An Unanswered or Unanswerable Question? The Scottish Parliament's competence to legislate for an Independence Referendum for Scotland

AutorElisenda Casañas Adam
CargoLecturer in Public Law and Human Rights at Edinburgh Law School and Associate Director of the Edinburgh Centre for Constitutional Law
Páginas81-99
AN UNANSWERED OR UNANSWERABLE QUESTION? THE SCOTTISH
PARLIAMENT’S COMPETENCE TO LEGISLATE FOR AN INDEPENDENCE
REFERENDUM FOR SCOTLAND
Elisenda Casañas Adam*
Abstract
This article analyses the debates on whether the Scottish Parliament could unilaterally legislate for an independence
referendum leading up to the 2014 vote, setting out rst the relevant legal framework, and then highlighting the different
positions put forward in this sense. It then argues that these positions responded to different existing constitutional
narratives as to the nature of the UK (unitary, federal or quasi-federal, and union) and how by leaving this question
open, the specic endorsement of one of these narratives was avoided. Finally, it reects on the impact of the specic
aspects of the 2014 process on the current competence debate and on the available options for the Scottish Parliament
to legislate for a second independence referendum. Overall, it argues that because of the existence of these competing
constitutional narratives, as occurs also in other plurinational states, a strictly legal approach will not provide a
satisfactory answer to the competence question. Despite being framed in legal terms, this is a fundamentally political
question that requires a political answer.
Keywords: independence; referendum; plurinational state; Scotland; United Kingdom; Catalan sovereignty process.
UNA PREGUNTA SENSE RESPOSTA O INCONTESTABLE? LA COMPETÈNCIA DEL
PARLAMENT ESCOCÈS DE LEGISLAR PER A LA CELEBRACIÓ D’UN REFERÈNDUM
D’INDEPENDÈNCIA PER A ESCÒCIA
Resum
Aquest article analitza els debats sobre si el Parlament escocès podia legislar unilateralment sobre la celebració d’un
referèndum d’independència que va conduir a la votació de 2014. En primer lloc, s’exposa el marc jurídic rellevant
i després es posa de relleu les diferents posicions presentades en aquest sentit. A continuació, sosté que aquestes
posicions van respondre a diferents narratives constitucionals existents, pel que fa a la naturalesa del Regne Unit
(unitària, federal o quasi federal i unionista) i com, en deixar aquesta qüestió oberta, es va evitar l’aval especíc a una
d’aquestes narratives. Finalment, es reexiona sobre l’impacte dels aspectes especícs del procés de 2014 en el debat
competencial actual i sobre les opcions a l’abast del Parlament escocès de cara a legislar per un segon referèndum sobre
la independència. En general, s’observa que un enfocament estrictament jurídic, a causa de l’existència d’aquestes
narratives constitucionals contraposades, tal com succeeix també en altres estats plurinacionals, no proporcionarà
una resposta satisfactòria a la qüestió competencial. Tot i estar emmarcat en termes legals, aquesta és una qüestió
fonamentalment política que requereix una resposta política.
Paraules clau: independència; referèndum; Estat plurinacional; Escòcia; Regne Unit; procés sobiranista.
* Elisenda Casañas Adam, Lecturer in Public Law and Human Rights at Edinburgh Law School and Associate Director of the
Edinburgh Centre for Constitutional Law. School of Law. University of Edinburgh. Old College, South Bridge. Edinburgh EH8 9YL.
Scotland, UK, elisenda.casanas-adam@ed.ac.uk.
Article received on 28.04.17. Blind review: 29.05.17 and 01.06.17. Final version acceptance date: 06.06.2017
Recommended citation: Casañas adam, Elisenda. “An Unanswered or Unanswerable Question? The Scottish Parliament’s
competence to legislate for an Independence Referendum for Scotland”. Revista Catalana de Dret Públic, Issue 54 (June 2017), p.
81-99, DOI: 10.2436/rcdp.i54.2017.2975
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Summary
1 Introduction
2 The Competence Question and the Scottish Independence Referendum of 2014
2.1 The Context
2.2 The Debate on the Competence of the Scottish Parliament to legislate for an Independence Referendum
The Provisions in Contention
The Positions in the Debate
The Different Narratives Regarding the UK’s Constitutional Framework
3 The Edinburgh Agreement
3.1. The Road to the Edinburgh Agreement
3.2 A Political Agreement – Leaving the Competence Question for Another Time?
4 The Competence Question and the Debates on a New Scottish Independence Referendum
4.1 The Context
4.2 The Competence Debate Returns – Has Anything Changed?
5 Conclusions
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1 Introduction
The 2014 Scottish independence Referendum was a unique constitutional development, as it was organised
and held on the basis of an agreement between the Scottish and United Kingdom Governments. In this
sense, it stands in sharp contrast with other systems, such as Spain, where the requests by Catalonia to hold a
referendum in similar circumstances has led to an ongoing confrontation between both orders of government.
The Edinburgh Agreement not only ensured the cooperation of the Scottish and UK Governments, it also
provided the referendum with a clear legal basis and a solid legal framework, which then resulted in a fair and
democratic process that was accepted as such by both sides, and which actively engaged Scottish citizens1.
However, by providing for the specic transfer of competence to the Scottish Parliament to legislate for the
referendum, the Edinburgh Agreement left open the question of whether the Scottish Parliament would have
been able to legislate unilaterally on this issue. As is less well known from a comparative perspective, the
Scottish Nationalist Party’s (SNP) landslide victory led to an initial confrontation between the Scottish and
UK Governments over whether the Scottish Parliament had the competence to legislate for an independence
referendum, with a diversity of academic arguments also being put forward for both sides. While the UK’s
unwritten and therefore more exible Constitution is frequently presented as one of the main elements that
allowed the 2014 referendum to go ahead, this specic aspect is regulated in the Scotland Act 1998 which
provides a detailed and binding written legal framework for competence claims in relation to Scotland. As a
result, parallels can also be drawn in this sense with claims regarding the distribution of competences in other
federal or quasi-federal states, or to some of the debates that are currently ongoing regarding the holding of
an independence referendum in Catalonia2. It seems, then, that there are lessons to be learned from a better
understanding of the Scottish experience.
On the other hand, the issue of whether the Scottish Parliament has the competence to legislate for an
independence referendum unilaterally has again become of current interest in Scotland. As is well known,
the First Minister, Nicola Sturgeon, has recently secured a favourable vote in the Scottish Parliament in
favour of holding a second Scottish independence referendum and has written to the United Kingdom Prime
Minister, Teresa May, requesting a transfer of the competence to legislate for it, similar to the above3. The
Prime Minister’s far from positive reaction to this request has reignited the debate on whether the Scottish
Government and Parliament could proceed with the referendum without her agreement4.
This article analyses the debates on whether the Scottish Parliament could unilaterally legislate for an
independence referendum leading up to the 2014 vote, highlighting the different positions put forward in
this sense. It will then argue that these positions responded to different existing constitutional narratives as
to the nature of the UK and how by leaving this question open, the specic endorsement of one of these
narratives was avoided. It will also reect on the impact of the specic aspects of the 2014 process on the
current competence debate and on the available options for Scotland to legislate for a second independence
referendum. Overall, it will argue that because of the existence of these competing constitutional narratives,
as occurs also in other plurinational states, a strictly legal approach will not provide a satisfactory answer to
the competence question. Despite being framed in legal terms this is a fundamentally political question that
requires a political answer.
1 CASAÑAS ADAM, Elisenda. “The Scottish Independence Referendum: Lessons Learned for the Future”. Edinburgh School of
Law Research Paper No. 2016/19 (August 25, 2016) [Consulted: June 2017].
