What follows the referendum: the process of negotiating Scottish independence, or of delivering Devo More

Back in May, I gave a lecture at the University of Ulster’s Belfast campus about what might follow the vote in the Scottish referendum. I’m afraid I’ve only now had the chance to tidy that up for wider reading. It’s available on the Social Science Research Network here, or can be downloaded directly HERE. The lecture as a whole is somewhat lengthy (around 10,000 words), so this post picks out the key points.

Perhaps the most important and novel part of the lecture is the second one, where I map out what would follow a Yes vote – the sort of steps needed, particularly on the rUK side to tackle the many uncertainties that will follow. This is a separate issue from that of the strengths of each party in the negotiation, discussed HERE earlier in the week.  This would call for a great deal of imaginative thinking, in the midst of a first-order constitutional crisis. In particular, it seems to me that:

  • The negotiating process needs to move with all due speed, to preserve the democratic legitimacy of both rUK as well as an independent Scotland. There is no good reason for rUK to seek to prolong the process, and plenty of reasons for it not to.
  • The 2015 UK General election presents grave problems for that – the time lost to campaigning in an election and briefing a possible incoming new government means it will be impossible to make a proper start in negotiations before June 2015, since even provisional agreements reached under the present government might lack support from the new one.
  • One option – which appears to be gaining some support, particularly among Conservatives – is to postpone the 2015 election. But the present government has already been in office for 4½ years, and has no mandate to negotiate something so important to rUK as Scottish independence.
  • A better option would therefore be to hold a general election early, before the end of 2014, so there was both certainty about the composition of the UK/rUK Government and that government had a political mandate for independence negotiations. This would need approval by a two-thirds majority in the Commons, under the Fixed-term Parliaments Act 2011.
  • Those negotiations will not be quick or straightforward – not just because of the difficulty or complexity of the issues to be considered, or how trade-offs might be made between issues, but because they are a matter for parliaments as well as governments. Parliaments will need to approve legislation giving effect to the final outcome, and in Westminster’s case also to authorise much of the necessary preparation on the Scottish side. There will need to be close co-operation between governments and their parliaments, both to ensure proper democratic control and accountability in the process and to simplify the process of approving the agreement at the end of it.
  • A special UK Parliamentary committee, probably mostly meeting in private to preserve the confidentiality of proceedings and negotiating positions, would be an important way of helping to accomplish that.
  • There would also be problems about the involvement of Scottish MPs and ministers in the independence process on the UK/rUK side. It would be contrary to the interests of the people of rUK for MPs sitting for Scottish seats to be involved in that process; as those negotiations affect first and foremost the people of England, Wales and Northern Ireland, only their representatives should be involved – whether in negotiating teams, Cabinet or Cabinet committees when considering independence-related matters, or when those are considered in Parliament. This is the West Lothian question on steroids.
  • The need to ensure a broad consensus of support within rUK for the agreement also means that the Opposition – whoever it may be at the time – will need to be involved in the process. In particular, figures from the Opposition should be included in the rUK negotiating team, and party leaderships kept abreast of all issues under consideration. Again, while this complicates the process of the negotiations, it will simplify the process of approving and implementing an independence agreement.

Much of this sits oddly with usual British constitutional practice. But a Yes vote would trigger extraordinary times, and a need for extraordinary measures to cope with an unprecedented and very difficult situation. (Observant readers may note the considerable overlap between these recommendations and those of the Lords Constitution Committee’s report on Scottish independence: constitutional implications of the referendum – which was published after I gave the lecture.  I do differ with the committee’s conclusions about the compostion of hte UK negotiating team and timing of the 2016 election, however.)
As far as a No vote is concerned, the lecture maps out the programme that was clearly being advanced by the Unionist parties in May, and advanced by the IPPR’s Devo More project: separate party policies, cross-party agreement on the key elements of that, early consideration of them following the referendum and implementation through endorsement in the 2015 election manifestoes. That process would clearly need to include the SNP as well as the pro-union parties, unless the SNP chose not to take part. Since I gave the lecture, the Scottish Conservatives have published their proposals in the form of the Strathclyde Commission report (and I have amended the text to reflect that). Subsequent developments have hardened the commitment of the parties both to the need for joint action and a clear timetable, as well as a Scottish-focussed process to agree the main features of ‘enhanced devolution’.
None of this is about simply ‘giving Scotland more powers’. It is about getting devolution right, so that it enables Scottish voters to have what they have wanted for more than a decade: extensive self-government within the Union. That will benefit other parts of the UK too, and not just by achieving a greater degree of constitutional stability. It will ensure that if Scottish taxpayers choose to spend more on devolved Scottish services, they bear the fiscal consequences of that; this would not be at the expense of taxpayers outwith Scotland.
There is, however, a clear need for that to be followed by a wider process covering the whole UK, and the best way to achieve that would be through a conference of members of the UK’s parliaments and legislatures; MPs, MSPs, AMs and MLAs. This is the idea underpinning the Strathclyde Commission’s recommendation for a ‘committee of the parliaments and assemblies’ . Through their election, these figures all clearly have a mandate and authority that other methods of selection would not give them.
Whatever happens on 18 September takes the UK into new and uncharted constitutional waters. It is important that everyone understands what is likely to follow, and what the world is likely to look like in a few months’ time.

