UK Supreme Court Judgement on Scotland strengthens case for Western Cape Autonomy
Self-determination is the dominant theme of contemporary Western Cape politics. According to recent reports to the General Assembly of the United Nations, the right of self-determination can be exercised in one of four ways; autonomy (devolution), federalism, secession, or unification.
The DA led provincial government was elected on the promise of pursuing devolved powers with polling showing that 76% of Western Cape voters support increased regional autonomy. Several political parties including the DA have joined forces with civil society to form the Western Cape Devolution Working Group (WCDWG). All the organisations represented formally support either federalism or secession. The group is currently focussed on devolving policing powers and establishing the legal framework for provincial referendums.
The recent UK Supreme Court judgement which specifically dealt with Scotland’s right to self-determination under international law, and which found that Scotland did not have the authority to unilaterally call a second advisory independence referendum, was therefore significant and caught the eye of many.
International judgements impact SA law
International judgements establish precedents which have great significance in domestic law and the South African Constitution explicitly states that courts, tribunals, or forums, must consider international law and may consider foreign law. In making its judgement on self-determination, the UK Supreme Court relied heavily on the precedents established in an advisory opinion issued by the Supreme Court of Canada in 1998 which dealt with the question of the unilateral secession of Quebec.
The UK judgement therefore potentially has a direct impact on the rights of the Western Cape to claim devolved powers, to demand federal autonomy, or to obtain Cape Independence.
In 2014, Scotland, with the consent of the UK Government, held a referendum on Scottish independence from the UK with both parties agreeing to be bound by the outcome. In the referendum 55% of Scots voted for Scotland to remain part of the United Kingdom.
In 2016, the UK held another referendum, this time on whether the UK should leave the European Union (EU) - Brexit. In this referendum, 52% voted for the UK to leave and in January 2020 the UK subsequently left the EU. In Scotland however only 38% of voters had voted leave, so, by virtue of remaining in the UK, Scotland also exited the EU despite the majority of voters in Scotland not wishing to do so.
Unhappy with this, the Scottish National Party (SNP) formally requested a second referendum on Scottish independence. In 2022, the UK denied this request with the then Prime Minister Boris Johnson saying that the time was not right. The Scottish First Minister and leader of the SNP, Nicola Sturgeon, then instructed the Lord Advocate of Scotland to approach the UK Supreme Court to establish whether Scotland had the right to unilaterally call a consultative referendum which would not be binding on the UK government.
Referendum outcomes cannot be ignored
The court was asked to consider two issues. The first, which took up the majority of the judgement, was purely technical and simply dealt with how the Scotland Act, the legislation which determines what powers are devolved to the Scottish Parliament, should correctly be interpreted. The court found that as the law currently stood, Scotland did not have the right to call a referendum unilaterally but should follow the same process it had previously done in the case of the 2014 referendum.
This was relatively uncontentious, but there was one matter of great significance to the Western Cape. This was the finding that all referendums are significant and whether they are legally binding or not is relatively moot. They are a democratic expression of the will of the people and in a democracy they cannot simply be ignored. The Supreme Court of Canada had reached an identical conclusion.
The Western Cape Premier is empowered by clause 127(2)(f) of the South African Constitution to call a referendum and therefore does not need permission from the national government. Its outcome would not be legally binding, but what is now clear from both the UK and Canadian judgements is that South Africa cannot simply ignore it either. This represents a fundamental shift in the balance of power between provinces and the national government.
The second issue the UK Supreme Court was asked to consider was an assertion by the SNP that Scotland has a ‘fundamental and inalienable’ right to self-determination under international law and that there is a presumption in UK domestic law that any interpretation of the law which is compatible with international law, must be preferred over any alternative interpretation which is not.
The purpose of this assertion was to influence the court decision on the first technical question. Questions arose about the exact meaning of certain sections of the Scotland Act. The SNP wanted the court to favour an interpretation which granted the right to hold a consultative referendum to the Scottish Parliament. It asserted that a failure to do so would amount to a denial of its right to self-determination under international law.
