Permutations of Popular Sovereignty Before, During and After the Scottish Independence Referendum

Abstract

This chapter examines the political-constitutional scheme of Scotland’s devolution settlement and independence referendum of 2014, while making two claims about the evolution of two conflicting models of sovereignty in the UK context. Firstly, the principle of popular sovereignty, resting with the people and challenging the orthodox constitutional doctrine of United Kingdom parliamentary supremacy has, in recent years, become entrenched in Scottish politics. The independence referendum in Scotland was an expression of popular sovereignty in its purest form—as the collective will of the people. Post-referendum, the establishment of the Smith Commission suggests a more modest, representative strand of popular sovereignty—the expression of popular will through the elected Scottish Parliament. Consequently, the Smith Commission’s recommendation to enact UK legislation establishing the Scottish Parliament as a permanent body—hence, transforming the principle into law—will constitute enhanced recognition of its status as a legal-constitutional norm. Secondly, I argue that the trajectory of popular sovereignty not only falls squarely within the general British tradition of ad hoc constitutional change, but also highlights the existence of a growing trend, according to which soft law norms acquire normative legitimacy through practice, precipitating their eventual recognition in formal law.