Constituting an independent Scotland

The SNP’s silence about the constitution of an independent Scotland in recent years has been resounding.  It adopted a draft constitution for an independent Scotland in 2002 (hard to find online, but a copy is here), following work led by the late Neil McCormick.  In more recent times it has been silent on the point, and the only work on the subject has been done by an independent group, the Scottish Constitutional Commission, which led to the publication last year of a ‘model constitution for Scotland’ by W. Elliott Bulmer.  (Details of that are here, and the Constitutional Commission’s website is here.)  In a speech in London on Monday, available here, Alex Salmond weighed into the issue, and proposed that an independent Scotland should have a written constitution, to be drawn up by a constitutional commission to be convened in 2016 following a Yes vote in the independence referendum.  The Scottish Government ‘s news release regarding the speech is here, and there’s coverage of it from BBC News here, the Scotsman (quoting me) here, and discussion in the Guardian (quoting this post) here.

Including social rights in constitutions is always problematic.  This is proposed in Bulmer’s Model Constitution as well as now by Salmond.  No matter how one qualifies it – a common formula, followed by Bulmer, is to refer to a right ‘as implemented by law’, with the intention of subjecting the safeguard to the policies determined by the legislature (but also making the

Guardian ‘Comment is Free’ piece on the SNP, NATO and nuclear weapons

I’ve a piece in today’s Guardian Comment is Free following the close vote at the SNP’s conference in Perth in favour of an independent Scotland joining NATO.   The text of the resolution proposed by Angus Robertson MP and Angus MacNeil MP is here (but not, it seems, on the SNP’s own website).  The vote has been accompanied by declarations – by Alex Salmond on the Andrew Marr Show, and by a vote due at the party’s next National Council meeting – that not only would an independent Scotland be non-nuclear, it would positively outlaw nuclear weapons.  This is a problematic policy for the SNP, as NATO is innately a nuclear alliance.  Its ‘strategic concept’ emphasises that, ‘as long as there are nuclear weapons in the world, NATO will remain a nuclear Alliance.’  Membership of NATO would necessarily mean sheltering under the Alliance’s nuclear umbrella, through its mutual defence guarantees, and that would mean those weapons would be on NATO vessels that might sail in Scottish waters (or perhaps fly in Scottish airspace) even if they were never based in Scotland.  Then, of course, there are the issues relating to the UK’s nuclear bases on the Clyde.

The Guardian piece – available here - discusses the vote at Perth and wider issues about nuclear weapons, both for an independent Scotland and in relation to referendum campaign strategies.

It’s also worth noting that the Royal United Services Institute published a paper A’the Blue Bonnets: Defending an Independent Scotland by Stewart Crawford (a former British Army officer and SNP candidate) and Richard Marsh, an economist, last week.  The paper considers the defence needs of an independent Scotland, and what its defence policy might look like.  There’s a news release here, and the paper itself can be found here.  It’s part of a wider programme of work by RUSI on Scotland and defence, which can be found here.

A ‘paving bill’ for the Scottish independence referendum?

In his speech to the SNP conference in Perth (available here), Alex Salmond has suggested that there will be a ‘paving bill’ for the independence referendum.  The principal reason for this is the need for a separate electoral registration process to enable 16 and 17 year olds to vote, as they are would not be included in the register produced by the usual electoral registration process.  That bill, the First Minister says, will be introduced ‘in the next few weeks’.  (I pointed out some of the practical problems with producing a register of under-18s so they could vote in the referendum HERE.)

The idea of a paving bill is a shift in the proposed timetable and programme for the referendum, which has only ever talked of a single referendum bill and not a preliminary paving measure.  It’s a practical step, as otherwise work on this difficult area would have to be postponed until the main referendum bill is passed.  As that is planned to be October 2014, only 12 months before the planned referendum date, that is about when the register would need to be compiled.  Similarly, if those aged 16 and over are to be eligible to vote at the referendum, the register will need to include not only those aged 15 at the date it is compiled, but also some 14 year olds in order to catch those who qualify immediately before the day of the vote.  All this is a task of some administrative complexity – and some cost.

The independence referendum deal

The agreement publicly reached between David Cameron and Alex Salmond for the holding of a Scottish referendum on independence in 2014 marks the end of a long, and unduly protracted, process.  (There’s an account of the latter stages of that by Alan Cochrane of the Telegraph here which strikes me as well-informed if incomplete.)  The agreement itself (with the draft section 30 order at the end) is here.  The news story about it from Number 10 is here, and that from the Scottish Government is here.

