ONE of Scotland’s foremost lawyers has provided analysis of the “very interesting” new legal opinion on the Supreme Court’s independence referendum ruling, which was commissioned by Alba.
MP Neale Hanvey instructed Professor Robert McCorquodale, of Brick Court Chambers and a member of the United Nations’ working group on business and human rights, to produce a legal opinion on the court’s ruling that Scotland could not hold an independence referendum without Westminster consent.
McCorquodale said: “In my opinion, the Supreme Court in the Scottish referendum reference case made two significant mistakes in its understanding of the application of international law in respect of the right to self-determination.”
His specific focus was on the court’s ruling that the “right to self-determination (which they, incorrectly, call the ‘principle’ of self-determination) does not apply here”.
McCorquodale further argued that there were international legal routes through which Scotland could secure independence – but said they were very limited and “most possible routes require consent by the UK Government”.
He said: “The only possible international legal route available for the people to Scotland to bring their claim for the right to self-determination by secession is through the support of States for an Advisory Opinion to the ICJ [International Court of Justice]."
Writing on Twitter, KC Roddy Dunlop, the dean of the Faculty of Advocates, said the opinion was “very interesting” and offered his thoughts.
The opinion obtained by @JNHanvey is very interesting. https://t.co/XEziFW7Zlp Some thoughts: 1: the opinion does not say UKSC was wrong as a matter of domestic law. 2: even if it did, that would be irrelevant, as a decision of UKSC is final and binding unless / pic.twitter.com/hA03o9C8ke
— Roddy Dunlop KC (@RoddyQC) June 21, 2023
Firstly, he said that McCorquodale did “not say UKSC was wrong as a matter of domestic law”, adding: “Even if it did, that would be irrelevant, as a decision of UKSC is final and binding unless reconsidered by UKSC itself with a higher number of judges. That seems unlikely.”
He went on: “It recognises that secession is difficult but not impossible. I think the Prof is right to envisage the ICJ route as likely to be difficult (and phew..) it places no reliance on the CoR [Claim of Right].”
In his analysis, Dunlop went on: “The main proposed solution is ‘through a convention of elected and diverse representatives from across Scotland with a clear majority in favour’.
“What is unclear is as to how such a convention could be set up. If pro-Union parties declined to be involved, which seems likely, then the convention would not be representative of all the people of Scotland.
“Moreover, how an election to such a convention might lawfully take place is not explained, and is (to me at least) unclear.
“Nevertheless, this is a very interesting contribution to the discussion of Scotland’s future,” Dunlop concluded.
You can read McCorquodale’s full legal opinion here.
