Devolution issues under the Scotland Act 1998, Reference by the Lord Advocate (Rev1) [2022] UKSC 31 (23/11/22)
Citation:Devolution issues under the Scotland Act 1998, Reference by the Lord Advocate (Rev1) [2022] UKSC 31 (23/11/22).
Rule of thumb:
Is Great Britain legally considered to be a unitary sovereign country? Or a confederation of Scotland, England, Wales, and Northern Ireland (similar to Canada) – giving Scotland the legal right to secede from Great Britain? Great Britain is legally considered to be a unitary sovereign country. Great Britain is legally not a confederation, like Canada is. This legal status of Great Britain as a unitary sovereign country means that Scotland is a region of the country of Great Britain, and does not have a legal right of secession for its land. Scotland therefore has no legal right a separation referendum for the territory of Scotland, unless it has the special permission of the British Government. No city, town or neighbourhood within Great Britain has a right to become a country through self-determination either.
Background facts:This case was a ‘landmark case’ in UK jurisprudence. The Lord Advocate, Dorothy Bain, is the senior law officer in the Scottish Government. The Scottish National have been campaigning for decades for people to vote for Scotland to become an independent country. The Lord Advocate sought a declaration from the Court that that Scotland indeed had a legal right to secession from Great Britain.
Parties argued:This landmark case invoked the public international law principles of ‘self-determination’, ‘secession’, ‘confederation’, and ‘unitary sovereign’ country, and confirmed what Great Britain’s legal status is in international law. The Lord Advocate’s reasoning for arguing this was that Great Britain was a ‘confederation’ made up of the countries of England, Scotland, Wales and Northern Ireland, with a similar constitutional arrangement to Canada. The Lord Advocate further argued that in countries like Canada which were confederations, the countries who make up Canada, such as Quebec, have the legal right to secede and start their own country. The Lord Advocate referred the UK Supreme Court to a case from the Canadian Supreme Court confirming this as authority to show this. The Lord Advocate therefore argued that based on the same logic as the Canadian Supreme Court Judgment, Scotland had a legal right to secession from the confederation of the UK as well, and that the Scottish Parliament had the right pass an Act of the calling for a referendum to leave the UK confederation. The other side opposing Ms Bain & the Scottish Government argued that the Acts of Union 1707 were fundamentally different from the confederation of Canada and that Scotland had no legal right to secede from the UK, and it was only if Scotland was granted this right by the will of the UK Westminster Parliament that they could attain this.
Judgment:The UK Supreme Court did not uphold the Lord Advocate’s legal arguments about Scotland having a legal right to leave the UK. The UK Supreme Court explained that Great Britain was not a confederation. When 2 countries or more merge to create a new sovereign country, called a ‘succession’ in international law, sometimes as part of the constitutional agreement of the new country, the countries retain the ‘right to withdraw’ from the new country and go back to being a separate country. Where there is this ‘right’ to withdraw from the new country created, this is called a ‘confederation’, rather than a ‘unitary sovereign country’. However, the UK Supreme Court explained that Great Britain is technically a unitary sovereign country, and not a confederation, because the 1707 Acts of Union contain no withdrawal agreement. This means that there is no right of secession for any region within Great Britain – Scotland, England or Wales - to separate its land and become a new country after a referendum. There is also no wide right of self-determination in Great Britain - no city, town, or neighbourhood has the right to separate its land from Great Britain to become a new country. The UK Supreme Court dissected the Judgment from the Canadian Supreme Court as well as a host of other public international law sources in the reasoning of their Judgment to distinguish the position in the UK as being fundamentally different to Canada. This Judgment could apply more widely to territories all across Great Britain. No city, region, town or island in the country of Great Britain has the legal right to separate its land from the Great Britain, so, for example, the Isle of Man, where polls have shown that close to a majority of the people there would wish to separate from Britain to become a country themselves, has no legal right of secession or self-determination to separate its land from Great Britain to become a country.
The logic of the UK Supreme Court’s decision applied widely across the world means very few countries could be legally split up into new countries in their opinion. Switzerland, Belgium and Canada, 3 countries which are confederations, are exceptions where this could be done, but most countries are not and cannot do this. For example, the 50 states in the unitary country of the USA would not possess the legal right to separate their land from the USA because the USA is a unitary sovereign country. The region of Catalonia would not be able to legally separate itself from the unitary sovereign country of Spain, nor would the Basque region. The practical result of this Judgment is that it has made it virtually impossible for the SNP to have a successful independence referendum in the region of Scotland, and in the opinion of the UK Court this is practically impossible legally for any region to do this in any country in the world. The region of Scotland has no legal right of secession or self-determination to leave Great Britain, and could only gain the right to separate the land of the Scottish region from Britain through the discretion and special permission of the British Government in granting a regional separation referendum voluntarily using their discretion.
Ratio-decidendi:
‘…international law does not, in general, prohibit secession; but the relevant point, in relation to the intervener’s submission based on a right of self-determination under international law, is the absence of recognition of any such right outside the contexts described by the Supreme Court of Canada (a confederation), none of which applies to Scotland … The provision of the proposed Scottish Independence Referendum Bill that provides that the question to be asked in a referendum would be “Should Scotland be an independent country?” does relate to reserved matters. In particular, it relates to the Union of the Kingdoms of Scotland and England (merged their lands to become the unitary country of Great Britain)’, Lord Reed at 89-92
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.