Category Archives: Devolution

Ann Sherlock: Supreme Court ruling on Welsh legislation.

AnnOn 9 July 2014, the Supreme Court delivered its unanimous ruling that the Agricultural Sector (Wales) Bill was within the legislative competence of the National Assembly for Wales.

The Bill had been referred to the Supreme Court in August 2013 by the Attorney General for England and Wales under section 112(1) of the Government of Wales Act 2006 (hereafter GWA 2006). This provision, whose equivalents in the Scottish and Northern Irish devolution legislation have yet to be used, allows for the referral of a Bill passed by the Assembly if the Attorney General or the Counsel General, the Welsh Government’s law officer, considers that it goes beyond the Assembly’s legislative competence.

This is the second occasion on which a Bill has been referred: the first concerned the Local Government Byelaws (Wales) Bill. The Attorney General argued that the Bill exceeded the Assembly’s competence in that it flouted a general restriction on the Assembly’s competence by removing or modifying a function of a Minister of the Crown. In the event, the Supreme Court ruled unanimously that, while the Bill did remove some of the Secretary of State’s functions, that removal was saved by the exception in the GWA 2006 which permits the removal of a function as long as it is ‘incidental to, or consequential on, any other provision contained in the Act of the Assembly.’ In the case of the Agricultural Sector (Wales) Bill, the issue related to whether the legislation went outside the subject areas in which the Assembly has legislative competence.

The Assembly’s legislative competence

As will be known, unlike in Scotland and Northern Ireland where all power is devolved unless expressly reserved (or excepted) to the UK Parliament, the GWA 2006 uses a conferred powers model under which the Assembly may legislate only on those subjects enumerated in the Act. Since 2011, those subjects are set out in Schedule 7 of the GWA 2006. Section 108(4) of that Act provides that an Assembly Act will be within its competence if ‘it relates to one or more of the subjects listed under any of the headings in Part 1 of Schedule 7’ and does not fall within any of the exceptions set out under any of the headings in that Part of the Schedule. (Additional limits on competence, such as those requiring compatibility with EU law and the ‘Convention rights’, were not relevant here.) Section 108(7) of the GWA 2006 states that the meaning of the term ‘relates to’ is to be ‘determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.’

The Bill under review

The Agricultural Sector (Wales) Bill was passed in order to provide for a scheme to regulate agricultural wages in Wales following the abolition of the Agricultural Wages Board for England and Wales under the (UK) Enterprise and Regulatory Reform Act 2013. Until its demise, the Agricultural Wages Board set minimum wages for workers employed in agriculture, and other terms and conditions of employment. The Welsh Government wished to retain a system for regulating agricultural wages within Wales and sought to do this in the legislation under review. In general terms, the Bill preserved a statutory regime for workers in the agriculture sector which acknowledged the distinctiveness of this sector, and sought to safeguard a succession of skilled workers, with provisions for apprentices and trainees. It preserved the level of statutory protections in the Agricultural Wages Order of 2012 which, without the provision of this Bill, would have been revoked from October 2013. That Order recognised different categories of worker based on qualifications, competence, experience and levels of responsibility: all of these grades were above the current national minimum wage. The Bill provided for the establishment of an Agricultural Advisory Panel for Wales which would carry out similar but modified functions to those undertaken by the Agricultural Wages Board.

The Attorney General questioned the competence of the Assembly to make this legislation on the basis that it dealt with employment matters and industrial relations rather than agriculture. The Counsel General submitted that the Bill related to agriculture and on that basis came within the Assembly’s legislative competence.

The Court’s ruling

In reaching its decision, a number of matters to which the Attorney General referred the Court were ruled to be irrelevant to the interpretation of Schedule 7. The Court held that a ministerial statement in Parliament regarding the purpose of the GWA 2006, as being to ‘deepen’ rather than to ‘broaden’ devolution, was too general and ambiguous to be of assistance in interpreting the GWA. It also ruled that it would be inappropriate to consider correspondence which took place prior to the introduction of the Government of Wales Bill in 2005 between the Wales Office, the Welsh Government and Parliamentary Counsel: this correspondence was said to set out the views of the two executives on the scope of the subject of ‘agriculture’ and whether it should include specific references to competence in relation to the Agricultural Wages Board. Since this was correspondence which was never referred to in Parliament or made public, the Court held that it would be inconsistent with transparency and the democratic process to take it into account. Finally, the Court held that the fact that a power had not been transferred under the first or second phases of devolution was irrelevant to the position pertaining under the third, and current, phase of devolution for Wales.

As to how the GWA 2006 should be interpreted, the Court referred to the general principles developed in the previous Welsh Byelaws case, namely that:

  1. whether the provision was outside the Assembly’s competence must be determined by the rules laid down in section 108 and Schedule 7;
  2. the GWA 2006 should be interpreted in the same way as any other statute and its description as ‘an Act of great constitutional significance’ could not be taken, in itself, as a guide to its interpretation;
  3. when enacting the GWA 2006, ‘[t]he aim was to achieve a constitutional settlement’ and it was proper to have regard to that purpose in determining the meaning of words.

The Court examined the subjects listed in Schedule 7, noting the enumeration of agriculture as an area of competence and the exceptions to that particular subject (which relate to hunting with dogs, regulation of experiments on animals, import and export controls and regulation of the movement of animals, and authorisations of veterinary medicines and medicinal products.)   Since an exception will be relevant wherever it appears in Schedule 7, the Court examined the other subject headings and the exceptions listed under each of these. The Court noted the areas listed under the heading ‘Economic development’ (which includes economic regeneration and development and promotion of business and competiveness as areas of competence) and the exceptions listed under that heading. In particular, it noted that occupational and personal pension schemes were exceptions to the Assembly’s competence: this exception related to specific aspects of employment but Schedule 7 did not include any general exception in respect of employment or remuneration of employees.

As to the meaning of ‘agriculture’, which is not defined in the GWA 2006, the Court concluded that ‘agriculture’ could not be intended to refer only to ‘the cultivation of the soil or the rearing of livestock’. Rather, it needed to be understood ‘in a broader sense as designating the industry or economic activity of agriculture in all its aspects, including the business and other constituent elements of that industry’. This view was supported by the broad definition that had been given in Schedule 5 to the ‘red meat industry’, the only area of agriculture in which the Assembly had legislative competence prior to 2011.

With agriculture thus defined, the Court had little difficulty in concluding that the Bill was ‘aptly classified’ as relating to agriculture: ‘the purpose and effect of such a regime are to operate on the economic activity of agriculture by promoting and protecting the agricultural industry in Wales.’ However, the Attorney General submitted that the Bill would have an effect on employment and industrial relations, neither of which was listed as a subject on which the Assembly had legislative competence. However, the Court observed that neither were these matters specified anywhere in the Act as exceptions to the Assembly’s competence: as noted earlier, certain aspects of employment are listed as exceptions but in the Court’s view the specifying of these particular aspects suggested that there was no intention to create a more general limitation on the Assembly’s competence.

The Court accepted the Attorney General’s submission that the Bill might be characterised as relating to employment and industrial relations. This made it necessary to consider whether a Bill relating to a listed area of competence might still be regarded as falling outside competence if it also related to an area which was not listed as devolved. The Court considered that this issue would not arise very frequently given the relatively extensive list of exceptions set out in Schedule 7: this case arose because, despite not being devolved, employment and industrial relations were not stated to be exceptions to those areas which were explicitly devolved.

The crux of the Attorney General’s argument was that, in reality, this Bill did not relate to agriculture but to employment and industrial relations and should be characterised in that way. He contended that the Court should determine the ‘real’ purpose and objective effect of the legislation. The Court refused. It accepted that, as in this case, there might be more than one way of characterising the purpose and effect of a Bill: a Bill establishing a scheme for regulating agricultural wages could ‘in principle reasonably be classified either as relating to agriculture or as relating to employment and industrial relations. Which classification is the more apt depends on the purpose for which the classification is being carried out, and on the classifactory scheme which has to be employed.’ In the Court’s view, the rules in section 108 and Schedule 7 had to be interpreted according to the ordinary meaning of the words used: doing so would achieve a ‘coherent, stable and workable outcome’. In most cases, an explicit exception to a devolved subject area would resolve a question about competence. However, when, as here, no exception to the devolved subject was stated, section 108 still provided the test: provided that a Bill ‘fairly and realistically’ satisfied the test set out in section 108(4) and (7) and did not fall within an exception, it came within the Assembly’s competence. It did not matter that it might also be capable of being classified as relating to a subject which had not been devolved, as long as the latter had not been explicitly excepted. To agree to the Attorney General’s submission would be to add exceptions to those specified in the GWA 2006 and would give rise to uncertainty and to scheme that was ‘neither stable nor workable.’ Accordingly, a Bill which undoubtedly related to a devolved subject would be within the Assembly’s competence even if it could also be characterised as a Bill relating to a non-devolved matter which was not explicitly excepted in the GWA 2006.