2 For examples of excellent comparative analysis in this sense, see ARONEY, Nicholas. “Reserved matters, legislative purpose,
and the Scottish Independence Referendum”. Public Law. (2014), p. 421-443 and TORNOS MAS, Joaquín. De Escocia a Cataluña.
Referéndum y Reforma Constitucional. Madrid: Iustel (2015).
3 CARREL, Severin. ‘‘Scottish parliament votes for second independence referendum’. The Guardian (28/03/2017) [Consulted:
June 2017].
4 STEWART, Heather; WALKER, Peter; CARREL, Severin. ‘‘Theresa May rejects Nicola Sturgeon’s referendum demand’’. The
Guardian (16/03/2017). SPARROW, Andrew. ‘UK government signals it will block second Scottish independence referendum until
early 2020s - as it happened’’. The Guardian (28/03/2017) [Consulted: June 2017]..
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2 The Competence Question and the Scottish Independence Referendum of 2014
2.1 The Context
The question of whether the Scottish Parliament had the competence to legislate for an independence
referendum for Scotland had been an issue of latent constitutional discussion in Scotland since devolution
in 19985. However, the specic debates on this question in the context of what would then become the
2014 referendum started after the Scottish National Party’s landslide election result in the 2011 elections to
the Scottish Parliament6. This was a signicant and largely unexpected achievement, not least because the
system was designed to result in the formation of coalition governments. In 2007, when it was elected in a
minority government, its manifesto contained a commitment to publish a White Paper on independence for
Scotland7. In August of that year, it followed up on its commitment, publishing “Choosing Scotland’s Future
– A National Conversation”8. It described the paper as “the rst step in a wide-ranging conversation about the
future of Scotland”9. The Scottish Government then continued to develop its proposals and published another
White Paper, “Your Scotland Your Voice” in November 200910. This set out the intention to hold a referendum
on Scotland’s constitutional future in 2010, and, in this line, the Government also published a rst “Draft
Referendum Bill” 11. However, in September 2010 the First Minister announced that the Bill would not
proceed in that parliamentary session, but would be an election issue for the forthcoming elections in 2011.
The SNP then entered the elections with a manifesto pledge for a referendum on Scotland’s constitutional
future.
Despite the SNP’s landslide victory in 2011, the polls at that time did not show a signicant increase in
support for independence in Scotland. Indeed, in this sense Chris McCorkindale describes the referendum
that followed as “accidental”, highlighting that the SNP’s victory was more due the perceived competence
of SNP as a party of in government, and the collapse of other parties12. Since 2007, when the SNP’s
National Conversation began, polls consistently showed that the Scottish people’s preference for Scotland’s
constitutional future was spread across three options: maintaining the status quo (for 2010, 2011 2012: 27,
21 and 24 %, respectively); an intermediate option of further devolution, but short of independence (32, 29,
and 32 %); and independence itself (28, 43, 35%)13. Although stressing their preference for independence,
the Scottish Government’s 2007 White Paper reected this division and included the discussion on extending
Scottish devolution. It also referred to the possibility of holding a multi-option referendum, including a
second question on “more devolution”14. In the same way, its 2009 White Paper included the discussion of a
model of “full devolution” (or “devo-max”) and noted that its “National Conversation” had indicated support
for range of proposals which reduced the reservations of policy areas under the Scotland Act but did not
eliminate them all15; again, it highlighted its openness to consider including a third option in the referendum
seriously, if this were clearly dened, noting that its inclusion in its own documents would have helped that
process16. Interestingly, polls also showed that supporters of independence would still prefer more devolution
5 For a notable example, see MACCORMICK, Neil. “Is There a Constitutional Path to Scottish Independence?”. Parliamentary
Affairs 53 (2000) 721-727.
6 In the 2011 elections to the Scottish Parliament the SNP won 65 seats, Labour 37, the Conservatives 15, and the Liberal Democrats 5.
7 In the 2007 elections to the Scottish Parliament the SNP won 47 seats, Labour 46, the Conservatives 17, and the Liberal Democrats 16.
8 SCOTTISH GOVERNMENT. “Choosing Scotland’s Future: A National Conversation: Independence and Responsibility in the
Modern World” (2007). ISBN 978-0-7559-5493-3.
9 Ibid.
10 SCOTTISH GOVERNMENT. “Your Scotland, Your Voice: A National Conversation”. (2009) ISBN 978-0-7559-8114-4.
11 SCOTTISH GOVERNMENT. Draft Referendum (Scotland) Bill [Consultation Draft] (2010).
12 MACCORKINDALE, Christopher. “An Accidental Referendum”. Scottish Constitutional Futures Forum Blog (16/08/2013).
13 SCOTCEN. “The option not on the table. Attitudes to more devolution” (2013), p. 3 [Consulted: June 2017].
14 SCOTTISH GOVERNMENT (2007) p. 7-18; p. 33.
15 SCOTTISH GOVERNMENT (2009) p. 17
16 SCOTTISH GOVERNMENT (2009) p. 187-188.
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to the status quo (albeit as a second best) and therefore that, in the case of a multi-option referendum and
depending on how the questions were asked (for example, if people were asked if they wanted the Scottish
Parliament to have more powers, and if so, if these should enable independence), the intermediate option of
“further devolution” could secure around 60% of the vote17.
The Scottish Government’s promises for a referendum and the above debates on the different options
for Scotland’s constitutional future were, however, constrained by the framework of devolution and the
provisions of the Scotland Act 1998, which put the Scottish Parliament in a signicantly different position
to that of the Parliament of the United Kingdom18. The Scotland Act 1998 provides for a Scottish Parliament
of limited powers, restricted by the list powers reserved to the UK Parliament (“reserved powers”) included
in the Act itself, and compliance with EU law and ECHR rights19. It also states clearly that “An Act of the
Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of
the Parliament”20. To ensure that the Scottish Parliament and Government do not act outside their powers,
the Scotland Act includes a variety of (pre and post enactment) mechanisms to block and also review their
legislation, which in nal instance can be struck down by the courts.21 What is also interesting to note here
is that challenges may be brought by the UK institutions, but also individuals that are affected by the statute,
and that the rules of standing for individuals were made signicantly more exible by a decision of the
Supreme Court in 2011 (the “AXA decision”)22. As a result, any legislation for a referendum on Scotland’s
constitutional future enacted by the Scottish Parliament would be vulnerable to a diversity of challenges,
including from any individual considered to have a “sufcient interest” in the issues included in the Act23.
This is an important distinction from the position of the UK Parliament, whose legislation is not subject
to this constitutional “ultra vires” review by the courts. The “sovereign” UK parliament is free to legislate
on all matters of the UK constitution, including specically matters devolved to the Scottish Parliament
in the Scotland Act 1998 24. Interestingly, however, it has developed a convention (“Sewel Convention”)
for when it wants to legislate in an area devolved to the Scottish Parliament or which affects the Scotland
Act 1998 itself, which requires it to consult the Scottish Parliament and obtain its consent25. Because of the
signicance of this convention, it was formally set out in statute in the amendments to the Scotland Act that
resulted from the Smith Commission and the devolution of further powers to the Scottish Parliament after the
2014 referendum26. However, the rst test of the justiciablity of this provision came in the recent Supreme
Court Miller case, and the judges unanimously treated it as merely the acknowledgment of a convention
rather than establishing a legally binding rule27.
Finally, the Scotland Act 1998 also provides for the amendment of the list of matters reserved to the UK
Parliament to be modied by Order in Council for purposes “considered necessary and expedient”28.
However, this will require the approval of both Houses of Westminster Parliament and also of the Scottish
17 SCOTCEN (2013) p. 4.
18 See, generally, HIMSWORTH, Chris; O’NEILL, Christine. Scotland’s Constitution: Law and Practice. Bloomsbury Professional
(2015).
19 Scotland Act 1998, section 29 together with Schedule 5.
20 Scotland Act 1998, section 30.
21 Scotland Act 1998, sections 31-36 and Schedule 6.
22 AXA General Insurance v Lord Advocate [2011] UKSC 46. The Supreme Court in this case expanded the standing test to one of
“sufcient interest”. This was then also included in the Courts Reform (Scotland) Act sec 89. For a discussion of the signicance of
these changes, see HIMSWORTH and O’NEILL (2015), p. 427-430.
23 Ibid.
24 Scotland Act 1998, section 28 (7).
25 See CAIRNEY, Paul; KEATING, Michael. “Sewel Motions in the Scottish Parliament”. Scottish Affairs, 47 (2004), p. 115-134.
26 Scotland Act 2016, section 2.
27 R (Miller & Anor) v Secretary of State for Exiting the European Union & Ors [2017] UKSC 5.
28 Scotland Act 1998, section 30.
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Parliament itself. These are known as “section 30 Orders”, and this was the mechanism used to devolve the
specic powers for the Scottish Parliament to legislate for the referendum in 2014.
2.2 The Debate on the Competence of the Scottish Parliament to legislate for an Independence
Referendum
The Provisions in Contention
As noted above, while there is sometimes a generalised perception that what allowed the 2014 independence
referendum was the UK’s largely unwritten and exible constitution, the Scotland Act 1998 sets out a
comprehensive and detailed legal framework regarding the organisation and functioning of the institution
for Scottish self-government. The same can be said about the conferral of competences on the Scottish
Parliament, their limits, and the specic criteria to resolve any conict regarding any of the former. Firstly,
the Scotland Act 1998 establishes that an Act will be outside the competence of the Scottish Parliament so
far as “it relates to” reserved matters29. The Scotland Act 1998 is notably silent on the issue of referendums,
thus allowing the Scottish Parliament to legislate in this eld and hold referendums on devolved matters. It
must also be noted that the general regulation of referendums included in the Political Parties, Elections and
Referendum Act (PPERA) 2000 only applies to referendums organised by the Westminster Parliament, and
therefore didn’t apply in this case.
The specic provisions at the centre of the debate in this case were the reservation of powers over the
“Constitution” to the UK Parliament, including “the Union of the Kingdoms of Scotland and England”30.
The central question then became if a referendum on Scottish independence would relate to the Union of
the Kingdoms of Scotland and England in the sense stated in the Act for it to be ultra vires. The Scotland
Act 1998 also provides additional indications as to how such provisions should be interpreted, adding that
“the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be
determined […] by reference to the purpose of the provision, having regard (among other things) to its effect
in all the circumstances”31. The debate therefore centred on what were the “purpose” and the “effect in all
circumstances” of the proposed legislation to enable the holding of the independence referendum. It must
also be noted that the Scotland Act provides some indications for the courts in the interpretation of Acts of
the Scottish Parliament in the case of challenges being brought before them: “Such a provision is to be read
as narrowly as is required for it to be within competence, if such a reading is possible, and is to have effect
accordingly”32. This provision was also signicant in the debates that followed.
In other federal or quasi-federal systems, the relevant case law from the courts would provide further
clarication as to how to interpret the above provisions. However, a particular feature of the Scottish
devolution settlement is that it did not result in a signicant number of competence challenges based on the
devolved/reserved division of competences before the courts. At the time, the majority of challenges to Act
of the Scottish Parliament had been brought and decided on human rights grounds. There was not a clear
body of case law regarding how the above provisions should be interpreted in this specic case 33.
The Positions in the Debate
There are at least three central positions that can be identied as put forward by leading and well-respected
academics and/or practitioners in the debate on the Scottish Parliament’s competence to legislate for a
29 Scotland Act 1998, section 29 (2) b.
30 Scotland Act 1998, Schedule 5.
31 Scotland Act 1998, section 29 (3).
32 Scotland Act 1998, section 101 (2)).
33 The one case that was highlighted in the debates was Martin and Miller v HM Advocate (2010) UKSC 10, which involved a
challenge to the Criminal Proceedings (Reform) Act 2007, enacted by the Scottish Parliament. In considering whether the amendments
in the 2007 Act “related to” a reserved matter, the court took a wide approach to the “purpose test”, stating that this should not mean
simply a narrow reading of the challenged provision, but rather a broad contextual approach, considering also the situation which it
was designed to address. However, the extension of this wide approach to the debates above was contested, and is this it had been
adopted to declare the legislation intra vires, not to strike it down.
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referendum on Scottish independence, following the SNP’s landslide victory in 2011. The rst, and most
restrictive, was based on the denial of the existence of a separate “Scottish People”, able to decide unilaterally
on Scottish independence. An example of this position was put forward by Aidan O’Neill, arguing that “If
the United Kingdom, as a constitutional monarchy, allows for the notion of a ‘sovereign people’, then it
encompasses all the peoples of the United Kingdom. On this constitutional model, the ‘Scottish people’ are
no more sovereign than the ‘people of Basingstoke’ or the ‘Men of Kent’ or the ‘women of Wales’”34. Further
on in the piece, he concludes: “(…) if a referendum is indeed properly to be understood as a consultation with
the ‘sovereign people’ to which Parliament is answerable, then any such ‘dissolution referendum’ cannot be
conned to a consultation with the people of Scotland alone but must properly extend to all the peoples of
the United Kingdom”35. He adds to this point by arguing that such a referendum would also have a profound
effect on the politics of the United Kingdom, notably reinforcing the Conservative party dominance in
Westminster.
For the issues considered in this article, it is worth highlighting that, rst, this argument could have been
plausibly made on the basis of the existing constitutional and legal framework of the United Kingdom.
Second, this argument was indeed initially made, in a strong and well-argued manner, despite it soon
becoming superseded by the developments that followed the 2011 Scottish parliamentary elections. As is
well known, the UK Government’s accepted the right of the Scottish people to decide their constitutional
future after the SNP’s landslide victory, and from then on the debate the focused specically on the what
order of government should legislate for the referendum. It is worth noting that, a year later, O’Neill was
no longer arguing that Scottish independence should be decided by all the peoples of the UK, but he again
stressed that Scottish independence could not be considered “a matter of purely Scottish interest”36.
The second position that can be identied in the debate was that put forward by Nick Barber, and focused
specically on whether such legislation would “relate to” the Union, and therefore a matter reserved to the
UK Parliament. In contrast with O’Neill’s initial position, Barber took the question of whether Scotland is
an appropriate territory to secede as a given, seemingly including also the right of the citizens of Scotland
to decide this37: “Just about everyone accepts that Scotland is the type of territory that can properly gain
statehood if its people wish it”38. In his analysis, he then distinguished between the competence to dissolve
the United Kingdom in the case of a successful independence referendum and the competence to organise
the referendum itself. Any decision about whether, and if so, how, to give effect to Scottish independence
would correspond to the Westminster Parliament. However, the Scottish Parliament could still legislate for a
referendum on independence, as this would not be binding and would not therefore alter the legal relationship
between Scotland and Westminster, even if it might, as he noted, “affect the political pressure for some sort
of change”39. Focusing on the purpose of legislation, a similar argument was also put forward by Stephen
Tierney, stating that “If a question is carefully crafted, asking people whether or not their preference is for
independence and making clear that would only be treated by the Scottish Government as a political mandate
to enter negotiations, this would seem to fall within competence”40. An analogous point, albeit framed in a
different manner, was put forward by Cormac MacAmlaigh, suggesting that if a referendum Bill “contained
a ‘saving clause’, explicitly stating that the purpose of the bill was not to give effect to secession nor directly
affect the Union (...) but rather was a simple exercise of devolved power (the power to hold referendums)”,
this might allow it to pass the competence test41. This was the general position adopted by the Scottish
34 ONEILL, Aidan. “We need to talk about the referendum…”. UK Supreme Court Blog (04/11/2011).
35 Ibid.
36 ONEILL, Aidan. “Now We’re Talking – About the Scottish Referendum”. UK Supreme Court Blog (04/11/2012)
37 BARBER, Nicholas. “Scottish independence and the Role of the United Kingdom”. UK Constitutional Law Association Blog
(11/01/2012).
38 Ibid.
39 Ibid.
40 TIERNEY, Stephen. “A constitutional conundrum…”. The Herald (11/01/2012).
41 MACAMLAIGH, Cormac. “…yes, but is it legal? The Scottish Independence referendum and the Scotland Act 1998”. UK
Constitutional Association Blog (1/12/2012).
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Government in the debate, as will be seen below, although they never clearly set out their legal arguments
in detail.
The third position that can be identied in the debate was represented by Adam Tomkins, among others,
whose piece was written in response to Barber42. Tomkins did not engage with the question of whether
the Scottish people were entitled to decide on independence unilaterally; his disagreement with Barber
was specically on the Scottish Parliament’s competence to legislate for an independence referendum.
According to Tomkins, an Act of the Scottish Parliament authorising a referendum on independence
would clearly “not be law”, because it would relate to the Union. In support of this, he quoted the SNP’s
own 2011 election manifesto, where they stated “A yes vote will mean Scotland becomes an independent
nation”. Furthermore, Tomkins contested Barber’s claim that the Scottish Parliament could legislate for
an independence referendum, because it would be advisory in nature. Firstly, he argued that under the UK
constitutional framework most referendums were advisory in the sense that they were not legally binding.
He also added, however, a reminder of the signicance of referendums, distinguishing them from opinion
polls: “their purpose is not to test public opinions but to make decisions”43. In this sense, he also quoted
the House of Lords Constitutional Committee report on referendums stating that, even when a referendum
was advisory, “it would be difcult for Parliament to ignore a decisive expression of public opinion”44.
Finally, Tomkins also contested Tierney’s claim that the outcome was be treated simply as a mandate for
the Scottish Government to enter into negotiations with its UK counterpart. In this sense, he argued that a
requesting a mandate to negotiate the terms of the Union would again clearly relate to a reserved matter; and,
more generally, that there was no need for a referendum before the Scottish Ministers could talk to the UK
Government about Scotland’s constitutional future.
As will be seen below, Tomkins position was the one adopted by the UK Government, who argued from
the start that the Scottish Parliament did not have the competence to legislate for the referendum, and by
other inuential commentators. The decisiveness with which this argument was being presented, led a group
of academics from some of the main Scottish Universities (Anderson et al) to defend the plausibility of
the Scottish Government’s claims and contend that the legality of such a referendum legislated for by the
Scottish Parliament was more of an open question than had been acknowledged45. The position put forward
by these authors has elements in common with the one put forward by Barber (indeed, as seen, Tierney
also put forward an argument in this sense); but it can also be seen as potentially going much further in
considering the position and competences of the Scottish Parliament in the context of the debates over the
holding of the independence referendum and its outcome.
According to these authors, the case for legality rested on a particular reading of both the purposes of the
proposed referendum Bill, and of the purposes of the Scotland Act 1998. Regarding the purpose of the
proposed referendum Bill published by the Scottish Government, they argued, rstly, that it stated that
its purpose was simply to seek “the views of the people in Scotland on a proposal about the way Scotland
is governed”46. The authors then argued that to adopt a broader reading of the Bill resulted in conating
the intention of the Scottish Government with the intention of the Scottish Parliament. While the Scottish
Government was clearly putting forward the Bill to try to obtain independence for Scotland, there could be
many different reasons why the members of the Scottish Parliament would vote in favour of it, for example,
to resolve the issue with a no vote and remove it from the political agenda. In this sense, they pointed out also
that taking a broader approach to what would be the effects of the referendum seemed to be arguing on the
assumption that the Yes side would win, and that this would lead to the dissolution of the Union. If, on the
other hand, the outcome of the referendum were a No vote, then the overall consequence of the referendum
42 TOMKINS, Adam. “The Scottish Parliament and the Independence Referendum”. UK Constitutional Law Association Blog
(2012)
43 SCOTTISH NATIONALIST PARTY. ‘‘Election Manifesto’’ (2011), p. 28 [Consulted: June 2017].
44 Ibid. 12th Report of 2009-10, House of Lords, 99, para 197.
45 ANDERSON, Gavin; BELL, Christine; CRAIG, Sarah; McHARG, Aileen; MULLEN, Tom; TIERNEY, Stephen; WALKER,
Neil. “The independence referendum, legality and the contested constitution: widening the debate”. UK Constitutional Law
Association Blog (31/01/2012).
46 Ibid.
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would be to reinforce the Union and the UK as a whole. The legality of the Bill, they concluded, could not
be made to depend on the practical outcome of the referendum, as this would lead to absurdity. Reference to
the “effect” of the Bill had to be to its legal effect, rather than its practical effect, and the legal effect of the
proposed Bill would be simply to seek the views of the people of Scotland. Any further effects attributed to
it would be non-binding and speculative.
Anderson et al then moved on to consider if the proposed independence referendum Bill (understood as a
consultative Bill) would nevertheless still “relate to” the Union in the sense that would make it ultra vires.
Here they argued that the Scotland Act 1998, as a constitutional measure, should not simply be interpreted
literally, but rather “generously and purposively”47. Therefore, a challenge to the competence of a Bill had
to show more than merely that Bill had something to do with a reserved matter (the Union). This brought
them to what they considered the core constitutional issue or question of the debate, what was the purpose
of the Scotland Act 1998 and thus the impact of devolution on the UK constitution. And here they stress
what they describe as the “nub of the difculty” in responding to the competence question: the existence of
at least three competing narratives regarding the UK constitutional framework48. Of these, that of the United
Kingdom as a Union state was the one that would potentially put the Scottish Parliament in a much stronger
position in the referendum debate than the one put forward by Barber. This aspect will be explored in more
detail in the next section.
The Different Narratives Regarding the UK’s Constitutional Framework
Taking a broader approach in this debate, Anderson et al highlight that there are at least three different possible
narratives regarding the UK’s constitutional framework. The rst is the unitary state narrative, according to
which “the Scottish Parliament is politically and legally subordinate to Westminster, and the latter remains
the sole font of sovereign authority within the state”49. The second is the federal or quasi-federal narrative,
which sees the Scottish Parliament as “politically equal to Westminster, within its sphere of competence, but
it is bound by the norms of the UK constitution as a whole”50. The third is the union-state narrative, which
views “devolution as a renegotiation of the terms of the Union between Scotland and England, established
in 1707 on the part of the sovereign Scottish people, and hence sees the Scottish Parliament as a legitimate
representative of the Scottish people in the course of any further renegotiation (…)”51. The existence of
these different constitutional narratives is not new and has been a feature of the development of the UK
constitutional framework even before the 1998 devolution process52. The specic or more technical legal
question regarding the competence of the Scottish Parliament to legislate for the referendum simply brought
the tensions between the different narratives to the fore.
Indeed, we see these different narratives present in the positions regarding the legality of the referendum.
