Options for a legal mechanism for triggering any independence referendum

The Committee i These conclusions (paragraphs 102-109) were agreed by division (For 4 (Clare Adamson MSP, George Adam MSP, Keith Brown MSP; Patrick Harvie MSP); Against 3 (Jamie Halcro Johnston MSP, Stephen Kerr MSP; Neil Bibby MSP); Abstentions 0) notes the broad consensus expressed by witnesses and by its advisers as to the current legal position in relation to any future independence referendum:
That international law confers no legal right for Scotland unilaterally to secede from the United Kingdom nor unilaterally to hold a referendum on the question of Scottish independence;
Therefore, that the question of Scottish independence must be answered in accordance with the United Kingdom’s constitutional arrangements;
That the multi-national character of the United Kingdom’s constitution is reflected in the Acts of Union that created a new state, Great Britain, while preserving distinct Scottish national institutions in law, education, local government and religion;
That while the Scottish constitutional tradition of the sovereignty of the people is widely accepted, the UK’s constitutional arrangements vest legal sovereignty (i.e. the highest law-making authority) in the UK Parliament;
Therefore, the primary route for Scotland to become independent is an Act of (the UK) Parliament providing directly for Scottish independence or enabling the Scottish Parliament to declare independence;
That this is so notwithstanding that the Acts of Union make no provision for their dissolution and declare that the union between Scotland and England is to last “forever”, nor the common perception that a voluntary Union entered into by two parties could reasonably and commonly be understood to imply a process for its dissolution;
That the Scotland Act 1998 reserves both “the union of the Kingdoms of Scotland and England” and “the Parliament of the United Kingdom” to the United Kingdom Parliament and makes the Acts of Union subject to that Act;
That the Supreme Court has determined that legislation authorising a referendum on Scottish independence would “relate to” these reserved matters and therefore would be outside of the Scottish Parliament’s legislative competence;
Therefore, that in order for the Scottish Parliament to legislate for an independence referendum this would require a transfer of legislative competence either by a section 30 order or by primary legislation made by the UK Parliament;
That the 2014 referendum was legislated for by the Scottish Parliament on the basis of an agreement between the Scottish and UK Governments and a section 30 order that was approved by both the Scottish and UK Parliaments;
That this section 30 order established a time-limited power to provide for that specific referendum and was not intended to establish a legal precedent.

The Committee recognises that within the context of both international law and the UK constitution, Scotland has no legal right to unilaterally secede nor to unilaterally hold a referendum on the question of independence. But of equal importance, the people of Scotland have a democratic right to determine Scotland’s constitutional future. Indeed, this is central to the Scottish constitutional principle of the sovereignty of the people. It is also implicit in the findings of the Smith Commission which stated that “nothing in this report prevents Scotland becoming an independent country in the future should the people of Scotland so choose”. As Professor Renwick told us, “there is widespread agreement that the Union is voluntary and that, should the people of Scotland wish it, Scotland is entitled to independence.”

The Committee also recognises that, where the UK Government agrees, there is a pathway for the people of Scotland to exercise their democratic right to determine Scotland’s constitutional future; but that in the absence of that agreement there is no such pathway for the people of Scotland to exercise this right. Within the UK constitution this right is dependent on the agreement of Westminster. Whether or not that agreement would be forthcoming is essentially a political decision and therefore theoretically dependent on the levels of political support as expressed in a variety of ways. For example, through elections, parliamentary votes and public debate. Unlike the position in Northern Ireland, there is no legal mechanism by which a Scottish independence referendum can be triggered if that is what the people of Scotland so choose .

Within the United Kingdom’s constitutional arrangements, formal democratic mandates have historically been established through elections and legislative processes. It is problematic that no established mechanism exists for ensuring that, in appropriate circumstances, the wishes of the people of Scotland can be expressed, and as we heard from Professor Renwick, this can be said to represent a democratic “disjuncture” whereby the "democratic mechanism may not work." As he also points out, “it is the UK electorate that chooses those with the power to trigger a referendum, whereas the electorate whose wishes are to be respected is that of Scotland.”

The Committee’s view is that this creates a democratic anomaly.

The Committee recommends, therefore, that steps should be taken to address this democratic anomaly. This should include the agreement, regardless of the UK’s political priorities, of a trigger mechanism which would allow the people of Scotland to exercise their democratic right to determine Scotland’s constitutional future if they so wish.

During its inquiry the Committee considered a range of statutory and non-statutory options from comparative constitutional practice, these included:
An amendment to the Scotland Act that would give to the Scottish Parliament powers to legislate directly for a referendum if certain criteria are met (such as the referendum provisions in St Kitts and Nevis or in Liechtenstein) or that confers such a power more broadly (such as in the Turks and Caicos Islands);
An amendment to the Scotland Act that would place a duty and/or confer a discretionary power to hold a referendum on the UK Government (or to transfer such a power to the Scottish Parliament) if certain criteria are met (such as the referendum provisions contained in the Northern Ireland Act or in the constitution of Ethiopia);
Binding political agreement between the Scottish and UK Governments as to what measures – votes in devolved and/or UK elections; votes in the devolved legislature; quantitative and qualitative opinion polls; other forms of civic engagement such as citizens’ assemblies – should determine the clear will of the people of Scotland to be asked and to answer the question of Scottish independence.

The Committee believes that the Scottish Government and the UK Government should negotiate a clear pathway to exercising Scotland’s democratic right to determine its constitutional future as a matter of urgency. This should include consideration of the statutory and non-statutory options discussed in this report.