General comments

The ruling in this case makes a significant clarification in relation to the competence of the Assembly. The Supreme Court sets out a straightforward approach to determining whether there is competence, which is grounded in the terms of the GWA 2006: as long as a Bill ‘fairly and realistically’ relates to a subject which is listed in Schedule 7, this being determined by reference to its effect and purpose, it will be within the Assembly’s competence unless it falls within an exception listed in Schedule 7 or elsewhere in the Act.

While most cases will be determined by the express grants and exceptions in Schedule 7, there will be other cases where there is less certainty. One such case would arise if the Assembly were to enact legislation providing for a general prohibition on smacking children and young people, by removing the defence of ‘reasonable chastisement’: this was a commitment of earlier Welsh Governments but was not included in the Social Services and Well-being (Wales) Act 2014 and when the issue was raised by the Assembly’s Health and Social Care Committee during the passage of the Bill (18 April 2013), the Deputy Minister expressed concerns that if such a prohibition were included in the Bill, there would be a challenge to the legislation from the UK Government regarding the Assembly’s competence ( Under Schedule 7 is it is clear that that the Assembly has competence in relation to protecting and promoting the well-being of children and young people. Criminal law on the other hand is not listed among the devolved subjects. However, section 108(5) provides that an Act will be within the Assembly’s competence if it is to enforce a provision of legislation that is within the Assembly’s competence or is otherwise incidental or consequential on such a provision.) The Welsh Government has stated that it has no plans to legislate on this issue during the current Assembly term: if such legislation is put forward at a later stage, we can expect another reference to the Supreme Court and a further clarification of the Assembly’s competence.

There is one further reference to the Supreme Court in the pipeline, concerning the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill. This Bill allows for the recovery of costs incurred by the NHS in Wales in providing care and treatment to victims of an asbestos-related disease. Interestingly, this Bill has been referred by the Welsh Government’s own law officer, the Counsel General. His statement to the Assembly made clear that he considered the Bill to be within the Assembly’s competence but, aware of the fact that the insurance industry had disputed this throughout the Bill’s passage, wished the matter to be determined by the Supreme Court before its entry into force rather than waiting for what he considered an inevitable challenge afterwards which would be more time-consuming and more expensive. Were the Bill to be found to be outside the Assembly’s competence, this ‘pre-emptive challenge’ avoids the possible need for unpicking transactions made under it. The Counsel General considered it ‘very unlikely’ that such home-grown references would be made very often, although he was reluctant to describe this approach as ‘exceptional’.

While many in Wales consider that a move to a reserved powers model would greatly improve the clarity of the devolution settlement for Wales, some disputes will arise whatever the model. Nonetheless, the particular conferred powers model in Wales with its very specific grants and exceptions, and, as in this case, issues which are not mentioned explicitly as exceptions to devolved subjects, does not help. Accordingly, the recommendation in the Silk Part 2 Report for a reserved powers model was generally welcomed in Wales. However, the current arrangements are likely to be in place for some time still – even if the UK Government were to follow the Silk recommendations, the Silk report does not envisage an Assembly operating under the new system until 2021. In the meantime, and for those disputes which concern ‘borderline’ areas under any model, the clarification provided by the Supreme Court is valuable in improving the workability of the current arrangements.

 

Ann Sherlock, Centre for Welsh Legal Affairs, Aberystwyth University

 

(Suggested citation: Ann Sherlock, ‘Supreme Court ruling on Welsh legislation’ U. K. Const. L. Blog (30th July 2014) (available at: http://ukconstitutionallaw.org/)

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Donal Coffey: Accidental Entrenchment and the Scottish Independence Bill?

donalThe Scottish Government has recently published their proposed Scottish Independence Bill as part of the process directed towards ultimate Scottish independence from the United Kingdom. Katie Boyle has provided an overview of the various key provisions of the Bill in a recent blog post. In this post, I want to consider a potential argument that can be put forward on the Bill as it stands: the Bill may have inadvertently entrenched the proposed Constitution as a fundamental law.

First, it is important to establish that this would be inadvertent. The briefing notes accompanying chapter five of the Bill (pp. 59-67) make it clear that it was not the intention of the drafters that the Scottish Independence Bill would be entrenched. The relevant section is as follows:

The Scottish Government proposes that the Scottish Independence Bill and renewed Scotland Act will not contain a bespoke amending formula or hard entrenchment provision. This is because they are inherently temporary and are a staging post on the way to the permanent written constitution which would be prepared following independence. An excessively onerous amending formula would be inappropriate for interim arrangements. (at 60)

The notes argue that, if enacted, the Act would have constitutional status that requires explicit amendment or repeal. It is left open to the constitutional convention as to whether and how to entrench the constitution itself. However, the drafting of the Independence Bill itself leaves it questionable whether entrenchment may inadvertently occur due to the drafting of Article 3.

Article 3 states as follows:

(1)In Scotland, the people have the sovereign right to self-determination and to choose freely the form in which their State is to be constituted and how they are to be governed.

(2) All State power and authority accordingly derives from, and is subject to, the sovereign will of the people, and those exercising State power and authority are accountable for it to the people

(3) The sovereign will of the people is expressed in the constitution and, in accordance with the constitution and laws made under it, through the people’s elected representatives, at referendums and by other means provided by law.

(4) The sovereign will of the people is limited only by the constitution and by the obligations flowing from international agreements to which Scotland is or becomes a party on the people’s behalf, in accordance with the constitution and international law.

This Article provides that the people are the wellspring of all State power and authority; the draft refers to this as “the sovereign will of the people”. There is a subordinate, derived power which can be exercised by the people’s elected representatives (Article 3.3). However, in a problematic construction of clause (4), the ultimate power, “the sovereign will of the people”, is expressly described to be limited “by the constitution” and by international law obligations. The difficulty is as follows: “the constitution” referred to in Article 3 is that contained in part 2 the Scottish Independence Bill (Art. 1.1). Therefore, the exercise of the ultimate sovereign will of the people is subject to the terms of the Scottish Independence Bill. This, presumably, would also temper any subsequent exercise of the “sovereign will of the people”, i.e. through the constitutional convention outlined in Article 33. Therefore, the meaning of Article 3.4 is actually to entrench the Scottish Independence Bill in a manner which the drafters apparently did not intend. It seems more likely that it is the inferior power wielded by the people’s elected representatives that was intended to be subject to the limitations of Article 3.4, but this is not the natural construction of Article 3.4 as it stands.

It might appear that any deficiency in drafting under Article 3.4 would be cured by the exercise of the constituent authority of the people after the constitutional convention. However, it would further be open to question whether that subsequent exercise was a true exercise of constituent authority or would be an exercise of constituted authority under the Scottish Independence Bill, and therefore subject to any limitations therein. In this regard, the work of Dr. Joel Colón-Ríos has identified recent Columbian jurisprudence which has limited the power of the people to amend the Constitution via a referendum where this power is subject to the terms of the Constitution itself (see “Beyond Parliamentary Sovereignty and Judicial Supremacy: the Doctrine of Implicit Limits to Constitutional Reform in Latin America” (2013) Victoria University of Wellington Law Review 521 at 529-531).

It therefore appears clear that Article 3.4 may inadvertently entrench the Scottish Independence Bill in a manner which was unforeseen by its drafters. If this was not their intention, it is a relatively simple matter to insert words to make clear that it is the inferior governmental power, and not the sovereign power of the people, which is limited by the constitution. Moreover, it seems prudent to foreclose any possible judicial review on the basis of the above argument (whether it would be successful or not) simply because to do so would ensure that the path to independence, if such is the will of the Scottish people, is not subject to time-consuming and controversial actions in the courts.

 

Donal Coffey is a Senior Lecturer at the University of Portsmouth

(Suggested citation: D. Coffey, ‘Accidental Entrenchment and the Scottish Independence Bill?’ U.K. Const. L. Blog (24th June 2014) (available at http://ukconstitutionallaw.org/)).

