1.1.1 Constitutional Reasons

Many of the roots of the Acts of Union lay in the constitutional changes of the Glorious Revolution. Scottish historian, McKechnie, endorsed Macaulay’sFootnote ¹⁰ account of how the monarchy’s powers were gradually eviscerated by the English Parliament, and of how the King was forced to appoint a ministry to satisfy parliamentarians. Yet, if the King was more constrained by his ministers in London, he was also less able to satisfy his Scottish subjects. Indeed, McKechnie contended that, in the reign of William and Mary, Scotland, ‘while still nominally free and independent, was practically in a worse position than any British self-governing colony at the present day.’Footnote ¹¹ For unlike colonial dominion parliaments that could call colonial governments to account, this was not the case with pre-1707 Scotland, which was largely governed from London. Even where the Scottish Privy Council itself exercised governing powers, it had little responsibility to the Scottish Parliament.

Nonetheless, the Scottish Parliament also began to show its weight, and in 1690 abolished the ‘Lords of the Articles’. This was a committee of the Scottish Parliament, appointed by the King and under executive control, with prime responsibility for framing and initiating legislation. Its abolition thus removed a dominant executive control over Scottish legislation.

1.1.2 Famine, Betrayal, Darien, and the Succession

However, factors other than constitutional changes were also relevant. The 1690s were hard years in Scotland. Catastrophic harvest failures caused widespread famine. There were other ruinous events. The Scottish Darien venture of 1699–1701, an attempt to find a trading settlement in Darien, at the isthmus of Panama, proved a complete failure, beset by financial mismanagement and tropical disease. There was a huge loss of life and perhaps as much as one quarter of Scotland’s wealth was lost in this venture.Footnote ¹² However, it could not escape notice that the Darien company had received no help from King William, who in 1699 issued a proclamation banning English subjects from dealing with the Darien colony in any way. Whatever the causes of the Darien calamity, it was perceived by many Scots as exacerbated by the shortcomings of the Union of the Crowns, whereby the King would place English concerns ahead of Scottish ones.

More generally, Scottish trade was not flourishing under the Union of the Crowns. There was very little free trade between England and Scotland, and the Navigation Acts were enforced against the Scots, leaving only an illicit trade with American colonies. Debate continuesFootnote ¹³ whether economics sparked Scotland’s desire for union, but there was clearly a hope in Scotland for an opening of English markets to them.

Trade was not the only thorny problem, however. There was also the issue of succession to the throne. England and Scotland shared a common monarch and Anne, Mary’s (Protestant) younger sister and daughter of James VII/II, had failed to produce an heir. The fear was that, on Anne’s death, the throne might devolve to the Catholic son of deposed James VII/II (by his second marriage), thus putting the Protestant line at risk. So, in 1700, the English Parliament adopted the Act of Settlement,Footnote ¹⁴ whereby, should Anne die without heir, then her successor would not be Catholic James or his son – ‘the Old Pretender’ – but the next Protestant in line, Sophia Electress of Hannover (or her heirs), who was then the elderly grandchild of James VI by his daughter Elizabeth. This English Act of Settlement had no force in Scotland, nor were the Scots consulted about it. However, when Scotland failed to act similarly and define a successor, the English feared a possible succession in Scotland of the ‘Old Pretender’, aided by French support (England was at war with France in the 1690s and 1700s). This, as much as anything, turned English minds in favour of a greater union in Scotland, as a means to secure a Hanoverian succession.

The Jacobite cause in Scotland, however, was complicated. Both James VII/II and his son were Catholic. Scotland was heavily Presbyterian. But Jacobite support, while threatening the Protestant ascendancy, did not derive only from Catholics. It was also supported by Episcopalians (part of the Anglican Communion), who had been alienated by both the establishment of radical Presbyterianism in Scotland, and by the abolition of bishops there. Jacobitism also had an undoubtedly romantic element, benefiting from the fable of ‘the lost cause’, the notion that ‘the king shall enjoy his own again’.Footnote ¹⁵

Another attempt was made at union between the two nations in 1702 but nothing came of it. So, the succession was still a problem, and the English began to realize that, in order to settle that issue, some sweetener must be offered Scotland, most likely admitting Scots into England’s trading system.

1.1.3 Legislation of the Scottish Parliament in 1703 and 1704

But relations were to get worse before union could be achieved. Some provocative legislation took place on both sides of the border, which helps explain the direction Union ultimately took. In 1703, the Scottish Parliament adopted An Act anent [concerning] Peace and War. This asserted the Scottish Parliament’s right to declare war and make peace, abolishing the monarch’s royal prerogative in this area, ensuring Scotland would not be forced into foreign wars on England’s account. In effect, it was a move towards a more federal model of organization.

In 1704, the Scottish Parliament then adopted an Act of Security for the Kingdom,Footnote ¹⁶ asserting Scotland’s right to determine succession to the Scottish Crown. This Act mandated that the Claim of Right be read to any new monarch before administration of the coronation oath (and also provided that free trade between England and Scotland was a condition of Scotland agreeing any Hanoverian succession). Without agreeing these limitations, any succeeding monarch might forfeit the Crown. Much influence on this Act is attributed to Andrew Fletcher of Saltoun,Footnote ¹⁷ now revered as a Scottish patriot. Nonetheless, the Queen (somewhat reluctantly) gave her royal assent to the Act, although the clause on free trade was omitted (although had been approved by the Scottish Parliament).

The Scottish Parliament also passed the Wine and Wool Acts, in 1704. The Wine Act permitted trade with France during the war (between England and France) and the Wool Act permitted the export of wool from Scotland but not its import. Both were seen by the English as hostile legislation. And, in the meantime, Scotland had not agreed the Hanoverian succession. Perhaps, relations between Scotland and England reached their lowest point in 1705, when an English ship, the Worcester, was seized in Leith on charges of piracy of a Darien ship, and its captain and two of its crew, were publicly executed in Leith, although quite possibly innocent.

1.1.4 The English ‘Aliens Act’

It was felt that these aggressive (to English eyes) Scottish statutes needed some response. In 1705, Westminster legislated an Act for the effectual securing of the Kingdom of England from the apparent dangers that might arise from several acts lately passed by the Parliament of Scotland (aka ‘Aliens Act’). This Bill in its Preamble called for ‘a nearer and more complete union’. But it also contained a threatening follow up, warning that, if Scotland had not appointed commissioners, or accepted the Hanoverian succession, by Christmas Day 1705, then it would suffer severe economic penalties, and Scots in England (unless domiciled there) would be treated as aliens. Notably, this threat, that Scots might be declared aliens in England, conflicted with Calvin’s case. According to Devine, this Act was ‘a naked piece of economic blackmail’.Footnote ¹⁸

However, by 1705, a treaty of Union was becoming a more attractive prospect to Scotland, (mainly due to perceived economic benefits rather than agreement on Hanoverian succession). And thus, the Scots agreed to start negotiations, and the threatening sections in the Aliens Act were repealed.

1.2.1 Main Points of Negotiation

1.2.2 Ratification

The draft Articles might have been adopted by the commissioners, but until they had been ratified by both Parliaments, there could be no Union. The process of ratification began in the Scottish Parliament, which was seen as presenting the greater obstacle. Notably, however, a text of the Bill was only provided to that Parliament in October 1707, leaving no time for scrutiny before the session began. It has been said by historians that there was much opposition to Union in Scotland generally.Footnote ²⁵ There is also the suggestion that bribery played its part in Scottish ratification – with nobles ‘bought and sold with English gold’ as the Burns poem recites.Footnote ²⁶ Nonetheless, several amendments were achieved by the Scottish Parliament, not the least important concerning the Presbyterian kirk.

1.2.3 Why Did Scotland Agree to Union?

How did it happen that the independent Scottish Parliament of 1703 voted itself out of existence three years later by a clear majority?Footnote ³⁶ Indeed, in the autumn of 1706, when debates began in the Scottish Parliament over ratification, there was still so much rioting and opposition to Union that the Marquess of Queensberry, steering the debates for the Scottish Government, had needed a military escort to Parliament House.

