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Stephen Tierney: Is a Federal Britain Now Inevitable?     

stierneyThe Smith Commission Report issued today promises a restructuring of the United Kingdom which may prove to be more significant than the devolution settlement of 1997-98 itself; the acquisition of extensive tax and welfare powers would make Scotland one of the most autonomous regions in western Europe.

Notably the UK’s economic and fiscal coherence has hitherto been a key factor in allowing the asymmetrical and ad hoc nature of devolution to embed itself without any great disruption to the constitutional structures of the central state. With the dismantling of this system it seems that a tipping point might well be reached for our lop-sided and messy system of territorial government. The Smith Commission proposals, if implemented, will have knock-on consequences for several fundamental features of the UK constitution: parliamentary supremacy, the idea of the House of Commons as a national chamber for Britain, possibly the nature and composition of the House of Lords, and the relative freedom of the UK Government in its dealings with the devolved executives. It is perhaps ironic therefore, but I believe also inevitable, that a process which was designed studiously to avoid the federal question will now bring federalism to the table as possibly the only medium term solution to the deep imbalances which will come with further, radical powers for the Scottish Parliament.

How Does Smith Raise the Federal Question?

Federalism has rarely been seen as an attractive option by the British political class, and its feasibility as a constitutional project for Britain is certainly not beyond question. But some kind of federal solution will surely be needed to deal with two related issues: the extent to which Scotland’s representation within the House of Commons, so far only marginally affected by devolution (reduced from 72 to 59 by way of the Scotland Act 1998 as amended), will appear ever more anomalous as the Scottish Parliament’s powers expand; and the very real risk that as Scotland becomes ever more detached from Westminster, the Union will become largely irrelevant to many Scots. The latter is far more dangerous since it could well mean that Scottish independence is in the longer term now more rather than less likely. If this is true the unionist parties, which make up the majority of the Smith ‘Commission’ (which was in reality an inter-party bargaining group), risk seizing defeat from the jaws of referendum victory.

Viewed in this way it is not too dramatic to say that federalism may become the last throw of the dice for the Anglo-Scottish union: serving both to manage relations between a hollowed out central state and its nations/regions, and giving Scotland a sense of purpose in union as well as a sense of strength in autonomy.

I have discussed the inadequacy of the Smith process elsewhere. I won’t dwell on that issue here except to observe that once again, as in 1997-98, the UK has embarked upon a radical reorganisation of territorial authority on the hoof, formulating powers for Scotland without a broader conversation about what this will mean for the wider UK or for how Parliament functions.

But while from the perspective of ‘winning’ the referendum there was arguably a political imperative to set up Smith (see The Vow), this does not change the fact that the exclusion of the rest of the UK from its deliberations makes little sense. While independence is arguably a unilateral decision, further devolution for Scotland is not, and surely cannot be dealt with only by Scottish politicians determining simply what Scotland wants. The UK Government itself recognised this in 2012. It ruled out a multi-question referendum which would include a third option of ‘devo-more’ on the basis that further devolution would have to be discussed and negotiated across the UK; there was certainly sense to this. But on 18 September this was precisely the alternative to independence which was offered to voters. The Vow in effect meant that those voting No were not choosing the status quo but instead were signing a blank cheque for the as yet unformed Smith Commission.

Leaving process and principle to one side, the substantive consequence of this is that we have yet another asymmetrical process that promises to transfer more and more powers to the Scottish Parliament, making an already very lop-sided system of territorial decentralisation ever more so. On this basis the Smith report can only be a proposal. The UK Government will surely only agree to the increased powers for the Scottish Parliament it recommends if the whole package works to the advantage of the rest of the UK, for example by reducing or removing the perceived Scottish subsidies contained within the Barnett formula. The Smith Commission attempts to answer the Scottish question; but in doing so it in fact also raises the British question: how will the institutions of the British state adjust both to manage these new powers and to deal with the issue of fair representation across the state?

Federalising Britain: Correcting the ‘Representation Deficit’

There is much confusion about what federalism is, partly because of a failure to distinguish ‘federation’, which is often used to provide a very strict definition of the institutional nature of a federal state, from ‘federalism’ which is a much more flexible term, capturing what Daniel Elazar calls the inter-related ‘self-rule’ and ‘shared rule’ dimensions of territorial relations within a state.

From this perspective we can see the lop-sidedness of UK devolution as being all about the grant of ‘self-rule’ with very little focus upon ‘shared rule’; dispersing power to the Scotland, Wales and Northern Ireland without also binding them closely within the institutional structures of the central state. This is in effect a ‘representation deficit’ and Smith indicates that steps must be taken to avoid devolution falling further into the black as it were. The radical levels of tax devolution which Smith presages must be accompanied by a reimagining of the place of regions and nations within the decision-making bodies of the central state. This is needed both to correct unfairness within the system (for example a now more stark West Lothian issue) and to stem the pathology of a slow descent towards independence which might result from a system that offers detachment without any correlating integration.

Here are four questions which must now be answered after Smith:

  • Can further devolution be proposed only for Scotland, without provoking decentralisation across the UK?

An issue that accompanies the lop-sidedness of devolution is its strong asymmetry; what I have called double asymmetry: only some parts of the state are devolved, and those which are have very different models of government.

Each of these two features is likely to change. There are now proposals for strong devolution for Manchester. Attempts by the Blair government to promote a regionalist agenda fell flat but a new agenda, focused also on cities, which promises powers over areas such as housing, transport and economic development might be bolstered also by representation for English cities and regions in a revamped House of Lords (discussed below). Another incentive for regional powers could well be the sense that a Scottish Parliament with tax powers might use these to gain different forms of competitive advantage which should be countered within English regions. There is no mention of English devolution in Smith but it is now on the agenda.

If the powers of the Scottish Parliament increase, Wales will no doubt lobby for further competences if the current trajectory of Wales tracking Scotland’s growing autonomy continues. Federalism does not require symmetry, but in the past ten years we have seen Welsh devolution move closer to the Scottish model and this trend could well continue.

  • Can powers be taken away from Westminster with no impact on how Westminster is composed or how it operates?

Immediately after the referendum David Cameron tied new powers for Scotland to a concomitant recalibration of the powers of Scottish MPs at Westminster. This was shot down immediately by the Labour Party and the Prime Minister back-tracked. But it appears increasingly that this was a tactical retreat. The West Lothian question cannot be avoided; apart from anything else it will be an issue at the General Election next year. This need not mean an English Parliament but it will require a revision of the role of Scottish MPs at Westminster, perhaps along the lines of the McKay recommendations.