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Merris Amos: Scotland, Independence, and Human Rights

Merris Amos.jpgIn its weighty tome, Scotland’s Future, the Scottish Government promises that at its heart, an independent Scotland will have “the respect, protection and promotion of equality and human rights.” Furthermore, this will not be just an empty gesture but will be “enshrined in a written constitution to bind the institutions of the state and protect individuals and communities from abuses of power.” The promise is also made that as an independent state, Scotland will live up to its international obligations on equality and human rights. Furthermore, protections already enjoyed will continue in a written constitution. These will include the rights contained in the European Convention on Human Rights (ECHR) but other rights will also be considered for inclusion. Specifically mentioned are the rights contained in the UN Convention on the Rights of the Child and principles designed to “deliver greater equality and social justice.” Any new rights or future changes will be developed in “full consultation with the people of Scotland”. It is also promised that Scotland will continue to have its own human rights body.

If the intention is to encourage a “yes” vote from those basing their vote for or against Scotland’s independence on human rights protection alone, this is a very good start. Leaders of the major political parties in the rest of the UK find it difficult to mention the words “human rights” let alone make promises to improve the legal protection of human rights or explore the possibility of adding new rights to those already protected by the Human Rights Act (HRA). Officially, the most recent pronouncement was from the Commission on a Bill of Rights which reported in 2013. Unable to agree on much, a majority of the Commission concluded that there was a strong argument in favour of a UK Bill of Rights which would build on all of the UK’s obligations under the ECHR and provide no less protection than was contained in the HRA. However, a different majority concluded that socio-economic rights were not something that should be included and that the present declaration of incompatibility contained in section 4 of the HRA should be retained as “there was no desire for conferring on courts a power to strike down inconsistent Acts of Parliament.” There has been very little progress on human rights law reform since.

By contrast, whilst the details are limited, the Scottish Government’s promises about human rights would address at least three of the problems with the current state of legal protection of human rights in the UK which the Commission on a Bill of Rights failed to do. First, as the Scottish Government itself recognised, whilst Scotland’s current equality and human rights framework is strong, that framework’s future cannot be guaranteed under current constitutional arrangements. The same goes for the rest of the UK. Once campaigning gets under way for the 2015 UK general election, it is likely that the repeal of the HRA will once again be a feature of the Conservative Party’s campaign as it was for the 2010 general election. Including human rights protection in a written constitution offers much more effective protection from the political winds of change than that offered by a mere Act of Parliament. Although it is likely that politicians would continue to criticise politically unpalatable judgments, such as those concerning prisoner voting, such criticism would be unlikely to be accompanied by promises to repeal or amend the constitution, particularly if the new constitution occupied a special place in the hearts and minds of the Scottish people. The experience of other countries demonstrates that including human rights protection as a key part of a written constitution also improves knowledge of and respect for human rights law, particularly if changes to present arrangements are developed in full consultation with the people of Scotland.

Second, whilst the details are not clear, it is likely that a written constitution containing human rights protection would mean that the legislation of the new independent Scottish Parliament would be vulnerable to legal challenge in the courts were it to be incompatible with human rights law. Whilst under the Scotland Act 1998 this is the situation at present in relation to the devolved legislation of the Scottish Parliament, it is not the situation in respect of the laws of the Westminster Parliament. Under section 4 of the HRA all a court can do is issue a declaration of incompatibility and wait for government, and Parliament, to change the law with all the delay and uncertainty that this entails. And finally, given the traditionally strong commitment to social justice in Scotland and willingness to include in the written constitution rights additional to those in the ECHR such as children’s rights and principles designed to “deliver greater equality and social justice”, it is likely that by contrast to the rest of the UK, human rights protection in an independent Scotland would extend to justiciable economic, social and possibly cultural rights. As appreciated during the lengthy process towards a Bill of Rights for Northern Ireland, often such rights have a more concrete meaning for people than civil and political rights and can help to muster support for human rights law generally whilst providing much needed protection for vulnerable individuals in an era of growing inequality.

Involving the people of Scotland in the future of human rights law, entrenching the outcome in a written constitution to which the legislature was subject, extending protection to economic, social, cultural and other human rights and support for a strong independent human rights commission would undoubtedly place an independent Scotland in the leading position on the protection of human rights when compared to the remaining countries of the United Kingdom. Were the HRA to be repealed following the next general election, the comparison would be even starker. But before planning a move to Scotland, it is important to be realistic about what will actually be achieved in relation to human rights protection were Scotland to achieve independence.

With a limited portfolio, it is fairly simple for the present Scottish government to be positive about human rights protection. Issues which have caused consternation for politicians at Westminster, such as the detention, control and deportation of terrorist suspects, have not arisen in the Scottish legal or political system. An independent Scotland would have responsibility for all matters including immigration and national security and much more difficult human rights questions would arise. Whilst it may be resisted, there would be a strong temptation to water down promised human rights protection in the face of public perceptions that human rights law is a “villain’s charter” an “obstacle to protecting the lives of citizens” and “practically an invitation for terrorists and would-be terrorists to come to Scotland”. Such notions have been prevalent in the UK print media over the last 14 years, including Scotland. Much initial work would have to be done to essentially rebrand the idea of human rights in the minds of the public, ensure sufficient education and promotion and encourage respect for the human rights parts of the written constitution. As the experience of other states demonstrates, the budget for an “open, participative and inclusive constitutional convention” would be considerable.

A related issue is what relationship Scottish courts in an independent Scotland would have with the European Court of Human Rights (ECtHR) when adjudicating on human rights claims. It is assumed that Scotland would be a party to the ECHR and thereby accept the right of individual petition to the ECtHR. Were the new constitution to be silent on the matter, it is also likely that Scottish judges would make full use of the jurisprudence of the ECtHR. Whilst there is considerable political mileage in the idea of a “Scottish” approach to human rights interpretation and application, which would garner respect and a margin of appreciation for Scotland before the ECtHR, again it is necessary to be realistic. It is only in a small minority of claims that there is actually room for a national approach. A recent example is the UK broadcasting ban on political advertising which was upheld by the ECtHR in Animal Defenders International v United Kingdom 2013. Other attempts to seek respect for a UK approach to human rights from the ECtHR, the blanket ban on prisoner voting for example, have not been successful.

In relation to the range of rights to be protected, it is important to appreciate that there exists a strong narrative force in the UK, and other national jurisdictions, against making economic and social rights justiciable in the same way as civil and political rights. As noted above, this was the conclusion of the Commission on a Bill of Rights and despite the promise of the Scottish government, the result of further consultation with powerful interests groups may mean that this promise is impossible to deliver. As it was for the HRA, a first step may be simply to offer protection to the rights contained in the ECHR and Protocol No.1, as noted in Rights Brought Home, the White Paper accompanying the Human Rights Bill, “ones with which the people of this country were plainly comfortable”. And finally, it is not clear from Scotland’s Future how the written constitution would limit the power of the Scottish Parliament to legislate. It is possible that human rights protection may afford Scottish judges something more than a declaration of incompatibility but less than a strike down power raising similar problems of delay and effectiveness which have bedevilled section 4 of the HRA.

Whatever the outcome of the referendum, by making the protection and promotion of equality and human rights as a part of a written constitution one of the issues for consideration, the Scottish Government has set an excellent example. Should the vote be for independence, those with the power to embrace and reform human rights law in the rest of the UK should take careful note.

Merris Amos is a Senior Lecturer at the School of Law, Queen Mary, University of London.

(Suggested citation: M. Amos, ‘Scotland, Independence, and Human Rights’ U.K. Const. L. Blog (13th May 2014)  (available at  http://ukconstitutionallaw.org/).

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Stephen Tierney: Why is Scottish Independence Unclear?

stierneyAs commentators we seem to end many of our contributions to the independence debate with the rather unhelpful conclusion that much remains, and will continue to remain, uncertain; a state of affairs accentuated by recent comments on the prospect of currency union and EU membership. This must frustrate those hardy souls who read to the end of our blogs seeking enlightenment. Perhaps then we owe readers an explanation as to why it is so hard to offer a clear picture of how an independent Scotland will be brought about and what it would look like.

In trying to envisage life after a Yes vote it is natural to begin with the Scottish Government’s White Paper published in November 2013 which, at 648 pages, cannot be accused of failing to set out the SNP’s broad vision for independence. But for several reasons we must treat this only as the start of our quest and certainly not as a definitive template for a new Scottish state.

