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Int J Polit Cult Soc (2014) 27:47–66

DOI 10.1007/s10767-013-9164-5

Self-determination and the Use of Referendums:


the Case of Scotland

Elisenda Casanas Adam

Published online: 4 December 2013


# Springer Science+Business Media New York 2013

Abstract The Scottish Nationalist Party’s majority in the 2011 Scottish parliamentary elections
opened up a wide and interesting debate on the variety of options for Scotland’s constitutional
future (ranging from the status quo through a variety of intermediate options to full independence),
and with it, also the innovate possibility of a multi-option referendum, reflecting the preferences of
the people of Scotland. However, while the UK Government agreed that the future of Scotland’s
place within the Union was for the people of Scotland to vote on, it strongly contested the Scottish
Parliament’s competence to legislate for the referendum, thus ensuring a role for itself and the UK
Parliament in its design. After a period of negotiations, the UK and Scottish Governments signed
the Edinburgh Agreement on the 15th October 2012, enabling the Scottish Parliament to legislate
for a single question referendum, and expressing their commitment to work together in the interests
of all involved. This article begins looking at the background, legal framework and negotiations
leading up to the Edinburgh Agreement. It then argues that, while the Agreement is notably
significant and has allowed for the smooth and fast development of the process so far, by excluding
the possibility of including a third option of ‘more devolution’ on the ballot paper, it is having a
series of negative consequences for the current debate, namely that it is more limited, confusing and
uncertain, and largely unbalanced in favour of the ‘no’ side.

Keywords Scotland . Referendum . Self-determination . Independence

An outright majority at Holyrood: the Scottish people’s endorsement of the referendum

The Scottish National Party (SNP) has won the two last Scottish parliamentary elections
building up to a significant majority in 2011.1 In 2007, when it was elected in a minority

1
In the 2011 elections to the Scottish Parliament, the SNP won 69 seats, Labour 37, the Conservatives 15, and the
Liberal Democrats 5. The remaining 3 seats went to the Green Party (2) and an independent.
Lecturer in Public Law and Human Rights, Edinburgh Law School. I am very grateful to Montserrat Guibernau,
Chris Himsworth, Alberto Lopez Basaguren, Francois Rocher, Dejan Stepanovic and Stephen Tierney for
comments on earlier drafts. I am of course responsible for any remaining errors.
E. Casanas Adam (*)
Edinburgh Law School, Old College, South Bridge, Edinburgh EH8 9YL, UK
e-mail: elisenda.casanas-adam@ed.ac.uk
48 Casanas Adam

government, its manifesto contained a commitment to publish a White Paper on independence


for Scotland.2 In August of that year, it followed up on its commitment, publishing ‘Choosing
Scotland’s Future—A National Conversation’.3 It described the paper as ‘the first step in a
wide-ranging conversation about the future of Scotland’, and in it presented what, in its view,
were the three realistic choices for the people of Scotland: the existing devolution framework,
extending the powers of the Scottish Parliament and Government, and its own preferred option,
extending these powers to the point of independence. The Scottish Government then continued
to develop its proposals and published another White Paper, ‘Your Scotland Your Voice’ in
November 2009.4 This set out the intention to hold a referendum on Scotland’s constitutional
future in 2010, and, in this line, it also published a first ‘Draft Referendum Bill’.5 However, in
September 2010 the First Minister announced that the Bill would not proceed in that parlia-
mentary session, but would be an election issue for the forthcoming elections in 2011. The SNP
then entered the elections with a manifesto pledge for a referendum on Scotland’s constitutional
future. Its landslide victory in these elections, in particular in a system designed to produce
coalition governments, was largely unexpected and a strong endorsement of its proposals. The
Scottish Government made it clear it intended to hold the referendum, as announced.
This landslide victory of the SNP and its referendum proposal was especially significant, as it
happened against the backdrop of an overall review, and a process of reforms, of the devolution
settlement for Scotland. The ‘Calman Commission’ (‘Commission on Scottish Devolution’) can
be seen as the unionist parties’ (Labour, Conservatives and Liberal Democrats) response to the
SNP’s national conversation initiative. It was set up following a speech by the head of the Labour
group, Wendy Alexander, in 2007, endorsed by a vote of the Scottish Parliament, and then
secured the support of the then UK Prime Minister, Gordon Brown (Labour). The Commission’s
remit was: "To review the provisions of the Scotland Act 1998 in the light of experience and to
recommend any changes to the present constitutional arrangements that would enable the
Scottish Parliament to serve the people of Scotland better, improve the financial accountability
of the Scottish Parliament, and continue to secure the position of Scotland within the United
Kingdom”.6 It specifically excluded the option of independence. The Commission published an
interim report in December 2008 and its final report in June 2009.7 The first and main conclusion
of the reports was that devolution had been a success, that it works well in practice and that the
people of Scotland ‘welcomed the scope to have Scottish issues debated and decided in Scotland’
(p. 5). The Commission also made a series of specific recommendations, some of which were
included in a new Scotland Bill, brought forward by the newly elected in Conservative–Liberal
Democrat coalition (2010). These were designed to reform the existing provisions of Scotland
Act and in time became the new Scotland Act 2012.8 Yet as the 2011 elections seem to show,

2
In the 2007 elections to the Scottish Parliament, the SNP won 47 seats, Labour 46, the Conservatives 17, and
the Liberal Democrats 16.
3
ISBN 978-0-7559-5493-3; available at http://www.scotland.gov.uk/Publications/2007/08/13103747/0.
Accessed 1 September 2013.
4
ISBN 978- 0-7559-8114-4; Available at http://www.scotland.gov.uk/Publications/2009/11/26155932/0.
Accessed 1 September 2013.
5
Draft Referendum (Scotland) Bill [Consultation Draft] available at http://www.scotland.gov.uk/Resource/Doc/
303348/0095139.pdf. Accessed 1 September 2013.
6
For further details see http://www.commissiononscottishdevolution.org.uk/about/index.php. Accessed 1
September 2013.
7
‘The Future of Scottish Devolution within the Union: A First Report’ (2008) and ‘Serving Scotland Better:
Scotland and the United Kingdom in the 21st Century’ (2009). Both are available at http://www.
commissiononscottishdevolution.org.uk/about/index.php. Accessed 1 September 2013.
8
It received Royal Assent on the 1st May. The proceedings and documents leading to its enactment can be
accessed at http://services.parliament.uk/bills/2010-12/scotland.html. Accessed 1 September 2013.
Self-determination and the Use of Referendums in Scotland 49

these reforms did not go far enough, and they were largely overcome by the wider debate on
Scotland’s constitutional future.
Since 2007, when the SNP’s ‘National Conversation’ began, polls consistently show that
the Scottish people’s preference for Scotland’s constitutional future is spread across three
options: maintaining the status quo (in the last 3 years, 27, 21 and 24 %, respectively); an
intermediate option of further devolution, but short of independence (32, 29 and 23 %); and
independence itself (28, 43 and 35 %) (ScotCen 2013 p. 3).9 Although stressing their
preference for independence, the Scottish Government’s 2007 White Paper reflected this
division and included the discussion on extending Scottish devolution (pp. 7–18); it also
referred to the possibility of holding a multi-option referendum, including a second question
on ‘more devolution’(p. 33). In the same way, its 2009 White Paper included the discussion of
a model of ‘full devolution’ (or ‘devo-max’, p. 17) and noted that its ‘National Conversation’
had indicated support for range of proposals which reduced the reservations of policy areas
under the Scotland Act but did not eliminate them all; again, it highlighted its openness to
consider including a third option in the referendum seriously, if this were clearly defined,
noting that its inclusion in its own documents would have helped that process (pp. 187–188).
Interestingly, polls also showed that supporters of independence would still prefer more
devolution to the status quo (albeit as a second best) and therefore that, in the case of a
multi-option referendum and depending on how the questions were asked (for example, if
people were asked if they wanted the Scottish Parliament to have more powers, and if so, if
these should enable independence), the intermediate option of ‘further devolution’ could
secure around 60 % of the votes (ScotCen 2013, p. 4).10 As a result, if things did not change
substantially during the campaign, this third option seemed poised to be the one that could
generate the maximum consensus among Scottish voters in the decision on Scotland’s
constitutional future and thus with the strongest possibilities of emerging as the winning
outcome of the referendum.

