affiliated to the International Association of Constitutional Law
The victory for the No campaign in last week’s referendum means that, for the foreseeable future, Scotland will remain part of the United Kingdom, and that its (domestic) governance will continue to be split between Westminster and Holyrood. The result was a decisive one in that there was a clear margin of victory, achieved through a fair and legitimate process.
However, the referendum is less decisive than some may have hoped for in two senses.
First, the level of support gained by the Yes campaign (44.7%) was actually a considerable achievement given that it started well behind, with polls in 2011 showing that no more than a third of the electorate favoured independence (see James Mitchell’s post on this blog). Moreover, Yes campaigners show no signs of abandoning their cause. Since last Friday, there has been a remarkable surge in membership of the SNP (as well as the Scottish Greens and the SSP), and the latest poll on voting intentions at the next Holyrood election suggests that the SNP will gain an even higher share of the vote that it did in 2011.
Secondly, the clarity of meaning of the result was significantly undermined by the Better Together parties’ belated insistence that a No vote did not mean a vote for the status quo. Even if it is not clear how much this contributed to the No victory (see Mitchell), it has created a strong expectation that reform of the UK constitution, and of Scotland’s place within it, is required. Again, this has been confirmed by events since the referendum, including the Prime Minister’s speech on the morning of 19 September pledging to honour the reform commitments made prior to the referendum, the publication of the text of a House of Commons motion by the unionist parties setting out the timetable for reform, and the appointment of Lord Smith of Kelvin to broker an agreement between the parties on the details of reform.
On both counts, therefore, there is a sense that the No vote signifies merely a provisional choice to remain within the Union, rather than a decision that settles the matter for a generation or more. Although the unionists have won an important battle in the campaign to hold the UK together, it is too early to claim that they have won the war. If the Union is to survive in the long term, significant reform will be required to address the constitutional discontents evident in Scotland during the referendum debate – and now also evident elsewhere in the UK, particularly in England, in its aftermath.
Far from being resolved, therefore, the debate on the future of the UK’s territorial constitution has only just begun. At this stage, however, it is easier to identify what issues need to be addressed than how best to do so.
Regaining Losers’ Consent in Scotland
The first challenge is to restore the legitimacy of UK decision-making in Scotland. At its most basic, the constitutional case for independence rested on a claimed democratic deficit in the status quo – in other words, that only independence would ensure that Scotland always gets the government it votes for. Of course, in a democracy, one cannot always expect to be in the majority. The stability of the system therefore depends on the existence of “losers’ consent”, i.e., that voters accept the legitimacy of the government even if they did not vote for it. Where there is no losers’ consent, because the minority does not accept the legitimacy of the political community within which the majority has been obtained, then the political system is likely to be unstable.
In the case of Scotland, the legitimacy of the UK as a political community seems to have been significantly weakened for a substantial proportion of the electorate. According to the post-referendum poll conducted by Lord Ashcroft, the most important reason for supporting independence for 70% of Yes voters was the principle that all decisions about Scotland should be taken in Scotland, while another 10% were primarily motivated by the desire to ensure that there would be no more Conservative governments. Moreover, for a significant proportion of No voters, their support for the Union appears to be conditional. Lord Ashcroft’s poll showed that only 27% of No voters were primarily motivated by a strong attachment to the UK. 47% were mainly concerned about the risks of independence, while 25% thought that a No vote would mean more powers for the Scottish Parliament, whilst retaining the security of being in the UK. This is confirmed by Better Together’s own admission that they chose to focus so heavily on the risks of independence because their private polling showed that of the roughly one third of the electorate who remained undecided in summer 2013, 64% said they would vote for independence if they were certain that Scotland would be no worse off as a result.
This, then, suggests a weak basis for the legitimacy of UK decision-making in Scotland, which is vulnerable to further erosion if voting patterns in Scotland and the rest of the UK continue to diverge, or if the material benefits of remaining in the Union are reduced.
Nevertheless, it may not be impossible to rebuild legitimacy. Forced choices about primary motivation may in fact conceal a more complex set of motivations and more mixed political affinities. For instance, while the 2014 Scottish Social Attitudes survey showed that, on a forced choice, 65% opt for a Scottish national identity, and only 23% for a British identity, when allowed a more nuanced choice, 63% opted for some sort of mixed Scottish/British identity. Interestingly, the Yes campaign did not attempt to deny this dual identity during the referendum debate. Rather they sought to depoliticise Britishness in favour of social, cultural or geographic understanding of it. The challenge then, for supporters of the Union, is to rebuild a dual political identity to fit with a dual governance structure.