Here are some reasons why:

1. The White Paper is selective

The White Paper is certainly comprehensive but inevitably offers if not a Panglossian then at least an optimistic picture of the future, using evidence that supports the Scottish Government’s case for economic success and relatively easy transition to statehood. Inevitably many of these claims have been subject to contestation, and since they are dependent upon varying circumstances and the cooperation of other actors, not least the UK Government, they cannot be taken to be the last word on independence.

2. Are we sure there will be negotiations?

This is surely the easiest question to answer. The White Paper not unreasonably assumes a process of mutually cooperative negotiations given the Edinburgh Agreement in which the UK and Scottish governments undertook ‘to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom.’ This has recently been restated by a UK Government minister. It can also reasonably be assumed that despite the bluster of the referendum campaign it will be in the interests of the UK to build a constructive relationship with its near neighbour. But there are still many unknowns concerning the negotiation process and its possible outcomes.

3. Who will negotiate?

On the one hand we would expect the Scottish Government to take the lead for Scotland. But let’s not forget the Yes campaign is a broader church than simply the SNP, and different contributors to this, such as the Green Party, will have their own agendas which they would seek to advance in negotiations with the UK. Furthermore, in the White Paper the Scottish Government announced that it ‘will invite representatives from the other parties in the Scottish Parliament, together with representatives of Scottish civic society, to join the Government in negotiating the independence settlement.’ (para 2.7) Who might take part, what influence would these other actors have, and how might their influence re-shape the negotiations? Also, on the UK side different uncertainties present themselves. We assume the UK Government will negotiate for the UK, but with a general election in May 2015 a new government may take a different view of the negotiation process.

4. What if negotiations break down?

An unlikely scenario but one which does add more uncertainty to the mix is the possibility of failure of these negotiations to result in agreement. If negotiations do indeed break down, what then: a unilateral declaration of independence? This possibility has rarely been considered within the Scottish debate but it would raise a new set of issues regarding both the terms of separation between Scotland and the UK, at which point international law would provide some guidance as to the default position, and for Scotland’s status internationally.

5. Will there be a deal?

We can expect a deal at the end, but in light of the ‘personnel’ issues considered at point 3 the terms of any negotiated deal are hard to predict. How many of the goals to which it aspires in the White Paper will the Scottish Government achieve, and on which issues will it have to compromise, not only with the UK but with other parties to the negotiations on the Scottish side?

6. Surely experts can predict the outcome of negotiations?

Given that a UDI is highly unlikely, as commentators we can reasonably focus upon the terms of negotiations, but here voters must be struck by how we suffix our references to the most likely outcomes by restating how many variables are at work. It is no surprise that on the various issues at stake experts will reasonably disagree about different scenarios. As commentators we also have a duty not to enter the debate in a polemical way, using expert knowledge to advance the cause of one particular side. It is important to remain objective, presenting the evidence for the different sides of each argument as best we can.

7. Clarity and simplicity are not synonyms

The subject matter for negotiations could scarcely be more complex – disentangling a state with a highly integrated advanced economy. So many issues will need to addressed together that even listing the topics to be dealt with is a difficult, and inevitably an incomplete, task: the economy, the currency, debt, welfare, pensions, oil and gas, higher education, the environment, defence, the European Union, security and intelligence, borders, citizenship, broadcasting etc. etc. Issues surrounding each of these issues will have to be negotiated. Therefore, there is reasonable disagreement among commentators about the nature of the competence which an independent Scotland would acquire in relation to each of these, and as to the prospects for some degree of on-going cooperation or union with the UK in relation to each area of competence. And even if we commentators can reach some kind of consensus about a particular issue taken in isolation we need to factor in that each is a potential bargaining chip in negotiations. There may well be trade-offs which see some aspects of the Scottish Government’s preferred model of independence subject to compromise in return for other gains.

8. It’s politics, stupid

What would make things clearer? Well the obvious solution to a lot of uncertainty would be agreement between the two governments on a range of issues ahead of the referendum. The Electoral Commission (paras 5.41-5.44) has recommended ‘that both Governments should agree a joint position, if possible, so that voters have access to agreed information about what would follow the referendum. The alternative – two different explanations – could cause confusion for voters rather than make things clearer.’

But this is not going to happen. Uncertainty among voters is an important card for the Better Together campaign. It is simply not in the political interests of the UK Government to work with the Scottish Government to clarify possible negotiation outcomes. And in any case it may not be in the interests of the Scottish Government either should such pre-referendum discussions result in stalemate, thereby serving only to heighten rather than diminish uncertainty before the vote.

9. After independence: designing Scotland’s constitution

Even if negotiations are concluded and independence formally endorsed we will not have a final picture of Scotland’s constitutional future. Scotland will not at that stage have a constitution. According to the White Paper there will be an interim period during which some form of transitional arrangement will be needed. There will then be a Scottish parliamentary election in May 2016, and only after this, according to the White Paper, will a constitutional convention be established to draft a constitution. So many of the proposals set out in the White Paper concerning Scotland’s constitution are contingent upon how this convention is established, how it will draft a constitution, what this will contain, and how it will be ratified (i.e. will it be approved by the Scottish Parliament or by way of another referendum).

And what would the institutions of government in an independent Scotland look like: will the Queen be head of state? Will there be a one chamber or two chamber parliament? Will Scotland have a new constitutional court? The Scottish Government has views on these issues but also accepts they will be for the constitutional convention to determine. And what institutional arrangements would be needed to maintain areas of cooperation or union with the UK? All of these issues will remain to be settled.

10. It takes three to tango

And of course the foregoing issues focus upon Scotland’s relationship with the UK. What of Scotland’s external relations? Issues such as state recognition; succession to international rights, obligations and treaties; and membership of international organisations, all remain to be fully worked out. And most crucially, the European Union presents two huge issues. The first is how Scotland will be admitted to membership, something which remains a focus for debate, not helped by the bizarre interventions of senior EU politicians. The second issue is surely much more salient and the source of more reasonable disagreement, namely the terms of such admission.

11. What is ‘independence’ anyway?

All of these questions raise a larger issue, namely the heavily integrated nature of the modern nation-state and the web of international relations which bind states within Europe. As the details of the Scottish Government’s proposed model of independence emerge, for example in relation to the currency, what is envisaged is in fact the continuation of important relationships with the UK as well as new and close relations with international partners. But clarity on these points is obscured by campaign gaming. The Yes side is reluctant to voice these aspirations in detail since this will invite the ‘we will never agree to that’ response which we have seen in relation to currency union. This will inevitably mean that much of the detail of what the Scottish Government aspires to will most likely remain unstated at the time of the referendum. The challenge for voters then is a broader one: it concerns how they understand the very meaning of statehood and sovereignty in today’s Europe. The reality today is that any new state emerging from within the EU and intending to remain within the EU will, by definition, instantiate a novel form of statehood which delivers independence but not separation. This, a unique state of affairs, is the factor which poses the deepest analytical challenges to political actors, to constitutional theorists and practitioners, and, since a referendum is the mechanism assigned to determine such an outcome, ultimately to voters.

Is there any point in expert commentary?

Yes of course. There are many technical issues which can be clarified. This will not fully explain how Scottish negotiations will go with either London or Brussels but it can make clearer the issues which will be subject to negotiation.

Secondly, much of the uncertainty stems from the political positions of the two sides: Better Together which does not want to suggest negotiations will go smoothly for the Scottish Government; Yes Scotland which claims that they will. However, the UK Government’s position following the hard reality of a Yes vote is likely to be significantly different from that as stated in the heat of the referendum campaign. Again academics must try to disentangle these two different positions. At the same time they can probe the viability of the claims made by the Scottish Government in its White Paper.

In the end some kind of bigger picture may emerge, albeit through a glass darkly. People when they vote will do so with two rival visions of the future in mind. These will not be perfect predictions of what either an independent Scotland or an on-going UK (we must also remember that a No vote also carries many uncertainties concerning the future) will look like in 1, 5 or 10 years’ time, but they will need to make sense to the people casting their votes. As commentators, all we can do is try to offer some objective guidance so that these visions bear closer resemblance to reality than they otherwise might. A modest aim maybe, but no one ever said constitutional change was simple.

