Tag Archives: Scottish Independence

Nick Barber: After the Vote: Regulating Future Independence Referendums

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Stephen Tierney: Why is Scottish Independence Unclear?

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

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

Here are some reasons why:

1. The White Paper is selective

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

2. Are we sure there will be negotiations?

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

3. Who will negotiate?

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

4. What if negotiations break down?

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

5. Will there be a deal?

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

6. Surely experts can predict the outcome of negotiations?

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

7. Clarity and simplicity are not synonyms

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

8. It’s politics, stupid

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

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

9. After independence: designing Scotland’s constitution

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

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

10. It takes three to tango

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

11. What is ‘independence’ anyway?

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

Is there any point in expert commentary?

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

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

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

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

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

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Neil Walker on Scotland: Hijacking the Debate

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

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

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

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

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

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

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

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

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

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

The point in posing  these rhetorical questions is not to suggest that the propositions they contain will simply collapse under the weight of their own absurdity. For there  may well be a principled case to  make  against automatic and accelerated membership of an independent Scotland. We find the embryo of such a case, for example, in the analysis of Joseph Weiler, the current President of the European University Institute in Florence. He has argued, with special  reference to the Catalan case,(see http://www.ejiltalk.org/catalonian-independence-and-the-european-union/) that just as national minorities in existing member states who presently enjoy extensive forms  of individual and collective freedom have no  automatic right to secede as a matter of general international law, so, too, the  European Union in its accession policy should not be expected to indulge the independence claims of these unoppressed sub-state nations.To the contrary, the very ethos of integration, reconciliation and continental solidarity that has fed the European project from its post-War beginnings, according to Weiler, should lead  the European Union to take a dim view of any separatist impulse that seems to betray these very founding virtues. From this perspective, therefore, far from having a stronger claim than those external candidates  who have benefited from the post-Cold War Enlargement, those nations already comfortably nested in the EU’s Western European heartland  of multi-level governance should be promised no safe European haven if they insist on the path to independence.

I happen to disagree with both the specific thrust and the wider implications of the  Weiler thesis. To begin with, and most narrowly, even if Weiler’s reasoning is applicable to the situation of Catalonia, where no constitutionally permissible route to referendum and independence is presently countenanced at the level of the wider Spanish state, the Scottish case  is quite different. Here, the Edinburgh Agreement reflects the preparedness of the UK’s flexible constitution to accommodate the prospect of independence. So for the EU to set its face against Scottish independence would be  to dismiss the significance of the member state’s own recognition of the legitimacy of secession.  Secondly, and more broadly, whether we are dealing with the  Scottish or the Catalan case or that of any other national minority, surely more store than Weiler allows should be set by an aspiring nation’s own sense of what is the constitutionally adequate vindication of its desire for collective autonomy. If nothing short of independence is deemed adequate from the perspective of the constituency in question as an affirmation of shared political identity, it is difficult to see why such a subjective  aspiration should be dismissed in favour of a supposedly objective  standard of adequate individual and collective freedom. Thirdly, even if a special case for the EU  as an entity possessing and pursuing a unique historical mission to make internal secession both unnecessary and unacceptable can  be advanced,  it seems unduly dogmatic to use this to justify a rigid policy against  continued membership of new internal states. There are, after all, other and rival views of the deeper purpose of the European Union. The priority given in the Preamble to the TEU to the principle of subsidiarity has already been mentioned, and this surely reflects an alternative  and more independence-friendly perspective. In the face of these competing narratives, should the public policy of the EU on accession not remain more agnostic?

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

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

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

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

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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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Aileen McHarg: A Tale of Two Constitutions?

aileenLast week, I spent two days in London, accompanying a group of Constitutional Law students on a trip to the Westminster Parliament, the Supreme Court and the Scotland Office.  The trip was part of a final year research project shadowing the House of Commons Political and Constitutional Reform Committee’s Inquiry into The Constitutional Role of the Judiciary if There Were a Codified Constitution.  The students had extraordinarily privileged access to ministers, MPs and peers, to Supreme Court justices, and to leading academics and members of the Scots and English Bars.  It was a hugely valuable and enjoyable experience for students and their teachers alike.

However, what struck me very forcibly while I was in London was the disconnect between constitutional debates at Westminster and those in which we are currently engaged in Scotland.  Whilst the Political and Constitutional Reform Committee was discussing the implications of a written constitution which most people to whom we spoke regarded as wholly hypothetical, here in Scotland we are facing the real prospect of constitutional codification in the event of a yes vote in next year’s referendum.  Given the state of the opinion polls, it may be unlikely that this will in fact happen.  But the important point is that, unlike for the UK, there are conceivable circumstances in which Scotland could soon have written constitution.  Nevertheless, the Scottish situation appears to have played no part in the Committee’s inquiry, nor does there seem to be much awareness of the fact that the judiciary already plays a strong constitutional role in relation to the Scottish Parliament and other devolved legislatures.

We see a similar constitutional disconnect when it comes to the European Union.  While all the talk in Scotland is of whether we could remain a member of the EU in the event of independence, Westminster is currently debating a Bill (The European Union (Referendum) Bill 2013-14) which will pave the way for a referendum on whether the UK should remain a member.

Of course, the independence referendum and its implications have not been wholly ignored at Westminster.  The Scottish Affairs Committee has published a steady stream of reports   on what it insists in calling ‘separation’ for Scotland, and on 5 December the House of Lords held a short debate on the Scottish Government’s independence White Paper, in which various speakers called for a full debate and/or the establishment of a joint Parliamentary committee to examine the White Paper fully.

The tone of these interventions from Westminster is, however, almost unremittingly hostile to independence.  For most Westminster politicians, the idea of independence for Scotland would appear to be so preposterous that only a fraud or a fool could support it.  For instance, in a report published shortly before the White Paper, the (notoriously partisan) Scottish Affairs Committee came close to accusing the Scottish Government of lying: “The Committee believes that the present Scottish administration, in relation to separation, is strongly motivated to present a selective and biased account of the facts.” (at para 11)  Similarly, in the recent House of Lords debate, Lord Forsyth of Drumlean gleefully related the fact that the title of the White Paper – Scotland’s Future –is an anagram of “fraudulent costs” (at col 397).  For Lord Foulkes of Cumnock, the White Paper was “650 pages of continuous fiction” (at col 400), while for Lord Steel of Aikwood it was a “bogus prospectus of a bogus independence” (at col 401).  The only note of dissent in the debate came from Lord Purvis of Tweed who, while not in favour of independence, nevertheless considered that the UK was in need of reform.

It is easy to dismiss this kind of stuff as just good political knockabout.  And it might also be argued that, if the independence debate is not taken more seriously at Westminster, it is the fault of the Scottish Government for insisting that it is a matter for the people of Scotland alone (indeed, even at Westminster, few non-Scots voices are heard).  Yet, how could it be otherwise?  While independence for Scotland undeniably has implications for the United Kingdom as a whole, and the terms of independence must assuredly be negotiated, as a matter of principle the right of a minority to seek self-determination cannot be dependent on the will of the majority.  More pragmatically, the tone of the Westminster debates indicates there would be no possibility of the independence case receiving a fair hearing.

In fact, the tone of the debate at Westminster is not merely distasteful but, by failing to do justice to the seriousness of the debate in Scotland, or to make the positive case for the union that undoubtedly exists (see, eg, Jim Gallagher’s speech  at Glasgow University in October), it seems to me to pose a threat to the continuation of the UK – perhaps not in the short term, but taking a longer view.  The degree of constitutional disconnect between Scotland and the rest of the UK, as represented by Westminster, contributes to a growing sense that these are two separate polities with different constitutional trajectories.  While voters in Scotland may well conclude that, for now, remaining in the union is the less risky of the two constitutional futures on offer, this looks less like being a ringing endorsement of the union than a pragmatic – and therefore contingent – calculation.

