Committee
Constitution, Europe, External Affairs and Culture Committee 18 December 2025
18 Dec 2025 · S6 · Constitution, Europe, External Affairs and Culture Committee
Item of business
Legal Mechanism for any Independence Referendum
I have a final question. You mentioned the distinction between de jure and de facto referenda. The English legal system has a principle called stare decisis, which essentially means to look at previous decisions as setting precedents. The system is very strongly based on that principle, which, incidentally, is not the same in Scotland. Do you think that that principle, and the fact that we had an agreed referendum back in 2014, adds to what seems to many people, although not to everyone, to be an overwhelming argument for the Scottish people having the right to decide?
We have done that once before—it was agreed in the past. It is now at least 11 years since that happened and none of the reasons for not doing it again stack up. Does that create another mandate for a Scottish Parliament in which the majority of people support independence? If the English principle of stare decisis is being followed, surely that should lead to the same sort of agreement.
In the same item of business
The Convener
SNP
Welcome back. Under agenda item 2, we will conclude the taking of evidence for our inquiry on the legal mechanism for any independence referendum. We are aga...
Angus Robertson
SNP
There is, for any number of reasons. First, in a democratic society, when a party wins an election on a manifesto, consent from the losing side through the a...
The Convener
SNP
We will move to questions, and I will bring in Mr Brown first.
Keith Brown
SNP
There is a difference between the UK and Spain, for example, in that Spain does not allow a legal mechanism for a referendum on the independence of its vario...
Angus Robertson
SNP
I agree. That is contradictory, not just in terms but in publicly stated positions. As stated in June 2014, the position of the leaders of the Scottish Conse...
Keith Brown
SNP
You are right to say that the various parties that oppose a referendum have not been able to state what the mechanism is for exercising a right that they ack...
Angus Robertson
SNP
That is the only rational explanation that I have. Let us cast our minds back to the 2011 Scottish Parliament election and the way in which the then UK Prime...
Keith Brown
SNP
I have a final question. You mentioned the distinction between de jure and de facto referenda. The English legal system has a principle called stare decisis,...
Angus Robertson
SNP
I must be absolutely frank with Mr Brown: I am not a lawyer and nor am I a legal academic or an expert in any sense, so I do not feel that I am suitably qual...
Keith Brown
SNP
Before the referendum, commitments were given, as you remember, that if Scotland voted no, this Parliament would be constitutionally protected and that it co...
Angus Robertson
SNP
I think that, at the time, because it was thought that there would not be a clamour for another referendum, that was a simple thing to concede because, intel...
Keith Brown
SNP
Thankfully, we have a member of the Smith commission here.
Stephen Kerr
Con
I return to the substance of the inquiry, which is fundamentally political. The evidence was very clear that the United Kingdom has quite a liberal and permi...
Angus Robertson
SNP
Stephen Kerr is conflating two different things: first, the right to be able to decide, and, secondly, coming to a view on the principal question. Those are ...
Stephen Kerr
Con
I certainly did.
Angus Robertson
SNP
Therefore, he was able to exercise a democratic right that was delivered by a parliamentary election with the result of a percentage in the mid-30s—not the 5...
Stephen Kerr
Con
It is a political issue, and it will be resolved—as these matters are—by people voting. We have an election very shortly, and it is up to Angus Robertson, Ke...
Angus Robertson
SNP
I did not discern a question from Mr Kerr.
Stephen Kerr
Con
No. I was taking a leaf out of Keith Brown’s book and making a statement.
Angus Robertson
SNP
However, it was a very good example of the view of those people who are unprepared, as democrats, to answer the question, “What is the mechanism?” We have a ...
Stephen Kerr
Con
Well, the experts—
Angus Robertson
SNP
I can agree with Mr Kerr—that might shock those who are watching these proceedings—that the UK, because it has an unwritten constitution, has flexibility, to...
Stephen Kerr
Con
It is benign, as well. That is the thing.
Angus Robertson
SNP
The point that I am making is that we have different treatment and different statuses for the different nations of this union, and that is unsustainable. It ...
Stephen Kerr
Con
Well—
Angus Robertson
SNP
How many elections need to return a majority to this place—there have been significantly more than the Conservative Party had secured when it legislated for ...
Stephen Kerr
Con
It is worth reading the evidence that the committee received, cabinet secretary—
Angus Robertson
SNP
We still have no answer.
Stephen Kerr
Con
—because the disparities that you describe and the unique circumstances of Northern Ireland were well explored by our legal experts and constitutional expert...
The Convener
SNP
Mr Halcro Johnston is next.