One reason why opposition to Union failed is that it was ill-organized and disunited, encompassing both Jacobite members, and also Presbyterians such as Andrew Fletcher, who inclined to republicanism, and certainly did not want the return of a Catholic Stuart. They could not agree over the succession. Economic matters were also pressing, and, according to McKechnie, ‘The status quo had become intolerable, and the only question at the commencement of Queen Anne’s reign was as to the form the inevitable change should take.’Footnote ³⁷

Indeed, there seemed little alternative to union. Sir Alexander Seton of Pitmedden, a Lord Justiciary and commissioner, in a well-known speech of 1706, had considered possible alternatives:

Seton’s first alternative – that both countries continue but with limitations on the sovereign’s prerogative (as countenanced in the Scottish Act of Security) – would in effect have been a ‘divided sovereignty’, whereby a central authority in London could not dictate terms to Scotland. But would it have been possible to agree such an arrangement? It was the Scottish Act of Security, which contained such limitations, which had after all worried the English and led to the Aliens Act. Seton’s third alternative of a complete separation also carried risks. Continued Jacobite activity, with French support, was not something the English were happy to contemplate. A failure to agree the Hanoverian succession looked likely to provoke war a ‘war of the British succession’ with England. The possible outcome would have been conquest of Scotland by England, or a very unfavourable forced union.

Not all agree that the 1707 union was inevitable, but counterfactual history is a hard business (and perhaps not best adopted by lawyers). In Scotland the last word fell to Chancellor Seafield: ‘now there’s ane end of ane auld sang’.Footnote ³⁹

1.3.1 Introduction

The meaning, effects and consequences of that Union, most particularly the legal ones, now fall to be considered.

This new Union of 1707 was a complex arrangement. Neil MacCormickFootnote ⁴¹ usefully summarized the Articles of Union. Firstly, provisions setting out what was common to the whole of Great Britain, which included the Crown, the flag, the Executive and the bicameral Westminster Parliament. The Union would encompass a single market, customs union (the largest then in existence) and common currency. Secondly, equally important is what would remain separate. There would continue to be separate and distinct legal systems and national churches, as well as civic institutions and local government. Unless incompatible with Union, all pre-existing Scots law would remain, although the Great Britain Parliament could amend Scots law in future. However, the Parliament would, under Article XVIII, have no capacity to amend those Scots laws concerning private right ‘except for evident utility of the subjects within Scotland’. Thirdly, there were transitional provisions, including those implementing a new tax regime for Scotland, as well as those compensating Scotland for incurring some of the English national debt. And finally, Article XXV underlined the fundamental status and supremacy of the Articles of the new Union: ‘That all Laws and Statutes in either Kingdom so far as they are contrary to or inconsistent with the Terms of these Articles or any of them shall from and after the Union cease and become void.’Footnote ⁴²

1.3.2 How Best to Define the Anglo-Scottish Union?

Walker described it as ‘complicated’, and for Colin Kidd it is ‘a somewhat mysterious entity’.Footnote ⁴³ Three distinct questions arise. First, by what legal documents was the Union constituted; second, what was the status of this Union; and third, should it be referred to as a Treaty or Acts of Union?

1.3.3 A Revolution, by Consent or Not?

According to Smith, ‘the British Parliament was the creation of the terms of Union – by what was in effect a revolution by consent.’Footnote ⁵² What might this mean, and was there really a revolution (whether by consent or other means) in 1707?

In common parlance, we might understand a revolution as a fundamental change in political organization, encompassing the overthrow, or renunciation, of one government or ruler and the substitution of another.Footnote ⁵³ The Union of 1707 certainly appears outside the usual course of legal events because it terminated the existence of two independent States, thus occasioning a decisive break with the past. But was this a revolution? The problem is that its lead up does not look revolutionary. The Union had been provided for by law, from the provisions for the parliamentary commissioners negotiating the Articles of Union, to the Acts of Union that ratified those Articles.

According to Kelsen, a legal order will be revolutionary if its Constitution cannot be derived from, or authorized by, the previous legal order. However, because the United Kingdom of Great Britain was brought into being by two quite separate sets of legal acts –both of Scotland and England – there is, in Kelsonian terms, no ‘single chain of validity’ to ‘a historically first Constitution’.Footnote ⁵⁴ But in that case, there was a fresh start, the creation of a new State of Great Britain, even if not a forcible overthrow of the old regimes, then at least a ‘revolution by consent’, as characterized by Smith. And in Kelsonian terms, it would mean that the historically first Constitution of Great Britain was indeed that established by the Anglo-Scottish Treaty and Acts of Union of 1707. And indeed, according to de Smith, the Articles of Union ‘provided a rudimentary framework of a written constitution.’Footnote ⁵⁵

1.3.4 Are (Some of) the Articles/Acts of Union ‘Fundamental’ in Status?

Are some provisions fundamental law, that is possessing some sort of entrenched status, making them hard to override? Certainly, it has been argued that Parliament was ‘born unfree’, created and bound by a higher law (namely provisions of Union).Footnote ⁵⁶

Parliamentary sovereignty has overshadowed discussions of British constitutional law, but, in the early eighteenth century, the concept of a ‘fundamental law’ was not unheard of.Footnote ⁵⁷ The words of Union legislation itself suggest that at least some of it was intended to be ‘fundamental’. Provisions of the Acts securing the Protestant religion are expressed as ‘a fundamentall and essentiall Condition of the said Treaty or Union’, and, together with the Articles of Union themselves ordained ‘to be and continue in all time coming the sure and perpetuall foundation of ane compleat and intire Union.’ Even Dicey had to acknowledge that, ‘The legislators who passed these Acts assuredly intended to give to certain provisions of them more than the ordinary effect of statutes.’Footnote ⁵⁸ Moreover, in MacCormick, the Lord Advocate, defending the UK Government’s case, conceded that Parliament had no lawful power to amend or repeal fundamental terms of the Union, such as those protecting Scotland’s independent legal systemFootnote ⁵⁹ – quite a concession to make.

1.3.5 The Role of the Courts

But what should the courts do if faced with an Act of Parliament that appears to violate fundamental terms of the Union? Should they refuse to apply it? The problem is that the Articles and Acts of Union (rather like the now defunct 1972 European Communities Act) contain no specific provisions detailing what courts should do in such situations. There is no easy answer and in any case no caselaw in which courts have explicitly refused to give effect to legislation on the grounds that it violated the terms of Union.Footnote ⁸¹

In MacCormick, Lord President Cooper reserved opinion as to whether the Court of Session might review legislation on ground of its violation of Articles of Union, and in 1975, Lord Keith reached a similar conclusion in Gibson v. Lord Advocate. Gibson concerned fishing rights and EEC law. The issue was whether s 2(1) ECA violated laws ‘which concern private right’ under Article XVIII in Scotland, because it impliedly derogated from exclusive rights to fish within Scottish waters, thus altering the law other than ‘for the evident utility of subjects within Scotland.’ The action failed, because the right at issue was deemed a public not a private law right. However, Lord Keith also stated that:

More recently, in 1991, in Pringle, Petitioner,Footnote ⁸³ the issue of the constitutional effect of fundamental provisions in the Act of Union again arose. Pringle concerned payment of the hugely unpopular ‘poll tax’, a charge introduced under the 1987 Abolition of Domestic Rates Etc. (Scotland) Act, (a piece of Westminster legislation opposed by Scottish MPs and only adopted on the votes of English MPs, the year beforeFootnote ⁸⁴ it was introduced in EnglandFootnote ⁸⁵). Pringle used the nobile officiumFootnote ⁸⁶ remedy of the Court of Session to seek relief from liability to pay the poll tax. The argument was that its imposition contravened Article IV Act of Union because Scots would be at a disadvantage to the rest of the UK. This failed, because the court found no disadvantage for Scots (given that, unlike England, they no longer had to pay domestic rates) but once again, the court did not completely reject the argument that a UK Act of Parliament might be invalid for violating a term in the Act of Union. Lastly, in Lord Gray’s Motion, Lord Hope stated that ‘the argument that the legislative powers of the new Parliament of Great Britain were subject to restrictions expressed in the Union agreement cannot be dismissed as entirely fanciful.’Footnote ⁸⁷

The caselaw, therefore, is inconclusive. The problem is that the issue has never been squarely faced. In MacCormick, the issue was held non-justiciable, and in Gibson, not a matter of private right. Yet, just as one should not rule out the possibility that British courts might refuse recognition to a statute that, for example, abolished judicial review altogether,Footnote ⁸⁸ so in an equivalent extreme case – that is, one attempting to abolish the separate Scottish legal system – might courts deny constitutionality to legislation that contravened the most fundamental principles of Union? But these would be very extreme cases.