Another proposal, which would go some way to deal with the representation deficit, is reform of the House of Lords. Ed Miliband in his speech to the Labour Party conference in September 2014 suggested a new chamber of the nations and regions of the UK. This idea was earlier advanced by Gordon Brown. This would only be feasible if accompanied by meaningful devolution to English regions and cities and again it is not mentioned in Smith. But such a reformed chamber could offer a genuinely union-focused institution at the centre of the state, pushing back against the relentlessly fissiparous trajectory which Smith alone might otherwise deliver.

  • Can the Scottish Parliament become one of the most powerful sub-state legislatures in the Western world with no formalisation of the competence limits between it and Westminster?

Another dimension typical of a federal system is that both the central and regional tiers of government have constitutionally-demarcated spheres of operation. The reassertion of parliamentary supremacy in, for example, the Scotland Act is another way in which the UK has hitherto looked non-federal. But Smith now proposes that the Scottish Parliament be made ‘permanent’ (para 21). Such a move would presumably also extend to the prohibition of removal of its powers without the Scottish Parliament’s consent: Smith confirms that the Sewel convention will be put on a statutory footing.

There are various ways in which this could be done. One is of course a self-conscious reconstitution of the state – reforming the state’s rule of recognition around a new foundational document: a Liberal Democrat report has called for ‘a declaration of federal union’. But this is surely unnecessary. Some arrangement analogous to the European Communities Act 1972, but building in more explicit self-limitations on Parliament’s powers, would no doubt satisfy those who want guarantees of Scottish home rule, without dealing with the kompetenz-kompetenz issue which is still left open post-Factortame. This seems to be what Smith envisages in providing that its permanence will be guaranteed by ‘UK legislation’ (para 21). Another related way to do this would be through a new Act of Union or Acts of Union passed in parallel by the two parliaments. Technically it could be argued that each could be open to repeal (s37 of the Scotland Act 1998 would need to be taken into account), but by another reckoning such a double endorsement could take on an unsettled constitutional status as did the 1706/07 Acts, at least as viewed within the Scottish legal system. Smith also refers to the ‘sovereign right of the people of Scotland to determine the form of government best suited to their needs’ (para 20); again, if any such reference were to be included in the preamble of a new statute, this would add considerable weight to the constitutional status of legislation designed to ‘entrench’ the Scottish Parliament.

  • Can a territory enjoying such a delegation of powers continue to interact with Whitehall on the basis of informal and discretionary arrangements?

Another area which has been lacking is any formalisation in the ways in which sub-state executives interact with the UK government. So far devolution has worked through very informal arrangements through the Joint Ministerial Committee system, supported by Memoranda of Understanding and supplementary ‘concordats’. If the Scottish Parliament is empowered to set radically different fiscal and welfare priorities this could put great strain on the system and some form of formalisation may well be needed. This is recognised firmly by Smith. Lord Smith himself in his foreword to the Report asserts that ‘weak inter-governmental working… needs to be fixed. Both Governments need to work together to create a more productive, robust, visible and transparent relationship.’ This is fleshed out in Pillar 1 of the Report which calls for the ‘urgent’ reform of the JMC and a new Memorandum of Understanding to formalise inter-governmental (and inter-parliamentary) relations and open them up to ‘much stronger and more transparent parliamentary scrutiny’ (para 30). The proposals extend also to the area of UK relations with the EU. Smith recommends that Scottish Ministers be ‘fully involved’ in agreeing the UK position in EU negotiations relating to devolved policy matters, that they be consulted before final UK negotiating positions relating to devolved policy matters are fixed, and that devolved administration ministers be allowed to speak on behalf of the UK in Brussels in certain circumstances (para 31).

These measures could also help resolve the representation deficit by again giving Scottish (and surely the other sub-state governments) a clearly demarcated say in setting central government policy priorities in areas of shared concern. Certain issues could be unpalatable for some, for example giving the regions effective veto powers in relation to certain matters, perhaps exercised through the reformed second chamber (a measure that would require amendment to the Parliament Acts). But powers of this kind may be needed to give the union a real sense of meaning to those on the periphery.

Federalism: Feasible Within our Unwritten System?

To conclude, the federal idea is a more open canvas than the term ‘federation’ would suggest. It is flexible and open to a range of institutional possibilities; arguably it does not even require full-blown codification through a new foundational document. Indeed, it seems to me that the UK has been on a federal trajectory at least since 1998 and that Smith can be seen as another stage, albeit a dramatic one, on this incremental journey. But a number of important changes do seem likely to accompany a significantly strengthened Scottish Parliament. For example, we may well see a demand for regionalism in England, a recalibration of the House of Commons, and possibly also radical reform to the House of Lords. Efforts to make the Scottish Parliament permanent will take on a federal perspective, seeming to limit Westminster’s supremacy in this sphere at least; if this occurs a concomitant formalisation of respective executive powers also seems likely as Smith suggests.

Such reforms would both extend and crystallise the ‘self-rule’ dimension of a federalising UK while also offering institutional corrections to the representation deficit. Whether all of this will create a stronger sense of partnership and a renewed sense of belonging to a common union we simply don’t know, but without such a broader set of reforms the Smith process may well further unsettle the union it was intended to save.

 

Stephen Tierney is Professor of Constitutional Theory in the School of Law, University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law. ESRC Senior Research Fellow, ESRC Centre on Constitutional Change

Suggested citation: S.Tierney, ‘Is a Federal Britain Now Inevitable?’ (27th November 2014) (available at http://ukconstitutionallaw.org).

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Sionaidh Douglas-Scott: British withdrawal from the EU: an existential threat to the United Kingdom?

Sionaidh-Douglas-Scott-avatar-1409859580-96x96The Conservative party’s proposal to repeal the Human Rights Act (and their proposal’s many faults) has already been well documented. However, as Roger Masterman has already pointed out on this blog, ‘It seems unusual then, that the target of Grayling’s indignation is the supposed denial of supremacy caused by the non-binding influence of decisions of the European Court of Human Rights, rather than the more realistic (though perhaps equally problematic) assertion that legal competence has been ceded in some way to the Court of Justice.’ But the European Union is very much a target of indignation for conservative and other eurosceptics, and David Cameron has promised, if re-elected, an in-out referendum by 2017, if the terms of Britain’s EU membership cannot be renegotiated. With UKIP support gaining in the polls, pressure is growing on other parties to support an EU in-out referendum. There is a realistic prospect that the UK may leave the EU.

There are many arguments that can be made as to why the UK should remain within the EU. This posting addresses just one: the serious constitutional consequences for both the constituent parts of the UK, and the UK as a whole, should there be a ‘Brexit’. Given that the UK has just survived perhaps the most serious threat ever to its constitutional existence, in the form of a very closely run Scottish referendum on independence, and given the fervent and almost desperate nature of the ‘Vow’ made by all three party leaders to accord greater powers to Scotland if necessary to maintain the Union, the risk of such further constitutional instability should be taken seriously.

