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The British Union After Brexit: Issues of Sovereignty and Identity

The Continuation of Politics in the Courtroom: Scotland and Strategic Litigation

Poursuivre la politique dans la salle d’audience : stratégie judiciaire et Écosse
Juliette Ringeisen Biardeaud

Abstracts

In 2018 and 2019, two bombshell judgements were handed down by Scottish courts, in the Wightman reference and Cherry/Miller 2 case. Both have raised the question of the attitude of Scottish judges in the context of Brexit. Could this be a sign of a future change of attitude, in particular if an independence referendum should throw up new constitutional and legal issues in Scotland?

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Introduction

  • 1 1953 SC (HL) 396. In this case, nationalists John MacCormick and Ian Hamilton brought an action aga (...)
  • 2 Judicial restraint is defined by Britannica as a principle that “urges judges to refrain from decid (...)

1Any law student in the UK (certainly any in Scotland) can quote the famous lines from MacCormick v Lord Advocate (1953), the epitome of a meaningful obiter dictum, with far greater import than things said just in passing.1 However, just like the petitioners in the MacCormick case stressed that they were making a constitutional point but meant no disrespect to the Queen, Scottish judges have always adhered to an unobtrusive judicial restraint, keeping a neutral stance on politically loaded legal issues2.

2The notion of continuing politics in the courtroom with the strategic choice of Scotland as the fighting pit emerged with two recent cases: Wightman and others before the Court of Justice of the European Union (CJEU) in December 2018 and Cherry/Miller 2 before the Supreme Court of the United Kingdom (UKSC) in October 2019. Both cases bore ground-breaking implications and were first filed in Scotland. However, conversations with EU specialists Sir David Edward QC, former UK judge before the CJEU and Robert Lane, Senior Lecturer in EU Law at the University of Edinburgh, have always hinted at the fact that Scottish judges were anything but a rebellious or subversive crowd. Wightman, a preliminary question related to Brexit referred to the CJEU by the Scottish court of appeal despite the opposition of the British Government, and Cherry/Miller 2, the case in which the same Scottish court of appeal found that the suspension of Parliament brought about by PM Boris Johnson was illegal, raise a number of questions: in the context of Scottish legal nationalism, and the original lack of appetite of Scottish judges for preliminary references or constitutional boldness, what makes these two cases special? Could this continuation of politics in the courtroom pave the way for more decisions from Scottish judges in the event of a second independence referendum? And finally, does choosing Scotland to spearhead political litigation actually reveal a deeper governance problem in the UK?

Legal Volksgeist and Scottish Judges

  • 3 Lord Cooper of Culross, Selected Papers 1922-1954, Oliver et Boyd, Edinburgh, 1957, p. 199.
  • 4 Friedrich Carl von Savigny, Private International Law. A treatise on the conflict of laws, and the (...)

3Lord Cooper, Lord President of the Inner House of the Court of Session, believed “Law is the reflection of the spirit of a people, and so long as the Scots are conscious that they are a people, they must preserve their law”.3 This notion of a legal Volksgeist, i.e. preserving the spirit of a nation via its legal system, was developed by Friedrich Carl von Savigny, the 18th century German jurist and historian who posited that “Law grows with the life of the nation, and is inseparable from it”.4

4The separate identity of Scots law and the Scottish legal system, enshrined in Articles XVIII, XIX and XX of the 1707 Treaty of Union between the Kingdoms of Scotland and England and carefully preserved since, has never implied a particularly rebellious attitude from Scottish judges or lawyers in general. In fact, Scottish lawyers formed the Glasgow Law Amendment Society, which campaigned in the 1850s for the reform of Scots law as inadequate to emerging modern society. In particular, the members of this association proposed to reform completely the Sheriff Court system, and to bring the principles of Scots law in matters of trade and bankruptcy into line with those of English law.

  • 5 Moir George, The Appellate Jurisdiction of Scotch Appeals, Edinburgh, 1851, pp. 3-4.

5However, despite the smooth cohabitation of English and Scots law at the beginning of the Union, the influence of English law through the case law of the House of Lords worried some Scottish law Professors, such as George Moir. Professor Moir felt that the nature of Scots law was well suited to the "habits and character" of the Scots, with whom it had "grown over the centuries”. He was particularly concerned that its "integrity" could not be preserved if it were to be "weakened or superseded" by principles of English law.5

6In 1934, the Stair Society was formed, an association whose object was the preservation of Scots law. The theory of legal nationalism, coupled with the concept of mixed legal systems (i.e. the combination or confluence of civil and common law), gained momentum with the work of Frederick Parker Walton, T.B. Smith and Lord Cooper.

7T.B. Smith wrote that:

  • 6 Smith Thomas Broun, British Justice: The Scottish Contribution, Hamlyn lectures, 1961, Edinburgh, S (...)

In a certain sense the nation has survived through a legal system… and the essential tradition of Scot law has been cosmopolitan and comparative, and if that tradition fails, as Lord Cooper has discerned, the system will surely die.6

8It is worth stressing that the legal nationalism movement, dominated by the tutelary figures of Lord Cooper and T.B. Smith, was not a politically nationalist movement. Indeed, Lord Cooper was politically involved with the Unionists, demonstrating, at the time at least, a dissociation between legal and political nationalism.

  • 7 The (Appellate Committee of the) House of Lords was replaced by the Supreme Court when it was creat (...)

9As early as 1850, an essential element in the preservation of Scots law was, for George Moir, the composition of the court of last resort for Scottish cases, then (except for criminal cases) the House of Lords, now the Supreme Court,7 with UK-wide jurisdiction. There is indeed a constitutional convention (i.e. an unwritten rule to which practice gives a certain constitutional force) that the court of last resort must always include at least one Scottish judge, and usually two. However, there is no rule that a Scottish judge must actually sit in cases involving matters of Scots law, although in practice it is the case. Currently, and for the first time ever, there are two Scottish judges at the very top of the UK judicial hierarchy, with Lord Reed as President and Lord Hodge as Deputy President of the Supreme Court.

10It is fair to say that Scottish judges have always shown restraint and prudence when dealing with British constitutional arrangements and European matters. However, in light of certain recent cases, it seems that Scottish judges could be edging gingerly towards more audacity.

Scottish judges and preliminary references before the CJEU

  • 8 Case C-333/14 Scotch Whisky Assn v Lord Advocate and Advocate General, EU:C:2015:845. The reference (...)

11Scottish judges were never very keen on referring questions of interpretation of EU laws or EU treaties (known as preliminary references) to the CJEU. To illustrate this point, one needs only to look at the number of preliminary references made to the CJEU. Between 1973 and 2016, 12 preliminary references were made by Scottish courts. The number of references, as stressed by Dr Lane, is no match for over 500 references from Austria, which is roughly the same size as Scotland and joined in 1995 rather than 1973. About half of Scottish references are related to fishing issues, the rest are tax cases and some miscellaneous cases. In 2015, the Inner House of the Court of Session, namely the court of appeal for civil matters in Scotland, the Outer House of the Court of Session being the court of first instance, did submit a preliminary reference concerning the Minimum Pricing Unit Law passed by the Scottish Parliament to hinder the consumption of strong alcoholic beverages.8 It could be seen today as the first tremor of an evolution in Scottish courts as before this case, there had been so few references to the CJEU.