1.3.6 Separate Legal Systems

Article XVIV of the Treaty of Union ensured that Scotland’s legal system would continue as a separate jurisdiction, with separate courts (but not separate legislatures, at least until 1999). Clashes have inevitably arisen with English law, and although these separate legal systems exist within one State, (distinct) private international law systems have had to govern these conflicts.

In the Scottish case of Orr Ewing’s Trustees, Lord President Inglis held, ‘The judicatories of Scotland and England are as independent of each other within their respective territories, as if they were the judicatories of two foreign states.’Footnote ⁸⁹

1.4.1 The Aftermath

On 1 May 1707, there was rejoicing and church bell ringing in London when the Union came into being. In Scotland, spirits were not so high, and the story is that the bells of St Giles in Edinburgh rang ‘why should I be sad on my wedding day?’ There was no immediate economic miracle in Scotland, and the English were slow to pay the ‘Equivalent’. But customs and excise began to be enforced with an increased efficacy in Scotland, so that many felt worse off than before Union. The independent Scottish State had been extinguished. Even if Andrew Fletcher of Saltoun had famously said, ‘If man may make all the ballads he should not care who should make the laws of a nation?’, Fletcher himself left Scotland after the Union came into being, going first to London. (Indeed, many Scots began moving to London to further their careers.) Fletcher’s last words were supposedly and famously, ‘Lord have mercy upon my poor countrey that is so barbarously oppressed!’Footnote ⁹⁰

In early years following the Union, discontent and opposition increased in Scotland. A Tory government had replaced the Whig coalition in London in 1710, and from 1712, several provocative laws were passed in Parliament. The 1712 Toleration Act permitted more freedom to the Episcopalian minority in Scotland, if they agreed to pray for the (future) Hanoverian king. The 1712 Patronage Act re-established the right of Scottish landowners, instead of the local congregation, to nominate parish ministers. This seemed to conflict with the self-understanding of Presbyterianism and to be an intrusion of the State on the privileges of the Scottish Kirk.Footnote ⁹¹ This conflict eventually led to the ‘Great Disruption’ of 1843 which formed the Free Church of Scotland. Furthermore, the Christmas Observance Act of 1712 removed the ban on Christmas celebrations in Scotland (banned since 1575) to the great displeasure of the Scottish Church. All this legislation led to criticism that the Church of Scotland lacked sufficient protections in the Treaty of Union. These aggravating measures appeared to risk the very continued existence of Union.

This dissatisfaction only increased with the Malt Tax Act in 1713, which considerably increased the price of ale in Scotland, appearing to breach Article XIV Treaty of Union. In response, Scottish parliamentarians introduced their own attempt to dissolve the Union. But this failed, lost by only a small number of proxy votes.Footnote ⁹²

However, a new threat presented itself in the 1715 Jacobite rebellion of the ‘Old Pretender’. This was potentially the most threatening of all Jacobite rebellions. Whereas, previously, support for the Stuarts had been religious and dynastic, now Jacobites sought to present themselves as championing Scottish freedom and independence. However, the rising failed to defeat the (smaller) Crown forces at the battle of Sheriffmuir, and the initiative was lost, partly due to incompetent leadership, and so the putative James VIII/III was forced back to France.

1.4.2 ‘Britons’?

Nonetheless, the failure of both the attempted dissolution of Union, and the 1715 Jacobite rebellion, should not be attributed to any strong feeling of ‘Britishness’. As Linda Colley writes, ‘this was a union of policy and not of affection.’ Colley also describes the Great Britain of this time as ‘like the Christian doctrine of the Trinity, both three and one and altogether something of a mystery.’Footnote ⁹³

Colley’s argument is thatFootnote ⁹⁴ a sense of Britishness came to be developed as a result of a sense of dissimilarity from those beyond Britain, especially the French. France had for long been England’s main enemy and rival, although Thomas Carlyle commented that Scottish culture up to the date of the Union had been essentially French.Footnote ⁹⁵ This gradually changed after 1707, as Britons (including Scots) came to identify with the Protestant faith, against Catholicism. Indeed, Colley highlights the extent to which this identification and division of religion was formalized in law.Footnote ⁹⁶ Up to 1829, British Catholics were not permitted to vote and were banned from all state offices and Parliament. For most of the eighteenth century, Catholics suffered from punitive taxation, were prohibited from possessing arms, and suffered great prejudice in access to education, the right to property and religious freedom. This anti-Catholicism was also embraced by a driven group of Scottish Presbyterians, who understood Union as a means of eradicating Catholic influence. Furthermore, a Stuart restoration was perceived as not only threatening a Catholic religious revival, but also freedom itself. For liberty, and the British Constitution, were also viewed as linked to Protestantism, and the Constitution was, as Colley writes, perceived to be ‘unique, splendid and sovereign, the hard-won prerogative of a free Protestant people.’Footnote ⁹⁷

Ultimately, the Jacobite Catholic cause was seen to threaten not only the stability of the constitutional order, but also the country more generally, through the risk of violence, civil war, and destruction of trade. For another important element of Britishness was the embrace of commerce and trade, the growth of what Napoleon came to refer to as ‘a nation of shopkeepers’.

And so, little by little, in the course of the eighteenth century, perceptions in Scotland of the benefits of Union changed.Footnote ⁹⁸ For the most part, Scotland was left semi-independent, sufficiently distant, but benefiting from Union in commerce and foreign affairs, even if the tax burden weighed more heavily. The Union started to gain a greater stability. The Scottish Parliament no longer existed, but Edinburgh maintained its role as a centre of law and administration. Scotland enjoyed a great deal of legal, religious, and administrative autonomy, and to be sure, the Enlightenment did much to increase Scotland’s standing in cultural matters. On the other hand, talented Scots gained access to important official positions in England, often at the expense of English, quite a few of whom (e.g. John Wilkes) came to resent Scottish influence. Scotland was increasing in prosperity, and often faring better than England. Aside from the Scottish Enlightenment, Scotland could claim superiority over England in universities (five to England’s two), education generally, and the medical professions. Scots also played a significant role in Empire, which after all, became well-known as the ‘British’ and not ‘English’ empire. Many Scotsmen joined the army, especially working in India, with the East India company, and making their fortune there.

