Scottish Independence: A UK-wide referendum would be required

Below is the text of a post of mine published on the OurKingdom site last week. It stimulated a lively debate, which has led me to think further about the fundamental issues involved. I discuss these below after the copy of the OurKingdom post:

Giving only Scotland a say on independence negates the existence of Britain

What is the Union from which Scotland would separate if it voted for independence? Is it the United Kingdom (that is, of Great Britain and Northern Ireland: the continuation of the 1801 Union between Great Britain and the whole of Ireland); or is it merely Great Britain (the Kingdom that resulted from the 1707 Union between England & Wales and Scotland)?

If it is the former, then I would concede the point that only those living in Scotland should have the automatic right to vote for Scottish independence in a referendum: irrespective of questions of national sovereignty, it satisfies the demands of natural justice that it is the people living in a particular country or region who should decide whether to separate from a larger national or supra-national entity of which that country or region has hitherto been a part. The analogy here would be with the 1995 referendum on independence for Quebec. It was right that only those living in Quebec were entitled to vote; and even if independence had been carried, the rest of Canada would have remained Canada without Quebec. Similarly, the United Kingdom would still be the United Kingdom without Scotland, albeit a continuation of the 1801 Union in which the absence of the southern part of Ireland would now be paralleled by the absence of the northern part of Great Britain. I hope we could then sensibly call it the ‘United Kingdom of England, Wales and Northern Ireland’ rather than what could well be regarded as a ‘logical’ alternative in view of this ironic ‘symmetry’ of Irish and Scottish independence: the ‘United Kingdom of Southern Britain and Northern Ireland’! Let’s at least include England in the name of the state now that Great Britain was no more – even if England did continue to be governed, as it is now, as if it were the UK.

‘Now that Great Britain was no more’, I said. Well, that’s the problem. If a Scottish vote in favour of independence is viewed as breaking up Great Britain, rather than the UK, then the question of who has a right to vote on Scottish independence takes on a different character. This is because the result of a ‘yes’ vote would now not be merely the reduction in size of a state that would continue to exist but the actual breaking up of what many still regard as a nation: Great Britain, or Britain for short. The point of the above discussion on the absurdity of calling the resultant rump state the ‘United Kingdom of Southern Britain and Northern Ireland’ is that it makes it obvious that Britain as a nation would indeed cease to exist if Scotland became an independent nation: we’d be left not with Southern Britain, or Lesser Britain, but just England and Wales.

In view of these facts, if Britain is regarded as a nation, then it should really be all of the people of Britain (i.e. of England, Wales and Scotland) who should have a democratic say on Scottish independence; because then what is at stake is whether the British nation continues to exist or not. It should not be down to just one part of a nation to decide whether the nation as a whole remains. The analogy here would be with the so-called ‘Velvet Divorce’ between the Czech Republic and Slovakia in 1992: a peaceful dissolution of a bi-national state into its two constituent parts that carried the consent of the majority in both parts. From this point of view, it really is a matter of national sovereignty: if Britain is a nation, then its dissolution should be an expression of the sovereign will of all her people. In other words, if you advocate the view that only the Scots should decide on Scottish independence, then you are saying that Britain is not a nation, i.e. a national polity whose sovereignty is founded on the will of its people. Unionists who concede that the issue of Scottish independence should be resolved through a Scotland-only referendum should be aware that they are thereby also conceding that Britain is not a real, sovereign nation.

Indeed, many who consider themselves to be unionists have gone even further than this and have accepted the Scottish Claim of Right of 1988: the claim that it is “the sovereign right of the Scottish people to determine the form of Government best suited to their needs”. As is well known, one of the most notable signatories of this declaration was Gordon Brown. Ironic that one of the most impassioned defenders of the idea that Britain is a sovereign nation should doubly negate that nationhood by 1) accepting that only one part of that ‘nation’ can decide to break it up; and 2) that the part in question is itself a sovereign nation.