I may, of course, be wrong.  Once the referendum is over and if (when?) the no side prevails, these constitutional trajectories may reconverge in a mutual commitment to a reconfigured union.  For instance, the Political and Constitutional Reform Committee has called for  a constitutional convention to be set up after the referendum to consider the relationship between the union and its constituent parts.   Gordon Brown has also recently advocated  the adoption of a written constitution which would guarantee the powers of the Scottish Parliament. There is no reason in principle why such a constitutional settlement could not accommodate a diversity of constitutional visions, both institutional and substantive.  Equally, it could accommodate multiple polities, where people have multiple political identities and owe multiple political allegiances, so long as there is mutual commitment to the union and mutual toleration of diversity.

It is, however, precisely that mutual commitment and toleration that is in question here.  The latest British Social Attitudes Survey showed that, in 2012, while some 65% of those living in Scotland had some form of dual Scottish and British identity, if forced to choose between them, 69% opted for a Scottish identity, while only 20% chose a British identity – the latter figure having been in long-term decline since 1979 when it stood at 40%.  In this context, it is highly problematic that Westminster politicians prefer to disparage Scots’ aspirations for greater autonomy than to consider in a positive way how these might be accommodated.

In such an atmosphere of weak commitment to the union and intolerance of diversity, the prospects for a UK-wide constitutional settlement appear wholly unrealistic – more likely further to expose rather than to resolve the deep constitutional divisions between the constituent parts of the UK.  The hostility to the idea of a UK Bill of Rights from Scotland, Wales and Northern Ireland provides a foretaste of what would be likely to occur (Commission on a Bill of Rights, A UK Bill of Rights: the Choice Before Us, ch 9.  Much more probable is some further piecemeal adjustment of Scotland’s governance arrangements, which leaves their asymmetries under-theorised and their underlying tensions intact, if not more pronounced.  By failing to ask the fundamental questions about the relationship between the UK and its constituent parts, the union may be able to muddle through for a while longer.  However, unless and until these questions are satisfactorily resolved, Scotland’s place in the union will continue to be uncertain.

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

This post originally appeared on the Scottish Constitutional Futures Blog, and is reposted here with thanks.

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Stephen Tierney: The Scottish Constitution After Independence

stierneyAccording to the Scottish Government White Paper issued this week, Scotland’s Future, an independent Scotland will have a new written constitution (this repeats the commitment contained in the Scottish Government’s earlier White Paper of March). The intention is to replace Westminster parliamentary supremacy with the ‘sovereignty of the people of Scotland’ since, the Government claims, popular sovereignty has historically been ‘the central principle in the Scottish constitutional tradition.’ While this latter claim may be questionable, the commitment to a written constitution does promise a significant constitutional break with the Westminster tradition and a new constitutional culture for Scotland.

In this blog I will briefly discuss three matters:

    • When will the proposed constitution be drafted and promulgated?
    • What will it contain?
    • How will it be drafted?

When will Scotland have a new constitution?: The short answer is, we don’t know exactly. The task of drafting a new constitution will not commence until after the Scottish Parliament elections scheduled for 5 May 2016, some six weeks after Independence Day, set for 24 March. The White Paper does not offer a view as to how long the drafting process is likely to take and therefore we have no provisional date for the eventual promulgation of a new constitution.

What will it contain?: There is something of a tension between the substantive constitutional proposals put forward in the White Paper and the process by which it will be drafted.

The Scottish Government offers a fairly extensive list of what it thinks the constitution should contain, and a number of these provisions are key to its vision for independence. For example:

    • equality of opportunity and entitlement to live free of discrimination and prejudice
    • entitlement to public services and to a standard of living that, as a minimum, secures dignity and self-respect and provides the opportunity for people to realise their full potential both as individuals and as members of wider society
    • protection of the environment and the sustainable use of Scotland’s natural resources to embed Scotland’s commitment to sustainable development and tackling climate change
    • a ban on nuclear weapons being based in Scotland
    • controls on the use of military force and a role for an independent Scottish Parliament in approving and monitoring its use
    • the existence and status of local government
    • rights in relation to healthcare, welfare and pensions
    • children’s rights
    • rights concerning other social and economic matters, such as the right to education and a Youth Guarantee on employment, education or training

Another proposal is that Scotland would remain a constitutional monarchy ‘for as long as the people of Scotland wish us to be so’. In relation to a number of these proposed rights, such as the opportunity of education, training or employment and rights to welfare support and health care, there is no commitment that these would be legally enforceable by courts but rather the more vague suggestion that they will be ‘questions of social justice at the forefront of the work of Scotland’s Parliament, government and public institutions.’

But in any case, since the Government does not propose to draft the constitution itself, each of these is merely a proposal for consideration. As we turn to the proposed process by which the constitution will be drafted we find that there is no guarantee that any of these commitments will in fact find their way into a new constitution.

Drafting the Constitution: A Scottish Constitutional Convention? The White Paper provides that, following the elections of May 2016, a constitutional convention will be established to ‘prepare the written constitution’. But how can it be so sure? There is no guarantee the SNP will win the 2016 elections and another party or parties forming the government at that time may have different views about this.

The Scottish Government seeks to deal with this by way of some form of constitutional guarantee or entrenchment: ‘The constitutional platform, along with the refreshed Scotland Act, will be the founding legislation of an  independent Scotland and will not be subject to significant alteration pending the preparation of a permanent constitution by the constitutional convention’. It is stated in the White Paper that, during the transitional stage between the referendum and Independence Day on 24 March, legislation will be passed placing a duty on the Scottish Parliament elected in 2016 to establish a constitutional convention. It is not clear by whom this legislation will be passed although it does seem that the goal is either for concurrent legislation of the UK and Scottish Parliaments or for the Westminster Parliament to transfer power to the Scottish Parliament for this purpose. Even so, this raises an interesting question as to whether the 2016 Parliament would be bound by such legislation. There would of course be no written constitution in place to restrict its powers. Would it be bound by the sovereignty of Westminster? Surely not, as the newly elected Parliament of an independent country. This issue is worthy of more detailed consideration in due course and important lessons may well be found from comparative cases.

Assuming that the Scottish Parliament does assume the role as convener of a constitutional convention in 2016, what will this convention look like? Perhaps not surprisingly at this stage the White Paper offers little in the way of detail. But all the same important questions remain to be asked. We are told that the convention will be ‘open, participative and inclusive’ and that the new constitution ‘should be designed by the people of Scotland, for the people of Scotland’. But is the proposed convention likely to be a genuinely popular process?

In one passage the White Paper states: ‘International best practice and the practical experience of other countries and territories should be considered and taken into account in advance of the determination of the process for the constitutional convention. In the last decade, citizen-led assemblies and constitutional conventions have been convened in British Columbia (2004), the Netherlands (2006), Ontario (2007) and Iceland (2010). Since 2012, Ireland has been holding a citizen-led constitutional convention to review various constitutional issues.’ From a number of these examples it is clear that citizens can be engaged directly and in meaningful ways in drafting important constitutional provisions. But is this what the White Paper proposes? In fact this passage is juxtaposed with the suggestion that the constitutional convention ‘will ensure a participative and inclusive process where the people of Scotland, as well as politicians, civic society organisations, business interests, trade unions, local authorities and others, will have a direct role in shaping the constitution.’

