UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

Mark Elliott: A lack of constitutional imagination lies at the heart of the Scottish independence debate

Mark

Opinion polls suggesting that the pro-independence campaign in Scotland may have taken a narrow lead have had an electrifying effect, causing the mainstream UK media and political establishment — both of which have been curiously disengaged from the debate so far — to sit up and take notice. The point of this post is not to make the case in favour of the Union. Rather, the point is to suggest that the nature of the debate — premised as it is on bald agreement or disagreement with independence — displays a lack of constitutional imagination.

The question lying at the heart of the independence debate appears to be an unambiguously binary one. Should Scotland be an independent country? Yes or no? But the terms upon which the debate has largely been conducted — particularly by those arguing in favour of independence — have often implicitly, and sometimes explicitly, eroded the ostensibly binary nature of the question. The obvious example is the pro-independence campaign’s insistence that an independent Scotland could and would continue to use the pound. The strategy is clearly an attempt to allay fears about independence by relying upon the relationship that — it is said — would persist between a newly independent Scotland and the United Kingdom. (I pass over, for the time being, the obvious point that while the question whether it should become independent is rightly and exclusively one for Scotland, the terms of an independent Scotland’s relationship with the United Kingdom manifestly should not and would not be settled only by Scotland.)

The controversy about currency arrangements is, however, merely a facet of a broader characteristic of the independence debate. A fundamental difficulty that has beset it since day one is that, in constitutional terms, we do not know what either a “yes” vote or a “no” vote would actually mean. Exactly how independent of the UK would an “independent” Scotland be? Conversely, what sort of Union would a post-referendum non-independent Scotland be a part of? The answers to these questions have never been clear, and nor — to the extent that they exist at all — have they remained constant. Both camps have shifted position over time. The pro-independence campaign has increasingly invoked the relationship which — it is said — would endure between an independent Scotland and the United Kingdom. Equally, however, the Better Together campaign has — particularly in recent months — placed growing emphasis upon the prospect of yet-greater autonomy for Scotland within the Union. The net result has been a degree of convergence, as independence has morphed into independence-lite, while the case for the Union has developed into a case for a (somehow) different kind of Union.

On one level, the way in which the two different camps have shifted their positions over the course of the campaign can be ascribed to nothing more than the practical political need to appeal to voters who occupy the middle ground. Viewed from a different perspective, however, the sort of convergence that has occurred during the course of the independence debate reveals something more profound about the realities of modern constitutionalism. One of those realities is that the sort of hard distinctions —independent or not independent? — that seem implicit in the type of question which voters in Scotland will answer in just under two weeks’ time are increasingly inapt. In the sort of economically, institutionally and legally interconnected modern world of which an independent Scotland would aspire to form a part, the very notion of independence is uncertain at best, anachronistic at worst. Independent of what, exactly? Not, it seems, of the United Kingdom — with which, according to pro-independence campaigners, Scotland would retain very strong connections. Nor would Scotland (when or if permitted entry) be independent of the wider community of nations that exists thanks to institutions such as NATO, the Council of Europe (and its Convention on Human Rights) and the European Union.

The fact that an independent Scotland would remain connected in these ways can be — and has been — presented as part of the case for independence, on the ground that independence need not raise the (to some) off-putting prospect of going it entirely alone. At the same time, however, this vision of a post-independence Scotland’s position in the wider world simply serves to demonstrate the elasticity — and, ultimately, intellectual emptiness — of the notion of independence. The devil is in the detail: and detail, particularly about how Scotland’s relationship with the rest of the United Kingdom would be calibrated, is notable by its absence.

Yet this argument cuts two ways. It can just as easily be directed against the “no” campaign once it is acknowledged that the notion of the Union, whose defence lies at the heart of that campaign, is at least as elastic as the the idea of independence. Just as independence can be conceived of in terms ranging from total isolation to far-reaching integration with British, European and international institutional arrangements, so can the Union be conceived of in an enormous range of radically different ways. The nature of the Union that joins together the four constituent nations of the United Kingdom is not cast in stone: a fact that is borne out both by constitutional history and by constitutional theory. The relationship between the centre and the home nations, as well as between the home nations themselves, has been significantly re-conceived during the life of the Union, including, perhaps most notably, in the recent past through the introduction and subsequently deepening of devolution itself. As far as constitutional theory is concerned, one of the most-vaunted strengths (as it is seen by some) of the United Kingdom’s unwritten constitution is its flexibility: its capacity to adapt itself to changing political, cultural and institutional circumstances. It follows that choosing to reject or retain “the Union” is a choice that cannot be meaningfully be made by reference to any abstract or fixed notion of what the Union is, since no such notion exists. Rather, it is a choice that must, if it is to be a meaningful one, be informed by a sense of what shape the Union would take were Scotland to remain within it.

