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Paul Scott: Popular Sovereignty and the Scottish Independence Referendum
This paper examines the role of popular sovereignty within the trajectory of the Scottish public law,
both as a rhetorical device and as a concept that has been and continues to be reflected in the
practice of the reform of the Scottish ‘constitution’. This encompasses the longstanding narrative
whereby Parliamentary sovereignty, being a peculiarly English notion, was of no application to
Scotland; the manner in which the development of devolution via the Scottish Constitutional
Convention both reflected and in turn advanced the logic of popular sovereignty; and the way in
which the process and substance of the ongoing referendum debate has employed and reflected the
idea of popular sovereignty.
The argument of the paper is two-fold. First, notwithstanding the failure of legal arguments based
upon popular sovereignty, the political claim has been extremely successful. This success, however,
does not arise from the fact of the forthcoming independence referendum or a ‘yes’ vote in that
referendum. Rather, the sovereignty of people of the Scotland was vindicated when it was first
accepted that Scotland could have independence if it voted for it. It will merely be reaffirmed by the
2014 referendum, even if the outcome of the referendum is a choice to continue pooling
sovereignty with other nations within the United Kingdom. Second, the manner in which the concept
of popular sovereignty has been operationalised within the Scottish constitution has rendered it a
self-fulfilling prophecy: the fact that the idea which has taken hold is that the sovereignty of the
Scottish people specifically – rather than any other ‘people’ which might be identified – has
cemented Scotland as the appropriate unit of analysis within the constitutional debate. As a result,
legal and political power has been constituted at this level, prompting the differentiation of its
exercise in Scotland as compared to the other constituent nations, and making inevitable demands
for further devolution and, perhaps, independence.