This raises the question: will the process really be a popular and meaningful engagement with citizens, or will it be a largely elite-led event, like the Scottish Constitutional Convention from 1989-1995? Will in fact the new constitution be drafted by elites – politicians, civic society organisations, business interests, trade unions and local authorities? If so, is this satisfactory? After all, of these groups only politicians are elected by the citizens of Scotland. To whom are the other organisations accountable and in what ways? Who would select members of these groups to sit on the convention, on what basis, and with what degree of decision-making power would they be vested? The reference to ‘civic society organisations’ introduces a risk that pressure groups with fixed agendas and well-oiled activism machinery could hijack the process, arguing persuasively for the entrenchment in the new constitution of their own particular priorities, priorities which may not have the support of a plurality of citizens.

Such an approach to constitutional drafting runs counter to some of the other examples cited in the White Paper. The Citizens’ Assemblies in British Columbia and Ontario, for example, were composed of citizens selected randomly from the electoral role. This was a direct attempt to take constitutional decision-making out of the hands of elites, be they politicians or members of the fabled ‘civil society’.

Another question is: what power will such a convention, whether popular or elite, have? The White Paper says it will ‘prepare’ the constitution. Does that mean it will have the authority to present a final version of the constitution for ratification? Or would its role be advisory only, subject to change by the Scottish Parliament?

It seems that the convention is intended to have real determining power. That the Scottish  Government can only ‘propose [certain matters] for consideration’ by the constitutional convention suggests that the convention will have control over the inclusion or exclusion of all of the Government’s goals outlined above, including the personality of the head of state. However, there seems to be one exception here. According to the White Paper the convention will itself be limited in its remit by at least one substantive precondition: ‘Key equality and human rights principles, including the requirements of the European Convention on Human Rights (ECHR), would be embedded in the written constitution.’ This seems to be a non-negotiable commitment which the convention could not override. In other words, the convention will not be able to give effect to the ECHR in a way comparable to sections 3 and 4 of the Human Rights Act 1998, leaving the last word to the Scottish Parliament, a power which Westminster currently enjoys. There is also the suggestion that legislation during the transition period will give the ECHR the same legal force for reserved matters as it already has for devolved matters. Both these transitional arrangements and the constitutional pre-commitment on the ECHR in turn make the supremacy of judges over the new Scottish Parliament in the human rights area another de facto pre-commitment. Of course it may be that a constitutional convention or citizens’ assembly would come to the view that this is good for Scotland, but surely that should be left to this process to determine?

Finally, how would the constitution be promulgated? Would it simply need the ratification of the Scottish Parliament, or would there be a referendum? The White Paper does not say, but given the growth in referendums within our constitutional practice it seems inconceivable that such a momentous constitutional development, intended to declare the sovereignty of the Scottish people, could take place without the express authorship of the people expressed in a referendum.

Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law.  He is currently ESRC Senior Research Fellow under the Future of the UK and Scotland programme. I am grateful to Katie Boyle for research assistance in writing this blog.

Suggested citation: S.Tierney, ‘The Scottish Constitution After Independence ’  (2nd December 2013) (available at http://ukconstitutionallaw.org).

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Neil Walker: The Receding Tape

NeilAnd so the countdown begins. But the countdown to what? Twelve months from now we should know the result of the referendum, but just how significant a marker will that be on Scotland’s constitutional journey?

One popular view – for many less a reasoned view than a deep-rooted assumption – maintains that the referendum will be decisive and conclusive of Scotland’s future constitutional shape and status. The contemporary history of the Scottish national debate began with Winnie Ewing’s by-election success in Hamilton in 1967, continued through the abortive devolution referendum of 1979, and reached a new pitch with the successful plebiscite of 1998 and the election of the new Scottish Parliament in 1999. According to the conventional narrative, this long Scottish constitutional ‘moment’ is now drawing to an end, the independence referendum scheduled for September 2014 its final act. And despite some early mutterings from the side-lines about the inclusion of a third ‘devo-max’ option on the ballot paper, that final act  will consist of a straight choice between ‘yes’ or ‘no’, ‘out’ or ‘in’.

But why should we conclude that the availability of a  straight choice to stay or leave – the first such choice offered the Scottish people in over three centuries of Union, will settle matters once and for all? There are at least three arguments supporting this position. The first has to do with the vagaries of constitutional history. As we were reminded by the Political Studies Association’s recent decision to honour Cameron and Salmond in recognition of the two Ministers’   diplomatic achievement in signing the Edinburgh Agreement, the referendum was hard won. It took 40 years of political momentum-building, the platform and profile  of the Scottish Parliament, some unlikely  and unanticipated electoral arithmetic at the 2011 Scottish elections, the flexibility  of Britain’s unwritten constitution, a gradual yet  unprecedented groundswell  of democratic opinion in  favour of exercising the national ‘right to decide’, and a strategic calculation on both political sides that there would be no  obviously better time in the foreseeable future to hold a ballot,  to bring us to the point where a constitutionally unimpeachable referendum could be delivered.  With the clock now ticking down it is easy and tempting to think that there is something natural and inevitable about this final act, but the combination of circumstances that has brought us to this point is actually highly contingent, and unlikely to be repeated any time soon.

The second reason why the referendum is widely viewed as a cue for closure has to do with political culture. It is almost inconceivable that a ‘yes’ vote would be reversed, but a clear ‘no’ vote, too, would likely blight the prospects of a re-run for a generation or longer. Arguably ever since Winnie Ewing ‘reconvened’ the Scottish Parliament in 1999, and certainly since the first minority SNP administration of 2007, Scottish politics has been in a state of high constitutional alert.  The referendum itself has provided an all-consuming focus since early 2012, with every political act and deed from then until now, and doubtless from now on until our date with destiny next year, carefully weighed and dissected for its constitutional content or implications. If, as is undoubtedly true, there are already signs of constitutional fatigue in the political parties, in the media, in civil society and on the streets a year ahead of the vote, then we can only imagine how things will feel after another 365 days of increasingly intense engagement and polarised debate. More generally, 2014 feels like the end of a political era. A generation of Scottish politicians who cut their teeth on the devolution battles of the 1970s and who were fully formed by the class and nation-polarising politics of the Thatcher years now supply many of the senior players in the referendum drama. For them, this is undoubtedly the endgame. It is the destination towards which their political career has long been heading.  Whatever the result next year, it will be the last time many of the key actors will muster for constitutional battle.

A third reason for believing we are headed towards a constitutional denouement next year is a basic one of principle. Even in an unwritten constitution like ours, constitutional decisions are ‘second-order’ political decisions. That is to say, they are decisions about how to take other decisions.  They decide ‘who’ should decide ‘what’ and ‘how’. They provide the foundations without which ‘first-order’ programme politics on matters such as the economy, jobs, welfare, the environment and defence are not possible and without which our everyday legal rules and institutions are not viable. Like all foundations, they require to be reasonably secure. They have to be seen to be  legitimate, as broadly accepted and as beyond challenge except in special circumstances and in accordance with occasional and extraordinary procedures of contestation over the basic terms of political life As such an extraordinary procedure, the referendum cannot be allowed to become  a ‘neverendum’, everyone is agreed.  It has to be a ‘ once in a lifetime’ or a ‘once in a generation ‘ event – to quote the public pronouncements of the Scottish Secretary and the First Minister respectively to mark today’s pre-anniversary – not just because the opportunity might not arise again, and not only because of the exhaustion of a political culture, but also because normal political life might otherwise become unsustainable.

