Scottish Independence And The UK Authorities’s Unreasonable Refusal To Negotiate

In October 2022, the UK Supreme Courtroom heard arguments on the authorized viability of a second Scottish independence referendum, in a reference introduced by the Lord Advocate. The aim of this exploratory weblog is to not rerun the argument of this case, however to boost further factors towards the UK Authorities’s conduct in refusing to barter with Scotland on independence.

A broader technique


First, ought to the Courtroom dismiss the Lord Advocate’s reference, that doesn’t finish issues. Scottish independence is way broader than the problem of competence to carry a referendum underneath the 1998 Scotland Act. The devolved settlement is barely 25 years outdated however Scotland and England have been joined since 1707 in a voluntary parliamentary union concluded between two sovereign States. Importantly, this relationship, and the consent of each events to it, is ongoing, not all finished and dusted three centuries in the past, and, since 1707, Scotland has maintained its personal separate authorized system, Church, schooling system and cultural heritage.

Certainly, the Scottish Authorities’s personal technique for independence clearly extends past testing the legality of a referendum underneath the Scotland Act in court docket. Ought to the Supreme Courtroom discover the Scottish Parliament lacks legislative competence, then the First Minister introduced that the SNP would battle the subsequent UK Basic Election as a ‘de facto’ referendum on the ‘single query’ of whether or not Scotland ought to be impartial. Additional, the SNP submitted an intervenor transient within the Supreme Courtroom concerning the fitting of the Scottish folks to self-determination, and to democracy. However I consider these further contentions might be supplemented by additional claims primarily based on consent, change of circumstances and the requirement to barter in good religion. After all, all that follows should be supported by proof that the Scottish folks needs to train its proper to self-determination and go away the Union. If this weren’t so, then the Scottish Authorities would itself be violating the precept of democracy. The clearest technique to display whether or not such a want existed could be by a referendum on independence, which is why referendums have been the main target of a lot dialogue so far. However the existence of such a need could possibly be decided in different methods, comparable to at a Basic Election.

Democracy and Self-Dedication

Self-determination is a elementary proper, protected in each the UN Constitution and the International Covenant on Civil and Political Rights. Self-determination and consent are complementary – the place there’s a need for self-determination, consent to proceed a relationship could also be withdrawn. Notably, through its own conduct over many years, the UK government (together with Prime Ministers) acknowledged the UK Union as voluntary, and that Scotland has a proper to self-determination – thus sustaining an expectation permitting for independence in precept. This example clearly distinguishes the UK from States comparable to Spain, whose Structure declares ‘the indissoluble unity of the Spanish nation’, or the US, whose Supreme Courtroom in 1868, in Texas v White, held that there was no proper to State secession. Nonetheless, though the Scottish folks have an acknowledged proper to self-determination, this will solely be lawfully actualized via consensual negotiations with the UK Authorities. It subsequently follows that such negotiation shouldn’t be unreasonably withheld. As the SNP brief in this case argued, the place there exists a proper, there should be a treatment: ubi jus ibi remedium.

Additional, democracy is a key constitutional precept, and the UK Authorities has undermined democracy by ignoring the SNP’s 2021 manifesto pledge and its endorsement by the Scottish people, in addition to the January 2020 Scottish Parliament vote for an independence referendum. By ignoring the mandate of a lawful authorities, the UK Authorities’s conduct on this context additionally undermines the rule of regulation.

Change of Circumstances

These arguments could also be supplemented. An additional argument (embraced by the Scottish Authorities in its 2019 White Paper Scotland’s Right to Choose,) is that any persevering with consent (for instance, that of the No vote within the 2014 referendum) has been overridden by the change of circumstances that’s Brexit. A lot has been product of the remark that the 2014 referendum was a ‘once in a generation’ probability. However this comment had no authorized impact, and in any case, the 2016 Brexit referendum offers a transparent ‘change of circumstances’ – as in 2014, the UK authorities strongly argued that Scotland might solely defend its EU membership by remaining within the UK. This after all has not been the case.

If we flip to regulation, we discover that the majority authorized techniques present fruitful examples of the place a change of circumstances will consequence within the termination of, or substantial change to, an settlement.

The Articles of Union between England and Scotland had been initially negotiated by worldwide treaty. Article 62 Vienna Conference on treaties (and customary worldwide regulation) offers that, the place ‘The impact of the change is radically to remodel the extent of obligations nonetheless to be carried out underneath the treaty’ then a elementary change could also be invoked as a floor for terminating or withdrawing from the treaty. The premise of a lot treaty and contractual regulation rests on the general public coverage of defending and giving impact to cheap expectations. Thus in lots of techniques of contract regulation, a elementary change to the circumstances of the contract can undo its binding nature. Article 89 Frequent European Gross sales Regulation, for instance, offers for an obligation to renegotiate the place there was an surprising change of circumstances, and if events are unable to succeed in settlement then a court docket could declare dissolution of the contract.

