Here is the contribution that Elliot would have made at the Fringe Meeting in Perth on Saturday 1. The constitution was central to the independence Campaign. The Yes campaign claimed that independence would transform Scotland, resulting in a more balanced and prosperous economy, better public services and a higher quality of life for ordinary people. However, simply leaving the United Kingdom would not, in and of itself, guarantee much improvement. An independent Scottish Government would have more control over its own resources and policies, but, equally, the fragile blessings we now enjoy could be lost if an independent Scotland, like many other newly-independent countries before it, were to descend into chaos, ethnic strife, instability, or dictatorship, leaving the country bankrupt and isolated. It is easy to see why opponents of independence took the view that the potential rewards of independence were not worth the risks. They were being asked to give up that which they knew for something that seemed to offer little automatic benefit and some risk of serious systemic failure. Once the symbolism and the emotive appeals to history, identity or nationhood are removed from both sides, the pragmatic case for independence rests on the argument that a Scottish state would better serve the people of Scotland than the United Kingdom has done. All the haivering about policies, currencies, embassies, oil, and whether we would have a few million more or less in the treasury on day one of independence, was – and remains – ultimately irrelevant compared to the key question of whether the institutions of an independent Scotland would be better or worse than those of Scotland in the United Kingdom. If an independent Scotland were to represent the interests of the people of Scotland, protect their rights, and serve their common good through democratic processes, then the people would flourish and prosper, not only economically but also in terms of ethos, culture and character. If, on the other hand, Scotland were to squander resources on vanity projects, if a small, self-gratifying elite were to syphon off our wealth and stash it in secretive foreign banks, if the civil service were to become a reservoir of political patronage – if, in other words, an independent Scotland were to be badly governed – then we would be no better off, and possibly even worse off, than at present. Too many newly independent countries have gone from bad to worse because they have failed to consolidate stable democratic institutions and failed to build an effective state that reflects all of society, responds to public needs, and respects human rights. Even today, successes are rarer than failures. The Economist’s Democracy Index of 2012 (not a flawless measure, but a reasonable one for these purposes) identified just 25 ‘full democracies’ out of 167 states, or 15 per cent of the total number, containing 11.3 per cent of the world’s population. A further 54 countries, containing 37.2 per cent of the world’s population, were classified as ‘flawed democracies’, meaning that while competitive elections took place, sound democratic governance was hampered by human rights abuses, the exclusion of minorities, the weakness of the rule of law, endemic corruption, political violence, or other failings. Consolidating a democratic order is a particular challenge for newly independent states. Authoritarian populism, the capture of state institutions by corrupt oligarchs, inter-communal violence, and erosion of the rule of law, are just some of the risks to which new states are particularly vulnerable. The risks are even greater in oil-rich countries, where the prize of being about to control valuable resources is a strong incentive for foul-play. If the essential contention of the Yes campaign was that the common interests of the people of Scotland would be better served by an independence than by the United Kingdom, their desire to ‘end London rule’ had to be backed by a positive plan for the construction of an effective, stable and inclusive Scottish democracy. This is why the adoption of a written Constitution, far from being peripheral to the independence campaign, was absolutely central to it. Only a clear commitment to a strong Constitution could ensure that a small, corrupt, unaccountable and lawless clique in London would not simply be replaced by a small, corrupt, unaccountable and lawless clique in Edinburgh. Only a strong Constitution could defend the institutions of Scotland against incumbent manipulation, authoritarian backsliding and corruption, and so force the Scottish state to serve the common good rather than the private interests of a few. A Constitution would provide ground rules, above ordinary party politics, for the resolution of political disputes. It would prescribe a framework for the functioning of public institutions, defend the integrity of electoral, administrative and judicial process, and protect the rights of individuals and minorities. As such, only a Constitution could reassure the people that an independent Scotland would not belong to any one person or party, but instead would be the common possession of all its citizens. The change we seek is much more than – and does not solely depend upon – a symbolic change in borders, anthems, flags, or even a change in the geographical locus of power from London to Edinburgh. Independence might or might not be a necessary step towards democracy, depending on the extent to which Westminster is able to either reform itself or to relinquish control over Scottish affairs, but the pursuit of democracy, unlike the pursuit of independence, is