Author Archives: Constitutional Law Group

Mark Elliott: Scotland has voted “no”. What next for the UK constitution?

MarkAfter a very long — and at times electrifying — campaign, a modest but decisive majority of those who participated in the referendum on Scottish independence have voted “no”. In one sense, this is the end of the process — even if, bearing in mind the main UK parties’ still-to-be-fulfilled promises about further devolution, it is only the beginning of the end. In another sense, however, it might turn out to be only the end of the beginning.

Had Scotland voted “yes”, this would have represented a constitutional shock of seismic proportions, and would quite conceivably have resulted in major constitutional changes in the remainder of the UK. It is less certain that such changes will follow the “no” vote. Nevertheless, it is likely that the “no” vote will leave at least some sort of — and potentially a very significant — constitutional legacy thanks to the conferral upon the Scottish Parliament of the additional powers promised by the main UK parties during the final weeks of the independence campaign.

It is not, however, obvious that the changes provoked by the referendum will — or should — be confined to the beefing up of the existing devolution system. As the debate moves on from the falsely binary form — independence or Union? — it took during the campaign, a more searching and granular debate can and will succeed it. (“Falsely” binary because, as I have argued before, both independence and Union are highly catholic concepts that bear a range of meanings and are capable of shading into one another.) That debate will concern not the apparently extreme options that were on offer to the people of Scotland, but the constitutional smorgasbord of possibilities that arise when we consider what kind of Union should exist, as we move forward, between England, Northern Ireland, Scotland and Wales.

Federalism?

The obvious counterpoint to the present system is a federal one. Some — including Lady Hale JSC — have gone so far as to argue that the UK is already a federal system. This is incorrect as a matter of technical constitutional law, since the principal hallmarks of a federal system are absent from the UK. The system of devolution is asymmetrical, with different parts of the UK having different types and amounts of power (and, in England’s case, none); the relationship between the central government and each of the four home nations is different; and the legal power vested in devolved institutions is insecure in the sense that it flows from UK legislation that remains within the legal control of the Westminster Parliament, as distinct from being enshrined in a written constitution that is immune from unilateral amendment by a single institution.

However, recognising that the UK does not conform to the technical paradigm of the federal model gets us only so far — not least because, like independence and Union, federalism is a concept whose elasticity tells against over-emphasis of technicality. Demonstrating an admirable grasp of such matters, former Prime Minister Gordon Brown, in an article in the New Statesman in June 2014, points out that the UK’s constitutional architecture increasingly tends towards, even though it does not fully conform to, a federal model. For example: in theory, the present system depends upon the Westminster Parliament’s ongoing acquiescence in the autonomy of devolved institutions, because, in theory, Westminster could unilaterally override legislation enacted by — or even unilaterally change, diminish or abolish the powers of — such institutions. However, the theoretical position described by the doctrine of the sovereignty of the Westminster Parliament is radically transformed when viewed through the prism of political reality. From this perspective, the true measure of constitutional security enjoyed by devolved institutions in the UK is comparable to that which is enjoyed by their counterparts operating elsewhere under federal arrangements.

Yet for all that the current arrangements may disclose traces of federalism, they also remain clearly distinguishable from that model. Its adoption would entail major constitutional innovation, bearing in mind that the vast majority of the country — i.e. England — is currently exempt entirely from the devolution scheme. A genuinely federal model would involve the creation of exclusively English institutions sitting — alongside their equivalents in the other three home nations — under the umbrella of pan-UK federal institutions. This would represent an enormous constitutional change; and while the scale of that change is not in itself a good reason for rejecting it, such a fundamental alteration to the constitutional fabric ought not to be undertaken lightly.

Whether a federal system in the UK would be appropriate must be considered holistically. It would be blinkered to advocate its adoption merely because it would be in the perceived interests of one or some — as opposed to all — parts of the country. By definition, a federal model would be all-encompassing, and would change the basis of the relationship between all four home nations, as well as the relationship between those nations and central institutions of the UK state. But in spite — or perhaps because — of such radical implications, talk of federalism is on the rise as we emerge, blinking, from the Scottish independence debate.

This is likely so for two reasons. From the perspective of the devolved nations, federalism offers a degree of lock-in to the decentralisation of power which outstrips that which can be supplied by mere devolution. And although, as noted above, the constitutional security enjoyed by devolved institutions is considerable under the current system, a federal model would (among other things) supply greater and more-formal guarantees concerning both the balance of power and (just as importantly) the process by which any further alterations to that balance would fall be negotiated and secured. Meanwhile, from the perspective of England, federalism offers the prospect of a form of “home rule” that would address concerns about the increasingly anomalistic lopsidedness of the existing constitutional architecture. Viewed in this way, a shift to a federal model might facilitate the containment of English nationalist tendencies, which are certain to be awakened in the aftermath of the Scottish independence debate.

England

The position of England cannot be considered in isolation — any change to its position would necessarily have implications for the situation of the other home nations — but it is increasingly obvious that it must be confronted head-on. England has long remained (as Richard Rawlings pithily puts it) “the spectre at the [devolution] feast” because its sheer political, numerical and economic weight has generally been judged to exempt it from the case in favour of devolution. A very large part of that case has always been that Scotland, Wales and Northern Ireland should be afforded an opportunity to move out of the shadow cast by England by virtue of its size, thereby allowing those parts of the country to live out their distinct political, cultural and economic identities. (There are, it goes without saying, other layers of complexity that apply in the particular case of Northern Ireland.)

On this view, to propose the extension of the devolution settlement to England would be nonsensical: it hardly needs to step away from its own shadow. However, the position is surely more complex than this. Even if the initial impetus for devolution is understood in the way sketched above, it does not follow that — now that there is devolution elsewhere — devolution remains inapposite in England. It is one thing to argue that the arguments forming the initial impetus for devolution had particular purchase in relation to the three smaller home nations; it is another thing to argue that the inapplicability of those arguments to England ought permanently to exclude it from any recognition within the devolution settlement. What, then, might be the positive arguments in favour of revisiting England’s position? Two are particularly pertinent.

The first argument concerns fairness; it is an old one, but it is no less compelling for that. The so-called West Lothian problem — which concerns the capacity of Westminster MPs representing non-English constituencies to legislate on matters affecting only England — is an increasingly pressing one. At its heart lies a basic unfairness stemming from an absence of reciprocity: while English MPs have renounced involvement in whole swathes of devolved matters, MPs representing constituencies located in devolved nations remain capable of influencing, sometimes decisively, the passage of legislation affecting only England.

Moreover, the electoral-college function served by the Westminster Parliament — its political composition determines which party or parties form the UK Government — means that the West Lothian problem is capable of distorting the political make-up of what is, for many purposes, the English government. Indeed, in 2010, the Conservative Party could comfortably have formed a single-party majority government had only English constituencies been taken into account.

It was always only matter of time before this issue is transformed from one that concerns constitutional anoraks into one that impinges significantly upon popular consciousness and stokes resentment. And that time has very likely now arrived. As the competence of devolved institutions expands — resulting in commensurate diminishment of Westminster’s involvement in matters affecting the devolved nations — so the anomalistic nature of the involvement of MPs from outside England in purely English affairs becomes more glaring. Indeed, it is highly unlikely that promises of further powers for Edinburgh will be politically deliverable unless accompanied by a resolution of the West Lothian problem.