At first it might seem that Scotland’s ‘No’ vote for independence would lessen the chance of EU secession, given the relatively greater pro-EU vote in Scotland (‘relatively greater’ because UKIP did gain one constituency in the Scottish European parliament elections of 2014). How each constituent part would vote is not certain, but according to 2013 House of Commons figures, 53% of Scots said they would vote to stay in the EU, compared with a third who said they would vote to leave. This was in contrast to attitudes in England, where 50% said they would vote to leave the EU compared with 42% who would vote to stay in. At the last European Parliament elections in May 2014, UKIP gained the largest percentage of votes in the UK overall, with 27.5%, but in Scotland only 10.46% of the vote. Furthermore, EU regional funding tends to benefit Scotland, Wales and Northern Ireland more than it does England. Wales and Northern Ireland are net recipients from the EU Budget, and in particular, Northern Ireland stands to lose significant sums if the UK withdrew from the EU. Likewise, to the extent that the devolved nations have access to EU institutions in areas of devolved competence, they enjoy an international presence that would be difficult to replicate through country-specific diplomatic missions. So there are distinct advantages to be lost by an EU exit.

However, the relatively lower eurosceptic vote in the devolved nations would not make a great impact on an EU in-out referendum overall, given that (according to the Office for National Statistics) the population of the devolved nations eligible to vote is small compared to that in England. How much does this matter? It matters a great deal if the vote in the devolved nations is of a less eurosceptic complexion than the English vote in an EU in-out referendum.

Destabilising devolution

It is with the devolution settlement itself that an EU exit would wreak the most havoc, risking a constitutional crisis. Both the European Convention on Human Rights (ECHR) and EU law are incorporated directly into the devolution statutes in Scotland, Wales and Northern Ireland. For example, section 29(2)(d) of the Scotland Act 1998 (SA), provides that Acts of the Scottish Parliament that are incompatible with EU law or with ECHR rights are ‘not law’. Section 108(6) Government of Wales Act 2006 states that any act of the Welsh Assembly incompatible with EU law or the ECHR, falls outside its competence. Section 24 of the Northern Ireland Act prohibits any legislation contrary to EU or ECHR law.

Therefore, although the Westminster Parliament may repeal the Human Rights Act 1998 or the European Communities Act (ECA) 1972, this would not bring an end to the domestic incorporation of the ECHR or EU law in devolved nations. It would still be necessary to amend the relevant parts of devolution legislation. But this would be no simple matter and could lead to a constitutional crisis. Although the UK Parliament may amend the devolution Acts, the UK government has stated that it will not normally legislate on a devolved matter without the consent of the devolved legislature. This requires a Legislative Consent Motion under the Sewel Convention. However, the devolved legislatures might be reluctant to grant assent, especially as one feature of the ‘Vow’ made to the Scottish electorate was a commitment to entrench the Scottish Parliament’s powers, thus giving legal force to the Sewel Convention. So the need to amend devolution legislation renders a UK EU exit constitutionally highly problematic.

Should devolved nations be able to host separate referenda?

Would it be possible for the devolved nations to demand their own referenda in the event of a Westminster mandated EU in-out referendum? In the frenzied last days before the Scottish independence referendum, there was talk of moves towards a ‘federal’ UK. This does not seem very likely now, and whatever recommendations the Smith Commission will deliver later this year (which are likely to include more financial, welfare and taxation powers for the Scottish Parliament) they are unlikely to include greater autonomy in foreign affairs. However, as many areas of EU competence are devolved matters, and continued Scottish membership of the EU was a concern in the event of Scottish independence, the matter is likely to be of great interest in Scotland. Notably, between the 2015 UK general election and the promised 2017 EU in-out referendum will come another election – the 2016 Scottish parliamentary elections. The SNP may perform well in that election, bolstered by the 45% vote in the independence referendum and progress toward ‘devo max’. In which case, the Edinburgh government – which is generally of a more pro-European and social-democratic hue than Westminster – might call for a new independence referendum if there were a serious prospect of a 2017 referendum leading to a UK EU exit, presenting such a further independence referendum as Scotland’s means of remaining within the EU. And given this change of circumstances they might gain over 50% of the vote. This would not find favour in London, which would almost certainly not accord a repeat referendum the sanction of legitimacy accorded to the 2014 vote. However, regions have been willing to go ahead with referenda even without a constitutional sanction – such as Catalonia this November.

In the face of such a prospect, should a potential EU in-out referendum be required to take on a different constitutional form to past UK-wide referenda? Should a requirement be set for a majority of exit votes in each of the devolution jurisdictions before UK withdrawal is possible? Or perhaps each of the devolved nations should be able to hold its own in-out referendum, and a ‘federal’ standard set whereby UK withdrawal is only possible if a majority of the devolved nations vote to exit? 

Scotland and the sovereignty question

A British exit from the EU is sometimes justified in terms of the maintenance of parliamentary sovereignty, which presently must concede the supremacy of EU law (acknowledged both in ECJ caselaw such as Costa v ENEL, and s 2(4) ECA). However, the Diceyan orthodoxy of parliamentary sovereignty has never held as much weight north of the border. In the 1953 case of MacCormick v Lord Advocate in the Court of Session, the Lord President, Lord Cooper, (a former Conservative and Unionist politician and eminent legal historian) contested the Diceyan orthodoxy thus:

‘The principle of the unlimited sovereignty of parliament is a distinctively English principle which has no counterpart in Scottish constitutional law….Considering that the Union legislation extinguished the parliaments of Scotland and England and replaced them by a new parliament, I have difficulty seeing why it should have been supposed that the new parliament of Great Britain must inherit all the peculiar characteristics of the English parliament but none of the Scottish parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the parliament of England.’

Linda Colley’s well-known work, Britons: Forging the Nation, reminds us that both the British state and the British national identity were ‘forged’ by the Acts of Union of 1707. The United Kingdom is only 300 years old, not an ancient natural phenomenon, and it may be undone. Given that the Union of 1707 brought into being the British state, ought we not give this historical event of the Acts of Union its due as a keystone of the British constitution, rather than the Diceyan mantra of parliamentary sovereignty? In which case, perhaps we should recognise that the British constitution is not simply the English constitution, and that Scottish constitutional principles (and Northern Irish, and even now nascent Welsh – given the recent ‘Welsh Bye-laws case) play their part in a multiple constitutional order, and may be of particular salience at times of crisis or ‘constitutional’ moments, such as the issue of whether to withdraw from the EU. Scottish intellectuals, lawyers and politicians of many different political persuasions stand by an indigenous Scottish tradition of popular sovereignty that is claimed to date back to the Declaration of Arbroath in 1320. They hold that, before the 1707 Act of Union, sovereignty resided in the Scottish people – and that it still does so, in spite of the claims of Diceyan parliamentary sovereignty.