12Then, in 2018, came the Wightman case. At the very end of 2017, a group of seven Scottish politicians from across the political spectrum and from all three legislatures for Scotland (the Scottish Parliament, the UK Parliament and the European Parliament) commenced an action before the Scottish Court of Session, essentially seeking an answer to the following question, “Can a member State of the European Union unilaterally revoke their Article 50 TEU notification to leave the EU?”. The group was headed by Andy Wightman, a member of the Scottish Parliament (MSP), the other pursuers (the Scots term for claimant) Ross Greer MSP, Alyn Smith MEP, David Martin MEP, Catherine Stihler MEP, and Joanna Cherry QC MP. English MPs Tom Brake and Chris Leslie joined the case later, in May 2018. The case was crowdfunded through Jolyon Maugham QC’s Good Law Project. Jolyon Maugham QC was also a pursuer. Lead counsel for the pursuers was Aidan O’Neill QC.

  • 9 R (Miller) v Secretary of State for Exiting the European Union, [2016] EWHC 2768 (Admin).
  • 10 R (Miller) v Secretary of State for Exiting the European Union, [2017] UKSC 5, [2018] AC 61.
  • 11 The European Union (Notification of Withdrawal) Act 2017.

13The broader context of the case must be recalled. Following the 2016 EU referendum, Prime Minister Theresa May’s Government determined to notify the European Council of the UK’s intention to depart the EU, as per Article 50 TEU. She opted to act under the royal prerogative instead of consulting the British Parliament, conduct of foreign relations normally falling under the prerogative power. This decision was challenged before the High Court in what came to be known as Miller 1. The High Court rendered a decision in November 2016 in which it recognised that royal prerogative could be used with respect to rights and obligations created as a matter of international law.9 However, according to the judges, as soon as individual rights, protected by domestic law, were to be affected, Parliament had to intervene. An appeal was taken to the Supreme Court in early December. Permission was granted to the Lord Advocate of Scotland and the Counsel General for Wales (the General Attorney for Ireland was already included in the proceedings), to intervene, by way of applications and oral submissions, in the course of the hearing. The Court delivered its judgment in January 2017, upholding the High Court by an 8-3 majority.10 Although the decision contained disappointing findings on the issue of Legislative Consent Motion (which will be addressed below), the Court considered that Article 50 could not be triggered by way of the royal prerogative and that the Government could proceed only if authorised by an Act of Parliament. Such authorisation was passed in Parliament in February 2017,11 the actual notice of withdrawal then delivered (by hand) to Donald Tusk on 29th March 2017, so firing the gun on the two-year negotiation period prescribed by that Article.

14Parliament having approved the Article 50 withdrawal notice, the question soon arose of whether the events set in motion were immutable, or whether the UK (Government or Parliament) could, so to speak, put the toothpaste back in the tube and recall the notice of withdrawal should it choose to do so.

  • 12 Technically the remedy sought was that the Outer House should lodge a preliminary reference to the (...)
  • 13 [2018] CSOH 8.

15In February 2018, Wightman and the other pursuers applied for judicial review before the Scottish court of first instance, the Outer House of the Court of Session, seeking effectively a declarator that the Article 50 notification could be unilaterally withdrawn.12 The application was turned down by Lord Doherty on the basis that the question of the revocability or otherwise of an Article 50 TEU notification was a purely hypothetical and academic one, since neither the UK Parliament nor Her Majesty's Government had indicated any intention to withdraw the notification.13

  • 14 Wightman and ors v Secretary of State for Exiting the EU, [2018] CSIH 62, 2019 SC (UKSC) 111.
  • 15 See Reid Alan, Scotching Brexit? Background to the Wightman case about reversing the Article 50 not (...)

16Following a number of procedural hurdles, the pursuers appealed to the Inner House of the Court of Session, i.e. the Scottish court of appeal, where they succeeded. The ruling was delivered in September 2018,14 finding for them on a number of grounds. The Lord President, Lord Carloway considered that the issue was justiciable precisely because there was such controversy as to the appropriate way forward within the parliamentary process. The court also found the case no longer hypothetical as in between the date of the first instance judgment and the appeal, the European Union (Withdrawal) Act 2018 had become law and certain provisions of that Act had come into force.15 Lord Carloway also said the issue should be referred to the European Court as a matter of urgency. A one-day hearing before the CJEU was scheduled for 27th November 2018.

17According to Dr Lane:

Wightman was the “Scottish courts’ day in the (Luxembourg) sun”. This case attracted the expedited procedure (rarely used) and was heard by the full court, which happens only with cases ‘of exceptional importance’, it being only the third time it has happened since the big enlargement in 2004.

  • 16 Case C-621/18 Wightman and ors v Secretary of State for Exiting the EU, EU:C:2018:999. See also Myr (...)

18In the end, and without getting into details irrelevant to this paper, the CJEU delivered a powerful ruling stating, against the submissions of the Commission, the Council and the member states, that an Article 50 notification could be unilaterally withdrawn after its formal notification to the European Council.16

19With formal secession on 31st January 2020 the possibility of the UK withdrawing the Article 50 notification became a moot point. What was not a moot point though, is whether the new found grit of the Court of Session could pave the way for more judicial surprises.

Scottish judges and the prorogation of Parliament

20Scottish judges sitting in the Inner House of the Court of Session made the headlines again in September 2019 with the Cherry judgment.

21The context of the case is the following: on 28 August 2019, the British Parliament was prorogued (i.e. suspended) by the Queen by Order-in-Council made at the Court at Balmoral, upon the advice of Prime Minister Boris Johnson. Parliament was to be prorogued for five weeks and reconvene just 17 days before the United Kingdom's then-scheduled departure from the European Union on 31 October 2019. The move was quickly denounced by many politicians and political commentators as an attempt by the Prime Minister to elude parliamentary scrutiny of the Government's plans in the final weeks leading to Britain’s withdrawal from the EU. For his part Mr Johnson claimed prorogation to be a regular part of the political process.

  • 17 R (Miller) v The Prime Minister, [2019] EWHC 2381 (QB).
  • 18 Petition of Cherry and ors for Judicial Review, [2019] CSOH 70, 2019 SLT 1071.
  • 19 Cherry and ors v The Advocate General, [2019] CSIH 49, 2019 SLT 1097. See Elliott Mark, A new appro (...)

