.

The Quebec and Catalonian secession cases provide a stark contrast to the more

political nature of the Scottish referendum. The very fact that both ended up being

adjudicated in courts of law is testament to this fact. My argument above is a

comparative reference that proves my premise about the more influential impact

politics had in the Scottish referendum. While politics and law are inevitably

intertwined in issues of such constitutional significance, the balance between the two

varies depending upon jurisdiction. Spain and Canada are both examples of countries

where the balance has tipped in favour of legal authority. Scotland, by contrast, is an

example of the pendulum swinging more towards political power. This chapter is

evidence of this, and proves that in the interdependent disciplines of law and politics,

the comparative influence of both can vary.

Conclusion

39

The Scottish Independence referendum brought into play complex questions about the

interrelated principles of law and politics on a practical and theoretical level. The

campaign confirmed the close relationship between the two principles in the British

constitutional order, illustrating the necessary role each played. In particular,

however, the campaign highlighted the fundamentally important role that politics

played in the debate. The law was, of course, the necessary device, required to give

effect to the political will. But it was politics – and in particular, political expression –

that drove and shaped the law.

Throughout the campaign there was a tacit, and sometimes demonstrable,

determination on the part of the main political actors to avoid recourse to the courts.

Perhaps this was motivated on account of similar events in Canada or Spain, or

perhaps there were other reasons. This, however, is not the point. Political actors

utilised the law to enable the political process to flourish. The very fact that the

judiciary had not been called upon to adjudicate on any matter pertaining to Scottish

secession, pays testament to the vitally important role that politics played throughout

the process.

Two points became apparent throughout the campaign. Firstly, the closeness between

law and politics was obvious at all stages. Secondly, the principal role that politics

played in guiding the law throughout the campaign. The process used for determining

Scotland’s constitutional future was contained very much within the realms of

politics, insulated from the judiciary. This pays homage to the vital influence that

politics has on our wider constitutional order.

Throughout my argument I have made reference to the more influential role that

politics had on the discussion. This is evidenced by the responses of both

governments and a breadth of academic commentary and legal opinion. The balance

40

between law and politics is undoubtedly a complex one, shaped by one’s own

conception of the two. It is, however, undoubtedly more heavily weighted on the side

of politics, when discussing the Scottish referendum. Thus, despite recent legal

developments that have tilted the UK Constitution towards being more legalistic in

nature, the Scottish referendum suggests that it is still inherently political in nature.

The central role played by politics carves out the Scottish referendum as an alternative

means by which to settle constitutional questions of this magnitude.

41

Bibliography 1. Cases

UK Cases

AXA General Insurance Ltd v HM Advocate [2011] UKSC 46.

Gibson v Lord Advocate 1975 SC 136.

Imperial Tobacco Ltd. v The Lord Advocate [2012] CISH 9.

Martin v HM Advocate [2010] UKSC 10 [25].

MacCormick v Lord Advocate 1953 SC 396.

Murray v Rogers 1992 SLT 221.

Robinson v Secretary of State for Northern Ireland [2002] UKHL 32, [2002] NI 390.

Canadian Cases

Reference Re Secession of Quebec [1998] 2 S.C.R. 217.

2. Legislation UK Legislation

Scotland Act 1998.

Scotland Act (Modification of Schedule 5) Order 2013.

Union with Scotland Act 1706.

Scottish Legislation

Scottish Independence Referendum Act 2013.

Scottish Independence Referendum (Franchise) Act 2013.

Union with England Act 1707.

Spanish Legislation

Constitución Española.

3. TextbooksChristodoulidis et al, Jurisprudence: Themes and Concepts ( London 2007).

Dicey, Introduction to the Study of the Law of the Constitution 10th edn., (London,

1962).

42

Farmer and Veitch (eds), The State of Scots Law (London, 2001).

Ferguson, Scotland’s Relations with England: A Survey to 1707 (Edinburgh, 1977).

Loveland, Constitutional Law, Administrative Law and Human Rights: A Critical

Introduction 4th edn. (Oxford, 2006).

Munro, Studies in Constitutional Law 2nd edn. (London, 1999).