The second argument concerns identity. One of the purposes of devolution is to acknowledge and to give institutional life to differential national identities within the UK. Do existing arrangements adequately accommodate this need as it pertains to England? One response to this question is (as mentioned above) to argue that English national identity receives adequate expression thanks to the size of England coupled with its (ambivalent) representation within the pan-UK Parliament and Government. However, whether this is so depends, at least in part, on how well UK institutions are able to perform their secondary function as English institutions (a question that takes us back, at least in part, to the West Lothian problem). A further issue, however, is whether the focus of this debate should be an undifferentiated English identity or multiple English identities — and this, in turn, invites questions about the extent to which we should be concerned with England’s place in the Union, and the extent to which we should instead be concerned with the place of English regions within England.  A complex set of issues — encompassing not only devolution to but also devolution within England — therefore arises.

Big-bang constitutionalism — or a typically British response?

Where, then, does this leave us? A dramatic response would be a form of “big-bang constitutionalism” involving a fundamental rethink about how the constitution works, how the four home nations relate to one another, how they relate to the UK tier of government, and where and how more-local levels of government should fit in.

The upshot might be a genuinely federal model involving the creation of an English Parliament and an English Government invested with powers similar to those wielded in Edinburgh, coupled with confining the Westminster Parliament and the UK Government to matters that need to be dealt with on a pan-UK basis. The adoption of such a system would necessarily entail the enactment of a written constitution enjoying a hierarchically superior legal status, so as to render the balance of power between the different tiers of authority constitutionally secure and impervious to unilateral disturbance — the absence of such characteristics being incompatible with a federal model. But while a “federal” system is increasingly in the contemplation of those arguing the case for Scotland to remain a UK with a reimagined constitution, it is not at all clear that the language of federalism is being used in a technical sense as opposed to being a rhetorical flourish. It is also widely argued that a truly, technically federal system in the UK would be highly problematic given that one of the four sub-federal units, i.e. England, would be so large and dominant, accounting for around 85% of the population. As Professor Vernon Bogdanor recently pointed out in The Times (£):

there is no federal system in the world in which one unit represents more than 80 per cent of the population. The nearest equivalent is Canada, where 35 per cent of the population live in Ontario. Federations in which the largest unit dominated, such as the USSR, Czechoslovakia and Yugoslavia, have not been successful.

A second possibility would be to roll out devolution to England, too. This would stop short of a federal model, since the new English (like the existing devolved) institutions would be creatures of the Westminster Parliament, lacking the constitutional security inherent in federalism. Such a system would also remain distinguishable from federalism because the devolved institutions in each part of the country would continue to wield different types and amounts of authority. As such, a system encompassing devolution in England would — by definition — not amount to full-blooded adoption of a federal system.

It would, however, represent a major constitutional change — and, as such, it would run up against much the same problem as the one cited by Bogdanor above: namely, England would acquire a distinctive institutional machinery that would (on the argument adopted by Bogdanor and others) risk destablishing the Union thanks to England’s relative size. We should not, however, adopt this argument unthinkingly, given the position at which we have arrived today. In its present condition, the Union is hardly in a particularly stable condition. It is therefore at least worth balancing any risk of destablisation against the possibility that creating English institutions might in fact exert a stablising influence, by enabling English nationalist impulses — which, as surely as night follows day, will be ignited by perceptions that Scotland is being accorded preferential treatment through the devolution of additional powers — to be accommodated within the Union.

A third possibility — and by far the most likely one, bearing in mind the Prime Minister’s statement of this morning — is an incremental, as distinct from a big-bang, approach. Such an approach would be of a piece with the incrementalist, pragmatic tradition that is arguably the defining characteristic of British constitutionalism. This tradition treats constitutional reform as an ongoing process — one that addresses challenges as they arise, rather than undertaking holistic reimaginings of the system. If this tradition prevails, then a Scottish “no” vote — and the associated conferral upon Scotland of additional powers — will likely trigger a series of consequences.

First, the possibility of conferring further powers upon devolved institutions elsewhere in the UK will arise. If Scotland is given additional powers in the aftermath of the “no” vote, it is inevitable that Northern Ireland and Wales will agitate for equivalent treatment.

Second, the West Lothian problem will be confronted, whether in the way proposed by the McKay Commission or otherwise, whilst stopping short of the more-radical option of creating wholly distinct (either federal or devolved) English institutions. Of course, as those who have wrestled with the West Lothian problem well know, there are no easy answers to it. Even curtailing the capacity of non-English MPs to influence English law is not a magic bullet, not least because this creates a further problem known as the “shifting majority”, the difficulty being that an administration formed from a party with a pan-UK majority would be unable to secure its English legislative programme if it were to lack a majority of English MPs. Indeed, the shifting-majority problem is a good illustration of the problems invited by piecemeal, as opposed to holistic, constitutional reform: pull at one loose thread, and a wider unravelling may follow.

Once — as, at some point, there inevitably will be — a UK government that commands a majority in the House of Commons thanks only to the ballast accorded by MPs from outside England, this problem will become all to apparent. It will strike at the heart of the Westminster model, according to which the government of the day commands — and must command — a majority in the House. In contrast, once the West Lothian Question is resolved, the possibility arises of a UK  government being incapable of securing a majority in the House of Commons on the vast majority of the — English — legislative business transacted there. While, therefore, the notion of “English votes for English laws” may sound as modest as it is sensible, it opens up a new can of worms that may be hard to contain. In particular, if the resolution of the West Lothian Question results in a de facto English Parliament within the Westminster Parliament, it will be hard to resist some degree of reform on the executive plane. The logic of an (effectively) English Parliament may, in other words, dictate the establishment of (in some form) an English government. A real possibility, therefore, is that tackling the West Lothian Question will — unintentionally — turn out to be the mere precursor to more far-reaching institutional reform, the logical endpoint of which is something more closely akin to English devolution of full federalism.

Third, even if reticence around pan-England institutions closes off discussion about devolution to England, it is likely that greater attention will be given to devolution within England: that is, devolution not to all-England institutions but to regional English institutions. Indeed, Nick Clegg and David Miliband have already said as much. Such proposals fell spectacularly flat when proposed in north-east England a decade ago, but that is not to say that different proposals would also fail. However, whether devolution within (rather than to) England is a fitting response to the challenges arising from the Scottish referendum is another question. The answer to it turns on (among other things) the prevailing sense (or senses) of belonging that operate in England: do those living in England identify with — and wish to be represented by — institutions that reflect an undifferentiated notion of Englishness, or would they identify more readily  with institutions standing for particular sub-strands of English identity?

Fourth, the constitutional position of devolved institutions in Scotland, Wales and Northern Ireland will become increasingly entrenched — not by dint of legal security wrought through the adoption of a technically federal model and the disavowal of Westminster’s sovereignty which that would entail — but thanks to the ongoing solidification of constitutional conventions that render unilateral interference by London in devolved affairs every bit as inconceivable as central incursions into local matters within a federal system.