The deal itself is a good and necessary one, if not particularly surprising in its content given the various leaks and rumours about it over the last few weeks.  It is also one which delivers each government its key requirements, so in that sense it is a good deal for both sides.  And, of course, it confirms that a referendum will indeed happen.

How we got here

It’s worth remembering how we got to this point.  The SNP fought the 2007 election on a manifesto commitment to hold an independence referendum if elected, and to publish a white paper on independence before then.  That commitment meant that a vote for the SNP would not necessarily be a vote for independence as such, which helped boost support for the SNP so it was able narrowly to win a plurality of votes and seats at that poll, because the election turned into one about ‘valence’ and competence not high-level ideology.  In other words, the

The section 30 order and under-18s voting in a Scottish referendum

There have been indications – leaks, rumours and even official statements – for some time now that agreement on the section 30 order to confer power on Holyrood to call a referendum on independence was near (see BBC News from the last few days here and here, or Severin Carrell in the Guardian in early September here and on Wednesday here).  Indeed, I was on BBC Radio Wales’s phone-in yesterday to talk about the supposed agreement, to find that the latest news was that Alex Salmond was keen to emphasise that a deal had not yet been done, which led to the over-reaction that the deal was off.   In any event, there is to be a meeting between Salmond and David Cameron on Monday, supposedly to sign off the section 30 order.  (The SNP seem to have won a protocol struggle here, with Salmond succeeding in putting himself on the same footing as Cameron, while more junior ministers such as Nicola Sturgeon and Michael Moore do much of the sherpa-ing for the premiers’ summit.)

The order will, apparently, permit a single-question referendum, to be held not later than 2014, and regulated by the Electoral Commission.  The single question and the regulation are points on which the UK Government (and Labour) have been determined since May 2011, and have been conceded by the Scottish Government; the date has been chosen by the SNP, but was initially resisted by the Unionist side.  However, the question of who can vote in the poll has now become an area of controversy, because of the SNP’s desire to ensure that under-18s can vote.  This was a focus of the debate around a private notice question in the Lords on Wednesday, asked by Lord Forsyth of Drumlean (and available here), and again on Radio 4’s ‘Today’ programme on Thursday morning.

‘Comment is Free’ piece on an independent Scotland’s membership of the EU

I was asked by the Guardian’s Scotland correspondent, Severin Carrell, to write something about José Manuel Barroso’s remarks about ‘seceding’ states becoming members of the European Union, which suggested that the EU would not automatically accept Scotland as an EU member as a ‘successor state’ to the current United Kingdom.  A statement by the Commission President is clearly not determinative of what might hypothetically happen in a few years’ time, let alone what view other EU institutions might take – membership issues will fall ultimately to the European Council to decide.   However, Barroso’s statement raises the stakes, raising legal issues (as the ‘state succession’ issue is only part of the legal argument about Scottish EU membership, the other part arising from EU citizenship), as well as political ones.  In it, I try to explain the two lines of legal argument, how Barroso’s statement is unhelpful to the SNP’s referendum strategy, and how it seems to reflect a rather narrow view by the Commission of what the EU is about that would seem to be at variance with other activities of the Commission.

The piece has appeared on the Guardian’s ‘Comment is Free’ site, and can be found HERE.  To judge from the volume of comments, it has excited a good deal of interest.

The rentrée in Scotland

Autumn started with a bang in Scotland: a Programme for Government and plans for new legislation, including a referendum bill; a government reshuffle, and a host of policy initiatives.

First, Alex Salmond’s reshuffle of the Scottish ministerial team.  The official press statement is here.  Key moves are Nicola Sturgeon’s move to Infrastructure, Investment and Cities, along with a constitutional brief; Alex Neil’s swap with her, from Infrastructure to Health; the departure from government of Bruce Crawford and Brian Adam; and the appointment of Humza Yousaf as Minister for External Affairs and International Development.  There has been something of a structural rejig.  The Minister for Transport and Veterans (Keith Brown) and a new post of Minister for Housing and Welfare (Margaret Burgess) are to report to Sturgeon as Infrastructure Secretary.  That may give Sturgeon more time for her constitutional brief.  Yousaf reports to Fiona Hyslop as Cabinet Secretary for Culture and External Affairs.  The new Minister for Parliamentary Business is Joe Fitzpatrick, and is both whip and government business manager, but not a Cabinet Secretary.  Burgess, Yousaf and Paul Wheelhouse (new Minister for Environment and Climate Change) all come from the 2011 intake of MSPs.