Schnelderman, The Quebec Decision: Perspectives on the Supreme Court Ruling on

Secession (Toronto, 1999).

Smith, British Justice: The Scottish Contribution (London, 1961).

Wicks, The Evolution of a Constitution (Oxford, 2006).

4. JournalsComella, ‘The Spanish Constitutional Court Confronts Catalonia's ‘Right to Decide’

(2014), 10 European Constitutional Law Review, 579.

Gee & Webber ‘What is a Political Constitution?’ (2010) 30(2) Oxford Journal of

Legal Studies 277.

Happold, ‘Independence: in or out of Europe? An independent Scotland and the

European Union’ (2000) 49(1) International & Comparative Law Quarterly 15, 18.

Leslie, ‘Canada: The Supreme Court Sets Rules for the Secession of Quebec’,

Publius, Vol. 29, No. 2, 135.

MacCormick, ‘Does the United Kingdom Have a Written Constitution?’ (1978),

Northern Ireland Legal Quarterly, 11.

MacCormick, ‘Is There a Constitutional Path to Scottish Independence?’ (2000) 53

Parliamentary Affairs 72.

Rawlings, ‘The New Model Wales’ (1998) 25 Journal of Law and Society 502.

Smith, ‘The Union of 1707 as Fundamental Law’ (1957) 99 Public Law, 109.

Tomkins ‘In Defence of the Political Constitution’ (2000) 22(1) Oxford Journal of

Legal Studies 157, 169.

Tomkins, ‘Scotland’s Choice, Britain’s Future’ (2014), Law Quarterly Review, 218.

Upton, ‘Marriage Vows of the Elephant: The Constitution of 1707’ (1989), 105 Law

Quarterly Review, 79.

Walters, ‘Nationalism and the Pathology of Legal Systems: Considering the Quebec

Secession Reference and its Lessons for the United Kingdom (1999), Modern Law

Review, 372.

43

Wicks, ‘A New Constitution for a New State? The 1707 Union of England and

Scotland’ (2001), 117 Law Quarterly Review, 118.

Wicks, The Evolution of a Constitution (Oxford, 2006), 50.

5. Electronic SourcesConstitutional Law Association

https://ukconstitutionallaw.org/

Devolution Matters Blog

https://devolutionmatters.wordpress.com/

E-International Relations

http://www.e-ir.info/2016/01/15/catalonia-from-secessionism-to-secession/UK

Hansard

http://www.parliament.uk/business/publications/hansard/

Scottish Constitutional Futures Forum

http://scottishconstitutionalfutures.org/

Westlaw

http://legalresearch.westlaw.co.uk/

6. Other SourcesBehiels, ‘Canada’s Supreme Court, Constitutional Principles, and the 1998 Quebec

Secession Reference Case: New Wine in a Very Old Bottle’ (2010), Paper for the

VIIIth World Congress of the International Association of Constitutional Law.

Choudhry, ‘Popular Revolution or Popular Constitutionalism? Reflections on the

constitutional politics of Quebec secession (2005), University of Toronto Legal

Studies Series Research Paper No. 13-05, 8.

Claim of Right, Scottish Constitutional Convention, 1989.

Halliday, ‘The Road to the Referendum on Scottish Independence: the role of law and

politics’, (2015)

House of Commons Scottish Affairs Committee, ‘The Referendum on Separation for

Scotland: Oral and written evidence’ Report of Session 2010-12, 4th September 2012,

HC 1608, Ev 166.

House of Lords Committee for Privileges ‘Whether the House of Lords Bill (as

amended on Report) would, if enacted, breach the provisions of the Treaty of Union

44

between England and Scotland’ 2nd Report of Session 1998-99, 20 October 1999, HL

108-I.

House of Lords Select Committee on the Constitution, ‘Referendum on Scottish

Independence’ 24th Report of Session 2010-12, 17 February 2012, HL 263

‘Re-elect a Scottish Government Working for Scotland’, SNP Election Manifesto

2011.

Scottish Government Publication ‘Your Scotland, Your Referendum’ (January 2012).

Secretary of State for Scotland ‘Scotland’s Constitutional Future’ (January 2012).

Thatcher, The Downing Street Years (London, 1993).

45

46