not primarily concerned with whether the Union Flag or the Saltire flies over Edinburgh Castle. If democracy is our aim, we cannot be satisfied until we have established a democratic constitutional state in which the rights, dignity and voice of citizens are respected; crucially, however, we could (at least in principle) achieve that satisfaction either in an independent Scotland or in a Scotland that is substantially autonomous within a looser and more equitable Union. Democracy, in contrast to independence, is not a desire for Scotland to be governed by Scots, but a desire to be ruled to the fullest extent practicable by the people of Scotland. To embrace democracy as the objective is to recognise the fact that Scotland has, in almost all internal respects, been governed by Scots for a long time; even before devolution, the day-to-day governance of Scotland has always been performed, in large part, through an autonomous network of judicial, legal, administrative, educational, ecclesiastical, municipal and charitable institutions, which operate solely in and for Scotland, and are staffed, almost exclusively, by Scots. What there was not, however, was much real democracy. The Scots who ran Scotland were not, in the main, chosen by or accountable to the people of Scotland. The state did not belong to the people, but to competing patron-client networks. In consequence, the MPs, civil servants, Edinburgh establishment and Labour party nomenklatura who actually ran Scotland learned to act as intermediaries and courtiers, but rarely as citizens. They were often instinctively fearful of real democracy. In and of itself, independence says nothing about the continuation of power in these hands, nor about questions such as accountability, transparence, meritocracy and good governance. If we make democracy our aim, however, we would thereby commit ourselves to a democratic ideal that can go on illuminating our political life, acting as a standard by which to critique concentrations of power, erosions of rights and instances of nepotism. It centres our attention not just on ‘home rule’, but also on ‘who should rule at home’, and how. Striving for democracy is also a realistic objective in an interconnected world. Legally ‘independent’ states, like Norway and Iceland, continue to work together and to share powers through international organisations that impose limits on their freedom of action. Unless there is a profound change in foreign policy, an independent Scotland would be part of the European Union, the Council of Europe, NATO, the Commonwealth and the British-Irish Council, and, as such, would still have to respond to certain external obligations. These would limit ‘independence’, at least in the strict sense of the world, but would be compatible with democracy, provided they are supported by the people. In the same way, the sharing of certain powers on a United Kingdom-wide basis, if done in a democratic, consensual, equitable way, would limit independence, but would be fully compatible with a commitment to democracy. 2. The Constitutional issue is still relevant, even after the referendum. There are questions of good governance, human rights, representation, participation etc that are as pressing as ever. There are two aspects of this: a. The constitutional status of Scotland with regard to the UK; b. The internal governance and democracy of Scotland. These are united by the principle of Popular Sovereignty derived from the Claim of Right. The national mind, having thus been expanded by the constitutional conversation before the referendum, cannot return to its previous size. The foundational principle of the Claim of Right, that the people of Scotland are sovereign and so can determine the form of government best suited to our needs, stands stronger than ever. The referendum was an endorsement and a confirmation, not a denial, of that foundational principle. We still lay claim to this sovereign and constituent power. It is worth noting, once again, that the Claim of Right was not advanced by ‘nationalists’, but by a civic convention in which the Labour Party, the Liberal Democrats, the Scottish Trades Union Congress, the churches, and other political and civil society organisations played a prominent role. Its principles were not of their own invention, but derived from a long tradition of radical Scottish constitutionalism with roots that can be traced back, through the political theology of the Scottish Reformation, to the contractual kingship of the Declaration of Arbroath. When the Claim of Right was placed before the Scottish Parliament for endorsement, it was voted for by the Labour, Liberal Democrat and Green members, as well as the SNP. The rejection, for the time being, of independence, does not mean, therefore, that we can go back to the old ways of thinking about the sovereignty of the Westminster Parliament. We may choose to govern ourselves as part of a United Kingdom, sharing powers with United Kingdom-wide institutions as we see fit, but only on such terms as the people of Scotland agree to, and only for so long as the people of Scotland wish. Since the people are to be sovereign, there can be no change to the basic ground-rules by which our institutions are structured, or powers assigned, or the rights of the people protected, except by the consent of the people of Scotland. These restrictions and constraints apply not only to Westminster Governments, but also to our own Government and Parliament in Holyrood. They, too, are not sovereign, but mere agents of a sovereign nation. Thus a non-constitutional government that operates without