These arguments have much to commend them. And as the comments of the Scottish Secretary and the First Minister suggest, they have been taken on board by both sides. No doubt, moreover, these views will be expressed with ever greater stridency in the months ahead, as both Better Together and Yes Scotland seek to impress upon us the historical seriousness of what is at stake in the referendum and the importance of voting the right way. No doubt, too, once the nationalists publish their White Paper later this autumn setting out in detail what they understand the terms of independence to be, this clarity of principle will begin to be matched by a more transparent sense of the detailed implications.   Independence will cease to be an abstract and free-floating idea. It will instead begin to look like a substantive blueprint. And this will serve to reinforce a sense of the debate as a binary choice, with all outstanding questions on matter such as monetary union, EU membership, NATO membership and welfare citizenship either folded into the binary choice or postponed to another day. In other words, as the event draws nearer the ‘politics of the event’ will inevitably take over. The event will be nothing if not eventful, and its anticipation will bring with it its own powerful sense of dramatic closure.

Yet there is another side to this story, one that receives less attention but which demands some modification of the above picture. In the first place, we simply cannot assume that the decisive referendum will produce a decisive result. Most polls suggest a lead of 10-15% for Better Together, with around one in five still undecided. Not only does that leave the final outcome uncertain, it also raises the very real prospect of a close result, or at least one in which the losing side polls more than 35-40% of the vote. In these circumstances, the defeated side is not simply going to go away and lick its wounds. Instead, we should expect two things. First, alongside the main win-lose campaign, over the next year there will be shadow, spin-doctored campaign over the significance of defeat. At least some nationalists, not to mention the two out of five voters in the recent ICM poll who say they would vote No but would like the Scottish Parliament to become primarily responsible for taxation and welfare benefits in Scotland, will seek to interpret a narrow or respectable defeat as a mandate to insist that the Unionist parties come good on their promise to take further devolution seriously. Inevitably, this will open up new battle lines over how much further devolution is enough, over what constitutional process is required to deliver this, and over what constitutional options remain in the wings in the event of failure to build a winning consensus around the new proposal.

Equally, however, a narrow Yes vote would leave all sorts of constitutional questions unresolved. Much has been made of the tight timetable for constitutional changeover envisaged by the Scottish Government in their White Paper on Scotland’s Future. The plan is to have an early post-vote set of agreements in place between Edinburgh and London with a view, first, to providing  Edinburgh with  a ‘constitutional platform’ to act with much of the authority of an  independent state in the transitional period and, secondly,  to securing a final timetable for the negotiation and conclusion other agreements that will form part of a final independence settlement as early as March 2016. Outstanding questions for that final settlement will include the  division of financial and other assets and liabilities such as military bases and overseas assets, the transfer to Edinburgh of political authority over institutions previously controlled from London, and the content of the cooperative arrangements that the peoples of Scotland, England, Wales and Northern Ireland would continue to share – presumably  from matters as mundane as the issue of driving licenses to those as consequential as currency union and the future of a common welfare system. At the same time, Edinburgh would be in negotiation with the European Union and many other international organisations over the terms of new or continuing membership, all the time bearing in mind that the Scottish government should be careful not to over-commit itself since, under its own commitment, the mature constitutional form and purpose of the new Scotland should await the deliberations of a post-independence constitutional convention. Obviously, there is much scope in such a complex and ambitious timetable for the UK government of whatever political colour, complete with a fresh general election mandate in 2015, to be more or less obstructive or co-operative, more or less generous in its understanding of how it must deliver the terms and consequences of Scottish independence. And undoubtedly, its attitude would in some measure be influenced by the outcome of the referendum vote and the strength of the mandate for independence delivered.

My purpose in outlining these possibilities, however, is not simply to indicate that everything will not be done and dusted next September, but to point to a wider sense of constitutional open-endedness. Today, in a nutshell, we live in a world where independence is not what it used to be. While the state remains the focus of political organisation, it is now merely first among equals. In place of a universal and uniform template of sovereign statehood, we have a highly differentiated mosaic of legal and political capacities. In place of an idea of internal sovereignty as comprehensive and monopolistic, authority is now typically partial and distributed amongst various political sites and levels – state, sub-state, regional and global. And in place of mutual exclusivity as the default condition of external sovereignty, we have overlap, interlock and mutual interference and dependence. This picture of complex interdependence is perhaps nowhere more vivid than in Europe. The prospect of Scottish independence, like the reality of UK independence, has to be viewed against a backdrop of the existence of the EU as a  supranational  economic polity of 28 states, the broader current of the Council of Europe as a standard bearer in human rights, the growing influence of the United Nations in peace and security, powerful global regimes in areas as diverse as climate change, nuclear non-proliferation and international trade, and a strong constitutional tradition of federalism and quasi-federalism  in states as diverse as Spain, Belgium, Germany and, of course, the United Kingdom  itself.

Many of the uncertainties which will attend the implementation of the referendum decision, and, indeed, that are affecting the very terms on which independence is sought and fought over during the campaign, arise precisely from this set of factors. EU membership is clearly one, with the continuing uncertainty over Scotland’s pathway to membership, but also over whether a Conservative-led Britain would stay in, and if so on what terms. The nature of a Scottish currency is another, whether part of a common area with sterling or resituated inside the Eurozone. Defence, is another still, with membership of NATO and the retention of a nuclear capacity a key fault-line of debate. Internal security, too, is an area where public goods are increasingly transnationally located; hence the controversy over an independent Scotland’s relationship to the Area of Freedom, Security and Justice in the EU and to the Schengen zone.  In these and many other areas, the choice is not between freedom and dependence, but a complex algorithm involving a multi-level trade-off between autonomy of voice in smaller units and the pooling of influence in larger units. What is more, these sorts of instrumental considerations are also reflected at the level of identity politics. When commentators say that the Scottish independence debate will not be won or lost at the level of cultural identification they speak a fundamental truth. The majority of us have mixed identities – a fact that the nationalists do well to respect with their endorsement of ‘Englishness’ and ‘Britishness’ as cultural categories with which they wish to engage. This both reflects and reinforces a sense that our constitutional and political status is not written indelibly on the cultural landscape but is highly and variably influenced at the margins by more concrete questions of costs and benefits.

All of this speaks, in the longer term, to a more fluid picture. However hard the race is run over the next year, and however concentrated the runners remain on the finishing line, all will not be won or lost on September 18th 2014, or indeed in the months and years immediately following that. If we try to stand back from the fray, we see instead a longer struggle, and a constantly receding finishing tape. For in a multi-part Europe and complexly interdependent world, the balance of interest and identities is such that it is difficult to conceive of any long-term scenario in which the various parts of the mosaic co-articulate in a settled matter.

This is not to say that our referendum is anything other than the political event of its generation. It is that event, and it should be treated as such. And the necessary virtue of constitutional foundations does, I repeat, demand as much security of our second-order rules as we can manage to achieve and to sustain. Yet we should not mistake any of this for constitutional finality. The lesson of the post-war globalizing world is that constitutional events are rarely conclusive and never self-contained, but feed into an on-going process of complex multi-sourced influence. And this is never more true than when we are concerned with the constitutional politics of sub-state identity, as the local example (still strangely neglected in many referendum discussions) of Britain and Ireland so vividly illustrates.  The one thing we can be certain about when we have finished counting the votes a year from now, therefore, is that the constitutional future will still look far from certain.

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

This post originally appeared on the Scottish Constitutional Futures  Forum Blog, and is reposted here with thanks.