22In early September 2019, both the High Court in England (Miller 2)17 and the Outer House of the Court of Session in Scotland (Cherry)18 considered that the decision to prorogue fell outside their jurisdiction because it was a political issue. A reclaiming motion was taken to the Inner House, where it was held that the advice and prorogation were justiciable and unlawful, the ruling coming close to accusing the Prime Minister of dealing in bad faith (which was not, as such, rebutted by the UKSC). The Inner House concluded that the advice and the prorogation were unlawful on the grounds that they had been used improperly so as to, to quote the court, “stymie Parliament from discharging its constitutional functions”.19

  • 20 R (Miller) v The Prime Minister and Cherry and ors v Advocate General for Scotland, [2019] UKSC 41, (...)

23Both decisions, that of the High Court and that of the Inner House, were appealed/reclaimed to the UKSC. In September 2019, in a strikingly unanimous ruling (of 11 judges), it considered that the prorogation was both justiciable and unlawful. Consequently, the Order-in-Council making the prorogation was set aside, the prorogation itself deemed null and of no effect.20

24Beyond the constitutional implications, it was again the Scottish ruling in the Inner House, particularly when compared to its anaemic equivalent delivered by the English High Court, that paved the way for the bombshell decision produced by the UKSC.

  • 21 Until the Brexit referendum, LCMs used to be respected and opposition from the Scottish Parliament (...)

25The common denominator of the above cases, Wightman and Cherry/Miller 2, besides the involvement of the Good Law Project and Jolyon Maugham QC, is the lawyer pleading on behalf of the pursuers, Aidan O’Neill, English barrister and Scots advocate and a QC in both jurisdictions (a rare “double silk”). When asked about the choice to bring these cases before Scottish courts, he confirmed that Scotland had been chosen on purpose. In both instances, The Good Law Project, which backed the legal challenges, felt that Scottish judges were a better target because of a perceived different and more flexible approach to judicial review. Something else mentioned during the interviews with law Professors, advocates and former judges was the fact that Scottish judges were not indifferent to the way Scotland was ill-treated by the British Government in the context of Brexit negotiations. In particular, the lack of consultation of the Scottish Government through the opaque yet largely efficient workings of Joint Ministerial Committees (JMCs) was mentioned. Another perceived source of discontent was the non-use of Legislative Consent Motions (LCMs or Sewel Conventions, after Lord Sewel who devised the mechanism) to avoid forced passage of laws affecting devolved matters despite the opposition of the Scottish Parliament.21 The constitutional status of LMCs which was clarified (and found weak) by the UKSC in Miller 1, has been repeatedly cited as a source of major disappointment by Scottish lawyers interviewed for this paper.

26Now that the withdrawal of the UK from the EU is done, the next controversial judicial issue is Scotland re-joining the EU as an independent member state. And in so doing, should the proponent of a second independence referendum try their luck with Scottish judges?

Continuation of post Brexit politics in the future: inside the courtroom, in the ballot box or both?

  • 22 Keatings v The Advocate General and the Lord Advocate, [2021] CSOH 16.
  • 23 Keatings v The Advocate General and the Lord Advocate, [2021] CSIH 25.
  • 24 Crichton Styles Scott, “Martin Keatings’ IndyRef2 legal case was a sideshow – the real battle is on (...)

27Bolstered by the seemingly sympathetic or at least open-minded attitude of the Inner House of the Court of Session, private initiatives have flourished to push forward the independence agenda. The most remarkable initiative is the People’s initiative, headed by independence activist Martin Keatings. Mr Keatings, as a member of the Forward As One group, relied on a crowd fund of over £200,000 to cover legal costs and, and, in December 2019, a legal opinion of Mr O'Neill. Keatings raised a petition before the Outer House of the Court of Session requesting that the Court declare, in so many words, that it would be lawful for the Scottish Parliament to call for an independence referendum without the UK Government’s consent. His claim was denied successively by the Outer House22 and the Inner House.23 The failed attempt at obtaining a favourable judgment notwithstanding, another, more achievable, goal of the legal action was achieved: the crowd funded initiative was widely reported and publicised.24

28At the time of the 2014 referendum, the Scottish Government is said to have acquiesced in the view that the issue of independence was settled for a generation, unless there were to be a material change in circumstances. It is worth bearing in mind that the UK Government stressed heavily in its representations during the referendum the (highly contestable) proposition that Scottish independence meant Scottish secession from the EU. In its manifesto for the 2016 Scottish Parliament elections, which took place shortly before the EU referendum, the SNP had argued that “Scotland being taken out of the EU against our will” would be a material change and justify a second vote on independence.25

29Scottish independence was the dominant issue in the May 2021 Scottish Parliament election.26 Both the Scottish National Party (SNP) and the Scottish Conservatives placed the issue at the centre of their campaigns. This resulted in significant tactical voting, as stressed by Michael Keating, Professor of politics at the University of Aberdeen and Director of ESRC Centre on Constitutional Change in an opinion piece published that month in The Guardian.27 The SNP and Scottish Greens between them won 72 of the 129 seats at Holyrood. The Scottish Government therefore argues that this pro-independence majority represents a valid mandate for a second independence referendum. In her victory speech, First Minister Nicola Sturgeon said that she would press ahead with preparations for a second vote, once the Covid crisis was over, claiming that it was “the will of the country”.28

30In addition to the second referendum being at the core of the election to the Scottish Parliament, the SNP's 2019 (UK) General Election manifesto already stated that the party intended to hold a second referendum in 2020. Thus, after winning 48 of Scotland’s 59 Westminster’s seats, the First Minister formally requested the power to hold an independence referendum in December 2019, but Prime Minister Johnson refused on the grounds that key pro-independence figures had said that the 2014 referendum was a “once in a generation opportunity”.29

31The governmental message is currently somewhat blurred because Mr Johnson visited Scotland in early August 2021 without taking time to meet Ms Sturgeon, while cabinet office minister Michael Gove had, a few days before, given an interview to the Sunday Mail (a Scottish newspaper) in which he argued that:

  • 30 Wright Jack, “Number 10 'will not stand in the way' of a second Scottish independence referendum if (...)

The principle that the people of Scotland, in the right circumstances, can ask that question again is there. […] If it is the case that there is clearly a settled will in favour of a referendum, then one will occur.30

  • 31 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosov (...)
  • 32 Edward David, “Scotland’s Position in the European Union”, Scottish Parliamentary Review, volume 1. (...)

32Stepping away from political disputes, there are in fact two ways for a country to secede from a parent state and become independent: with the consent or at least acquiescence of the parent state or via a unilateral declaration of independence (UDI). The International Court of Justice recognised in its 2010 Advisory Opinion on Kosovo that UDI is not, per se, contrary to international law.31 However, as seen in the 2014 discussions on whether an independent Scotland would be seamlessly (as put by Alex Salmond at the time) re-admitted to the EU, the endeavour of becoming independent and being internationally recognised (and respected) as such is as much a political question as it is a legal one.32

33In practice, legal procedures must be observed if the newly independent state expects others to treat it as such. Amplified by the negative repercussions of the non-authorised referendum organised in Catalonia, both in terms of representation at home (only pro-independence voters cast ballots so the results were not representative) and on the international scene, a unilateral declaration of independence is not on the table. Therefore, there is no real controversy that a second independence referendum in Scotland must be organised on a proper legal footing if it is to have any legitimacy. In order to do so, the Scottish Government relies on the notion of a popular mandate to bring forward a second independence referendum. Such a mandate would however imply the passage of a law, via primary legislation or a transfer of power within the machinery of Section 30 of the Scotland Act, either voted for in Holyrood or in Westminster.