A wide and open debate: options for Scotland’s constitutional future and for a referendum

The SNP’s victory in 2011 opened up a wide and interesting debate on the variety of options
for Scotland’s constitutional future, and with it, also the innovative possibility of a multi-option
referendum. These different options were located on a scale between the still developing status
quo (the new Scotland Act 2012, providing some changes to the existing settlement, was being
discussed and would then enter into force), and what can be described as ‘full independence’.
There was also, and still is, a lack of clarity on the boundaries between the different options,
and further variants have also been appearing since.11
& As noted, therefore, the ‘status quo’ option had to take into consideration the new Scotland
Bill which included some limited although not insignificant changes to the existing
framework (McLean et al. 2013, pp. 48–70). As noted also, however, these reforms

9
This data corresponds to the years 2010, 2011 and 2012. The remaining percentage for the 3 years reflects those
whose preferred option would be no devolution.
10
More specifically, a majority is in favour of the Scottish Parliament making the key decisions about taxation,
benefits, the health Service and schools. On the other hand, only around a third think that Holyrood should make
decisions about defence and foreign affairs.
11
For example, there is also a ‘devo-more’ project, being carried out by the Institute of Public Policy Research
(IPPR), which aims to develop a model of enhanced devolution for Scotland and the rest of the UK which
provides a clear alternative to independence. See: http://www.ippr.org/research-project/44/10218/devo-more-
extending-devolution-and-strengthening-the-union. Accessed 1 September 2013.
50 Casanas Adam

became largely overcome by the new debates, and even the unionist parties that had
brought them forward started to promise another review of the devolution settlement and
an extension of the powers of the Scottish Parliament.
& Then came the option known as ‘devolution-plus’ (or devo-plus), which would involve
significant fiscal responsibility—maybe even up to 50 % of devolved spending, their aim
is to make each level of government accountable for raising the money they spend in
Scotland—and some new functions such as some/all welfare benefits, broadcasting or
immigration.12 This option was (and still is) supported by a cross-party, non-party
grouping, set up by the think-tank ‘Reform Scotland’.13
& A step further was the ‘devolution-max’ (or devo-max) option which would involve the
devolution of all powers to the Scottish Parliament except defence, foreign affairs,
financial regulation, monetary policy and currency. Scotland would have also full fiscal
autonomy so that all taxes in Scotland would be set and collected by Scottish authorities.
This was set out in the SNP’s (and thus, the Scottish Government) ‘National Conversation’
document of 2009 (described also as ‘full devolution’), as an alternative to independence
(Chapter 2, pp. 16–17).
& And a step further from that would be what has been described as ‘independence-lite’
(Keating 2012), as it would involve Scotland being an independent state outside UK, but
sharing the Queen as a head of state, being in a ‘social union’ and also in a currency and
monetary union with the rest of the UK, and in close collaboration in a variety of other
policy areas (Scottish Government 2009, pp. 17–21; Salmond 2012). This was the SNP’s
(and Scottish Government’s) proposed version of ‘independence’, its first option on the
ballot paper, and therefore its first and preferred outcome of the referendum.
& Finally, there was the ‘full independence’ option, that is, the option of Scotland becoming a
fully independent state without retaining any of the links above. This was defended by
minority of more hard-line SNP/independence supporters, which argued that ‘indepen-
dence-lite’ was not really independence at all (for example, Kane 2011)
The variety of options above and, in particular, the need to define the ‘third option’, meant
that the initial debate on Scotland’s constitutional future was notable open and comprehensive,
including the defence of both ‘full independence’ and ‘the status quo’, but also a more nuanced
and detailed consideration of the advantages and disadvantages of the further devolution of
specific competence areas or functions that were considered of importance by the people of
Scotland (as an example, see Taylor 2012 and Mullen and Tierney 2012).

A more developed understanding of the right to self-determination?

This variety of options for constitutional change that move away from the black and white
division between fully separate statehood for Scotland and a centralised unitary state for the
UK can be seen as a reflection of the contemporary geopolitical landscape, characterised by an
increasing overlap and interdependence between polities at an international, regional, national
and sub-national levels, resulting from the erosion of the traditional sovereign nation states
(Tierney 2004; Keating 2012; Walker 2013a). In this new landscape, claims of sub-state

12
‘A New Union. Third report of the Devo Plus Group’ (2012), available at http://www.devoplus.com/storage/
documents/A%20New%20Union.pdf
13
It states that ‘Its objective is to set out policies in Scotland that deliver increased economic prosperity and more
effective public services based on the traditional Scottish principles of limited government, diversity and personal
responsibility.’ See http://www.reformscotland.com/. Accessed 1 September 2013.
Self-determination and the Use of Referendums in Scotland 51

national movements are articulated in more nuanced, case-specific intermediate proposals,


which are put forward as their preferred constitutional settlement, and citizens see indepen-
dence and different forms of devolution as a spectrums of options, rather than making a sharp
distinction between them (Tierney 2004; Keating 2001). This can be observed in Scotland,
where opinion polls show consistently that the preferred option of the people is some model of
substantially stronger devolution without attaining full independence, but also in national
movements in other developed countries, such as the Breton or Catalan movements (Keating
2012). In the case of Scotland and the UK (as in Catalonia), the reflection of this new geo-
political landscape can also be observed with regard to the regional level in the fact the
membership of the European Union has been one of the central issues of discussion in the
referendum context, with the Scottish Government proposing a new relationship with the rest
of the UK but continuing fully within the European Union, and the UK Government replying
that this would not be automatic, would require re-application and accession and would mean
the renegotiation of its position. The relationship with other orders of authority, and in
particular the EU, is also fundamental to the choices on Scotland’s constitutional future
(Tierney 2013d, pp. 20–26). Highlighting this complexity and delicate balance between the
different overlapping levels of authority, the European Union institutions have in general been
very careful not to get involved in what they consider an internal constitutional issue.14
More specifically, in the case of Scotland and the UK, this debate also responds to the
traditional flexibility that has characterised the development of devolved power to Scotland
and the other nations of the UK, which Neil Walker has recently described as ‘so evolved
rather than designed, so uneven rather than symmetrical and so fluid rather than fixed’ (Walker
2013a, p. 8). This flexibility of the model has also been highlighted recently by Stephen
Tierney as the fundamental reason for its success (Tierney 2013a). In this context, Neil Walker
notes that ‘the choice between remaining in the UK or becoming an independent state cannot
be understood in the classically binary sovereigntist terms’ and that the complexities of the
new constitutional options involve profound weighing and balancing (Walker 2013a, p. 8).
In the light of these debates, Michael Keating has suggested it might be more helpful to
develop an understanding of self-determination, not only as a right to secession but also as a right
to negotiate a minority nation’s’ position within the state and international order. This is also in
line with the emerging principle of addressing these issues as matters of democracy, rather than as
questions of nationality or ethnicity (Keating 2012, p.15). Keating himself notes that the main
argument against such an understanding of further autonomy as a right such as self-determination
is that it will require negotiation and agreement between both sides, but he rightly contends that
independence would also require a substantial amount of bargaining between the new and
remaining states (Keating 2012, p.15). This has been made very clear in initial analysis of the
complex negotiations that would necessarily follow if Scotland did vote to become independent
and had to extricate itself from the rest of the UK (Mullen and Tierney 2012, pp. 14–24).
The Scottish Government’s proposal for a multi-option referendum seemed to precisely
reflect this more developed understanding of the right to self-determination of the Scottish
people as to include secession or a right to re-negotiate their position within the UK, providing
for voters to be able to choose between the status quo, further devolution and independence.
This in turn would allow for an encompassing debate on Scotland’s constitutional future, and a
variety of options more in accordance with the existing interdependent multilevel context and
what seem to be the majority of the people of Scotland’s preferences.

