Scottish constitutional identity : Brexit and change

Abstract

'Constitution' has no set definition. Some definitions focus purely on a text, while others consider the position of a constitution within its national context. To an extent, both approaches are necessary. Constitutions are legal instruments steeped in the history and identity of their nation; to be effective, the people under the constitution must buy into it. Constitutional identity is one analytical tool used to understand the link between a constitution and its people. After discussing the nature of constitutions and constitutional identity, this thesis focuses on Scotland’s constitutional position. In its broader context, devolution through the Scotland Act amounted to a constitution before 2016. That context included a cultural embedding of the devolution settlement through narratives about Scottish popular sovereignty. Constitutional identity and national identity overlap in Scotland, and it can be challenging to separate the two; devolution was, to an extent, the result of the evolution and increase in Scottish national identity across the twentieth century. Several changes in the law of Scotland’s constitutional position have taken place since Brexit. Some came through legislation, including the Internal Market Act. Other changes have come through case law. Some of these cases turned on the interpretation of aspects of the devolution settlement, such as the Sewel Convention, and formed another transformation of Scotland’s constitution. After surveying these changes, the thesis turns to the implications for constitutional identity in Scotland. An important feature of the post-Brexit changes to Scotland’s constitution is that they contradict the important popular sovereignty narrative. The thesis closes by exploring tensions in Scotland's constitution and constitutional identity through a discursive analysis of the events surrounding the Continuity Bill reference in 2018.