Three strategies seem possible, but none is unproblematic. One is to alter the distribution of powers between the Scottish and UK Parliaments so that fewer decisions are subject to a UK rather than a Scottish majority. This is, however, risky in two ways. First, since there is no non-contentious basis on which to distribute powers, this is bound to remain a source of tension, with the ongoing potential to provoke a constitutional crisis if the UK institutions make decisions which are strongly opposed in Scotland. Secondly, the more political decisions are made in Scotland, the more this seems likely to strengthen Scottish political identity at the expense of Britishness.
The second strategy is to attempt to ensure that Scotland continues to benefit from membership of the Union, or at least that Scots perceive the benefits of Union to be greater than the benefits of independence. This may mean material benefits, or it may mean political opportunities – a persistent theme in the Yes campaign was the claimed greater opportunities for social democratic and political reform in an independent Scotland, compared with the UK. But this strategy is highly problematic too. It is inherently difficult to ensure that the Union continues to deliver economic benefits to Scotland, and attempts to do so artificially, for instance through the Barnett formula, are liable to breed resentment in other parts of the UK. In addition, the more powers that are exercised in Scotland, the less risky a further step to independence is likely to be seen, whereas continuing to talk up the risks of independence may simply maintain focus on it as a live constitutional option.
Questions of political opportunity are easier to address in principle – and in particular, reform of the electoral system at Westminster might go some way towards reducing the perceived polarisation of political attitudes in Scotland and in England in particular. However, the key problem here is whether there is any real appetite for political reform at Westminster.
The final strategy is, as Neil Walker has suggested, to try to rebuild the ethical case for the Union based on arguments about broader solidarity and inter-dependence, and about the value of the UK itself as a special kind of plurinational state which is capable to combining respect for national diversity with broader solidarity. But again there are problems. Quite apart from the questions of how and by whom this ethical case would be made, the UK is in competition with other sites of solidarity and for managing inter-dependence, most notably the EU. These may prove to be more attractive in the long run, particularly if the UK itself retreats from international co-operation through withdrawal from or renegotiation of the terms of EU membership. In addition, a convincing defence of the UK as a plurinational state requires reform going beyond further piecemeal tinkering with the scope of devolved powers.
Recognising the UK’s Plurinational Nature
The asymmetric nature of devolution in the UK means that, while the constitution feels plurinational at the peripheries, it remains essentially unitary at the centre. Devolution can be explained in a number of ways, but at least on one understanding it amounts merely to a form of minority protection against the dominance of England, rather than involving a fundamental rethinking of the territorial constitution. This gives rise to a number of problems which threaten the future stability of the state.
In the first place, there are some well-known anomalies, the most prominent of which is the West Lothian Question, or the question of English Votes for English Laws. But we can add to this the mismatch between the legal and political constitutions as regards the entrenchment of the devolved institutions; differential forms and levels of devolution, some aspects of which are difficult to justify in principle; and a system of territorial financing which is perceived to be unfair.
A second problem is the lack of recognition of the plurinational nature of the state at the centre. This is manifested in, for example, a weak and largely informal system of inter-governmental relations, which allows the UK government to dominate the devolved governments; the lack of any explicit territorial representation in the UK Parliament; and ad hoc arrangements for representing devolved interests in EU decision-making.
Finally, there is a fundamental lack of clarity over the nature of the territorial constitution, revealed by, for example, contests over the location of sovereignty (in the UK Parliament or the Scottish people?); uncertainty over the very existence and content of UK constitutional law (as distinct from local inflexions of it); and deep uncertainty over how to handle constitutional issues on which there may be different territorial majorities – rumbling discontent over the franchise for the independence referendum is one example; the threat of British exit from the EU or repeal of the Human Rights Act are others.
Once again, these problems are much easier to state than to resolve. As we have seen in recent days, David Cameron’s apparently modest proposal to resolve the West Lothian Question by ensuring that only English MPs can vote on laws which affect England only in fact raises a whole host of practical, political and constitutional objections. Similarly, Ed Miliband’s proposal that the House of Lords should be replaced by a Senate of the Nations and Regions, while superficially attractive, does nothing by itself to resolve any of the ‘wicked issues’ that have so far stymied House of Lords reform, such as what powers it would have, how much of a rival it would be to the House of Commons, and whether it would still be able to perform its scrutiny function effectively.
A full answer to the anomalies and uncertainties of the current territorial constitution implies a properly federal constitution, with devolution all round, an entrenched written constitution, and territorial, not merely majoritarian, consent to future reforms. Again, though, it is hard to detect any real appetite for root and branch reform of this nature. Nor indeed is it obviously desirable in principle.