Here, then, we find what might be regarded as the most fundamental of all the difficulties with the independence debate. It presupposes that “independence” and “Union” are binary concepts that bear a fixed meaning, rendering each antagonistic to the other. The reality, however, is that neither term need — or does — bear such a meaning. Each instead represents a very wide spectrum of constitutional possibilities, the breadth of which is such as not merely to erode the distinction between the two concepts but to result in overlap. (Would, for example, an independent Scotland bound within the terms of a currency union enjoy greater “independence” than a non-independent Scotland endowed with extensive fiscal autonomy?)

So far, the main Westminster parties’ ability to reimagine the Union appears to be confined largely to the possibility of more-extensive devolution. This much was trailed by the main United Kingdom political parties in June; most recently, former Prime Minister Gordon Brown — apparently with the support of all three of the main pro-Union parties — has indicated that a “no” vote will result in the conferral of additional powers upon the Scottish Parliament by means of an expedited legislative process in Westminster. This, however, discloses only a very limited amount of constitutional imagination. In particular, it does not follow that devolution, or devolution in its current form, should necessarily form the constitutional architecture within which the future of the Union is considered. Properly understood, the question that now faces the United Kingdom is not concerned only with the amount of authority that is located outside London, but with the nature of that authority, the constitutional security of the institutions that wield it, and the constitutional framework within which these issues fall to be determined. The most obvious alternative to the present system is federalism, but here, too, we must be careful. Like devolution and independence, federalism is a broad church, and it is certainly no part of my argument that (say) a German or US-style federal model should be proposed in the United Kingdom as a panicked response to the now-real possibility of a “yes” vote in Scotland. The Scottish referendum — whatever the result — may well prompt fundamental rethinking about the nature of the United Kingdom’s constitution, but its shape must be determined reflectively and inclusively, not on the back of an envelope as the clock ticks. With less than two weeks until decision day, now is not, therefore, the time to begin confronting the technical minutiae of the sort of constitutional future to which the United Kingdom — whether or not shorn of Scotland — might aspire.

The point, rather, is a simpler one. It is that the decision which will fall to be made in Scotland on 18 September is one that is too complex to be distilled into a binary choice between “yes” and “no”: “independence” or “Union”? With only a little imagination, it is readily apparent that the geometry of the constitutional arrangements that might describe Scotland’s relationship with the rest of the United Kingdom are not confined to (on the one hand) the status quo and (on the other hand) independence. A “yes” vote on 18 September will most likely represent an irrevocable choice, foreclosing upon the possibility further exploring the part that Scotland might play in a post-referendum Union. A “no” vote will almost certainly cause that possibility to be explored —and explored, it is to be hoped, in a way that is at least open to possibilities more imaginative than merely the devolution of additional competence to Edinburgh.

Such options would have to be considered on a pan-United Kingdom basis, not only in the interests of fairness but also of pragmatism: substantial revision to the United Kingdom constitution without broad support across the Union would almost certainly stoke resentment, hastening the disintegration of the Union rather than making its survival more likely. But after 300 years, it is surely worth pausing to consider what might lie between the parameters presently represented by independence and the status quo. An understandable response to any newly discovered enthusiasm for United Kingdom-wide constitution reform is that is might be nothing less than a cynical ploy designed to ward off a constitutional crisis. So it might. But it would be mistaken to conflate impetus and consequence. Few countries end up contemplating, far less enacting, significant constitutional reform unless events provoke a “constitutional moment” that triggers such action. A “yes” vote would undeniably make 18 September 2014 Scotland’s constitutional moment. But a “no” vote might just make it the United Kingdom’s.

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

8 comments on “Mark Elliott: A lack of constitutional imagination lies at the heart of the Scottish independence debate

  1. upholdingenglishhonour
    September 9, 2014

    Thanks for the article. I am not an academic though I have been following the referendum debate closely. Perhaps the referendum question should have been : Should Scotland be a sovereign country? As you point out, states yield some of their independence to all sorts of supra-national bodies and not exclusively on their own terms. But retaining sovereignty, at least every country retains the right to seek revision of those agreements, or ultimately to withdraw from them. To me, this is a binary issue – sovereign or not.

    Sadly, David Cameron did not accept Alex Salmond’s offer of devo-max on the ballot paper which would probably have better expressed the will of the middle-ground in Scotland. We can’t fault Mr Salmond for a lack of constitutional imagination on that front but we can fault Mr Cameron and that is why, in my opinion, he should honour the principle of ministerial responsibility and resign.

    I think it is slightly unfair to accuse the SNP of independence-lite. Their room for manoeuvre in the early days of independence will be limited by the huge task of separating out the political institutions of the UK and our close economic integration.