This post also appears on the UK Constitutional Law Association blog, here

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6 Comments

Filed under Referendums, Scotland, Scottish independence, Westminster, Whitehall

6 responses to “What follows the referendum: the process of negotiating Scottish independence, or of delivering Devo More

  1. Pingback: Negotiations after a Scottish referendum Yes vote | DEVOLUTION MATTERS

  2. Robert (evidence based)

    First if the Scots are going to get devo max, won’t it create tensions in Wales and Northern Ireland that don’t have it? They are going perhaps to want it sooner rather than later leading to countless rounds of further negotiation.

    Second, the presence of a special legislature for Scotland with huge power but a hybrid federal and state one in London for England with further exacerbate a peculiar feeling that English people don’t have specific representation for their interests. In Canada there is resentment that Quebec has all kinds of special treatment. French can be used exclusively in Quebec, while both English and French have to both used to some degree in other provinces. This asymmetry has in the past meant the English people feel British and English to be synonymous but Welsh and Scottish people sees things quite differently. I would suggest that regional legislatures be given equal powers – federal systems work effectively provided they have political symmetry. Everyone needs to be able to have a dual set of identities.

    Third, the House of Lord is an incredible anachronism. Now is a suitable time to choose to democratically elect it on the basis of proportional representation. This can allow representation of small parties who are disproportionately excluded.

    Fourth the West Lothian question must be answered. It is already very unfair that English people have not enough say in their own affairs. Either they need their own separate legislature or bills on English matters must be treated differently.

    Fifth, Questions about whether the head of state should be elected should be raised. And privileges based on birth are an anachronism that needs to be erased from the law. At the very least the constitutional powers of the monarch need to transferred to a popularly elected head of state.

    Sixth, a situation like that of Quebec is intolerable. You cannot have Scotland voting every 15 – 20 years on independence until it gains it. And it’s very undemocratic in that it’s not as if such votes would continue after independence. In the future all UK citizens should be consulted about the changes the county. It is not legitimate that English people do not get a vote. I find it disturbing that a 50.1% vote is enough. Surely a super majority should be required – much as like changing a written constitution. If 49.9% of Scots do not want to secede, 50.1% should not have the power to impose such a permanent and potentially ruinous settlement.

    Finally, there are many concerns about government overreach: with respect to privacy, spying, abuse of intellectual property, the degree to which MI5 is above ‘the normal law’, the secrecy of GCHQ, the ease with which freedom of speech is usurped, and the ease with which other basic freedoms are taken away – it is high time for a codified bill of rights written in a manner that they have some bite to them. They need to take priority over all other legislation including that from the EU.

  3. Pingback: What follows the referendum: negotiating Scottish independence, or delivering Devo More | The Constitution Unit Blog

  4. Sir Watkin

    “A better option would therefore be to hold a general election early […] This would need approval by a two-thirds majority in the Commons, under the Fixed-term Parliaments Act 2011”

    Or repeal of the F-T.P.A.- which ironically only needs a simple majority ….

  5. Pingback: Nick Barber: If Scotland Had Voted Yes… | UK Constitutional Law Association

  6. Pingback: I·CONnect – If Scotland Had Voted Yes…

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