14
There have, however, been some exceptions. See Sir David Edward challenging the opinion of the European
Commission president over the status of an independent Scotland in the EU. http://www.bbc.co.uk/news/uk-
scotland-scotland-politics-20757450. Accessed 1 September 2011.
52 Casanas Adam

A referendum ‘made in Scotland’: constrained from the start?

The Scottish Government’s promises for a referendum and the above debates on the different
options for Scotland’s constitutional future were, however, constrained by the framework of
devolution and the provisions of the Scotland Act 1998, which put the Scottish Parliament in a
significantly different position to that of the Parliament of the UK (Himsworth, and O’Neill 2009,
pp. 101–146). The Scotland Act 1998 provides for a Scottish Parliament of limited powers,
restricted by the list powers reserved to the UK Parliament (‘reserved powers’) included in the Act
itself, and compliance with EU law and ECHR rights.15 It also states clearly that ‘An Act of the
Scottish Parliament is not law so far as any provision of the Act is outside the legislative
competence of the Parliament.’16 To ensure that they do not act outside their powers, the Scotland
Act also includes a variety of (pre and post enactment) mechanisms to block and also review their
legislation, which in final instance can be struck down by the courts.17 What is also interesting to
note here is that challenges may be brought by the UK institutions, but also individuals that are
affected by the statute. As a result, any legislation for a referendum on Scotland’s constitutional
future enacted by the Scottish Parliament would be vulnerable to a diversity of challenges.
This is an important distinction from the position of the UK Parliament, whose legislation is
not subject to this constitutional ‘ultra vires’ review by the courts. The ‘sovereign’ UK parliament
is free to legislate on all matters of the UK constitution (Bradely, and Ewing 2011, pp. 61–77).
Interestingly, however, it has developed a convention (‘Sewel Convention’) for when it wants to
legislate in an area devolved to the Scottish Parliament or which affects the Scotland Act 1998
itself, which is that it must consult the Scottish Parliament and obtain its consent (Cairney and
Keating 2004). This procedure has been used extensively since 1999, but its importance became
notably evident in the passage on the Scotland Act 2012, when the Scottish Parliament refused to
give its consent and the UK Parliament made clear that it wasn’t going to enact the bill without
it.18 This again was a result of the new balance in the Parliament after the 2011 elections, where a
stronger SNP majority refused to consent to a final version of a bill that had received an initial
approval in the previous session (this had included the condition that it would be presented before
the Scottish Parliament again once it had been considered and amended by both houses of the UK
Parliament). After some negotiation—and the incorporation of some of the Scottish Parliament’s
requests—both Governments reached an agreement, consent was granted and the bill was finally
enacted. Aside from the referendum, any reform of the devolution settlement would, at least
politically, require the collaboration and consent and of both Parliaments.
Within the above framework, the Scotland Act 1998 is notably silent on the issue of
referendums, thus allowing the Scottish Parliament to legislate in this field and hold referen-
dums for devolved matters. It must be noted that the general regulation of referendums
included in the Political Parties, Elections and Referendum Act (PPERA) 2000 only applies
to referendums organised by the Westminster Parliament, and therefore would not apply in this
case. The contested issues, however, became ‘independence’ and ‘more devolution’ them-
selves. First, because the list of reserved powers in the Scotland Act 1998 includes those
relating to ‘the Union of the Kingdoms of Scotland and England’19; and second, because the
Act also provides that it cannot be unilaterally modified by the Scottish Parliament.20 The

15
Scotland Act 1998, section 29 together with Schedule 5.
16
Scotland Act 1998, section 30
17
Scotland Act 1998, sections 31–36 and Schedule 6.
18
The proceedings and relevant documents are available at http://www.parlamaid-alba.org/
parliamentarybusiness/CurrentCommittees/29883.aspx. Accessed 1 September 2013.
19
Scotland Act 1998, Schedule 5 (1), part 1.
20
Scotland Act, Schedule 4 (4).
Self-determination and the Use of Referendums in Scotland 53

central question then became, if the Scottish Parliament couldn’t legislate for independence or
further devolution, could it legislate for a referendum on these issues?

Different designs for a referendum for Scotland

In response to the SNP’s surprising landslide victory, the UK Government stated clearly that it
wanted to keep the UK together but, acknowledging the SNP’s significant victory in the
elections, it agreed not to stand in the way of the referendum. In other words, and in its own
words, it accepted that ‘the future of Scotland’s place within the UK was for the people of
Scotland to vote on’.21 However, from the beginning it also became clear that, if the
referendum was going to go ahead, the UK Government wanted a say in the ‘how’, ‘when’
and ‘under what conditions’ the referendum should be carried out, and that it had a different
position on certain aspects of the referendum from that of the Scottish Government. As will be
seen below, by strongly contesting the competence of the Scottish Parliament to legislate for
the referendum, it put forward its case for the necessary intervention of the UK Parliament and
Government in the process, thus ensuring some role in the referendum’s design.
In January 2012, both Governments held parallel consultations on a Scottish Referendum on
Independence. The UK Government made the first move with its White Paper ‘Scotland’s
Constitutional Future’, described as ‘A consultation on facilitating a legal, fair and decisive
referendum on whether Scotland should leave the United Kingdom’.22 It was published on the
10th January and closed on the 9th March. In this document, the UK Government presented its own
view on how the referendum should be carried out and asked for the views of the people of
Scotland. The consultation also had an element of challenge about it, noting in the preface that
‘there is a great uncertainty about the Scottish Government’s proposals for a referendum. We do not
know when a referendum will happen, or what question will be asked. Most importantly, the UK
Government has grave concerns that the Scottish Government’s proposals for a referendum would
not be legal’ (p. 5). In the foreword they insisted again on the same point, declaring that ‘we had
been asking the Scottish Government to explain is position since May last year, but the Scottish
Government has not set out a formal view on the issue of legal competence nor come forward with
any further proposals for a referendum’(p. 6). The Scottish Government responded with its own
consultation, ‘Your Scotland. Your Referendum’, which included a draft referendum bill attached.23
This was published on the 25th of January and closed 2 months after UK Government’s, on the
11th of May. Here, the tension between both governments can also be seen, as it made clear that any
UK legislation to aid the holding of the referendum would require the consent of the Scottish
Parliament and ‘should be made without conditions’ (p. 5). It also declared that ‘The Scottish
Government’s electoral mandate to hold a referendum is clear. It is for the Scottish Government to
propose to the Scottish Parliament the timing and terms of the referendum and the rules under
which it is to be conducted.’ And that ‘The Scottish Parliament should decide these matters’.
Regarding the design of the referendum, the first and most controversial difference between
the positions of both governments’ was on whether the Scottish Parliament could legally
legislate for the referendum within the existing devolution framework (the ‘legality issue’).
The UK Government stated that it believed that it was not within the Scottish Parliament’s