A popular mandate

34The Scottish Government makes the case for a popular mandate further to the ballots cast in the Scottish Parliament election. In so doing, it relies on the distinctly Scottish approach towards popular sovereignty. Such sovereignty is defined by Scottish sociologist David McCrone thus:

  • 33 McCrone David, “A Parliament for a People: Holyrood in an Understated Nation”, Scottish Affairs, 50 (...)

The Scottish doctrine of ‘popular sovereignty’ juxtaposed against ‘crown sovereignty’ as practised at Westminster may be more of an aspiration than a legal principle, but nonetheless, it coincides with the view that politics, and the Parliament, isn’t everything. The people are paramount.33

35There is a long-lasting Scottish tradition of paying greater regard to the “will of the people” than to Parliamentary sovereignty.

36A.V. Dicey, the leading (English) scholar on questions of British parliamentary sovereignty, did consider the situation in Scotland to be different and wrote:

  • 34 Dicey Albert Venn, Thoughts on the Union between England & Scotland, London, Macmillan, 1920, p. 66

The Parliament of Scotland never had, or felt that it had, the omnipotence of the English Parliament. Indeed the Scottish Parliament almost at all times acknowledged some power which restrained or competed with parliamentary authority.34

  • 35 1953 SC (HL) 396 at 411.

37This perception was confirmed by Lord Cooper in MacCormick v Lord Advocate when he stated that “[t]he principle of unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law”.35

38Scots also pride themselves on having been at the avant-garde of popular restraints imposed upon their king, as the 1320 Declaration of Arbroath appeared to condition the allegiance to King Robert to the fact that he would not subject the kingdom (of Scotland) to the English:

  • 36 For more details on the notion of participative democracy in Scotland, see Thiec Annie, Le Parlemen (...)

To him [King Robert], as to the man by whom salvation has been wrought unto our people, we are bound by law and by his merits that our freedom may still be maintained, and by him come what we may need to stand. Yet if he should give up what he has begun, and agree to make our kingdom subject to the King of England or the English, we should exert ourselves at once to drive him out as our enemy and a subverter of his own rights and ours, and make some other man who was able to defend us our King. 36

  • 37 Antoine Aurélien, De quelques interrogations constitutionnelles soulevées par l’éventualité d’un ré (...)

39The 1989 Claim of Right was symbolically adopted by the Scottish Labour and Liberal Democrat parties in favour of the creation of a constituent assembly after popular approval. It made direct reference to the sovereignty of the Scottish people. Ten years later, the devolution process - based upon referendum - was largely dependent on the 1988-89 initiative.37

  • 38 Hayward Katy and Phinnemore David, “Breached or protected? The ‘principle’ of consent in Northern I (...)

40Despite the specificities of Scottish popular sovereignty and the theory of mandate, there is no viable future for an independence referendum organised without the backing of either the Scottish or British Parliament. The absence of any right to a referendum in the Scotland Act 1998 or a popular mandate granted through elections to the Scottish Parliament contrast conspicuously with the “principle of consent” explicitly recognised by the Good Friday Agreement and put on statutory footing in Section 1 of the Northern Ireland Act 1998.38 And there is some irony in a Prime Minister having championed for four years the right of the British people to withdraw from the EU as an expression of their democratic right, but would now deny that right to the people of Scotland, mutatis mutandis.

Passing a law in the Scottish Parliament to organise an independence referendum

  • 39 Scottish Government, Scotland’s Right to Choose: Putting Scotland’s Future in Scotland’s Hands, 19 (...)

41On 19th December 2019, a week after the general election returned 48 SNP MPs out of 59 seats to Westminster, the Scottish Government published their guide to a new independence referendum under the title: Scotland’s Right to Choose: Putting Scotland’s Future in Scotland’s Hands.39

  • 40 McCorkindale Chris and McHarg Aileen, Constitutional Pathways to a Second Scottish Independence Ref (...)

42As explained by Chris McCorkindale and Aileen McHarg, the document makes the case for the second referendum to be held on a consensual basis and with the cooperation of the UK Government so as to put its legality beyond doubt.40 The target audience for this publication, they observe, is two-fold, that of the Government’s own supporters and more importantly, that of the EU institutions.

  • 41 Referendums (Scotland) Act 2020.

43In Annex B of the document, the Government proposes draft amendments to be made to the Scotland Act, either via a Section 30 Order (to transfer powers to the Scottish Parliament) or via primary legislation passed in Westminster. On the day of publication of Scotland’s Right to Choose, a Referendums (Scotland) Bill made it through the Scottish Parliament. It became law on 29th January 2020.41 Said Act would give the Scottish Government power to decide that a referendum can be held in Scotland and to set the rules for it. To some extent, it mirrors the Political Parties, Elections and Referendums Act 2000 which applies only to referendums authorised by Westminster.

  • 42 Scotland Act 1998, Sched. 5, s. 1(b).

44However, these proposed acts and guides ignore the one central hurdle for a unilateral decision of the Scottish Parliament to hold a referendum: namely that such legislation risks falling outwith its competences. Indeed, under Section 29 of the Scotland Act, a (purported) Act of the Scottish Parliament is outside its competence if it “relates to reserved matters”. What constitutes a reserved matter is determined, as per Section 29(3) as “having regard … to its effect in all the circumstances”, and “the Union of the Kingdoms of Scotland and England” is expressly recognised, as part of the constitution, to be a reserved matter.42 Certainly, a constitutive referendum that purported to provide for the ending of the Union “relates” to the Union and would therefore be outside the competence of the Scottish Parliament.

45The issue of competence is not fully and conclusively settled from a theoretical legal perspective. However, if the Scottish Parliament were to pass a law organising a second independence referendum absent negotiations with the British Government, the following consequences would have to be expected in practice:

  • The proposed bill would have to be backed by legal advice from the Lord Advocate and such legality would have to be supported by the new Presiding Officer, Alison Johnstone, from the Scottish Green party (who, like the Speaker of the House of Commons becomes non-partisan upon assuming the post).

  • It could then be challenged in court both during and after its passage; by UK law officers – primarily the Advocate General –by a private citizen, or by the UK Government itself.

    • 43 On 17 April 2018, the UK Government's Law Officers, the Attorney General and the Advocate General, (...)