1.4.3 Scottish Governance up to Devolution in 1998

Following the 1707 Union, Scottish administration was absorbed into that of Great Britain and based in London. Scotland’s independent legal system and Church remained and there was also administrative decentralization for matters such as health, education and prisons, and local government boards were established in Scotland in the nineteenth century. A new system was introduced in 1885 with a Secretary for Scotland appointed as head of the new Scottish Office in Whitehall. However, for many, the notion of a Scottish Office in London appeared a contradiction in terms, and, in 1939 the Scottish Office moved to Edinburgh (although continued to maintain a branch in London).Footnote ⁹⁹

In 1883, the Scottish Home Rule Association was founded, and in 1913 a Home Rule Bill for Scotland was introduced into Parliament by Scottish Liberal MP, William Cowan. Cowan stated that, ‘At nineteen out of twenty General Elections since 1832 Scotland has returned a Liberal majority to Parliament, and … that body advocates without reserve Scottish Home Rule’, concluding that, ‘Is it any wonder Scotland is tired and demands a parliament of her own?’Footnote ¹⁰⁰ The Scottish Home Rule Bill was designed along similar lines to Irish Home Rule and would revive the Scottish Parliament, although the principle of Westminster parliamentary sovereignty would be maintained. However, the Bill was not adopted due to the onset of the First World War, and although it returned in the 1920s, the impetus was lost and Scottish nationalism was a diminished force until the SNP gained its first seat in Westminster in 1945. In 1978, the UK Labour Government introduced the Scotland Bill, with provision for a referendum on a Scottish Assembly.Footnote ¹⁰¹ However, this Bill contained a provision (in s.85)Footnote ¹⁰² requiring 40 per cent of the Scottish electorate to vote for devolution for it to be implemented. In the event, although a majority voted for an Assembly, the 40 per cent threshold was not reached, and so devolution did not take place.

By 1998, the Scottish Secretary of State had many responsibilities, encompassing a wide range of Scottish affairs, and the Scottish Office employed about 10,000 civil servants. During the twentieth century, the House of Commons developed special procedures for legislation relating only to Scotland, Northern Ireland, and Wales. A Scottish Grand Committee was established in the House of Commons, comprising all MPs representing Scottish constituencies, to debate bills relating exclusively to Scotland, as well as a Select Committee on Scottish Affairs. Nonetheless, these special procedures were embedded in the Westminster Parliament, within the centralized blueprint of the unitary State.

1.5.1 Changing Views of Union

By 1907, on the 200th anniversary of the 1707 Union, it seems that Scots generally took a positive view of Union.Footnote ¹⁰³ However, by half a century or so later, views were changing. Union was more likely to be seen as a corrupt bargain, achieved by politicians and other figures in pursuit of their own self-interest, and a victory of English managerial politics and control. Nationalism was on the rise in Scotland.

1.5.2 A Scottish Tradition of Popular Sovereignty?

Many in England seem unaware of the claim to a distinct Scottish constitutional tradition, considerably different from the English doctrine of parliamentary sovereignty. The Scottish tradition looks to popular sovereignty, and traces its origins back in history: to the Declaration of Arbroath in 1320; the doctrines of early modern theorists such as George Buchanan; and Claim of Right of 1689. The interchange between the English and Scottish traditions is unclear, but it is unlikely that the British Constitution can simply be interpreted as the English tradition writ large.

The Declaration of Arbroath of 1320 is often referenced,Footnote ¹⁰⁴ especially since its 700th anniversary in April 2020. This Declaration was written in Latin by Scottish barons to Pope John XXII, requesting that he recognize Scotland’s independence from England, and also recognize Robert Bruce (excommunicated in 1319) as Scotland’s lawful king. The document is often credited as the origin of concepts of popular sovereignty because it declared that Bruce was ‘King, not only by right of succession according to our laws and customs, but also with the due consent of us all.’ Nonetheless, one might question the extent to which popular sovereignty and ‘the people’ are validated by this document. As with the English Magna Carta, this was a document signed by wealthy nobles, not by all the people. It was eight years before the Pope responded and reversed Bruce’s excommunication, and the Declaration enjoyed near obscurity for a couple of centuries, while in contrast, the theory of divine right of kings enjoyed a resurgence under the Stuarts.

George Buchanan (described by Neil MacCormick as ‘the greatest of the Scottish contributors to the European renaissance … and perhaps our first articulate theorist of sovereignty’Footnote ¹⁰⁵) had been principle tutor to the young King James VI in Scotland. Buchanan’s 1578 De lure Regni Apud Scotos (‘The Law of Kingship Among the Scots’Footnote ¹⁰⁶) was a short treatise explaining the Scottish Constitution. In this treatise, Buchanan sanctioned the assassination of a tyrant, and he included Mary Queen of Scots in this definition, seeing her as ruling only in her own interest. His thesis was that the law was above the monarch, and that Scotland had not behaved egregiously in deposing Mary. Buchanan declared that ‘The judge has his authority from the law, not the law from the judge.’Footnote ¹⁰⁷ Neil MacCormick argued that, prior to Union, Scotland had been sufficiently influenced by Buchanan to embrace a constitutional commitment to some type of popular sovereignty, contending that:

After Union, it was unclear to what extent the older Scottish tradition of popular sovereignty had been overtaken by English conceptions of parliamentary sovereignty. However, by the late twentieth century, this older tradition of popular sovereignty was recognized more clearly. The Campaign for a Scottish Assembly was formed in 1980, and in 1988, produced A Claim of Right for Scotland. This took its name from the 1689 Claim of Right, stating that ‘parliamentary government under the present British constitution had failed Scotland’.Footnote ¹⁰⁹ This report was produced at a time of increasing political dissonance between England and Scotland. Since 1979, conservative majorities had formed governments in London, but conservative representation had been greatly reduced in Scotland (so that by 1997, no conservative MPs were returned for Scotland) leading to a perception of a lack of legitimacy of UK governments over Scotland. A Convention was established in 1989 to draw up plans for a Scottish Parliament with Canon Kenyon Wright as its executive chairman, declaring ‘the sovereign right of the Scottish people to determine the form of government best suited to their needs’.Footnote ¹¹⁰ Members of the Scottish Constitutional Convention included most political parties, as well as STUC, churches, business and grass roots organizations. However, the SNP withdrew, after expressing concern that the Convention would not consider Scottish independence. The Conservative Party also took no part, being opposed to a devolved Parliament for Scotland. The Constitutional Convention’s 1990 interim report claimed that parliamentary sovereignty was ‘a constitutional fiction which cloaks the effective exercise of sovereign power by the governing political party’.Footnote ¹¹¹ The Convention’s 1995 report, Scotland’s Parliament, Scotland’s Right, formed the basis of the UK Government’s White Paper proposals, Scotland’s Parliament, in 1997. (Indeed, many members of the 1997 UK Labour Government had been signatories to the Claim of Right.)

One may summarize the above by noting distinct constitutional principles in England and Scotland. However, it would be a mistake to ascribe adherence to popular sovereignty and the Claim of Right only to Scottish nationalist politicians. As noted, many politicians of the Labour, Liberal and other political parties subscribed to these principles, and they were embraced by the 1997 Labour Government as the foundation for the new Devolution settlement – an event that might even be seen in the words of US constitutional law theorist, Bruce Ackerman, as a ‘constitutional moment’.Footnote ¹¹² The Scottish Constitutional Convention should also be considered in tandem with other campaigns and demonstrations against the UK Government in Scotland, such as poll tax revolts. These have collectively been characterized as organized rejections of the UK Government’s legitimacy in Scotland, comparable to the rebellions in the American colonies in 1773 after the Tea Act, whereby ‘the act of imposing an unpopular tax where there was defective representation in the context of questionable legitimacy is similar’.Footnote ¹¹³

1.5.3 Britain as a ‘Union’ Rather Than ‘Unitary’ State?

An important question is whether the UK should be described as a ‘Union State’ rather than unitary in nature. Aileen McHarg describes the ‘union’ State as ‘one in which, because of the way the state emerged historically, heterogeneity of governance arrangements between constituent regions or nations has become a normal and persistent feature.’Footnote ¹¹⁴ Although the concept of union is widely used in constitutional studies to refer to the consolidation of existing units into one, it is not the same as a unitary State, a term which implies a constitutional order with a single, unrivalled, legal competence, which places a central agency in a position of unequivocal authority. In contrast, within a union State, different parts of that State may understand the Constitution in different ways.

