THE Supreme Court’s rejection of the argument that Scotland has the right to self-determination in international law is “very problematic”, according to a constitutional expert.
Michael Keating, emeritus professor of politics at the University of Aberdeen, said it was expected the judges would “adhere to the letter of the law” rather than look at broader constitutional issues.
But he argued this risks undermining “conventions and understandings” on which the UK’s “largely unwritten” constitution depends.
Writing in a blog post for Edinburgh University’s Centre on Constitutional Change, he said: “Sometimes legal clarity can get in the way of the margin for interpretation that our constitution gives for politicians to negotiate ways of out deadlocks.
“The way is now open for the UK Government to say that there is no time or way for Scotland to exercise its acknowledged right of self-determination.”
Keating (above) said two of the three elements of the Supreme Court judgment were “unsurprising” – that the court did not say it was too early to make a ruling on the proposed legislation for a referendum and that such a vote, even if consultative, would affect the Union.
But he said the decision to reject an argument put forward by the SNP in a written submission to the court was “very problematic”.
Keating said: “International laws is not at all clear on this matter but there is a body of opinion that secession is only permissible in the case of colonies or where there has been manifest oppression of a people. This does not apply in the case of Scotland.
“In making this argument, the Supreme Court invoked the judgment of the Supreme Court of Canada when it was asked by the Government of Canada whether Quebec had the right to secede.
“As the UK Court notes, the Canadian Court ruled that Quebec did not have that right.”
However, Keating went on to say that the court did not mention a further aspect of the Canadian judgment – invoking democratic principles – which stated that “if Quebec or any other province did vote for independence by a clear majority on a clear question, the Government of Canada would be bound to negotiate”.
“The UK Supreme Court, on the contrary, argued that, precisely because a referendum would be an expression of the democratic will of the Scottish people, it would have political consequences and therefore be illegal,” he said.
Keating said denying a referendum on these grounds comes “close to denying that Scotland has a right to self-determination”, adding that even Margaret Thatcher wrote that Scots “have an undoubted right to national self-determination”.