Stephen Tierney is a Professor of Constitutional Theory at the University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law.  He is currently ESRC Senior Research Fellow under the Future of the UK and Scotland programme

Suggested citation: S. Tierney, ‘Why is Scottish Independence Unclear?’ U.K. Const. L. Blog (25th February 2014) (available at: http://ukconstitutionallaw.org/).

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Filed under Constitutional reform, Devolution, European Union, Scotland, UK Parliament

Neil Walker on Scotland: Hijacking the Debate

NeilLet me lay my cards on the table. I remain inclined to vote ‘no’ in September’s referendum. I put it no stronger than ‘inclined’ in part  because I believe, in  the spirit of democracy – even democracy referendum-style – that those of us who have not signed the party pledge should keep an open mind as long as possible. That, indeed, is one of the reasons  why,  18 months ago,  some of us set up the Scottish Constitutional Futures Forum  and its  accompanying blog. But my reservations are also partly because  recent  events  have fuelled my anxiety about  the climate in which the debate is taking place. They have made me wonder whether the case for independence is getting a fair crack of the whip on the international stage, and have caused  me to ponder the implications of lending my vote to a position that remains so reliant upon negative rather than positive arguments.

I am not talking about the shenanigans over a Currency Union. It may  be a minority position, but I believe both sides have been giving as good as they get on this question, and that neither comfortably occupies the moral high ground. There has always been something  both opportunistic and wishful in the nationalist stance. Sterling, once derided as a busted flush,  is reclaimed as a joint birthright. The Euro, once hailed  as the bright new  monetary dawn, is conveniently relegated to the status of a political  lifestyle choice rather than faced up to as an obligation of EU membership that can, at most, be  deferred.

The Unionist response may be  no more elevated  than this, but is surely ranks no lower. There is an arguable case, if a far from compelling one, that it would be in rUK’s best interest to refuse the  departing Scots a Currency Union. There are certainly risks  either way, and  rUK might well change tack in the cold light of a ‘yes’ vote. But Better Together is being no more narrowly strategic than the nationalists in arguing forcefully for the position that  best suits its immediate interests. It is a position that could backfire – may already be backfiring – as it allows the nationalists to play the victim card, and to point out that, as the residual sovereign in the event of post-yes-vote negotiations, rUK enjoys  the ‘bully’s’  advantage  of  being able to make promises  – or threats – that it can credibly deliver upon in self-fulfilment of  its prophecies and  prejudices. But in the final analysis, the Better Together position, like the nationalist one, is a democratically legitimate one. It is articulated by  elected politicians of various parties in favour of a constituency – the UK – whose  right to retain the decisive constitutional  voice is the very issue at the heart  of the referendum. And while nationalists may proclaim the inconsistency of Better Together’s new position with its previous self-denying ordnance against pre-specification of the terms and conditions of independence, they must also acknowledge that  the Unionist parties, by building a united front on sterling, have at least  answered another widely aired  doubt. For  once they have demonstrated their ability to get their act together and find common voice when it really matters.

The issue of democratic credentials, however,  brings me directly  to the point of my comment: namely that other awkward union, the European Union, and the position of Jose Manuel Barroso, President of the European Commission, on the subject. Barroso has previously given strong indications of where he stands, so perhaps we should not be too surprised by his remarks on the BBC’s flagship Andrew Marr Show last weekend. The novelty of his latest contribution may only have been one of emphasis, but the tone was nevertheless striking. Apparently the prospects of membership for an independent Scotland, never untroubled in his perspective, are now to be assessed as  “extremely difficulty… If not impossible.”

These remarks have been well publicised. Predictably, they have been seized upon by Better Together as vindicating their long-standing scepticism about an independent Scotland’s EU future, and as further evidence of the emptiness of nationalist promises. But why should anyone listen to Barroso on this topic?  Does he have a legitimate political voice in the debate? Does he speak from a position of legal authority?  Or, regardless of his political or legal standing, does he simply have a good insider argument, and one that we should heed? The answer, on all three counts, would seem to be ‘no’. Why is this so, and why is it important to the integrity of the debate that the kind of intervention Barroso has sought fit to make should be challenged?

First, there is the question of legitimate political voice. Barroso is not an elected politician. One upon a time he was. Between 2002 and 2004 he was Prime Minister of Portugal. Since then he had done two stints and ten years as the unelected President of the European Commission. His position, which he will vacate this year, does depend upon that of two elected institutions – on the  Council ( made up of nationally elected politicians) which proposed him, and on the European Parliament which  was required to approve  his appointment.  Under new rules introduced by the recent Treaty of Lisbon, the appointment of his successor will be subject to an additional  indirect democratic check – namely the requirement that his or her nomination by the European Council should ‘take account’ of the results of the latest European Parliamentary elections. In fact, the last European elections in 2009 already saw a move towards an overtly political style of appointment, with Barroso the chosen candidate of the   European People’s Party.    But none of these developing procedures and practices can make an elected politician out of an unelected public servant. Barroso has no popular mandate, and perhaps some sense of that lay behind his protestations to Andrew Marr, rendered not a jot more credible by their repetition,  that his words did not constitute an attempt ‘to interfere’ in a matter of internal Scottish and British politics.

But even if Barroso represents no electoral constituency, does he, as head of the Commission, nevertheless possess a clear legal authority, or even a duty,  to step into the Scottish debate? The Commission certainly has an extensive legal remit. According to Article 17 of the Treaty on European Union, it ‘shall promote the general interest of the Union’.  Yet in so doing we should understand the Commission’s  role as servants of the Treaty framework rather than its master. Article 17 continues by specifying the Commission’s role in ways that reflect and confirm its status  as  the EU’s  administrative college. Its responsibilities are largely downstream. They include the monitoring of the  application of European law, the performance of various budgetary, management, executive and management functions, as well as the power to initiate ( but not decide) legislation under the Treaties. In all of this the Commissioners, including the President, like civil servants everywhere, are charged to act independently of external influence.

None of this suggests any stand-alone authority for the Commission or its President on the high political question of new membership, except insofar as this is directly specified in the Treaties. But if we look at the relevant provisions  – Article 49 on accession and  Article 48 on  the alternative route of general Treaty revision – the standing of the Commission is a distinctly modest one. As regards accession, its role is only one of consultation, with the key decision-making reserved to the European Parliament and the Council. As regards general Treaty revision, the Commission is one of a number of institutions that may make proposals, but here the decisive voice lies squarely with the national governments.

If the Commission does not command a central  legal role in these matters, should we not nonetheless be prepared to listen carefully to the views of its President simply as an expert in Union-craft –  as someone who has the knowledge and experience gained from a decade of independently ‘promoting the general interest of the Union’? Absolutely. Of course we should! The snag  here is  that the President has chosen to say nothing worth saying – nothing that would draw upon a considered sense of that general interest,  but instead restricts himself to well-worn  prognostications about what others  might do in pursuit of their particular interests. He trades on the symbolic authority of his position to do nothing more than profound than  recall that the reception of an independent Scotland into the European Union, whether through the  Article 49 route that he envisages, or through the relatively  ‘seamless’ Article 48  route that the nationalists argue for, would  require the approval of all 28 existing member states; and then to advise that this is an arithmetically formidable threshold, especially given the reservations of certain member states about independence movements in their own backyards – a caution that, as Barroso proceeds to reminds us,  has led Spain, concerned with Catalonian and Basque claims, even to refuse to permit a precedent as distant as the recognition of Kosovo as an independent Balkan state.

What is glaringly absent from the debate, both in the  knowing buck-passing of Barroso’s intervention and in the broader silence of the EU’s main movers and players on the Scottish question, is the articulation of any kind of public philosophy that would provide good reasons, rather than simply motivations of base political self interest, why an independent Scotland should or should not be welcomed with open arms. How, precisely, is the EU, still  resolved by common commitment of the member states in the preamble to the Treaty on European Union ‘ to  continue the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen in accordance with the principle of subsidiarity’, to justify the exclusion of an independent Scotland? Why should  a country of 5  million citizens, who  have also been EU citizens for 40 years and who have expressed no desire to leave the European Union, be treated less  generously than the 110 million new EU  citizens – over 20% of the EU’s total population – who have joined from Central and Eastern Europe since 2004? Why should Scottish citizens instead be placed in the same category of Kosovo, or any other  potential candidate from beyond the Union’s distant borders?