clear and binding rules that have been endorsed by the people of Scotland can no longer be seen as legitimate, whatever the boundaries and flag of the state might be. Whether in an independent Scotland or as an autonomous part of a reconstituted and ‘loosely-United’ Kingdom, a written, supreme Constitution is now recognized in Scotland as an essential expression of our sovereignty and as a safeguard of our liberty.” This commitment to constitutionalism rules out any form of devolution as a lasting settlement. Devolution was designed to delegate powers from Westminster to Holyrood whilst retaining sovereignty in Westminster. ‘Devolution Plus’ and ‘Devolution Max’ focus solely on the degree of devolved powers, but not on the location of sovereignty or on constitutional guarantees. Under any devolved scheme, Scotland would continue to be dependent on Westminster. This would be a violation of the Claim of Right. The principle of the sovereignty of the people means that only a decision of the people of Scotland in a referendum can legitimately define and limit the powers of the Scottish Parliament. Without popular sovereignty, Scotland might enjoy certain rights and powers, but we will not truly possess them. What has been given in devolution, by the grace and favour of Westminster, might just as easily be taken away. This is not an idle fear: the history of Northern Ireland shows that Westminster is willing to suspend or abolish devolved institutions, by unilateral action, when it sees fit to do so. The strategic opportunity for the Scottish national movement is to set out an intermediate position, between independence and ‘devolution max’, that would meet these objectives. In principle, this could, be achieved in either of two ways. The first way, confederalism, involves fundamentally changing the constitutional nature of the United Kingdom, such that the United Kingdom is governed as a democratic confederal union under a written constitution that recognises the rights of all nations and of all citizens. If Scotland is freely and willingly to remain as part the United Kingdom, it must be as part of a very different United Kingdom: one based upon a constitutional foundation that recognises Scotland’s sovereignty and right to self-determination, guarantees Scotland’s autonomy over almost all aspects of domestic policy, and respects democracy and human rights. For some, this intermediate position could be an end in itself, for others, it could be seen as a further step towards full independence in the medium to long term future. 3. Key question is how much the UK can reform itself: That will determine whether we try to reconstitute the UK as a whole, or seek maximal autonomy within it. There are several historical examples of multi-national confederations that have developed complex power-sharing and decision-making structures by which to manage the disparate needs of their peoples. Perhaps the most interesting example is that of the Austro-Hungarian Empire under the ‘compromise’ of 1867. The Empire, which has come close to dissolution during the 1848 revolutions, and had been held together in the 1850s only be repression, decided to reconstitute itself on a more mutual and inclusive basis. It retained a single external identity in international law for the purposes of foreign affairs and defence. Internally, it was divided into two entities: (i) Austria (including the Czech, Slovak and Polish lands, and other parts of the empire outside of Hungary and Croatia) and (ii) Hungary (including Croatia, Transylvania, and parts of what is now Slovakia). Each of these entities was fully autonomous over all matters of domestic law, policy and finance. Each had its own Parliament, its own responsible Government, its own constitutional arrangements, and its own civil service. There was a personal union in the monarchy, such that the titles of Emperor of Austria and King of Hungary were combined. There were just three joint ministries: foreign affairs, war, and finance. These ministers were responsible to the Emperor-King (unlike the Austrian and Hungarian Prime Ministers, who were responsible to their respective Parliaments). Besides these common ministries, there was a Customs Union and common external trade tariff, negotiated between the two Governments, approved by the two Parliaments, and renewed every ten years. There was also a common coinage and a joint national bank, and co-operation on common projects, such as railways and postal services – all of which was negotiated between the two entities on an ad-hoc basis and implemented through parallel legislation. Under such a confederal arrangement, the United Kingdom would be divided into four states: England, Scotland, Wales and Northern Ireland. The House of Commons and House of Lords might continue to sit as the Parliament of England, but only after the permanent withdrawal of the Scottish, Welsh and Northern Irish members. The present devolved Parliaments and Assemblies would become State Parliaments, and would have primary legislative authority over almost all policy areas. The people of each state would then elect delegates to a new Confederal Assembly, which would vote on common laws and policies within narrowly defined areas of confederal jurisdiction. This arrangement has considerable advantages over the more traditional forms of federalism. It would not try to transform Westminster into a federal Parliament, but to relegate it to English matters only, meaning that the English can carry on being governed by hereditary peers and bishops, if they so wish. It would guarantee the long-demanded wish of reformers for ‘home