Many Scottish unionist politicians accept the doctrine of Scottish popular sovereignty. It was this doctrine that pervaded the Claim of Right for Scotland in 1989, which was signed by the great majority of Scotland’s MPs and many of the leaders of Scottish civil society. The draft Constitution for an independent Scotland, published earlier his year, stated that ‘the fundamental principle’ that ‘the people are sovereign…resonates throughout Scotland’s history and will be the foundation stone for Scotland as an independent country’.

Therefore, meditation on the entirety of the Union, and its constitutional basis, poses the question of whether, at least in Scotland, the doctrine of popular sovereignty might form the basis of Scotland’s own right to determine whether or not it exits the EU. If Scotland chose to remain, and England to leave, the scope for constitutional crisis would be extreme.

Impact on Ireland and the Northern Ireland peace process

Lastly, the impact on the island of Ireland of a UK exit from the EU should be considered. It could well be source of great instability. Although Ireland itself is clearly a separate state, and has long since left the UK, it is nonetheless in a somewhat different relationship to the UK than the other current 26 members of the EU. Section 2(1) of the Ireland Act 1949 (the British Act of Parliament passed to deal with the consequences of the Irish Republic of Ireland Act 1948) declared that, even though the Republic of Ireland was no longer a British dominion, it would not be treated as a ‘foreign country’ for the purposes of British law. Irish and UK history are much intertwined and, were the UK to exit the EU, it would mean an external border of the EU would run through the island of Ireland. The shared border with the Republic of Ireland has long been of enormous symbolic and practical importance. What would happen to the Common Travel Area between the two islands if the UK exited the EU? Would visa requirements and customs duties be imposed?

The Belfast or ‘Good Friday’ Agreement of 1998, an international treaty signed by the UK and Republic of Ireland, enshrined North-South and East-West co-operation, effected constitutional changes and established cross-border bodies. It includes many provisions concerning EU and ECHR law, and the status of the UK and Ireland as EU member states is woven throughout the Agreement. Indeed, the section entitled ‘Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland’ speaks of ‘close co-operation between (the) countries as friendly neighbours and as partners in the European Union’. The Good Friday Agreement required the British government to incorporate the ECHR into Northern Ireland law. Any amendment through changes to either the Human Rights or Northern Ireland Acts which did not meet the human rights commitments in the agreement would be incompatible with this international treaty. The peace process in Northern Ireland is unfortunately not irreversible, but it has been unforgivably ignored in UK discussion on whether to withdraw from the EU. It is also likely to be ignored in Brussels, where there is some impatience with British demands in any case.

In March 2012, a joint Statement by Taoiseach Enda Kenny and Prime Minister David Cameron set out a programme to reinforce the British-Irish relationship over the next 10 years. It emphasised the importance of shared common membership of the EU for almost forty years and described them as ‘firm supporters of the Single Market’. However, a UK EU exit would have consequences for the future of the Belfast agreement and in particular implications for Anglo-Irish co-operation in dealing with cross-border crime and terrorist activity. To give just one example: the UK and Ireland make frequent use of the European Arrest Warrant (EAW). Figures indicate that since the EAW entered into force, the great majority of requests made by Northern Ireland for surrender of persons have been to Ireland. Prior to the introduction of the EAW, a number of European and domestic measures in the UK and Ireland regulated extradition proceedings, and resurrecting these would be a painful process, fraught with difficulties and uncertainties and potential for endless litigation. While the EAW has not always functioned ideally, a return to bi-lateral extradition conventions and other measures would be very undesirable. (Although the UK’s current plans are to exercise a block opt-out from over 130 EU Justice and Home Affairs measures, the apparent intention is to opt back in to the EAW immediately).

In conclusion, a British exit from the EU risks undermining the very self-determination and national sovereignty that its adherents believe it will bring about. This is because it risks shattering the fragile balance and stability of the UK by threatening the peace settlement in Northern Ireland and raises the possibility of a further independence referendum in Scotland. Surely such constitutional risks are not to be taken on lightly? But at present, there is little indication that anyone calling for an EU exit is giving them much thought. 

Sionaidh Douglas-Scott is Professor of European and Human Rights Law at Oxford University.

 

(Suggested Citation: S. Douglas-Scott, ‘British withdrawal from the EU: an existential threat to the United Kingdom?’ U.K. Const. L. Blog (13th October 2014) (available at http://ukconstitutionallaw.org).

 

 

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Aileen McHarg: The Vow: Vote No for More Devo

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

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

Do We Know What Exactly is on Offer?

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

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

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

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

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

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

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

Can the UK Party Leaders Commit to Further Reform?

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

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

Is the Proposed Timetable Feasible?

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

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

Are the Powers On Offer Likely to be Adequate?

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

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

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

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

Is Reform Likely to Produce a Stable Constitutional Settlement?

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

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

Conclusion

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

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

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

 

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

 

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

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Nick Barber: After the Vote: The Citizenship Question

Nick1Three intertwined questions relating to citizenship will become of great importance if there is a ‘yes’ vote in the Scottish referendum. First, who will become, or be able to become, a Scottish citizen? Secondly, who will remain, or be permitted to remain, a United Kingdom citizen? Thirdly, and relatedly, who will become, or be permitted to become, a dual citizen, a citizen of both Scotland and the United Kingdom? Aside from a very good paper by Jo Shaw and a Scotland Analysis Paper produced by the British Government, these questions have not received the attention they deserve.  The questions around citizenship are given added significance because of the role, in the background, of European citizenship. European citizenship is dependent upon the individual holding citizenship of a member state: those in the United Kingdom are currently European citizens because of their UK citizenship. If Scotland votes for independence it is likely – it is almost a certainty – that there will be a gap between independence and Scotland joining the European Union. During this time Scottish citizens would not be European citizens unless they were also citizens of the United Kingdom (that is, citizens of the remainder of the United Kingdom after independence).

Who will be a Scottish Citizen?

Perhaps surprisingly, the Scottish Constitutional Convention that is intended to draft a constitution for Scotland will not be assembled until after independence – and so the citizenship question will need to be settled before it sits. Like a number of important issues, it seems citizenship will not be a question that the Convention will be empowered to answer. The Draft Interim Constitution gives an indication of those who will become, or who may apply to become, Scottish citizens. The Draft Interim Constitution needs to be treated with a little caution as it embodies the view of Scotland’s SNP controlled government; after a ‘yes’ vote it is possible that the Scottish Parliament might revisit the citizenship question.