21
This was then included formally in the ‘Preface’ of their consultation (see below).
22
‘Scotland's constitutional future’, Cm 8203—Official Documents, available at http://www.official-documents.
gov.uk/document/cm82/8203/8203.pdf. Accessed 1 September 2013.
23
‘Your Scotland—Your Referendum—A Consultation Document’, ISBN: 978-1-78045-633-1, available at
http://www.scotland.gov.uk/Publications/2012/01/1006. Accessed 1 September 2013.
54 Casanas Adam

powers, because it would relate to the ‘Union of the Kingdoms of Scotland and England’, which
is a reserved matter under Part 1 of Schedule 5 of the Scotland Act (in support of this view, see
Tomkins 2012). Its line of argument was based on sec. 29 of the same Act, which establishes
that ‘whether a provision relates to reserved matters is to be determined by reference to its
purpose, and in determining its purpose, it is necessary to have regard to a range of factors,
including the effect of the provision in question’. According to the UK Government, the
purpose of the legislation would be to obtain independence for Scotland, as this would be the
effect of the ‘yes’ vote, and therefore would relate to ‘the Union’ (and thus be ‘ultra vires’). On
the other hand, the Scottish Government argued that the Scottish parliament was competent to
legislate for the referendum and highlighted that much independent legal opinion supported its
view (see, for example, Anderson et al. 2012). Arguments in this sense stressed that the purpose
of the referendum would be simply to consult the Scottish citizens on their preferred option for
Scotland’s constitutional future, and not independence itself (and was this not ‘ultra vires’). It
was also argued that considering its purpose to be attaining independence would be to confuse
the intention of the Scottish Parliament, enacting the legislation, with the intention of the
Scottish Government. While the Government was clearly in favour of independence as its first
option, there may be different reasons why different members of parliament would endorse the
Act (for example, to further democracy, or, foreseeing a ‘no’ vote, to put an end to the debate).
Other differences between the positions of both governments included the overview of the
process, the timing, the voting franchise, and fundamentally, the number of questions the referen-
dum should include. First, while both governments agreed that the framework for the referendum
be based on the UK Parliament’s ‘Political Parties, Elections and Referendums Act 2000’, the UK
Government also wanted to be regulated and overseen by the (UK) Electoral Commission. The
Scottish Government, however—although going back on its initial proposal of creating of a
Scottish Referendum Commission to oversee and report on the referendum and regulate campaign
expenditure—considered that it should be regulated by the Electoral Commission, but reporting to
the Scottish Parliament and not to Westminster, and that its management should correspond to the
Electoral Management Board for Scotland, established by the Scottish Parliament in 2009. Second,
the UK Government’s consultation noted that they would like the referendum to be held ‘sooner
rather than later’, as ‘the continuing uncertainty about Scotland’s future is damaging to Scotland
and that until this issue is resolved this uncertainty will continue to grow’ (p. 18). They suggested
that once the legislation was introduced, the referendum could be held in the period of a year. On
this issue, the Scottish Government was clear that it wanted to hold the referendum in autumn
2014, so as to ‘ensure that there is sufficient time for the fullest debate on what will be the most
important decision in Scotland in 300 years’ (p. 13). Third, the UK Government was in favour of
using the Scottish Parliament franchise (those allowed to vote in Scottish Parliament elections), as
it achieved the right balance of clarity, consistency and transparency. It warned that creating a new
franchise could lead to complications and risk the perception that changes were being made to
further one or other outcome (p. 17). The Scottish Government, on the other hand, wanted to also
extend it to 16–17 year olds, so they could also vote in the referendum. Here, it noted that ‘Denying
16 and 17 year olds the vote risks them becoming disengaged from the political process at the very
point society expects them to take on rights and responsibilities’ and that it would ‘encourage
participation by young people in Scotland’s democratic processes and would give them a voice in
matters that affect them’ (pp. 20–21).
Finally, and fundamentally, as will be argued below, the UK Government stated that it
favoured a referendum with a single, straightforward question on independence. In this sense,
it noted that it considered that the Scottish Government’s proposal to ask two questions, one on
further devolution and one on independence, ‘was not right’, as these were two entirely
separate constitutional issues that should be considered separately; if not, it argued, they could
Self-determination and the Use of Referendums in Scotland 55

lead to four different outcomes, therefore four different campaigns, which would undermine
the clarity required for such an important decision (p. 19). The Scottish Government, however,
made clear that while its preferred policy was independence, its position was that it was willing
to include a second question of further substantial devolution in the referendum. Here, it
recognised that there was support across Scotland for increased responsibilities for the Scottish
Parliament short of independence, and that it has already set out a detailed proposal for a model
of full devolution (or devo-max) in previous publications. It also noted that prior two-question
referendums had been held successfully in the UK and that there were other examples
internationally (p. 15).
Despite all the differences above, both the Scottish and UK Governments were in agree-
ment on avoiding having to take the issue, and in particular a possible referendum bill or act, to
the courts, and on avoiding the possibility of it being open to legal challenge. Both govern-
ments stated so clearly in their consultations, opening therefore a door for a possible negotiated
solution. In order to avoid a possible legal challenge to the referendum Bill/Act, both
governments were also in agreement on using the mechanism of a Section 30 Order (Section 30
of the Scotland Act 199824) to provide the Scottish Parliament with new powers to legislate for
the Scottish Government to hold the referendum. This would require the agreement of both the
UK and Scottish Governments and also the approval of the Scottish Parliament and of both
Houses of the UK Parliament, and therefore a degree of compromise on both sides on the
issues above. The other alternative that had been put forward in the UK Government’s
consultation was for the UK Parliament to legislate for the referendum enabling the UK
Government to hold it, and also giving it the powers to set the date and the question.
Notwithstanding these two fundamental points in common, at the time of the consultations
there did seem to be a strong possibility that the Scottish Government would simply go ahead
with its own programme and the matter would end up in the courts.

The Edinburgh Agreement

Coming as a surprise to many, after a period of negotiations the UK and Scottish Governments
signed the Edinburgh Agreement on the 15 October 2012.25 It states that both governments
have agreed “to work together so that a referendum on Scottish independence can take place,
and that this should: (1) have a clear legal basis; (2) be legislated for by the Scottish
Parliament; (3) be conducted so as to command the confidence of parliaments, governments
and people, and (4) deliver a fair test and a decisive expression of the views of people in
Scotland and a result that everyone will respect”. The specific details of the agreement were
laid out in a Memorandum of Understanding and a draft Section 30 Order under the Scotland
Act, which were also part of the agreement (for an interesting discussion of the effects of these
different documents see Bell 2012 and McHarg 2012b). In this way, as the agreement notes,
the order would put beyond doubt that the Scottish Parliament could legislate for that
referendum, and it would not be open to legal challenge on competence grounds. As part of
the agreement, both Governments expressed their commitment to working together on matters

