A Second Scottish Independence Referendum and Schrodinger’s Sub-State Constituent Power

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Pravar Petkar

University of Edinburgh

The issue of Scottish independence has returned to the UK’s political table since the first unsuccessful independence referendum in 2014, and the 2016 “Brexit” referendum in which a narrow majority voted to leave the EU. When a pro-independence majority was returned in the most recent devolved legislative elections for the Scottish Parliament in 2021, calls for a second referendum (’IndyRef2’) were renewed. On 23 November 2022, the UK Supreme Court handed down its judgment in a reference made by the Lord Advocate of Scotland, the most senior Scottish Law Officer, on whether a draft Scottish Independence Referendum Bill providing for an ‘advisory’ second independence referendum would be within the Scottish Parliament’s legislative competence. It is here suggested that the Court’s reasoning on the substantive issue before it presents a paradox of sub-state constituent power within the UK: that it can exist yet has no practical utility. This presents a challenge for sub-state units under a unitary constitution such as that of the UK.

The Court’s Decision

Under Scotland’s devolution settlement, the Scottish Parliament has competence to legislate on all matters not ‘reserved’ to the UK Parliament. The Court had to consider whether the draft Bill “relates to reserved matters”. The relevant matters, as set out in Schedule 5, para 1 of the Scotland Act 1998, were the Union of England and Scotland, and the Parliament of the UK. Under s 29(3) of the Act, whether a provision ‘relates’ to a reserved matter is determined by its purpose, with regard to its “effect in all the circumstances”. The Court held that this includes non-legal effects (§74), finding that an ‘advisory’ referendum would have practical effects causing it to ‘relate’ to reserved matters. First, a referendum is “not merely an exercise in public consultation or a survey of public opinion” (§76) but an electoral process governed by statute which gave it legitimacy (§78), reflecting Tierney’s view of the political and constitutional significance of referendums. Second, and crucially for present purposes, the outcome of even an ‘advisory’ referendum “would possess the authority, in a constitution and political culture founded upon democracy, of a democratic expression of the view of the Scottish electorate.” (§81) Accordingly, the Court held that the draft Bill was outside the Scottish Parliament’s legislative competence, making a second independence referendum practically impossible unless the UK Government, through His Majesty the King, grants the Scottish Parliament the competence to hold one.

Sub-State Democratic Authority and Constituent Power

The second of the Court’s reasons above suggests that there are avenues by which sub-state democratic authority might manifest within the UK constitution. This authority is pitted by the Court against the principle of parliamentary sovereignty, which has been deployed in previous judgments to represent the superior (representative) democratic authority of the UK Parliament (see here and here). There are two relevant clashes here: that between democratic authority at the UK ‘federal’ and sub-state levels, and that between representative and direct democracy. As I have suggested previously, sub-state democratic authority in this form can be viewed as a constituent power operating within the constitutional order. Rubinelli has argued that the language of ‘constituent power’ has been used throughout history to refer to accounts of popular power alternative to prevailing definitions of ‘sovereignty’. Here, the ‘sovereignty’ account is parliamentary sovereignty – the UK Parliament’s legislative supremacy and unlimited competence, with ‘constituent power’ referring to the sub-state democratic account that challenges this. Alternatively, to use Tierney’s term, the sub-state democratic authority acknowledged by the Court could be a ‘constitutional constituent authority’: here, a constituent territory of the state expresses its constituent status within the constitutional order, as the Scottish electorate would by means of a referendum (and has, in 1979, 1998 and 2014 on both devolution and independence). This suggests that Scotland-only referendums, whether ‘advisory’ or ‘binding’ (a distinction that seems to have less and less importance in the UK), on Scotland’s constitutional future might express a sub-state ‘derived’ constituent power that sits in tension with the UK’s central representative democratic framework.

Schrodinger’s Sub-State Constituent Power

Just as Schrodinger’s cat is simultaneously dead and alive, it seems that the UK Supreme Court treats the kind of sub-state constituent power represented by the result of Scotland-only constitutional referendums as having practical effects and as being unable to have practical effects at the same time. For the Court to determine that the legislative competence of the draft Referendum Bill is shaped by the practical effects of an exercise of sub-state constituent power, it must recognise the possibility of sub-state constituent power and, as it does in explicit terms (§81), situate it within a UK “constitution and political culture founded upon democracy”. Here, the UK constitution’s commitment to democracy seems to justify and explain sub-state democratic authority. Nevertheless, the Court’s conclusion that the draft Bill was outside competence rests on these practical effects (the impact on the democratic legitimacy of the Union and the potential to end the sovereignty of Parliament over Scotland). 

This creates two issues. First, the Court’s reasoning reduces to the paradoxical view that the UK constitution’s commitment to democracy prevents it from allowing democratic authority (at the sub-state level) to be exercised. Second, sub-state constituent power can, it seems, only manifest if the UK Government advises His Majesty the King to make an Order in Council under s 30 of the Scotland Act 1998 that would temporarily grant the Scottish Parliament the competence to legislate for an independence referendum. In effect, sub-state constituent power does not exist unless the door through which it might operate is opened at the UK level. It might be objected that this is exactly how a derived constituent power is supposed to operate: through the means set out in the constitution. If, however, this line were to be taken in the case of the UK, we would be left with no practical distinction between constituent power and sovereignty. By constitutional convention, the UK Government is formed by the political party (or coalition of parties) with a majority in the UK Parliament. The Government controls Parliament and its policy programme is almost always backed by Parliament and its supreme legislative powers. A sub-state constituent power exercisable only at the whim of the UK Government starts to look more like a facet of parliamentary sovereignty than something alternative to it. If sub-state democratic authority is no more than a product of the central or ‘federal’ legislative power, then it also appears to lose its distinct sub-state identity and in Tierney’s terms, its connection to the constituent territory.

What are the Wider Implications of this?

Discussion has already begun on the domestic political effects of this judgment. Yet there are broader implications for sub-state constituent power in territorially plural states with unitary constitutions. If, in such contexts, the exercise of sub-state constituent power is held to infringe upon the unity of the state or its sovereignty, or is entirely in the gift of the ‘federal’ institutions, then it is likely that Schrodinger’s sub-state constituent power will rear its head. This is to acknowledge sub-state democratic authority without giving it meaningful weight, and can, as the case may be with Scotland, only deepen the divide between sub-state entities and the centre. This acts to the detriment of trust and cooperation and can widen the gap between the formal legality of the constitution and the competing visions of its democratic legitimacy.

Pravar Petkar is a PhD Candidate at the University of Edinburgh Law School

Suggested Citation: Pravar Petkar, ‘A Second Scottish Independence Referendum and Schrodinger’s Sub-State Constituent Power’ IACL-AIDC Blog (29 November 2022) https://blog-iacl-aidc.org/new-blog-3/2022/11/29/a-second-scottish-independence-referendum-and-schrodingers-sub-state-constituent-power.