Official Report 736KB pdf
Good morning, again, and a warm welcome back to the meeting. Our next agenda item is continuation of our evidence taking on a legal mechanism for any independence referendum.
I hope that I get the witnesses’ names right—please correct me if I am wrong. We are joined in the room by Professor Nikos Skoutaris, professor of European constitutional law, University of East Anglia; Dr Lea Raible, school of law, University of Glasgow; and Professor Ailsa Henderson, professor of political science, University of Edinburgh. We are joined online by Professor Aoife O’Donoghue, school of law, Queen’s University Belfast, as well as, for the second week in a row, a guest from Canada—and I want to thank Professor André Lecours, professor of political studies, University of Ottawa, for his early rise. Thank you all for your written submissions, which have been very helpful in our deliberations.
We have heard in our evidence taking that, especially in the wake of the Supreme Court ruling, the Scottish Parliament does not have the competence to legislate for another independence referendum. Is there any merit in seeking to formally establish the circumstances in which a referendum could take place? Moreover, do you have any views on what that legal framework or procedure could look like, or what framework or procedure could be arrived at?
I will go from left to right, starting with Dr Raible.
The short answer is yes, I think that there is merit in establishing what a procedure would look like, because matters of process are really important, particularly when it comes to securing loser’s consent and ensuring that the losing side is prepared to accept any result that comes out of a process. That is important not just after but before a referendum; after all, there are losing sides both before and after the process. They might, or might not, be the same, as the case may be, but they both exist nevertheless.
As I said in my written submission with regard to what I think any regulation should look like, evidence from international experience and public opinion—I am sure that my colleague Professor Henderson will say more about that—actually point to having a mechanism that establishes more autonomy for Scottish institutions than is currently the case. If there is a tight hold on questions of process by the parent state—the metropolitan state—of any entities that have some secessionist pressures within them, it seems to further instability rather than stability. That might seem a bit counterintuitive, but it is, in my view, quite conclusive.
To sum up the points made in the two previous evidence sessions, there is no doubt that Scotland has the right to self-determination, but it is not clear how it would exercise that right. It is clear in the sense that, if Westminster allows it to do so, it can, but it is very difficult to do it unilaterally, especially in the aftermath of the Supreme Court judgment.
On whether there is merit in proceduralising the right to secession, I have argued in favour of that in my work. Apart from the reasons that Dr Raible summed up, proceduralising the right to secession helps with avoidance of constant constitutional conflict when it is not clear when and how the right will be exercised. We tend to have situations whereby that becomes an open wound, with the sides fighting over the procedure all the time, so it is important to clarify the rules that can lead to the right being exercised.
The paper that I submitted focuses entirely on public opinion because it explores the understanding of losers’ consent and the importance of process and procedure. We know that an accepted procedure that builds trust and confidence in the democratic process is important. It is important that any democratic event is perceived to be both free and fair. That is true for elections and referendums, but the binary and highly polarised nature of referendums means that process is all the more important.
When we study attitudes to process, we often look at attitudes to democratic satisfaction. Having looked at democratic satisfaction before and after referendums, one thing that we know is that the key determinant of losers’ consent—democratic satisfaction and an acceptance of the result after the fact—is how people feel about the process. We also know that all that connects to a body of work that is being undertaken in Northern Ireland and Scotland about attitudes to process around referendums, and we think that it is incredibly important that we identify beforehand a process that is seen as mutually acceptable to all sides.
I agree with everything that my colleagues have said. From an international perspective, the 2014 agreement between the Scottish and British Governments on the parameters of the referendum has been quite inspiring, in the sense that the context was that the British Government accepted as unproblematic that Scotland could have a referendum on independence. The question now is what can be done in the absence of such consent. As has been said, that is completely unclear.
Coming from Canada, it would be remiss of me not to mention that, in 1980 and 1995, referendums on independence in Québec were held, not in the presence of opposition from the federal Government, but in the absence of any explicit acceptance of such a referendum. Both times, the federal Government implicitly accepted the legitimacy of an independence referendum by participating in the campaigns. I live in a federation where sovereignty is divided and power is constitutionally divided. However, it is certainly the position of all Québec political parties—not only those who support independence—that the Québec Government can exercise its right to self-determination independently of the position of the federal Government on that issue. It is a different constitutional context and a different type of state; I simply want to mention that that is the political situation and the political positioning here in Canada.
Last but by no means least, we turn to Professor O’Donoghue.
I also agree with everything that my colleagues have said. From an international legal perspective, the process has very minimal requirements: any process would have to facilitate a free and open decision-making process. That is not a risk with regard to Scotland, but it would be the only international legal requirement—that the process would be free, open and fully democratic.
