Recently, the Scottish Government published A Fresh Start with Independence, restating the case for autonomy and outlining aspects of the prospective Scottish state. Despite the narrative of renewal, however, the sections on the Scottish constitution are firmly in the vein of what has been seen before. This blog post explores some of the issues raised by A Fresh Start, with a particular focus on the question of sovereignty.
Building the Tradition
A Fresh Start restates the familiar mantra of Scottish popular sovereignty, which is worth quoting in full:
The Scottish constitutional tradition holds that in Scotland the people are sovereign. This means that the people and institutions that exercise political power do so on behalf of and with the consent of the people. This contrasts with the UK’s constitution, which is based on the idea of parliamentary sovereignty, that the Crown-in-Parliament can make or unmake any law.
While popular sovereignty has been a feature of Scottish constitutional thinking for decades, the three sources cited in support of the above statement are an interesting mixed bag. The first is one of the Scottish Government’s own white papers, published in 2007 at the launch of a consultation exercise on Scotland’s constitutional future during the first SNP administration. A quote from that document has been included in A Fresh Start’s endnotes, and states that the Union “did not remove” the Scottish people’s right to choose their constitutional position. This both supports the narrative that the Scottish people have always had a choice over their constitutional situation, while also subtly endorsing a view of the Union as voluntary and impermanent. This reflects the loose set of beliefs that amount to the Scottish popular sovereignty narrative today: that Scotland chooses its constitution, and that it is the Scottish people who exercise that choice. Another source referenced in a Fresh Start is Questioning Sovereignty, Neil MacCormick’s wide-ranging exploration of sovereignty from the Scottish level to the supranational. This reinforces the reflexive nature of the narrative, with popular will going hand in hand with the broader constitutional situation of Scotland. Sovereignty is located in the people’s choice, as opposed to being a set destination in a particular constitutional arrangement.
The third source given in a Fresh Start is focused on the traditional nature of popular sovereignty. This is George Buchanan’s 1579 De Jure Regni apud Scotos, which advocated for limited royal authority. As Aileen McHarg has pointed out, Scottish authors were hardly unique among European thinkers in contesting the boundary of royal power in the 16th and 17th centuries, and Buchanan’s ideas were not universally accepted in Scotland at the time. Nonetheless, the reliance on Buchanan signifies the ongoing construction of native Scottish popular sovereignty. Notably, the usual foundation of the tradition – the Declaration of Arbroath – has not been included here. The 1320 Declaration was largely an affirmation of Scottish territorial sovereignty that also contains a clause that affirms the nobles’ right to overthrow the king, Robert the Bruce, and his successors should they fail to properly defend Scotland. The phrasing – that the King ruled with ‘assent and consent’– can strike later readers as a statement that ultimate power lay outwith the monarchy. Popular sovereignty therefore can be read in to the Declaration, lending weight to the beliefs of today. There are tensions in the relationship between the popular sovereignty narrative and the British Constitution, and the former’s role in an independent Scottish constitution, which are explored in the remainder of this post.
The British Constitution and Scottish Popular Sovereignty
The Scottish popular sovereignty tradition was encouraged through 20th century British constitutional practice. Devolution was reactive, coming after the mobilisation of the Scottish civic elite in the Scottish Constitutional Convention, who pushed the blueprint for a Scottish Parliament, and authorised through referendums. There is a chasm between the legal reality of devolution – carried out via a simple Act of Parliament – and its cultural and political significance in Scotland as an expression of Scottish national will, which lends weight to the beliefs contained in the popular sovereignty narrative. Legal recognition of Scottish popular sovereignty has not been forthcoming. Nonetheless, the narrative is bought into by Scotland’s political elites, and forms the basis of a constitutional imaginary that is at odds with the mainstream British one. Crucially, popular sovereignty is not just reserved for the pro-independence side of the constitutional question. Scottish Labour, for example, states that the Scottish people are sovereign, and can determine their form of government.