    Westminster could pass retaliatory legislation to seal the fate of referendums in Scotland, clearly stating that such legislation is beyond Holyrood’s jurisdiction (as they did with the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill).43

46In March 2021, the Scottish Government introduced a draft Independence Referendum Bill, which if passed, would mandate a second vote on independence to be held.44 The SNP also published a Road to a Referendum document setting out its planned next steps.45

47As there is a pro-independence majority in Holyrood, the Scottish Government plans to request a new Section 30 Order – with the aim of transferring the power to hold a second independence referendum to the Scottish Parliament – from the UK Government. Such an Order or equivalent primary legislation passed in Westminster would ensure that the Scottish Parliament can pass its referendum bill without fear of the above listed legal challenges and legislative hurdles.

48Would the route be at all different if the Scottish Government, after being denied a proper Section 30 Order transfer of power, decided to opt for a mere non-binding consultation on independence?

An advisory referendum without legislative backing

49With the exception of the 1979 Scottish and Welsh devolution referendums and the Alternative Vote referendum organised by deputy PM Nick Clegg in 2011, each of which were rejected, all referendums in the UK have been advisory only. Theoretically, their results could have been ignored and cast aside.

  • 46 Martin v HM Advocate, [2010] UKSC 10, 2010 SC (UKSC) 40.
  • 47 Imperial Tobacco Ltd v The Lord Advocate, [2012] UKSC 61, 2013 SC (UKSC) 153.
  • 48 See The UK Withdrawal from The European Union (Legal Continuity) (Scotland) Bill – A Reference by t (...)
  • 49 Tierney Stephen, The Scottish Parliamentary Elections and the “Second Referendum” Debate, 10 May 20 (...)

50Some pro-independence supporters raise the argument that an advisory or consultative referendum would not, strictly speaking, “relate” to the Union given its limited purported effect. A “competence test” has already been used by the Supreme Court in several cases such as Martin,46 Imperial Tobacco47 and the Continuity Bill Reference.48 In the latter case, the UKSC ruled that a provision is considered to be outside competence if it has more than a “loose or consequential connection” to a reserved matter. In the case of a consultative referendum, it seems probable that such a loose or consequential connection to the Union of the Kingdoms of Scotland and England would be found. Stephen Tierney, Professor of Constitutional Theory at the University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law, insists that, after the 2014 referendum, for which it was agreed that an Order in Council was required to transfer temporary power to hold the referendum under Section 30 of the 1998 Scotland Act, the argument supporting an advisory referendum cannot stand.49

  • 50 Keatings, [2021] CSIH 25, at para 55. For a step-by-step description of the procedure, https://www. (...)
  • 51 at para 66.

51In the recent Keatings judgments, the Inner House of the Court of Session may be read as confirming the point. Upholding the opinion of Lady Carmichael in first instance, the Inner House, in appeal, refused to declare that the Scottish Parliament has the power to legislate for the holding of a referendum on independence, stating that the matter was “premature, hypothetical and academic”.50 Lord Carloway, the Lord President, added obiter that while the issue of substance was perhaps an issue for another day, “it may not be too difficult to arrive at a conclusion”.51 This seems to suggest that the Court of Session would be very sceptical of the legality of such a bill.

  • 52 Minder Raphael and Barry Ellen, “Catalonia’s Independence Vote Descends into Chaos and Clashes”, Th (...)

52Finally, and crucially, in order to be properly organised, even if it were advertised as a mere consultation, the referendum would require serious legal underpinning to ensure an orderly organisation amongst the 32 local authorities which would be organising the vote. The Scottish Government cannot risk the potential mayhem similar to that caused by the unauthorised referendum on independence held in Catalonia in October 2017.52

Passing a law in the British Parliament to organise an independence referendum

53One last card could be played by the Scottish Government if all endeavours to have a Section 30 Order or primary legislation to organise a referendum fail; that of a Private Member’s Bill in Westminster. All it would require is to stick to the format set out in Annex B of the Scotland’s Right to Choose document.

  • 53 Wintour Patrick and Davies Caroline, “EU referendum bill to be put forward by Tory MP”, The Guardia (...)

54Although such a proposed Bill would most probably fail, it would allow the proponents of independence to demonstrate to their troops a will to take action, to stress the obstruction by MPs and identify the sources of obstruction. It would put the issue at the forefront of parliamentary debate and allow the third largest party in Westminster to gain an audience and flex its muscles. Such Private Member’s Bills have been successfully used in the past, notably in relation to the Brexit referendum. They did not make it through Parliament but raised awareness and brought pressure to bear upon the British Government.53

55Finally, according to the members of the Scottish legal community interviewed for this paper, the current central issue is not so much the hypothetical change of attitude of Scottish judges but rather a simmering crisis in intergovernmental relations in the UK.

Concluding remarks

56To answer part of the question asked in the introduction, there is no evidence of a significant change in attitude in Scottish judges, nor is there in Supreme Court justices. The one salient point could be that the current President (Lord Reed) and deputy President (Lord Hodge) of the UKSC are both Scots, which is unprecedented. However, Lord Reed was the main dissenter in Miller 1 and does not seem particularly keen on creating a trend of legal activism.

57Regarding Scottish Judges, as pointed out by Aidan O’Neil QC who acted on behalf of inter alia Joanna Cherry QC MP and Jolyon Maugham QC in the case:

  • 54 Vince and Others v Prime Minister of The United Kingdom of Great Britain and Northern Ireland, No 5 (...)

Vince & ors v Advocate General might be seen as the highpoint of the activism in that they [Scottish Judges] were willing to contemplate the possibility of ordering the Prime Minister to seek an extension of the UK’s membership of the EU – or if he refused to carry out this statutory duty as ordered by the court, for the court to substitute itself or authorise some other representative of the UK to seek the required extension.54

58Professor Edward believes that the reasons why the Scottish courts have departed from the English courts are twofold: there is a different approach to law in general, but there is also the feeling that Westminster is behaving in a cavalier way and that such behaviour ought to be controlled. According to him: “There can be judgments that happen to have political consequences but were not political decisions in the first place”.

  • 55 Edward David, “Saving the Union….?”, ILCR lecture, Saint Andrews, 7 February 2020.

59In relation to the UKSC, Professor Edward considers that the Supreme Court may not be in the best position to act as a referee in disputes between Westminster and Holyrood and that the jurisdiction of the Judicial Committee of the Privy Council, which may include a larger panel of members, in addition to judges and lawyers to compose a Constitutional Committee, would probably be more palatable for both unionists and independentists.55

60Mostly, the law Professors, judges and barristers/advocates interviewed for this paper consider that part of the independence crisis and the lasting support for the SNP, a party which has now been in power for over 14 years (since the 2007 election as a minority government, with a majority government after the 2011 election and again a minority government since the 2016 election), is due to governance issues. In particular, the issue of Legislative Consent Motions (the Sewel Motions/Conventions) and Joint Ministerial Committees were repeatedly mentioned.

61Professor Edward believes that the UKSC missed an opportunity to declare Sewel motions legally binding. The Smith Commission recommended that the Sewel Convention be placed on a statutory footing and Section 7 and 8 of the Scotland Act now read:

This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland. But it is recognised that the Parliament of the United Kingdom will not normally legislate with regards to devolved matters without the consent of the Scottish Parliament.