These incremental steps would not amount to wholesale constitutional reform, but they form part of a narrative that it has been possible to discern for some time: of a system that is moving irrevocably away from the centralist model that was once said to characterise the UK constitution, and towards a system that, while not federal in the classical sense, is manifestly not unitary in nature.

Just as it does not now, so the UK constitution would not, were these things to come to pass, conform to any particular, identifiable model. It would not, for instance, be neatly characterisable as a federal system; nor could it be described as a unitary state. Rather, the constitution would remain — as it has been for centuries — messy and incomparable. But these characteristics are not necessarily negative ones. Untidiness is a price that is arguably worth paying for a system that exhibits a degree of flexibility, albeit that the practically irreversible dispersal of power that devolution is accomplishing inserts brakes upon that flexibility which are novel in this country. Nor is uniqueness necessarily something to be disparaged. That the UK constitution compares to no other should not inevitably be taken to mean that there is something defective about it. Rather, it is testament to the uniqueness of our epic constitutional story. The “no” vote in Scotland means that — at least for the foreseeable future — that story will endure. Nevertheless, it is hard to deny that — in ways that are, in the immediate aftermath of the referendum, difficult to forecast with absolute certainty — the “no” vote will be shown by history to have marked a profound turning-point in that story.

Mark Elliott is a Reader in Public Law at the University of Cambridge. This post was first published on his blog, Public Law for Everyone. Mark can be found on Twitter as @DrMarkElliott.

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Filed under Constitutional reform, Devolution, England, Scotland, UK Parliament

Aileen McHarg: The Vow: Vote No for More Devo

aileenToday’s papers carry the text of a pledge by David Cameron, Ed Miliband and Nick Clegg that a No vote in Thursday’s referendum is not a vote for the status quo.  Rather, they claim, a No vote will mean ‘faster, safer and better change’ to the devolution settlement than a Yes vote would bring.  This is the fourth commitment to further devolution by the Unionist parties – following the pledge by the Scottish party leaders in June, another by the UK party leaders in August, and the timetable for reform announced by Gordon Brown and endorsed by the other parties last week – and all three parties have, of course, produced individual sets of reform proposals.[1]  However, this latest pledge strengthens the commitment to reform by offering more information on the likely substance of a post-referendum cross-party agreement.  Accordingly, we can probably now say with some confidence that there will be some reform to the devolution settlement in the event of a No vote.

Nevertheless, important questions still remain about the nature of the constitutional alternative to independence that is being offered to voters in Scotland.

Do We Know What Exactly is on Offer?

There are four elements to the party leaders’ latest pledge.

First, they promise ‘extensive new powers for the [Scottish] Parliament’.  The pledge does not specify what these will be, but going by the individual party proposals, the key reforms are likely to involve taxation and welfare powers.  However, as regards further tax devolution, there are significant disagreements between the three parties on how far this should go.  The Liberal Democrats have proposed full devolution of income tax, capital gains tax, inheritance tax and air passenger duty, along with assignment of the proceeds from corporation tax.  The Conservatives have proposed full devolution of income tax, air passenger duty and (possibly) assignment of the proceeds from VAT.  The Labour party proposes only further partial devolution of income tax, and a possible power to set a lower rate of fuel duty for remote rural areas.

On welfare powers, the Liberal Democrats propose that these should be entirely retained at the UK level, while both Labour and (more tentatively) the Conservatives have suggested devolution of Housing Benefit and Attendance Allowance, with the Conservatives also proposing a general power to ‘top up’ UK-wide benefits.  The problem here is that it is not clear how, in practical terms, individual benefits could be hived off from the overall welfare system, particularly given the move away from specific benefits towards Universal Credit.

Secondly, the pledge states that ‘the Scottish Parliament is permanent’.  Again, it is not clear what is intended here.  The Liberal Democrats proposed entrenchment of the Scottish Parliament via a formal declaration of the UK Parliament, while the Labour party proposed that the Sewel Convention (which prevents legislation by the UK Parliament on devolved matters, or amendment of the Scotland Act, without the Scottish Parliament’s consent) should be made legally binding.  However, without broader constitutional reform, neither of these would by themselves secure legal entrenchment of the Scottish Parliament.

Thirdly, the pledge implies that the Barnett formula, which secures a relatively generous allocation of public expenditure to Scotland, will be retained.  It does, however, stop short of clear guarantee – perhaps in recognition of the fact that this is a controversial issue elsewhere in the UK.  And in any case, the significance of the Barnett formula will be proportionately reduced the greater the degree of fiscal devolution.

Finally, the pledge contains a statement of the ‘purposes’ of the Union.  The party leaders ‘agree that the Union exists to ensure opportunity and security for all by sharing our resources equitably across all four nations to secure the defence, prosperity and welfare of every citizen.’  This picks up on an idea proposed by the Liberal Democrats and by Gordon Brown that there should be a declaration of ‘principles of Union’ to guide future development of devolution, and (presumably) assist in resolving conflicts over the allocation of powers between Westminster and Holyrood.  As things stand, however, it is not clear what legal status, if any, such an agreement on the ‘purposes’ of the Union would have.  Moreover, the statement agreed by the party leaders is so vague and bland as to be little help in assisting with the kinds of detailed disputes over which powers should be reserved and which devolved which have arisen in the past and which are likely to recur in future.

There are a variety of other specific reform proposals which appear in the different parties’ devolution proposals.  For instance, Labour and the Liberal Democrats have recommended reforms to the machinery for inter-governmental relations to enhance partnership working.  All three parties have called for reforms to local government in Scotland.  And the Conservatives have proposed reforms to the internal workings of the Scottish Parliament and to the civil service in Scotland.  It is still not clear whether any of these wider issues will be included in post-referendum reforms, nor whether more powers for the Scottish Parliament might be conditional on agreement to these broader changes.

Can the UK Party Leaders Commit to Further Reform?

Assuming that that agreement can be reached on the content of further reforms to devolution, is the pledge by the party leaders a guarantee that such reforms will in fact be implemented?  After all, one of the reasons why the UK government rejected the Scottish Government’s suggestion that there should be a second question on more devolution on the referendum ballot paper was that changes to the devolution settlement could not legitimately be agreed without a UK-wide process.  At the very least, any changes will inevitably require the consent of the UK Parliament and the Scottish Parliament, whether in the form of new primary legislation, or of Orders under the Scotland Act 1998 or the Scotland Act 2012.

In reality, the party leaders probably can ensure, though the operation of the party whips, that sufficient of their members will back any legislative proposals that emerge from a post-referendum agreement process.  Nevertheless, given that we know that there is considerable opposition amongst both Labour and Conservative backbenchers to the transfer of any more powers to Scotland, and likely unhappiness in the Welsh Assembly (and perhaps also the Northern Ireland Assembly) about further privileging the Scots, any legislative proposals can expect to face opposition in the House of Commons, and perhaps especially in the House of Lords.  Given that the Scottish Parliament will remain under the control of the SNP after the referendum, we might also expect that Holyrood will try to use its consent power to seek stronger powers and/or to remove proposals that the SNP does not like, as occurred in relation to the Scotland Act 2012.

Is the Proposed Timetable Feasible?

