Secession referenda and the perception of judicial objectivity in Britain, Italy and Spain

This article analyses how courts can preserve legitimacy and institutional stability when called upon to intervene in consultative referenda on secession. Its central claim is that visible impartiality is a precondition for the democratic credibility of potential subsequent deliberative settlements. Put differently, constitutional negotiation in multinational systems depends upon an institutional setting that is clearly objective and in which the rule of law is applied free from any reasonable perception of bias. The article critically examines three recent judgements from the Italian and Spanish Constitutional Courts and the UK Supreme Court, arguing that in each case, publicly available documents raise significant questions as to whether the panel composition met the international standard concerning the appearance of judicial impartiality. The first section conceptualises judicial objectivity as a pragmatic activity with normative implications. The second section examines the current jurisprudence to demonstrate that the standard for recusal is the appearance of bias. The third part applies this standard to the selected cases.