An unanswered or unanswerable question? The Scottish Parliament's competence to legislate for an Independence Referendum for Scotland

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Abstract

This article analyses the debates on whether the Scottish Parliament could unilaterally legislate for an independence referendum leading up to the 2014 vote, setting out first the relevant legal framework, and then highlighting the different positions put forward in this sense. It then argues that these positions responded to different existing constitutional narratives as to the nature of the UK (unitary, federal or quasi-federal, and union) and how by leaving this question open, the specific endorsement of one of these narratives was avoided. Finally, it reflects on the impact of the specific aspects of the 2014 process on the current competence debate and on the available options for the Scottish Parliament to legislate for a second independence referendum. Overall, it argues that because of the existence of these competing constitutional narratives, as occurs also in other plurinational states, a strictly legal approach will not provide a satisfactory answer to the competence question. Despite being framed in legal terms, this is a fundamentally political question that requires a political answer.
Original languageEnglish
Pages (from-to)81-99
JournalRevista Catalana de Dret Públic
Volume54
DOIs
Publication statusPublished - 30 Jun 2017

Keywords

  • independence
  • referendum
  • plurinational state
  • Scotland
  • United Kingdom
  • Catalan sovereignty process

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