Given the ongoing lack of agreement on the details of reform, as well as the likelihood of opposition, the timetable proposed by Gordon Brown for post-referendum reforms to be implemented seems extremely ambitious.  The proposal is that cross-party talks would be convened immediately after a No vote in the referendum, with a view to producing a White Paper by the end of October and draft legislation by January 2015.  Since there would then be less than three months before the dissolution of the UK Parliament on 30 March 2015, there seems little realistic chance of legislation being enacted before the General Election on 7 May.  Nor would it be desirable for an important constitutional reform measure like this to be subject to such a truncated period for public consultation and parliamentary scrutiny.

In fact, this does not appear to be what is envisaged.  Instead, the proposal seems to be that the three main parties would commit in their election manifestoes to enacting the agreed draft legislation in the first session of the new Parliament.  However, postponing reform until after the 2015 election adds a new element of political uncertainty.  It is unclear whether manifesto commitments would be honoured if, for instance, the proposals became a major point of contention in the election campaign or if UKIP secured significant electoral support.

Are the Powers On Offer Likely to be Adequate?

Assuming that the parties can agree on a set of proposals for reforming the devolution settlement and get them through the legislative process intact, are they likely to make a substantial difference to the powers of the Scottish Parliament?

Although the media routinely refer to the alterative to independence as ‘devo max’, it seems clear that even the most expansive version of any likely agreement between the parties would fall far short of ‘full fiscal autonomy’, and an even longer way short of giving the Scottish Parliament powers to engage in meaningful reform of the welfare system.  To the extent that the referendum debate has unleashed a desire on the part of the Scottish people for fundamental social and economic reform, these proposals would not allow that desire to be fulfilled by the Scottish Parliament.

Indeed, there is a risk that the Scottish Parliament could in practice be more tightly constrained than it is at present.  As already noted, an increase in fiscal autonomy necessarily implies a reduction in the relatively generous financial consequences for Scotland from the Barnett formula.  During the referendum campaign, the Scottish Government has sought to justify that generous treatment by pointing out that Scotland generates more in tax revenues than it receives by way of public expenditure.  However, that favourable tax position is largely attributable to the assignment of a geographic share of oil and gas revenues to Scotland.  Since there is no proposal to assign or devolve these revenues to Scotland, a Scottish Parliament with enhanced tax raising powers could find itself in a weaker financial position.  Indeed, the desire to rein in the Scottish Parliament’s spending power seems to be a key reason why the Conservative party is relatively keener than the Labour party to extend Holyrood’s fiscal powers.

Moreover, as Paul Cairney has argued, the devolution of income tax by itself gives the illusion of greater fiscal autonomy than it actually brings.  For one thing, the Scottish Government would have limited power to balance changes in income tax with changes in other taxes, so as to enable it to influence social and economic behaviour.  For another, income tax is a tax with particularly high political salience, making it especially difficult to increase.  In the context of ongoing Union, it would also be politically difficult to maintain different income tax levels from elsewhere in the UK.

Is Reform Likely to Produce a Stable Constitutional Settlement?

What is missing from the party leaders’ pledge is any acknowledgment of the implications of further devolution for Scotland for the governance of the rest of the UK.  As is well-known, the UK’s current territorial constitution is highly asymmetric: there are different levels of devolution to Scotland, Wales and Northern Ireland and none in England.  This is a situation which is potentially highly unstable, as the different devolved nations play catch-up with one another.  It is also a situation with high potential for territorial resentment.  We see this, for instance, in concern over the perceived unfairness of the Barnett formula, and in the so-called ‘West Lothian Question’, which asks why Scottish (and Welsh and Northern Irish) MPs should be able to vote on issues in the UK Parliament which affect England only.  This latter problem stems from the lack of institutional differentiation between the governance of England and the governance of the UK.  But its flip side is equally problematic – the inbuilt risk of conflating the interests of the UK with the interests of England.

There has been some discussion during the referendum campaign of establishing a constitutional convention in the event of a no vote to examine the broader territorial constitution, and some interest in a potential federal solution.  However, there are significant challenges in finding a stable, long-term constitutional solution for the UK.  More importantly, the absence of any such promises from the party leaders’ pledge suggests that broader constitutional reforms are unlikely to be a high political priority.  In the meantime, stronger powers for Scotland are likely simply to exacerbate existing asymmetries at the risk of further stoking territorial resentments.

Conclusion

The ratcheting up of the unionist parties’ promises on further devolution suggests a belated realisation that keeping a second question on this topic off the referendum ballot paper was a tactical mistake.  We have known all along that there would have been considerable public support for a half-way house between independence and the status quo, and over the course of the long referendum campaign it might well have been possible to work out some of the problems in the current proposals that have been identified here.

In contrast, by introducing a de facto third option at this very late stage in the referendum process – and very obviously in response to tightening opinion polls – the unionist parties may well discover that their proposals are ‘too little too late’ to stop the momentum towards a Yes vote.  Alternatively, if the No vote does hold up, and the proposals are implemented, it might be a case of ‘legislate in haste, repent at leisure’.

Aileen McHarg is Professor of Public Law at the University of Strathclyde

 

This post originally appeared on the Scottish Constitutional Futures Forum Blog.

 

[1] Scottish Liberal Democrats (2012), Federalism: the Best Future for Scotland: Report of the Home Rule and Community Rule Commission; Scottish Liberal Democrats (2014), Campbell II: the Second Report of the Home Rule and Community Rule Commission; Scottish Labour Devolution Commission (2014), Powers for a Purpose – Strengthening Accountability and Empowering People; Scottish Conservatives (2014), Report of the Commission on the Future Governance of Scotland.

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Alan Trench: What follows the referendum: the process of negotiating Scottish independence, or of delivering Devo More

Alan TrenchBack in May, I gave a lecture at the University of Ulster’s Belfast campus about what might follow the vote in the Scottish referendum. I’m afraid I’ve only now had the chance to tidy that up for wider reading. It’s available on the Social Science Research Network here, or can be downloaded directly HERE. The lecture as a whole is somewhat lengthy (around 10,000 words), so this post picks out the key points.

Perhaps the most important and novel part of the lecture is the second one, where I map out what would follow a Yes vote – the sort of steps needed, particularly on the rUK side to tackle the many uncertainties that will follow. This is a separate issue from that of the strengths of each party in the negotiation, discussed HERE earlier in the week.  This would call for a great deal of imaginative thinking, in the midst of a first-order constitutional crisis. In particular, it seems to me that:

  • The negotiating process needs to move with all due speed, to preserve the democratic legitimacy of both rUK as well as an independent Scotland. There is no good reason for rUK to seek to prolong the process, and plenty of reasons for it not to.
  • The 2015 UK General election presents grave problems for that – the time lost to campaigning in an election and briefing a possible incoming new government means it will be impossible to make a proper start in negotiations before June 2015, since even provisional agreements reached under the present government might lack support from the new one.
  • One option – which appears to be gaining some support, particularly among Conservatives – is to postpone the 2015 election. But the present government has already been in office for 4½ years, and has no mandate to negotiate something so important to rUK as Scottish independence.
  • A better option would therefore be to hold a general election early, before the end of 2014, so there was both certainty about the composition of the UK/rUK Government and that government had a political mandate for independence negotiations. This would need approval by a two-thirds majority in the Commons, under the Fixed-term Parliaments Act 2011.
  • Those negotiations will not be quick or straightforward – not just because of the difficulty or complexity of the issues to be considered, or how trade-offs might be made between issues, but because they are a matter for parliaments as well as governments. Parliaments will need to approve legislation giving effect to the final outcome, and in Westminster’s case also to authorise much of the necessary preparation on the Scottish side. There will need to be close co-operation between governments and their parliaments, both to ensure proper democratic control and accountability in the process and to simplify the process of approving the agreement at the end of it.
  • A special UK Parliamentary committee, probably mostly meeting in private to preserve the confidentiality of proceedings and negotiating positions, would be an important way of helping to accomplish that.
  • There would also be problems about the involvement of Scottish MPs and ministers in the independence process on the UK/rUK side. It would be contrary to the interests of the people of rUK for MPs sitting for Scottish seats to be involved in that process; as those negotiations affect first and foremost the people of England, Wales and Northern Ireland, only their representatives should be involved – whether in negotiating teams, Cabinet or Cabinet committees when considering independence-related matters, or when those are considered in Parliament. This is the West Lothian question on steroids.
  • The need to ensure a broad consensus of support within rUK for the agreement also means that the Opposition – whoever it may be at the time – will need to be involved in the process. In particular, figures from the Opposition should be included in the rUK negotiating team, and party leaderships kept abreast of all issues under consideration. Again, while this complicates the process of the negotiations, it will simplify the process of approving and implementing an independence agreement.

Much of this sits oddly with usual British constitutional practice. But a Yes vote would trigger extraordinary times, and a need for extraordinary measures to cope with an unprecedented and very difficult situation.

As far as a No vote is concerned, the lecture maps out the programme that was clearly being advanced by the Unionist parties in May, and advanced by the IPPR’s Devo More project: separate party policies, cross-party agreement on the key elements of that, early consideration of them following the referendum and implementation through endorsement in the 2015 election manifestoes. That process would clearly need to include the SNP as well as the pro-union parties, unless the SNP chose not to take part. Since I gave the lecture, the Scottish Conservatives have published their proposals in the form of the Strathclyde Commission report (and I have amended the text to reflect that). Subsequent developments have hardened the commitment of the parties both to the need for joint action and a clear timetable, as well as a Scottish-focussed process to agree the main features of ‘enhanced devolution’.

None of this is about simply ‘giving Scotland more powers’. It is about getting devolution right, so that it enables Scottish voters to have what they have wanted for more than a decade: extensive self-government within the Union. That will benefit other parts of the UK too, and not just by achieving a greater degree of constitutional stability. It will ensure that if Scottish taxpayers choose to spend more on devolved Scottish services, they bear the fiscal consequences of that; this would not be at the expense of taxpayers outwith Scotland.

There is, however, a clear need for that to be followed by a wider process covering the whole UK, and the best way to achieve that would be through a conference of members of the UK’s parliaments and legislatures; MPs, MSPs, AMs and MLAs. This is the idea underpinning the Strathclyde Commission’s recommendation for a ‘committee of the parliaments and assemblies’ . Through their election, these figures all clearly have a mandate and authority that other methods of selection would not give them.

Whatever happens on 18 September takes the UK into new and uncharted constitutional waters. It is important that everyone understands what is likely to follow, and what the world is likely to look like in a few months’ time.

 

Alan Trench is a Professor of Politics at the University of Ulster, also having affiliation to the University of Edinburgh and the Constitution Unit at University College London, and he runs the blog Devolution Matters. This post is reproduced from that blog with permission.

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Luke Beck: Scottish Independence and Australia

LukeWhat effect might Scottish independence might have on Australia’s constitutional arrangements? This might seem like an odd question but there has been a suggestion in Australia that there might be a profound effect.

Macquarie University’s Iain Stewart is reported by the Australian Broadcasting Corporation as recently saying that Scottish independence ‘could remove [Australia’s] head of state, the monarch, and thus, at least legally, make government in Australia impossible.’ Stewart wrote a piece on The Conversation to similar effect in 2011. A similar suggestion was made by a senior member of the Victorian Bar, David Denton SC, in 2012.

The Australian Constitution relies heavily on the role of the Queen. Among the most important references to the Queen in the Australian Constitution are section 1 establishing the Queen as formally a part of the Australian Parliament and section 61 vesting the executive power of Australia in the Queen. Of course, in practice, the conventions of responsible government operate. Stewart’s concern relates to how we identify who the Australia monarch is.

The starting point for identifying the Australian monarch is covering clause 2 of Australian Constitution. Covering clause 2 provides: ‘The provisions of this Act referring to the Queen shall extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom.’ The Act referred to in covering clause 2 is the Commonwealth of Australia Constitution Act 1900 (Imp), s 9 of which contains the Australian Constitution. The sections of that Act are usually referred to in Australia as ‘covering clauses’ to emphasise they are not actually part of the Australian Constitution.

Stewart’s essential concern is that should Scottish independence occur as a result of the 18 September referendum there would no longer be any United Kingdom by reference to which Australia determines who its monarch is.

I say that Stewart’s concern is unfounded.

In the first place, we’ve been here before. Covering clause 2 simply refers to ‘the United Kingdom’. That is in fact a short hand reference to ‘the United Kingdom of Great Britain and Ireland’. That was the entity existing in 1900. That is the entity referred to in the oaths schedule to the Australian Constitution. The schedule says regarding the oath of office that ‘The name of the King or Queen of the United Kingdom of Great Britain and Ireland for the time being is to be substituted from time to time’. The constitutional preamble likewise refers to the Australian people agreeing to unite in a federal Commonwealth under the Crown of ‘the United Kingdom of Great Britain and Ireland’.

But, of course, the United Kingdom of Great Britain and Ireland no longer exists. With the independence of the Republic of Ireland, the country became the United Kingdom of Great Britain and Northern Ireland. Scottish independence would, from the point of view of Australia’s constitutional situation, be no different to Irish independence. A chunk of the UK has broken away and become its own independent nation.

The reference to the United Kingdom in covering clause 2 must be read as a reference to the United Kingdom of Great Britain and Ireland and it successor state/s, to adopt the international law terminology. Following Irish independence the successor state was the United Kingdom of Great Britain and Northern Ireland. Australia experienced no constitutional problems as a result of Irish independence and there was no doubt about who Australia’s monarch was. If Scotland becomes independent, the successor state will be what is left of the United Kingdom by whatever name it chooses to go by.

There is another reason why Stewart’s concern is unfounded. That reason is that it is based on an assumption that the legal effect of covering clause 2 is to mandate that whoever is the UK monarch is also by virtue of that fact the Australian monarch. This is certainly one view of the effect of covering clause 2 (which for the reasons given above poses no problems for Australia should Scotland become an independent country). But there are other views of the legal effect of covering clause 2.