However many different areas of regulation additionally present examples. In the course of the management marketing campaign, Liz Truss insisted that she would never let the UK ‘family’ be split up, nor permit one other independence referendum. Other than the truth that this isn’t a call for the UK Prime Minister to ‘permit’, household regulation – and divorce regulation specifically – itself acknowledges {that a} consent order might be put aside if there’s a vital change in circumstances. There are comparable rules at work in wills and succession regulation.

These examples are proffered as illustrations that not solely politics and morality, but additionally the regulation itself, is clearly receptive to arguments to dismantle agreements on the premise of a change of circumstances.

Good Religion

One other argument could also be added, which is that the UK Authorities has an obligation to behave in good religion with Scotland on the query of independence. Good faith is clearly a feature of UK Constitutional Law. and likewise applies in worldwide regulation (for instance, a very good religion obligation is explicit in Article 5 UK/EU Withdrawal Agreement). It has additionally been discovered to be a precept inherent within the idea of federalism, and specific in Artwork 41 South African Structure. In 2020, the Advocate General for Scotland and the Head of the UK Government Legal Department both resigned in protest over the UK authorities’s dangerous religion violation of worldwide regulation within the Inner Market Invoice. Utility of the Sewel conference can be an apparent space the place good religion ought to function, however the precept is definitely of wider software to relations between the Scottish and UK Governments usually. For many who may argue there isn’t any specific obligation of fine religion between England and Scotland, it’s value noting that current English and Scottish caselaw has discovered a very good religion obligation implied in “relational contracts.” Though evaluation of ‘relational contracts’ has arisen within the context of business entities, ‘relational’ attributes apply equally, mutatis mutandis, to relations between England and Scotland.

Transferring ahead

Subsequently, to sum up: the 5 arguments above ought to be asserted as clearly and loudly as potential.

The primary floor is that the Union between Scotland and England is voluntary, and Scotland’s consent to this Union was not one-off again in 1707, however ongoing and could also be withdrawn. A second and associated argument issues Scotland’s proper to self-determination in worldwide regulation, which requires the UK to interpret State regulation within the mild of that obligation. The third floor is the precept of democracy which sustains the legitimacy of elected governments and necessitates that their mandates be taken severely and never overridden. The fourth floor derives from manifold authorized sources over many areas of regulation which enable a change of circumstances to negate consent previously given. The fifth floor is the requirement to act in good religion, a precept once more noticed in lots of areas of regulation, each explicitly and impliedly.

What kind of arguments do these 5 grounds quantity to? It has been persuasively argued that, even when the Supreme Courtroom finds the Scottish Parliament lacks competence for a referendum Invoice, it ought to nonetheless declare the UK Authorities’s conduct unconstitutional (if not unlawful) as a result of it prevents implementation of SNP manifesto commitments to instigate an independence referendum. This rivalry attracts analogies with Canadian Supreme Courtroom choices (eg 1981 Resolution to Amend the Constitution, the place that court docket distinguished unlawful from unconstitutional authorities conduct, and inspired political negotiations) and the UK Salisbury constitutional conference, whereby the manifesto of a democratically elected Parliament can’t be vetoed by a much less democratic physique. On this method, it has been argued that the UK Supreme Courtroom ‘can play an important role in attempting to encourage civilised negotiations.’ 

Nonetheless, placing all this collectively, I consider a legally stronger argument could also be made. One could deduce an obligation of the UK authorities to allow Scotland to carry a referendum on the query of independence (primarily based on authorized grounds of change of circumstances and good religion) and a further obligation to barter in good religion if Scotland so requests. The UK Authorities could not refuse to take action unreasonably. It shouldn’t take choices which violate Scotland’s elementary proper to self-determination, or democracy, and not using a clear, rational and evidenced foundation for doing so (which has not been forthcoming). The SNP has at all times careworn the significance of legality – particularly salient on condition that an impartial Scotland would need recognition from the worldwide group, not least if it wished to grow to be an EU member. Nonetheless, it’s equally necessary that the UK Authorities’s conduct be uncovered as not merely unreasonable and immoral, but additionally as contravening some key authorized rules.

Sionaidh Douglas-Scott

Professor Douglas-Scott joined Queen Mary in September 2015 as Anniversary Chair in Regulation. Beforehand she was Professor of European and Human Rights regulation on the College of Oxford, and earlier than that Professor of Regulation at King’s Faculty London. She retains a hyperlink with Oxford as honorary analysis fellow at Girl Margaret Corridor, Oxford.