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Paul Reid: Independence, the referendum, the franchise and prisoners: stormy waters ahead?

paulThe Scottish Parliament has started giving legislative effect to the Edinburgh Agreement that was signed in October 2012.  The first measure to be brought before the Parliament earlier this week was the Scottish Independence Referendum (Franchise) Bill.  It is a fairly short Bill, both in length and time: once enacted it will be automatically repealed on 1 January 2015 (the day by which a referendum must be held being 31 December 2014: Scotland Act 1998, sch.5, para.5A).  The content of the Bill is now largely uncontroversial.  The Edinburgh Agreement committed the Scottish Government to bring forward legislation to create a franchise for the referendum (para.4) and it was left to the Scottish Government to consult on extending the franchise to 16 and 17 year-olds and, if so minded, to legislate to enfranchise such individuals (para.5).  The Bill now does that.  Clause 2 sets out four conditions to be eligible to vote in the referendum: (i) the person is over the age of 16; (ii) the person is registered in the appropriate register; (iii) the person is not subject to any legal incapacity other than age; and (iv) the person is either a Commonwealth citizen, a citizen of the Republic of Ireland or a relevant citizen of the European Union (the latter being defined in Clause 12 of the Bill).

Much of the Bill is then concerned with creating a register of young voters.  To be eligible to vote in the referendum a person must be on either the register of local government electors for any area in Scotland (cl.2(1)(b)(i)) or on the register of young voters (cl.2(1)(b)(ii)).  The former register is already maintained under section 9(1)(b) of the Representation of the People Act 1983 (“the 1983 Act”).  The latter is created by the Bill.  It must be maintained by each registration officer for his area (cl.4) and it cannot be published (cl.9).  Schedule 1 then applies, with suitable amendments, various statutory provisions to the new register.  The Bill also confers a general power on the Scottish Ministers to make “such supplementary, incidental or consequential provision as they consider appropriate” to give full effect to any provision of the Bill (cl.11).  At first blush that appears to confer fairly wide-ranging powers to the Scottish Ministers with such order being subject to the affirmative procedure in the Scottish Parliament.

All of that is important to the functioning of the referendum and to securing the Scottish Government’s stated aim to enfranchise 16 and 17 year-olds.  When reading the Bill, however, the provision that caught my eye was clause 3.  That provides: “A convicted person is legally incapable of voting in an independence referendum for the period during which the person is detained in a penal institution in pursuance of the sentence imposed on the person.”  That looks very like a blanket ban on prisoners voting in the referendum.  When I turned to the Explanatory Notes that accompany the Bill, at para.9, the Scottish Government state: “Section 3 provides that convicted prisoners who are detained in a penal institution are debarred from voting in an independence referendum. Prisoners held on remand who have not been convicted will be able to vote, although they will need to do so using a postal or proxy vote. This is identical to provision made, in relation to parliamentary and local government elections, by section 3 of the 1983 Act. It has been included in the Bill because the UK Parliament is considering proposals to alter section 3 of the 1983 Act and the Scottish Government would not wish any alteration to apply for the purposes of an independence referendum.”  And the Policy Memorandum accompanying the Bill confirms this was a conscious choice (para.13): “The ECHR ruling (and human rights case law) does not relate to referendums, and convicted prisoners will not be able to vote in the referendum irrespective of whether UK electoral law is amended to extend the vote to prisoners for parliamentary elections before the referendum in 2014.” 

As is now well-known, section 3(1) of the 1983 Act is incompatible with Article 3, Protocol 1 (“A3P1” to use the same now-common shorthand for its sister provision ‘A1P1’) of the ECHR, it cannot be read in such a way as to make it compatible and a declaration of incompatibility has been made (Smith v Scott 2007 SC 345, and numerous subsequent cases as more fully discussed by Colm O’Cinneide in his post on this blog on 4 June 2012 and Jeff King on 18 May 2011).  The Westminster Parliament has thus far failed to amend the offending provision (beyond asking a committee to consider the options) and the domestic courts now recognise that it is outwith their power to push the matter further (Chester v Secretary of State for Justice [2010] EWCA Civ 1439 at [35] (Laws LJ)).

A3P1 provides: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”  Clause 3 of the Bill must be compatible with A3P1 to be within the competence of the Scottish Parliament (s.29(2) of the Scotland Act 1998 (“SA”)).  The key to A3P1 is usually seen to lie in its closing words: “…in the choice of the legislature”.  At the time of the 1975 referendum on continued membership of the EEC a challenge was brought by a prisoner then serving a prison sentence.  The Referendum Act 1975 defined the franchise by reference to those eligible to vote in parliamentary elections (s.1(3)), thus the disenfranchisement of prisoners contained in section 4 of the Representation of the People Act 1969 applied (that provision is in substantively the same terms as the current ban in s.3 of the 1983 Act).  An application was made to the Commission claiming an infringement of, inter alia, A3P1 (X v United Kingdom, Application No.7096/75).  The Commission ruled the application was inadmissible: “the obligations of the High Contracting Parties under [A3P1] are limited to the field of elections concerning the choice of the legislature.  The British Referendum on EEC membership was not an election concerning the choice of the legislature: It was of a purely consultative character and there was no legal obligation to organise such a referendum.”  Thus the EEC referendum of 1975 did not engage A3P1.  The same conclusion was reached when a challenge was brought against Austria in relation to its referendum on accession to the European Union (Bader v Austria (1996) 22 EHRR CD213).

It appears, therefore, that the blanket disenfranchisement of prisoners for the independence referendum is within the competence of the Scottish Parliament because the referendum does not engage A3P1.  That produces a bizarre result: a person has a fundamental human right to participate in the election of the Scottish Parliament but has no equivalent right to participate in a referendum on the possible independence of Scotland.  That conclusion appears to invite challenge.  And despite the language of A3P1, the matter does not appear as clear-cut as the Scottish Government may hope.  According to its preamble, the rights enshrined within the ECHR are “are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend”.  Elections are a “characteristic principle of democracy” (Mathieu-Mohin and Clerfayt v Belgium (1988) 10 EHRR 1 at para.48) but as the United Kingdom is evolving referendums are becoming an increasingly prominent and important part of our democracy (e.g. the European Union Act 2011, the Localism Act 2011 (invoked for the first time only last week), the 2011 referendum on the voting system for Westminster and the promise of an in/out referendum on EU membership).  In other words, they too are becoming characteristic of our democracy.  In the same case (at para.51) the Court recognised that A3P1 had evolved since being adopted.  In Scoppola v Italy (2013) 56 EHRR 19 the Grand Chamber confirmed (at para.82) that “the right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion and universal suffrage has become the basic principle.”  There is no reason why that same presumption should not apply to a referendum.  In Zdanoka v Latvia, when considering how A3P1 could be restricted, the Grand Chamber explained (at para.115(c)): “In examining compliance with Art.3 of Protocol No.1, the Court has focused mainly on two criteria: whether there has been arbitrariness or a lack of proportionality, and whether the restriction has interfered with the free expression of the opinion of the people.”  Elsewhere in its jurisprudence the Court has recognised that Article 10 includes protections calling for the dissolution of the state (Incal v Turkey (2000) 29 EHRR 449) and Article 11 includes protection for political parties to advocate the same result through non-violent means (United Communist Party of Turkey and other v Turkey (1998) 26 EHRR 121).

It would be odd, to say the least, if the ECHR could be held to secure the right to promote the dissolution of a state through non-violent means but not the right to participate in a referendum to achieve that goal.  Such a conclusion is not readily reconcilable with the desire to secure “an effective political democracy” and could be characterised as an arbitrary measure, lacking proportionality that interferes with the free expression of the opinion of the people (to borrow the language of the Grand Chamber in Zdanoka).  Thus taking the ECHR as a whole, if it is to secure its fundamental aims, there appears to be a strong case for saying the Court should revisit the decisions in X v United Kingdom and Bader v Austria and allow A3P1 to continue its evolution and protect the right to participate in a referendum such as that to be held in Scotland in October 2014.