Now, if Scotland is a sovereign nation, it is of course profoundly illogical and unfair to deny that England in particular (the other, and larger, part of the 1707 Union of Great Britain) is a sovereign nation. [This is quite apart from the question of the status of Wales, which is beyond the scope of the present posting; but at the time of the 1707 Union, Wales was subsumed into England.] Therefore, if Scotland’s right to decide on its independence is seen as a rightful expression of its sovereignty, it is wrong to deny the same right to England. Logically, therefore, England should be allowed to hold a referendum on independence alongside a Scottish poll. Note, however, that – if these referendums are based on the principle of Scottish and English national sovereignty – the vote in England would not be just about dissolving the 1707 Union and, as a consequence, departing from the 1801 Union which otherwise might remain intact: this would be Scotland’s choice. In England, the vote would be about separation from all of the countries of the UK, including Wales; and it would therefore result in a dissolution of the UK, not just of Britain.

To summarise:

•    if Scottish independence is seen as separation of one part of the UK state from the rest, this means that the right for the Scots alone to decide the issue is based merely on natural justice and fundamental human rights

•    if, on the other hand, Scottish independence is viewed as breaking up the nation of Britain, then according the right to decide on that break up to the Scots alone negates the proposition that Britain is a real nation and violates the sovereignty of its people

•    but if the right of the Scots to vote for independence is based on a view that Scotland is a sovereign nation, then England must also be regarded as a sovereign nation and cannot fairly be denied a vote on its independence, which – if carried – would break up not just Britain but the UK

•    but logically, the right to make that decision on English independence should also be offered to the Welsh and the Northern Irish: only if the (rump) UK is a nation, that is, in which case all the people of the UK should decide on its break up.

However, this last scenario scarcely seems imaginable; which only goes to show that the UK – even less than Britain – is not a real nation at all.

In all the comments on the OurKingdom site, it was particularly the very first one, from Tom Griffin, that set me thinking:

“I think the single biggest key to Britain’s constitutional crisis is the fact that the British state has never been founded on any conception of popular sovereignty, but on the basis of parliamentary sovereignty, conceived originally as the vehicle of a landed elite against absolute monarchy on the one hand, and the unpropertied masses on the other. This was something that came out very clearly in the Putney debates of the 1640s, one of the few serious attempts to put forward the idea of popular sovereignty in England.

“Scotland, on the other hand has a long history of (at least rhetorical appeals to) the idea of popular sovereignty. It has never given up that tradition. Hence, nationalism is a natural vehicle for the idea of popular sovereignty in Scotland.

“Part of what is happening now is that latent conflict is coming to the surface.

“Scottish popular sovereignty cannot undermine British popular sovereignty because such a thing has never existed.

“The key issue is how to establish popular sovereignty in the rest of the UK, most particularly in England. Frustrating the popular will in Scotland will not help achieve that.”

I think Tom Griffin is right. Neither Great Britain nor the United Kingdom are nations founded on a principle of popular sovereignty: the idea that the authority to govern rests on popular assent, and that the state essentially represents the people. In practical terms, even if a Scottish referendum was based on an appeal to the supposed sovereignty of the Scottish people, the acceptance and ratification of a vote in favour of independence would be the responsibility of the UK parliament, which still exercises absolute sovereignty over Scotland even under devolution. In practice, there’d have to be negotiations on all the terms of independence – financial, legal and constitutional – and an Act of Parliament authorising those terms would have to be passed. It is then expected that there would need to be a second referendum asking for the Scottish people’s approval of independence under the terms agreed.

Two key points emerge from this:

