By Simon Hetherington

I should probably preface these observations with a brief statement of interest, to wit: English, with a more than passing interest in both Scots and English law and their legal systems; broadly in favour of the maintenance of the UK, and therefore broadly opposed to Scottish independence. The UK, I believe, benefits greatly from the fact of two legal systems, despite the constitutional complexities that this occasions.

Those complexities will be to the fore in the near future. As a Scottish referendum draws closer, the validity of treating that referendum as authority to determine national policy will be much questioned. In any context, the mandate given by a referendum is usually subject to interpretation; here, there is even more room for controversy.

The position under the Scotland Act 1998 is essentially that the Union of Scotland and England is a matter reserved for Westminster. Now, it seems pretty plain that, whatever the outcome of a referendum of Scottish electors held by Holyrood, it would not be legally binding on the UK Parliament, (no doubt some will try to suggest otherwise, but I don’t think it is a strong position). It might even be possible to argue that merely holding the referendum is beyond the legitimate exercise of functions conferred by the Act. That is probably an argument too many – but my purpose here is not to address that question, but to demonstrate that all is not simple.

The Scotland Act 1998 is not a written constitution. Like any other Act it is subject to repeal, amendment and modification at the decision of Parliament. The Act is massively important, and is the alpha and omega of the Scottish Parliament; but it is not the basis on which Scotland is governed. In some respects at least, there must be considered to be a higher law. The constitution of Scotland, both in its unique aspects and as part of the UK, rests on a weave of convention and law from many sources.

Part of that higher law is bound up in the history of the Union, and in the fact (not the content) of the Scotland Act. In the first place, the maintenance of different legal systems means that Scotland has always been regarded as distinct within the UK; in the second place that distinction was given greater definition by the Act in 1998, more so by subsequent amendment. The point here is that it is legitimate for Holyrood to conduct its referendum, and to hold Westminster to account on its response.

Jurisdiction over devolution issues is exercisable by the Supreme Court. Thus, legal challenge to the referendum, or to any actions arising from its results, sits with a body which is the creation of Westminster. Lord Sumption, the Supreme Court’s newest member, is clear that the judges will be concerned with law, not politics. That is as it should be, and that being so will lead probably to the judicial decision that the independence (or not) of Scotland is in the grant of Westminster.

But it should not be for any court to decide the question of Scotland’s future under the guise of a challenge to the referendum. Westminster should not be content to adopt such a legalistic approach but face the issue for what it is. Scottish independence is a matter of history, demography and politics. It is not a matter of law.