UK Constitutional Law Association

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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.

4 comments on “Aileen McHarg: A Tale of Two Constitutions?

  1. barry winetrobe
    December 17, 2013

    Excellent blogpost. The disconnect between the various – and sometimes parallel – constitutional debates north and south of the Border is very real, and undermines the genuine debate needed over constitutional future of the various nations of ‘these islands’ in whatever configuration emerges over the coming few years.

    One related question. Can someone please explain why, in the discussions over the two ‘union referendums’ – ie UK and EU – the constitutional arguments made by many (and not just on the ‘right’) for having a referendum over any renegotiated EU membership apply to that union, but not, apparently, to any renegotiation (if a ‘Yes’ vote next year in Scotland) of the constitutionally more salient union, the UK?

    The usual answer is ‘realpolitik’, which is partly a deference in UK Centre, to avoid anything that may smack of ‘English interference’ which could play to the pro-Yes camp. But the argument for some form of ‘second referendum’, once any terms for the departure of Scotland from the ‘residual UK’ are agreed (if agreed!), will surely grow if there is a ‘yes’ vote, and so should be addressed now, and not left until after the Scottish referendum. This is a huge issue, covering aspects such as whether a second referendum to accept any negotiated agreement should be restricted to Scotland, as for 2014, or to cover all affected Union citizens; whether the 2014 referendum really is a definitive decision to leave the UK or not, or simply a statement of a desire or otherwise for an independent Scotland, with a mandate to negotiate terms for such if a ‘yes’ vote; and how to respond if, in this age of social media and direct public engagement, some group decides unilaterally to run some form of UK-wide unofficial ‘British referendum’ at some stage in the process, perhaps even before or alongside the Scottish referendum, or after agreement and before ‘Independence Day’.

  2. John Dowdle
    December 18, 2013

    Aileen: I have no opinion poll data to hand but I imagine that for most people in England, Wales and Northern Ireland, the subject of possible Scottish independence is the least interesting or pressing thing on their minds. While I am sure many Scots find the subject of an independence referendum tremendously interesting, most people elsewhere in the UK do not. From our non-Scots perspective, the subject of independence for Scotland is just a bore. Whatever the outcome, it will make little if any difference to people living outside of Scotland. Trying to unravel a 300+ years union will be protracted and messy; no one wants to bother their minds with such things, particularly if – as most suspect – it leads nowhere.

  3. Aileen McHarg
    December 19, 2013

    Thanks Barry. Why no second referendum? There are a number of potential answers to that. One is simply that referendum practice is still relatively new and evolving, and there is as yet no consistent practice. And here it might be argued that the campaign for an EU referendum has less to do with democratic legitimacy than with euroscepticism, pure and simple.

    The second answer is the one to which you refer, but I think it is more than realpolitik. A UK wide referendum (or parallel Scottish and rUK referenda over the terms of the independence negotiations would again effectively give the (UK) majority a veto over independence for the (Scottish) minority. It might also be argued that since the rUK will almost certainly have the stronger hand in post-referendum negotiations anyway, there is in practice no need for the protection provided by a second referendum.

    However, I think that the analogy with the EU is instructive. One could try to distinguish the two cases by saying that EU membership requires stronger constitutional legitimation because it involves an ongoing transfer of decision-making power away from Westminster, whereas the independence negotiations will be more in the nature of a one-off treaty. However, that attempt at distinction breaks down if the negotiations result in as many areas of continued shared decision-making as the Scottish Government is envisaging. It also particularly concerns me that the post-referendum negotiations could significantly tie the hands of an independent Scotland in the post-independence constitution-making process. For instance, a constitutional ban on nuclear weapons would effectively be pre-empted if the Scottish Government has already negotiated a concession for the nuclear fleet at Faslane in return for, say, a formal monetary union.

    So I agree with you that there are real problems with the timing of the referendum. What looks like an extreme deference to popular sovereignty – independence negotiations will not even be contemplated unless there is express popular support; an ordinary electoral mandate is not enough – in practice seriously dilutes the significance of that act of popular sovereignty because it is so unclear what has been consented to. The post-referendum process is therefore crucial and has not yet been sufficiently discussed.

  4. barry winetrobe
    December 22, 2013

    Thanks for the thoughtful response to my rather shorthand comments on your original posting.

    Instinctively, I am in favour of the legal principle of ‘informed consent’ being applied to fundamental issues of constitutional importance, such as possible changes to the very basis of the State in which a person belongs. The precise form of that ‘informed consent’ – parliamentary action (legislative or otherwise), referendums, general elections etc – is a matter for discussion in each case, taking into account notions of representative vs ‘direct’ democracy and the like. However, I believe that both parts of the principle should be of equal importance – ‘consent’ is necessary, but not sufficient if it is not, in any appropriately meaningful way, ‘informed’.

    Applying this to your point that involvement of other parts of the UK beyond Scotland in any independence referendum would “effectively give the (UK) majority a veto over independence for the (Scottish) minority”, the easy/lazy response would be to argue that referendums in the UK are formally consultative, under our existing constitutional order, whatever their practical effect or political context.

    A more nuanced response would be to appeal to the maturity of the democratic political system across the UK, one that could accommodate some form of official engagement with, and consultation with, all the people of the UK, in appropriate (which may mean ‘different’) ways and at appropriate junctures in any post-‘yes’ process. Robert Hazell of the Constitution Unit has argued, for example, for a 2nd Scottish referendum if the Scottish Government’s recent independence white paper turns out to be what he calls a ‘false prospectus’, and cannot be substantially delivered in the negotiations (presumably whether or not an agreement is even reached?): 26.11.13 press release:

    Another aspect is that the representatives – in Government and at Westminster – of the people in the non-Scottish parts of the UK will have a key role – a veto, in effect – in the conduct, content and outcome of any post-‘yes’ negotiations. Their consent needs to be ‘informed’ and that should involve knowledge of the views, collectively and individually, of their constituents. If these views are not to be expressed directly – via a referendum or general election – but to be moderated through the ‘usual’ representative medium of their MPs (and peers), they too should be ‘informed’. In other words, a kind of dual ‘informed consent’.

    A focus on ‘informed consent’ could be more productive and less abrasive than placing the discussion of referendums and the like in the language of ‘veto’. It applies a common approach to both the proper rights of Scottish and rUK citizens, including the CU argument for a 2nd Scottish referendum in one particular outcome.

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This entry was posted on December 17, 2013 by in Scotland and tagged , , , .

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