O’Neill characterises the United Kingdom as a unitary state, arguing that “power devolved from the
Westminster centre is power retained; rather than power ceded and sovereignty divided”53. Barber, on the
other hand, describes it as a “somewhere between a unitary state and a federation”54. In this sense, he argues
that in many respects the UK now looks more like a federal than a unitary state, with the Westminster
parliament and the Scottish Parliament having their own area of power, on which the other level cannot
47 Ibid.
48 Ibid.
49 Ibid.
50 Ibid.
51 Ibid.
52 See, for example TIERNEY, Stephen. “Giving with one hand: Scottish devolution within a unitary state”. International Journal
of Constitutional Law (2007), p. 572-597; “Scotland and the Union State”. MCHARG, Aileen; MULLEN, Tom (eds.). Public Law
in Scotland. Edinburgh: Avizandum (2008); ‘‘Federalism in a Unitary State: A Paradox too Far?’’. Regional and Federal Studies,
(2009), p. 237-254; and WALKER, Neil. ‘‘Beyond the Unitary Conception of the United Kingdom Constitution?’’. Public Law
(2000), p. 384-404.
53 ONEILL, (2011).
54 BARBER, (2012).
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encroach55. Anderson et al highlight this diversity of understanding of the constitutional nature of the UK, and
its relevance to the debate, and point to some of the elements that would support the union-state narrative56.
According the authors, this narrative would suggest a much broader role for the Scottish Parliament in
debating, and facilitating public deliberation, on questions about the future of Scotland. Interestingly, in
other work Tomkins also describes the UK as a union-state, but in a different sense and with different
consequences to those above, as can also be seen by his position on the competence debate57. This highlights
that each of these narratives is not uniform, and may thus present different variants and articulations.
These different constitutional narratives were at the core of the competence and more general referendum
debate, and it seems that the endorsement of each of these narratives would lead to a particular conclusion
as to the scope of the competence of the Scottish Parliament to legislate for the referendum. As the authors
highlight, there are elements in the UK and Scottish constitutional frameworks that would seem to support
each of these narratives, but none has clear precedence over the others. As seen above, the different positions
on the competence of the Scottish Parliament to legislate for the referendum were clearly and convincingly
put forward by leading legal scholars or practitioners, based on their own understanding of the constitutional
framework. And, as to be expected, both the Scottish and UK Governments adopted the position that most
favoured their own interests and their own understanding of the wider articulation of the state. It must be
noted here that this is not a unique feature of the UK. It is indeed a feature of many plurinational states that
different narratives on the foundations and overall constitutional framework co-exist, but there is sufcient
ambiguity in the framing of the general norms and principles to allow the system to function effectively in
ordinary conditions and without them resulting in conict58. While in the UK this can be attributed to its
unwritten constitution, as we have seen, the framework provided by the Scotland Act 1998 is very much
codied in this sense. And similar arguments could be made in relation to plurinational states with a written
constitution.
Within this context, the questions regarding the competence of the Scottish Parliament to legislate for the
referendum then posed what MacAmlaigh describes as an archetypal “hard case”59; and it was a hard case
because it presented a confrontation between there different narratives, which normally coexisted largely
unproblematically. In other words, the black or white endorsement of one of these narratives would have
involved the rejection of the others and the alienation of those who adhered to them, with signicant
consequences for the developments that would follow. And this was the concern in relation to a potential
legal challenge to legislation adopted by the Scottish Parliament for the referendum, and to the matter being
decided by the courts. If they ruled that the Scottish Parliament was not competent to legislate for the
referendum, this would have strong repercussions within Scotland and could lead to a potential confrontation
between the Scottish and UK institutions of self-government, such as has happened in Spain. On the other
hand, if the courts decided that the Scottish Parliament did indeed have competence to legislate for the
referendum, but with the opposition of the UK Government and/or Parliament, this might condition their
own participation in the process and would also present serious complications in the case of a Yes vote, as
any dissolution of the Union would necessarily involve legislation by the UK Parliament. Furthermore,
once one particular constitutional narrative had been specically endorsed by the courts, this would then
limit the scope for political negotiations, agreement and compromise between both orders of government to
resolve any conicts regarding Scotland’s constitutional future. As a result, various commentators expressed
55 Ibid.
56 ANDERSON et al (2012).
57 TOMKINS, Adam. ‘‘Scotland’s choice, Britain’s future’’. Law Quarterly Review. 130 (2014), p. 215-220; TOMKINS, A. Written
Evidence provided to the House of Lords Select Committee on the Constitution for their Report on the ‘Union and devolution’ (25
May 2016).
58 TIERNEY, Stephen. Constitutional Law and National Pluralism. Oxford: OUP (2004); “We the Peoples’: Constituent Power
and Constitutionalism in Plurinational States”. LOUGHLIN, Martin; WALKER, Neil. (eds) The Paradox of Constitutionalism:
Constituent Power and Constitutional Form. Oxford: OUP, p. 229-246.
59 MACAMLAIGH (2012).
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concerns about a legal challenge being brought against an Act of the Scottish Parliament legislating for an
independence referendum and for leaving the resolution of this issue to the courts60.
3 The Edinburgh Agreement
3.1. The Road to the Edinburgh Agreement
In response to the SNP’s surprising landslide victory, the UK Government stated clearly that it wanted to keep
the United Kingdom together but, acknowledging the SNP’s signicant victory in the elections, it agreed not
to stand in the way of the referendum. In its own words, it accepted that “the future of Scotland’s place within
the United Kingdom was for the people of Scotland to vote on”61. This is signicant because they could have
argued that under the existing constitutional framework there were no separate “Scottish people” entitled to
decide their constitutional future and, more importantly, to unilaterally end the United Kingdom. It is also
signicant from a comparative perspective, and in contrast with the reaction of the Spanish Government to
similar requests posed by the institutions of self-government of Catalonia.
We can only speculate as to the reasons why the United Kingdom Government, and David Cameron in
particular, accepted that Scotland could have a referendum. Chris Himsworth and Christine O’Neill highlight
that there had been a longstanding understanding on the part of successive UK Governments that should
the SNP achieve a majority of Scottish seats in the House of Commons or, after devolution, in the Scottish
Parliament, they would allow them the right to hold a referendum62. But such a commitment dates back to
a time when those in the UK government would have thought such a rise in support for the SNP as highly
improbable. Indeed, the SNP’s 2007 election victory was completely unexpected, and its 2011 landslide
victory even more so, in particular, as has been noted, because the model was designed to produce coalition
governments in Scotland. Another reason is that, by allowing the referendum to go ahead, the UK Government
thought they could put an end to the issue. As has been seen also, despite the SNP’s election victories, actual
support for independence among citizens in Scotland had not actually risen, and at the time it did not seem to
have any real possibilities of winning. Whatever the reasons, the consequence of this was that from the start
the debate in Scotland was never on whether the referendum could be held; The debate became about what
level of government should legislate for it.
Despite the UK Government agreeing to the holding of the referendum, it also became clear from the
beginning that it wanted a say in the “how”, “when”, and “under what conditions” the referendum should be
carried out, and that it had a different position on certain aspects of the referendum from that of the Scottish
Government. As will be seen below, by strongly contesting the competence of the Scottish Parliament to
legislate for the referendum, it put forward its case for the necessary intervention of the UK Parliament and
Government in the process, thus ensuring some role in the referendum’s design. The competence debate then
became one about designing the referendum and its particulars, and having control over the process.
In January 2012, both Governments held parallel consultations on a Scottish Referendum on Independence.
