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Scottish Independence And The UK Government’s Unreasonable Refusal To Negotiate

Published: 31 October 2022

In October 2022, the UK Supreme Court heard arguments on the legal viability of a second Scottish independence referendum, in a reference brought by the Lord Advocate. The purpose of this exploratory blog is not to rerun the argument of this case, but to raise additional points against the UK Government’s conduct in refusing to negotiate with Scotland on independence.

A broader strategy

Consent

First, should the Court dismiss the Lord Advocate’s reference, that does not end matters. Scottish independence is far broader than the issue of competence to hold a referendum under the 1998 Scotland Act. The devolved settlement is barely 25 years old but Scotland and England have been joined since 1707 in a voluntary parliamentary union concluded between two sovereign States. Importantly, this relationship, and the consent of both parties to it, is ongoing, not all done and dusted three centuries ago, and, since 1707, Scotland has maintained its own separate legal system, Church, education system and cultural heritage.

Indeed, the Scottish Government’s own strategy for independence clearly extends beyond testing the legality of a referendum under the Scotland Act in court. Should the Supreme Court find the Scottish Parliament lacks legislative competence, then the First Minister announced that the SNP would fight the next UK General Election as a ‘de facto’ referendum on the ‘single question’ of whether Scotland should be independent. Further, the SNP submitted an intervenor brief in the Supreme Court regarding the right of the Scottish people to self-determination, and to democracy. But I believe these additional contentions can be supplemented by further claims based on consent, change of circumstances and the requirement to negotiate in good faith. Of course, all that follows must be supported by evidence that the Scottish people wishes to exercise its right to self-determination and leave the Union. If this were not so, then the Scottish Government would itself be violating the principle of democracy. The clearest way to demonstrate whether such a wish existed would be by a referendum on independence, which is why referendums have been the focus of so much discussion to date. But the existence of such a desire could be determined in other ways, such as at a General Election.

Democracy and Self-Determination

Self-determination is a fundamental right, protected in both the UN Charter and the International Covenant on Civil and Political Rights. Self-determination and consent are complementary – where there is a desire for self-determination, consent to continue a relationship may be withdrawn. Notably, through its own conduct over many years, the UK government (including Prime Ministers) acknowledged the UK Union as voluntary, and that Scotland has a right to self-determination - thus sustaining an expectation allowing for independence in principle. This situation clearly distinguishes the UK from States such as Spain, whose Constitution declares ‘the indissoluble unity of the Spanish nation’, or the US, whose Supreme Court in 1868, in Texas v White, held that there was no right to State secession. However, although the Scottish people have an acknowledged right to self-determination, this can only be lawfully actualized through consensual negotiations with the UK Government. It therefore follows that such negotiation should not be unreasonably withheld. As the SNP brief in this case argued, where there exists a right, there must be a remedy: ubi jus ibi remedium.

Further, democracy is a key constitutional principle, and the UK Government has undermined democracy by ignoring the SNP’s 2021 manifesto pledge and its endorsement by the Scottish people, as well as the January 2020 Scottish Parliament vote for an independence referendum. By ignoring the mandate of a lawful government, the UK Government’s conduct in this context also undermines the rule of law.

Change of Circumstances

These arguments may be supplemented. A further argument (embraced by the Scottish Government in its 2019 White Paper Scotland’s Right to Choose,) is that any continuing consent (for example, that of the No vote in the 2014 referendum) has been overridden by the change of circumstances that is Brexit. Much has been made of the comment that the 2014 referendum was a ‘once in a generation’ chance. But this remark had no legal effect, and in any case, the 2016 Brexit referendum provides a clear ‘change of circumstances’ - as in 2014, the UK government strongly argued that Scotland could only protect its EU membership by remaining in the UK. This of course has not been the case.

If we turn to law, we find that most legal systems provide fruitful examples of where a change of circumstances will result in the termination of, or substantial change to, an agreement.

The Articles of Union between England and Scotland were originally negotiated by international treaty. Article 62 Vienna Convention on treaties (and customary international law) provides that, where ‘The effect of the change is radically to transform the extent of obligations still to be performed under the treaty’ then a fundamental change may be invoked as a ground for terminating or withdrawing from the treaty. The basis of much treaty and contractual law rests on the public policy of protecting and giving effect to reasonable expectations. Thus in many systems of contract law, a fundamental change to the circumstances of the contract can undo its binding nature. Article 89 Common European Sales Law, for example, provides for a duty to renegotiate where there has been an unexpected change of circumstances, and if parties are unable to reach agreement then a court may declare dissolution of the contract.