62The interpretation of this provision was brought under the scrutiny of the Supreme Court in Miller 1. As asserted by Professor Edward: “In a few brief paragraphs, the Court held that, despite statutory enactment, the Convention remains no more than a Convention”.

63In Miller 1, the UKSC ruled that:

The Lord Advocate and the Counsel General for Wales were correct to acknowledge that the Scottish Parliament and the Welsh Assembly did not have a legal veto on the United Kingdom’s withdrawal from the European Union. Nor in our view has the Northern Ireland Assembly.

[…]

  • 56 UKSC 24th January 2017, R (on the application of Miller and another) (Respondents) v Secretary of S (...)

In reaching this conclusion we do not underestimate the importance of constitutional conventions, some of which play a fundamental role in the operation of our constitution. The Sewel Convention has an important role in facilitating harmonious relationships between the UK Parliament and the devolved legislatures. But the policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary.56

64According to Cormac MacAmhlaigh, Senior Lecturer in Public Law at the University of Edinburgh, the issue of LCM is a repercussion of malfunctioning JMCs. For him, JMCs are the political, opaque way of handling bureaucratic issues and avoiding major fallouts. They are fori to pre-empt potential problems. LCMs stand on a constitutional level while JMC stand on a political level. Dr MacAmhlaigh is also critical of the Supreme Court’s “peremptory dismissal of the force of conventions in Miller 1”.

  • 57 Sheldon Jack, Rycroft Philip, Kenny Michael, 12th April 2021, Union at the Crossroads: Can the Brit (...)
  • 58 Martin Ciara, Resist, reform or re-run: short- and long-term reflections on Scotland and independen (...)
  • 59 House of Lords Constitution Committee on the Future Governance of the UK, https://committees.parlia (...)
  • 60 Select Committee on the Constitution, The Union and devolution, 10th Report of Session 2015-16, 25t (...)
  • 61 Constitution Committee, Inter-governmental relations in the United Kingdom, Eleventh Report, 18th M (...)

65All in all, the central issue seems to be that of a governance crisis within the UK institutions. There are many committees and reports on the issue, some specifically aimed at Scotland, others addressing the issue on a wider UK scale. In Spring 2021 the Constitution Society produced a document entitled Union at the Crossroads: Can the British state handle the challenges of devolution,57 followed a day later by the University of Oxford and Blavatnik School of Government report entitled Resist, Reform or Re-run Short - and - long term reflections on Scotland and independence referendums.58 In addition, there is an ongoing inquiry by the House of Lords Constitution Committee on the Future Governance of the UK59 following upon earlier reports by that Committee on the Union and devolution60 and on Intergovernmental Relations.61

  • 62 "Andrew Marr’s Interview of José Manuel Barroso: Full Transcript", BBC, 16 February 2014 <http://ne (...)

66No matter how unstable the political landscape, the legal issues underpinning Scottish independence may have to be resolved before long if the Scottish Government decides to press harder for a referendum. More than ever, time is of the essence: the longer Scotland remains outside the EU, the farther it strays from European standards in terms of EU compatible legislation. The argument of Spain vetoing Scottish accession or of Scotland joining the queue behind Kosovo62 was always preposterous (unless Scotland chooses the unilateral declaration or unauthorised referendum option) but the compatibility of Scottish laws and standards is not. Every day that passes by makes a seamless return of Scotland into the European Union more complex.

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Bibliography

Barthélémy, Claire, « Les caractéristiques juridiques et institutionnelles de la dévolution en Écosse et au pays de Galles », Revue E-Crini, 2008

Bogdanor, Vernon (ed.), The British Constitution in the Twentieth Century, British Academy Centenary Monographs, Oxford, Oxford University Press, 2003.

Bogdanor, Vernon, Devolution in the United Kingdom, Oxford, Oxford University Press, 2001.

Constitution Committee, Inter-governmental relations in the United Kingdom, Eleventh Report, 18th March 2015.

Dicey, Albert Venn, Thoughts on the Union between England & Scotland, London, Macmillan, 1920, p. 66.

Edward, David A. O., Lane Robert C., Edward and Lane on European Union Law, Edward Elgar, London 2013.

Himsworth, Chris, O'Neill, Christine, Scotland's Constitution: Law and Practice, Fourth edition, Bloomsbury Professional, London, 2021.

House of Lords Constitution Committee on the Future Governance of the UK, https://committees.parliament.uk/work/1127/future-governance-of-the-uk/.

Martin, Ciara, Resist, reform or re-run: short- and long-term reflections on Scotland and independence referendums Research and practitioners' insights, 13 April 2021, https://www.bsg.ox.ac.uk/research/publications/resist-reform-or-re-run-short-and-long-term-reflections-scotlandand.

McCrone, David, “A Parliament for a People: Holyrood in an Understated Nation”, Scottish Affairs, 50, (2005).

Select Committee on the Constitution, The Union and devolution, 10th Report of Session 2015-16, 25th May 2016 - HL Paper 149.

Sheldon, Jack, Rycroft, Philip, Kenny, Michael, 12th April 2021, Union at the Crossroads: Can the British state handle the challenges of devolution?, 12 April 2021, The Constitution Society.

Smith, Thomas Broun, British Justice: The Scottish Contribution, Hamlyn lectures, 1961, Edinburgh, Stevens, 1961, p. 56.

Thiec, Annie, “Le Parlement écossais et la démocratie participative”, E-rea. Revue électronique d’études sur le monde anglophone, 2009.

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Notes

1 1953 SC (HL) 396. In this case, nationalists John MacCormick and Ian Hamilton brought an action against the Crown in Scotland challenging Queen Elizabeth using the title ‘Queen Elizabeth II’ within Scotland, as technically Scotland had never had a monarch entitled Queen Elizabeth I. The claimants posited it was a breach of administrative and constitutional law, as per the Act of Union 1707.

2 Judicial restraint is defined by Britannica as a principle that “urges judges to refrain from deciding legal issues, and especially constitutional ones, unless the decision is necessary to the resolution of a concrete dispute between adverse parties.” https://www.britannica.com/topic/judicial-restraint

3 Lord Cooper of Culross, Selected Papers 1922-1954, Oliver et Boyd, Edinburgh, 1957, p. 199.

4 Friedrich Carl von Savigny, Private International Law. A treatise on the conflict of laws, and the limits of their operation in respect of place and time (trans. Guthrie William), Edinburgh, 1869 p. 73.

5 Moir George, The Appellate Jurisdiction of Scotch Appeals, Edinburgh, 1851, pp. 3-4.

6 Smith Thomas Broun, British Justice: The Scottish Contribution, Hamlyn lectures, 1961, Edinburgh, Stevens, 1961, p. 56 (emphasis in original).

7 The (Appellate Committee of the) House of Lords was replaced by the Supreme Court when it was created in 2005. Criminal cases have always been the exclusive preserve of the courts within Scotland, the court of last instance being the High Court of Justiciary.