The UK Government made the rst move with its White Paper “Scotland’s Constitutional Future”, described
as “A consultation on facilitating a legal, fair and decisive referendum on whether Scotland should leave the
United Kingdom”63. It was published on the 10 January and closed on the 9 March. In this document, the UK
Government presented its own view on how the referendum should be carried out and asked for the views of
the people of Scotland. The consultation also had an element of challenge about it, noting in the preface that
“there is a great uncertainty about the Scottish Government’s proposals for a referendum. We do not know
when a referendum will happen, or what question will be asked. Most importantly, the UK Government
60 Among others, MACAMLAIGH (2012) and ANDERSON et al.
61 This was then included formally in the “Preface” of their consultation on the referendum. SCOTLAND OFFICE. “Scotland’s
constitutional future”, Cm 8203 - Ofcial Documents (2012) [Consulted: June 2017].
62 HIMSWORTH and O’NEILL (2015) p. 70.
63 SCOTLAND OFFICE. (2012).
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has grave concerns that the Scottish Government’s proposals for a referendum would not be legal”64. In the
foreword they insisted again on the same point, declaring that “we had been asking the Scottish Government
to explain is position since May last year, but the Scottish Government has not set out a formal view on the
issue of legal competence nor come forward with any further proposals for a referendum”65.
In the consultation, the UK Government stated that it believed that it was not within the Scottish Parliament’s
powers, because it would relate to the “Union of the Kingdoms of Scotland and England”. Its line of argument
was based on sec. 29 of the same Act, which establishes that “whether a provision relates to reserved matters
is to be determined by reference to its purpose, and in determining its purpose, it is necessary to have regard
to a range of factors, including the effect of the provision in question”. According to the UK Government,
the purpose of the legislation would be to obtain independence for Scotland, as this would be the effect of the
“yes” vote, and therefore would relate to “the Union” (and thus be “ultra vires”). They then proposed two
options to enable the referendum to be held “legally”: the rst, to legislate to give the Scottish Parliament the
power to legislate for the referendum, via a section 30 Order under de Scotland Act 1998; the second, for the
UK Parliament to legislate directly for a referendum on Scottish independence.
The Scottish Government responded with its own consultation, “Your Scotland. Your Referendum”, which
included a draft referendum bill attached66. This was published on the 25 January and closed two months after
UK Government’s, on the 11 May. Here, the tension between both governments can also be seen, as it made
clear that any UK legislation to aid the holding of the referendum would require the consent of the Scottish
Parliament and “should be made without conditions”67. It declared that “The Scottish Government’s electoral
mandate to hold a referendum is clear. It is for the Scottish Government to propose to the Scottish Parliament
the timing and terms of the referendum and the rules under which it is to be conducted”; Adding, “The
Scottish Parliament should decide these matters”68. On the competence question, the Scottish Government
argued that the Scottish Parliament was competent to legislate for the referendum and highlighted that much
independent legal opinion supported its view. However, it also stated that it was ready to work with the UK
Government to agree a clarication of the Scotland Act 1998 that would remove their doubts and put the
referendum effectively beyond legal challenge, expressing also a preference for a section 30 Order.
Despite the openness of both governments to the option of using a section 30 Order to allow the Scottish
Parliament to legislate for the referendum, they also presented a strong disagreement on some of the
specic aspects of the referendum, among them: the overview of the process, the timing, the franchise,
and fundamentally, the number of questions the referendum should include, with the UK Government
clearly rejecting the inclusion of an intermediate option together with independence. Because of this, and
notwithstanding the concerns expressed in this sense, it did initially look as if the matter might have indeed
ended up before the courts.
3.2 A Political Agreement – Leaving the Competence Question for Another Time?
It came as a surprise to many when, after a period of negotiations, the United Kingdom and Scottish
Governments signed the Edinburgh Agreement on the 15 October 201269. It states that both governments
have agreed “to work together so that a referendum on Scottish independence can take place, and that this
should: i) have a clear legal basis; ii) be legislated for by the Scottish Parliament; iii) be conducted so as to
command the condence of parliaments, governments and people, and; iv) deliver a fair test and a decisive
expression of the views of people in Scotland and a result that everyone will respect”. The specic details
of the agreement were laid out in a Memorandum of Understanding and a draft Section 30 Order under the
64 SCOTLAND OFFICE. (2012), p. 5.
65 SCOTLAND OFFICE. (2012), p. 6.
66 SCOTTISH GOVERNEMENT. “Your Scotland – Your Referendum – A Consultation Document” (2012), ISBN: 978-1-78045-
633-1 [Consulted: June 2017].
67 SCOTTISH GOVERNEMENT (2012), p. 5.
68 Ibid.
69 Agreement between the United Kingdom Government and the Scottish Government on a referendum on independence for
Scotland” (15/10/2012) [Consulted: June 2017].
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Scotland Act 1998, which were also part of the agreement. In this way, as the agreement notes, the order
would put beyond doubt that the Scottish Parliament could legislate for that referendum, and it would not be
open to legal challenge on competence grounds. As part of the agreement, both Governments expressed their
commitment to working together on matters of mutual interest and to the principles of good communication
and respect; and also to continue to work together constructively in the light of the outcome, whatever it was,
in the best interests of the people of Scotland and the rest of the United Kingdom70.
Regarding the other issues of contention, fundamentally the Edinburgh Agreement enabled the Scottish
Parliament to legislate for a referendum that would take place before the end of 2014. In most other aspects,
the UK Government agreed to all the conditions the Scottish Government wanted for the holding of the
referendum, so long as the referendum excluded the question on the “middle option”, and only included
one Yes/No question on independence. It is worth noting that both Governments presented the Edinburgh
Agreement as a victory. On the one hand, the Scottish Government had secured the competence of the Scottish
Parliament to legislate for the referendum, and the security that this legislation would not be challenged on
competence grounds. On the other hand, the UK Government was able to set certain conditions and limits in
relation to the referendum, in particular, that there would be no second question with an intermediate option
of more devolution. As noted in the start of this article, the polls seemed to indicate that an intermediate
option would have probably obtained the majority of votes in the case of being included, and this would have
forced the UK Government to negotiate the transfer of further powers to Scotland. It could have also been
framed as the Scottish Government’s “Plan B”, which they could then have presented as a victory, even if
they lost on the issue of independence.
The Edinburgh Agreement has been praised as an example of dialogue and conciliation, and has been
described as the most signicant date in Scottish history since the Union of Scotland and England in 170771.
As is well known, it provided the referendum with a clear legal basis and a solid legal framework, which then
resulted in a fair and democratic process that was accepted by both sides and which actively engaged Scottish
citizens who turned out in high numbers on the day of the vote. For the issues considered in this article, it
is worth highlighting two additional points. The rst, that despite the lack of a specic provision regarding
the holding of an independence referendum, the Edinburgh Agreement allowed for the use of the existing
legal instruments within the framework of the Scotland Act 1998 (namely, a section 30 Order), to transfer
specic powers to the Scottish Parliament to legislate for the referendum. The second is that, in providing for
the holding of the referendum in this way, it allowed for the ongoing ambiguity and coexistence of the three
constitutional narratives regarding the United Kingdom. By doing so, it avoided the constitutional crisis that
could have followed a potential legal challenge and a decision by the Supreme Court. Neil Walker makes a
similar point when he concludes his analysis of the UK’s “constitutional unsettlement” by highlighting its
values, among which he includes the crystallisation of pluralism72. He refers to the Edinburgh Agreement
and the 2014 independence referendum that followed as an example of keeping the constitution out of the
courts and within the political system. He also stresses the virtue in the retention of constitutional uidity
for these cases, contrasting the successful negotiated outcome and process in Scotland with recent similar
developments in Catalonia and Spain. Building on this idea, Andrew Tickell describes the situation resulting
from the Edinburgh Agreement as representing an (albeit) “uneasy kind of constitutional truce”, but which
is defensible from both pro-independence and anti-independence perspectives73. Overall, then, the impact of
the Edinburgh Agreement on the debates on the UK’s territorial constitution was considered positive74. At the
70 Ibid.
71 DEVINE, Tom. “Today is the most important date since the 1707 Act of Union”. The Scotsman (1/10/2013).
72 WALKER, Neil. “Our constitutional unsettlement”. Public Law (2014) p. 529-548.
73 TICKEL, Andrew. “The Technical Jekyll and the Political Hyde. The Constitutional Law and Politics of Scotland’s Independence
‘Neverendum’”. MACHARG, Aileen; MULLEN, Tom; PAGE, Alan; WALKER, Neil (eds.). The Scottish Independence Referendum:
Constitutional and Political Implications. Oxford: OUP (2016).
