Scotland has right to hold indyref2 without Westminster, experts argue

Academics at Cambridge University have argued holding a de facto referendum or wildcat vote are both in theory valid pathways to independence as Scots have “constituent power”.

But they have also warned either of these routes would be strewn with “political obstacles” and so reaching a “divorce agreement” with the UK Government is ultimately the only proper path to independence.

Dr Raffael Fasel and Dr Shona Wilson Stark examined the issue of alternative routes to an independence referendum following the Supreme Court ruling that approval from Westminster is required.

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The researchers argued that different pathways do open up if an “increasingly popular idea” is considered, which the Supreme Court did not take into account – that the Scottish people possess “the power to create their own constitutional order”.

Fasel, who is an affiliated lecturer at Cambridge University’s law faculty, said: “Constituent power is a concept that was more or less used for the first time at the time of the French Revolution when political thinkers were trying to make sense of the changes that were happening with this revolution taking place.

“They were trying to find ways of explaining how really 98% of the French people could create their own constitution.

“Breakaway is perhaps not the right word here – because they were still operating within France – but they changed the constitution from an absolute monarchy to what turned out to be something closer to a sort of constitutional monarchy in the end.

“The main point is that it was a concept that was developed to make sense of these changes – where it was now possible to say, ‘Look, the people want to give themselves the new constitution, and they can do so because they are the ultimate source of authority’.”

In a paper published by the Social Science Research Network (SSRN), the researchers have concluded that the Scottish people “should indeed be viewed as the bearer of constituent power”.

From this standpoint, both a de facto and an unauthorised referendum can be in principle, “two alternative quasi-legal pathways to Scottish independence”, they found.

However Wilson Stark, assistant professor at the law faculty at Cambridge University, said: “The theory and the practicalities are quite different.

“Especially when we consider Brexit – because Brexit obviously changed everything and there is the idea of independence being quite importantly, to go back into the EU.

“It’s absolutely crucial that this vote would be recognised by the international community.

“And that’s one of the key sticking points that we identified is that there are no shortcuts to the recognition by the international community.”

While highlighting the SNP has emphasised it will not pursue this route, the academics say a wildcat referendum could be used as an expression of constituent power – but point to the example of Catalonia to argue why this is unlikely to succeed.

In the case of a de facto referendum, the researchers said it would have to meet certain conditions so that there is as little doubt as possible that the will of the people has been expressed. This means pro-independence parties running on a sole commitment for leaving the UK and ideally gaining a “supermajority”, they argued.

Fasel said: “We find that there’s probably not much of a difference between a UK general election and a Scottish Parliament election because the main idea is just you need a majority of the Scottish people expressing their will clearly and that can be done through either of these elections.

“As far as majorities are concerned, the story is a bit more complicated, and that’s got to do with the fact that elections aren’t really made for the expression of people’s opinions on a substantive question.

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“So given that they’re not really designed for this, we suggest that well, even though maybe a majority could do it, really a supermajority will be ideal. Basically, the clearer the expression the better, the higher the threshold the better.”

Wilson Stark acknowledged the UK Government could ignore the result of any plebiscite election.

She said: “Our ultimate conclusion is we need political negotiations here and that is as far as we can go in terms of giving a solution, because it’s not really necessarily a workable solution at present, if people are not willing to negotiate.

“It just seems there must come a point where someone might decide actually not giving a referendum is only furthering the independence cause actually.

“But it just doesn’t seem like there’s any shortcut.”

The paper concludes that there is a “way round” the Scotland Act, but goes on to state: “If Scots want to achieve proper independence with recognition from the EU and the international community, then the only path forward is reaching a divorce agreement with the UK Government by way of political negotiation.

“That such an agreement is not beyond the realms of possibility is evidenced by the fact that the Scottish and UK Governments already managed to achieve such a ‘process of statesmanship’ with the Edinburgh Agreement, which paved the way for indyref1.”

The researchers wrote the Scottish Government has a “compelling argument” for holding another referendum due to a “material change in circumstances” since 2014, the most notable of which is Brexit.

They said: “No UK Government wishes its place in the history books to be as the Government that facilitated the break-up of the Union.

“But the current Government’s failure to negotiate with a democratically elected leader does not provide a much better legacy.

“Nor does it do anything to mend the wounds in the Union – indeed quite the opposite.”

Wilson Stark added: “We don’t necessarily take a view on the independence question – but there should be a referendum, there is a democratic mandate for a referendum, there is a material change in circumstances due to Brexit.

“How you achieve the gold standard referendum is a much harder issue.

“That boils down more to the political than the legal – whether that’s through political negotiation, whether it’s through peaceful protest or keeping the pressure on.”