Section 18 of the Draft Interim Constitution identifies the following groups as automatically receiving Scottish citizenship or as entitled to apply for citizenship:

(1)        The following people automatically hold Scottish citizenship, namely
(a) all those who, immediately before Independence Day, hold British citizenship and
either
(i) are habitually resident in Scotland at that time, or
(ii) are not habitually resident in Scotland at that time but were born in Scotland,
(b)  any person born in Scotland on or after Independence Day if either of the person’s parents, at the time of the person’s birth—
(i)  holds Scottish citizenship, or
(ii)  has indefinite leave to remain in Scotland, and
(c)  any person born outside Scotland on or after Independence Day if
(i) either of the person’s parents, at the time of the person’s birth, holds Scottish citizenship, and
 (ii) the person’s birth is registered in Scotland.
(2) The following people are entitled to claim Scottish citizenship according to the prescribed procedures, namely
(a)  any person born in Scotland on or after Independence Day if either of the person’s parents meets the prescribed requirements,
(b)  any person with
(i) a prescribed connection by descent with a person holding Scottish citizenship, or
(ii) any other prescribed connection with Scotland.
(3)        A person holding Scottish citizenship may also hold other nationalities or citizenships at the same time.
(4)        Further provision about entitlement to Scottish citizenship is to be made by Act of the Scottish Parliament, and “prescribed” means prescribed by or under such an Act.
(5)        Such an Act may, in particular, include provision supplementing, qualifying or modifying the provision in this section.

 

The first point to make about these criteria is that they are quite extensive (though not quite as extensive as the original proposals found in the Scottish White Paper). There are about 810,000 people who were born in Scotland but live elsewhere in the United Kingdom – that is equivalent to roughly a sixth of the population that currently lives in Scotland. There might be a large number of people who discover, to their surprise, either that they have been granted Scottish citizenship without their knowledge or can acquire citizenship on application. It is conceivable that the large number of Scottish citizens living outside of Scotland may present challenges in the future: would they be entitled to vote in elections, or, if it is held, in a referendum on a draft Scottish Constitution?

The second point to note is that these criteria have been drafted in ignorance of the United Kingdom’s (that is, the remainder of the United Kingdom after independence) view on citizenship. This will be discussed in the next section, but it is possible that the UK will be unwilling to allow so many of its citizens to hold dual citizenship with Scotland. If so, the Scottish citizenship rules may need to be modified to prevent the automatic conferral of citizenship on people who have no wish to become Scottish citizens and wish to remain UK citizens.

Who will be a UK Citizen?

The Scottish White Paper assumes that UK citizenship will persist after independence. If this were correct, on the day that Scotland becomes independent all Scottish citizens would also be UK citizens. Between six or seven million people would then become dual Scottish/UK citizens. British citizenship law is quite generous in respect of dual citizenship: in general it allows its citizens to hold citizenship of other countries. There are, however, a number of reasons why Scotland might be treated differently, at least initially.

First, it is unusual for a state to have quite so many of its citizens holding dual citizenship. Classically, citizenship is presented as the highest form of political membership that an individual can possess: their membership of the state.  States are partly characterised by the claims they level over their members: they present themselves as exercising supreme authority, claiming to have the final say about the obligations of their members, to be the final determiner of political and personal disputes. Citizenship is a form of state membership that brings with it a share in the governance of the state: it is the citizens, through the institutions of the constitution, that determine the decisions and policies of the state. Understood in this light, dual citizenship is inherently problematic. The individual is a member of two states, states animated by two distinct citizenries, which make competing claims to supremacy over her.

In the real world, of course, this is rarely a problem. Having a small number of people within the state who possess dual citizenship does not significantly impair the state’s capacity to coordinate action within the community. But if all, or a large portion, of the Scottish citizenry were also citizens of the (remainder of) United Kingdom, the potential for tension would be far greater. The capacity of the United Kingdom to control its people – to make good on its assertions of authority – would be significantly impaired. And, by derivation, the capacity of the citizens of the United Kingdom to control their state would be reduced.

The converse of this observation also presents difficulties. Whilst the state asserts authority over its citizens, it purports to exercise this authority to advance their wellbeing: the welfare of its citizens is, or should be, the primary concern of the state. If Scottish citizens were also UK citizens, UK institutions would have a direct interest in the ways in which Scottish citizens were treated. In such a situation, the UK could properly take an interest in the decisions of Scottish institutions; indeed, it could be argued that it would be under a duty to do so.  The overlap of citizenship could, then, generate conflict between the two states.

Furthermore, British citizens who live abroad are entitled to vote in elections. Under the Representation of the People Act 1985, a British citizen who has lived abroad for up to fifteen years can register to vote in parliamentary elections. Registration is tied to the last address at which the person lived – and this requirement might be enough to ensure that UK citizens in Scotland are not able to vote in elections (their place of residence now being part of a foreign country). But there are the seeds of an interesting legal challenge here. The driving purpose of these provisions of the RPA 1985 was to give citizens living abroad the vote. The registration requirement was included to ensure that this right could not be manipulated by political parties, who might be tempted to fill up marginal seats with friendly ex-pat voters. It could be argued that where a person’s place of former residency has disappeared, she should be permitted to register in the constituency nearest to that location. The Human Rights Act might be invoked to support or require this reading. Protocol 1 of the European Convention on Human Rights has been construed to include the right to vote in elections. The European Court of Human Rights has accepted that states can place residency requirements on the right to vote – it is permissible to deny those settled in a foreign country the right. It could be argued, however, that a law that gave the right to vote to a UK citizen living in Spain, but denied the right to a UK citizen in Scotland amounted to discrimination under Article 14 of the European Convention on Human Rights: if the UK gives this right to some citizens who live abroad, it must accord the same right to all such citizens.

Finally, dual citizenship raises a broader question of fairness. Whilst all Scottish citizens would maintain their UK citizenship, those living in the rest of the UK who did not satisfy the Scottish citizenship test would not be able to acquire dual citizenship in return. Scottish citizens would gain the benefits of UK citizenship – being able to move freely between the two states, benefiting from consular representation overseas, perhaps being able to vote – whilst most UK citizens would not receive the benefits of Scottish citizenship.

For these reasons, it may be the case that the UK, at independence, will not initially permit its citizens to hold dual citizenship with Scotland. People alive at the moment of independence may have to choose: they can be either UK citizens or Scottish citizens. Such a requirement need not be permanent. Once the two citizenries are relatively well-defined, people born after independence could then benefit from the normal rules that govern joint citizenship – with a modest number of dual citizens emerging over a long period of time.

The European Dimension

A few paragraphs ago, I commented that dual citizenship is unusual and, in some ways, problematic. European citizenship might be thought to be a form of dual citizenship writ large – it is held by all citizens of the Member States of the European Union, and is dependent upon their national citizenship. This duality has spurred considerable discussion of the nature of citizenship in European scholarship: does European citizenship show that the institution of citizenship can transcend the state, or is it window-dressing, an effort to persuade the peoples of Europe to accept the governance of the European Union? For our purposes, though, it is the link between UK citizenship and EU citizenship that is of importance.