74 For a more detailed analysis of the impact of the Edinburgh Agreement and the 2014 referendum process see WALKER, Neil.
“The territorial Constitution and the Future of Scotland”. MACHARG, Aileen; MULLEN, Tom; PAGE, Alan; WALKER, Neil (eds.).
The Scottish Independence Referendum: Constitutional and Political Implications. Oxford: OUP (2016); MCHARG, Aileen. “The
future of the United Kingdom’s territorial constitution: can the Union survive?”. (March 31, 2016) [Consulted: June 2017].
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same time, however, it left the strictly legal question of whether the Scottish Parliament had the competence
to legislate for the independence referendum unanswered.
4 The Competence Question and the Debates on a New Scottish Independence Referendum
4.1 The Context
In could be argued that the option of a second independence referendum arose immediately after the 2014
poll, and never went away. As is now well known, the outcome of the Scottish referendum was a victory
for the “No” side, with 55% of the votes. Another important gure to note was the 84% turnout, the highest
for any UK electoral event. However, two aspects conditioned the clear nality of the referendum decision,
leaving open the possibility of another vote on the same issue75. Firstly, and as is also well known, the joint
“Vow” published by the three unionist parties (Conservative, Labour and Liberal Democrats) promising
further powers to Scotland in the case of a “No” vote, meant the outcome tied them to fullling these promise.
In response to this situation, the result was met immediately with claims by the Scottish Government that
the unionist parties were required to follow through with their vow and provide more powers for Scotland,
and that, if they did not do so fully, this would entitle them to hold another referendum76. This led to David
Cameron setting up the Smith Commission, and to the enactment of the Scotland Act 2016, with the transferral
of signicant new competences to the Scottish Parliament and Government77.
The 2014 referendum was also followed by a signicant increase in the membership and support of the SNP,
and by and outstanding success for the party in the May 2015 general elections78. Their success in the 2016
Scottish Parliament elections was more limited as they lost their majority in Holyrood by 2 seats, but the rise
of the Green Party representation meant that there is still a majority in favour of independence in the Scottish
Parliament. During this campaign, the SNP said that another referendum cold be held if there was clear and
sustained evidence that independence had become the preferred option of the majority of the Scottish people
or “if there is a signicant material change in the circumstances that prevailed in 2014”79.
It has been the second of the aspects, the issue of EU membership, which has resulted in the current call for
a new referendum. During the 2014 referendum debate, the issue of Scotland’s continuing EU membership
in the case of a vote for independence was a central aspect of the debates and the unionists consistently
argued that Scotland would have to leave and apply to rejoin. The case for voting “No” to independence was
therefore constructed as a case to remain part of the United Kingdom but also part of the European Union80.
But even at that time, the UK’s continuing membership of the EU was unclear and therefore the nality
of the referendum decision from this perspective was also uncertain. Following the Scottish independence
referendum, the UK then held a referendum on whether it should remain part of the EU on the 23d June 2016.
A UK-wide majority voted in favour of leaving the Union, but in Scotland 62 % majority voted to remain. It
was the argument that Scotland should not be dragged out of the EU against its will, coupled with the refusal
from the UK government to consider the possibility of a special agreement with the EU for Scotland, that
lead Nicola Sturgeon to request the holding of a second independence referendum. On the 28th of March the
Scottish Parliament approved a motion in favour of seeking a Section 30 Order81.
75 CASAÑAS ADAM, Elisenda (2016).
76 CARRELL, Severin “Alex Salmond accepts defeat and presses for new Holyrood powers”. The Guardian (19/09/2014);
JOHNSON, Simon. “Nicola Sturgeon urged to stop referendum ‘betrayal bandwagon’”. The Telegraph (18/10/2014).
77 THE SMITH COMMISSION. “Report of the Smith Commission for further devolution of powers to the Scottish Parliament
(2014) [Consulted: June 2017]. On the Scotland Act 2016, see the “Special Section on the Scotland Act 2016” of the Edinburgh Law
Review 20 (3) (2016).
78 It won 56 out of Scotland’s 59 seats.
79 SCOTTISH NATIONALIST PARTY, “Election Manifesto” (2016), p. 23 [Consulted: June 2017].
80 CASANAS ADAM, Elisenda (2016).
81 CARREL, Severin (2017).
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4.2 The Competence Debate Returns – Has Anything Changed?
The announcement of the intention to hold of a second independence referendum for Scotland, and the
UK Government’s less than favourable response, reignited the debate on whether the Scottish Parliament
had the competence to legislate for such a referendum. In addition, the holding of a second independence
referendum also posed new questions regarding whether the 2014 referendum, the Edinburgh Agreement and
the reforms that had followed had any impact on these issues. The rst point to highlight is that, despite the
negative outcome, the Scottish Independence Referendum of 2014 set a clear precedent for the future: it can
no longer be argued that the UK Constitutional framework does not allow Scotland to hold a referendum on
independence. The initial position put forward by Aidan O’Neill arguing that a referendum that could result
in the dissolution of the Union should require the vote of all the peoples of the UK seems therefore no longer
a valid one.
The issue under debate remains the different legal avenues that can enable the Scottish Parliament to legislate
for the referendum. It is worth noting here that Nicola Sturgeon’s proposal for “Indiyref2” (as it has become
known) involved requesting the Prime Minister for the enactment of a Section 30 Order similar to the one
enacted after the Edinburgh Agreement. This would transfer specic competences to the Scottish Parliament
to legislate for a second independence referendum and therefore put the competence of the Scottish Parliament
beyond any doubt. It would also avoid the need to provide a black or white answer to the issue of the Scottish
Parliament’s competence. However, it would involve a new set of negotiations between both governments
and most probably the agreement to a set of conditions set out by Teresa May. Also, in his initial analysis
of the legal questions arising out the proposals for another independence referendum for Scotland, Tierney
highlights the fact that the UK Government is under no legal obligation to grant a Section 30 Order. In this
sense, he states that “the issue is, as it was in 2012, with the signing of the Edinburgh Agreement, entirely
political”82. He considers that, in order to not be presented as frustrating the will of the Scottish Parliament,
the UK Government may agree to the referendum in principle, but that the series requirements they set may
be quite strict. At the time of writing, it is unclear what conditions might be required by the UK Government
to agree to another Section 30 Order. This uncertainty leads to a series of additional questions.
The rst of these questions is whether the fact that the 2014 referendum was held on the basis of the Edinburgh
Agreement and the enactment of a Section 30 Order means that this would necessarily be required again.