With regards to Northern Ireland, there is obviously more detail on what must happen, but I think that it is a question of the degree of detail, which would not necessarily be there. For instance, with the United Kingdom, generally, Westminster has to act with rigorous impartiality when it comes to a referendum on Northern Ireland, so it cannot take sides in that discussion. I suggest that that is different from what happened in Scotland, as regards political parties taking positions from London.
09:45There are also things to be thought about in relation to the duties to act in Northern Ireland. Professor Henderson mentioned public opinion, but we have had cases about what evidence the Secretary of State for Northern Ireland must take, and the courts were uneasy with giving a lot of detail on that. The evidence would probably be about elections mixed with opinion polls, but information on the amount and the degree—for example, whether there have to be five opinion polls or six and so on—is not there.
As all my colleagues have said, processes are really important, but there is an important question about how much detail you want and how much you want to put parameters around the ability to act. For instance, with regard to Northern Ireland, on whether there must be a referendum in the republic, politically, it is likely that there would be one but, legally, that is an open question. There is a question about the degree to which you want to write down every element, because specifying can lead to questions of judicial review, which has already happened in the McCord case in Northern Ireland, with regards to what evidence the secretary of state needs.
So, my answer is yes, but there is a question about how much detail you want to have written down.
I have a follow-up question for Professor O’Donoghue. Professor Skoutaris mentioned the right to self-determination but, given the organisation of the UK, individual citizens in Northern Ireland have a completely different set of circumstances to get to a united Ireland or whatever compared to citizens in Scotland, and devolution is different again in Wales. Is there a danger that citizens are left with different rights across the UK?
There is differentiation—devolution already does that. That is the big difference between the UK and Canada and Quebec, where there is a federal system, with divided forms of sovereignty. Devolution is based on the idea of differentiation. In the recent For Women Scotland case, the question was around equality. Northern Ireland has devolved control over equality, but Scotland does not. So there already is differentiation between what citizens can and cannot do.
International law does not really interest itself in domestic matters unless a violation of rights is going on, and self-determination is a collective right. I mentioned the McCord case, which was a judicial review that was based on the processes that the secretary of state would follow, and not on McCord’s right to self-determination—that was not touched on at all. Self-determination is a collective right of a people, which from a legal perspective makes it more difficult to bring cases before a court because, for the people as an entity, having standing is much more difficult.
There is differentiation. Another difference is that it is recognised that Dublin and the Republic of Ireland have an interest in how Northern Ireland is run. Obviously, no other sovereign state has that kind of interest in Scotland.
There is differentiation and a difference in what is recognised as an ability to process the right of self-determination. It is recognised that the people of Scotland have a right to self-determination and have already exercised it in choosing internal self-determination in the form of devolution. However, on the next step, absolutely, there is a fundamental difference between Northern Ireland, Wales, Scotland and England.
Does anyone else want to comment on that?
I will make one point. I completely agree with Professor O’Donoghue on how the internal right to self-determination is exercised. The UK is not the only place where there is differentiation in relation to how the right to self-determination is exercised. For example, in France, there is recognition of the right to self-determination with regard to New Caledonia, and there were referendums, but it does not apply to other nations and people. Therefore, it is not unprecedented. I am not saying that it is the best practice, but it is not unprecedented—it is not something that we do not see elsewhere in the world.
Good morning. I thank witnesses for coming along and for their submissions.
I have two questions to begin with, but if I get a chance, I might come back in again. This is a follow-up to the convener’s question. I am trying to draw out the extent to which the UK is different from other jurisdictions, not least in the way that it treats different parts of its devolved areas and—I do not know what they are called these days—its dominions.
I am struck that, before the referendum that we had in 2014, we were told that Scotland was going to be the most powerful devolved legislature in the world. I am also aware that, in December last year, the UK Government, by order in council, changed the constitution of the Turks and Caicos Islands to allow a law enacted by the legislature to make provision for holding a referendum on a matter of national importance. The second part of that order says:
“The question of whether the Turks and Caicos Islands should seek any amendment to this Constitution that may result in their independence shall be deemed to be a matter of national importance.”
So, the law gives the power to the Turks and Caicos Islands to hold a referendum and for it to have the effect of achieving independence.
On the other examples that we have just heard, I think that I am right in saying that, in Northern Ireland, the criteria for whether a referendum should be held seems to be whether there is likely to be support for a united Ireland. One of the things to be taken into account is whether the Secretary of State thinks that it is likely to be supported. The exact reverse seems to be the case in Scotland, because it was felt by the UK Government in 2014 that there would be no prospect of Scotland voting yes. Yesterday, we saw a poll again show majority support for independence. That seems to be the motivating factor for the UK deciding whether to support a referendum.
