Cracks in the Foundations?

Exploring the Tension Between Constitutional Tradition and Constitutional Culture in the UK on Referendums and Scottish Independence.

By Nicky Gillibrand, Somsubhra Banerjee and Eoin Carolan

In its Reference ruling on the proposed Scottish independence referendum, the Supreme Court addressed the continued uncertainty over the status and significance of referendums within the UK’s constitutional structures. The Supreme Court, on this occasion, goes further than previous rulings like Miller I by directly considering the implications for that order of a referendum. Moreover, the Court, in so doing, adopts an expressly practical approach that acknowledges the status and force of a referendum result within Britain’s wider constitutional culture. The Court’s assessment on this point was that a referendum on Scottish independence would be regarded as a democratically authoritative statement of popular will with implications for the legitimacy (or otherwise) of the Union.
This is, fundamentally, an empirical claim about contemporary culture in Scotland and in Britain. In this regard, the claim is wholly borne out by the results of the fieldwork we have conducted in locations across England and Scotland. The proposition that the Scottish people should be entitled to hold a binding referendum on independence attracted almost unanimous support from voters from across the geographic and political spectrum.

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