If the Court were to take that approach matters would then become very interesting for the Scottish Government.  If clause 3 of the Bill is incompatible with the ECHR then the provision is “not law” (s.29 SA).  That differs from the position that currently exists in the United Kingdom in relation to elections: although s.3 of the 1983 Act is incompatible with A3P1, it remains in force.  Assuming none of the law officers refer clause 3 to the Supreme Court prior to Royal Assent (s.33 SA), and there appear to be strong political reasons to believe that to be a safe assumption, then any challenge would be by way of judicial review.  There is currently no “leap-frog” appeal direct from the Outer House of the Court of Session (where any such challenge would necessarily begin) to the Supreme Court, only to the Inner House (sch.6, para.7 SA).  Only the law officers could refer a challenge direct to the Supreme Court (sch.6, para.33 SA).  One would expect such a reference to be necessary if any challenge is to be determined prior to the referendum taking place.  But if, applying the Ullah principle, the Supreme Court consider that it is not for them to make such a change to the interpretation of the ECHR then a challenge would be destine for Strasbourg and pre-referendum (or pre-repeal (cf. cl.14)) determination of the issue would be unlikely.

Leaving aside the competence of the provision, and considering the merits of the policy, the reasons why blanket disenfranchisement of prisoners is unacceptable in elections apply with equal, if not more, force to a referendum. The competing arguments are best captured by Laws LJ in Chester:

 “[33]   Opponents of this view would say, with some force, that it is unconstitutional to regard disfranchisement as part of a criminal’s punishment: his punishment is strictly what the law prescribes as punishment; and that is his incarceration and nothing more. They might also question the reasoning in the last sentence, which in one breath treats the franchise as a privilege, and in the next as a right. Given those points, there is no principled basis on which any imprisoned criminal should be deprived of the vote unless, perhaps, his crime has somehow subverted the democratic process. It has to be remembered (though I doubt if it would be put this way in the course of political debate) that the vote of the stupid, dishonest, or malicious elector is worth as much as anyone else’s.

[34]     But there are arguments the other way. It might in particular be said that a person convicted of very grave crime has so far distanced himself from the values of civil society that it would be a travesty of justice to allow him to participate in its governance. In such a case the prisoner’s disfranchisement is rightly regarded as an element in his punishment.

 Referendums are held on questions that are said to be so important that the elected representative should not take the decision without consulting the people.  Whether A3P1 applies to referendums or not, if it is accepted (and I recognise that it is not currently accepted by almost all politicians) that some prisoners should have a vote in elections, at least that same group of prisoners should be entitled to vote in a referendum.  It would be absurd if a certain group of prisoners were enfranchised so as to elect a legislature but not to vote in a referendum on a question which the legislature sought the views of the electorate. From the Explanatory Notes and Policy Memorandum it appears the Scottish Government sought to consciously avoid that very parity.

It is unfortunate that the Scottish Government seek to continue the blanket disenfranchisement of prisoners in relation to the referendum vote. But it is a decision that appears to invite a challenge that would provide an unwelcome distraction from the substance of the independence debate and cast a cloud over the legality of a key piece of the enabling legislation.  It is not in anybody’s interests to see courts involved in the run-up to the vote in October 2014 yet clause 3, as currently drafted, appears to take that very risk.

 

Paul Reid is an Advocate with Ampersand Stable
and a part-time tutor of Public Law at the University of Edinburgh

Suggested citation: P. Reid,  ‘Independence, the referendum, the franchise and prisoners: stormy waters ahead?’ ,  UK Const. L. Blog (13th March 2013) (available at http://ukconstitutionallaw.org).

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Stephen Tierney: After the referendum – the Scottish Government’s proposal for a written Constitution

stierneyThe debate over Scottish independence has turned recently to discussion of the post-referendum landscape. On 5 February the Scottish Government published Scotland’s Future: from the Referendum to Independence and a Written Constitution  which suggests that a two stage process would follow upon a majority Yes vote. From the date of the referendum until March 2016 a period of constitutional negotiations with the UK Government is proposed, culminating in the formal grant of independence by Westminster. Following the Scottish parliamentary elections in May 2016 a constitution-framing process, internal to Scotland only, would then take place. Although the prospect of a Yes vote is, to say the least, far from certain with support failing to rise above 35% in most polls, each of these proposed stages is interesting, not least for the questions left unanswered in the Scotland’s Future paper.

The first issue is timing. Scotland’s Future (1.6) states: ‘The right time for a written constitution to be drafted is… after independence, not before. At that point the people of Scotland, whatever their views in the referendum, will be able to engage fully in the process of planning for our country’s future.’ It is, therefore, not the intention of the Scottish Government to engage in setting out a draft constitution in advance of the referendum. But it still seems inevitable that speculation about the content of a future constitution of an independent Scotland will inevitably be a focal-point, albeit possibly not a major one, of the referendum campaign, particularly after the Scottish Government publishes its promised White Paper towards the end of this year on the content of independence which will inevitably contain commitments which would in due course require constitutional protection.

Not surprisingly, therefore, Scotland’s Future is somewhat light on the possible content of a new constitution, but there are some hints about the Government’s preferences. It is notable in itself that the Government proposes a written constitution (Scotland’s Future 1.5). It also suggests that the Sovereign will continue as head of state (2.14); that there will be a Supreme Court of Scotland, and that this court will have the power to strike down unconstitutional legislation (the constitution will contain ‘citizens rights that cannot be taken away by a decision of Parliament’ – 1.5). This raises a number of questions about court structure under the new regime. How would a new Supreme Court be established and how would it be populated? Would it be a free-standing court with personnel separate from the existing superior courts in Scotland, and if so could this be justified given the limited number of constitutional issues that come from Scotland to the UK Supreme Court at the moment? Or would judges from the Court of Session sit on this on an ad hoc basis? 

There is also a reference to Scotland’s membership of the European Union (and of course there is a separate debate about how that membership will be secured) being subject to constitutional provision (2.3). Little is said about institutional arrangements. One question that will inevitably arise in the referendum campaign is whether there would be any proposals to make the Scottish Parliament bicameral or at least to institute some model of review body to assess and scrutinise draft legislation.

Scotland’s Future spends longer setting out a commitment to collectivist values in the form of social rights which it suggests will also enjoy constitutional protection. There is a proposal to enshrine within the constitution an entitlement to public services and ‘to a standard of living that, as a minimum, secures dignity and self-respect’ (1.10) and possibly also ‘constitutional rights in relation to issues such as welfare, pensions, health care and education’ (1.10). There is also a radical suggestion that principles on climate change, the environment and the sustainable use of Scotland’s natural resources should be constitutionally protected and that there might be a constitutional ban on nuclear weapons being based in Scotland. Each of these proposals of course raises questions about what type of enforcement would accompany such provisions; in particular would the courts be vested with the duty to enforce social and environmental rights etc., the constitutional appropriateness of such a duty the competence of judges to execute it. The final substantive proposal in Scotland’s Future is for an examination of the war power and a constitutional guarantee that this power would be shared by the Scottish Government and the Scottish Parliament. Separately, the Government has also suggested constitutional provisions on Scotland’s system of local government.

The paper also turns to process and it is here that the two stage approach emerges. The first stage after the referendum would be the interim period within which Scotland would become independent. The intention is that during this period of some 15-16 months up to March 2016, agreements will be reached between the Scottish and UK Governments on this transition, establishing the timetable towards ‘independence day’ in March 2016. All of this would pave the way for the scheduled elections to the Scottish Parliament in May that year, which would on this proposal become elections to the Parliament of an independent country.