Judgement reinforces right to WC self-determination
This seems to have led to some confusion with some observers taking this to mean that Scotland was unable to assert its right to self-determination domestically, and therefore by implication, that the Western Cape would similarly be unable to do so too.
This is not the case and in fact the judgement ultimately reinforces rather than diminishes any potential claim to devolution, federalism, or secession, which the Western Cape may choose to assert using the right to self-determination contained in international law.
The UK court acknowledged that Scotland does have a right to self-determination and that domestic legislation must be interpreted in a manner most consistent with international law. It stated, however, that self-determination was not a factor in this specific case. The court pointed out that, rather than deny self-determination, the Scotland Act actually granted it.
Scotland has tax raising powers, its own judiciary, a police force, it controls health, education, housing, economic development, agriculture, and more. Recent history has also demonstrated that there is an established mechanism by which Scotland can hold independence referendums.
The Court further stated that no interpretation of the Scotland Act was required. The court said that its wording and intent were clear and therefore the question of which interpretation was most compatible with international law was not relevant.
Once again, neither of these concepts are contested in the case of the Western Cape. The South African Constitution expressly recognises the authority of international law, states that when in dispute legislation must be interpreted in the manner most consistent with international law, and establishes the right to self-determination (albeit somewhat clumsily).
Western Cape does not have self-determination
Where the judgement gets most interesting for the Western Cape is that, despite having declared the right to self-determination ‘not in play’, the UK Supreme Court in any event addresses what it calls the ‘scope’ of self-determination. To do so, it refers extensively to the Supreme Court of Canada’s Quebec opinion affirming it as the seminal text on the subject.
Both judgements address the question of whether the people of Scotland and Quebec respectively are already exercising their right to self-determination. Helpfully, the Supreme Court of Canada established criteria by which to assess this.
In finding that the people of Quebec already enjoyed a right to self-determination which was not being ‘internally frustrated’ the Supreme Court of Canada explained that Quebecers not only had an equitable chance of becoming Prime Minister, Chief Justice, Head of the Armed Forces, and holding all of the key cabinet positions in the Canadian Government, but that they had in fact regularly done so. On this basis the court found that they enjoyed self-determination.
Despite this the court still found that should Quebec wish to secede based on the democratic will of Quebecers as determined by a referendum, Canada would have no right to prevent it from doing so but that the parties would be required to negotiate the terms of secession, with none of those terms being predetermined by law.
Applying the Supreme Court of Canada’s test to the Western Cape would result in a very different outcome. Ethnic minorities make up the majority of the Western Cape population. None of the key positions identified by the Supreme Court of Canada are held by these minority groups and there is little prospect of this changing. This pattern is also reflected in political participation where the majority of Western Cape voters have never been governed by the party they voted for.
Unlike Scotland and Quebec, the Western Cape does not currently enjoy self-determination. This reality is exemplified by the provincial governments on-going attempts to obtain the devolution of policing powers. The Western Cape has the highest murder rate in the world. The South African Police Service (SAPS) is increasingly dysfunctional and has been infiltrated by organised crime. The national government has been instrumental in enabling these failures yet it steadfastly refuses to allow the province to take control of its own policing.
Western Cape can now demand autonomy
In the final reckoning, the UK judgement, in conjunction with the Canadian judgement, have established some extraordinarily powerful principles which, considered together with the South African Constitution, can fundamentally change the political landscape of the Western Cape.
The Western Cape can call a referendum, the result of that referendum cannot be ignored, the people of the province are entitled to self-determination but currently do not enjoy it, and self-determination can be exercised in the form of devolved powers, federal autonomy, or outright independence.
Up until now the Western Cape Government has been requesting autonomy from the national government. Providing it can demonstrate the support of the Western Cape electorate in a referendum, it is now fully equipped to demand it.