Signpost on Constitution

A ‘Scottish Question’ time for Scottish questions

In his new pamphlet, James Mitchell highlights the complexities we must comprehend for mature discussion.

Debate over Scotland’s constitutional future is stuck in a rut. Public opinion is roughly even on whether Scotland should be independent. Small movements in these polls are fought for in a form of trench warfare. The constitutional question dominates and Scotland’s constitutional status has become the singular lens through which so much else is discussed. Even in the midst of the pandemic, differences in Scottish and UK Governments’ approaches are seen in terms of the constitutional question. A crude Manichean choice, trading insults, exaggerated and heated claims by-pass an actually wide range of possible political choices. The variety of forms independence or union might take are glossed over in this hyper-adversarial battle.

This contrasts with the extraordinary levels of public engagement and rich discussions that animated the first independence referendum in 2014. And yet, debate on the future of Scotland culminated in a grossly over-simplified binary choice that could never capture all that had been discussed. That choice forced apart many who were otherwise on the same side on a wide range of policies and forced together many who would otherwise rarely agree. While the main campaigners and media focused on the set piece and highly predictable debates, the referendum provoked much wider deliberations.

The appointment of the Smith Commission was an odd postscript to the referendum. In place of a long open debate, a tiny group of politicians hurriedly agreed a scheme without serious public input or ratification. A more open process would likely have come up with a more robust and coherent set of proposals. This is neither a criticism of those involved nor a comment on whether more or fewer powers should have been agreed but that the process after the referendum was the antithesis of what had gone before.

It was never likely that Smith would settle much for long. Indeed, the very notion of the ‘settled will’ is absurd for anything other than the short term. Each generation has grappled afresh with the issues involved. Even without Brexit, the complex fiscal proposals required more time and reflection than had been available to the Smith Commission. Brexit changes the context beyond anything imagined back when the Scottish Parliament was created or even during the 2014 referendum. COVID ought to awaken us to the limitations and weaknesses of the form devolution now takes.

The other ‘Scottish Questions’

The ‘Scottish Question’ is itself a misnomer. There are many Scottish Questions and it is their interaction that is usually meant when talking about it in the singular. At its heart is the relationship Scotland has with the rest of the UK (rUK) but it has broadly four elements (in no particular order): national identity, constitutional preference, party politics, and public policy/ideological position.

It is wholly legitimate to see Scotland’s constitutional status as of paramount importance and all else secondary. Nationalists on both sides of the debate are unmoved by any other considerations. They provide ballast to the debate but the dynamic lies amongst those who are instrumental in their view of the constitution. In other words, those who are more concerned with outcomes than institutional structures have long determined the course of Scotland’s constitutional journey. For instrumentalists, the key question, in the broadest sense, is which constitutional arrangement is most likely to deliver social justice, well-being, economic security or whatever public or private good is desired. And, people have different, including diametrically opposite, goals which need to be taken into account in making sense of the debate. Campaigners might agree on the likely consequences of union and independence but find themselves on different sides of the Yes/No divide because they have very different policy goals.

Of course, part of the answer will depend not only – indeed, far less – on constitutional arrangement than political will and political choices. As we have seen over the last two decades, having the legal capacity to act does not mean that action necessarily follows (or even particular actions necessarily follow). There is much that the Scottish Parliament could have done within existing powers across a wide range of policy areas but has chosen to be cautious under successive Executives/Governments. Equally, there is ample evidence that a different path has been followed than would have been the case without devolution.

A large part of the problem with current debates is that the start and end point is constitutional preference. An alternative approach would be to first consider what kind of Scotland is desired then how this is best to be achieved. There is no weakness in acknowledging different views on how best to achieve a common outcome. This would allow for a mature discussion. There are people with progressive views on both sides of the constitutional question just as there are conservatives and reactionaries on both sides. But portraying those with whom we disagree on how as if we disagree on what is not only unhelpful but dishonest. It should not be beyond us to conduct a respectful debate recognising these distinct dimensions. It would also help insulate much current policy debate from the heat of the constitutional question.

Scotland’s constitutional status will never be ‘resolved’ in the sense of being settled for all time. It has always lurked in the background even when it appeared to be settled. Changes in Scottish society and economy drove demands for changes in government and public policy with implications for how Scotland should be governed. Scotland was never assimilated into a greater England and there has never been any serious effort to do so. There have been tensions between those who saw the need for uniformity in service provision and those who thought it necessary to allow for Scotland to pursue its own path.

