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“Sovereignty is within Scottish soil” expresses a political tradition: the idea that Scotland’s people should determine how they are governed. It is not a statement that Scotland currently has a separate, legally enforceable sovereignty that overrides the United Kingdom’s constitutional framework. The 1989 Claim of Right for Scotland articulates the principle; the UK Supreme Court’s 2022 ruling sets the legal limit on the Scottish Parliament’s power to legislate for an independence referendum under the Scotland Act 1998.
What does “sovereignty is within Scottish soil” mean?
The phrase is best understood as a metaphor for popular sovereignty: the argument that ultimate political authority should rest with the people of Scotland. It draws on the 1989 Claim of Right for Scotland, which asserted “the sovereign right of the Scottish people to determine the form of government best suited to their needs.” The wording belongs to the Scottish Constitutional Convention’s declaration, not to a statute conferring new legislative powers.
That distinction matters. A political principle can shape arguments about democratic legitimacy and Scotland’s future without, by itself, providing a legal mechanism to hold a referendum or changing the powers assigned to the Scottish Parliament.
What is the Claim of Right for Scotland?
The Claim of Right was agreed by the Scottish Constitutional Convention in 1989. Its central claim is that the Scottish people have the right to determine the form of government best suited to them. The House of Commons endorsed its principles, according to the House of Commons Library’s 2018 briefing, which also notes that scholars have characterized the popular-sovereignty claim as political rather than justiciable.
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That is useful constitutional and political language, but it should not be confused with an enforceable legal power to disregard the Scotland Act 1998. The Claim of Right does not itself authorize a referendum bill or make an Act of the Scottish Parliament valid when it falls outside the Parliament’s legislative competence.
What did the Supreme Court decide about an independence referendum?
On 23 November 2022, the UK Supreme Court delivered its judgment in Reference by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998 [2022] UKSC 31. It held that the proposed referendum provision related to reserved matters and was therefore outside the Scottish Parliament’s legislative competence under the existing statutory framework. The question in the proposed bill was whether Scotland should be an independent country; the reserved matters at issue included the Union of the Kingdoms of Scotland and England and the UK Parliament.
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The Court’s ruling concerned whether that proposed bill could be legislated for by the Scottish Parliament under the Scotland Act. It did not determine the broader political argument about self-determination or declare that Scottish people have no political claim to decide their future. Those are related but distinct questions.
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The Scotland Act 1998 empowers the Scottish Parliament to make laws for Scotland within its devolved competence. Under the Act, a provision outside that competence is not law; a provision is outside competence if it relates to a reserved matter. The Supreme Court applied that framework to the proposed referendum provision and found it related to reserved matters.
In practical terms, the Claim of Right’s principle and the Court’s legal test answer different questions:
| Source or position | What it says | What it establishes |
|---|---|---|
| Scottish Constitutional Convention’s Claim of Right (1989) | The Scottish people have a “sovereign right” to determine their form of government. | A political and constitutional principle; it does not itself provide a statutory route to a referendum. |
| Scotland Act 1998, as applied by the Supreme Court | The Scottish Parliament may legislate only within its competence; provisions relating to reserved matters fall outside it. | The legal framework for assessing the proposed referendum bill. |
| Supreme Court judgment [2022] UKSC 31 | The proposed referendum provision related to reserved matters. | That provision was outside the Scottish Parliament’s legislative competence under the Act. |
| Scottish Government proposal for an independent Scotland’s constitution | A future written constitution should be founded on popular sovereignty, with authority resting with Scotland’s people. | The Government’s proposal for a future independent state, not a description of present law. |
How does the Scottish Government describe popular sovereignty?
In its 2022 and 2023 constitutional papers, the Scottish Government describes popular sovereignty as a foundational principle for a proposed written constitution for an independent Scotland. Under that proposal, authority would rest with the people of Scotland. This is a vision for a future constitutional settlement; it is not the present legal status of Scotland or a power created by the Claim of Right.
Independent reader supportYour contribution helps us test, update, and keep practical guides available for everyone.Does the Claim of Right give Scotland a legal right to independence?
No. It expresses a political principle about the Scottish people’s right to choose their form of government, but it does not itself create a legal right to independence, authorize a referendum, or override the Scotland Act. The Supreme Court’s decision addressed the competence of the proposed referendum provision under current law; it did not settle the wider political debate over self-determination.
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Sources
- UK Supreme Court case page: Reference by the Lord Advocate [2022] UKSC 31
- UK Supreme Court judgment PDF
- Scottish Government: Building a New Scotland—An independent Scotland’s constitution
- House of Commons Library briefing on the Claim of Right
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