The SNP has claimed the Scottish public are ‘a people’ and compared their independence push to Kosovo's fight for self-determination in a court battle over a new referendum.
In a submission to the UK Supreme Court, which has been asked to rule on whether Holyrood can hold a new referendum without Westminster’s permission, the party argued that Scots had an “inalienable” right to self-determination which “cannot be taken away”.
The vast majority of experts believe that Nicola Sturgeon’s bid to hold a new referendum in October next year is doomed as the Scotland Act, which underpins devolution, makes clear that Holyrood cannot legislate in reserved areas such as the Union.
However, the SNP claimed that while the British Parliament may be the UK’s supreme law-making body it could not lawfully interfere with “fundamental rights” such as self-determination.
The party was allowed by Supreme Court judges to make a written submission in the case, which will be heard next month, although its request to make oral submissions was blocked.
It followed the Lord Advocate, Ms Sturgeon's most senior law officer, making a far more restrained legal argument on behalf of the Scottish Government in which she acknowledged she did not have confidence that holding a unilateral vote was within Holyrood’s powers.
The SNP’s submission, however, cites the UN charter of 1945, a court case in Canada regarding Quebec, a UK ruling involving Julian Assange and Britain’s support for Kosovo’s unilateral declaration of independence in 2008 to back up its arguments.
It cited a UK statement to the UN which in 1984 acknowledged that a right to self-determination could be deprived by a people's "own countrymen" but concluded that power should be in the hands of people rather than governments.
It goes on to raise ancient laws including the Claim of Right of 1689 and the Act of Union of 1707 in arguing that Scots should be considered ‘a people’.
“A people can be constituted by reference to a State boundary, as was often the case with the independence of former colonial territories,” the submission states.
“That, however, is not the only possible definition and it is entirely possible – as with Kosovo – for ‘a people’ to be represented by a smaller group within a State boundary."
We the people
On whether the people of Scotland are ‘a people’ the SNP claims “the answer to this question is undoubtedly yes”.
It cites the existence of Holyrood, the fact that King Charles was required to make declarations about the independence of the Church of Scotland upon his accession, and its geographic boundaries as evidence.
Suggesting that a right to self-determination should trump any restrictions imposed by the UK constitution or domestic laws, it brings up both Tory and Labour opposition to a new referendum.
“There is accordingly no practical way in which the right to self-determination can be advanced through that legislature [Westminster],” it states. “If there is no way in which to exercise a right, it is no right at all.”
The submission was written by Claire Mitchell KC, a lawyer who Ms Sturgeon has described as “my pal”.
It makes no direct reference to the result of the 2014 independence referendum, when 55 per cent of Scottish voters rejected independence in a vote that was sanctioned by the UK Government.
It adds that a referendum, in itself, would not automatically lead to the break up of the UK and argues therefore that holding one is not a reserved matter.
Change of strategy
Ms Sturgeon had previously ruled out a so-called Plan B to a “gold-standard” referendum agreed by the UK Government.
However, in the summer she drastically changed her strategy and asked her Lord Advocate to request a Supreme Court ruling on the legality of a unilateral vote, which she wants to hold on October 19, 2023.
She has claimed that should the Supreme Court ruling go against her, she will attempt to turn the next UK General Election into a “de-facto referendum” and fight it on the “single issue” of independence.
Polling suggests most Scots do not want a referendum in October next year and that a majority support remaining in the UK.
A UK Government spokesperson said: “People across Scotland want both their governments to be working together on the issues that matter to them and their families, not talking about another independence referendum.
“The UK Government’s clear view remains that a Bill legislating for a referendum on independence would be outside the legislative competence of the Scottish Parliament.”