Nick Barber: After the Vote: Regulating Future Independence Referendums

 Nick1In a few months time Scotland will vote on independence.  In my last post on the topic I discussed some of the consequences of a yes vote: the problems that would be raised around the currency, Scotland’s membership of the EU, and, more generally, the difficulties presented by the tight time-fame set by the Scottish Government for negotiation.  That post should have given wavering ‘yes’ voters pause for thought; the path to independence is harder and riskier than the Scottish Government’s optimistic White Paper claims.   In this post I will discuss one of the consequences of a no vote: its implications for subsequent independence referendums.  This post should, perhaps, cause wavering ‘no’ voters to reflect. The independence referendum is, or should be, a once in a generation chance to leave the Union.  It would be a mistake to assume that a second referendum will be held any time soon.

There are problems with constitutionalising a right to secession.  In a classic article,  written as the states of Eastern Europe were recasting their constitutional orders in the early 1990s, Cass Sunstein argued that constitutions should not normally incorporate a right to secede.  Sunstein argued that such rights inhibited the creation of a united, effective, state.  The constitutional possibility of secession might encourage regions to consider independence on a regular basis, and, on the other side of the equation, the remainder of the state will be aware of secession as an ever-present possibility.  As Sunstein argues, this may inhibit long-term planning: why should the state engage in projects that principally benefit the region, knowing that the region might leave at anytime?  And when the project benefits the whole state, but requires regional cooperation, how can the state be sure of this support?  More darkly, Sunstein warns there is a risk of blackmail.  The region can use a threat of secession to put unfair pressure on the remainder of the state.   Finally, as Sunstein points out – and as we have reason to know all too well – questions of secession tend to stir emotions more deeply than other political questions.  The intemperate character of debate around the issue can, in itself, harm the capacity of the state to act as a coherent unit.

Sunstein’s prescription – a denial of the right to secession – is not open to the United Kingdom, which has already recognised the right of certain of its territories to leave the Union.  The Northern Ireland Act 1998 contains a legal right for that territory to secede in some circumstances, and whilst Scotland and Wales lack such a legal right, it has been accepted, perhaps for quite sometime, that they are entitled to determine their own constitutional fate.  After the SNP gained control of the Scottish Parliament it was a matter of when, not if, a vote on independence would be held.

But whilst Sunstein’s prescription may be inappropriate, his diagnosis remains accurate.  The bare possibility of a second referendum after 2014 may have a destabilising effect on British politics for the reasons he identified.  The risk of a second referendum may cause the rest of the UK to be reluctant to adopt schemes or make decisions that benefit Scotland at the expense of the remainder of the country: why buy warships from Scottish shipyards, rather than from their English competitors, when Scotland may become a separate state at any time?  And, recalling Sunstein’s fear of blackmail, there is a risk that Scotland will use the threat of independence to exercise a disproportionate say over UK policy-making: agree with us, or we leave.  In short, the continued possibility of independence may frame political debate within in the UK in negative and corrosive terms, with Scotland’s interests understood as distinct from, and potentially in tension with, those of the rest of the UK.  There is a danger that the possibility of secession will lead to Scotland becoming a semi-detached part of the Union, always on the verge of exit.

This problem could be addressed by regulating the capacity of the Scottish Parliament to call independence referendums.  Under the current devolution settlement the Scottish Parliament is able to hold an advisory referendum on independence at any time.  Admittedly, this point is not beyond dispute:  most notably, Adam Tomkins has argued against this view, contending that the Scottish Parliament lacks this power, but, for reasons I have set out on this blog, I think it unlikely he is correct on this point.  The Scottish Parliament does, though, clearly lack the power to hold a binding referendum on independence: at present, this requires the agreement of Westminster.  The status of the 2014 referendum was secured after an agreement between the Scottish and Westminster Governments.   Whilst as a matter of law, the United Kingdom Parliament could still refuse to accept the outcome of the 2014 referendum, as a matter of political practice the Edinburgh Agreement is sufficient to render the vote binding.