Britain might better be described as a ‘Union’ State, as there is a strong argument that it lacks an unequivocal, unitary sovereignty.Footnote ¹¹⁵ This is a significant contention, as it challenges the argument that sovereignty rests entirely with the Westminster Parliament. Lord Steyn’s obiter comment in Jackson v. Attorney GeneralFootnote ¹¹⁶ that ‘the settlement contained in the Scotland Act 1998 … point[s] to a divided sovereignty’ bolsters this view (although many traditionalists would contest this point). There exist different constitutional settlements in the different parts of the UK. Indeed, James Mitchell described the UK since devolved government as ‘a state of unions.’Footnote ¹¹⁷ Michael Keating argues that the UK is better conceived as a ‘plurinational’ rather than a ‘multinational’ State, because its people have plural national identities.Footnote ¹¹⁸ The continuation of separate civic institutions, legal system and cultural heritage in Scotland, along with the historical tradition of a right of the Scottish people to self-determination, and the recognition of the UK as a Union State, point towards the Union as a continuing agreement between two independent nations, Scotland and England. This, in turn, suggests that, should one of these nations no longer wish to continue the Union, then it has a right to terminate the agreement, and revert to its former status as an independent State.

1.6.1 The Scottish Parliament and Government

The Scottish unicameral Parliament sits at Holyrood in Edinburgh and met for the first time on 12 May 1999. However, opinions vary as to whether this Parliament is totally new. At its first session, SNP member Winnie Ewing, stated, ‘the Scottish Parliament, adjourned on 25th day of March in the year 1707, is hereby reconvened’.Footnote ¹²³

The Scottish Parliament presently has 129 members (MSPs) now elected for a fixed term of five years. Part I Scotland Act 1998 sets out the process by which they are elected, which is through a mixed, or additional, member system (AMS), whereby each voter has two different votes, comprising a ‘First Past the Post’ and proportional representation element. This AMS system has often resulted in a coalition, or minority government, and also often produced a different political administration from that in London for the UK overall. The Scottish Parliament devises its own procedures and much of its work is done through committees, which, among other things, scrutinize legislation and the Scottish Government. Under s28(2) Scotland Act a Bill is adopted as an Act of the Scottish Parliament (ASP) ‘when it has been passed by the Parliament and has received Royal Assent.’ Roughly speaking, the stages in the Scottish Parliament’s legislative procedure tally with the second reading, committee stage and third reading of Westminster Bills. But there is of course, no equivalent to the House of Lords’ function as a revising Chamber. The Scottish Parliament has only limited legislative powers and may not legislate incompatibly with EU law (while the UK was an EU member) and ECHR rights, nor may it legislate on matters reserved to Westminster.

Power was also devolved to a separate Scottish Government by s53 Scotland Act 1998, so the powers of UK Whitehall ministers have been decreased. The Scottish Government follows a ‘Cabinet style’, comprising the First Minister (nominated by the Parliament), other ministers, and Scottish law officers (Lord Advocate and Solicitor General for Scotland). However, a Secretary of State for Scotland continues to exist in the UK Cabinet, albeit with reduced responsibilities. Further, s87 Scotland Act created a new office, that of Advocate General for Scotland (a member of the UK Government), who advises the UK Government on Scots law.

Some of the funding for the Scottish Government comes from the ‘block grant’ transferred from the UK Treasury to the Scottish Ministers. This block grant is calculated according to the ‘Barnett formula’Footnote ¹²⁴ first devised in 1978, which equalizes funding across the UK and aims to give each devolved nation the same per person change in funding as that agreed for comparable government services in England. Therefore, this block grant is not actually based on the needs of Scotland. There have been many calls for change or removal of the Barnett formula, but deciding what to replace it with has not been easy. In any event, over the past 10 years, the funding system has changed due to increased devolution of tax raising powers to Scotland, with block grant funding commensurately reduced – but the Barnett formula itself remains.

1.7.1 Restrictions on Competence of the Scottish Parliament

According to s29(1), ‘An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.’ And notably, s28(7) Scotland Act 1998 explicitly upholds the power of the UK Parliament to legislate for Scotland, so preserving the notion of unlimited UK parliamentary sovereignty.

The Scottish Parliament is therefore a legislature of limited competence. It must not legislate on reserved matters nor in breach of ECHR rights, nor formerly EU law. s31(1) Scotland Act 1998 requires the Scottish minister promoting a Bill to state that its provisions are within legislative competence, and s31(2) imposes the same duty on the Presiding Officer of the Parliament (who functions in a similar way to the Speaker of the House of Commons). UK ministers also possess a veto power under s35 Scotland Act 1998 where they have reasonable grounds to believe a Bill incompatible with international obligations, or defence or national security, or modifies the law on reserved matters so as to have an adverse effect. ASPs may, in the final instance, be struck down by the courts. Under s33(1) Scotland Act, the Advocate General, Lord Advocate or the Attorney General may refer the question of whether a Bill would be within legislative competence to the Supreme Court.

1.8.1 The Section 30 Order

(Then) UK Prime Minister, David Cameron, acknowledged the SNP’s victory in 2011, and publicly accepted that it was for the Scottish people to decide on Scotland’s future. Nonetheless, the UK Government contested the Scottish Parliament’s competence to legislate for an independence referendum.Footnote ¹³⁰ In contrast, the Scottish Government maintained that the Scottish Parliament did possess the relevant legislative competence.Footnote ¹³¹

In the event, neither view was conclusively adopted, and the issue was settled in another way when the UK and Scottish Governments signed the Edinburgh Agreement in 2012. Under that Agreement, the UK Government drafted an Order in Council (a ‘section 30 order’) granting the Scottish Parliament the necessary powers to hold an independence referendum, on or before 31 December 2014.

1.8.2 The Referendum

The competence issue being settled, the Scottish Parliament then adopted two pieces of legislation making possible a referendum on Scottish Independence: the Scottish Independence Referendum (Franchise) Act 2013 and the Scottish Independence Referendum Act 2013. The Franchise Act provided that all persons entitled to vote in local government and Scottish Parliament elections could vote in the referendum, along with 16- and 17-year olds. This proved relatively uncontroversial and the only disagreement concerned the Act’s bar on prisoner voting.Footnote ¹³² The Scottish Independence Referendum Act 2013 set out other substantive terms of the referendum. It confirmed the date of the referendum (18 September 2014) and the specific question to be asked (‘Should Scotland be an independent country?’) and also set out the rules for official campaigns to follow.

On 26 November 2013, the Scottish Government published Scotland’s Future, its guide to an independent Scotland. In the event of a ‘yes’ vote, the Scottish Government planned for an ‘Independence Day’ on 24 March 2016, with elections for an independent Scottish Parliament in May 2016. Some Scottish Government proposals which proved particularly controversial included: the continued use of sterling via a formal currency union with rUK (namely, England, Wales and Northern Ireland); maintaining NATO membership; and negotiating membership of the EU on the same terms as the UK then had.Footnote ¹³³ These proposals were dependent on securing agreement with rUK, the EU and other international organizations, for which the Scottish Government set the target of negotiating and implementing the arrangements within a proposed 18-month transition period to March 2016.Footnote ¹³⁴

A key issue was the institutional changes to be introduced following independence. The Scottish Government proposed an interim Constitution, to be followed by an ‘inclusive and participative’ process for replacing it with a permanent written Constitution. The Bill for the interim Constitution proclaimed popular sovereignty.Footnote ¹³⁵ As well as the above, a transfer of power from Westminster to Holyrood was also foreseen as necessary to empower the Scottish Parliament to officially enact independence and adopt legislation on all policy areas formerly reserved to Westminster.

The Scottish Independence Referendum took place on 18 September 2014, and the turnout of 84.6 per cent was the highest recorded for a UK election or referendum since the January 1910 general election (which preceded the introduction of universal suffrage). The proposition ‘Should Scotland be an independent country?’ was rejected by a margin of 10.6 per cent.