24
Orders made under section 30 of the Scotland Act 1998 allow for modifications to be made to Schedule 5 to
the Scotland Act, which lists those matters that are reserved to the UK Parliament, and allows the Scottish
Parliament’s legislative competence to be altered by removing or updating existing reservations, or by adding
new ones.
25
‘Agreement between the UK Government and the Scottish Government on a referendum on independence for
Scotland’, available at http://www.scotland.gov.uk/About/Government/concordats/Referendum-on-
independence. Accessed 1 September 2013.
56 Casanas Adam

of mutual interest and to the principles of good communication and respect; and also to
continue to work together constructively in the light of the outcome, whatever it was, in the
best interests of the people of Scotland and the rest of the UK.
Regarding the issues of contention seen above, first the Edinburgh Agreement enabled the
Scottish Parliament to legislate for a referendum that would take place before the end of 2014;
it noted that the date could be set by the Scottish Parliament in the Referendum Bill, so long as
it didn’t coincide with another poll provided for by legislation of the Scottish Parliament.
Second, the Referendum Bill introduced by the Scottish Government would create a franchise
for the referendum and all those entitled to vote in Scottish Parliamentary and local elections
(this includes British, Irish and qualifying Commonwealth citizens and European Union
citizens resident in Scotland) should be able to vote; however, it also allowed for the possibility
of the Scottish Government setting a proposal to extend the franchise to 16 and 17 year olds,
allowing them to vote in the referendum, being then the Scottish Parliament the one to decide
in final instance on the franchise. Third, the Electoral Commission should fulfil its general
functions in respect of the independence referendum, with the exception of the conduct of the
poll and announcement of the result, which would be consistent with Scotland’s electoral
management structure and coordinated by the (Scottish) Electoral Management Board. Finally,
however, the agreement only enabled the Scottish Parliament to legislate for a referendum with
one question on independence. Within these limits, it was for the Scottish Parliament to set the
wording of the question in the Referendum Bill introduced by the Scottish Government, and
this would be subject to the review process of the Electoral Commission on its intelligibility. In
short, the UK Government agreed to all the conditions the Scottish Government wanted for the
holding of the referendum, so long as the referendum excluded the question on the ‘middle
option’, and only included one question on independence.
Both Governments presented the Edinburgh Agreement as a victory, and it is significant
that the UK Government accepted that a referendum be held for the people of Scotland to
decide if they want to become independent, and helped pave the way for it to go ahead. This is
particularly notable, for example, in comparison with the Spanish Government’s reply to
similar Catalan claims (Casanas Adam 2013). From this perspective, the agreement has been
praised as an example of dialogue and conciliation, and has been described as the most
significant date in Scottish history since the Union of Scotland and England in 1707 (Devine
2013). However, from the perspective of the Scottish people deciding their own constitutional
future, it presents both enabling and constraining aspects, as will be considered in more detail
below (in a similar sense, McHarg 2012a).

Enabling Aspects of the Edinburgh Agreement—the Process so Far

The aim of this article is not to undermine the positive aspects of the Edinburgh Agreement, of
which there are undeniably many. The Edinburgh Agreement provided for the transfer of legal
powers to the Scottish Parliament to enact a referendum bill, excluding the possibility of it
being challenged in the courts on competence grounds. This gives important legal certainty to
the referendum legislation, meaning that it will not be challenged by the UK Government, but
also that it is not open to challenge in the courts on those grounds by individuals who will be
affected by it. It is also important to note that it allows for the referendum to be largely ‘made
in Scotland’, and by representatives of the Scottish people. This was a preferable option to the
framework of the referendum being provided for by legislation of the UK Parliament. Within
the conditions established in the agreement and subsequent draft section 30 order attached, it
also leaves a scope of discretion to the Scottish Government and Parliament to design the
Self-determination and the Use of Referendums in Scotland 57

referendum, and it must be noted that many conditions included in the agreement are actually
those that had been put forward by the Scottish Government itself (although by fixing them in
the Section 30 Order they will not be able to amend them).
The positive aspects of the above can be clearly observed in the smooth and fast develop-
ment of the process so far, starting with the approval of the draft section 30 order by the
Scottish Parliament, the House of Commons and the House of Lords and its final approval by
the Privy Council in February 2013. The Scottish Government then introduced the ‘Scottish
Independence Referendum (Franchise) Bill, to ‘make provision for those who are entitled to
vote in a referendum on the independence of Scotland’, into the Scottish Parliament on the 11
March of the same year. This Bill had to be passed quickly to ensure there was sufficient time
to provide for the registration of new voters, and was finally enacted by the Parliament on the
7th August. Following the above, the Scottish Government introduced the ‘Scottish Indepen-
dence Referendum Bill’ on 21 March 2013, which is currently under consideration by the
Scottish Parliament. This bill provides the specific regulation for the referendum, including
provisions on the question, the role of the Electoral Commission, the campaign, the morato-
rium period, and funding and spending rules, and is expected to be passed in November
(Tierney 2013d).
The Scottish Government and Parliament have also made use of their scope of freedom to
design their referendum, and the UK Government has not intervened or tried to influence the
process further. On the 8th of November 2012, the Scottish Government submitted its proposed
referendum question, ‘Do you agree that Scotland should be an independent country?’, to the
Electoral Commission for its advice on the wording and intelligibility of the question. The
Commission published its report in January 2013, recommending changing the way the
question was asked, to make it more neutral (their research showed that the initial formulation
could lead people towards voting yes).26 Their proposed version, ‘Should Scotland be an
independent country? yes/no’, was accepted by the Scottish Government, and included in the
Referendum Bill above. The Scottish Government also included 16 and 17 year olds in the
voting franchise bill, and this was enacted by the Scottish Parliament, despite the opposition of
the Conservative Party in Scotland. And on the 21st of March, the First Minister, Alex Salmond,
announced that the date of the referendum would be the 18th of September 2014. All the above
were largely uncontroversial, with the exception of the fact that the franchise bill (now Act)
excluded all convicted prisoners from voting in the referendum.27 As is well known, the UK has
been declared in violation of the ECHR on various occasions by the European Court of Human
Rights for its blanket ban on prisoner voting, and this is therefore also a high profile issue in
Scotland.28 In this case, the decision to exclude prisoners was taken exclusively by the Scottish
Government, and they refused to change their position although various amendments were put
forward in this sense.29 The Act was finally passed, but there is a strong possibility that it will be
challenged on human rights grounds by convicted prisoners seeking to establish their right to
vote (on this issue, see Green 2013; Reid 2013 and Tierney 2013c).
26
The Electoral Commission (2013), ‘Referendum on Independence for Scotland: Advice of the Electoral
Commission on the Proposed Referendum Question’; it also published (2013), ‘Electoral Commission Advice
on Spending Limits for the Referendum on Independence for Scotland’. Both are available at http://www.
electoralcommission.org.uk/?a=149742. Accessed 1st September 2013.
27
Section 3 of the Bill (now Act) replicates the blanket ban on voting by convicted prisoners in Parliamentary
and local government elections maintained in UK law by the Representation of the People Act 1983, s3.
28
The European Court of Human Rights has declared that these blanket bans are a violation of the right to vote
protected by Article 3 of Protocol 1, ECHR (A3P1) because of their disproportionate nature in Hirst v UK (No.
2), Case NO. 74025/01 (2005); Greens & M.T. v UK Case Nos. 60041/08 & 60054/08 (2010).
29
The proceedings and documents are available at http://www.scottish.parliament.uk/parliamentarybusiness/
bills/60464.aspx. Accessed 1 September 2013.
58 Casanas Adam

