The Conservatives who would like a court ruling that Holyrood cannot hold an independence referendum without the Prime Minister’s permission should be very careful – the anger that this would create in Scotland would lead to a boost in support for independence.

First published in July 2021.

Writing in the Times newspaper, Professor of political science Matt Qvortup has warned Boris Johnson of the political dangers of taking the Scottish government to court in order to block a second independence referendum. Qvortup believes that the UK Supreme Court would rule that an independence referendum without the express consent of the Westminster parliament would be unlawful. He draws a parallel to Catalonia, where the Spanish Supreme Court ruled that the Catalan independence referendum was unconstitutional and against the law.

Qvortup is a professor of political science, not a lawyer. Some legal experts such as the former Conservative MSP Adam Tomkins are far less certain that the courts would ultimately rule in favour of Westminster and decide that a consultative referendum held by Holyrood was in fact unlawful. The legal position is far from clear, unlike in Spain. What is certain is that the very act of an unpopular Conservative Prime Minister taking legal action in order to thwart the democratic will of the people of Scotland would itself have massive political consequences irrespective of the eventual outcome.

There are enormous political and legal differences between Spain and the UK in terms of the political and legal status of independence movements, and these differences make for a very distinct political context in the UK which means that a ruling from the UK Supreme Court that Holyrood did not have the legal right to hold another independence referendum without the express consent of Downing Street would most certainly not be the end of the matter. Indeed Qvortup believes that such a ruling would only strengthen the desire for independence within Scotland and make Scottish independence more likely rather than pulling the rug from underneath the independence movement in Scotland forever as Boris Johnson and the Conservatives might hope.

Catalonia is a part of Spain because of the dynastic union of the Crown of Aragon (which included Catalonia) and the Crown of Castile (basically the rest of modern Spain). However, Catalonia retained considerable self-government until the king in Madrid unilaterally abolished the Catalan Parliament, known as la Generalitat, in the aftermath of the War of Spanish Succession in 1707 and imposed centralised rule throughout the entire Spanish state. There was never any question of the Catalan parliament or the people of Catalonia being consulted on the matter, far less was their consent required. The old Catalan parliament was abolished because it had supported the losing side in the War of Spanish Succession.

The biggest and most important difference between the UK and Spain is that the Spanish Constitution quite explicitly specifies that no part of the territory of the Spanish state has the right to independence. The territory of Spain, the constitution states, is una e indivisible (“one and indivisible”). An independence referendum in Catalonia would be unlawful even if the government in Madrid was disposed to give consent to it. The only path to independence recognised as lawful by the Spanish constitution would be via a referendum held throughout Spain. The equivalent for Scotland would entail Scottish independence being approved in a UK-wide referendum.

The UK’s political and constitutional tradition is very different from Spain’s. The understanding of traditional Scottish Unionism and all British governments has always been that the UK is a union founded on consent and that it is for the people of Scotland to decide whether to continue the union or to end it. This difference is due to the varying ways in which the modern states of Spain and the UK were formed. Although Scotland was under severe economic and political pressure from England, the Union of 1707 which abolished the old Scottish Parliament was a voluntary one. If forming the Union was voluntary on the part of Scotland, ending it should be voluntary on the part of Scotland too.

An 1809 engraving shows Scottish nobleman James Douglas, the 2nd Duke of Queensberry, presenting the Act of Union to Queen Anne in 1707.

The voluntary nature of the union has always been the view of successive British Governments. The Scottish Claim of Right which states that the people of Scotland have the right to determine the form of government best suited to their needs was adopted and approved by the Westminster Parliament. The referendum of 2014 set a precedent. That referendum came about because Westminster accepted that the people of Scotland had elected a government with a manifesto commitment to an independence referendum, as the people of Scotland did again in 2019.

By signing the Edinburgh Agreement the British Government implicitly accepted that it’s for the people of Scotland to decide whether or not Scotland should become independent. If Johnson’s government was to take legal action in order to block another referendum, irrespective of the judgement eventually delivered, it would be a clear signal that the British Government no longer believes that the question of Scottish independence is for the people of Scotland to decide. That would be as clear a political statement as possible that the traditional understanding of the Union was dead. That would still be the case even if they attempted the transparent ruse of getting a supposedly private individual to take the case on their behalf. This is why the Conservatives have carefully avoided saying that they’d take legal action to block a referendum if the Scottish Government presses ahead with one.

If the UK Supreme Court, packed full – as Qvortup points out – with posh English lawyers, was to rule that the occupant of 10 Downing Street had an effective veto on a Scottish independence referendum, it would destroy the traditional foundations of Scottish Unionism. Scotland’s membership of the Union of the UK would no longer rest upon the consent of the people of Scotland but rather upon the will of a Prime Minister in Downing Street from a party which Scotland didn’t necessarily vote for, and in the case of Boris Johnson a Prime Minister who is massively unpopular in Scotland.

Qvortup warns the Conservatives that the anger that this would create in Scotland would lead to a boost in support for independence and the generation of considerable political capital for the pro-independence parties. With a Scottish First Minister who enjoys a high reputation abroad and a British Prime Minister who is widely disliked and distrusted in Europe, this could lead to significant international pressure on Downing Street to concede to the democratic will of the people of Scotland, pressure which the Scottish Government would be quick to exploit. And ultimately, no British Government can prevent the people of Scotland from voting explicitly for independence in a Westminster General Election or a Scottish Parliamentary election.

Qvortup’s warning to the Conservatives who would like a court ruling that Holyrood cannot hold an independence referendum without the Prime Minister’s permission is to be very careful what you wish for.

The political consequences will only make Scottish independence more likely in the longer term. 


Wee Ginger Dug, also known as Paul Kavanagh. Blogger.


[This piece was originally published in Wee Ginger Dug’s blog and re-published in PMP Magazine on 9 July 2021, with the author’s consent. | The author writes in a personal capacity.]

(Cover: Flickr/Number 10. - Boris Johnson. | 8 July 2021. / Licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.)

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