I would like to draw out how unusual and asymmetrical the UK is in the way that it decides these things, because that will eventually tell us whether the position is sustainable. I know that these things do not show a consistent pattern across the world, but the UK seems to be way out there in terms of the inconsistency of how it deals with such issues. Do witnesses have any comments on that?
The fact that such entities are treated differently by the parent or metropolitan state is something that we see internationally as well. It depends on the political interests, political will and political constellations, so how those entities are treated is highly context-specific.
You have described the different situation with regard to the Turks and Caicos Islands. I am not familiar with that situation, so I would not want to say anything about that, but, if it is true that the Turks and Caicos Islands have a right to hold a referendum on the question of independence but Scottish institutions in the current constitutional set-up do not, that is a discrepancy. It is possible, of course, that in the longer run that may lead to a constitutional grievance, and to political grievances.
I will go back to the opening question, because that is exactly why seeking agreement on a process before the question of whether a referendum should be held is important. It reduces the amount of that grievance, in order to make some space to govern while opinions are formed, and for exchanging views on the details of the potential outcomes of any such question. What should Scottish life in the union look like? What should Scottish independence look like? If the process question is removed, there is more space to discuss potential outcomes. What you said in your question emphasises that looking for a process that is agreeable to everyone has many advantages.
Do other members of the panel want to come in on that? I suppose that my question is: if all the parties agree that Scotland has a right to self-determination, and yet there is no route beyond one party being able to say, “No, it’s not going to happen,” how sustainable is that?
With regard to the point about the Turks and Caicos Islands, I refer to what Professors Tomkins and McHarg said in the committee’s first evidence session in the inquiry. They emphasised that we need to differentiate between former colonies and the case of Scotland.
On your main question, I think that it is true that the UK is a special case, but that is very much to do with the basic features of the constitution—it is a system of political constitutionalism, which means that the UK constitution can change with one vote in Westminster, with a majority of one.
That gives incredible flexibility, which is perhaps why it is arguably easy—I put that in quotation marks—for Scotland to get an independence referendum, whereas the Spanish regions would need a constitutional amendment. However, at the same time, precisely because we are talking about a system of political constitutionalism, if there is no willingness or co-operation from the centre, that leads to constitutional grievances. That is why I think that the inquiry that the committee is doing now is important—we need to clarify the rules regarding how the rights will be exercised.
From a public opinion perspective, the Scottish electorate is roughly divided into thirds: one third want a referendum as soon as possible, one third wish there never to be another, and one third are in the middle. On the issue of a mandate, the plurality position in the Scottish electorate is that it should be the Scottish Government’s right to call. However, when we talk about when that referendum should happen, we have to distinguish between two issues. One is timing—that is, when a referendum should ideally take place—and the other is what should trigger the Scottish Government calling a possible referendum. When we ask about the trigger, 40 per cent of the electorate—this is by far the most popular option—say that it should be if there is clear and sustained evidence that independence is the preferred option. That is very similar to the situation with Northern Ireland and the Good Friday agreement. When we ask the public what that clear and sustained evidence would look like, around a third say that it should be just five polls showing 60 per cent support for independence, and another third say that it should be at least two years of opinion polls showing majority support for independence. Public opinion gives us guidance about how the public understand possible triggers for a referendum.
I have another point on process, which concerns the lesson that we can take from Quebec—André Lecours will be able to contribute far more on this than I can. The referendum result there in 1995 was very close, and support for independence remained very high afterwards, but then fell slowly. One interpretation of that is that external circumstances—economic conditions—changed, so people formed different opinions about independence. Another interpretation is that the entire procedural process in Canada—the Clarity Act, the discussions about process and the acknowledgement that, should there be a wish to have a referendum, there is at least a process by which to have one—might well have taken the sting out of support for independence.
It could well be that issues of process are important in and of themselves, but it is also the case that issues of process could well have an impact on how the wider electorate feels about constitutional change.
I will bring in Professor O’Donoghue on that.
10:00
I want to make two small points. One of them is about the way in which parliamentary sovereignty is sometimes framed in this process. There are questions about the UK constitution, and parliamentary sovereignty is unique in the sense that it is the ultimate authority in the UK constitution. However, devolution unsettles that position in some ways, because people have chosen devolution through a democratic process—referendums. Although there is some scepticism in the UK about referendums, given more recent history, the idea of an exercise that claims internal self-determination is very important, and it has a much longer history in relation to UK constitutional reforms. For example, Northern Ireland chose home rule, which was basically devolution, rather than joining what was then the Irish Free State, which, at that point, was a dominion.