8 Case C-333/14 Scotch Whisky Assn v Lord Advocate and Advocate General, EU:C:2015:845. The reference was on whether the measures constituted a quantitative restriction or a measure having equivalent effect contrary to Article 34 TFEU and, if so, whether such restrictions to the free movement of goods could be justified as per Article 36 TFEU on grounds of public health.

9 R (Miller) v Secretary of State for Exiting the European Union, [2016] EWHC 2768 (Admin).

10 R (Miller) v Secretary of State for Exiting the European Union, [2017] UKSC 5, [2018] AC 61.

11 The European Union (Notification of Withdrawal) Act 2017.

12 Technically the remedy sought was that the Outer House should lodge a preliminary reference to the CJEU under Article 267; alternatively, that the Government had expressed no view as to the legality of revocation, and its refusal to do so was unlawful.

13 [2018] CSOH 8.

14 Wightman and ors v Secretary of State for Exiting the EU, [2018] CSIH 62, 2019 SC (UKSC) 111.

15 See Reid Alan, Scotching Brexit? Background to the Wightman case about reversing the Article 50 notification unilaterally, 16 November 2018, http://eulawanalysis.blogspot.com/2018/11/scotching-brexit-background-to-wightman.html [consulted 2 August 2021].

16 Case C-621/18 Wightman and ors v Secretary of State for Exiting the EU, EU:C:2018:999. See also Myriam Benlolo-Carabot, L’arrêt Wightman de la Cour de Justice de l’UE, au nom de « l’union sans cesse plus étroite », 31 January 2019, in jus politicum, https://blog.juspoliticum.com/2019/01/31/larret-wightman-de-la-cour-de-justice-de-lue-au-nom-de-lunion-sans-cesse-plus-etroite-par-myriam-benlolo-carabot/ [consulted 1 August 2021].

17 R (Miller) v The Prime Minister, [2019] EWHC 2381 (QB).

18 Petition of Cherry and ors for Judicial Review, [2019] CSOH 70, 2019 SLT 1071.

19 Cherry and ors v The Advocate General, [2019] CSIH 49, 2019 SLT 1097. See Elliott Mark, A new approach to constitutional adjudication? Miller II in the Supreme Court, 24 September 2019; https://publiclawforeveryone.com/2019/09/24/the-supreme-courts-judgment-in-cherry-miller-no-2-a-new-approach-to-constitutional-adjudication/ [consulted 28 July 2021].

20 R (Miller) v The Prime Minister and Cherry and ors v Advocate General for Scotland, [2019] UKSC 41, 2020 SC (UKSC) 1.

21 Until the Brexit referendum, LCMs used to be respected and opposition from the Scottish Parliament resulted in good faith negotiation to iron out any outstanding issues until the blockade was lifted. Ringeisen Biardeaud Juliette, D’une union à l’autre, intégration européenne et désintégration des Etats ? Le cas de l’Ecosse : 1973-2017, PhD research defended on 26 June 2017, p 176.

22 Keatings v The Advocate General and the Lord Advocate, [2021] CSOH 16.

23 Keatings v The Advocate General and the Lord Advocate, [2021] CSIH 25.

24 Crichton Styles Scott, “Martin Keatings’ IndyRef2 legal case was a sideshow – the real battle is on the horizon”, The Press and Journal, 4 May 2021; https://www.pressandjournal.co.uk/fp/opinion/3106714/scottish-independence-martin-keatings-indyref2-legal-case-opinion/, Ryder Gemma, “Independence campaigner's appeal on indyref2 consent issue rejected”, The Herald, 30 April 2021; “Indyref2 case dismissed as 'hypothetical' by court”, BBC, 5 February 2021; https://www.bbc.com/news/uk-scotland-scotland-politics-55955965; Russell Greg, “Scottish independence: People's Action on Section 30 case appeal rejected”, The National; https://www.thenational.scot/news/19270754.scottish-independence-peoples-action-section-30-case-appeal-rejected’; “Cairneyhill Independence campaigner loses Court of Session battle”, Dunfermline Press, 1 May 2021 [consulted 3 August 2021].

25 https://www.snp.org/the-snp-2016-manifesto-explained/ [consulted 6 January 2022].

26 https://www.snp.org/manifesto/ [consulted 6 January 2022].

27 Keating Michael, “Why Scotland’s election result is unlikely to hasten a referendum”, The Guardian, 10 May 2021; https://www.theguardian.com/commentisfree/2021/may/10/scotland-election-result-referendum-independence [consulted 28 July 2021], not to be confused with Martin Keatings from the People’s Action challenge.

28 Nicola Sturgeon: “Indyref is the will of the country”, BBC, 8 May 2021 https://www.bbc.com/news/av/uk-scotland-57043187 [consulted 28 July 2021].

29 Letter from PM Boris Johnson to First Minister Nicola Sturgeon, 14 January 2020, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/857586/Nicola_Sturgeon_20200114.pdf [consulted 30 July 2021].

30 Wright Jack, “Number 10 'will not stand in the way' of a second Scottish independence referendum if it is 'settled will' of voters, says Michael Gove”, Sunday Mail, 1 August 2021; https://www.dailymail.co.uk/news/article-9849191/Michael-Gove-says-UK-government-not-stand-way-second-Scottish-independence-referendum.html [consulted 28 July 2021]

31 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, ICJ Rep. 2010, p. 403.

32 Edward David, “Scotland’s Position in the European Union”, Scottish Parliamentary Review, volume 1.2, 2013.

33 McCrone David, “A Parliament for a People: Holyrood in an Understated Nation”, Scottish Affairs, 50, (2005), p. 1–25, <http://dx.doi.org/10.3366/scot.2005.0002> [consulted 31 July 2021].

34 Dicey Albert Venn, Thoughts on the Union between England & Scotland, London, Macmillan, 1920, p. 66.

35 1953 SC (HL) 396 at 411.

36 For more details on the notion of participative democracy in Scotland, see Thiec Annie, Le Parlement écossais et la démocratie participative, E-rea. Revue électronique d’études sur le monde anglophone, 2009 <https://doi.org/10.4000/erea.885> p. 5 [consulted 28 July 2021].

37 Antoine Aurélien, De quelques interrogations constitutionnelles soulevées par l’éventualité d’un référendum d’indépendance en Écosse, Jus Politicum, 4 juin 2021 ; https://blog.juspoliticum.com/2021/06/04/de-quelques-interrogations-constitutionnelles-soulevees-par-leventualite-dun-referendum-dindependance-en-ecosse-par-aurelien-antoine/ [consulted 28 July 2021].

38 Hayward Katy and Phinnemore David, “Breached or protected? The ‘principle’ of consent in Northern Ireland and the UK government’s Brexit proposals”, LSE Blog, 11 January 2019; https://blogs.lse.ac.uk/europpblog/2019/01/11/breached-or-protected-the-principle-of-consent-in-northern-ireland-and-the-uk-governments-brexit-proposals/ [consulted 29 July 2021].