If the tight timetable for independence following a ‘yes’ vote in the referendum is adhered to, it is almost certain that Scotland will become an independent state before its accession to the European Union. It is also almost certain that the remainder of the UK will remain a member of the European Union after independence. There will be a period when the UK is a member of the EU, but Scotland is not. Consequently, the assertion in Section 25 of the Draft Interim Constitution that Scottish citizens will also be European citizens will be ineffective: conferral of European citizenship will not be within the jurisdiction of the Scottish state at that time.   The gap between independence and accession will necessitate the creation of temporary legal structures to enable Scotland to operate as if it were a member state, devices which, at a minimum, ensure the Scottish people continue to enjoy the basic rights that membership of the EU brings.

There are a number of ways in which this might be achieved, but one which may tempt some EU institutions – especially the European Court of Justice – is by preventing the UK removing the citizenship of those who are also citizens of Scotland. If all Scottish citizens were also UK citizens they would continue to enjoy the rights conferred by the European Union – in particular, they would continue to benefit from the right to freedom of movement within the territory of the Union. In the case of Rottmann the European Court of Justice held that as the removal of national citizenship caused the loss of European citizenship, decisions of Member States regarding the removal of citizenship were reviewable under European Law. If the United Kingdom were to attempt to strip Scottish citizens of their UK citizenship it is likely that this would be subject to review in the courts, and likely that the ECJ would be asked to rule on the question. It is possible, at least, that it might conclude that the removal of European citizenship from such a large number of people runs contrary to European Law.

Conclusion

There are no easy answers to the citizenship questions that would be raised by a vote for independence. If the UK were to permit Scottish citizens to retain their UK citizenship, problems would be raised around the participation of Scots in UK parliamentary elections. If, as is, I think, more likely, the UK were to require people to choose between UK and Scottish citizenship, the decision may run into problems with European Law.

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

Suggested citation: N. W. Barber, ‘After the Vote: The Citizenship Question’  U.K. Const. L. Blog (4th August 2014) (available at  http://ukconstitutionallaw.org).

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Aileen McHarg: A Constitution for an Independent Scotland: the Draft Scottish Independence Bill

aileenIn her speech at Edinburgh University launching the draft Scottish Independence Bill, Nicola Sturgeon claimed that ‘the prospect of a Constitutional Convention and a written constitution are, in themselves, positive reasons for voting Yes.’  Many intending Yes voters will agree with that statement, viewing independence not only as a way of addressing Scotland’s perceived democratic deficit, but also as an opportunity for democratic renewal.

The adoption of a permanent written constitution is, however, a post-independence project.  In the interim, Scotland will require a set of constitutional arrangements to enable it to function as an independent state.  The draft Bill, which will only be introduced into the Scottish Parliament in the event of a Yes vote (and will require a preliminary transfer of power from Westminster), is thus intended to provide the necessary ‘constitutional platform’ for independence, as well as to impose a binding obligation on the Scottish Parliament to establish a Constitutional Convention to begin drafting a permanent constitution as soon as possible after independence.

The key problem for the interim constitution is one of legitimacy.  While the permanent constitution is to be adopted through a widely participative and deliberative process, independent of both Government and Parliament, the interim constitution is the initiative of the Scottish Government alone.  Although the draft Bill is subject to consultation, it will be enacted as an ordinary Act of the Scottish Parliament (ASP).  There are two dangers here.  One is that the interim constitution is a politically partisan document which lacks broad acceptance.  This is particularly problematic if it takes longer than expected to agree the permanent constitution or, indeed, if agreement ultimately proves impossible.  The other is that the interim constitution conditions the content of the permanent constitution through a process of path dependency, thus in practice blunting the radical democratic edge of the Constitutional Convention.  Both considerations counsel in favour of conservativism in the interim constitution, providing as much institutional and legal continuity with Scotland’s pre-independence constitutional arrangements as possible.

How well, then, does the draft Bill measure up?

There is indeed a good deal of continuity.  Scotland will remain a parliamentary democracy, with legislative power vested in the Scottish Parliament and executive power in the Scottish Government, accountable to the Parliament and through the Parliament to the people (ss 7(2), 10, 11, and 12).  It will also still be a constitutional monarchy, with the Queen as head of state, and all existing legal rights, powers and privileges of the Crown in Scotland preserved intact (ss 7(1) and 9).  Autonomous, elected local government will remain in place (s 17), and the continued independence of the judiciary and continued commitment to the rule of law are declared (ss 13 and 15).  The European Convention on Human Rights will still apply in Scots law and will be extended to cover all legislative and executive functions on the higher standard currently applied to devolved functions under the Scotland Act, rather than the lower standard applicable to reserved functions under the Human Rights Act (ss 26 and 27).  On the assumption that Scotland will be a member of the European Union, the supremacy of EU law is also explicitly accepted (s 24(2)).

There is, of course, some necessary innovation to provide Scotland with the full legal and institutional apparatus of an independent state.  The draft Bill thus provides for the concept of Scottish citizenship (s 18), establishes a Scottish civil service (s 16), and ends appeals to the UK Supreme Court (s 14).  It also makes provision for the conduct of international affairs and foreign policy, membership of international organisations, and ratification and incorporation of international agreements (ss 19 – 22).

Aspect of the draft Bill do, however, go beyond what is strictly necessary.  For instance, section 2 declares that ‘In Scotland, the people are sovereign.’  Arguably, this is not an innovation, but rather reflects a long-standing Scottish constitutional tradition which survived the Union with England.  The difficulty, though, is in understanding what the principle of popular sovereignty means when divorced from the specific claims of a right to self-determination and the rejection of Parliamentary sovereignty which gave it potency in the context of the Union.  Section 3 does attempt to give it content, asserting (in addition to the right to self-determination) that ‘[a]ll State power and authority … 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.’  But how exactly this is to be reconciled with other aspects of the constitution, such as judicial independence, the continued acceptance of the royal prerogative as a source of executive power, or the supremacy of EU law remains to be seen.

More problematically, the Bill also contains a number of substantive value commitments.  These include: an obligation on the Scottish Government to pursue negotiations for nuclear disarmament and the removal of nuclear weapons from Scottish territory (s 23); constitutionalisation of the principle of equality (s 28); a duty to promote children’s wellbeing (s 29); protection for island communities (s 30); the right to a healthy environment (s 31); and a duty to use natural resources sustainably (s 32).  Whether a written constitution should contain substantive commitments of this kind is controversial, and they are particularly objectionable when it is not clear that there is broad public support for their inclusion.