But many other areas of law also provide examples. During the leadership campaign, Liz Truss insisted that she would never let the UK ‘family’ be split up, nor allow another independence referendum. Apart from the fact that this is not a decision for the UK Prime Minister to ‘allow’, family law – and divorce law in particular – itself recognizes that a consent order can be set aside if there is a significant change in circumstances. There are similar principles at work in wills and succession law.

These examples are proffered as illustrations that not only politics and morality, but also the law itself, is clearly receptive to arguments to dismantle agreements on the basis of a change of circumstances.

Good Faith

Another argument may be added, which is that the UK Government has a duty to act in good faith with Scotland on the question of independence. Good faith is clearly a feature of UK Constitutional Law. and also applies in international law (for example, a good faith duty is explicit in Article 5 UK/EU Withdrawal Agreement). It has also been found to be a principle inherent in the concept of federalism, and explicit in Art 41 South African Constitution. In 2020, the Advocate General for Scotland and the Head of the UK Government Legal Department both resigned in protest over the UK government’s bad faith violation of international law in the Internal Market Bill. Application of the Sewel convention is also an obvious area where good faith should operate, but the principle is surely of wider application to relations between the Scottish and UK Governments generally. For those who might argue there is no explicit obligation of good faith between England and Scotland, it is worth noting that recent English and Scottish caselaw has found a good faith obligation implied in “relational contracts.” Although analysis of ‘relational contracts’ has arisen in the context of commercial entities, ‘relational’ attributes apply equally, mutatis mutandis, to relations between England and Scotland.

Moving forward

Therefore, to sum up: the five arguments above should be asserted as clearly and loudly as possible.

The first ground is that the Union between Scotland and England is voluntary, and Scotland’s consent to this Union was not one-off back in 1707, but ongoing and may be withdrawn. A second and related argument concerns Scotland’s right to self-determination in international law, which requires the UK to interpret State law in the light of that obligation. The third ground is the principle of democracy which sustains the legitimacy of elected governments and necessitates that their mandates be taken seriously and not overridden. The fourth ground derives from manifold legal sources over many areas of law which permit a change of circumstances to negate consent formerly given. The fifth ground is the requirement to act in good faith, a principle again observed in many areas of law, both explicitly and impliedly.

What sort of arguments do these five grounds amount to? It has been persuasively argued that, even if the Supreme Court finds the Scottish Parliament lacks competence for a referendum Bill, it should nonetheless declare the UK Government’s conduct unconstitutional (if not illegal) because it prevents implementation of SNP manifesto commitments to instigate an independence referendum. This contention draws analogies with Canadian Supreme Court decisions (eg 1981 Resolution to Amend the Constitution, where that court distinguished illegal from unconstitutional government conduct, and encouraged political negotiations) and the UK Salisbury constitutional convention, whereby the manifesto of a democratically elected Parliament cannot be vetoed by a less democratic body. In this way, it has been argued that the UK Supreme Court ‘can play an important role in attempting to encourage civilised negotiations.’ 

However, putting all this together, I believe a legally stronger argument may be made. One may deduce an obligation of the UK government to permit Scotland to hold a referendum on the question of independence (based on legal grounds of change of circumstances and good faith) and an additional obligation to negotiate in good faith if Scotland so requests. The UK Government may not refuse to do so unreasonably. It should not take decisions which violate Scotland’s fundamental right to self-determination, or democracy, without a clear, rational and evidenced basis for doing so (which has not been forthcoming). The SNP has always stressed the importance of legality – especially salient given that an independent Scotland would want recognition from the international community, not least if it wished to become an EU member. However, it is equally important that the UK Government’s conduct be exposed as not merely unreasonable and immoral, but also as contravening some key legal principles.

Sionaidh Douglas-Scott

Professor Douglas-Scott joined Queen Mary in September 2015 as Anniversary Chair in Law. Previously she was Professor of European and Human Rights law at the University of Oxford, and before that Professor of Law at King’s College London. She retains a link with Oxford as honorary research fellow at Lady Margaret Hall, Oxford.

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