Embracing Not Destroying the Union State
The basic problem with any attempt to federalise the UK is that it seeks to impose a symmetrical (or broadly symmetrical) constitutional model on a country which is in fact deeply asymmetrical.
One issue is, of course, the sheer size of England relative to the other parts of the UK. This, in my view, makes any federal solution based on England as a federal unit simply unworkable. There is a sense in which it would be unfair – as well as unrealistic – to treat England, with its 54 million people, as constitutionally equivalent to Scotland, Wales and Northern Ireland, with only 10 million people between them. In any case, because of its size, it is hard to say that England is really disadvantaged by the current constitutional arrangements – the largely theoretical problem of the West Lothian Question aside – such as to justify the creation of an additional layer of government.
The regions of England, on the other hand, arguably are disadvantaged, but as Mark Elliott has pointed out, it cannot seriously be suggested that the English regions should have the same legislative powers as Scotland, Northern Ireland or even Wales. Moreover, there are significant issues about whether there are sufficiently strong regional identities in England to avoid creating new losers’ consent problems.
The second problem is that the asymmetry of the current devolution arrangements has not come about by accident, because there was insufficient ‘joined up’ constitutional thinking on the part of their architects. Rather, these were deliberate attempts to create bespoke institutional arrangements for territories with different constitutional histories, facing different constitutional problems, and whose pre-existing governance arrangements were already different. While the fact of devolution creates some commonalities across the devolved nations, these underlying differences cannot simply be wished away in the interests of constitutional tidiness.
It remains the case that the UK is best understood as a union state, rather than a unitary state or a quasi-federal one, and any reform of the territorial constitution should seek to embrace this fact, rather than set out to destroy it. From this perspective, a number of recent suggestions for reform seem profoundly misguided. For instance, Jack Straw has proposed that the Union should be made indissoluble and further independence referendums banned. However, this would do great violence to the constitutional understandings of many people in Scotland (including some who voted No), and for consistency it would have to be extended to Northern Ireland, which would breach the Belfast Agreement. It is similarly mistaken to try to tie proposals on English Votes for English Laws to the question of further powers for the Scottish Parliament, or to advocate (as Lord Norton of Louth has done) a reduction in the number of Scottish MPs, or to suggest that Scottish MPs should not be able to become Prime Minister or hold any of the great offices of state. All of these proposals look too much like taking revenge on the Scots for daring to hold the independence referendum, and are likely to backfire should another one ever take place. Too enthusiastic a promotion of a ‘Britishness’ agenda is also likely to expose territorial divisions rather than doing anything to heal them.
As Vernon Bogdanor has argued, “[a]symmetry is the price England pays to keep Scotland within the union.” If a way cannot be found to make asymmetry tolerable to the English majority, then the Union will not survive.
A Note on Process
A final word on the process by which the territorial constitution should be reformed. After the expansive and participatory constitutional process of the independence referendum, and the lost chance of further popular participation in the drafting of a new Scottish constitution, it is in some ways disappointing that the constitutional reform process has reverted to type. Further powers for Scotland are to be thrashed out behind closed doors by the political parties, presided over by a member of the quangocracy. Meanwhile, reform at Westminster has been overtly politicised. The government has announced an accelerated timetable for reform in a fairly naked attempt to gain electoral advantage over the Labour party, while Labour’s response that the issue should be entrusted to a constitutional convention looks more like an attempt to buy itself time than a genuine commitment to participatory constitutionalism.
I find myself genuinely torn on this question. On the one hand, there is undoubtedly much to be said for the principle of public involvement in constitutional reform, as Cormac Mac Amhlaigh has argued, and any proposals would have much greater legitimacy if they resulted from a popular process rather than from a party political compromise. In addition, a constitutional convention would be able to consider more fully the implications of particular changes for other aspects of the constitution than the balkanised process that seems to be under way. On the other hand, given the difficulties involved in any attempt at wide-ranging reform, it is hard to see how public involvement could have the same generative capacity as in relation to the much more straightforward question of whether Scotland should become independent, or even the relatively simpler task of developing a written constitution for a newly independent state. There is also a political imperative to be seen to respond quickly to the independence referendum – particularly in Scotland, but probably also in England as well. In the circumstances, perhaps the best we can hope for is some form of muddling through, in which case a constitutional convention may serve only to delay and complicate matters.
Aileen McHarg is Professor of Public Law at the University of Strathclyde.
This post originally appeared on the Scottish Constitutional Futures Forum Blog.