‘Administrative devolution’ allowed a limited degree of autonomy but only to Scottish Office Ministers appointed by the Prime Minister. It recognised Scottish distinctiveness but not Scottish democracy. But it provided the basis for the new elected form devolution took in 1999. Devolved government provides some autonomy. The creation of the Scottish Parliament owed much to opposition to 18 years of Conservative Governments. It was sold as a means of stopping Thatcherism at the border, as a protective shield. The extent to which devolution today successfully performs that function is part of today’s debate. There is a desire to strengthen the shield and, indeed, to reform it to allow a more ambitiously progressive society. But there is also a belief that a common UK framework, even uniform policies and rights, are necessary to defend and develop progressive policies. This gets to the heart of the issues for those on the broad progressive wing of politics.

Relationships

The classic understanding of sovereignty is that a state has unlimited, undivided and unaccountable power to any higher authority. The rhetoric of sovereignty is a fiction but creates impossible and undesirable expectations. It assumes states can operate in isolation when all states must, in the interests of their citizens, engage with others. The very notion ‘sovereignty’ has mystical roots and has had greater rhetorical value than offering a serious guide to options beyond superficial ones. It proves easier to mobilise people in support of sovereignty than use it as a guide on good government and public policy. Acknowledging and engaging with different and complex relationships is a better way of framing discussion.

A further dimension of the limitations of the binary choice is the failure to appreciate the complexity of relationships involved. Campaign rhetoric might suggest a simple choice between union and independence but, in fact, a vast array of relationships is involved. Nuance is required. The simplicity of a clean break belies these complex relationships. Even the most hostile neighbouring states have some interactions with each other. Brexit should have taught everyone that clean breaks are not possible or, at least, not without massive cost.

Interesting possibilities open up when we consider these debates in terms of relationships rather than simple binary choices. Situations are conceivable in which far greater autonomy exists in some areas while cooperation or even uniformity and shared services exist elsewhere. It’s difficult to imagine Scotland without some common institutions with the rUK such as shared services and deep cooperation. The question is: which areas should be independent, cooperative, shared or uniform? And, crucially, whatever may be decided at any point must be open to challenge and change in the future. Relationships evolve over time. They are never static for long.

Regardless of constitutional status, relationships will continue to exist. If Scotland voted for independence in 2014, institutions would still have been required to manage relations between Scotland and the rUK. Part of the problem is that discussing these relationships is limited when only one party to the relationship engages in debate on their nature. And there is little prospect of serious consideration in the heat of a referendum. Discussion that would normally be conducted amicably on such relationships become part of the campaign as was witnessed when opponents of independence claimed to oppose a common currency, against their own best interests, in 2014.

A distinction needs to be made here between formal legal independence and meaningful autonomy. A polity may attain so-called ‘sovereignty’ but for a variety of reasons may be no more autonomous than before. Equally, it might be possible to have considerable autonomy in choosing alternative social and economic paths without having formal independence. Shared institutions or common regimes, involving a diminution or even abnegation of ‘sovereignty’, may empower a polity. Belonging to the EU has weakened member states in some respects but has increased each member state’s ability to deliver wellbeing to its people. As in any relationship, membership involves trade-offs.

In much discussion of inter-governmental relations, there is an emphasis on areas of disagreement and conflict ignoring business transacted on an everyday basis that fails to grab attention because it is not seen as exciting or newsworthy. But serious students of public policy will be aware that much that that goes on that does not attract attention is vital and important work. Focus on the dramas of Ministerial meetings and visits gives a false impression. And, it is difficult to avoid the conclusion that much of the drama is manufactured. Additionally, there is far more to the relationships than those between politicians and officials.

Options

Independence and union come in many forms but this is often obscured in much debate today. While clear legal constitutional definitions of independence exist, these can only be a starting point. We need a much richer debate that recognises this diversity. The possibilities are endless when debate is framed in terms of relationships.

Even options that may not appeal can provoke ideas and open up what has become a stale debate. Amongst the many options that might be considered include what have been referred to as Partially Independent Territories (PIT), confederations, federations and different forms of devolution. But incantation of soundbites on ‘DevoMax’, ‘Devo+’, ‘home rule’ is not so much old wine in new bottle as no wine in new bottles. A case can be made for what the Scottish LibDems refer to as a ‘third way’ but this has barely got beyond a soundbite or series of principles.

Federalism has frequently been mentioned in debates over many decades. It recurs regularly as an option but is rarely developed. As with other options, federalism can come in a number of forms. If it is to become a genuine alternative and not a convenient slogan for those seeking to avoid serious engagement with the issues, then more information will be required on the form and function of the federalism proposed. A key challenge that cannot be avoided, regardless of which federalism might be proposed, is to take this debate beyond Scotland and provide evidence that it has support throughout rUK. Even if there was significant support for federalism in Scotland, it could not be imposed on the rUK. But leaving that aside, there is much in the literature on federalism and rich experience of federalism across the globe to draw upon and inform debate in Scotland.