39 Scottish Government, Scotland’s Right to Choose: Putting Scotland’s Future in Scotland’s Hands, 19 December 2019. See https://www.gov.scot/publications/scotlands-right-choose-putting-scotlands-future-scotlands-hands/pages/1/ [consulted 26 June 2021].

40 McCorkindale Chris and McHarg Aileen, Constitutional Pathways to a Second Scottish Independence Referendum, Constitutional Law Group, 13 January 2020, https://ukconstitutionallaw.org/2020/01/13/chris-mccorkindale-and-aileen-mcharg-constitutional-pathways-to-a-second-scottish-independence-referendum/ [consulted 26 June 2021]

41 Referendums (Scotland) Act 2020.

42 Scotland Act 1998, Sched. 5, s. 1(b).

43 On 17 April 2018, the UK Government's Law Officers, the Attorney General and the Advocate General, referred EU exit legislation passed in the Scottish Parliament – the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill – to the Supreme Court. The Law Officers asked the Supreme Court for a ruling on whether this legislation is within devolved legislative powers. In December the Supreme Court ruled that only Section 17 of the bill would have been outwith the legal competence of the Scottish Parliament under the Scotland Act 1998 at the time of its passage. However, owing to the passage and enactment of the European Union (Withdrawal) Act 2018 by the UK Parliament while the Scottish Bill was under review, many more sections of the bill fell outwith its legal competence and the bill, as far as those sections are concerned, is therefore “not law”. See The UK Withdrawal from The European Union (Legal Continuity) (Scotland) Bill – A Reference by the Attorney General and the Advocate General for Scotland, [2018] UKSC 64, 2019 SC (UKSC) 13.

44 Scottish Government, Draft Independence Referendum Bill, www.gov.scot/publications/draft-independence-referendum-bill/pages/5/ [consulted 26 June 2021]

45 Russell Michael, “This is the SNP’s routemap to a Scottish independence referendum in full”, The National, 23 January 2021, www.thenational.scot/news/19033561.snps-road-scottish-independence-referendum-plan-full/

46 Martin v HM Advocate, [2010] UKSC 10, 2010 SC (UKSC) 40.

47 Imperial Tobacco Ltd v The Lord Advocate, [2012] UKSC 61, 2013 SC (UKSC) 153.

48 See The UK Withdrawal from The European Union (Legal Continuity) (Scotland) Bill – A Reference by the Attorney General and the Advocate General for Scotland, [2018] UKSC 64, 2019 SC (UKSC) 13.

49 Tierney Stephen, The Scottish Parliamentary Elections and the “Second Referendum” Debate, 10 May 2021; https://ukconstitutionallaw.org/2021/05/10/stephen-tierney-the-scottish-parliamentary-elections-and-the-second-referendum-debate/ [consulted on 2 August 2021]

50 Keatings, [2021] CSIH 25, at para 55. For a step-by-step description of the procedure, https://www.crowdjustice.com/case/pas30/ [consulted on 2 August 2021]

51 at para 66.

52 Minder Raphael and Barry Ellen, “Catalonia’s Independence Vote Descends into Chaos and Clashes”, The New York Times, 1st October 2017; https://www.nytimes.com/2017/10/01/world/europe/catalonia-independence-referendum.html [consulted on 2 August 2021]

53 Wintour Patrick and Davies Caroline, “EU referendum bill to be put forward by Tory MP”, The Guardian, 16 May 2013, https://www.theguardian.com/politics/2013/may/16/eu-referendum-bill-james-wharton [consulted on 2 August 2021]

54 Vince and Others v Prime Minister of The United Kingdom of Great Britain and Northern Ireland, No 5, 7 October 2019 [2019] CSOH 77 and Vince and Others v Advocate General for Scotland No 6, 9 October 2019, [2019] CSIH 51

55 Edward David, “Saving the Union….?”, ILCR lecture, Saint Andrews, 7 February 2020.

56 UKSC 24th January 2017, R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) at para 150 and 151, https://www.supremecourt.uk/cases/uksc-2016-0196.html [consulted 23 June 2021].

57 Sheldon Jack, Rycroft Philip, Kenny Michael, 12th April 2021, Union at the Crossroads: Can the British state handle the challenges of devolution?, 12 April 2021, The Constitution Society, https://consoc.org.uk/publications/union-at-the-crossroads-can-the-british-state-handle-the-challenges-of-devolution-by-michael-kenny-philip-rycroft-and-jack-sheldon/ [consulted 23 May 2021].

58 Martin Ciara, Resist, reform or re-run: short- and long-term reflections on Scotland and independence referendums Research and practitioners' insights, 13 April 2021, https://www.bsg.ox.ac.uk/research/publications/resist-reform-or-re-run-short-and-long-term-reflections-scotland-and [consulted 15 May 2021].

59 House of Lords Constitution Committee on the Future Governance of the UK, https://committees.parliament.uk/work/1127/future-governance-of-the-uk/ [consulted 15 May 2021].

60 Select Committee on the Constitution, The Union and devolution, 10th Report of Session 2015-16, 25th May 2016 - HL Paper 149, https://publications.parliament.uk/pa/ld201516/ldselect/ldconst/149/14902.htm [consulted 15 May 2021].

61 Constitution Committee, Inter-governmental relations in the United Kingdom, Eleventh Report, 18th March 2015, https://publications.parliament.uk/pa/ld201415/ldselect/ldconst/146/14602.htm [consulted 15 May 2021].

62 "Andrew Marr’s Interview of José Manuel Barroso: Full Transcript", BBC, 16 February 2014 <http://news.bbc.co.uk/2/shared/bsp/hi/pdfs/1602141.pdf> [consulted 5 June 2021]; in which Mr Barroso made a surprisingly inept intervention on the point. He supplied no authority for his view and was not challenged on it; but added, incongruously, “I don’t think I should now interfere”. In any event accession of a member state has little to do with the Commission, it being a matter for the European Council and the member states.

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References

Electronic reference

Juliette Ringeisen Biardeaud, The Continuation of Politics in the Courtroom: Scotland and Strategic LitigationRevue Française de Civilisation Britannique [Online], XXVII-2 | 2022, Online since 15 June 2022, connection on 27 September 2022. URL: http://journals.openedition.org/rfcb/9279; DOI: https://doi.org/10.4000/rfcb.9279

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About the author

Juliette Ringeisen Biardeaud

Université Paris-Panthéon-Assas, (CERSA)

Juliette Ringeisen Biardeaud was an attorney at the Paris Bar for ten years before teaching Legal English at Paris 2 Panthéon-Assas. In 2017, she defended her PhD Research entitled “From One Union to the Next: European Integration and State Disintegration? The Case of Scotland, 1973-2017”. Since then, she has been a Senior Lecturer at Paris 2 and is co-Head of the Language department of her university.

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Copyright

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https://creativecommons.org/licenses/by-nc-nd/4.0/

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