In addition to the above, the Edinburgh Agreement and drafting and approval of the
Section 30 order has involved both levels of Governments (UK and Scotland) and also of
Parliaments in the designing of the framework of the referendum. This means that the general
outline for the referendum process has been endorsed by the representatives of the people of
Scotland but also of the rest of the UK, thus giving it a wide legitimacy and appearance of
fairness and neutrality. This initial agreement on the basic aspects of the process and over the
supervisory mechanisms also means that they will hopefully not be contested in the future
months, and therefore, the debate can be centred on the more substantive issues related to the
different options. Moreover, the agreement includes the commitment of both governments to
work together on matters of mutual interest and to the principles of good communication and
respect. This is of fundamental importance in a referendum where the different governments are
going to be on different sides of the debate. The commitment of both governments in the
agreement also extends to working together constructively in the light of the outcome, whatever
it is, in the best interests of the people of Scotland and of the rest of the UK. Again, this is of
fundamental in the current UK/Scottish context where the outcome is of such constitutional
significance and could result in the break up of the UK, as it will ensure the ‘losers’ consent’ to
the results of the referendum, once the citizens of Scotland have cast their vote.
Interestingly, in giving its advice on the proposed question, the Electoral Commission also
added that their research showed that people wanted more information about the pros and cons of
independence before polling day, in order to make an informed choice on how to vote.30 Noting
that the Edinburgh Agreement did not include steps to be taken following the poll, it recom-
mended that the UK and Scottish Governments should clarify what process will follow the
referendum in sufficient detail to inform people what will happen if most voters vote ‘Yes’, and
what will happen if most voters vote ‘No’. The Electoral Commission also stated that it intended
to review the state of preparations for the delivery of the referendum and make a public statement
to the Scottish Parliament by autumn 2013, which will also be an opportunity to report on
whether both Governments have been able to agree on a joint position. However, this may have
highlighted the limits of cooperation in a situation such as this. In response, the Scottish
Government published ‘Scotland's Future: from the Referendum to Independence and a Written
Constitution’, which set out a two-stage process (transitional period—constitution drafting; for a
discussion, see Tierney 2013e; Lang 2013; McKerrell 2013) that would follow a ‘yes’ vote.31 It
has also announced it will publish a White Paper on its proposal for independence in autumn
2013, and has already put forward some of its ideas, including plans for a currency union and a
possible social union with the rest of the UK. The UK Government also responded, announcing
the beginning of its ‘Scotland Analysis’ publication programme, to inform the debate about
Scotland’s constitutional future, analysing Scotland’s place in the UK and how it contributes to
and benefits from being part of the UK. Its first paper in the series focused on the
EU/international consequences of independence for Scotland, warning that it would not inherit
any of the UK’s current memberships or agreements (it included a report by two very prominent
professors of international law, Boyle and Crawford 2013).32 With regard to any discussion on
internal arrangements, it made clear that ‘Unless people in Scotland choose otherwise, the UK
Government will continue to be one of Scotland’s two governments and cannot enter into

30
(2013), ‘Referendum on Independence for Scotland: Advice of the Electoral Commission on the Proposed
Referendum Question’, p. 36.
31
ISBN: 9781782563815, available at http://www.scotland.gov.uk/Publications/2013/02/8079. Accessed 1
September 2013.
32
‘Scotland analysis: Devolution and the implications of Scottish independence’, Cm 8554, available at
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/79407/Report_excluding_
annexes_Independan…__2_.pdf. Accessed 1 September 2013.
Self-determination and the Use of Referendums in Scotland 59

discussions that would require it to act solely in the interests of one part of the UK’ (p. 7). In a
context where the majority of people are in favour of some variant of devolution (from the status
quo to wanting more powers devolved), uncertainty about what independence, and the process it
would follow, would involve plays in their favour.

Constraining Aspects of the Edinburgh Agreement—a limited, Confusing


and Unbalanced Debate

As seen above, therefore, the Edinburgh Agreement has paved the way for the smooth and
largely uncontested regulation of general process and supervision framework, which is
more or less completed and in place, and has ensured the cooperation between both levels
of government involved. However, it also had a series of constraining effects on the
exercise of the right of the people of Scotland to decide their own future that are starting
to become more obvious now that the debate is moving on to the more substantive issues.
The UK Government agreed that the future of Scotland was for the people of Scotland to
decide on, but this did not include fully defining the framework in which this decision
would be made. Therefore, although the Scottish Parliament is designing its own referen-
dum on independence, it is doing so within the constraints imposed by the UK level, and
the Scottish Government had to agree not to include a second question from the ballot
paper in order to allow the process to go ahead. From the perspective of the citizens of
Scotland, the design of the referendum very much a ‘top down’ elite process, negotiated
and decided on by the representatives of the two governments behind closed doors
(Tierney 2013b). ‘Elite control’ is one of the criticisms that is often made of referendums
and, from this perspective, there is a notable contrast with other comparative experiences
where different modes of citizen participation and deliberation have been use to help better
define the issue at stake and frame the question (Tierney 2012, pp. 98–128). Most
importantly, the Edinburgh Agreement has restricted the debate to a black or white, yes
or no question independence, without allowing for the consideration of intermediate
options such as ‘devo’max’ or ‘devo-plus’. As seen above, opinion polls consistently
show that some model of devolution short of independence but consistently stronger than
the status quo is the favoured by a significant number Scottish voters, and the option that
could secure a majority for constitutional change. But this option has now been removed
from the decision that will be put to the voters on the day of the referendum.
As noted, these constraining aspects are becoming more evident, and are having a
negative effect of the debate on Scotland’s constitutional future. As is explained in more
detail below, as a result of the non-inclusion of a third option in the referendum, the debate
has become much more limited, confusing and uncertain, and largely unbalanced.

A Limited Debate

The first consequence of the non-inclusion of a third option in the ballot paper is that the
substantive debate has become much more limited. From the initial variety of options consid-
ered at the beginning of this paper, and the possibilities they allowed for, the campaigns and
arguments are now focused on defending either ‘independence’ or ‘the status quo’. This can be
seen clearly in the main documents published so far by both sides and the issues on which the
debate has been centred. The Scottish Government has set up a Fiscal Commission Working
Group and a Working Group on Welfare to consider the implications of independence in these
fields, both of which have published their first reports, to which the Scottish Government has
60 Casanas Adam

publicly responded.33 They have also so far published reports on the positive effects of
independence for consumer protection and representation (Consumer Protection and Repre-
sentation in an Independent Scotland: Options34), maximising the return from gas and oil
(Maximising the Return from Oil and Gas in an Independent Scotland35), economic and
competition regulation in an independent Scotland (Economic and Competition Regulation in
an Independent Scotland36) and on Scotland’s public finances under the current fiscal frame-
work (Scotland's Balance Sheet37), and highlighting the restrictive nature of the status quo. In
response, as part of the ‘Scotland Analysis Programme’, the UK Government’s Scottish Office
has published documents on business and microeconomic framework, financial services and
banking, currency and monetary policy, banks, macroeconomic and fiscal performance, and
consumers of financial products, undermining the ‘yes’ side’s proposals and stressing why it
would be more convenient for Scotland to remain in the UK.38 While these issues are obviously
also of relevance and importance, the wider and more nuanced debate, which also allowed for
the discussion of the merits and disadvantages of the devolution of different specific areas, has
been lost. When so much time, effort and resources are being put into this process, and the
decision making is being conferred directly on the citizens of Scotland, it seems that the
removal of the third option from the debate has resulted in a missed opportunity to have an
encompassing debate and vote on Scotland’s constitutional future. It could be argued that
people in Scotland may now be posed with choosing between two options and sets of arguments
in their defence, none of which the majority necessarily want.39
At the same time, the ‘Devo-plus’ group, set up by the ‘think tank’ ‘Reform Scotland’
referred to above, is continuing to put forward its own model for constitutional change,
even if it is now not directly supported by any of the campaigns. They published their most
recent report in November 2012. Similarly, the Institute for Public Policy Research’s
Devo-More project is also continuing, and they most recently published ‘Funding devo
more: Fiscal options for strengthening the union’ on the 25th of January 2013. Based on
recent poll results that highlight that some voters not currently intending to vote ‘no’ are
more likely to do so if their vote helps to deliver more devolution, and that an absolute
majority of all voters want the anti-independence parties to set out their vision of more
powers for the Scottish Parliament before the referendum, the Devo-plus group is currently
trying to get these parties to sign their ‘Glasgow Agreement’ on a new Union between
Scotland and the rest of the UK, based on their proposals.40