Legally, Scottish popular sovereignty has never sat easily within the British constitution. The famous dicta in MacCormick v Lord Advocate [1953] SC 396, describing parliamentary sovereignty as an English principle with no equivalent in pre-Union Scotland, points to this strain. Since Brexit, the tone of the British constitution has tilted back towards parliamentary sovereignty, meaning that the Scottish constitutional narrative may be even more difficult to accommodate. The idea that parliamentary sovereignty is distinctly English and at odds with the native Scottish constitution has not been fully taken up by politicians in favour of independence, despite its disruptive potential. With the post-Brexit reassertion of parliamentary sovereignty, and in the context of the expansive new approach to parliamentary sovereignty adopted by the Supreme Court in devolution cases, it will be interesting to see if sovereignty wars break out in years to come. However, the sovereignties are of different kinds: the use of the term ‘tradition’ by the Scottish Government is telling, and perhaps an acknowledgement that popular sovereignty is political and that parliamentary sovereignty is the legal reality of the British constitution.
Sovereignty in an Independent Scotland
While a Fresh Start gives some details on the constitutional landscape of a future independent Scotland, the precise role of popular sovereignty is not fully set out. Unsurprisingly, the long-standing commitment to a written constitution is reaffirmed. This has been a feature of Scottish Government policy since before the independence referendum and beyond. The constitution would be drafted by a Constitutional Convention, drawn from all ‘areas of Scotland’ and ‘parts of Scottish society’. A referendum would follow the deliberation of the Convention in order to ratify the draft. While noting that this would be determined by the Convention, A Fresh Start includes some robust social rights that the Scottish Government hopes would be a part of the permanent constitution.
There is a potential tension in this desire for a permanent written constitution, which may signal a limited role for popular sovereignty within a rigid constitutional order. In A Fresh Start, the role of popular sovereignty is linked to the constituent power: the Scottish people ratifying the draft of the Constitutional Convention via referendum would be the “exercise of their popular sovereignty”. Whether there would be a more ongoing understanding of popular sovereignty in an independent Scotland is not explored, but in a 2023 publication, the Scottish Government’s account of popular sovereignty, while also treating it as akin to the constituent power, is additionally paired with a flexible written constitution that would allow for amendment by the people. Here, “sovereignty is held by the current population of Scotland in trust for future generations”. Popular sovereignty is expressed as the ability to shape the “living document”, going some way to striking the balance between popular sovereignty and a written constitution. However, the precise mechanics of this flexible constitution are not explored beyond a non-committal suggestion of a referendum requirement as part of an amendment procedure. It will be interesting to see how Scottish nationalist thinking evolves on this point, and whether there will be continued progression towards a more complete account of sovereignty in a post-Union Scotland.
Conclusion
While the precise form of popular sovereignty in a future constitution of an independent Scotland is not yet realised, a ready-made narrative is being crafted for that constitutional order. Popular sovereignty allows for a narrative of continuity: there is an enduring people of Scotland who chose to be in the Union and submit to the British Constitution, who can choose to leave the Union, and can use their ancient sovereignty to establish the new constitutional order.
At present, A Fresh Start highlights that there are parallel sovereignties across the UK: parliamentary sovereignty and popular sovereignty. The former, while English in heritage, forms the bedrock of the British constitution, while popular sovereignty is a Scottish tradition. The two sovereignties, in addition to their contrasting national origins, also occupy different roles: parliamentary sovereignty is a legal principle and popular sovereignty lies in the realm of the constitutional imaginary. It remains to be seen if the idea that parliamentary sovereignty contradicts Scotland’s own constitutional tradition becomes a greater feature of Scottish politics in coming years, particularly with the SNP on course to win yet another Holyrood election in 2026.
I would like to thank Paul Scott and Michael Gordon for their very helpful comments on an earlier draft of this post.
Catriona Mullay is a lecturer in law at Glasgow Caledonian University
(Suggested citation: C. Mullay, ‘A Fresh Start, the Old Tradition: Sovereignty and the Scottish Constitutional Imaginary’, U.K. Const. L. Blog (11th December 2025) (available at https://ukconstitutionallaw.org/))
UK Constitutional Law Association 