Any attempt to regulate the holding of independence referendums after 2014 would, if the Sewel Convention were adhered to, require the support of both the Scottish and Westminster Parliaments.  Conferring on the Scottish Parliament the capacity to hold a binding referendum might render the concomitant regulation of that power more attractive.  The  Scotland Act 1998 could be amended to legally recognise what is an existing constitutional fact: that the Scottish people have constituent power, that they possess the capacity to create a sovereign state by seceding from the United Kingdom.  In addition to this, the Scottish Parliament could be accorded the power to call a binding referendum on independence.  The Scottish Parliament, rather than Westminster, is best placed to determine when the Scottish people wish to hold such a vote.

Coupled with the conferral of this new power on the Scottish Parliament should come limitations on its exercise, to mitigate – if not cure – the problems that the right to secession brings.  Just because the constitution accords Scotland the right to secede, it does not follow that the United Kingdom need accord the Scottish Parliament an untrammelled power to determine the procedures through which that right is exercised.  It is common for the constitution of a country – determined at the level of the state – to set the conditions for secession.  Having accorded a region the right to secede it would be wrong for the state, through the constitution, to limit the right in ways that make secession effectively impossible.  But it would be appropriate for the state to set conditions on the secession right that serve to protect the remainder of the state’s territories and the political community of the state as a whole.  With this in mind, the capacity of the Scottish Parliament to hold a referendum should be constrained in two respects.

First, there should be a constraint of the frequency of independence referendums.  They should be rare: there should be a long period of time between the 2014 referendum and the next vote.  The capacity of the Scottish Parliament to call a vote should, then, be time-limited.  The Scottish Parliament should be given the power to call, by simple majority, an independence referendum only if (say) 30 years have elapsed since the previous vote.  Making the independence vote a rare and decisive event makes it less likely that the secession right will have the destabilising consequences identified by Sunstein. The issue is taken off of the political agenda for a substantial period of time, allowing decisions to be made at the national level without being unsettled by constant doubts about Scotland’s continuing membership of the Union.

It might be objected that such a long period between votes leaves Scotland vulnerable: what if the rest of the United Kingdom embarked on a scheme so hazardous (such as resolving to leave the European Union, for example) that Scotland’s vital interests were imperilled by remaining part of the Union?  Indeed, a benefit of secession rights is that they can give smaller regions some protection against larger units.  The time-constraint on referendums should, then, be balanced by a second measure.  The Scottish Parliament should be given the power to call a referendum at anytime by super-majority: a referendum would be held if (say) two-thirds of MSPs eligible to vote supported it.  This would be a hard standard to meet, but not an impossible one; in extreme cases the Scottish Parliament could hold an independence vote before the specified time between referendums had elapsed.

In summary, my proposal is that following a ‘no’ vote the Scotland Act be amended to empower the Scottish Parliament to hold a binding referendum on independence, but only if 30 years have elapsed since the last referendum or if two-thirds of all MSPs vote for such a referendum.

There are a number of objections that might be made to this proposal.  Practical-minded people I have spoken to warn me that it is unrealistic.  They may well be right.  If independence is rejected, the United Kingdom Government and Parliament are unlikely to have much appetite to continue to debate and discuss the issue.  The SNP is unlikely to want to accept restrictions on the chance to secure a future vote – and may regard such limitations as, in themselves, constraints on a power that ought to reside in the hands of the Scottish Parliament.  Consequently, each side has incentive to let the matter drop.  But whilst constitutional ambiguity is sometimes desirable – allowing us to avoid unnecessary conflicts  – it can sometimes store up trouble for the future.  The possibility of a second referendum will ensure that, after a brief period of quiet, the question of independence will return as a live political issue. Worse still, there is a chance that it will be harder to secure agreement between Scotland and Westminster on the significance of this referendum.  Westminster might, reasonably, decline to accept the validity of a second referendum held in the near future: it might be argued that the SNP cannot keep repeating the question until they get the answer they want.  The period immediately after a ‘no’ vote is probably the best possible time to set the parameters under which the secession right should be exercised.  Leaving it unaddressed will bring significant costs.