The other point that I want to make relates to the first break-up of the United Kingdom, which was the creation of the Irish Free State. In that sense, it is important to consider the mix of different elements of law that were used. The process by which that happened was entirely unconstitutional, if we look at the UK constitution alone, and the parameters and core elements were very similar to those that exist now. However, you must also consider layers such as the international law requirements and Ireland’s claim to self-determination, as well as recognition. It is important to note that, if Scotland decided that processes were not being put in place, resulting in more grievances, and made some sort of unilateral declaration, such moves fail or succeed on the basis of whether other states recognise that unilateral act of self-determination. That approach sometimes succeeds, but more often does not.
In relation to the sustainability of the UK denying recognition, the UK recognised Northern Ireland in 1921 following the creation of what was then the Irish Free State, which was a dominion at first but then, over time, became entirely independent. Therefore, the UK is probably more familiar than a lot of other states are with processes for changing internal and external self-determination through political negotiation, international law and domestic law.
When I studied parliamentary sovereignty, it was recognised—certainly by my lecturers—that the concept is mythical. For example, the idea that the UK Parliament could legislate to award Scotland the world cup next year is nonsense. It is bound by international agreements and all sorts of other limitations—at the time, it was bound by membership of the European Union, for example. However, the one thing that the UK Parliament did not seem to be bound by was public opinion or what the people actually thought, because it could exercise its power in the face of public opinion.
The precedent is that we agree on the principle of a referendum and then agree on the process, so it seems unlikely that we will be able to agree on the process beforehand in the way that Professor Henderson suggested we should. I still think that we are underestimating the extent to which the UK is unique in its irrationality and the fact that it has no basis or principles for dealing with different areas in relation to these issues.
In his written submission, Professor Skoutaris mentions the limitations on the Scottish Parliament following the Supreme Court’s ruling, but he says that the Scottish Parliament could, within devolved competence, ask
“whether the people of Scotland support the Scottish Government entering negotiations with the UK Government for the issuing of a section 30 Order”.
Despite the UK Government’s intransigence, he gave that as an example of a way in which the matter could be advanced, which is quite interesting. Do the other witnesses have a view on that? Are there other possible ways in which to progress the issue?
I will bring in Professor Skoutaris first, given that I quoted him.
Thank you very much for referring to my written evidence. That part of my evidence relates to the discussion that the committee had in its first evidence session, mainly with Professor McHarg, and in its second evidence session, with Professor Renwick, on whether there is the possibility for a democratic trigger mechanism. Professor McHarg referred to work that has been done by people such as Dr Eustace on the problem of the union reservation. What does that mean? It means that, after the judgment of the Supreme Court, we are not sure whether the Scottish Parliament is allowed to do anything that would touch on the union between the UK and Scotland.
I tried to create a probable legal argument about what the Scottish Parliament could do to create a democratic trigger mechanism. I went back to the judgment of the Supreme Court, where the point is made that the Scottish Government can still engage in negotiations with the UK Government about section 30 of the Scotland Act 1998. Perhaps a democratic process could be created, whether that is a consultation, a petition—as Professor Renwick said—or, at the extreme end, even a referendum. Through that, the Scottish Government would be asking for authority from the Scottish people to engage in negotiation, which would not be about the union between England and Scotland, but about whether the Scottish Government has the power, authority and legitimacy to engage in negotiations to be given the right to organise a referendum. I am not 100 per cent sure that that argument would work in the Supreme Court, but, in my mind, it is as close as I can get to a democratic trigger mechanism that could work within the limits that are set by the judgment.
I, too, read Professor Skoutaris’s written submission with great interest. I agree with him that that would be basically the only legal avenue left—technically—after the Supreme Court’s ruling, but I have some doubts, so I read the situation a little bit differently as to how it would be received. Negotiations are clearly possible, as the Supreme Court says and as has been repeatedly accepted by broadly everyone involved. However, on whether the Supreme Court would see the holding of a referendum on that as not pertaining to the union, if it were to look at it again, I am not sure. Negotiations are one thing, but holding a referendum, particularly in a political constitutionalist context, would have a very heavy political weight and might be perceived to be circumventing what the Supreme Court has said before. There is a worry that that would further entrench fronts. I might be wrong about that, but that would be a worry, and thought should be given to it before embarking on that avenue.