1.9.1 An Overview of the Scotland Act 2016

A Commission was set up in late 2014, shortly after the referendum vote, headed by Lord Smith of Kelvin, to oversee the further devolution commitments such as those in the ‘Vow’. A little later, the Smith Commission produced a report recommending some areas for further devolution, and that ‘UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions.’Footnote ¹⁴⁰ The fear that Westminster might seek to abolish a Scottish Parliament predated 1998 devolution. And the fear was not without reason, for the Greater London Council had been abolished by Margaret Thatcher by the UK Local Government Act 1985.

Many of the Smith Commission recommendations were incorporated into the Scotland Act 2016. These new powers would, in the view of the UK Government, transform Holyrood into a ‘powerhouse Parliament’.Footnote ¹⁴¹ Some additional powers were devolved, giving the Scottish government greater powers to raise income tax. Perhaps most notably, the 2016 Act provided in s1 that, ‘The Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom’s constitutional arrangements’ and in s2 put the Sewel Convention on a statutory basis.

1.9.2 The ‘Constitutional Clauses’

1.10.1 Introduction

How have the courts addressed questions of the Scottish Parliament’s competence? ‘Hard’ judicial review (namely that in which a court can invalidate primary legislation) of Westminster statutes has not traditionally been possible under ‘classic’ interpretations of Britain’s Constitution, in which the doctrine of parliamentary sovereignty prevails. However, this has not applied in the case of subordinate legislatures. For example, judicial review of legislation of the former Northern Ireland Parliament (1922–1972) was possible, although rare.Footnote ¹⁵⁰ Since then, judicial review of legislation on certain grounds has been possible in the post 1998 devolution settlements. This availability of more searching judicial review tells us something about how devolution has changed the nature of law in the UK.

By the late 1990s, the idea that democratically enacted statutes might be reviewable no longer seemed so controversial in the UK. Even Westminster statutes could be set aside if they conflicted with EU law, as the Factortame case had shown.Footnote ¹⁵¹ Further, the 1988 Claim of Right for Scotland had declared the popular sovereignty of the Scottish people, thus circulating the notion that the power to legislate is limited and derives from the people. Constitutional review by the courts has since then become an important aspect of the devolution settlement in Scotland.

One early questionFootnote ¹⁵² was that of the status of Acts of the Scottish Parliament. Should they be treated as primary legislation, because they are the output of an elected, democratic Parliament, or, alternatively, as analogous to local authority decisions, because devolved Parliaments are subordinate in status? In AXA General Insurance Ltd, the UK Supreme Court held that ASPs cannot be challenged as if they were decisions of a subordinate public body, and so they could not be reviewed on common law grounds of irrationality or unreasonableness. However, because the Scottish Parliament does not enjoy the sovereignty of the Crown in Parliament, its legislation could be amenable to some common law supervision’Footnote ¹⁵³ – but only in the most exceptional circumstances.Footnote ¹⁵⁴ In this way, common law conditions for judicial review of ASPs are not so far from those some judges have suggested might apply to Westminster primary legislation. (An exceptional rule of law review of Westminster statutes was suggested in the dicta of Baroness Hale, Lord Steyn and Lord Hope in Jackson v. Attorney General.Footnote ¹⁵⁵) So, while the Scottish Parliament can be distinguished from Westminster, courts have stressed what the Scottish Parliament has in common with the Westminster Parliament, namely its status as a democratic legislature with the legitimacy that follows from that.

But what of the Scotland Act itself, the legislation that established the Scottish Parliament? In 2002, in the Northern Ireland Robinson case, the House of Lords (judicial Chamber) held that the Devolution Acts were in effect Constitutions, to be interpreted ‘generously and purposively’.Footnote ¹⁵⁶ This looked like a rather radical departure. However, both the Court of Session and UK Supreme Court later rejected this approach. Although the Supreme Court held in H v. Lord Advocate,Footnote ¹⁵⁷ that the Scotland Act, as a constitutional statute,Footnote ¹⁵⁸ could not be impliedly repealed, in Imperial Tobacco Lord Reed stated:

1.10.2 Statutory Grounds of Review

The Scottish Parliament may be a democratically elected body but it is constrained by statute, mainly under ss 28 and 29 Scotland Act.

s29(2)d provides that ASPs must not be incompatible with the ECHR nor (while the UK was an EU member) with EU law. Although the democratic credentials of the Scottish Parliament were stressed by the Supreme Court in AXA, it is nonetheless constrained far more strongly by ECHR rights than Westminster. This means that any ASP incompatible with ECHR rights is ‘not law’, whereas statutes enacted by Westminster may only declared ‘incompatible’ with the ECHR by the courts under s4 HRA and cannot be invalidated by the courts for violation of the Human Rights Act 1998. Section 29(2)(d) also stated that the Scottish Parliament could not act incompatibly with EU law. Since 1 February 2020, the UK has left the EU, but under EUWA 2018, devolved legislatures are still bound by ‘retained EU law’, although the UK Parliament, and UK ministers, are free to amend it. The opposition of the Scottish government to Brexit legislation is considered further below.

Secondly, what have been termed ‘federal’Footnote ¹⁶⁰ (although this may be a bit of a misnomer, given the UK is not a federal State) restrictions apply, namely those which determine the division of competences between the UK and Scottish levels of government. S29(2)(b) provides that Scottish Parliament legislation will be outside competence if it relates to a reserved matter. Although most earlier challenges to ASPs were based on ECHR rights, there has been increasing litigation alleging that Scottish legislation trespassed on matters reserved to Westminster. But the line between reserved and devolved matters can be rather difficult to draw. When considering whether a provision relates to a reserved matter the courts must determine this ‘by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances’ (s29(3) SA). Further, s 101(2) Scotland Act provides that ASPs are to be ‘read as narrowly as is required for it to be within competence, if such a reading is possible.’

Some federal jurisdictions, especially Canada, have taken a ‘pith and substance’ approach to competence, seeking out the essential character of the law, and its true meaning and purpose,Footnote ¹⁶¹ looking at the statute as a whole. However this approach was not followed wholeheartedly by the UK Supreme Court.Footnote ¹⁶² In Imperial Tobacco, Lord Hope said that the ‘pith and substance’ test was unnecessary because the Devolution Acts did not use that phrase and provided their own rubric for interpretation, thus suggesting that the UK test for division of powers should not be compared to those in a federal jurisdiction. Generally, the Supreme Court has held that a provision will be outside competence if it has a ‘more than a loose or consequential connection to a reserved matter’ – a phrase that was used in 2010 in Martin,Footnote ¹⁶³ and repeated in other cases since.

In March 2018, the Scottish Parliament adopted the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Act 2018 by 95 votes to 32. This Bill shared its structure and approach with the UK EUWA 2018,Footnote ¹⁶⁴ seeking to complement it. However, it diverged from the EUWA in some areas, for example, it did not exclude the EU Charter of Fundamental Rights, and allowed Scotland to keep pace with EU developments in future. It also, in its s17 (in contrast to the UK EUWA), required consent of Scottish ministers should UK Ministers wish to alter or repeal retained EU law within devolved areas. This Bill was challenged by the UK government and the lawsuit made constitutional history – being the first ASP referred to the UK Supreme Court by the Attorney General under s33 Scotland Act 1998, a procedure that constitutes a type of ‘abstract’, rather than ‘concrete’ review. Later in 2018, the Supreme Court, applying the familiar test of whether a provision had ‘more than a loose or consequential connection to a reserved matter’ found only s17 outside of the Scottish Parliament’s competence,Footnote ¹⁶⁵ due to enactments in the EUWA (subsequent to the adoption of the Scottish Continuity legislation), which prohibited the EUWA’s own modification. However, it is hard not to conclude that the Continuity Bill was competent when adopted by the Scottish Parliament. If so, surely it follows that the UK Government may challenge any devolved legislation it dislikes, thus suspending its application while the matter is sub judice, and in the meantime adopt its own ‘protected legislation’, which by coming into force automatically trumps the devolved legislation.

