The technical Jekyll & the political Hyde: the constitutional law and politics of Scotland's independence "neverendum"

This chapter considers the constitutional law and politics of a second referendum on Scottish independence from the United Kingdom. Drawing on Cass Sunstein’s work on the prudence of constitutionalizing secession rights, it argues that instability of the United Kingdom’s uncodified and unentrenched constitution presents a dilemma. The instability and politically contested nature of the idea of the ‘constitutional’ in the British state means that constitutional law cannot be understood as the only repository of constitutional values. While under the Scotland Act, the technical legality of further referendums on Scottish independence remains questionable, the hegemonic political principle of the ‘sovereign right of the Scottish people to determine the form of Government best suited to their needs’ suggests that a future plebiscite should be regarded as a legitimate and constitutional demand. Secession rights are, accordingly, simultaneously recognized, and not recognized in the British constitution. Flexibility, and ongoing constitutional uncertainty, is thus maintained.