I wonder how interventionist the UK Government—with the backing of the Supreme Court, if it happened—would become. What if it were to say in Scotland, “You’re not going to have a referendum even to discuss section 30 with us”? Imagine if the state had intervened in the referendum that was held by Strathclyde Regional Council on water privatisation. There are consequences for continuing to prevent any discussion of these things. It is not a zero-sum game where it stops there—there are consequences. For example, if the Scottish Parliament, with the required majority, were to decide to cease its current session to force an election based solely on independence, how far could the Supreme Court and the UK Government continue to go to prevent the question from being asked?
I would not want to speculate on how far they would continue to go on that. The signal from the last ruling about this, which was the independence referendum reference, was that those are not legal arguments that the court is prepared to hear; instead, it referred to “political” processes. That is my reading of the situation. I would not want to speculate on how far they would go otherwise.
I can speak to the consequences in terms of public opinion. In addition to running the Scottish election study, I co-lead the state of the union survey. We run surveys in Scotland, Wales, Northern Ireland and England that look at attitudes to national identity and governance, and how people feel the union is running and how it should run.
We have observed an increasing level of what we would call ambivalent unionism within all four parts of the UK, not just Scotland. We ask people whether they prioritise the union as it is, whether they want independence for their own part or, if they do not want independence for their own part, whether, if one or more other parts of the UK decide to go their own way, their view is “So be it—I do not want to go but if somebody else goes, that is fine.”
If, of those with a view, we add the proportion who want independence and the proportion who opt for ambivalent unionism, we get more than the majority of the electorate in all four parts of the UK. The first thing to note is that support for independence in Scotland is higher than it is anywhere else, but that does not mean that there is a considerable level of satisfaction with the union in other parts of the UK. There is an incredible level of ambivalence about it, as well as grievance, often about what appears to be inappropriate Scottish access to influence and resources.
We know that that is what is going on in public opinion, and it is coupled with what has been, at times, a muscular unionist approach from UK Governments of either partisan stripe of late, and they do not sit easily with each other. We have noted that, as measures of muscular unionism increase, levels of ambivalent unionism also increase. There is a direct relationship between how the UK talks about the union and whether it appears to be on transmit or receive about benefits of the union or problems with it, and the consequences of that across the UK, not just in Scotland.
Self-determination issues are almost completely about politics. The situation that you have in the UK would be almost unthinkable in Canada. If the federal Government of Canada was to try to prevent the Québec Government from holding any kind of self-determination referendum, there would be so much political pressure and such a political price to pay that the Government of Canada would not even think of going in that direction. In Canada and Québec, there is a natural political mechanism at work that translates into the Québec Government being able to hold a referendum on anything at any time.
The referendums in Québec have, of course, not been as clearly about independence as the 2014 Scottish referendum was, and that might account for some of the difference. The referendum in 1980 was especially interesting, because it was meant to be a two-stage referendum, akin to the process that one of my colleagues described in so far as the Québec Government first asked Québecers for a mandate to negotiate a new arrangement with Canada. If that question had been answered with a yes, I presume that, after subsequent negotiations, there would have been another vote. That was not the structure that was used in the 1995 referendum, but it was similarly on a question that could be interpreted as being about independence although it could also have been interpreted as being about other things.
The difference between the two countries is partly a result of different political situations and partly a result of the dynamics and the discourse that lie around the question that is asked.
In order for international law to have any purchase in that narrative, if there was consistent denial that accelerated to a point at which questions about democracy were raised, it could become an international law issue. However, that bar is extremely high. Six or seven years ago, there was a discussion about Catalonia, because the Spanish Government had started arresting and imprisoning people when the referendum was held. The discussion was about whether the situation was reaching the level at which international law should start to take note and whether the right to self-determination was being oppressed. Scholars had mixed views on whether they thought that what was going on in Catalonia was reaching that level, and things have subsequently calmed down again.
10:15For international law and the mechanisms to start to take note, there would have to be consistent denial, and it would have to start reaching an extreme level, because when it comes to the actual laws that can be used, international law values territorial integrity over explicit external self-determination. Therefore, although international law could have something to say, things would have to get very serious indeed before it would do so.
Thank you.
On international courts, I remember taking evidence from Sir David Edward before the referendum in 2014. He said that there was no mechanism to take citizenship away from an individual and we talked about the circumstances. I think that Nicola Sturgeon said at the time that, unless there was a significant change in circumstance, there would not be another referendum but, of course, we have been taken out of the EU, and we have all lost our EU citizenship, unless we are lucky enough to have a grandparent or to be married to someone from the European Union.
We talk about international law, but is there not a human rights issue here? Things have happened to Scotland that were against the democratic will of the Scottish people, yet we still have a barrier to determining how we want to take things forward.
Professor O’Donoghue is nodding her head, so she can come in first.