The UK at present offers a range of intriguing models with the special relationships between London and the Channel Isles or the Isle of Man. As Crown Dependencies, the islands provide residents with UK citizenship. In 1973, the Kilbrandon Royal Commission on the Constitution described them as ‘like miniature states with wide-ranging powers of self-government’, having no representation in Westminster, making ‘annual voluntary contributions towards the costs of defence and international representation by the UK’ and with Westminster not legislating for them without their agreement (and not being members of the EU). Few are likely to be attracted to such an arrangement for Scotland, not least UK Governments especially as far as ‘voluntary contributions’ for services, but this model may provoke thought and debate on other possibilities.

The case of Northern Ireland and the Good Friday Agreement (GFA) also highlights what is possible within the existing UK. There is much that is remarkable about the GFA not least that it brought agreement to a part of the world that had witnessed a deeply entrenched binary divide that was presumed to be intractable not so long ago. The three strands to the Agreement include one addressing the establishment of the Northern Ireland Assembly and executive; another on relations with the Republic of Ireland; and the third on relations with the rUK. Leading authorities on the GFA have noted both its consociational and confederal aspects. There is merit in considering the Scottish Question in terms of strands because they provide evidence of what is possible with some creative thinking.

Confederation has been the constitutional option that dare not speak its name. Yet, that was what senior members of the SNP, along with Plaid Cymru and Common Wealth (a small socialist party founded in 1942 with a handful of MPs briefly) openly advocated in the 1950s. An argument can be made that the Scottish Government White Paper published in 2013 offered confederation rather than independence though the rhetoric surrounding it emphasised independence. Leaving aside semantic debates which can descend into pedantics, the key point is that there is considerable scope for a more nuanced debate on alternatives.

Choosing Scotland’s future

There is one area in which agreement is essential. Agreement is needed on how authoritative decisions are made and will be implemented. Absence of such agreement can only stoke up resentment and grievances. Using raw power to enforce an unpopular policy is dangerous and undemocratic. We now have rules on the conduct of referenda but no clarity on whether or when a referendum can take place. A case for a third option on the ballot paper can be made but that requires far more detail as to the nature of that third option and who would draw up such a proposal. Failure to provide such information means that such an option will not be available. Again, there are various possibilities that can be considered. Research is clear; it makes little sense to use the simple plurality voting system when three options are on the ballot paper for the possibility exists that the option with most support falls short of 50%. There are ways of avoiding such an outcome such as ranking preferences or forms of approval voting but whatever system was adopted would require agreement.

But even more pressing is the issue of what constitutes a mandate for a referendum, whether simple binary or other. The battle on mandates continues with the Scottish Government arguing it already has such a mandate and UK Government insisting equally that it does not. This highlights the absence of clear constitutional rules of the game. The 2012 Edinburgh Agreement between the Scottish and UK Governments might be seen as setting a precedent that an overall majority in Holyrood is a mandate but precedents can count for little in the UK constitution. While constitutional conventions may be, as a leading scholar once stated, ‘somewhat vague and slippery – resembling the procreation of eels’, they are as good as it gets under the UK constitution and some new convention is needed. The nearest equivalent is the Addison/Salisbury Convention in which it was agreed after the 1945 election that the Lords would not block any legislation passed by the Commons that had been set out clearly in a manifesto of the elected party. An overall majority achieved at a Holyrood election would be more challenging given the electoral system but is a likely contender for cross-party agreement.

Conclusion

Ensuring that the proportions of light and heat are balanced more in favour of the former will be challenging in our hyper-adversarial politics. Heated assertions put off many voters and are all too often substitutes for lack of answers. There are many people, perhaps a majority, who will not change their mind on Scotland’s future split between supporters of independence and the union. This leaves a significant group who will play a decisive part in any decision. But no decision can ever be final. Today’s electorate has no right to disenfranchise those not yet on the electoral register by making a decision for all time. Change is inevitable though change may come slowly, incrementally or in significant and substantial forms. It is all our responsibility to make the information and knowledge for that process of change as robust and rigorous as possible.

James Mitchell is Professor of Public Policy at the University of Edinburgh. His Jimmy Reid Foundation pamphlet, ‘The Scottish Question Revisited’, is available at: https://reidfoundation.scot/publications__trashed/the-scottish-question-revisited-pamphlet/

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