The point in posing  these rhetorical questions is not to suggest that the propositions they contain will simply collapse under the weight of their own absurdity. For there  may well be a principled case to  make  against automatic and accelerated membership of an independent Scotland. We find the embryo of such a case, for example, in the analysis of Joseph Weiler, the current President of the European University Institute in Florence. He has argued, with special  reference to the Catalan case,(see http://www.ejiltalk.org/catalonian-independence-and-the-european-union/) 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  European Union in its accession 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, according to Weiler, should lead  the European Union to take a dim view of any separatist impulse that seems to betray these very 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  of multi-level governance should be promised no safe European haven if they insist on the path to independence.

I happen to disagree with both the specific thrust and the wider implications of the  Weiler thesis. To begin with, and most narrowly, even if Weiler’s reasoning is applicable to the situation of Catalonia, where no constitutionally permissible route to referendum and independence is presently countenanced at the level of the wider Spanish state, the Scottish case  is quite different. Here, the Edinburgh Agreement reflects the preparedness of the UK’s flexible constitution to accommodate the prospect of independence. So for the EU to set its face against Scottish independence would be  to dismiss the significance of the member state’s own recognition of the legitimacy of secession.  Secondly, and more broadly, 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 adequate from the perspective of the constituency in question as an affirmation of shared political identity, it is difficult to see why such a subjective  aspiration should be dismissed in favour of a supposedly objective  standard of adequate individual and collective freedom. Thirdly, even if a special case for the EU  as an entity possessing and pursuing a unique historical mission to make internal secession both unnecessary and unacceptable can  be 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 has already been mentioned, and this surely reflects an alternative  and more independence-friendly perspective. In the face of these competing narratives, should the public policy of the EU on accession not remain more agnostic?

Whether or not my arguments convince, they surely serve to demonstrate  that the EU’s accession policy is and always has been intimately linked to the deep purposes of the world’s first supranational polity, and to ongoing debate, inevitably controversial, over what precisely these deep purposes demand.  It is, therefore, a matter that  requires reasoned public argument and justification of the sort that Weiler attempts rather than a mere weighing of the strategic ‘private’ preferences of national parties. Yet all we get from Barroso is the latter. Not only is this less than we might expect from someone committed to the general interests of the Union, but it also allows the prejudices of national parties to be entered to the calculation without the embarrassment of a first person airing.

In a nutshell:  If any of the key players on the EU stage is opposed to Scottish membership then they should either show the courage of their convictions through a discourse of public justification linked to the interests of the Union as a whole  or, failing that,  they should at least be prepared to declare their intentions to act out of national self-interest. Barroso’ s intervention allows a significant oppositional note to be struck without either of these tests of public candour being met. The danger increases that our independence debate become hijacked to poorly specified and undefended external considerations. That surely is bad news for anyone interested in the referendum as a means to the long-term, widely accepted  resolution of our national conversation.

Neil Walker is Regius Professor of Public Law and the Law of Nature and Nations at the University of Edinburgh.

Suggested citation: N. Walker, ‘Hijacking the Debate’ Scottish Constitutional Futures Forum Blog (18th February 2014) (available at: http://www.scottishconstitutionalfutures.org) or N. Walker, ‘Hijacking the Debate’ U.K. Const. L. Blog (18th February 2014) (available at: http://ukconstitutionallaw.org/).

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

Alan Trench: Scottish independence: does taking a sterling currency union off the table change the game?

alan-trenchThe heavy trailing of an announcement by the Chancellor of the Exchequer (and Danny Alexander and Ed Balls) that the UK Government is not prepared to establish a currency union with Scotland for use of the pound in the event of Scottish independence (see also BBC News coverage here) is a serious blow to aspirations of the SNP for a form of ‘independence lite’.  The logic of this was that it would avoid disrupting many key symbolic and economic ties between an independent Scotland (iScotland) and the remainder of the UK (rUK), so comforting swing voters about the limited scale of the risks of independence.  Those risks are real; think of how attractive Scottish investment trusts and insurance companies look if the complexities and exchange-rate risks of using a different currency are introduced into the equation, for example.  But this shift in the ground also emphasises a number of key issues about the implications of a Yes vote, and what would happen after it.

The first problem – which is particularly the case with the idea of a currency union, but applies to many other important issues – is the asymmetry of interest.  A currency union is central to the way the SNP has formulated its model for independence.  (That view can be contested, of course – whether by the likesof Jim Sillars on, essentially, autonomy grounds, or by Angus Armstrong and Monique Ebell on economic ones, relating to the flexibility of economic policy instruments and the implications of a debt burden.)  But it is of marginal interest or benefit to rUK at best, poses a serious risk at worst, and concluding that the risks of it from an rUK point of view exceed the benefits is a reasonable judgement to come to.  This isn’t the only issue where iScotland has a strong interest in something of limited concern to rUK, either.  In bargaining situations, iScotland has got to have something convincing to offer to rUK – and other than staying in the UK, or the Clyde nuclear bases, it’s hard to see what that might be.

The second problem is what the Yes side do in response to being denied a currency union – the ‘Plan B’ for iScotland’s currency.  There aren’t many currency options; they are using the pound without a currency union (‘dollarisation’), establishing a Scottish currency, or seeking to join the Euro.  (The clearest exposition of those is in a video put together by NIESR, availablehere.)  The first and third of those pose major problems – dollarisation would be unstable and expose iScotland to a range of monetary policy risks over which it had no control, while membership of the Euro normally requires having a national currency first, and then joining the Exchange Rate Mechanism to start the process of tying that currency to the Euro.  That implies a lengthy transition, a currency that sunders Scotland from what at the moment is its closest trading partner, and the question of what the constraints of the Eurozone might be in future.  From that point of view, an independent currency is the least unattractive option by some way – even if it seems riskiest to referendum voters, and proposing it now would indicate a significant reshaping of plans for independence at a late stage in the referendum campaign.

The third problem is how rejection of a currency union affects other options for Scotland.  Talk of repudiating iScotland’s share of UK debt may be attractive to SNP politicians, but is hot-headed nonsense.  It would create the very opposite of the ‘velvet divorce’ which underpins the Yes side’s strategy.  Indeed, it would amount to a unilateral declaration of independence, as well as creating a major ongoing dispute with rUK.  That would affect all plans for independence, not just currency; social union, an open border, co-operation in other matters will all be off the table.  It would create significant obstacles to any negotiations over EU membership, and an insuperable barrier to NATO membership, and make it very expensive for iScotland to borrow from international lenders if it could do so at all.  Reaching a deal on at least the main issues that underpin statehood with rUK would be vital for Scotland to become independent, and the asymmetry of interest means that rUK holds the whip hand in each strand of those negotiations.

The fourth problem is what this means for ‘independence lite’ as a wider project.  The idea that independence would widen the realm of autonomy in some areas (such as fiscal and social policy, and to some degree foreign policy) while retaining existing aspects of the Union such as currency or freedom of movement across the England-Scotland border may be attractive in Scotland.  But the reliance on rUK co-operation and goodwill has never made it a robust and achievable plan for independence, and that is what is starting to unravel for the Yes side.  Moreover, they are hoist to their own petard in two ways.  They have wanted to clarify the basis for independence before September’s poll; while the UK Government has rejected ‘pre-negotiation’ of independence, on currency it is clarifying its position in perhaps the most unhelpful way possible.  The Yes side also has (perhaps reluctantly) embraced the binary Yes/No approach to the referendum (and lost the possible ‘third option’ from the poll).  ‘Independence lite’ was a way of softening the impact of the choice of independence for swing voters and reinstating to a degree the middle ground that was otherwise excluded.  But the rejection of a currency union deprives the Yes side of that comfort as well.  As a result, the choice between independence and remaining part of the UK is becoming increasingly stark.

The challenge that now faces the SNP and the wider Yes campaign is whether to embrace a more radical approach to independence, which may be less attractive to key groups of swing voters (though not other parts of the Yes movement), but produce a more intellectually cogent model of independence, or stick to a middle course predicated on agreements with rUK that look increasingly hard to attain.  Nicola Sturgeon’s diary for the next few weeks includes lectures at UCL (this Thursday) and Cardiff on 24 March, so she will have plenty of opportunity to answer such questions.

None of this alters certain key facts, though.  The Scottish public still support an expanded form of devolution – not independence, but something that confers signficantly greater autonomy than the status quo.  Formulating that option is something that the Unionist parties need to do.  It is in their interests to make devolution work better, after all, as well as enable Scots to have the form of government they desire.  And putting such an option on the table will help people to regard voting No as a positive choice, not just a reaction to the uncertainties surrounding independence.  that also appears to be what voters want, and it is certainly necessary if the referendum is to resolve the wider question of Scotland’s place in the United Kingdom, rather that invite a ’round 2′ of the independence argument at some later date.