Self-determination is a collective right, not an individual right, so it is very difficult to use international legal mechanisms. That is quite intentional. It is not in the interests of states that are already recognised to allow mechanisms to occur.
There are instances where things have come before courts. The Kosovo opinion from the International Court of Justice is an example, but that was an advisory opinion—actually, it was not an advisory opinion; rather, it was a decision that was taken by another state. Until you are a state and recognised as such in international law, you are caught in a catch-22 situation, because you are trying to act like a state, but if you are not recognised as a state, you cannot do that yet.
The issue could be raised—you could go through the United Nations General Assembly and so on—but you would have to get quite a number of other states to come in on your side. An element of peer recognition is required in order for you to exercise that right of self-determination before a court.
On the human rights element of losing things such as citizenship, a number of cases were taken to the Court of Justice of the European Union on the loss of citizenship, which were all unsuccessful because EU citizenship was not equated, if you like. Citizenship is very much bound to domestic sovereignty and the ability of a state to decide who is and who is not a citizen. That is being very stretched at the moment, because many states are now going against what would have been agreed on as a right not to be made stateless, for instance.
It is very difficult. International law does not make it easy for people to take cases to any courts on the issue. International law is relatively weak and it is designed to be weak, because the states that exist have very little interest in helping parts of their territories break up and claim self-determination. The only area where international law was quite strong on this was around the decolonisation process following world war two, and even that is not fully sorted if we look at places such as Western Sahara or Palestine.
International law is not useful in lots of ways at an individual level or even a collective level in relation to trying to exercise those rights, unless things become really extreme, and I would say that that is unlikely to happen. Obviously, you cannot rule anything out, but the bar is set extremely high for getting to the point where international law would take note.
Thank you. Does anyone else want to comment?
To reiterate what my colleague has said, international law is not where I would look for help with that issue, for exactly the reasons that Professor O’Donoghue has outlined. Some cases from Catalonia were taken to the European Court of Human Rights and were also unsuccessful on human rights grounds. In those cases, the attitude of the central Government was much less permissive than it is in the UK. That gives an indication of how much the situation would need to change for any of this to become relevant at all.
Good morning. In previous sessions in our inquiry, we have ended up in a conversation about whether particular ideas, such as the referendum being “once in a generation” and the settled will of the Scottish people, are merely political rhetoric or whether they have any substance as principles that can be relied on.
I want to explore that question in relation to the point that several of the witnesses today have made, that everyone accepts that it is the right of the people of Scotland to make a decision about their future. Several witnesses have mentioned that there is consensus on that, and that consensus was written down as recently as the Smith commission, when all five political parties that were involved, and both Governments, accepted that. Well, the commission phrased it by saying,
“nothing in this report prevents Scotland becoming an independent country in the future should the people of Scotland so choose”,
which is a little more nuanced, but it clearly frames that right as sitting with the people of Scotland and not with anybody else.
Is that simply a piece of political rhetoric that just happens not to have been contested by the political parties that are prominent at the moment? Alternatively, does it have any status as a principle in the UK’s unwritten constitution? Is it something that can be relied on in any sense? I am aware that I am asking that at a time when there is a genuine threat that a UK Government could be led by a far-right party, which we should be afraid of for many reasons, including because it was not involved in that process and would presumably argue that it cannot be bound by a principle that was agreed by other political parties.
Is there any sense in which the UK Government’s acceptance of that principle has status and can be relied on, or is it as much rhetoric as talking about “once in a generation” is?
With regard to the two concepts that you discussed in the previous evidence sessions—settled will and once in a generation—I do not have much to add to what has been said. There is consensus that they are pretty much political posturing more than legal benchmarks.
I would distance myself a bit from the discussion that you had with regard to triggering a referendum when it is very clear what the result would be. I think that there was a discussion of that in one of the two previous evidence sessions. I understand from a political stability point of view that it is beneficial to have a referendum when there will not be huge cleavages in society. However, at the same time, the reason why we have referendums many times is precisely to decide on dividing matters.
On your question about whether the fact that everybody recognises that Scotland has a right to self-determination and that it lies with the Scottish people is political posturing and nothing more, I completely appreciate the frustration that might have been created by the fact that it is not very clear how Scotland could actually exercise that right after 2014 and especially after 2016. However, I do not think that it is only political posturing, precisely because we had an independence referendum in 2014. One should not underestimate the fact that Scotland had a choice in 2014. In a way, at a minimum, that creates a precedent that it is possible for Scotland to exercise self-determination.
Again, if one looks at it from a comparative point of view, there are not that many regions or nations within western democratic states that have been there. Québec is an important example, but we have referred to it too many times already, and we can see how difficult the question is when we look at the 2017 Catalonia referendum, or the Basque Country, or the Italian constitutional court case about certain regions in the north, or the German constitutional court on Bavaria. It is not for nothing that Scotland had the independence referendum. Despite the frustration, which I completely understand, we should understand the 2014 Scottish independence referendum as an important precedent for how Scotland might exercise the right to self-determination.
Do any other witnesses want to comment on the extent to which the principle that Scotland has the right to make the decision could be relied on in circumstances in which a political party that disagrees with it comes to power in the UK?
I agree completely with what my colleague has just said. We cannot lose sight of the fact that there is substance when we look at things comparatively and see Catalonia, where that right is not acknowledged or recognised to exist by political actors, which has led to a completely different and much more difficult situation for supporters of secession. I do not think that it is purely political rhetoric. There is substance there, even if it still begs the question of how to operationalise such substance. I completely agree with that.
I want to say a bit about settled will, which is a bit of a peculiar Scottish expression from an external’s point of view. I understand that it made a ton of sense during the march towards devolution, but, for a couple of reasons, it does not make a whole lot of sense when it comes to secession. First, it is a line often repeated in the secession literature that there has never been a secession from a modern, advanced, industrialised liberal democracy, although there was a partial exception in the secession of Norway from Sweden in 1905. That means that, in the absence of threats to their physical security, it is difficult to convince citizens of such states to support independence.
Secondly, and related, like Québec, Scotland is divided on self-determination. That means it is unlikely that there will ever be enough of a majority to be called a settled will on a question such as that of independence. At the end of the day, the Québec experience shows that, perhaps unfortunately, because independence referenda are important events, they are snapshots. As Professor Henderson said, support for independence in Québec has varied greatly. After the 1995 referendum, it varied in a way that nobody anticipated. It seemed to political actors and observers that there was a trend towards ever-increasing support for independence, particularly among the youth, but that turned out to be not a trend at all. Support for independence decreased shortly after the 1995 referendum and it never regained the numbers that it showed at that time. After what is now almost 50 years of secessionist politics in Québec in one way or another, we have never seen the settled will, and I do not think that we ever will see it. I therefore think that it is unlikely to exist in Scotland on that question.
10:30
I just want to make a few small points.
I agree with what has been said already, but what I would say about a change in political parties is that international law is not determinative. The right to self-determination is an international legal right, so it is not something that can be extinguished by a political party or a change of political parties. It is not within the gift of the UK Parliament to go back to the question of parliamentary sovereignty.
It is recognised within the UK constitutional order that self-determination is possible. Indeed, it has been exercised by all the devolved nations in varying ways—there was, for instance, a border poll in Northern Ireland in 1973. There are lots of such examples. I do not think that a change of governing political party can extinguish that right; it exists already. Of course, there might be a dramatic change in political circumstances, which might, in turn, change the ability to exercise that right as something that international law might intervene in. How that might unfold, though, is beyond my expertise.
Secondly, on the settled will issue, I would go back to the Northern Ireland example. There is a provision that, once a referendum is called, there can be another referendum seven years afterwards. That does not mean that you have to have a referendum every seven years, but it is a part of the UK constitution, set out in the Northern Ireland Act 1998, that there is an acceptance that there is no settled will, even if there has been a once-in-a-generation referendum. In any case, that phrase has no legal meaning or purchase. After all, what is a “generation”?
Therefore, the UK constitution says that, after seven years, a question can be asked again. It does not have to be asked again; it would be for the Secretary of State for Northern Ireland to make that decision. The political reality, though, is that, once there was a referendum in Northern Ireland, the political parties that want independence would probably start saying, “Right—we need to have this every seven years now.”
On the idea of a settled will, therefore, there is already part of the UK constitutional order that sort of accepts that there is no such thing, for all the reasons my colleagues have already outlined. There is this idea that, after seven years, it would be possible to again ask people in Northern Ireland what they want.
If we accept—and I hope that I am right about this—that we can continue to rely on the principle that Scotland has the right to decide, or that the people of Scotland have the right to do so, we are still left in the situation where, although we have the right to decide, we may not exercise it. That is the quandary that we find ourselves in.
I want to ask about an issue that I have explored with previous panels—to a mixed reaction, I have to say. If the Scottish Parliament’s ability to make a decision is not accepted and the UK Parliament or Government is unwilling to make a decision, is there some other way in which the will of the people of Scotland—not necessarily to decide yes or no to independence, but to make it clear that they are ready to decide on the question of independence—can be expressed, whether through some formal deliberative or participative mechanism or in some informal way that is not directed by, or under the control of, formal political processes? Do any of you see any potential in that space for some form of expression of the will, or the readiness, of the people of Scotland, other than through decisions in one Parliament that is being told that it cannot decide and another Parliament that is unwilling to decide?