As Anne Twomey explained in ‘Changing the Rules of Succession to the Throne’ [2011] Public Law 378, 391 and on the Constitutional Critique Blog in 2012 there are two other possible interpretations:

  • “covering clause 2 is merely an interpretative provision which simply assumes, but does not enact, the existence of a succession law that is operative in Australia. According to this view, covering clause 2 operates to ensure that references to the sovereign are not taken to be confined to the sovereign at the time of the enactment, but extend to whoever happens to be the sovereign from time to time in accordance with the applicable law. As the United Kingdom can no longer legislate for Australia, the applicable law would be the pre-existing law of succession as altered by Australian law.”
  • “covering clause 2 incorporated by reference into the Commonwealth of Australia Constitution Act the British laws of succession to the throne. Under s 4 of the Statute of Westminster, those laws could be amended or repealed by United Kingdom legislation to which Australia had given its request and consent. That is no longer the case. Section 1 of the Australia Acts 1986 provides that no Act of the United Kingdom Parliament may now extend to Australia as part of Australian law. In Sue v Hill [(1999) 199 CLR 462, [93]] three Justices of the High Court of Australia noted that covering clause 2 identifies the Queen ‘as the person occupying the hereditary office of Sovereign of the United Kingdom under rules of succession established in the United Kingdom.’ Their Honours went on to state:

The law of the United Kingdom in that respect might be changed by statute. But without Australian legislation, the effect of s 1 of the Australia Act would be to deny the extension of the United Kingdom law to the Commonwealth, the States and the Territories.

The argument here is that the rules of succession have been effectively patriated with the Australian Crown and while they continue to exist in their current British form, they may only be amended or repealed by Australian action.”

On both of these alternative views of covering clause 2, no change in British law can affect the way in which Australia’s monarch is identified. This is why Australia needed to pass legislation to give effect to the Succession to the Crown Act 2013 in Australia. On the same basis, any changes brought about to the British laws of royal succession as a consequence of Scottish independence would be of no effect regarding the Australian monarch.

In conclusion, it seems pretty clear that Scottish independence will have no direct impact on Australia’s constitutional arrangements.

 

Luke Beck is a PhD Candidate, Postgraduate Fellow (Research and Teaching) and Associate, Constitutional Reform Unit at Sydney Law School, The University of Sydney.

Suggested citation: L. Beck, ‘Scottish Independence and Australia’ UK Const. L. Blog (12th September 2014) (available at http://ukconstitutionallaw.org)

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Debate: Neil Walker: Scotland and the EU: A Comment

NeilOnce upon a time it seemed like a good idea to try to clarify the route (Article 48 or Article 49 TEU) through which and the terms on which (with or without UK opt-outs on Euro, Schengen etc) an independent Scotland might join the EU prior to the great referendum vote of September 18th. Clarity would have allowed for a more informed assessment ahead of ‘D’ day by all involved in the drawn out constitutional drama – a more considered appraisal of the risks attendant upon this or that choice. But clarity has not been forthcoming, and it is now far too late in the day to imagine that it will. In fact, clarity before the vote was probably always a naïve hope. As Sionaidh Douglas-Scott reminds us, there are no precedents for ‘internal enlargement’ of the EU following the separation of an existing member state, no Treaty provision directly in point, and no obvious forum outside of the political process where a definitive statement of the relevant law can be supplied or enforced. Add to that the understandable tendency of both sides to talk up those arguments that best serve their cause and the reluctance of European institutions to anticipate the correct approach, and it is no surprise that our sense of how to proceed remains legally unsettled. Of course, in the event of a ‘yes’ vote these questions will no longer be moot, and the law would henceforth come into its own. Matters unresolved would have to be addressed in ‘real time’ and the best sense of the relevant membership procedures and conditions  thrashed out with prompt authority, though the requirement of constitutionally copper-bottomed ratification by all member states would still leave the process ultimately at the mercy of national discretion.

The search for advance clarity has proven not merely fruitless, however. Worse than that, it has tended to deflect attention from the deeper questions of political morality at play. The climate of debate has swung between a frustrated legalism which can never substantiate its own authority and a strategic – some might say cynical – political opportunism that takes the line of most convenience, with each the reinforcing condition of the other. Which is why the intervention by Joseph Weiler is refreshing, at least at one level. He sees no technical legal impediment to Scotland joining, and he does not seek to contrive such an impediment. And while he does take seriously the concerns of other states, Spain, France, Italy, Belgium and elsewhere – from whom secession is threatened, or is a long-term possibility, he does so not in terms of their narrow strategic self-interest but on account of the disadvantage to all of a ‘domino  effect’ of ever more strident nationalist claims across the continent and beyond.

But  his main argument is located in a more EU-specific strain of public reason. He has claimed – earlier with special reference to the Catalan case and now with regard to the Scottish case – that just as national minorities in existing member states who presently enjoy extensive forms of individual and collective freedom have no automatic right to secede as a matter of general international law, so, too, the EU in its accession and general membership policy should not be expected to indulge the independence claims of these unoppressed sub-state nations. To the contrary, the very ethos of integration, reconciliation and continental solidarity that has fed the European project from its post-War beginnings should cause the EU, and all those who endorse the best understanding of its foundations, to take a dim view of any separatist impulse that seems to betray these founding virtues. From this perspective, therefore, far from having a stronger claim than those external candidates who have benefited from the post-Cold War Enlargement, those nations already comfortably nested in the EU’s Western European heartland should be refused a safe supranational haven if they insist on the path to independence.

I applaud the candour of Weiler’s argument and its refusal to hide behind either the law’s false certainties or the strategically hostile motives of un-named others  (as was Barroso’s repeated tendency when President of the Commission). Yet I join with Douglas-Scott, Kalypso Nicolaidis, Michael Keating and others in finding the Weiler approach too stringent. In the first place it does not take a people’s own view of their preferred collective future seriously enough. Whether we are dealing with the  Scottish or the Catalan case or that of any other national minority, surely more store than Weiler allows should be set by an aspiring nation’s own sense of what is the constitutionally adequate vindication of its desire for collective autonomy. If nothing short of independence is deemed sufficient from the perspective of the constituency in question as an affirmation of shared political identity, it is difficult to see why such a subjective collective aspiration should be summarily dismissed in favour of a supposedly objective standard of adequate individual and collective freedom – one which, incidentally, always leaves in successful place another and prior but far from necessarily morally superior claim to nation-statehood. And international law, with its high threshold of a ‘right’ to self-determination is of little help here, since its structurally biased concern has always been with the minimum necessary disturbance of the existing international distribution of sovereign authority rather than the fairest and fullest accommodation of self-determination claims.

In the second place, even if a case for the EU as an entity possessing and pursuing a unique historical mission to make internal secession unacceptable and unnecessary can be persuasively advanced, it seems unduly dogmatic to use this to justify a rigid policy against continued membership of new internal states. There are, after all, other and rival views of the deeper purpose of the European Union. The priority given in the Preamble to the TEU to the principle of subsidiarity offers one different strand, just as the deepening significance of EU citizenship as a horizontal relationship amongst persons as Europeans rather than state nationals offers another. These strands reflect an alternative and more independence-friendly perspective. In the face of these competing narratives, the public policy of the EU on accession should surely remain more agnostic.