In contrast to the rather sprawling nature of the UK Coalition Cabinet (23 full members, its statutory limit, but 32 attendees – and there are also quite a few unpaid junior ministers to deal with the overall limit on the size of the government payroll), the Scottish Government are eager to point out that there are still only eight Cabinet members, and (by my reckoning) 10 non-Cabinet Ministers.  Having a single-party government helps a lot, of course, and the Scottish Government’s responsibilities are much narrower, but even so the difference is telling.

‘Scotsman’ article on Devo More and a referendum

Some time ago – before Easter, in fact – I had an article in the Scotsman about how enhanced devolution can be part of the Scottish independence referendum debate, despite the determination of the Unionist parties to have a single Yes/No question in that vote. In essence, that requires the ‘devolution plus’ option to be developed so that it is a clearly framed and worked-through scheme, with broad political support (from the Unionist parties, and more widely), before the referendum. Otherwise, a pro-Union vote will necessarily be a negative one, and that will make the pro-Union case a much harder one to make.

The article can be found here, and a webchat about the article and related issues I did with Scotsman readers can be found here.

The text of the article as I filed it is below.

‘Devo more’: on the table, even if it’s not on the referendum ballot

The debate about Scotland’s constitutional future will soon come to another punctuation point.  The UK Government’s consultation on an independence referendum will shortly result in the making of a section 30 order (something I outlined in this paper back in June 2011) , and the publication of the UK Government’s summary of responses to its consultation shows pretty clearly that London intends to limit the choice before voters to a single question, not two as sought by the Scottish Government.  The referendum will be a straight choice between the Union and independence, with the possibility of further powers afterward.

This position suits the Unionist parties, if not the SNP.  Quite a number on the Unionist side are opposed to any extension in the scope of devolved powers.  Many others support more devolution, including the Liberal Democrats and many in Labour, but are not clear what that means.  Politically, the Unionist side thinks it has a better chance of winning a Yes or No referendum than one offering several options – what one might call an ‘excluded middle’ strategy.  This is essentially a negative approach, and contrasts with the positive one of the SNP.

Powers to legislate for a Scottish independence referendum

I spent Thursday morning at a conference in Edinburgh organised by The Scotsman about a Scottish independence referendum.  There’s a report of the event from Eddie Barnes here.  As I noted earlier, the star turns were Michael Moore MP, Secretary of State for Scotland, and Bruce Crawford MSP, Cabinet Secretary for Parliamentary Business and Government Strategy, though unsurprisingly, there wasn’t much agreement between the two politicians.  Moore emphasised the need for clarity in the referendum proposition and the question; Crawford pointed out the array of commissions and groups looking at ‘more powers’, and questioned how Scottish voters could take seriously such an offer when it was so unclear.  One of the few points on which they did agree was to applaud the choice of Edinburgh as home for the new ‘Green Investment Bank’ (and see the discussions by David Maddox here and here of the politics behind that decision).There were, however, two points on which Crawford seemed to make significant statements.

The first concerned regulation of the referendum. The Scottish Government now appears to accept that the Electoral Commission should not just regulate the conduct of the referendum campaign including donations (which it accepts in its referendum consultation), but also discharge its usual function of advising on the ‘intelligibility’ of the question – which involves extensive testing of its wording with focus groups to eliminate possible sources of misunderstanding.  When it published its consultation paper  it limited this part of the Commission’s role, saying that its proposed ballot paper had been designed to comply with Electoral Commission guidelines, and that it would take advice from the Commission (and others) about the question – but did not embrace the statutory role in this that the Commission would have under the Political Parties, Elections and Referendums Act 2000. It’s not clear to me if the Scottish Government have agreed that they will be bound by the Commission’s advice, but agreement on the Commission undertaking question-testing addresses many concerns from opponents of independence about the ‘fairness’ of a referendum.

The currency of an independent Scotland: just how ‘independent’ would an independent Scotland be?

Alex Salmond’s Hugo Young lecture in London on Tuesday night was widely trailed, but doesn’t seem to have been very extensively reported after it was actually given.  The trails gave a misleading impression (at least to me) that this was going to be pushing a Devo Max scenario rather than independence.  What the audience actually got was a forceful argument for independence, for economic reasons more than anything else.  Independence would, we were told, give Scotland the chance to shape the economic environment to boost the Scottish economy, and that of its neighbours.  We were also told how closely connected to, and supportive of, England, an independent Scotland would be.  Little of this was very new – it’s been a common theme in SNP speeches, particularly Salmond’s, and Scottish Government documents for some time.