rule all round’ within a loose and consensual Union, which would be highly decentralized both in terms of the extent of powers exercised by each state and in terms of the recognition of the sovereignty of each state. It would ensure ‘English votes for English laws’, but in a balanced and coherent way that does not create complications for the rest of the United Kingdom. The relative size of England would be less problematic, under a confederal than a federal system, since the confederal institutions would have relatively little power over domestic policy in the member-states. England would be one just of four nations – the biggest, for sure, but without the ability to rule over the others, by strength of numbers, on matters affecting their interests. A confederal constitution could not only guarantee Scotland’s democracy, but also provide a means of protecting human rights and promoting political integrity across the United Kingdom. This would be attractive not only in Scotland, but also to democrats in England, Wales and Northern Ireland. However, reaching political agreement on a confederal solution will not be easy. The gap between the constitutional conversations north and south of the border is so wide that anything acceptable to Scotland – at least under an SNP administration – is unlikely to be acceptable to London. This is because confederalism would require change across the United Kingdom, with a new Constitution binding on all its parts. Fundamental restructuring of this type is unlikely to be achieved in the foreseeable future, since the British establishment and English politics have shown no appetite for such radical change at the core. Even through the draft provided at the back of this book shows how it could technically be done, English legal conservatism is too strong to allow the United Kingdom’s conventional system to be replaced by a modern, written, confederal constitution of this type. It is easier, from their point of view, to find bespoke solutions for Scotland than to challenge the core workings of the British State in ways that could undermine privileges. A second line of approach, if confederalism is blocked by reticence in the other parts of the United Kingdom, is therefore to pursue secure autonomy from Westminster on a Scotland-only basis by means of a bilateral settlement between Scotland and the rest of the United Kingdom. To bring about secure autonomy for Scotland, the United Kingdom Parliament could enact a Scottish Autonomy Act, similar in form to the various post-colonial Independence Acts. The effect of this would be to make an irrevocable renunciation of Westminster’s sovereignty over Scotland. That Autonomy Act would contain a schedule setting out an Autonomous Constitution for Scotland, which would become Scotland’s supreme law. The status of the Autonomous Constitution as a supreme law, the main features of which would not be capable of amendment without the consent of the people of Scotland, would provide stability and reassurance all round, protecting Scotland from opportunism by the United Kingdom and ensuring the democratic functioning of Scottish institutions. Creating an autonomous constitution for a relatively small, relatively homogenous national jurisdiction is much easier than trying to turn the United Kingdom into a confederation. Good government is also easier to sustain, and democracy easier to realize, on a Scottish scale than on a British scale. The powers reserved to Westminster under an Autonomous Constitution would be similar to those proposed for confederal institutions; namely, those that are essential to free movement and free trade across the border, and to the maintenance of the United Kingdom as a single state for the purposes of international law (royal succession, foreign affairs, defence, immigration, passports, the currency). It could allow voluntary co-operation in a few other, miscellaneous and uncontroversial areas of service provision, where duplication of regulations and administrative personnel would be unnecessary (e.g. meteorological services, or vehicle licensing). Everything else would be Scotland’s responsibility, including the right to raise and spend all of our own money. This would give Scotland the ability to pursue very different models of economic and social policy to address problems of poverty and inequality, and to fund those policies from our own resources. It would, at the same time, remove any suspicion of being ‘subsidised’ by the rest of the United Kingdom. Scotland would pay a contribution to London for our share of shared services, but Westminster would have no tax-raising powers in Scotland. A more contemporary example of autonomy is Gibraltar. Under the Constitution of 2009, Gibraltar has its own Parliament and Government with full powers over all matters of policy except foreign affairs, defence and security, and with full control over all of its own taxing and spending. The United Kingdom Government is represented by an appointed Governor, who is responsible for external and military matters on the Rock. Gibraltar has no representation in the United Kingdom Parliament, but is represented on an inter-governmental basis, and United Kingdom policies in regard of Gibraltar are determined in consultation with the Gibraltarian Government. In other words, Gibraltar, a colony with a few tens of thousands of people, has more autonomy, and a stronger democratic basis for that autonomy, than Scotland would attain under any of the various forms of ‘devolution-max’ hitherto put forward by the major parties’. Gibraltar shows how a workable constitutional system could be