Yet would this agnosticism, and its consequential refusal neither to oppose Scottish membership nor to concede everything to its fast-track aspirations, not simply involve an extension of the failure of conviction that we have found – and criticized – in the preoccupation with the odd couple of ‘pure’ legalism’ and ‘impure’ political expediency? I do not think so. There is a big difference between avoiding the question of principle and answering it through a position of considered neutrality. What is more, and what is crucial, the EU can and should contribute something other to the Scottish debate, and that of any sub-state nation, than the role of the gatekeeper whose authority is dubious and, if exercised, liable to breed resentment.

The Union’s influence on the debate should instead be more indirect, but also more telling. It should rest in the way in which its very existence alters the stakes of political nationalism. On the one hand, by pooling significant amounts of sovereignty above the state, the EU demonstrate that the choice between independence and continued incorporation in another state is far from being an all-or-nothing one, and by offering various economic and social rights and measures of non-discrimination it offers the kind of cosmopolitan freedom that  guarantees against the systematic ill treatment of minority nations and nationalism. On the other hand, by supplying a new level of political identity, and a new point of reference for interpreting national identity, the EU surely also changes the expressive significance of national sovereignty and its alternatives. Just as ‘independence in Europe’, as in the Scottish nationalists’ longstanding slogan, conveys a very different meaning and sense of collective identity than ‘separatism at Europe’s Northern edge’, so too ‘Britain in Europe’ is much less isolationist than without its qualifier, and ‘Scotland-in-Britain-in Europe’ suggest a much less subordinate native identity than merely ‘Scotland in Britain’.

As the examples imply, the argument here can cut both ways. The presence of the EU both offers a spur to new projects of national sovereignty but also, and in my view more emphatically, it supplies a set of considerations which makes the project of new statehood less pressing, less consequential, and provided we can trust in continuing UK membership of a continuing EU (both of which statuses, of course, need careful attention) less relevant and ultimately unnecessary. This sense that the EU is structurally and symbolically adept at securing the kinds of material guarantees and forms of individual and collective dignity whose absence might otherwise fuel and justify independentist claims no doubt lies behind Weiler’s insistence that the EU should also be explicitly and concretely resistant to new forms of legal and political identity that are divisive of existing member states. But, in my view the first claim should be allowed to stand or fall on its own merits. The ‘carrot’ of current EU membership, in other words, should be its own incentive, without the ‘stick’ represented by the threat of future exclusion. And, even at this late hour, the European case for Scotland staying in the United Kingdom is better served by emphasizing the space for the expression and realization of national political interests, even without the old forms of state sovereignty, that Europe offers in the here and now, rather than by dire warnings of privations to come.

Neil Walker holds the Regius Chair of Public Law and the Law of Nature and Nations at the University of Edinburgh.

This posted originally appeared on the Verfassungblog, and is now reposted on this blog as part of a collaboration between UKCLA Blog and the Verfassungblog.

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Debate: Stephen Tierney: Scotland and the EU: A Comment

stierneyI agree with Sionaidh that the accession of an independent Scotland to the European Union is not in any serious doubt. I develop this point in a paper written with Katie Boyle here. In this blog I argue that although accession will no doubt take time, there is unlikely to be any period within which Scotland is effectively cast out of the EU. More speculatively I would like to ask whether there might in fact a duty on the part of the EU to negotiate Scotland’s membership, and whether the Secession Reference to the Supreme Court of Canada may provide an interesting analogy supportive of this argument.

To begin, I am not as sure as Sionaidh that Article 48 would be the route to membership adopted by the EU. I believe Article 48 does offer a plausible mechanism to secure Scotland’s membership, but given that Scotland will become a new Member State and given that the case law of CJEU establishes that specific articles have preference over general ones, it seems that Article 49 offers the more obvious process. Of course politics may take over here so we simply don’t know for now.

In either event detailed negotiations of the terms of membership will be required and a potentially lengthy process of ratification of a new accession treaty (if Art 49 is used) could well ensue. That said, Scotland’s position is in no way analogous to that of accession countries joining from the outside. We see this when we turn to another and perhaps more important question: what if the entire accession process is not concluded by the date of Scottish independence, proposed by the Scottish Government to take place in March 2016? In this event would Scotland, in declaring independence, find itself cut off from the rights and obligations that come with membership of the European Union, albeit temporarily? This is a huge question in the current referendum debate.

For a number of reasons such a radical break in Scotland’s relationship with the EU seems very unlikely. Scotland is already embedded within the EU and is of no little economic, strategic and territorial importance to the Union; it is integrated into its institutions, its territory is subject to EU law, and residents of Scotland from across Europe enjoy the rights of EU citizenship within Scotland. For these reasons it seems very likely that the EU will endeavour to ensure that the jurisdiction of EU law and the rights and responsibilities of citizenship continue to apply to Scotland in any intervening period between independence and full EU membership, rather than deal with the administrative upheaval and potential legal minefield which the removal of Scotland from the writ of EU law would bring.

This is also a time of uncertainty for the European Union in light of the economic crisis and the conflict in Ukraine. Why when faced with these more significant concerns would the EU not seek to avoid the practical problems which would result from the loss of jurisdiction in Scotland, the concomitant impact on rights of citizens etc.? And such a scenario is surely entirely avoidable. A more likely prospect is an interim arrangement which would secure the continuing effect of EU law in relation to Scotland, but would delay formal membership by Scotland until negotiations and the ratification process are each concluded.

Another argument (made at greater length here) is that the salience of the concept of citizenship to the EU, the Union’s commitment to democracy and the growing emphasis on the protection of citizens’ rights, together suggest that there is in fact a prima facie duty on EU institutions and Member States to negotiate Scottish accession to the EU in the event of a Yes vote. This argument is based upon the EU’s own treaty commitments (for example, the principles of sincere cooperation, full mutual respect and solidarity found in Art 4 TEU), but can also be developed by analogy with the Reference re Secession of Quebec.

In this case the Supreme Court of Canada found within the Canadian constitution an obligation on Quebec’s ‘partners in confederation’ to negotiate Quebec’s secession. The situation regarding Scotland and Europe is of course different in a number of respects. The EU is not a state like Canada and does not have a history of some 130 years of confederation. However, on the other hand, the Canadian Supreme Court based the duty to negotiate upon the principle of democracy which is not expressly mentioned in the Canadian constitution, but which the Court took to be an implicit and unwritten principle of the constitution. By contrast, Article 2 TEU makes explicit reference to the principle of democracy. Based primarily upon this principle, the Canadian court decided that ‘a clear expression of self-determination by the people of Quebec’ imposed duties on the rest of Canada to negotiate. By analogy, a Yes vote in the referendum can reasonably be seen as the expression of the will of the people of Scotland not only to be an independent state but to be part of the EU. A commitment to EU membership is part of the Scottish Government’s proposal for independence; it is contained in the White Paper, ‘Scotland’s Future’ for example. It can be argued strongly that voters are aware that to vote Yes to independence is also to vote for Scotland becoming an independent member of the EU. And since we are discussing a territory which is part of the EU and which wishes to remain part of the EU, it would seem easier to assert an obligation on partners in a union to negotiate the continued membership of a component part, where the principle of democracy, along with citizenship, are express constitutional commitments, than an obligation to negotiate its secession where the constitution is silent on both secession and democracy as it was in Canada.