UPDATE, 13 February: There are also interesting comments on the currency announcement from Angus Armstrong of NIESR here, Alex Massie for theSpectator Coffee House blog here, and from the Guardian David Torrance in Comment is Free here and Larry Elliott’s Economics Blog here

Further update: The Chancellor’s speech is now available here.  The key points are his linkage of a banking union (necessary to support a shared currency) with a wider fiscal and political union, the question of what benefit rUK would derive from such a union given the asymmetry of the risks, and how stable and durable such a union would be – the possibility of one party choosing to break it.  To quote one passage:

The continuing UK would be almost ten times the size of the Scottish economy. So this would be a totally one-sided deal where UK taxpayers would have to transfer money to an independent Scotland in times of economic stress, with limited prospect of any transfers the other way.

We got Britain out of the eurozone bailouts. Now we’d be getting into an arrangement that was just the same.

The citizens of the rest of the UK could not sign up to such a deal. And frankly, even if we could, I do not think Scotland would want to either.

For the logic of a currency union would mean that Scotland would have to give up sovereignty over spending and tax decisions.

And another:

Because sharing the pound is not in the interests of either the people of Scotland or the rest of the UK.

The people of the rest of the UK wouldn’t accept it and Parliament wouldn’t pass it.

The Treasury analysis – the eleventh paper in the ‘Scotland Analysis’ series – on which Osborne drew in his speech is available here.

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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Nick Barber: After the Vote

Nick1At 650 pages Scotland’s Future  is not a light read.  It stands as the Scottish Government’s manifesto for a yes vote in the independence referendum.  The volume ranges from profoundly important questions relating to currency and Scotland’s membership of the European Union, right down to weather-forecasting and the future of the National Lottery.  Though it is likely many copies of Scotland’s Future will be printed, it is unlikely many will be read from cover to cover.  Its authors probably do not regret its length: by its very heft, the volume seeks to rebut claims that the consequences of independence have not been carefully thought through.  This post considers the immediate constitutional consequences of a yes vote in light of Scotland’s Future.  Its central argument will be that the timescale proposed by the Scottish Government for independence following a referendum is unrealistic, and may work against the interests of an independent Scotland.

Scotland’s Future sees a rapid move to independence after the vote.  The referendum will be held on the 18th of September 2014, and negotiations with the UK and the European Union will start shortly after.  The Scottish Government foresees that these negotiations will be completed by March 2016, 18 months later, and has picked 24th March 2016 as the day on which Scotland will become sovereign.   The first elections in an independent Scotland will be held on 5th May, 2016.  This is the date on which elections for the Scottish Parliament are to be held under the current devolution settlement.

So the key dates are:

18th September 2014: Referendum

 7th May 2015: Likely Date of General Election in United Kingdom (including Scotland)

 Early March 2016: Agreement between UK and Scotland, and between European Union and Scotland

24th March 2016: Independence for Scotland (via Acts of the UK Parliament and Scottish Parliament)

 5th May 2016: Elections to Scottish Parliament

There are two groups of negotiations that Scotland will need to engage in before March 2016: with the UK and with the European Union.  Each of these will be considered in turn.

Negotiations with the UK

The first question to be asked is who, exactly, will negotiate on behalf of the two territories.  The answer for the Scottish side is comparatively easy.  The Scottish White paper specifies that there will be a ‘negotiating team’ appointed, which will be led by the First Minister and include members from a number of political parties in Scotland and ‘public figures’ (p.72).  The Scottish Parliament will scrutinize the process as it progresses – a scrutiny that may complicate matters if, or rather when, difficult concessions need to be made.

Whilst there are still questions to be answered about the composition of the Scottish negotiating team – about the manner of their selection, approval, and, indeed, how this group of previously antagonistic politicians will manage to work as a ‘team’ – these can probably be resolved relatively quickly.  The United Kingdom’s representatives may prove harder to organise.  The principal, but not sole, reason why this may prove tricky is the General Election that will be held in May 2015.

The United Kingdom’s 2015 General Election is likely to impact on negotiations in a number of ways.  First, it makes it unlikely that much serious negotiating will be undertaken in the period between the referendum and the election.  The politicians responsible for the negotiations are likely to be distracted.  The Coalition Government will probably become weaker and more fragmented as the Conservative and Liberal parties seek to present distinct political identities to the public.  It will become steadily more difficult for the UK Government to act in a coherent manner. The looming election will also make meaningful compromise harder: no English politician will want to be seen making concessions to Scots just before an election.  But even more importantly, it will be the 2015 General Election that will determine which party, or parties, will lead the negotiations.  Whilst the negotiators for the UK are likely to be drawn from across the party spectrum, negotiations will be led by a representative of the governing parties: the Prime Minister will probably assume ultimate responsibility for the process.  Furthermore, just as the Scottish Parliament will review and, ultimately, approve the agreement on the Scottish side, the UK Parliament will play a similar role on the UK side.  Under our existing constitution, the final decision about Scottish independence rests with the UK Parliament, which will confer sovereignty on Scotland through a statute.  The agreement reached between the Scottish and UK negotiators must be one each Parliament is willing to endorse.  The political complexion of the 2015 Parliament may, then, be crucial in shaping the course and outcome of negotiations.

The 2015 General Election may raise further difficulties for the course of the negotiation.  Whilst it would make sense for negotiations to be held between Scotland and the remainder of the UK (that is, the UK less Scotland), no such constitutional entity exists.  The UK side of the negotiations will – nominally – include Scotland.  The 2015 UK Parliament will still represent, and sometimes legislate for, the whole of the UK.  The 2015 UK Government will still be responsible for the well-being of the whole of the state.   This will not prove a significant problem if the 2015 election produces a Government with a majority in England.  Then these constitutional conundrums can be ignored: Scottish MPs will have only limited impact in the UK Parliament, and negotiations can continue as if the UK representatives acted for those parts of the Union outside of Scotland.  Far more difficult, though, if after the 2015 election Scottish MPs hold the balance of power in the House of Commons. It could be that, for instance, Labour will gain a majority of seats in the Commons because of the support of Scottish Labour MPs.  If so, the conduct of the UK side of the negotiation may be partly, if indirectly, determined by Scottish MPs, and the product of the negotiations may require the support of Scottish MPs to become law.     And this balance of power would, of course, provide a further incentive for the UK representatives to slow down the pace of negotiations: once Scotland became independent, Scottish MPs would cease to sit in the UK Parliament.  If the governing party required the support of these MPs for its majority, it would lose control of the Commons and could, potentially, either be compelled to stand aside or hold a further election.

Perhaps in response to these worries the SNP has suggested that the UK General Election be postponed for a year.  This is a constitutional possibility, though a tricky one.  Postponing the election would require Parliament to repeal or circumvent the Fixed-term Parliaments Act 2011 and the support of the Commons alone would not be enough as the bill could still be vetoed by the House of Lords.  Parliaments have extended their own lives in the exceptional circumstances of World War I and World War II, but it is doubtful that the Scottish independence referendum – important though it is – presents a crisis of this intensity.  Furthermore, even if the General Election were postponed by a year, there is no guarantee that negotiations would be concluded within this timeframe.

A second reason why the negotiations will probably take longer than the Scottish Government hopes is that the UK side lacks an incentive to speed the process along.  Reading Scotland’s Future it is hard not to be struck by how many issues will need to be negotiated.  Once negotiations start, Scotland will be dealing from a position of comparative weakness.  The two things that Scotland will need in order for independence to be a success in the short and medium term – use of sterling as a currency and membership of the European Union – are both in the gift of the UK.  The UK ought to conduct negotiations in a positive and generous manner – it is in everyone’s long-term interest that Scotland becomes a prosperous and stable country after independence – but it should also ensure that the result protects the interests of those UK citizens outside Scotland.  Scotland’s Future proposes that the Bank of England will become Scotland’s lender of last resort, set the interest rates for both Scotland and the remainder of the UK, and determine monetary policy for the area.  Scotland would then require a share of ownership and control over the Bank.  Though Scotland’s Future suggests otherwise, it is likely that a corollary of this is that a great deal of financial regulation will also be undertaken at the British level: if the Bank of England is to act as lender of last resort, it will also want to have some control over financial regulations that mitigate the risks run by Scottish institutions.  Whilst the Bank of England might be the most important institution an independent Scotland would hope to share with the rest of the UK, it is not the only body that SNP plans to retain.  The Scottish white paper also suggests that around 30% of cross-border bodies will continue to provide services in Scotland (p. 363): once again, Scotland will wish to exercise a share of control over them.     Though it is plainly in the interests of Scotland to retain the pound and make use of the Bank of England and these other bodies, it is harder to see why it would be in the interests of the remainder of the UK to allow this.  Allowing Scotland a share in control of these bodies will reduce the control that citizens of the UK can exert over them: it is an open question why the UK should, or, more importantly, would, accept such a limitation on its sovereignty.  The two key cards held by the Scottish negotiators – allowing nuclear weapons to remain in Scotland and taking a share of the national debt – will need to be judiciously played.