  1. Such a ‘Scottish Independence Act’ may well concede the issue of Scottish popular sovereignty, i.e. that the Scottish people have the right to determine the form of governance that suits them. At this point, it would be possible to press the case that this principle of popular sovereignty should be extended to the other nations of the UK on grounds of equality and human rights. Such a case could even be pursued in the law courts. On the other hand, the Independence Act might end up merely transferring UK parliamentary sovereignty over Scotland to the Scottish Parliament, meaning there would be no formal recognition of the sovereignty of the Scottish people. This course of action might be unavoidable if Scotland were, at least initially, to maintain the 1603 Union of the Crowns; i.e. if it were to remain a constitutional monarchy with the same king or queen as the continuing UK. Parliamentary sovereignty represents the ultimate sovereignty of the monarch; so if Scotland remained a monarchy, it might have to maintain the principle of parliamentary – rather than popular – sovereignty. All the same, the first, Scottish government-sponsored referendum on the principle of independence would involve an appeal to popular sovereignty; so this would provide an opportunity to push for recognition of English popular sovereignty.
  2. It is distinctly possible that if Scotland departed from the UK, this would result in the break up not just of Great Britain (as I said in the OurKingdom piece) but of the UK as a whole. This is because the 1801 Union that established the United Kingdom was between Great Britain and Ireland. If Great Britain ceases to exist by virtue of a Scottish Independence Act, then surely the 1801 Union would also be annulled: if Great Britain ceases to have any ‘legal personality’, then a union between Great Britain and Ireland is of nil effect. In all likelihood, a Scottish Independence Act would try to get round this through clauses specifying that the legal personality of the United Kingdom – and, hence, all UK laws, and international treaty obligations and privileges – would remain intact. However, I again think that a legal case could be made out that Scottish independence would mean that the UK as presently constituted ceased to exist. I base this on the actual text of the 1801 Union, which states: “the said kingdoms of Great Britain and Ireland shall, upon the first day of January which shall be in the year of our Lord one thousand eight hundred and one, and for ever after, be united into one kingdom, by the name of the United Kingdom of Great Britain and Ireland”. How can a kingdom formed from the union of Great Britain and Ireland – and officially named ‘the United Kingdom of Great Britain and Ireland’ – continue to exist if Great Britain is no more? The departure of the greater part of Ireland from this union in 1922 altered nothing, legally speaking, about the Ireland part of the UK state’s composition and name: constitutionally, Northern Ireland inherited the status and legal personality that had previously been attached to the whole of Ireland. This suggests another reason – in addition to the British state’s pathological denial of the nationhood of England – why the UK parliament might wish to call the continuing UK state the ‘United Kingdom of Southern Britain (or even just ‘Britain’) and Northern Ireland’: in this way, England and Wales could inherit the legal personality of Great Britain, enabling the 1801 Act to remain in effect.

However the UK parliament tried to get round the threat that Scottish independence could result in the dissolution of the UK, this would almost certainly involve legal clauses – whether amendments to the 1801 Act of Union, or just clauses in a Scottish Independence Act – that spelt out that the ‘former’ United Kingdom of Great Britain and Northern Ireland would continue to exist, albeit under a different name, if Scotland left it. These could be vulnerable to a legal challenge. In addition, from a political point of view, it could be argued that these clauses represented a change to the UK constitution, which therefore required a referendum before being passed into law: it is indeed a fundamental constitutional change if the UK is now said to be made up of the union of England, Wales and Northern Ireland rather than the union of Great Britain and (Northern) Ireland, which is how things were meant to be in perpetuity according to the 1801 Act. Effectively, this represents a new Union contracted between three, or possibly only two, legal personalities: ‘England & Wales and Northern Ireland’ replacing ‘Great Britain and Ireland’ in the original legislation.

On this basis, there would be a very strong case – legally and politically – for a UK-wide referendum: not on Scottish independence in isolation but on the new constitutional settlement for the continuing UK alongside a potentially independent Scotland. The question asked in a vote could be as follows:

“Do you agree with the constitutional settlement for England, Scotland, Wales and Northern Ireland passed by Parliament in the Scottish Independence Act (2011): an independent Scottish state and the continuation of the UK as the United Kingdom of England, Wales and Northern Ireland [or the United Kingdom of (Southern) Britain and Northern Ireland, in my nightmare scenario discussed above]?”

In such a scenario, a majority in favour of Scottish independence would be all that was required for this to proceed. However, if the majority in the continuing UK voted against the deal (which would most likely be because it rejected what was on offer for the remaining UK countries, rather than wanting to block Scottish independence), then the parts of the Scottish Independence Act or other constitutional legislation relating to the continuing UK would have to be renegotiated. At this point, all the options can come onto the table: independence for all the UK countries; federation; confederation; etc.