None of this is to say that there will not be a number of important and possibly contentious issues to be dealt with in the negotiations. Scotland’s relationship to monetary union, the status of existing UK opt outs and the budget rebate all present potential sites of dispute. Indeed, should the terms of admission be very unfavourable there may well emerge a debate within Scotland as to whether membership of the EU is even desirable; the UK’s own EU trajectory will be relevant to such a debate. In short, Scotland will almost certainly not get all that it wants in seeking to join the EU. But this is very different from any suggestion that it will somehow be cut adrift entirely from the European project.

 

Stephen Tierney is a Professor for Constitutional Theory and Director of the Edinburgh Centre for Constitutional Law at the University of Edinburgh.

This posted originally appeared on the Verfassungblog, and is now reposted on this blog as part of a collaboration between UKCLA Blog and the Verfassungblog.

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Debate: Bruno de Witte: Scotland and the EU: A Comment

Bruno-de-Witte-avatar-1410304240-96x96Two main options have been put on the table for (re-)accommodating an independent Scotland in the European Union: accession of an independent Scotland to the European Union by means of the procedure of accession of new member states set out in Article 49 TEU; or accommodation of Scotland as a new member state at the same time as it achieves independence, by means of a revision of the European Treaties according to Article 48 TEU. The latter option is supported by the Scottish government in its Scotland’s Future White Paper of November 2013. The Treaty revision would enter into force at the same time as Scotland would become independent (and the government suggested a date for this to happen, namely 24 March 2016). In this way, there would be a seamless transition. Scotland would not first drop out of the EU by separating from the UK, and later climb in again through an accession treaty; it would simply stay inside the EU all the time.

I agree with Sionaidh Douglas-Scott that this approach is more attractive. Indeed, EU law currently applies on Scottish territory, and both British and EU nationals living on Scottish territory are currently EU citizens, and benefit from the rights attached to that status. Nobody really wants this to change. It would therefore be awkward and costly, both for Scotland and for the rest of Europe, if EU law would cease to apply to Scotland upon its independence, and would have to be restored later, after an accession treaty had entered into force. Indeed, such a temporal gap is logically inherent in taking the accession route: a state can only request membership of the EU after it has become independent. In his contribution to this discussion, Joseph Weiler suggests that accession could be as seamless as revision: the act of independence could be followed, the next minute, by signature of the accession treaty with Scotland, so that Scotland could join the EU on the same day as it becomes an independent state. But, even if an accession treaty could be signed on the same day as Scotland becomes independent, it would then still have to be ratified by all (then 29) member states before it could enter into force. It is hard to imagine that all national parliaments would be able or willing to do so ‘on the spot’ and without any debate. A revision treaty, on the other hand, could be adopted by the existing member state governments and ratified by their parliaments before Scotland became independent, thus indeed allowing for a seamless transition of legal rights and obligations.

The main logical argument against the Article 48-route is that the TEU provides, in its Article 49, a special procedure for states to join the EU which could be taken to mean that other routes to membership are not available. I do not find that argument very persuasive, though. The norm of Article 49 is clearly written with a view to states that, being outside the EU, would like to join it. Yet, a revision treaty accommodating Scottish membership would be agreed before Scotland would be an outside state, and therefore before Article 49 would become applicable. It would not deal with accession of a new member states, but rather with the creation of a new member state by disaggregation of one of the current member states.

If a revision treaty would allow for a seamless transition, that would not make it a smooth transition, as Jo Murkens rightly points out in his contribution. A revision treaty requires unanimous agreement and ratification by all member states, and is therefore politically as difficult to achieve as accession. It has the added difficulty that the negotiations would, formally at least, have to be conducted by the UK government on behalf of the future independent Scotland. The Scottish government would itself not be represented at the negotiation table, and the Scottish parliament would not be called to ratify the result of the negotiations. Presumably, representatives of the Scottish government would be co-opted into the UK delegation, but it is quite clear that the Scottish government could not insist on the adoption of amendments that would not correspond to the rest-UK’s interest. A typical example of this is the Scottish government’s demand for derogation from the principle of equal access to higher education for EU students. The Scottish government would like to retain higher tuition fees for English students.This unequal treatment is fine under current EU law (since it is considered to be an internal UK matter, not affecting the rights of mobile EU citizens), but would most probably be unlawful once the rest-UK and Scotland become separate states. It would therefore require an explicit Treaty-level derogation, but there is little prospect – it would seem – of the UK government taking on board this request in the context of Treaty revision negotiations.

The accommodation of an independent Scotland, by either the Article 48 or the Article 49 route, would require a decision as to whether the numerous opt-outs currently applying to the United Kingdom (EMU, Schengen, immigration, criminal law) would continue to apply to Scotland. If there were no unanimous agreement among all current member states to modify the Treaty protocols in which those opt-outs are laid down, they would continue to apply to the ‘rest-United Kingdom’ and would not apply to Scotland, since Scotland would have ceased to be part of the UK. This means that the Scottish government, in case of a Yes vote, should prepare itself for the likely possibility that membership of the EU would mean full membership without any opt-outs, and therefore also membership of the Eurozone.

‘Seamless transition’ would, however, require much more than the successful accomplishment of the treaty amendment process. It would also require the adaptation of existing EU secondary law prior to the date of independence. Indeed, there are many pieces of EU legislation that contain provisions applicable to some member states in specific ways, and the position of Scotland would have to be determined by means of amendments to that legislation that would have to enter into force on the same day as the revision treaty, in order to allow for seamless transition on independence day. This would apply, for example, to all EU legislation in the Area of Freedom, Security and Justice for which the UK made use of its case-by-case opt-out. The exclusion of the UK from their field of application would not include the future independent Scotland, so that the relevant directives, regulations and decisions would have to be modified if Scotland wants to preserve the existing opt-outs. But there are many country-specific norms in other areas of EU law as well. For example, the Directive on professional recognition of diplomas contains numerous country-specific norms and lists in its main text and its Annexes.

In addition to changes of EU law, the Scottish government and parliament would also have to enact new laws to accommodate their EU law obligations: for example, they would have to define the criteria for Scottish citizenship; they would have to define the ‘competent authority’ or ‘contact point’ which EU law requires in many areas (for example, in the services directive, for recognition of diplomas, data protection, competition law and the regulation of utilities). Scotland would also have to decide on its representatives in the myriad member-state composed working groups and committees in Brussels. One wonders how all this could be accomplished under the Scottish parliament’s current, pre-independence, powers! Presumably, this would require an informal pre-independence legislative process, whose results would have to be approved in toto by the Scottish parliament on the first day of independence/EU membership.

By way of conclusion, I would argue that, whereas the Article 48 route has major advantages over the Article 49 route, and would be feasible – in my view at least – as a matter of legal principle, it would create many complications all the same, both for the Scots and for the rest of Europe.

 

Bruno de Witte is a Professor of EU Law at the European University Institute (EUI) in Florence.

This posted originally appeared on the Verfassungblog, and is now reposted on this blog as part of a collaboration between UKCLA Blog and the Verfassungblog.

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