33
On the fiscal commission, see Fiscal Commission Working Group (2013), ‘First Report—Macroeconomic
Framework’ and ‘Currency Choices for an Independent Scotland: Response to the Fiscal Commission Working
Group’ (2013); on welfare, Scottish Government Expert Working Group on Welfare (2013), ‘May 2013 Report’
and Scottish Government (2013), ‘Initial Response to the Expert Working Group on Welfare Report’ (2013). All
are available at http://www.scottishconstitutionalfutures.org/Resources/UsefulPublications/OfficialPublications/
tabid/1778/Default.aspx. Accessed 1 September 2013.
34
ISBN: 9781782568315, available at http://www.scotland.gov.uk/Publications/2013/08/2253. Accessed 1
September 2013.
35
ISBN: 9781782567769, available at http://www.scotland.gov.uk/Publications/2013/07/5746. Accessed 1
September 2013.
36
ISBN: 9781782564188, available at http://www.scotland.gov.uk/Publications/2013/02/1911. Accessed 1
September 2013.
37
Available at http://www.scotland.gov.uk/Resource/0041/00418420.pdf. Accessed 1 September 2013.
38
All these documents are available at https://www.gov.uk/government/organisations/scotland-office/series/
scotland-analysis. Accessed 1 September 2013.
39
In this sense, see the conclusion in ScotCen (2013), ‘The option not on the table’, available at http://www.esrc.
ac.uk/_images/The%20option%20not%20on%20the%20table_tcm8-26551.pdf. Accessed 1 September 2013.
40
See http://www.devoplus.com/home/2013/9/1/new-opinion-poll-voters-demand-pre-referendum-agreement-
on-a.html. Accessed 1 September 2013.
Self-determination and the Use of Referendums in Scotland 61

A Confusing and Uncertain Debate

The second consequence of the removal of the intermediate option from the ballot paper is
that, because both sides are aware that it is the general preference of the people of Scotland,
both the ‘independence’ and ‘status quo’ are being blurred in their definitions to bring them
closer to the fuzzy middle. As a result, on the one hand, the ‘Yes Scotland’ campaign is largely
led by the SNP in the Scottish Government, which, as has been seen, so far has shown to be
clearly in favour of a model of ‘independence–lite’, maintaining various links with the UK
(Walker 2013a, p.10). How far these links will go, now that its second option, ‘devo-max’, has
been taken of the ballot paper, will have to be seen when it publishes its announced ‘White
Paper on Independence’ in autumn 2013. It seems likely that it will be tempted to dress down
its proposed model of ‘independence’ to try and persuade some of the voters who may have
voted for the third option. ‘Independence’ could then be presented as the vote for the middle
option the majority of people in Scotland would support. However, any ‘independence-lite’
model will necessarily require the consent of the ‘rest of the UK’ to maintaining these links
with a newly independent Scotland and, as seen above, the UK Government has refused to
enter into any kind of discussion on these matters until after the referendum. This option, and
in particular if voting for independence will result in a model of ‘independence-lite’, is
currently notably uncertain.
On the other hand, however, the ‘Better Together’ campaign, largely led by the other
three parties in Scotland: the Conservative Party, the Labour Party and the Liberal
Democrats, has also promised that if a majority votes for remaining part of the UK, further
devolution of powers to Scotland will follow. However, these are three very different
parties which, while united against Scottish independence, have different understandings
of what should be the future of the devolution settlement for Scotland. It seems, then, that
as the debate on the more substantive issues develops, they very well may be defending
different positions and options. Here, again, it also seems that the preference largely
expressed by citizens might make them tempted to ‘dress up’ their proposed models of
‘further devolution’ to try and persuade some of the voters who may have voted for the
third option that the ‘no’ vote is the one that best represents their interests (Walker 2013a,
p. 10). So far, the Scottish conservatives have recently set up a working group on
‘Strengthening devolution’ (2013)41; the Scottish Lib-Dems have published a report on
‘Federalism as the best future for the UK’ (2012)42; and Scottish Labour has set up a
‘Devolution Commission’ (2013) to strengthen the present constitutional arrangement,
although there is a small group supporting independence.43 Again, if voting ‘no’ means
voting for one of these options, or simply for ‘more devolution’, there is a degree of
uncertainty with regard to, if, and if so, which of these options would be implemented.
Even assuming that the option put forward by the existing Conservative/Lib. Dem
coalition in Westminster will be implemented is uncertain, because elections to the UK
Parliament will be held shortly after the Scottish referendum (May 201544), and it is

41
A copy of Ruth Davidson’s speech, ‘Strengthening Devolution, Taking Scotland Forward’, is available at
http://www.scottishconservatives.com/2013/03/strengthening-devolution-taking-scotland-forward/; See also
Trench, A. (2013).
42
‘Federalism: the Best Future for Scotland: Report of the Home Rule and Community Rule Commission’
(2012), available at http://scotlibdems.org.uk/homerule http://scotlibdems.org.uk/files/Federalism%20%20the%
20best%20future%20for%20Scotland%20web.pdf
43
‘Powers for a Purpose—Strengthening Devolution: Interim Report’ (2013), available at
http://www.scottishlabour.org.uk/campaigns/entry/devolution-commission
44
This is established in Section 1 (2) of the Fixed-term Parliaments Act 2011.
62 Casanas Adam

unclear what party or parties will have a majority then. Further uncertainty is added by the
fact that any modification of the devolution settlement led by the UK level will also
require the consent of the Scottish Parliament, as seen above.

A Largely Unbalanced Debate

The third consequence of the removal the third option from the ballot paper when the
debates on the substantial issues are just beginning is that it has tipped the balance to one
of the sides. As seen above, polls consistently show that the Scottish people’s preference
for Scotland’s constitutional future is spread across three options: maintaining the status
quo (in the last 3 years, 27, 21 and 24 %, respectively); an intermediate option of further
devolution, but short of independence (32, 29 and 23 %); and independence itself (28, 43
and 35 %). When there were going to be three options in the referendum—and although
polls seemed to indicate a majority support for the intermediate option—there was still a
balance between them, and the campaigners for each had a real incentive to put forward
and convince the people of Scotland with their projects for its constitutional future. By
eliminating the third option, however, the balance was tipped to the ‘no’ side. Despite the
rise to 43 % of the votes in favour in 2011, support for independence has generally
remained around 35 %, with polls giving the victory to the ‘no’ side in different percent-
ages, and a varying number of people manifesting that they are still undecided.45 The fact
that the percentage in favour of independence has remained the same with the removal
of the third option from the ballot paper is not surprising due to the fact that the
majority of people are in favour of some model of devolution, either the status quo or
with further power devolved; as already noted above, the uncertainty linked to Scotland
becoming independent plays in favour of maintaining the status quo. It has, however,
left both sides in a very different position from which to approach and engage in the
debate.
This lack of balance between the positions of both sides in the current debate, with the
‘no campaign leading with a clear and sustained advantage, has a series of consequences
itself. First, if these poll results continue, the ‘better together’ side has no real incentive to
come up with alternative options of constitutional reform to offer the people of Scotland,
or to engage seriously in the debate on the path that Scotland’s constitutional future should
follow. This can be seen in its current campaign against Scottish independence which has been
largely focusing on undermining the arguments and proposals put forward by the ‘yes’
campaign, to the extent it has been dubbed ‘Project Fear’.46 As a result, is seems that the
promises of a third option might be left vague and uncertain, with no clear definition of what
further devolution would follow a ‘no’ vote, or a clear commitment to carry through the
reforms. But in a similar response to these continuing poll results, the ‘yes’ vote is starting to
appear as an instrument to ensure the narrowest possible defeat, which can be used to pressurise
the UK Government into agreeing to devolve more powers to the Scottish Parliament after the
referendum (Ridoch 2013). In this way, the ‘yes’ is starting to be perceived no longer as a real
vote for independence, or even ‘independence-lite’, but just a useful vote to attain constitutional
change. This adds further confusion and uncertainty to the above.

