Does Scotland have a right to self-determination?

🇮🇹 Per la versione in italiano clicca qui.

As distinct from countries like Italy, Spain or the United States, which all have a written Constitution upon which their respective political and legal systems, institutions, rule of law and government are based, the United Kingdom does not have a rigid written document. While some of its Constitution is in fact written, British constitutional law is mainly reflected in fundamental rules of law recognized by the Parliament and the courts of justice.

In this context, Westminster is invested with the so called Parliamentary Sovereignty, which stipulates that legislation passed by both Houses of Parliament and subsequently enacted by the Crown represents the cornerstone for the UK’s legal system in its totality. Primary legislation, as it is called, seats at the apex of British legal system, there is no superior form of law —since BREXIT EU legislation is no longer in place— and it can therefore change the law of the land. This clearly shows how the United Kingdom’s constitutional order distinguishes itself by a great deal of constitutional flexibility, unlike its European neighbors.

I personally believe this constitutes the reason why, unlike in Spain, since the Union Act of 1707 between England and Scotland —the international treaty that established the United Kingdom—, there has always been the widespread belief that Scotland had the right to the decide its destiny. Even Margaret Thatcher, the prime minister that went down in history as the Iron Lady who did not hesitate to broke coal and industrial strikes in the most decisive manner, to say the least, defended the “undoubted right of national self-determination” of the Scottish nation. After all, the United Kingdom is generally perceived as a Nation of Nations (English, Scottish, Welsh and Northern Irish).

This last concept serves as the bedrock for the devolution process that took place in the second half of the twentieth century: after a first attempt to devolve powers to Scotland in 1979 failed, the labour government of Tony Blair organized a second referendum in 1997, as a result of which the Scotland Act was passed, granting a greater level of self-government and re-establishing the Scottish Parliament and Government, as well as its Welsh and Northern Irish counterparts.

While still being an independent organ, not only the Scottish Parliament is limited in its functions, and thereby precluded from legislating on reserved matters, as independence or the organization of a referendum for independence, but also a devolved institution, hence subject to abolition by Westminster —although this represents a highly unlikely scenario—. Therefore, for a referendum to be hold, the approval of the English Parliament is fundamental and bound to take place only depending on the political willingness of its members and their formations. The 2014 Scottish Independence Referendum was a product of such willingness: following the growth of the independence movement in Scotland and the election of the Scottish National Party (SNP) to Edinburgh’s Government, negotiations between the latter and 10 Downing Street took place, resulting in an agreement to amend the Scotland Act so that Holyrood could, una tantum, legislate for a referendum to be held no later than 31 December 2014.

In short, while the Scottish People have the right to decide on their future as an exercise of national self-determination —as proven by the widespread acceptance of the idea and the subsequent political willingness to negotiate about it—, the Scottish institutions, being the product of devolution they are, cannot freely and unilaterally exercise such right.

Pubblicato da Paolo Caretta Cortegiani

Giurisprudenza presso l'Università di Barcellona (UB), MUA + LLM in International Business presso l'ESADE Business & Law School, membro della European Law Students Association (ELSA). Nato a Barcellona (Spagna) nel 1998, dopo aver ottenuto nel 2017 il diploma di maturità classica presso il prestigioso Istituto Cesare Arici di Brescia ho intrapreso i miei studi attuali con una menzione in Diritto Internazionale e Comunitario. Da sempre provo grande interesse per la finanza internazionale e la geopolitica, scrivendo spesso di quest'ultima. Fanatico di Star Wars e di Formula 1. Ulteriori informazioni e CV sul mio profilo LinkedIn.


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