However, the significance of this objection is perhaps reduced by a deeper continuity in the proposed interim constitution.  As already noted, the Bill will be enacted as an ordinary ASP, and the consultation paper accompanying the Bill makes clear that it will not have any entrenched legal status.  Nor, indeed, will Scotland’s interim constitution be a codified one.  Rather, the Bill will take its place as one of a number of constitutional statutes, alongside a revised Scotland Act, the Human Rights Act, the Representation of the People Acts and others.  As such, it will be amendable by subsequent Parliaments by simple majority, although amendment will have to be express, not merely implied, and there will be a certification process adopted to ensure that amendments are properly identified and considered.

Some people may object that this provides insufficient security for Scotland’s post-independence constitutional arrangements.  It is, however, a valid constitutional model, which should not be rejected out of hand.  An important task for the Constitutional Convention in drafting the permanent constitution will be to consider how best to reconcile the competing virtues of constitutional certainty and flexibility; in other words, how best to prevent abuse of power without unduly constraining future generations and excessively empowering unelected judges.  In the meantime it is clear that, in constitutional terms, independence for Scotland will be as much evolutionary as revolutionary.

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

 

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

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Katie Boyle: Scotland in Transition: the Scottish Government’s Proposed Interim Constitution and the Scottish Independence Bill

KatieOn Monday 16 June 2014 the Scottish Government launched the Scottish Independence Bill: A Consultation on an Interim Constitution for Scotland at the Edinburgh Centre for Constitutional Law. The publication is first and foremost a consultation paper that proposes establishing an interim constitution under section 4 of the proposed Bill should a majority vote in favour of Scottish independence in the referendum on 18 September 2014. The proposed interim constitution would bridge the constitutional gap between the proposed date of Scottish independence (24 March 2016) and the adoption of a permanent written constitution. To place this within the wider proposed transitional framework, the Bill would require a number of transitional mechanisms to be established before it could be legally passed by the Scottish Parliament after the referendum and before independence day. Viewed in this context the Bill proposes that the constitution-framing exercise would operate under a three stage process:

1) The transfer of a significant number of reserved powers would be required in the intervening period post-referendum / pre-independence day in order to allow for the passage of the Bill;

2) The interim constitution Bill would be enacted pre-independence day, partly commenced pre-independence day and partly commenced on independence day (section 36) to found Scotland’s constitutional arrangements until the permanent constitution is adopted;

3) The interim constitution would be replaced by a written constitution post-independence day following the deliberation and constitution-framing exercise to be conducted by the Constitutional Convention established under an Act of the newly elected independent Scottish Parliament (section 33).

Stage one of this process would require legislative action by Westminster in order to devolve the necessary power to legislate for an interim constitution. So rather than solely focus on the content of the Bill itself, it is crucial to examine what would be required in order to ensure legality in the passing of the proposed interim constitution. A number of matters that are currently reserved would require to be devolved before independence day, such as for example, the ability to legislate to change the constitution of the United Kingdom (reserved under paragraph 1 of Schedule 5 of the Scotland Act 1998).

It is proposed that the Bill would then commence on an incremental basis with sections 1 (independence), 18 (Scottish citizenship), 20 (international organisations), 34 (continuity of laws) and 37 (short title) commencing in advance of independence day (when the Bill is granted Royal Assent). This would confer on the Scottish Parliament the power to declare independence through a resolution of the Scottish Parliament (section 1), rather than independence emanating from Westminster legislation. It would also allow (should executive competence be transferred) the Scottish Government to enter into negotiations with international organisations, such as the EU, in advance of independence day to seek to secure continuing membership and a smooth transition to an independent state (see Barber for a discussion on the logistics of an EU negotiation process). It is proposed that the remainder of the Bill would thereafter commence on independence day itself.

It is envisaged that the Bill would hold a semi-constitutional foundation whilst the permanent written constitution is being prepared by a Constitutional Convention to be established ‘as soon as possible’ by the newly elected Scottish Parliament in May 2015 (section 33). This is the second stage of transition and during this period the Bill provides the foundation of an interim constitution. However, it is important to note, although it is proposed that the Bill would form a ‘constitutional statute’ under the common law principles first developed by Lord Justice Laws in the Thodburn case – it would not be an entrenched constitution subject to special amendment procedures. Like any other constitutional statute the terms of the then enacted legislation could be amended through subsequent ordinary legislative procedure where subsequent legislation expressly repeals or amends part of the interim constitution (meaning the Bill is exempt from the doctrine of implied repeal but not exempt from expressed repeal or amendment).

The Bill would also not stand alone in forming the constitutional framework of a newly independent and transitional Scotland. The statute would be complemented by existing arrangements under an amended version of the Scotland Act 1998. Section 34 of the Bill provides for continuity of laws and the rule of law (guaranteed under section 15) would provide for the continuance of all existing legislation in force the day before independence day and also all common law judgments that relate to Scotland – until such time as judgments are overturned or legislation amended or repealed and replaced. The Scotland Act would require some significant changes – such as the repeal of Schedule 5 that lists those powers reserved to Westminster, and section 28(7) of the Act which reserves the ultimate sovereignty over both reserved and devolved matters to the UK Parliament at Westminster. This would see the incremental dismantling of the current devolved framework.

So whilst the proposed Bill is designed to serve as an interim constitution, the existing constitutional framework under the revised Scotland Act would continue to co-exist providing the technical and substantive instructions on how administrative and constitutional law in Scotland should operate. This is, of course, all dependent on the UK Parliament agreeing to transfer the necessary powers and make the necessary amendments to the Scotland Act in the intervening months between the referendum and independence day in order for the passage of the Bill to be a legal possibility.

This in and of itself poses difficulties to the eventual enactment of the Bill if the UK Parliament are opposed to transferring powers pre independence day. Although the Edinburgh Agreement (the agreement reached between the UK and Scottish Government on 12 October 2012 that governs the referendum process) contains a duty to cooperate in good faith and ‘in the best interests of the people of Scotland and the rest of the UK’, it does not impose a duty to transfer powers on an incremental or pre-independence basis should the UK Government consider this is not in the best interests of the people of Scotland, or the best interests of the people of the rest of the UK. In any event, the transfer of legislative competence through a section 30 Order and the transfer of executive competence through a section 63 Order would require affirmative approval by the UK Parliament and the Scottish Parliament before becoming law. The UK Parliament is not a party to the Edinburgh Agreement and so there may be significant barriers to ensuring the passage of such Orders. Furthermore, changes to the composition of the Parliament in the 2015 general election and a newly elected UK Government, whatever political administration that might be, may complicate matters further.

