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Was the Edinburgh Agreement pointless?

 Written by David Early (4th Year LLB)

The purpose of this article is to provide a commentary on the development of the Scottish independence referendum in the light of the Edinburgh Agreement[1] from both a legal and pragmatic perspective.

 Fundamentally, a referendum is a direct vote in which the electorate engages directly with the executive and are asked to either approve or reject a proposal put forward by the government of the day. Such a process is onerous and despite its effectiveness at communicating the will of the people, if applied regularly would undermine representative democracy. As such it is reserved for highly sensitive issues which it is felt more appropriate to ask the electorate directly.  Such referendums are expected to have a binding effect even if the process was only advisory as 

‘It would be difficult for Parliament to ignore a decisive expression of public opinion’[2]

without undermining democratic process.

Normally the use of a referendum would be within the mandate of the Scottish Government. However the current referendum proposed by the SNP is highly contentious due to the topic under discussion, namely the possible secession of Scotland from the Union.

The argument by pro-Unionists and constitutional lawyers such as Professor Adam Tomkins and Dr Cormac Mac Amhlaigh is that prior to the implementation of the Edinburgh Agreement Holyrood was operating outside of its political mandate by attempting to override Westminster’s legislative supremacy.

To understand this argument we must first examine the doctrine of supremacy. The term Parliamentary supremacy was first coined by constitutional theorist A.C Dicey. It provides:

‘Parliament…has under the English constitution, the right to make or unmake any law whatever: and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.’[3]

It confers unconditional legislative sovereignty to the Westminster Parliament and has been described as:

‘the dominant characteristic of our political institutions.’[4]

With the Act of Union in 1707 and subsequent merger of the Parliaments this doctrine has been applied north of the border despite there being no pre-existing concept.[5] The idealised Diceyan model is only true in an orthodox sense, and in true British style we have a number of exceptions.

Of note to us is the political impact of the Scotland Act 1998 which created a devolved parliament in Scotland and conferred exclusionary powers to legislate on non-reserved issues.[6] The significance of a devolved rather than federal system means Holyrood draws its power from Westminster’s constitutional supremacy rather than from its own sovereignty, and as such theoretically Westminster could repeal any of the devolved parliaments powers and legislation.

However, it presents an interesting constitutional conundrum as arguably this relationship of supremacy is a legal fiction. In reality it is unlikely that the UK would repeal the Scotland Act and abolish the devolved legislature due to significant political restraints on Westminster’s ability to exercise its supposed legal sovereignty.  For the purposes of this paper we shall not challenge orthodox constitutional theory and proceed upon the premise that the Westminster parliament remains sovereign.

From a legal perspective the key provision of the Scotland Act regarding the referendums legality was s29 (2(b)) and whether the referendum relates to reserved matters. This is a broad non-exhaustive provision and as such s29 (3) seeks to expand upon this subsection and provides that regard should be given to all relevant circumstances. Subsequent case law[7] provides that a purposive test should be adopted when considering what amounts to a reserved matter as laid out in Schedule 5. In this context we would examine the referendum through the perspective lens on the impact it would have upon

‘the Union of the Kingdoms of Scotland and England.’[8]

Clearly a legally binding independence referendum impacts the Union as it potentially ends it. As such the Scottish Government was acting ultra vires as it had no grounds upon which to hold such a referendum, with First Minister Alex Salmond misinterpreting his devolved political authority.

However as alluded to above, the legal supremacy of Parliament does not translate neatly into political supremacy. As an inherently political issue with far reaching nationalist consequences both sides of the border, the coalition government was manoeuvred by circumstance into conceding a modification of Schedule 5 under s30 (2) to amend the reserved matters in what was known as the Edinburgh Agreement, thereby providing a legal basis for the referendum deriving from its own authority and overturning its initial illegality.

This modification of the Scotland Act cannot be judicially reviewed under the Padfield[9] doctrine for a number of reasons. Firstly the argument for Padfield illegality is based upon the idea that the UK government is using s30 to subvert the purpose of the Scotland Act and undermine the Union. However, the Act only refers to matters concerning the Union which does not prohibit actions reducing it. Secondly the s30 order has to be passed by affirmative resolution meaning it embodies the will of Parliament which is supreme and overrides the previous government’s intent regardless.


So whilst we must accept that the referendum as it stands is legally binding as it has Westminster’s approval, it is by no means a just one. The Scottish Government has used political savvy and leverage at every turn to engineer what was an unlawful referendum. This can be evidenced throughout the run up to the referendum, from the selection of the date of the referendum to coincide with the 700th anniversary of Bannockburn to the manipulation of democratic process with the ad hoc inclusion of 16/17 year olds to the electorate in the hope of exploiting youthful ideology.[10] Such a view is supported by the Lord Advocate, chief legal advisor to the Scottish government, who refrained from contributing to the legality debate before publically announcing that both governments set aside the s29 argument for political reasons.[11]

However, as Westminster has given its assent, the referendum will go ahead regardless. But this leads us to the substance of this paper, was the Edinburgh Agreement necessary to procure a legitimate basis for the independence referendum?