Scotland’s negotiating position will be further harmed by its commitment to a rapid agreement.  The remainder of the UK could happily continue negotiating for years, Scotland’s Future proposes an agreement within 18 months.  Deadlines can be a useful part of a negotiating process, but only if both sides agree to adhere to them.  If – as is probably the case – an agreement takes longer to reach, the Scottish Parliamentary Election of 2016 presents a further challenge.  It is the looming presence of this election that may explain the SNP’s desire for a hasty settlement.  The 2016 election could complicate matters by returning a different government to Scotland – perhaps even a government that no longer supported independence.  This might provide an incentive for the UK negotiators to delay an agreement, hoping, perhaps, for an easier negotiating partner.  On the other hand, this risk may induce the Scottish team to make concessions to secure a quick agreement.

Negotiations with the European Union

In the previous section I noted that Scotland’s membership of the European Union would depend, in part, on the support of the UK.  The UK – like all other members of the EU – would possess the power of veto over Scotland’s application.  It is not in the UK’s long-term interests to deny Scotland membership of the EU, but its support cannot be assumed: Scotland’s membership of the European Union will be an important part of the negotiating process.

The relationship of a newly independent Scotland to the European Union is far from clear.  Whilst there was some early talk that Scotland would automatically become part of the EU on independence, Scotland’s Future accepts that there will need to be an amendment of the treaties for Scotland to join.  The normal processes through which a country applies for membership of the EU are found in Article 49 of the Treaty on European Union.  Scotland’s Future argues that this would be an inappropriate process to impose on Scotland, contending that Scotland, and its people, are already within the Union.  If Article 49 were insisted upon – either by the EU institutions or by any of the Member States – it seems that Scotland would have to gain independence before applying to join.  There would then be a problematic gap between independence and membership of the EU.  Scotland’s Future contends that, instead of Article 49, Article 48 would be the more appropriate mode to amend the Treaties to enable Scotland’s membership.

It is worth looking at Article 48 in a little more detail.  It reads, so far as is relevant:

 Article 48:

 1. The Treaties may be amended in accordance with an ordinary revision procedure. They may also be amended in accordance with simplified revision procedures.

Ordinary revision procedure

 2. The Government of any Member State, the European Parliament or the Commission may submit to the Council proposals for the amendment of the Treaties. These proposals may, inter alia, serve either to increase or to reduce the competences conferred on the Union in the Treaties. These proposals shall be submitted to the European Council by the Council and the national Parliaments shall be notified.

3. If the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the proposed amendments, the President of the European Council shall convene a Convention composed of representatives of the national Parliaments, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area. The Convention shall examine the proposals for amendments and shall adopt by consensus a recommendation to a conference of representatives of the governments of the Member States as provided for in paragraph 4.

The European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene a Convention should this not be justified by the extent of the proposed amendments. In the latter case, the European Council shall define the terms of reference for a conference of representatives of the governments of the Member States.

4. A conference of representatives of the governments of the Member States shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to the Treaties.

The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.

5. If, two years after the signature of a treaty amending the Treaties, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter shall be referred to the European Council.

 Scotland’s Future claims that this process could be undertaken and completed within 18 months.

A number of points arise out of Article 48.  The most striking point is that, on the face of it, Article 49 would appear the more appropriate mechanism for Scotland’s application.  Article 49 deals with new countries wishing to join the EU, Article 48 relates to treaty amendments that alter the powers of the EU. Even if Article 48 is used, however, it is likely that the process of treaty amendment would still be a lengthy one.

First, the Scottish Government would have to secure the competence to negotiate with the EU, and perhaps other Member States, from Westminster.  Second, the Scottish Government, whilst Scotland was still a part of the United Kingdom, would have to persuade the Council that it was entitled to make use of Article 48, despite Article 48 being confined to governments of Members States.  Then, thirdly, preliminary negotiations would begin with the European institutions, and Member States, before a formal proposal was presented to the Council.  Fourthly, the Council, in its turn, would then send the proposal to the European Council (comprising the Heads of State of the Member States and the President of the European Council) and notify the European Parliament.  Fourthly, if a majority of the European Council were disposed to consider the amendments further, the proposal would be put to a Convention or directly to a Conference consisting of representatives of the governments of Member States.  The former, the Convention, is used if the amendments seem of wide significance, and would require assembling representatives from a broad range of institutions to deliberate and debate the proposals.  The latter, the Conference, can be engaged directly if the reforms are more limited.  It is likely that Scotland’s application – which would affect the composition of the European Parliament, the Commission, and the Court – would require the summoning of a Convention.  In any event, the proposal would then have to be agreed by a Conference of representatives of the governments of Member States.  Fifthly, and finally, the amendments would then have to be ratified by those Member States.   This would probably require a referendum in France and perhaps in some other states too.  Most Member States would require that the amendments be ratified by their legislatures before becoming effective. Then – after the amendments had been ratified by all of the Member States – Scotland would be able to join the European Union.

The last paragraph made for heavy reading.  I do not claim to be a specialist in European Law, but to assume that the Article 48 procedure could be completed within 18 months seems laughably optimistic:  three or four years seems a more plausible timeframe.  Even this makes a number of assumptions.  It assumes that the difficult issues that Scotland must negotiate are quickly agreed.  It assumes that other countries – in particular Spain – do not block or slow Scotland’s application.  And it assumes that the EU is willing to undertake a discrete treaty amendment process to speed Scotland’s membership – and does not seek to include Scotland in the next round of EU expansion.

Whilst the timeframe of Scotland’s Future is unrealistic, it is highly likely that Scotland would be able to join the EU before 2020.  It is in no-one’s interest to exclude Scotland from the Union.  If, as is almost certainly the case, Scotland cannot complete the Article 48 process before the 2016 deadline, it is conceivable that some sort of international agreement could be reached between Scotland and the EU to preserve Scotland’s legal position.  Perhaps Scotland would then be treated a little like Norway: possessing many of the privileges and duties of EU membership, but not able to return MEPs to the European Parliament or appoint Commissioners.

Conclusion

The contention of this post has been that the timescale set by Scotland’s Future is unrealistically tight, and likely to harm Scotland in a number of ways.  There would be benefits to a slower process of negotiation, one which was planned to last four or five years.  Aside from giving Scotland more leeway in negotiations with the UK and more time to allow the treaty amendment process to run its course in Europe, this would also permit Scotland to start the process of formulating a new constitution prior to independence.  Scotland’s Future proposes that a Constitutional Convention be held sometime after the first elections in 2016, following independence.  But if Scotland waits for independence to begin this process it is likely that many of the fundamental aspects of the new Scottish Constitution will have been settled – Scotland’s currency, aspects of its economic policy, and its relationship with the EU are only the most obvious of the questions that will have been resolved by this point.  Other matters that a Convention might want to consider – the role of the Queen and the continuation of the Human Rights Act, for example – will already be part of Scotland’s provisional constitution, and may prove hard to shift.  There is a danger that, like Israel before it, Scotland will find it easier to muddle through with this provisional constitution rather than produce a fresh constitutional document.

Finally, a benefit of running these three processes in parallel is that a further referendum could then be held prior to independence. This second referendum would stand as a ratification of the agreement with the UK (a ratification that, the Constitution Unit argues, is needed to approve the deal), as a vote to join the European Union, and, finally, as an approval of Scotland’s new constitution.  Each of these three issues presents a strong argument for a second vote.

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

Suggested citation: N. W. Barber, ‘After the  Vote’  U.K. Const. L. Blog (14th January 2014) (available at  http://ukconstitutionallaw.org).

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