    Kind regards, James

    • Alexandra Nelia
      September 9, 2014

      As I gathered the concept of sovereignty is plagued by exactly the same problem as the notion of ‘independence’ is. If we were to substitute ‘independence’ with ‘sovereignty’, the problem would persist and we would only end up using a different label in the debate. And the translation of the complexities of the question into the voting question would remain equally awkward – note how British politicians, whom it would be surely foolish to accuse of barefaced constitutional law ignorance, tend to insist (more frequently in the run-up to elections) that the Westminster Parliament can do or undo any law it wants…

      • upholdingenglishhonour
        September 9, 2014

        OK. Is there another word which describes the concept of retaining the ultimate power to legislate for one’s people and also yield sovereignty/independence to other institutions on acceptable terms? To me, the concept seems clear and I think that this is in practice what the Scots will be asked to vote on.

  2. barry winetrobe
    September 9, 2014

    Interesting stuff. I think a ‘Yes’ vote, under certain circumstances, may not prove irrevocable, but could lead to a similar path of UK constitutional reform as is now suggested if a ‘No’ vote. See my recent Constitution Unit
    blogpost: http://constitution-unit.com/2014/08/18/will-the-scottish-referendum-produce-a-decisive-and-respected-outcome/, which ended thus:

    “Professor Aileen McHarg, in her recent thoughtful blogpost, Has the United Kingdom had a good referendum?, suggested that one of the flaws of the referendum campaign had been a focus on the ‘Union’ (i.e. the link between Scotland and the other 3 nations by a common state) rather than on the nature and constitution of that ‘United Kingdom’. Perhaps that latter debate will suddenly emerge after a Yes vote, as the implications sink in at ‘the centre’? As independence negotiations proceed – or possibly stall – the call for a wider rethink of the UK itself may gain traction, with a resort, say, to a parallel ‘UK Constitutional Convention’ (as some in Westminster and elsewhere have been calling for anyway) as a way out.

    Who knows, given the muddled and ‘unintended consequences’ ways of British constitutional change, perhaps the outcome of a Yes vote for Scottish independence may not be Scottish independence, but a constitutionally reformed – perhaps even federalised – UK, including Scotland!”

  3. Alexandra Nelia
    September 9, 2014

    The possible constitutional arrangements for framing the Union-Scotland relationship are indeed accurately plotted on a spectrum of options rather than within the binary set-up. However, it may seem rather naïve to hope that technical details of the many possible constitutional frameworks could be extended all the way down to the ballot box, even if the participants of the pre-voting public debates acknowledged that the nature of the question wasn’t binary much earlier than two weeks before the voting day. Inevitably and sadly, no matter how well-informed and diligent the campaign time debates are, the question at the ballot box will always have to be reduced to easily labelled options.
    As for whether the referendum could provide for a ‘constitutional moment’ for the UK, it’s rather doubtful in my view. The MPs ‘expenses scandal’ had a potential to do so too but, in the end, the impetus got gradually extinguished. The breaking of the Union would surely offer more of a ‘moment’ than the fraudulent expenses claims did but the British aversion to constitutional change seems to me to be all-conquering!
    On a slightly different note, for those with interest in federalism, the space to watch is R. Schuetze’s Neo-Federalism Project at Durham University https://www.dur.ac.uk/gpi/research/neofederalism/

  4. John Hartigan
    September 9, 2014

    Pardon the awkward question, but the comment “whether it should become independent is rightly and exclusively one for Scotland” is based on what? As far as I am aware, every other major constitutional change in recent times has required a mandate either from general election manifesto pledges or specific referenda. The prospect of Scottish independence has never been put to UK voters. Devolution referenda in Scotland and Wales only took place once Labour took power in 1997 with specific manifesto pledges. On Scottish independence, only 6 MPs had a mandate to legislate. You may be right, but you are guessing.

    • upholdingenglishhonour
      September 10, 2014

      I’m not a constitutional academic but looked into this a little myself. As I understand it, after the Edinburgh Agreement, an Order in Council was enacted which amended the Scotland Act to allow the referendum. As far as I know there was no debate in the House of Commons or any great uproar from English MPs at the time. The UK Govt was acting for all of us in the UK presumably on the mandate we had given it when we elected it in 2010. Perhaps some might say there was a democratic deficit in this process.

      • John Hartigan
        September 11, 2014

        No maybe about it. 2010 manifestos are silent on independence except SNP. UK Parliament acted without a mandate. They have crossed a constitutional Rubicon – all other recent major constitutional change has required a mandate (joining Europe, staying in Europe 1975, PR, devolution). This is a fundamental and hidden problem undermining our democracy. What next, a currency union with an independent Scotland without a manifesto pledge or specific referendum?

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Information

This entry was posted on September 9, 2014 by in Scotland and tagged , , .
%d bloggers like this: