Tag Archives: Consultative referendum law

Are unionists the biggest threat to the Union?

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There has been much debate in recent years (on this blog and elsewhere) on the validity of a second referendum on an independent Scotland. Defence of the Union has often been by reassertion of the unitary nation-state model. Michael Keating argues that this demonstrates a fundamental misconception of what union means, and that the nationalism implied by the nature of a union maintained by law, rather than the consent of its people, represents a threat to the continuing Union of the United Kingdom.

In its 2020 White Paper on the Internal Market, the British government described the United Kingdom as a ‘unitary state’. Although, for many at Westminster, this might sound rather banal, it betrays a serious misunderstanding of what is, and always has been, a plurinational union. Such misunderstandings are pulling the Union apart.

Four dimensions

In my book State and Nation in the United Kingdom, I spell out the difference between a unitary nation-state and a plurinational union by reference to four dimensions: demos; telos; ethos; and sovereignty.

Demos refers to the people and whether they are singular or plural. When prime ministers declare that ‘the British people’ voted for Brexit, they are invoking a unitary demos, but begging the question of what ‘the British people’ actually means. In fact, the peoples of ‘these islands’ have varied national identities, some identifying only as British and others not seeing themselves as British at all. It is not as simple as four separate identities because, within each of the component nations, there are complex forms of belonging and multiple forms of national identification. Some unionists are now arguing that Britishness is a common, overarching identity but that, underneath it, are the local varieties. Yet this does not work either. Britishness itself is experienced and defined very differently from one part of the United Kingdom to another. The fact that the United Kingdom does not even have an adjective for its citizens indicates the difficulty of fitting Northern Ireland in. Britishness is analogous to what the philosopher Wittgenstein called a ‘family resemblance’. Any two members of the family may share a feature in common but there is no feature common to them all.

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‘The festering issue’ – the legality of a second independence referendum

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With the Scottish government gearing up for a second independence referendum, questions have been raised about whether or not the Scottish Parliament can legislate for such a poll in a way that the courts will find lawful. In this post, David Torrance discusses the wording of the relevant legislation and the impact of subsequent caselaw, concluding that the prevailing legal understanding is that even a consultative referendum would be outside the scope of the parliament’s powers.

During the House of Lords’ consideration of what would become the Scotland Act 1998, Lord (Donald) Mackay of Drumadoon (a former Lord Advocate and subsequently a Scottish judge) told peers it would be ‘perfectly possible to construct a respectable legal argument’ that it was within the legislative competence of the soon-to-be-created Scottish Parliament to pass a bill authorising an independence referendum.

Lord Mackay added that he remained ‘convinced that the law on this matter should be clarified. If it is not then the festering issue as to whether the Scottish parliament is competent to hold such a referendum will rumble on.’ That was arguably a dictionary definition of prescience.

The debate, if not ‘festering’ does indeed ‘rumble on’ nearly a quarter of a century later, yet much of the commentary seems curiously circular, turning over arguments which might have been relevant in 1998 or 2012 but are less so in 2022. Chief among these is the idea that an ‘advisory’ or ‘consultative’ referendum might pass muster if the dispute were to reach the Supreme Court.

But first let us return to the Lords in 1998. Speaking for the government, Lords Sewel and Hardie (respectively a Scottish Office minister and the then Lord Advocate) were clear that an independence referendum bill would ‘relate to’ the reserved matter of the Union between Scotland and England and would therefore be ultra vires and outside the competence of the Scottish Parliament. As Lord (David) Hope of Craighead later observed, ‘the Scotland Act provides its own dictionary’.

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