The recent pronouncements of the future of the currency in Scotland from British politicians have generated criticism: to some this looks like bullying, threatening the people of Scotland with the loss of the pound.  Such criticism is misguided.  It is right that Scottish voters are given as much information as possible about the likely outcome of a ‘yes’ vote.  Part of that information is the negotiating stance that will be adopted by the rest of the UK when dealing with the putative Scottish state, a political entity that will become, it should be remembered, as much a foreign country as France or Germany.  But Scottish voters ought also to reflect on the consequences of a ‘no’ vote and, ideally, British politicians should also address this question.  There may well be more powers that can be devolved to the Scottish Parliament – a ‘no’ vote is not a vote against devolution – but the vote will settle the question of Scottish independence for a generation.  It will – or it should – rule the question of secession out of political debate for a long period of time, and the Scotland Act should be amended to help bring about this end.

Nick Barber is Associate Professor of Constitutional Law at Oxford University, and a Fellow of Trinity College, Oxford. 

Suggested citation: N. W. Barber, ‘After the  Vote: Regulating Future Independence Referendums’  U.K. Const. L. Blog (21st March 2014) (available at  http://ukconstitutionallaw.org).

12 Comments

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12 responses to “Nick Barber: After the Vote: Regulating Future Independence Referendums

  1. Thank goodness professors live in ivory towers. In the real world, a vote for independence won’t amount to secession but dissolution of the union formed by joint treaty, unless you accept the myopic Legal advice given to the British government. And how high handed is it to deny democracy to anyone by curtailing their right to a referendum on their future as enshrined in the UN charter? Want your freedom? Wait 30 years and we’ll grant it. In any case where is this constitution that can be thus amended? Non existent of course and at the mercy of the self interested undemocratic British elite who mislead parliament and appoint themselves to an unelected house. Shouldn’t academic study be loosely connected to reality? Or is Trinity constructed out of ivory?

    • Thank you for your comment. You raise a number of interesting issues, but the most interesting is, perhaps, whether this is a secession vote – Scotland is voting to leave the Union – or a vote for the dissolution of the United Kingdom, which will create two wholly new states. One consequence of this distinction relates to the constituency that should then be included in the vote. If it is a secession question, it is a question for the people of Scotland. If, in contrast, the decision will create two new states it is a decision for all of the people of the United Kingdom.

      To make the point even more directly, if it is a consequence of a ‘yes’ vote in the Scottish referendum that the rest of the UK must reapply to join the European Union and either looses its currency or is required to enter into a currency union with a foreign state, the impact of the decision is such that the English, Welsh, and Northern Irish voters should also have a say.

      Nick Barber

      • Gordon Jackson

        Have to agree. Derek’s argument is rather absurd in practice as it implies that the right to self-determination is the same as the right to dissolve an existing state. Either Scotland is voting to leave the UK (in which case the right to vote is Scotland’s alone) or it’s voting to dissolve the UK (in which case everyone has a stake in the decision). It can’t be both.

        It’s the sort of contradictory mess that we end up with when we start cherry picking supposed “democratic principles” in accordance with our political views. He wants to argue that only Scotland should have a say in the referendum because it suits his belief in independence. Yet he also wants to argue that Scotland isn’t seceding from the Union because it would create a more favourable outcome for an independent Scotland.

        Putting the rhetoric to one side, I do think there’s a case for time limiting referendums. It’s the sort of idea that people like Derek throw their hands up into the air in despair at, but it’s not actually that alien to our democracy. We have a five year limit between changing our government at present – passed through parliament, perfectly legally, for the express purpose of guaranteeing stability. Why is it so shocking to do the same thing with respect to a referendum on independence (which is far more destabilising than a change of government)?

        There has to be some limit to it – otherwise what’s to stop an independent Scottish government under Labour voting for a referendum on rejoining the UK in 2016?

  2. Carrie

    There is also an assumption in this article that the state in question treats all its regions fairly. If that were so, there would be much less need to consider independence. In Wales, it is not forgotten that all the Welsh MPs across the board, of all parties, voted against the drowning of the village of Tryweryn to create a reservoir for Liverpool, and yet the drowning of the village went ahead.