One of the few points that did seem new was Salmond’s position on an independent Scotland’s monetary policy.  He said Scotland would intend to keep the pound sterling and remain part of the ‘sterling area’, through a currency union if possible, through simply adopting the pound sterling if not.  (I briefly canvassed the currency options for Scotland in a short piece for the Scotsman here.)  Salmond pointed out that the Scottish economy resembles that of the UK so closely that this would cause none of the problems of different economic structures or cycles that have underpinned the Euro’s difficulties.  (He’s quite right about this.  Ironically, in most respects, Scotland is the part of the UK that is closest to the UK statistical average.  Wales, Northern Ireland and the regions of England diverge more from the UK mean more than Scotland in almost every respect, other than health.)  George Osborne has said that an independent Scotland wouldn’t be ‘allowed’ to use the pound, though Salmond is right to point out that the UK Government can’t actually do that if Scotland chose to adopt the currency of what would be another state, other than by draconian measures that might backfire economically as well as politically and diplomatically.

If there’s a rump UK-Scotland currency union, clearly Salmond’s preferred scenario (he pushed it again at FMQs on Thursday, claiming a rump-UK Chancellor would ‘bite Scotland’s hand off’ for it to keep sterling), it’s open to agree the terms of how that works between the two parties.  Of course there’s no reason why the UK would wish to do that before a referendum, and a soon-to-be-rump-UK Government might well be less inclined to be helpful to a seceding Scotland on this issue than the First Minister thinks it would.  If a currency union could be agreed, that would probably be quite effective from a Scottish point of view.  However, given the disparity in the size of the rump-UK and Scottish economies, it’s hard to see how Scotland would in fact get much of a say in monetary policy decisions driven by English concerns.  Lest anyone think these are purely technical in nature, remember extensive debates through the 1990s and 2000s about how interest rate policies were designed much more to address the working of the housing market in southern England rather than supporting manufacturing industry elsewhere.  (For a different view of how well such a British monetary union would work, there’s a letter in Tuesday’s FT from Drew Scott and Andrew Hughes-Hallett, available here.)

However, there are many reasons why Scotland ‘borrowing’ the pound sterling would be a bad idea.  It means foregoing control over a raft of the powers of a ‘normal’, independent state.  It’s also at odds with what the Scottish Government said about independence in its November 2009 white paper Your Scotland Your Voice, where they emphasised that independence would apply to monetary policy.  It means not just being subject to a predominately English monetary policy, also a sequence of related decisions – most notably, about whether and when to join the Euro.  Adopting sterling as the Scottish currency would hand these decisions back to the UK Government and the Bank of England (both part of what would be a separate state), whether they are done co-operatively through a monetary union or through its unilateral adoption by Scotland.  I raised this issue in the Question and answer session (as did Lord Myners).  Salmond’s response to this on Tuesday was to say that the key issue for Scotland was control of fiscal, not monetary policy.  In other words, the key point of independence is to secure full fiscal autonomy – not the full range of powers that have previously been canvassed as the point of independence.

A fiscally autonomous Scotland would be able to set taxes in order to spur economic growth (possibly at the expense of its southern neighbour) or pay for a different approach to public services, but wouldn’t necessarily be able to make its own decisions about matters relating to other aspects of macro-economic policy such as currency or interest rates.  While these might be appropriate choices for an independent Scotland to make, given its place in the wider world, this is not the image of independence that has discussed before now.  There’s also a question whether the means (becoming independent) match the end (fiscal autonomy).  Indeed, this version of independence increasingly looks like ‘Devo Max’ (or full devolution, as the 2009 white paper called it) – not statehood as it was understood even 20 or 30 years ago.

Whether this is a real shift in SNP policy, or just an off-the-cuff response to a tricky issue, will also become clearer in the coming months.  There will be a good deal more of this sort of thing over the next 2½ years, as the SNP become clearer about what they consider an independent Scotland would look like and do.  For all the arguments about ‘the tide of history’ supporting independence, there’s also a lot of unresolved detail about how independence might actually work.  The Scottish people (and those in the rest of the UK) need clear answers about them before the referendum happens.

UPDATE, 28 January: Perhaps prompted by this post, the Herald today has a story suggesting that the UK Government would, at a minimum, require extensive powers of oversight over an independent Scotland’s budget as a condition for agreeing to a currency union.  That’s available here.  The story is based on an ‘anonymous Whitehall source’, unsurprising given the Herald’s predilection for such stories, and comments by Professor Patrick Minford, once reputedly Mrs Thatcher’s favourite economist.  The story may be more mischief-making than anything, and it’s clearly part of the UK Government’s current strategy of demanding ‘basic answers’ about independence from the SNP.  However, it also illustrates just how far-reaching are the ramifications of the shift in the SNP’s position from their former one that an independent Scotland would take charge of its own monetary policy.