How (Not) to Break Up: Constituent Power and Alternative Pathways to Scottish Independence

Abstract

In October 2022, the UK Supreme Court unanimously held that the Scottish Parliament did not have the power to legislate for a second referendum on Scottish independence ("Indyref2") absent an enabling Order by the UK Government under section 30 of the Scotland Act 1998. With the Scottish Government claiming a mandate for Indyref2 but Holyrood having no power to pass legislation facilitating it, and no section 30 Order forthcoming from the UK Government, alternative pathways to Indyref2 are being investigated. In this article, we examine two such potential pathways - a plebiscitary election and an unauthorised referendum - through the lens of constituent power. We argue that both pathways are theoretically feasible when one accepts (as we argue) that the Scottish people are the bearers of constituent power. However, we conclude that there are significant obstacles dotting both potential pathways, and as such the only feasible route to internationally recognised statehood for Scotland is via political negotiation.

Keywords: constitutional law, devolution, federalism, Scottish independence, politics, legal theory, jurisprudence, referenda, Indyref2, constituent power

JEL Classification: K00, K10, K16, K30, K33