  3. Jeremy Baker

    To adapt an extract from this insightful article, a question currently taxing me (and no doubt many other English investors) is, “The risk of [secession] may cause the rest of the UK to be reluctant to adopt schemes or make decisions that benefit Scotland at the expense of the remainder of the country: why buy [ISAs] from Scottish [providers], rather than from their English competitors, when Scotland may become a separate state [with a currency of unknown value vis-a-vis sterling] at any time?”
    I wonder if the Scottish people realise the effects of the uncertainty they have created by electing the SNP with its ‘independence’ programme.

    • Colin

      Of course that argument works both ways, why buy from an rUK supplier, and I note you say English rather than rUK as if England were the only country in the UK, rather than keep the money in Scotland.
      This is of course a rather narrow viewpoint and hopefully one that is not mirrored after Scotland votes Yes for independence, for both Scotland’s and the rUK sakes..
      I think the UK has much more to worry about than Scotland leaving the Union, with the current popular opinion that the UK should leave the EU and the rise of UKIP.

  4. On the subject of ‘certainty’, we are told the UK is world leading economy, recovering its prosperity, after a global financial crisis, yet we are seeing food banks opening up nationwide, on a weekly basis, and the very poorest, in society, look set to suffer the most due to proposed government cuts, which will last for a generation, so that is a certainty.
    The ‘uncertainty’ in the Scottish independence debate Jeremy Baker commented on, is the result of all the uncertainties created by Westminster’s Better Together campaign in their struggle to keep a hold of Scotland’s resources.
    Rest assured Scotland will vote Yes in September and there will be no need for time limits on future referenda.
    I don’t think we’ll be in too much of a hurry applying to rejoin the rUK, either, (ever) so I can’t see the thirty year rule going into our constitution, when we write ours down.

  5. Chris brown

    Surely the question is one of dissolving the 1707 Treaty? If a country cannot abandon a Treaty unilaterally is that he same as accepting that a couple cannot get a divorce unless both partners agree?

  6. Pingback: News: House of Lords Constitution Committee Report on Scottish Independence | UK Constitutional Law Association

  7. John Hartigan

    Mr Barber writes”… whilst Scotland and Wales lack such a legal right, it has been accepted, perhaps for quite sometime, that they are entitled to determine their own constitutional fate.” Accepted when and by whom? The question of independence has never been put to the UK electorate. The UK Parliament had a mandate to legislate for Scotland and Welsh referenda on devolution based upon specific general election manifesto pledges. Parliament had no such mandate in legislating for a Scottish independence. Parliament acted far outside its competence in legislating without a mandate. The question of whether independence is a matter for Scotland alone is the greatest constitutional matter of the last 300 years. In a mature democracy, it is scandal that this fundamental flaw has been ignored. We should not be guessing that the UK voters accept this process, we should ask them.

    • Chris Brown

      There is, I suppose, a question over which body represents Scotland; is it Westminster or Holyrood? The latter is more democratically-structured, but the former gets a better turn-out at elections. There is also a question about differing interpretations of sovereignty. In the legal practice of England and Wales – as I understand it – sovereignty resides in the concept of ‘crown in parliament’ and the sovereignty of the commons is unlimited.If the Commons does not provide an opportunity for the people to vote on an issue that’s the end of it. In Scotland sovereignty resides with the people, it is merely exercised by elected representatives. The concept of unlimited sovereignty of parliament has no counterpart in Scottish constitutional practice so if the people elect a government on the basis of a pledge to hold a referendum there really has to be one, regardless of what the Scottish parliament legislation might say.

      • John Hartigan

        These are valid opinions to be put to the UK electorate. On what basis can you assume the UK electorate agrees with your view on this fundamental question? Until an independent Scotland is established, there is no Scottish sovereignty – there is British sovereignty. Devolution was a matter for the whole UK electorate over several general elections. Surely, independence raises the stakes dramatically and therefore all the more important that there is an unimpeachable democratic process. There is no Great Britain if Scotland says “Yes” – it will need to be called something else or risk international ridicule and be in deep denial. How can voters in Wales, Northern Ireland and England be denied a vote on a process that may see the end of Great Britain? Or do they not have the same rights as Scottish voters?

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