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Metaconstitutionalising Secession: The Reference and Scotland (In Europe)

  • Alastair MacIverEmail author
Chapter

Abstract

This chapter considers the influence of the Reference Re Secession of Quebec on the debate preceding and surrounding the Scottish independence referendum of 2014. It argues that the Reference influenced the framing of the putative Scottish secession in the European legal imagination on three levels. Firstly, the Canadian Supreme Court’s treatment of the right to external self-determination informed the content of a normative conception of the “principle of constitutional tolerance” which Weiler identified as generating an imperative to preclude a Scottish successor state from membership of the Union. Secondly, the Supreme Court’s answer to Question 1 of the Reference had a methodological influence on those, like Douglas-Scott, who sought to formulate a European legal response to a would-be Scottish “yes” vote in the light an approach that would make the “vital unstated assumptions” of the European project legally cognisable by privileging the importance of the values on which the Union is premised above the conferral of discrete competences. A third influence is also put forward: the Reference presents a way of resolving the well-rehearsed procedural dilemma between Articles 48 and 49 of the Treaty on European Union, by suggesting a turn to the associative commitments in which those two amending powers are each nested. While any proposal to constitutionalise the question of Scottish independence seems to defy the nature of the European Union, the Reference has had a decisive influence on attempts to apprehend that prospective secession in the terms of the principles that unite the Member State and Union legal orders.

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Copyright information

© The Author(s) 2019

Authors and Affiliations

  1. 1.Legal Service, Council of the European UnionBrusselsBelgium

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