In 2021, the UK Supreme Court upheld the UK Government’s challenge to two Bills adopted by the Scottish Parliament on grounds they exceeded the Scottish Parliament’s powers. Both Bills implemented treaties into Scots law, one incorporating the UN Convention on the Rights of the Child, the other the European Charter of local self-government. Although both Bills were unanimously approved by MSPs and certified by the Presiding Officer as within the Scottish Parliament’s powers, the Court held that both Bills placed obligations on UK ministers that exceeded devolved powers.Footnote ¹⁶⁶ Significantly, the Supreme Court found that provisions in the Bills would modify s28(7) SA in what Elliott describes as ‘a highly unconvincing judgement that reads the Scottish Devolution settlement unnecessarily narrowly.’Footnote ¹⁶⁷ This significant judgement on legislative competence was perhaps a harbinger of how the Supreme Court would determine the competence of a future Scottish independence referendum Bill.

1.10.3 Role of the UK Supreme Court

These judgements prompt questions as to the Supreme Court’s growing role in devolution jurisprudence. The UK Supreme Court has been the final court of appeal for devolution disputes since 2009.Footnote ¹⁶⁸ When it hears devolution issues, the Supreme Court sits as a UK court, rather than a Scottish (or English and Welsh, or Northern Irish) court. Yet, Scots law is different to English law, and each of the three devolution settlements is in turn different from each other, perhaps undermining the concept of a uniform devolution jurisprudence,Footnote ¹⁶⁹ let alone a uniform constitutional law. Since 2017, the UK Supreme Court has sometimes sat in Edinburgh, Belfast and Cardiff, perhaps in an attempt to counteract a perception that the Court might be too London centred and England dominated.

Originally it was the Judicial Committee of the Privy Council (JCPC) that determined devolution disputes. The JCPC was thought to be well placed for this role, having been a court of last resort for many Commonwealth jurisdictions in the past, and having served this function under the Government of Ireland Act 1920. However, both the SNP and the Liberal Democrats were unhappy with this arrangement,Footnote ¹⁷⁰ seeking to amend the 1998 Scotland Bill to provide for a constitutional court whose judges would be institutionally independent from the House of Lords and English domination. As this chapter has explored, a different Scottish constitutional tradition has evolved, which is sometimes difficult to square with orthodox English theories of parliamentary sovereignty. And so, a dominance of English judgesFootnote ¹⁷¹ determining devolution cases might seem problematic.

1.10.4 Conclusions

Therefore, ASPs are reviewable by the courts which may declare their provisions ultra vires, thus distinguishing them from Acts of the Westminster Parliament. Notably, in a 2018 lecture, Lady Hale stated that ‘the only conclusion I can draw is that devolution of legislative – as opposed to executive – power turns the United Kingdom Supreme Court into a genuinely constitutional court.’Footnote ¹⁷² Nonetheless, the caselaw on constitutional review of ASPs is somewhat equivocal. Sometimes, the approach seems to be a constitutional one, approaching the Scottish Parliament as a democratically elected primary legislator, established by a constitutional statute. On the other hand, the Supreme Court seems to have also rejected the federal ‘pith and substance’ test, and cleaved to an absolutist view of Westminster parliamentary sovereignty in its more recent judgements.

If Scotland had voted for independence in 2014, a Constitutional Convention would have been assembled to draft a written Constitution which limited the sovereignty of legislative acts.Footnote ¹⁷³ The role of judges to determine constitutional meaning, and if necessary invalidate ‘ordinary’ legislative acts for non-compliance with the Constitution, tends to become augmented with written Constitutions, as it has been in the US, since the decision of Marbury v. Madison. The outlier is the Westminster Parliament.

1.12.1 Background

This unsettled constitutional situation was further complicated by Brexit, which hit the UK like a ‘lightning bolt’.Footnote ¹⁷⁶ During the Scottish independence referendum campaign, the pro-UK, ‘Better Together’ side notably raised the issue of EU membership. They suggested that the only way Scotland’s EU membership would be assured was by remaining in the UK, and that an independent Scotland’s application for EU membership could take years, with no guarantee of success. Thus, in voting against independence, many Scots might have thought they were securing EU membership. This proved not to be the case.

In the 2016 EU referendum, in which overall the UK voted by 51.9 per cent to leave the EU, Scotland voted by 62 per cent to remain. (This was a bigger margin than the 55 per cent of voting Scots voting to remain in the UK in 2014.) The EU Single Market was the main destination for Scotland’s international exports, and, according to a 2016 report by the Fraser of Allander Institute, Brexit will have a significant negative impact on the Scottish economy, resulting in a GDP lower by 2–5 per cent, and employment lower by 1–3 per cent, than if the UK remained in the EU.Footnote ¹⁷⁷ The Scottish government argued that it was undemocratic for Scotland to be driven out of the EU against its will. Yet, within the constraints of Britain’s constitutional arrangements, it has been difficult for Scotland to forge a different relationship with the EU from the rest of the UK. The current devolution settlement treats EU negotiations as ‘reserved’ matters, giving Scotland few legal rights in the EU withdrawal process. Nonetheless, efforts were made within Scotland to explore whether it could remain in the EU Single Market. The Scottish Government published Scotland’s Place in EuropeFootnote ¹⁷⁸ in December 2016, well before the UK Government had concretized its position, stating a desire to maintain the benefits of EU membership for Scotland.

1.12.2 A UK ‘Union’ Approach

Although foreign policy, which includes relations with the EU, is reserved to the UK government, it is too simplistic to state that devolved administrations have no interest in EU matters. A large part of EU law relates to devolved competences – as a result, devolved governments had an important role in implementing and applying EU law. Additionally, many areas of EU law straddle devolved and reserved competences.Footnote ¹⁷⁹

However, notwithstanding Scottish aspirations, in her Lancaster House speechFootnote ¹⁸⁰ in January 2017 (then Prime Minister) Theresa May stated that the UK would leave both the Single Market and the Customs Union. No mention was made in the UK Government’s letter triggering Article 50 TEUFootnote ¹⁸¹ of any particular arrangements for Scotland (although Northern Ireland was singled out as a special case), so it seemed that the UK Government rejected the Scottish Government’s proposals. Nor were the contents of the Article 50 notification shared with the Scottish Government prior to its publication. This left little space for Scotland to protect its interests in the withdrawal process, where it was the UK Government that did the negotiating, embracing a unitary and top-down approach, excluding devolved governments from the negotiation process.Footnote ¹⁸² However, the archetype of ‘unitary’ State has been undermined by two decades of devolution in the UK.Footnote ¹⁸³

1.12.3 The Miller Litigation and the Sewel Convention

In Miller, the UK Supreme Court determined that the UK Government may not trigger Article 50 by use of the prerogative alone. The devolution aspects of this case have been, however, somewhat under-analysed.

The Scottish Government intervened in Miller, arguing that any Parliamentary legislation authorizing the UK Government to trigger Article 50 would require the consent of the Scottish Parliament as it would necessitate amending the Devolution Statutes. So, the status of the Sewel convention was at issue. However, the Supreme Court in Miller held that, notwithstanding its incorporation in the Scotland Act 2016, the measure remains a convention, not a legally enforceable obligation, and in fact the European Union (Notification of Withdrawal) Act 2017 was adopted without any legislative consent motion(s) having been requested or adopted.