established in a non-independent Scotland, in which foreign affairs, defence, and perhaps a few other incidental matters, are handled by London, while Scottish institutions control everything else. The one obvious flaw of the Gibraltarian Constitution, however, lies in its amending formula. Although the Constitution contains, in its preamble, a clear commitment to the sovereignty and self-determination of the people of Gibraltar, this applies only to the status of Gibraltar with regard to Spain and the United Kingdom; the internal Constitution can be amended simply by Order in Council. In this sense, Gibraltar has autonomy, but the people of Gibraltar do not enjoy sovereign constituent power, since the Constitution, despite having been adopted by referendum, could be amended without their consent. An even better example, for Scotland’s purposes, is provided by the Cook Islands, a chain of Islands in the South Pacific. The Cook Islands remains part of the Realm of New Zealand. The Queen, ‘in right of New Zealand’ is the Head of State, and is represented in the Cook Islands by a ‘Representative’ whose duties are mostly formal and ceremonial. Cook Islanders are New Zealand citizens. Since 1964, however, the Cook Islands has enjoyed full autonomy over almost all matters except for foreign affairs, defence and the issuing of passports, which remain the responsibility of New Zealand. New Zealand, like the United Kingdom, is one of the few countries that lacks a written, supreme Constitution, yet this has not prevented the establishment of a written Constitution for the Cook Islands. The Cook Islands therefore shows that it is possible for Scotland to have a Constitution of our own, even while being in a Union, for external purposes, with a state that does not have a written Constitution. Moreover, the Constitution of the Cook Islands can be changed only by its own amendment formula, which prescribes a two-thirds majority in the Cook Islands Parliament for ordinary amendments, and a two-thirds majority in a referendum in case of the most fundamental amendments. This puts the Cook Islands in a better position than Gibraltar, since, while lacking independence, it enjoys both substantial autonomy and popular sovereignty through the Constitution. Although the technicalities of the constitutional status would be different, Scotland under an Autonomous Constitution would, in practical terms, be in a position not unlike that of the Channel Islands and the Isle of Man, which also enjoy substantial autonomy while still being reliant on the United Kingdom Government for the purposes of foreign affairs and defence, and while still using the pound. The key difference is that Scotland would be ‘inside’ the United Kingdom, while the Channel Islands and the Isle of Man are ‘Crown dependencies’. These examples show that the United Kingdom can be tolerant of substantial autonomy, so long as its military and diplomatic interests are unchallenged. The proposals outlined here – confederation for the United Kingdom as a whole, or, failing that, secure autonomy for Scotland alone within the United Kingdom –offer workable intermediate positions between devolution and full independence. Such intermediate positions would be attractive to moderate Unionists because they would, obviously and visibly, maintain the Union. Scots would still be ‘British’. We would still carry United Kingdom passports. We could still join, and be protected by, the British armed forces. We would still be represented abroad by British embassies and consulates. We would still use the pound. At the same time, moderate supporters of independence cannot fail to recognize that such an intermediate position offers the best possible chance not only for substantial autonomy – with the fiscal and policy levers to needed achieve, if desired, progressive social and economic change – but also for deepening of democracy. The peoples of these islands have stood together in war and peace, and most Scots evidently continue to value (elements of) their British identity. Unfortunately, the old arrangement through which Britishness was made manifest, the ‘Union-State’, did not work to our advantage. Too often, the distinctive voice and interests of Scotland were drowned out, and democracy was stifled by the oligarchic and unresponsive institutions of the United Kingdom. These proposals for an intermediate position, if adopted in a spirit of sincerity, would enable Scotland and the rest of the United Kingdom to go forward together in a partnership of equals, sharing certain powers and responsibilities where this is in our mutual interests, while respecting the liberty, autonomy and distinct interests of each country. While this arrangement would be inferior, in my view, to independence – since it would still leave us without our own voice in the EU, NATO, the UN, the Commonwealth, and would still subject us to the foreign and military policy of a more belligerent neighbour – it might nevertheless be a desirable, pragmatic compromise, at least in the medium term. Confederation or secure autonomy could also allow the strengthening of democracy in Scotland, along the lines proposed in this book and in A Model Constitution, while remaining within a continuing, but increasingly vestigial, United Kingdom. Some of the reforms outlined in the later chapters of this book would be possible only in the context of an independent Scotland, but many are at least theoretically possibly in the context of a confederal United Kingdom or an autonomous Scotland.
Posted on: Tue, 18 Nov 2014 17:21:00 +0000
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