That is the focus of a considerable amount of work that is happening in Northern Ireland. They are not quite at the point of identifying a deliberative process that might be the end result, but they are using deliberative processes—citizen juries, citizen assemblies, small group discussions and so on—to identify what a mutually acceptable process might look like.
However, the context there is very different, because there is a reasonable expectation that a referendum might result at some point. They are trying to identify a research programme that will help them to plan the very best referendum that they can in the eventuality that it happens, and I think that we are in a slightly different situation in Scotland. Nevertheless, a considerable amount of research is coming out of John Garry’s team at Queen’s University Belfast, and I would encourage you to look at it.
A number of projects are going on on the island of Ireland. Some of them are led by academics and others by civil society groups, or civil society groups with academics. For example, feminist groups and women’s groups are working on various activities, as are cross-border rural women’s groups. A lot of grass-roots work is being done, particularly on bringing together groups that disagree.
Lots of interesting academic work is also being done on this, but I would also look to the less formal spaces in which these conversations are occurring. It is important to get people to think through the implications. One of the issues with the referendum in Scotland was the white paper, what it presented, its neutrality and what it meant. People need to feel that they are engaged in the process, including in constitution writing, which is slightly alien to the UK in the sense of writing everything down in one place, although obviously it has a documented constitution. That makes Northern Ireland slightly different in that we are dealing with another state that has a fully documented constitution.
People need to get involved in the political discussion about the type of state that they would like to have, including in legal drafting. I am in a law school, so I am obviously more familiar with and have been involved in that work. It is also about enabling and encouraging grass-roots organisations and civil society groups to have discussions about how they would go about thinking of themselves as an independent state.
It is also about getting people to think about losers’ consent and, if there was an independent Scotland, how they would like it to be and what links they would like to keep with Britain. For Northern Ireland, the interests that Dublin can now exercise in Northern Ireland would shift to London, so there is an acceptance that London would still be involved with Northern Ireland in the way that Dublin is currently involved with Northern Ireland.
It is about thinking through what people would actually like, from the formal processes to the encouragement of more ground-level discussions and engagement. There are other options that people could consider, such as further devolution, and they are extremely important.
I agree with what Professors O’Donoghue and Henderson have said. The problems that have been pointed to in the previous sessions are to do with the cumulative effect of the Supreme Court case law, especially in cases such as an independence referendum bill, the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill and the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill. The way in which union preservation has been spelled out limits the constitutional space that the Scottish Parliament has to create a consultative or democratic process to test the issue of independence. Professor McHarg pointed to that problem in her evidence.
That is why, in my evidence, I tried to think about whether there is a way to circumvent that. I suggested moving the posts and, instead of asking about independence and the union, asking whether the Government has the authorisation of the people to engage in negotiations with the UK about allowing a referendum.
I appreciate what Dr Raible said, and I have the same concerns. I would not be 100 per cent sure that that would be a winning argument, but it is a possibility. I also accept that Westminster can pass a law tomorrow that says that the issue is outwith the competence of the Scottish Parliament—there is no doubt about that. However, given the strict limitations that the Supreme Court has set, other than the informal processes to which the previous speakers have pointed, what I propose in my written evidence is the only thing that came to mind.
I agree with what has been said, but I would like to add a couple of points. First, there is a lot of merit in talking about these things formally and informally. Informal discussions are valuable because they stress that separatist desires, whether they are actualised in an independent state or not, are a process and not an event. Most often, that process takes a long time, particularly if it is non-violent. A lot of things need to be considered about the process of getting there and, if an agreement mechanism for a referendum is triggered, what happens after that. Those are valuable discussions to have.
The example that I mention in my written submission, of Switzerland and the secession of one canton from another canton within a federation, is a good analogy because it actually happened in a democratic way. It therefore gives an idea of all the steps that would be necessary if a referendum was to be held and it resulted in a yes vote for independence. Informal processes before a referendum is held are helpful in determining the process of triggering a referendum and in getting inspiration from the people about what would happen afterwards. That might change attitudes and help with democratic certainty and accountability, which is what is referred to in the scope of the inquiry.
Informal processes are therefore probably more important than legal certainty at this point. They would be really valuable.
As there are no further questions from the committee, that concludes our questioning this morning. I thank you all for an interesting session and for all the work that you did prior to the meeting to send your briefings to the committee. I wish you all a safe journey home and a rest, especially if you have got up in the middle of the night in Canada.
Meeting closed at 10:42.