The Scottish Government could seek to enter into a second agreement with the UK Government after the referendum if the electorate vote for independence. This second agreement could act as a more wide reaching framework agreement to govern subsequent negotiations on the terms of independence – this at the very least might help smooth the first transitional stage by clarifying how the substantive terms of independence and separation might be negotiated and by identifying common principles and values in a spirit of cooperation. At this stage Scotland would not yet have reached independent statehood and this precludes the possibility of an international treaty, however, the framework agreement could reflect the language and content of an international treaty in order to add legitimacy to the process (akin to the terms of the multi-party peace agreement in Northern Ireland in 1998). The terms of an international treaty could thereafter be drawn up to be adopted on independence day, with an ad hoc internationalisation of the previous agreement, so that any matters that continue to be negotiated could be done so in a continuing spirit of cooperation. This would build upon the commitment in the Edinburgh Agreement ‘to continue 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’.

If these potential barriers in relation to the transfer of legislative and executive competence are overcome, through for example the adoption of a framework agreement, it is possible that the Scottish Parliament would be in a position to lay the Bill before the legislature in advance of independence day in order to complete stage one of the process. This comes with the caveat that this would be no easy path to secure and is wholly dependent on the UK Government and Parliament respecting the outcome of the referendum and facilitating a quick transition in terms of the transfer of competence. In this sense, it might be more beneficial to set a framework agreement in place before the referendum – so that the terms of the agreement could also cover the eventuality of a no vote providing an opportunity to clarify the road map for Scotland’s constitutional future whatever the outcome of the referendum. This is highly unlikely given the timeframe and the fact the UK Government has already made clear that it would not be appropriate to negotiate the terms independence before the referendum.

In the event of a yes vote and the above barriers being overcome, Scotland would thereafter enter stage two of the process under the proposed interim constitution. The Bill proposes transitional arrangements in relation to the Scottish constitutional framework including the proposed process to create a written constitution through the establishment of a Constitutional Convention (section 33). The outcome of the proposed Convention, a written and permanent constitution, would ultimately see Scotland entering stage three of the transitional process.

A Deliberative, Participative and Inclusive Constitutional Convention?

The final proposed stage in the transitional constitutional status of a newly independent Scotland is provided for under section 33 of the Bill. The provision for a permanent constitution confers a duty on the Scottish Parliament to establish by an Act of Parliament an independent Constitutional Convention charged with the task of drawing up a written constitution for agreement by or on behalf of the people of Scotland. The Act must provide for the membership of the Convention; the funding of and administrative support of the Convention; the time by which the Convention is to complete its task and its dissolution; the procedures and processes to be followed by the Convention; and the procedure by which the written constitution should be adopted by or on behalf of the people. Interestingly, there is no substantive provisions relating to the matters to be considered by the Convention in the Bill itself – leaving this open to the Scottish Parliament to decide post independence.

Likewise, the actual appointment of Convention members and the process of deliberation is also left open – meaning the commitment to a participative and inclusive process promised in the explanatory notes (page 44) is not underpinned by any substantive provisions on how this might be achieved. Much like the referendum process, legitimacy in the outcome of the Constitutional Convention would be engendered through legitimacy in the process itself. The proposals in Scotland’s Future (page 352) and the explanatory notes to the Bill promise to include the voices of civic society groups such as trade unions, business interests, local councils, faith groups, community groups, and extensive involvement of ordinary citizens. However, the mechanisms through which these voices would be heard in the deliberative constitution-making process are not yet clear. The Scottish Parliament would therefore be tasked with taking into consideration how best to ensure that the Constitutional Convention takes into account an array of voices, all of which may have differing and potentially competing interests, when legislating for the membership, procedures and processes to be followed by the Convention.

By way of example, one might consider how best to include minority groups in a majoritarian decision making process that might otherwise be marginalised and potentially excluded from the process – particularly in relation to vulnerable and disadvantaged groups. The Scottish Parliament, and latterly the Convention itself, would also need to consider whether there should be some form of framework from which the constitution-making process should begin – through for example embedding fundamental constitutional rights, or whether some of the provisions in the interim constitution should be retained, such as those relating to the head of state (section 9); nuclear disarmament (section 23); or the division of powers between legislature, executive and judiciary (sections 10, 11, 13 and 14).

The constitution-framing exercise ought to form a deliberative, informed, reasoned and inclusive process so as to avoid what could potentially be an exercise of elite or majoritarian decision making (see Tierney and Boyle). At the very least, it is notable that the proposed Bill ensures the Convention would operate independent of the Scottish Government and Parliament (section 33(3)(4)). Nonetheless, a great deal of consideration would require to be given to creating a deliberative framework that engenders legitimacy in the eventual outcome of the Constitutional Convention process through mechanisms ensuring substantive inclusion and participation.

Finally, the Bill proposes that the written constitution at the completion of the Convention process would not necessarily require approval by direct democracy through another constitutional referendum. The Bill leaves it open to the Scottish Parliament to decide how the written Constitution is to be agreed – either through a subsequent referendum, or through approval by Parliament on behalf of the people (section 33(3)(e)). There is a debate to be had about what role direct democracy should play in the adoption of constitutions and subsequent constitutional change and what model Scotland could adopt in this regard (see Constitutional Referendums for an analysis of these issues).

Conclusion

As was alluded to in the first paragraph, the interim constitution Bill first and foremost forms part of a consultation paper that is open to deliberation and to the submission of views rather than a Bill that is being laid before the Scottish Parliament in its current form. The publication states that the ‘purpose of the Bill and consultation paper is to facilitate as wide and open a debate on the constitution of an independent Scotland as possible’. With this in mind, it is important to remember that there is a constitution-framing exercise already underway and the consultation process provides an important opportunity to contribute to the wider discussion on potential constitutional change should the referendum result in a yes vote. Again, according to the principles of deliberative democracy, such an exercise is a welcome one in ensuring a participative process.

This will also no doubt inform and encourage UK wide reflection on constitutional arrangements – whether that be in relation to a written constitution, further devolution, membership of the EU, or a Constitutional Convention for the UK for that matter. Given that the political parties supporting Scotland’s continuing membership of the UK have now come together to promise further devolution in the event of a no vote one thing we can be certain of is that Scotland and the UK’s constitutional landscape will most likely face change in the near future whatever the referendum result on 18 September 2014.

 

Katie Boyle is a constitutional lawyer, Economic and Social Research Council Research Fellow at the University of Edinburgh and Lecturer in International Human Rights at the University of Limerick.

The research for this blog forms part of a research project undertaken by Professor Stephen Tierney, ‘The Scottish Independence Referendum: A Democratic Audit’, funded by the ESRC Future of the UK and Scotland Senior Fellowship scheme. All views expressed are the author’s own.

(Suggested citation: K. Boyle, ‘Scotland in Transition: the Scottish Government’s Proposed Interim Constitution and the Scottish Independence Bill’ U.K. Const. L. Blog (21st June 2014) (available at http://ukconstitutionallaw.org/)).

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