45
For an account and analysis of the different polls and their results, see ‘Whatscotlandthinks.org’, at http://
whatscotlandthinks.org/. Accessed 1 September 2013.
46
See, for example, McIintosh, L. (2013), ‘A united campaign—countdown to referendum inside Project Fear’,
The Times—Scotland, September 16th, available at http://www.thetimes.co.uk/tto/news/uk/scotland/
article3870122.ece. Accessed 1 September 2013.
Self-determination and the Use of Referendums in Scotland 63

Some Concluding Comments Looking to the Future

Would the debate on Scotland’s constitutional future currently be more open and less confus-
ing if the second option had been left on the ballot paper? It seems likely that it might have
been, but we will never know. It must be noted here that, outside the strictly political debate,
there were academic arguments put forward against a multi-option referendum, on the basis
that it would be confusing and unclear for people when going to vote, and problematic when
determining the final result (Kellner 2012; Tierney 2013f). At the same time, there were also
those who argued in favour of it, as it allowed people to discuss and choose between all existing
possible options (Henderson et al. 2012; McHarg 2012a).47 Other arguments against including
the third option in the referendum were that these were different constitutional matters to be
decided separately (UK Government 2012); yet, as the consequences of its removal highlighted
above stress, they are essentially part of the same interconnected debate. However, the
possibility of its inclusion was never the object of serious consideration and, since the
Edinburgh Agreement, the issue is no longer discussed. What seems that can be said the
inclusion of a third option on the ballot paper is that, first, it would have required a definition
of this intermediate option, and this would have brought with it a more nuanced discussion of its
different possible versions; this would have also involved the discussion of the different areas
that could, and should, be devolved, and how this could work. Second, it would have required
an agreement between both levels of government on its definition, and also a commitment from
both sides to carry out the necessary reforms, if that option had won. Third, the inclusion of the
third option would have allowed for the establishment of a third campaign, arguing specifically
for the advantages of ‘more devolution’ over both the status quo and independence options; this
is turn would have allowed for a clearer distinction between the different options, and a more
general and comprehensive debate on Scotland’s constitutional future. Finally, and most
fundamentally, it would have put the preferred option of a significant number of the people
in Scotland, and the option currently possible of securing a majority vote, on the ballot paper,
and therefore at the centre of the debate. In this sense, the referendum can be seen as a missed
opportunity to attain a more conclusive decision on Scotland’s constitutional future.
With the legal framework for the referendum now largely in place and a year to go until the
vote, the outcome is still very open. As seen above, voters are currently faced with a variety of
unclear or uncertain options, and each will finally have to make up their mind which of the
two—‘yes’ or ‘no’—will produce a result closest to their own interests and preferences. There
is a possibility that as the debate proceeds the support for the ‘yes’ vote may go up. In this case,
it seems that the different unionist groups and parties may have to further develop their
proposals for further devolution, in the case of a ‘no’ vote, and even agree on the general
lines of a joint proposal to commit to, whatever party wins the elections in 2015. The
constitutional debate will again be broadened, and we may still have the more nuanced
discussion about what additional areas could and should be devolved, and a final decision
between a version of ‘devo-plus’ and ‘independence-lite’. There is also the possibility that
people might be persuaded by the case in favour of independence in contrast with the status
quo. While not having been their initial preference, as seen above, people in favour of further
autonomy may decide that the jump is not that big between the different intermediate options
and the SNP’s version of ‘independence-lite’. In this case, those representing the people of

47
For further discussion, see also House of Commons Scottish Affairs Committee (2012) ‘The Referendum on
Separation for Scotland: a Multi-Option Question?’, 3rd Report of Session 2012–13, HC 543, available at http://
www.publications.parliament.uk/pa/cm201213/cmselect/cmscotaf/543/543.pdf. Accessed 1 September 2013.
64 Casanas Adam

Scotland after the vote will be in a very strong position to then negotiate a new settlement with
the rest of the UK.
On the other hand, if the current poll results are maintained and the ‘no’ option wins, it
seems that this will not be the end of the debate on Scotland’s constitutional future. While
excluding the ‘independence’ option for the moment (there is, obviously, the possibility that
support for independence may grow further in the future), and even if temporarily endorsing
the status quo, it seems that the people of Scotland’s desire for further devolution will remain
largely unchanged. The debate on Scotland constitutional future will then continue, and new
avenues will have to be found to facilitate constitutional change in this sense. However, unless
there is a serious commitment of the unionist parties to a defined model before the vote, this
may not be so simple. The extent of the concessions by the UK Government in the Edinburgh
Agreement to allow the referendum to go ahead can be seen as a tactical move, in the sense
that it saw this as a way of ensuring it presented itself as open and democratic, but at the same
time it secured a victory of the ‘no’ vote, and therefore of Scotland remaining part of the UK.
While their previsions may turn out to be true, in agreeing to the referendum to go ahead
without the middle option, the UK Government also took a big risk: it gave the people of
Scotland the opportunity to actually consider the option seriously and vote ‘yes’. In this way,
the UK Government was also putting forward a clear message: it would allow the Scottish
people to choose to become independent and hypothetically leave the UK, but it would not
allow them to choose more devolution, which would force it to sit down and negotiate a new
settlement for Scotland. In such a case, it is obvious that the representative of the people of
Scotland could not unilaterally decide on the new model, but it seems the UK Government
would have to take their demands seriously and negotiate in good faith.
It is undoubtedly true that any new devolution settlement, be it ‘devo-plus’, ‘devo-max’, or
another variant, would require extensive and complicated negotiations with the rest of the UK.
It would also require the final approval of the rest of the UK. However, it seems that, faced with
the possibility of Scotland becoming independent, a strong endorsement of the people of
Scotland for an intermediate option in a referendum would have offered an ideal opportunity
to find a more long-term settlement to the on-going debate on Scotland’s constitutional future.
The Edinburgh Agreement has many positive aspects, as highlighted above, but it also
deactivated an original proposal for a referendum that reflected a more developed understand-
ing of the right to self-determination of the Scottish people, more in accordance with the
existing interdependent multilevel context and the majority of the people of Scotland’s prefer-
ences. In the words, again, of Michael Keating (2012, p. 26), the people of Scotland have been
given a referendum, but not yet ‘what they actually want’, and it is unclear if the current process
can give it to them. It may be, as Neil Walker stated exactly a year before the date of the
referendum, that this all speaks to a more fluid picture and that, if we stand back, ‘we see instead
a longer struggle and a constantly receding finishing tape’ (Walker 2013b). The Agreement has,
however, served to highlight again that the intermediate options currently favoured by many
sub-state national movements may be the most complex and difficult to attain.

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