Along with the Act of Union 1707, the Scottish people were entitled to maintain their own legal system and so a case may be made that the principle of Parliamentary supremacy may not be applicable in Scots law. Despite there having been no open challenge to the doctrine the issue was raised by Lord President Cooper in MacComick v Lord Advocate[12] who stated that:

'The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish Constitutional Law'[13]

and that the Parliament of the United Kingdom could not

'Repeal or alter [certain] 'fundamental and essential' conditions'

of the Act of Union,[14] with such legislation being considered as constitutionally invalid. Specifically the intrusion of unrecognised English constitutional law into Scots law.

So we are presented with the two part argument that:

(1) as Scotland recognised no such doctrine of supremacy prior to the Union it is prima facie under no obligation to acknowledge Westminster’s authority-an inherently English convention[15]and
(2) if Scotland chooses to recognise this doctrine it must be an accessory rather than usurpation of Scots law to prevent it from contravening the Act of Union.

At present there exists no authority that any court may raise such an issue[16] but it provides an alternative avenue towards a legal basis for this referendum which circumvents Westminster’s authority.

The second case for ignoring Westminster is for Scotland to assert unilateral secession from the United Kingdom under the doctrine of self-determination of peoples as was attempted in Québec in 1995.[17] As Lenin explains:

'The right of nations to self-determination means only the right to independence in a political sense, the right to free, political secession from the oppressing nation… the logical expression of the struggle against national oppression in every form.'[18]

With Wolfgang Danspeckgruber,[19]describing its potency:

'No other concept is as powerful, visceral, emotional, unruly, and as steep in creating aspirations and hopes as self-determination.'

This right is enshrined in Article 1(1) ICCPR and ICESR- both of which have been ratified by a majority of the United Nations, and is accepted as a customary international law principle and is applicable to all peoples in a colonial situation. This right is divided into two aspects, external and internal self-determination. The former is primarily applicable to colonial situations as it relates to the territory of the state and its international relations with other states and the latter concerning the rights of peoples within a state to choose their political status via the participation and formation of their government. As such Scotland would argue a case falling within the remit of external self-determination. However, they must first qualify as a peoples in order to exercise this right. Unfortunately there is no clear objective consensus on what constitutes a ‘peoples’ although there are guiding characteristics such as ethnicity, shared history and a distinct culture.[20] As such the Scots as a subcategory of Britain’s are likely to claim recognition of themselves as a distinct ‘peoples’ and competently exercise their right to secede from the UK. However external self-determination is only permitted when there has been substantial abuse of human rights. As such it would be open to Holyrood to attempt to pursue an argument of self-determination but it would most likely be illegal under international law as the severity of Scotland’s ‘subjection’ does not amount to a significant enough oppression to warrant secession regardless of orthodox Leninist views.


In conclusion, whilst the referendum is now a binding legal decision post Westminster’s s30 order under the Edinburgh Agreement, the UK Government was under no obligation to submit to Holyrood’s demands as s29 clearly designates such an act to be ultra vires. Similarly the right to self-determination is inapplicable due to a lack of justification. So, had the coalition held firm the SNP would have only had a tenuous and previously untested constitutional argument to provide a legal basis to this referendum. In the face of these daunting odds the SNP did well to engineer such a concession from Parliament. Although this begs the question that if our current devolved government is willing to go to such lengths to manipulate the democratic and legal process, should we not consider what such a government would do with unbridled sovereignty?




[2] House of Lord Constitution Committee 12th report of 2009-10, HL 99, para 197

[3] A.V. Dicey Introduction to the Study of the Law of the Constitution (1885)

[4] Ibid.

[5] MacCormick v. Lord Advocate 1953 S.L.T. 255 the Lord President Cooper para 264

[6] S29 SA 1998

[7] Martin and Miller v. HM Advocate [2010] UKSC 10

[8] Schedule 5 part 1(b) SA 1998

[9] Padfield v Minister of Agriculture, Fisheries and Food [1968] A.C. 997



[12] 1953 S.L.T. 255

[13] MacCormick v. Lord Advocate 1953 S.L.T. 255 the Lord President Cooper para 264

[14] MacCormick v Lord Advocate 1953 SC 396 at p 411

[15] A.V. Dicey Introduction to the Study of the Law of the Constitution (1885)

[16] Ibid p263

[17] Secession of Quebec  [1998] 2 S.C.R. 217

[18] The Socialist Revolution and the Right of Nations to Self-Determination- Lenin- chapter 2

[19] Founding Director of the Liechtenstein Institute on Self-Determination

[20]  International and Comparative Law Quarterly/Volume 43/Issue 04/ October 1995, Robert McCorqudale Page 866


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