The Weakest Link: The UK government’s legal argument for a binding referendum on Scottish independence runs counter to international and constitutional law

By Dr Matt Qvortrup

When Michael Moore stood at the Dispatch Box at Westminster on the 10th of January he had a simple message; Scotland’s constitutional settlement rests with Westminster and Scottish independence would require the consent of London.

It could be argued that this view is somewhat at odds with international law and it might not be compatible with the constitutional doctrine of referendums in the United Kingdom.

Leaving aside the issue of whether Scotland should become independent or not, it is important that things are done in accordance with accepted principles of constitutional and international law.

The basic principle in international law is that the seceding country (in this case Scotland) decides whether it wants to become independent. To use but two examples, Montenegro did not have to ask Serbia to secede in 2006, nor did Estonia seek the Soviet Union’s permission to become independent in 1990 and clearly it would not have been granted it.

The fundamental rule is that countries become independent when they are recognised by the international community.

According to the so-called Estrada Doctrine, if Scotland votes for independence (and if the government is in control of the territory) then the international community will in all likelihood recognise the new state. Just like the cases of the former Soviet states in the 1990s.

Of course, it is possible that only a narrow majority votes for independence. But this need not be fatal. When Malta voted for independence in 1965, only a little more than 50 per cent voted to sever the ties with Britain, yet Westminster still accepted the outcome. Still, there is nothing that prevents Westminster from ratifying a vote. Indeed, in 1933, the Imperial parliament ignored a vote for independence in a referendum in Western Australia, and in 1946, the Danish government did the same when the Faroe Islands had voted for independence in a referendum in the same year. But these are the exceptions. Out of the 82 democratically credible secession or independence referendums that have been held since 1791, these are the only two not to have led to independence.

So unless London wants to follow the Soviet Union in 1990, it cannot block Scottish independence. The only ones who can do so are the Scottish voters and the Scottish administration. Thus is the doctrine of Self-Determination, which has been recognised as a fundamental principle of international politics and law since it was established by US President Woodrow Wilson after the First World War.   

So the international case is clear – and runs counter – to Michael Moore. But what about domestic law?

When the Scottish Parliament was established, the Scotland Act 1998 stipulated a number of areas that would be the preserve of Holyrood and some that would remain in Westminster. The Coalition argues that the Scottish government is not allowed to hold a referendum under Section 30 of the Scotland Act. To do so would be beyond its mandate.

But this argument falls at two hurdles. Firstly, referendums in the United Kingdom have tended to be advisory only. Referendums in this country are not legally binding – though they may be politically binding.  Until the Welsh referendum in 2011, all referendums in the UK were non-binding.

To require that a Scottish referendum should be anything other than advisory would be highly unusual, and it would be difficult to justify on legal let alone on political grounds.

Lastly, Michael Moore believes that a referendum could be challenged in the courts. This is highly unlikely.

The assumption is that the Supreme Court could declare a secession referendum illegal or void.

But the Supreme Court is frankly unlikely to do that. Indeed in the case AXA v The Lord Advocate (2011), the only case to have dealt with the limits of the powers of the Scottish Parliament to date, the Supreme Court refused to declare an Act of the Scottish Parliament void.

The Court held that it respected “the judgment of [an] elected body as to what is in the public interest”.  It seems unlikely that the Supreme Court would rule otherwise on an issue which was a manifesto commitment of the elected government of Scotland

Maybe the elected government of Westminster could learn a thing or two about democracy from the Law Lords.

Dr Matt Qvortrup is author of A Comparative Study of Referendums (Manchester University Press)