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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 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 qualified to answer his question about English law.

I would observe, however, the Supreme Court judgment—which has been well reported—in relation to the ability of us as parliamentarians in the Scottish Parliament to decide to hold a referendum. Everything that I have seen has advised me that it is unlikely that the Supreme Court would make any different decision from that which it made before. That gets us back to the same conundrum and challenge that we have been discussing since the beginning of this session, which is that it is a matter of political will, political decision making and consensus as democrats that the democratic process should be at the heart of determining our political and constitutional future.

We have a precedent. Given that we have a precedent that we know was agreeable to the UK Government and given that we know the result would have been recognised internationally had Scotland voted yes in 2014, I am of the view that we should secure agreement through the ballot box and that that is exactly what should happen again if a majority of parliamentarians who support independence are returned to this Parliament.

Otherwise, there is the next conversation, which is about the future of political culture in Scotland if we have a blocking minority. If the people who lose the election are telling those who are elected and represent the largest group of people who voted in that election that they cannot exercise the choice that they were voted in for, that is pretty serious and it is not sustainable. It cannot go on.

What is the solution? The solution is to do what David Cameron did, which is to make a vow. We know that there is a not just the rhetorical avowal of the right of self-determination that we have already narrated this morning. There is a route by which this can happen. I would wish it to be a standing right of the Scottish Parliament to be able to determine its future whenever a majority of people elected to this place, acting on behalf of the people who have elected them to come here, determine that that is what should happen. There is no substitute for that.

It is a pretty simple question. Are we democrats—yes or no? If we are, do we believe that the public should be able to exercise a right about the constitutional future of the country—yes or no? My answer is yes to both those things. That being the case, what is the mechanism? It is time for those who cast doubt on this to be absolutely clear about de minimis. It has to match that which exists for one of the other constituent nations of the United Kingdom, which is Northern Ireland.

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.