Prior to our trip to Scotland, I concluded that Scotland is, and will remain, a Stateless Nation, unless the Scots vote to approve the independence referendum of 2014. At first blush, Scotland seemed to be a subsidiary of a much larger State – the United Kingdom. While I recognized that Scotland possesses a permanent population and a defined territory, I maintained that Scotland lacked two essential elements of Statehood: an independent government and the capacity to enter into relations with other States. Upon reflection and reconsideration, I may have been too quick to pass judgment on Scotland’s Statehood.
The Scottish Government, originally known as the Scottish Executive, was established in 1999 following the reinstatement of the Scottish Parliament. The government is led by a First Minister, and is responsible for all matters not explicitly reserved to the United Kingdom by the Scotland Act 1998. These so-called “devolved matters” – which include healthcare, education, criminal justice, housing, and public transportation – allow the Scottish Government to control most, if not all, matters affecting the Scottish people within the territorial bounds of Scotland. This, quite naturally, makes one wonder – does Scotland have control over those matters reaching beyond its borders?
The short, but startlingly incomplete, answer to that question is no. The United Kingdom, as detailed in Schedule 5 of the Scotland Act 1998, retains control over several “reserved matters.” These reserved matters include, notably, the power to control defense and national security, as well as international relations, across the United Kingdom. Taken alone, this appears to defeat any chance of Scotland being declared a State; however, such a view is shortsighted to say the least. That is, it overlooks a key aspect of Scotland’s union with England (and the rest of the United Kingdom), specifically, the fact that the Scottish Parliament made a calculated decision to exercise its capacity to enter into relations with other States by voting to approve the union between the Kingdoms of Scotland and England.
By uniting with England, some might argue that Scotland surrendered its capacity to control its extraterritorial affairs and, thus, its Statehood. On the other hand, it could just as easily be argued that Scotland did not surrender its capacity to control its extraterritorial affairs; rather, it chose to exercise such control by uniting, and agreeing to act in concert, with England, as well as the rest of the United Kingdom. This view, in my opinion, is supported by the fact that Scotland maintains representation, and thus a voice, in the United Kingdom Parliament. Further, as Professor Olivia Robinson noted, Scotland’s legal system has remained independent from that of the United Kingdom, which is yet another reminder that Scotland retains a distinct identity within the United Kingdom. In fact, Lord Woolman, a Senator of the College of Justice, indicated that there would be little, if any change, in Scotland’s legal system if the Scots voted to approve the independence referendum of 2014.
As you can see, Scotland is not merely a Nation being ruled by another State. Instead, it is a sovereign State with its own government that chose to unite, and act in concert with, the rest of the United Kingdom for the benefit of all.