To a large extent, all of this is speculation. But the important point I want to stress is that the referendum(s) for Scottish independence provide(s) pressure points at which two key demands can be advanced:

  1. The sovereign right of the English people to determine the form of governance that suits it
  2. The right of all the nations of the UK to vote on the constitution of the continuing UK following Scotland’s departure from the Union.

Two fundamental principles: self-determination not just for Scotland, but also for England, Wales and Northern Ireland; and the right to vote on changes to the UK constitution. From the establishment of these principles, the interrelated processes of achieving self-governance for England and wholesale constitutional reform could really gather momentum.

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8 Responses

  1. There are two points in this post which need to be clarified.

    1. You write –

    ‘the supposed sovereignty of the Scottish people’

    There is nothing ‘supposed’ about it –

    ‘The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law…I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all of the peculiar characteristics of the English Parliament but none of the Scottish Parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done.’

    SOURCE: MacCormick v Lord Advocate 1954 (1953 SC 396),

    ‘greater power can only be granted to Scotland by the UK Parliament and here there is potential for conflict. To take the extreme example, constitutional matters are reserved but it is hard to see how the Scottish Parliament could be prevented from holding a referendum on independence should it be determined to do so. If the Scottish people expressed a desire for independence the stage would be set for a direct clash between what is the English doctrine of sovereignty and the Scottish doctrine of the sovereignty of the people.’

    SOURCE: ‘The Operation of Multi-Layer Democracy’, Scottish Affairs Committee Second Report of Session 1997-1998, HC 460-I, 2 December 1998, paragraph 27.

    2. And further in the post –

    ‘so if Scotland remained a monarchy, it might have to maintain the principle of parliamentary – rather than popular – sovereignty.’

    To be perfectly honest, that is wishful thinking. The relationship between the people of Scotland and any monarch is clearly specified in the Declaration of Arbroath –

    ‘But after all, if this prince shall leave these principles he hath so nobly pursued, and consent that we or our kingdom be subjected to the king or people of England, we will immediately endeavour to expel him, as our enemy and as the subverter of both his own and our rights, and we will make another king, who will defend our liberties’

    SOURCE: ‘The Declaration of Arbroath’ (1689 translation).

    The issue of sovereignty was specifically excluded from the Treaty of Union of 1707. The Parliament of the United Kingdom has NEVER been sovereign – because of its locarion it has only been ASSUMED that it is sovereign –

    ‘Yet the Scots made a grave miscalculation. They thought of the treaty as a written constitution, and, even with all the concessions they had obtained, they would not have accepted that an omni-competent parliament had power to abrogate provisions which they fondly imagined to be ‘fundamental and essential’…But the theories of English constitutional lawyers prevailed, and the union has proved to have no more sanctity than any other statute. from time to time attempts have been made to appeal to the terms of union, but always without success.’

    SOURCE: ‘Scotland: The Shaping of a Nation’ by Gordon Donaldson, page 58, ISBN 0 7153 6904 0.

    The ‘Sanitization’ of Scottish History – http://follonblogs.blogspot.com/

  2. Thanks for your comment, Michael. However, as far as I can see, you don’t come up with a specific example from Scottish constitutional law where the principle of popular sovereignty is unambiguously and positively established. Your second example talks of a ‘doctrine’ of the sovereignty of the people. Is a doctrine the same as a formal precept or principle established in statute or precedent?

    Nor do I think your points in No. 2 invalidate what I said, which is that in any actual UK parliamentary bill conceding independence, it may be only parliamentary sovereignty that is bestowed on the Scottish parliament, rather than the principle of popular sovereignty being conceded. If this latter happened, it would add fuel to the demands for popular sovereignty for and in England.

  3. ” the United Kingdom of England, Wales and Northern Ireland [or the United Kingdom of (Southern) Britain and Northern Ireland, ”

    Bearing mind that Northern Ireland is a Province, that Wales is a Principality and that whilst England is a kingdom there is only one of her – then the continuing use of the term “United Kingdom” for the remainder of the UK after Scottish independence is a logical absurdity and would be rightly held to ridicule

    which does not mean that those who are determined not to recognise England won’t try it !