This seemed to be the generalised assumption by a signicant part of commentators and the media, and also
that it would be ultra vires for the Scottish Parliament to legislate for the referendum without it83. In response
to this, Ewan Smith and Alison Young consider if the Edinburgh Agreement and the process that followed
made any difference to the above debates84. Firstly, the key point for them is that the Edinburgh Agreement
did not change the legal powers of the Scottish Parliament or the Scottish Government. They consider that, at
best, it may be seen as giving rise to a convention that Scotland needs to seek the permission of the UK of the
UK Government if it wishes to hold a referendum on independence. And they themselves also highlight that,
as the recent Miller decision has further conrmed, conventions are only politically and not legally binding.
Secondly, they point out that the reference inserted into Schedule 5 of the Scotland Act 1998 as a result of the
sec 30 Order cannot be interpreted as a guide to the meaning of the Scotland Act would ordinarily mean that
a referendum on independence would be reserved85. They highlight that even the Explanatory memorandum
to the Order makes clear that it is enacted because the UK Government “considers that such an Act would
be outside the competence of the Scottish Parliament” but, while this can be considered relevant, it is not
decisive86. The question, then, remains as open as in 2014.
82 TIERNEY, Stephen. “A Second Independence Referendum in Scotland: The Legal Issues”. UK Constitutional Law Association
Blog (13/03/2017a).
83 MANCE, Henry. ‘‘Who decides the date of a Scottish independence referendum?’’. Financial Times (14/03/2017) [Consulted:
June 2017].
84 SMITH, Ewan; YOUNG, Alison. “That’s how it works in 2014, and how it would have to work again”. UK Constitutional Law
Association Blog (15/03/2017)
85 The specic wording introduce was: “Paragraph 1 does not reserve a referendum on the independence of Scotland from the rest
of the United Kingdom if the following requirements are met -it lists also the requirements”.
86 Ibid.
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A second question that arises regards whether more recent case law on devolution provides any clearer
answers to how these issues should be approached. In this sense, Tierney argues that the Supreme Court’s
recent case law could be interpreted as leading both ways, therefore not providing any more light on
the issue 87. On the one hand, he highlights that devolution cases have adopted an increasing expansive
understanding of devolved powers, which would strengthen the argument that the Scottish Parliament does
have the competence to legislate for the referendum. On the other hand, he also notes that in the recent Miller
case, the Supreme Court not only adopted wide approach to what “the effect” of action was, but also took
a very narrow approach to the constitutional understanding of devolution. His conclusion is that “the law is
therefore uncertain”88.
It seems, then, that the different positions on the competence of the Scottish Parliament, with the exception
of the most restrictive one, still offer the relevant options for providing an answer to the question of whether
the Scottish Parliament has the competence to legislate for an independence referendum. As discussed above,
each of these options was tied to a specic understanding or narrative of the nature of the state (unitary,
federal or quasi-federal and union), and in 2014, none of these narratives had been clearly endorsed or had
preference over the other. The nal question to consider then is if anything has changed in this regard. It
is Aileen McHarg who, in her analysis of the second referendum debates, takes a broader approach and
comes back to this issue. Here McHarg argues that none of these three accounts can be regarded as having
been unequivocally endorsed or rejected by the 2014 referendum process89. While she considers that the
holding of the 2014 referendum may indicate that the unitary narrative is implausible, from a strictly legal
perspective, it could not have gone ahead without the legal authority conferred by the UK Parliament. On
the other hand, the union state narrative may have had some political endorsement, again by the holding of
the referendum and also by the Smith Commission’s report that states that “sovereign rights of the people
of Scotland to determine the form of government best suited to their needs”90. But the Supreme Court’s
more recent treatment of the Sewel Convention in the Miller case highlights the lack of force of politically
recognised constitutional claims. Macharg then argues that the quasi-federal account seems to be the one that
best ts the negotiation and conditional agreement that led up to the 2014 referendum, but that this is hard
to reconcile with some of the other aspects of the territorial constitution and the current Brexit process. In
short the three different narratives are still present and could provide a different answer to the referendum
question.
In her conclusions, McHarg considers that this uncertainty is a recipe for conict91. And it is indeed true
that, because of the lack of a clear answer to the competence question, both in 2012 and now again, this has
led to a confrontation of the two sides in the debate. Yet, at the same time, in the previous 2014 referendum
the Edinburgh Agreement and the process that followed avoided exactly that. The signing of a political
agreement between the Scottish and UK Governments providing for the use of the existing legal framework
to enable the Scottish Parliament to legislate for the referendum without the possibility of it being challenged,
avoided the need to provide a clear answer to the specic competence question, which would have resulted
in the endorsement of one of the different constitutional narratives, thus rejecting or side-lining the others.
Precisely because the current situation is more fraught that in 2012, it seems that the outcome of taking the
issue before the courts to get a clear black or white decision would be even more controversial and alienating
for the losing side than in the case of the previous referendum. Indeed, while in 2011 the referendum could
have been described as “accidental”, the conicting outcomes of the EU referendum vote have in this case
provided what can be described as “a cause” or reason for independence. In addition, leading up to the 2014
referendum both sides argued for models that included both more self-government and different ties for
Scotland with the rest of the UK, whatever the outcome92. If an independent Scotland wants to remain in
87 TIERNEY, Stephen. “A second Scottish independence referendum without a s. 30 Order? A legal question that demands a
political answer”. Centre on Constitutional Change Blog (11/04/2017b).
88 Ibid.
89 MCHARG, Aileen. “Indyre2: Who Decides?”. Scottish Constitutional Futures Forum Blog (15/03/2017).
90 THE SMITH COMMISSION. (2014), p.13.
91 MACHARG (2017).
92 TIERNEY (2017b).
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the EU and the rest of the UK continues with the Brexit process, the possibility of articulating intermediate,
interconnected models will be much more complicated, if not impossible. Because of all the above, Tierney
warns against a legal challenge, arguing that it would throw the judges “into a vexed and deeply political
dispute”, which would lead to claims that the Supreme Court was acting politically, whatever the outcome.
He concludes that, while framed as a legal question, this is a political problem that requires political answer;
in his own words, that it is “too constitutionally fundamental and politically contentious to be left to the
courts”93.
5 Conclusions
The coexistence of different constitutional narratives in relation to the foundation and articulation of the
constitutional framework is a common element in a plurinational state. In ordinary conditions they do not
affect the functioning of the institutions of government or the relationship between the different orders
of government. It is only when certain fundamental constitutional questions are posed, such as whether
the Scottish Parliament has the competence to legislate for the referendum, that these different narratives
come to the fore and are potentially in conict. In the Scottish case, this article has shown that the different
answers to this question depend on whether one adheres to the unitary state narrative, the quasi-federal
narrative or the different variants of the union state narrative, and also that the UK territorial constitution
presents elements that point to each of these. It is in this sense that this question remains unanswered, but
maybe also unanswerable, as each of the different answers has a legal basis and is constructed in a plausible
manner. It seems that, if the question does end up before the Supreme Court, whatever decision they come
to will be contested by those who do not agree with the particular narrative adopted, and it will lead to
accusations of politisation against the court. As a consequence, a legal challenge would not resolve the
conict, but simply exacerbate it further. The 2012 Edinburgh Agreement avoided a potential constitutional
crisis, and enabled the independence referendum to go ahead in conditions that were agreeable to both
orders of government. Despite their differences, all parties involved were very much aware of the need to
maintain an open constitutional framework that allows space for pluralism and for the different constitutional
narratives to coexist. It seems that this is again the best possible option if a second referendum goes ahead.
If there is a lesson to be learned from the competence debates leading up the 2014 referendum, it is that the
awareness on both sides of the fundamentally political nature of the question under discussion avoided the
escalation of the conict.
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