Scotland’s Future acknowledges that the following issues would need to be the subject of  negotiation and agreement: ‘the division of financial and other assets and liabilities (including oil revenues and assignation of other tax revenues, military bases and overseas assets), the transfer to the Scottish Parliament and Government of political authority over institutions previously controlled at Westminster… and the timetable for the speediest safe removal of weapons of mass destruction from Scotland.’ Interestingly, there is also reference to the ‘on-going co-operative arrangements that the peoples of Scotland, England, Wales and Northern Ireland would share’. It is not clear what is meant by this, although notably the Scottish Government during its period in office between 2007 and 2011 produced a White Paper ‘Scotland’s Future: Draft Referendum (Scotland) Bill Consultation Paper’  which famously stated that under independence ‘the social union with the remainder of the UK would be maintained, with the nations continuing to co-operate on a range of matters’. It is not clear if this is what is meant by ‘on-going co-operative arrangements’ in Scotland’s Future. It is also acknowledged in Scotland’s Future that some matters will remain unresolved until after independence as happened in the split between the Czech Republic and Slovakia; in other words even after 2016 there would still be an on-going period of gradual separation.

Turning to process, it is also suggested that the Scottish Government will seek to make the post-referendum negotiations inclusive (2.7) by inviting ‘representatives from the other parties in the Scottish Parliament, together with representatives of Scottish civic society’ to join in these negotiations and in helping to ensure ‘the continuity of those public services which are in reserved areas.’ The basis for the interim arrangements would be a ‘constitutional platform’ to facilitate the new Parliament and Government elected in 2016. There would potentially be something of a constitutional vacuum after ‘independence day’ when the writ of the Scotland Act would no longer run but in which no new constitution would have yet been promulgated. And so (2.10) ‘until that constitution is drafted and comes into force, arrangements will be in place from independence day to consolidate the existing rights of citizens and give the Scottish Parliament and Government the legal, financial and other powers necessary to govern Scotland effectively across the full range of national issues. These arrangements will form Scotland’s constitutional platform.’ A number of questions arise: where would sovereignty rest in this period – would the Scottish Parliament take on a new sovereign power through the constitutional platform, or would there be some notional reversion to the sovereignty of the pre-1707 Scottish Parliament? And what of the Crown, the Privy Council etc.? Finally, Scotland’s Future proposes a constitutional path to terminate Westminster’s authority. The UK Parliament would legislate ‘to acknowledge the end of its power to legislate for Scotland’ (2.13) in a way similar to the Malta Independence Act 1964 and the 1931 Statute of Westminster.

There is also some discussion of the process towards a written constitution. Scotland’s Future suggests the possibility of a constitutional convention to be convened by the newly elected independent Scottish Parliament to draft this (1.7). It is not clear what shape this would take but it ‘should engage all the people of Scotland in the process of nation-building and allow them a say in defining how our country will work. (1.6)’ Reference is made to the citizen-led assemblies and constitutional conventions convened in British Columbia (2004), the Netherlands (2006), Ontario (2007) and Iceland (2010) as well as the citizen-led constitutional convention convened in Ireland in 2012. Given that such an open process is proposed we must assume that the substantive proposals for the written constitution set out in Scotland’s Future would themselves be open to revision. For example, such a constitutional convention may well decide not to include social rights and could also opt for a republican rather than monarchical system of government etc. Finally, another question is, would there be referendum to ratify this constitution and would the referendum find its way into the constitution as a standard mechanism of constitutional amendment? What we know of referendum use is that it tends to be contagious; once used to change a system of government it often finds its way into a new constitution as part of the process of future change.

It is likely that these issues will be discussed in detail over the next 18 months. Regardless of the outcome of the referendum they may well also prompt wider UK debates about constitutional change and could also help frame the landscape for further constitutional re-thinking in Scotland, even in the event of a majority No vote.

 Stephen Tierney is Director, Edinburgh Centre for Constitutional Law. This blog is based upon a paper given to the Law Society of Scotland on 7 March 2013. I am grateful to those present for a most fruitful discussion of the paper.

Suggested citation: Stephen Tierney, ‘After the referendum – the Scottish Government’s proposal for a written Constitution’ ,  UK Const. L. Blog (12 March 2013) (available at http://ukconstitutionallaw.org).

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Jo Eric Khushal Murkens and Peter Jones: Salmond and Cameron order a dog’s dinner at the EU café

jo-mur1 peterCountries that are used to referendums on constitutional matters use them sparingly. The UK has no such constitutional requirement, but faces the possibility of having to deal with two such referendums within the spate of a few years. The first referendum could see Scotland break away from the United Kingdom, the second could see the United Kingdom (which by then may or may not include Scotland) break away from the European Union.

The common issue to both Alex Salmond and David Cameron is political sovereignty. They both want more of it; Salmond wants to claim it from the UK, Cameron wants to claim it from the EU. In that narrow sense, they are both nationalists; Salmond a Scottish one, Cameron a British one. Both also want, they claim, to be good European citizens but have to contend with the problem that the European club they want to be members of has rules which conflict with their visions of the idealised club they imagine it should be. And the promotion of this idealised vision to their voters leads them both to political positions which are incoherent.

For the SNP which was, until the advent of devolution in 1999, a minority fringe party, the ‘Independence in Europe’ policy was never subjected to serious examination. It was not much more than a political slogan used in political debate to counter the separatist charge levelled by opponents. The most that was done to develop this policy was to locate sympathetic European luminaries who gave the SNP helpful quotes asserting that upon independence, Scotland would move seamlessly into EU membership. It became an article of SNP faith that Scotland would be warmly welcomed into the happy European family, effectively countering ‘separatist’ accusations. So cemented into SNP ideology is this belief that Nicola Sturgeon, deputy first minister, told the Scottish Parliament’s European and external relations committee in December 2007: ‘It is the clear view of the Scottish National Party and the [Scottish] government that Scotland would automatically be a member of the European Union upon independence.’

The automaticity proposition founders on the rather obvious point that while the people and territory of Scotland may already be in the EU, the Scottish government is not. And the Scottish government being in the EU requires its votes in the European Council and other entitlements to be written into EU treaties which can only be done with the unanimous consent of all other member states.  This remains the case. The SNP, however, refuses to acknowledge this point because it raises the vision of Scotland being outside the EU and having to bang on the door begging to be allowed in out of the cold, bringing the separatist bogey back into play.

The battle against the separatist charge has had to be fought on another front – within the UK. Unionists have alleged that independence will mean that families with members on either side of the border will become fragmented, that they and commercial trade will have to negotiate border controls at Berwick and Gretna Green, that Scotland will lose access to popular BBC shows such as East Enders and Strictly Come Dancing and so on. To counter this, the SNP has devised a new strategy – that while the political union of the UK will come to an end, the social and civil union will continue and prosper. Thus families will be just as united and able to jointly celebrate such things as the Queen’s birthdays and anniversaries as she will still be the titular head of state in an independent Scotland.

Harsh economic realities, however, have forced the extension of this soft unionism into harder areas. The stresses and strains that the Euro currency is under have made it as unattractive to Scots as it is to the English. The SNP, because of the more prosaic reality that some 60 per cent of Scottish trade is with the rest of the UK and that it makes no sense to erect a currency barrier to that trade while tearing one down to benefit the 20 per cent of Scottish trade that is with the Eurozone, decided some time ago that an independent Scotland would stick with sterling as its currency until such time as there are economic benefits to joining the euro, which would only occur after a referendum.