    The words sometimes used from 1603 to 1707 ie before there was a United Kingdom were “United Kingdoms” which still is not correct
    ( they were only united by virtue of having the same monarch and therefore were not united , they remained quite independent of each other)

    Surely the Union is question is the Union of 1707?
    That other Union of 1801 is secondary .It is 1707 that counts and that was a national marriage entered into by two parties.
    I suppose that if there were to be a referendum in Scotland only then this would provide the SNP with a license to negotiate divorce .
    However , the other party to the marriage contract (England) would then be advised to seek independent advice ie independent from the British state which in no way could be deemed to acceptable as an impartial body .
    Alternatively Engalnd could take her own advice.

  4. I think it was in the last edition of this season’s Question Time that Nicola Sturgeon stated (unchallenged): ‘Independence for Scotland means independence for England’.

    It made for a nice bit of rhetoric for the largely English television audience but if taken at face value it implies that the SNP sees the vote on independence in Scotland as one which will signal the end of the United Kingdom.

    It’ll be interesting to see if the SNP pursue this line to its logical conclusion.

  5. I am a nationalist and I can tell you what nicola sturgeon reffered to is the fact that the english think that our 56 scottish mps dictate to the 200 and odd english welsh and irish mps all laws governing the uk. What she meant was if scotland gets independence the english wont feel we are dictating to them or running the entire country. With regards to the independence referendum Scotland was a soverign country before the union and after examining and scrutinising the un charter and international law has a right to claim indepenence. Scotland wishes to seek independence as a nation from uk and britian before the union scotland was not any part of britian. under the un articles of national self determenation only the people living in the country or area wishining to seek independence may vote on independence and that there vote must be free from political interference and it is the right of the majority to decide. in other wordws the unionist cant claim they know what we scots want till they ask us further to this whilst the unionists claim there voters want devolution only is wrong as a lot in fact a majority of the people that voted for the scottish parliment voted on the grounds it was the first stage of independence and the majority was made up of nationalists and unionist pary supporters. so you see scotland only wants independence from th uk and britain we cant break up the uk and britain we can only break away from it. in order to break up britain each country in the uk would have to vote for complete indepence for themselves for britain to cease to exist completley!

  6. NO that isn’t the case.
    Only the scottish people can decide their future likewise only the english people can decide their future
    it would not be a UK wide referendum as in scotland we have a devolved parliment.
    The idea lacks sense that england could vote on scottish indepdence or that scotland could vote for english independence.
    The future of a country lies with its people.

    ROBERT DUNCAN
    There are 650 mps
    529 are english
    104 are scottish,welsh and northern irish.
    So the idea that scotland or wales or northern ireland could dictate to england lacks the seat power
    even if every country accept england voted on a matter in the same way the would still be overpowered 4:1

    you are right of course just needed a little correction.

  7. I have to admit that I only half understand the various constitutional
    arguments set forth above. My personal concerns are over access to any political process which might lead to independence. I was born and bred in Edinburgh, but I live in exile in Essex, a place I very much dislike. I’m a long time Labour Party activist, but given the chance I just might vote for independence even though I deeply distrust Alex Salmond.

    I would like to see Scotland as a full and committed member of the
    European Union and within the Eurozone. However, it would seem that I
    can’t vote, even if whether or not I made an attempt to move back to
    Scotland might well be affected by a referendum result. Is there any
    way to circumvent this? Sorry if this question falls short of the
    intellectual level of the abstruse consitutional arguments presented
    everywhere else. For me it’s basic – CAN I SOMEHOW VOTE?

    • Bill, I think you need to be on the electoral roll somewhere in Scotland to vote, same as for any other election. So unless you can get yourself on to the said electoral roll, you wouldn’t be able to vote – unless the Scottish government introduces some sort of rule that exiled Scots like yourself can have a postal vote; but what kind of proof of Scottishness they’d require, I don’t know. Perhaps if you have parents or family still living up there, you could get them to put you on the electoral roll at their address, and then you could have a postal vote.

      Your predicament is another argument in favour of all people in the UK having some sort of say in Scottish independence.

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