The Scottish Government also argued in Miller that triggering Article 50 by unilateral act of the Crown would be contrary to the Claim of Right 1689 and Act of Union 1706. The Claim of Right argument contended that government only has such powers as expressly granted to it by the people in representative assembly. The Scottish Government also argued that the UK’s withdrawal from the EU would result in modifications to Scots private law (e.g. employment and consumer rights derived directly from EU law) not for the evident utility of the Scottish people (and so contrary to Article XVIII Act of Union) – especially given that 62 per cent of the Scottish Referendum vote was for Remain. Both of these arguments failed, but nonetheless, drawing on these statutes illustrates that Scotland and England have different constitutional traditions, and historically different views of the Crown’s privileges. The Supreme Court’s judgement in Miller has been criticized for assuming ‘that the 19th century English constitutional tradition as formulated/invented by Dicey – is the fount and only origin of the contemporary United Kingdom constitution.’Footnote ¹⁸⁷

1.12.4 The EU Withdrawal Act 2018 and the EU Withdrawal Agreement Act 2020

As if to press home the impact of the Miller ruling, Westminster also adopted the 2018 EUWA without the consent of the Scottish Parliament. The EUWA provides the apparatus for the huge revision of the UK legal system necessary as a consequence of the UK’s exit from the EU. This is ‘a legal undertaking of a type and scale that is unique and unprecedented.’Footnote ¹⁸⁸ The EUWA provides for continuity by preserving EU law as it exists immediately before Brexit, converting it into domestic (or ‘retained EU’) law, and then, where necessary, granting UK Government ministers huge law-making powers to repeal or amend it. It also provided for repeal of the ECA 1972.

Importantly for this chapter, the EUWA set out important and controversial provisions – sections 10, 11 & 12, along with schedules 2 & 3 – regarding devolution. Most controversial is s12 EUWA, which, to summarize a convoluted provision, enables the UK Government unilaterally to limit devolved powers in areas of retained EU law. And so, the Scottish Parliament refused to grant its consent to the relevant sections of the EUWA, which was nonetheless adopted in Westminster.

A Withdrawal AgreementFootnote ¹⁸⁹ was agreed between the EU and the UK government on 17 October 2019 and entered into force on 1 February 2020, after the UK Parliament had adopted the EU WAA 2020 and the EU had approved it. From that date, the UK was no longer an EU member, although there was a transition period until 31 December 2020, during which most EU law continued to apply in the UK. The WAA was notably adopted without the consent of any of the devolved legislatures. According to Ian Blackford, MP, and SNP leader at Westminster: ‘We are faced with a situation which is completely unprecedented when the government in Edinburgh, Belfast and in Cardiff has not given consent to this act of parliament. That completely contravenes the devolution settlement.’Footnote ¹⁹⁰

1.13.1 A Second Scottish Independence Referendum?

At time of writing, much is uncertain. But Brexit has, to date, involved a forceful centralization. Given that England is so much larger that Scotland, Wales and Northern Ireland, and English Government is merged into UK Government, this seems to empower England over the devolved nations. In late 2019, the Scottish Government published Scotland’s Right to Choose: Putting Scotland’s Future in Scotland’s Hands, stating its commitment to ‘an agreed, legal process … which will be accepted as legitimate in Scotland, the UK as a whole, and by the international community.’ This document cited as grounds for an independence referendum: Scots’ sovereign right to determine their own constitutional future; a material change in circumstances since the 2014 referendum, (namely Brexit, despite the desire of majority of Scottish voters to remain, and effects of Brexit on Scotland); and the existence of a mandate for a referendum derived from electoral victories at the 2016 Holyrood election, and 2017 and 2019 Westminster elections. After the SNP won forty-eight of Scotland’s fifty-nine seats in the UK General Election in December 2019, Nicola Sturgeon claimed there was a ‘renewed, refreshed and strengthened mandate’ for another referendum, and requested a ‘section 30 order’ from the UK Government for the power to hold an independence referendum. This was, however, rejected in January 2020 by Prime Minister Boris Johnson.Footnote ¹⁹¹

Although the Covid pandemic meant that moves towards independence were on hold for a while, nonetheless, opinion polls in 2020 consistently showed support for Scottish independence at around or over 50 per cent, with one poll showing a record high of 58 per cent. The Scottish Parliament adopted referendum legislation in 2020,Footnote ¹⁹² setting out the general rules and applicable franchise for all referendums in Scotland. In January 2021, the SNP produced a ‘routemap’ to independence, followed by a draft independence referendum Bill in March 2021, which it committed to enact if an SNP Government were re-elected with a majority to do so. In the May 2021 Scottish Parliament elections, the SNP fell one seat short of an overall majority, although together with the Green party MSPs, an overall majority for independence exists in the Scottish Parliament. But the UK Government continued to state that it would refuse to grant a s30 order – a refusal that seems somewhat ironic, given that the UK Government has often cast the ‘will of the people’ as crucial (necessitating the honouring of the Brexit non-binding referendum). Nicola Sturgeon has also stressed the importance of popular consent. In an SNP conference speech, Sturgeon stated that Brexit had included

However, after deadlock and UK Government rejection of the s30 route, in June 2022, the Scottish Government launched new steps in the campaign for independence.Footnote ¹⁹⁴ It started by issuing a series of papers, under the umbrella of Building a New Scotland,Footnote ¹⁹⁵ intended to increase popular support for independence. The centrepiece, however, was an independence referendum Bill, issued on 28 June 2022, but not then introduced into the Scottish Parliament, because the Scottish Lord Advocate, Dorothy Bain, immediately referredFootnote ¹⁹⁶ the Bill to the UK Supreme Court under Schedule 6 Scotland Act 1998 with the question:

Although it is somewhat unusual to refer a Bill that is not yet law, the Supreme Court rejected the UK Government’s contention that the action was ‘premature’Footnote ¹⁹⁷ (because the Bill had not yet been passed by the Scottish Parliament) and the action was scheduled for hearing on 11 and 12 October 2022. The First Minister also announced that if the Bill were found within legislative competence, then the Scottish Government would immediately introduce the Bill so that the referendum could proceed on 19 October 2023.

1.14 Contrasting Views

This chapter has revealed different understandings of British Constitutional law to be at issue. One unitary view, that of the UK Government, argues that parliamentary sovereignty requires that final authority remains with Westminster, leaving Scottish claims a moral and political, but not legal force. A contrasting view interprets the Acts of Union as a pact between two States, dependent on consent. It identifies a conception of popular, rather than parliamentary, sovereignty that applies in Scotland. It might however be questioned whether the claim to popular sovereignty is actually an enforceable claim? If so, Scotland should be able to exercise that right and should not depend on the permission of the UK Parliament to do so. But it is harder to identify a legally recognized right of Scotland to self-determination in the UK Constitution, although there exists no UK prohibition on secession, nor unlike Article 2 Spanish Constitution, any stipulation of the unity of the State.

For all the talk in 2014, of the potential for the Scottish Parliament to become ‘the most powerful devolved parliament in the world’, the UK is not a federal State in the sense of having legally guaranteed powers granted to the devolved authorities. It also has no legally guaranteed shared powers, as is the case in many federal States (and given the disparity in size between England and the other devolved nations, conceiving how shared powers might function is problematic). This concentration of sovereignty in Westminster presents a problem when a devolved nation takes a different view on Brexit, as Scotland has done, and cannot then protect its interests. Brexit has brought these issues into sharp focus, without however suggesting any solution.

Indeed, Brexit has been allowed to compress parliamentary sovereignty into an executive sovereignty that, by imposing a uniform approach, threatens the UK Union. There is little evidence that Brexit will provide a ‘constitutional moment’ in which a common solution will be found to these constitutional conundrums. It seems unlikely that a federal UK or written Constitution will emerge, however much new constitutional arrangements are needed. Advocates of Scottish independence, or a united Ireland, have little enthusiasm for an arrangement that would entrench them in the UK, even if it provided authoritative procedures protecting different national communities within the State. And those satisfied with Brexit are unlikely to desire a written Constitution or federal option, given that a desire for strong parliamentary sovereignty motivated their Euroscepticism in the first place.

However, even if Scotland were to become independent, then what remained of the UK Union (rUK) would be an irregular assemblage of England, Wales and Northern Ireland (if Northern Ireland remained in the Union). What would be the basis of that Union? A study of Scotland has revealed that the somewhat adventitious approach to Union reaches its limits when it is revealed to be detrimental to the interest of one of the parties (usually the weaker one). Given the somewhat ad hoc way in which devolution has developed to date, there has been no attempt to address Britain’s constitutional status in a more principled way. Whether Scotland remains in the Union or not, there is an urgent need for a constitutional rethink and restructure.