The travails of the euro and the proposed deeper integration remedies, however, demonstrate that such a currency union would erode Scotland’s fiscal independence. Proposed tax changes and government budgets would have to come under the tutelage of the, with independence, foreign institutions of the UK Treasury and the Bank of England. Various unionist politicians, such as Treasury chief secretary Danny Alexander and former chancellor Alistair Darling, have argued either that the UK government simply could not countenance such an arrangement, or that the arrangements would be so restrictive as to nullify the claimed gains from political independence.

The SNP’s counter to this has been to assert a rather crude truth, that as sterling is a fully tradeable currency, the UK cannot stop Scotland from unilaterally adopting the pound. This, however, looks unsatisfactory from the point of view of independence. It leaves monetary policy, the determination of interest rates, and the operation of quantitative easing in the Bank of England’s hands. The SNP also claim, rather more vaguely, that the fiscal stability pact necessary to a currency union need not be so restrictive when, in fact, the lesson of EU struggles to stabilise the euro point to tighter rather than looser centralised fiscal controls.

This puts Salmond in the odd position of being, simultaneously, a Scottish nationalist, a European federalist, and a British unionist. He wants Scotland to have untrammelled use of its own credit card to dine at the same time in the British and European restaurants, but refuses the table d’hôte menu and insists on picking from two à la carte menus which neither chefs seem willing to offer.

Cameron is in only a slightly less strange place. He wants to trade heavily on his British nationalism with his domestic audience but waves his European unionism when on the other side of the English Channel. Both audiences are, however, able to see what is being presented to the other and thus he runs the high risk of undermining his message to one by his contrary calls to the other.

In his speech on the EU on 23 January 2013, David Cameron set out his intention to renegotiate the UK’s relationship with the EU and put the terms of that changed membership to the British people in an in/out referendum by the end of 2017, subject to the Conservatives winning an outright majority in the general elections in 2015. His speech received global attention and a mixture of praise (‘agree that the EU needs to be reformed’) and criticism (‘disagree with the language of unilateral negotiations and the threat of withdrawal’). Much of the commentary, indeed much of the speech itself, is based on the dubious premise that the UK is a major player in the European Union.

On one level, the UK undoubtedly sits at the top table: it has the third largest population and the third largest economy in the EU. However, the UK already has differently negotiated relationship with the EU than the other member states. It gets a significant rebate on its financial contributions to the EU budget; it has external borders with other EU member states; it has its own currency; it did not sign the fiscal stability treaty which requires budget prudence and introduces a debt brake for the 17 Eurozone states; and it will not (unlike 11 Eurozone states) impose a financial transaction tax which is designed to discourage speculative trading. Moreover, the UK limited the justiciability of the Charter of Fundamental Rights and the way in which it may be interpreted. And its red-lines approach at the IGC in 2007 means that the UK can itself decide (by 31 May 2014) whether to implement all the European measures on police and justice (which will be subject to the jurisdiction of the CJEU) or whether to opt out of all the measures and then adopt individual measures on an ad hoc basis (subject to the consent of the other member states). (Although how exactly the latter option ‘cuts red tape’ is anyone’s guess).

If this isn’t à la carte, then what is? What more does Cameron want to renegotiate? No one knows, and no one has yet produced a checklist, although the government will be working on one until the autumn of 2014. For the time being, the Working Time Directive, the European Arrest Warrant, and a better deal on fisheries keep coming up in debate. Is it realistic to argue that powers in those areas can be returned to the member states? The practical options are the following. Either the UK tries to tackle the matter from above by reducing the law-making powers of the EU institutions (that option would require a treaty change and the unanimous agreement of the other member state which is, currently, unrealistic). Or the UK tries to negotiate a better ‘deal’ for itself (e.g. through opt outs and protocols that are attached to the Treaty). But is it credible that the other member states would grant the UK special treatment when every member state is subject to aspects of EU law of which it disapproves and would dearly like to roll back the frontiers of European law and policy? So neither option seems workable.

On a more fundamental level it seems baffling that British Euroscepticism would appear to hinge on a handful of powers that need to be ‘repatriated’. It doesn’t, and it is ludicrous to suggest that the Europhobes in the Conservative party will be placated if junior doctors work longer, and UK nationals who are wanted on charges abroad cannot be extradited (whereas, of course, UK nationals who have committed a crime in the UK but fled to another EU member state will immediately be brought back home). On fishing, where the real issue is depleted stocks through overfishing, the Commission is already transferring decision-making powers to the member states in an attempt to decentralise fishing policy and tailor it to local conditions. As Douglas Alexander put it: ‘The gap between the minimum the Tories will demand and the maximum the EU could give is unbridgeable’. These are not the fundamental issues, and any self-respecting Europhobe will not rest until the UK has exited the Union and re-attached itself to the single market like a dingy to a supertanker.

So if Cameron’s speech does not stand up to scrutiny from a European perspective, maybe its intended target was closer to home. Almost all foreign and domestic observers noted that the speech was driven primarily by domestic party politicking (UKIP) and internecine party struggles (Bill Cash). Cameron is trying to unify a fractured party in the run-up to the general elections in 2015, and UKIP and the Tory backbenchers forced his hand. But even domestically Cameron may have dealt himself a bad hand. The offer of a referendum on renegotiated membership after the next general election is subject to two known unknowns: i) the outcome of the 2015 elections; ii) the outcome of the negotiations. It is presently far from clear whether he will be successful with respect to either or both.

Until then Cameron will be seeking, not so much nouvelle cuisine as cuisine impossible, just like Salmond: untrammelled UK access to the European single market restaurant, refusal of the table d’hôte menu and insistence on the à la carte menu which is not on offer. And then he will have the nerve to ask for a rebate (i.e. other member states subsidising his dining) when presented with the bill.

Conclusion

Cameron’s policy on the EU is just as incoherent as the SNP’s policy on continuing EU membership on current terms. Cameron assumes he will win the next election, just as Alex Salmond assumes that Scotland will automatically be an EU member state. Cameron claims that he can walk into the room and negotiate a new deal (‘I am an optimist, not a pessimist’, Cameron responded to a question on this issue by a journalist after his speech). Salmond claims that he can secure Scotland’s place in Europe on current terms, i.e. by inheriting the UK’s opt outs on the Euro currency and the Schengen free travel area, which is illusory.

Moreover, a referendum (if one is to be had) needs to set out two clear choices before the referendum. The in/out referendum on the EU or the Yes/No referendums on Scottish independence do not offer sufficient alternatives. What will come after EU membership? A free trade (all pay and no say) agreement with the EU like Norway? The Commonwealth? The USA? NAFTA? The global market? Splendid isolation?

Likewise, Salmond promises continuity when any EU lawyer, politician, and bureaucrat will tell him that there is no automatic right to membership of the European Union. So, what if membership is not automatic? Will Scotland stay outside the EU? Have its application fast-tracked? Join the queue of applicant states? He also promises currency continuity within a skeletonised British union, when there are an array of economists and Treasury politicians past and present saying it either will not work or will render the gaining of political independence pointless. So what will happen then? Freelance use of the pound? Enforced joining of the euro? Invention of a Scottish currency?

The à la carte menus offered by both are, in reality, dogs’ dinner.

Jo Eric Khushal Murkens, Department of Law, London School of Economics and Political Science

Peter Jones is a freelance journalist, writing on Scottish current affairs for The Economist, the Times and The Scotsman. He is also, with Jo Murkens, a co-author of Scottish Independence: A Practical Guide, EUP 2001.

Suggested citation: J. E. K. Murkens and P. Jones: ‘Salmond and Cameron order a dog’s dinner at the EU café’ Const. L. Blog (31st January 2013) (available at http://ukconstitutionallaw.org)

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