Scottish Independence - Legality

Legality

The UK Parliament retains parliamentary sovereignty over the United Kingdom as a whole. This claim was endorsed by Lord Bingham of Cornhill in Jackson v Attorney General who argued that "hen, as now, the Crown in Parliament was unconstrained by any entrenched or codified constitution. It could make or unmake any law it wished" and by the Supreme Court in AXA General Insurance Ltd and others v HM Advocate and others. The Deputy President, Lord Hope of Craighead, stated that "the sovereignty of the Crown in Parliament ... is the bedrock of the British constitution. Sovereignty remains with the United Kingdom Parliament." However, the application of the principle of parliamentary sovereignty to Scotland has been disputed. In MacCormick v The Lord Advocate, the Lord President of the Court of Session, Lord Cooper of Culross stated obiter dicta that "the principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish Constitutional Law." It has been suggested that the doctrine of popular sovereignty, proclaimed in the 1320 Declaration of Arbroath and reasserted by the Claim of Right 1989, is of greater relevance to Scotland.

The legality of any British constituent country attaining de facto independence (in the same manner as the origins of the Irish Republic) or declaring unilateral independence outside the framework of British constitutional convention is uncertain. Some legal opinion following the Supreme Court of Canada's decision on what steps Quebec would need to take to secede is that Scotland would be unable to unilaterally declare independence under international law if the British government permitted a referendum on an unambiguous question on secession. Rather, the SNP claims that a positive vote for independence in a referendum would have "enormous moral and political force... impossible for a future government to ignore", and hence would give the Scottish Parliament a mandate to negotiate the passage of an act of the UK Parliament providing for Scotland's secession, in which Westminster renounces its claims to sovereignty over Scotland.