There’s been something of a storm in a teacup brewing over the question of the legality or otherwise of an independence referendum legislated for by the Scottish parliament. For a summary of the legal and constitutional issues, see Alan Trench and Lalland’s Peat Worrier.
From an English perspective, the crux of the matter, for me, is what say, if any, English people get in Scottish independence and the consequential break-up of the Union. I would argue that, at some point in the process, the English (and the Welsh and Northern Irish) people have an absolute right to be consulted. This is because Scottish independence does not just involve the departure of Scotland from a state or country – the UK – that remains intact or retains its existing identity despite that departure. Independence for Scotland would require the Acts of Union between England and Scotland of 1707 to be repealed, which means the end of the United Kingdom – or technically, the end of the ‘Kingdom of Great Britain’ resulting from the 1707 Acts, and hence the end of the ‘United Kingdom of Great Britain and (Northern) Ireland’ of 1800.
No doubt, in the drawing up of the legislation for Scottish independence by the UK parliament, new clauses would be drafted setting out the status and composition of the, or a new, United Kingdom replacing the one dating from 1707 and 1800. And that’s why the people of the new UK state should be consulted: if the very identity and constitutional basis for the country of which you are a citizen is being changed, you have an absolute right to a say on the matter.
So really, I’d now argue we could be looking at three referendums. There are two possible scenarios for this:
The Westminster parliament takes over the process and passes a Bill authorising a Scottish independence referendum in, say, 2012 or 2013. At this point, you could argue that all UK citizens have a right to take part, because the vote involves deciding whether or not to break up the UK. In addition, if you restrict the referendum to Scottish residents, you are already implicitly allowing a large number of non-Scottish people to take part, e.g. the hundreds of thousands of English people who currently live there. By the same token, you are excluding potentially over a million Scots living in other parts of the UK or the wider world. However, if you regard this first referendum as advisory rather than binding, then ‘Scottish residents’ could be a pragmatic approximation to ‘the Scottish people’. Scottish independence may well involve breaking up the UK, but it’s ultimately for the Scots to choose between independence and continuing to be within the Union. But for any subsequent, binding referendum, an attempt should perhaps be made in advance to draw up a more exhaustive list of ‘Scottish nationals’, i.e. those who would become Scottish citizens if independence were carried in a referendum. This is a political hot potato, admittedly, but one that perhaps needs to be grasped: shouldn’t it be only prospective Scottish citizens who should be asked whether they wish to actually become Scottish citizens, which is what Scottish independence would mean for them?
So let’s say a majority voted in favour of the principle of Scottish independence in this Westminster-enacted referendum. There would follow a complicated process of negotiations and discussions leading up to Westminster legislation enacting Scottish independence. As I’ve been saying, there are two parts to this: what kind of independence ‘deal’ is on offer for Scotland; and what new constitutional arrangements are in place for the / a residual UK. (I’ll return to this question below.) These two questions demand two further referendums: one asking the Scottish people to endorse the independence deal; and one for non-Scottish UK citizens to approve or disapprove the new constitutional arrangements for their citizenship and governance. Incidentally, this is another reason why it might be necessary to draw up a more robust list of prospective Scottish citizens, because just as only Scots should resolve the question of Scottish independence, only the prospective citizens of a UK without Scotland should decide whether to create such a new UK.
What would happen, in these binding referendums, if the results were contradictory: if the Scots voted for independence, but the other British people rejected the new UK settlement; or the Scots rejected independence, but the rest of the UK supported the new UK state? In the first instance, logically, Scottish independence goes ahead, and it’s back to the constitutional drawing board for the residual UK. In the second instance, the legislation would have to be drawn up in such a way that the structure, governance and constitution of the new UK would be unaffected by whether Scotland were part of it or not. See further below.
The other scenario is that the Scottish government is allowed to go ahead with its own plans for a referendum some time in 2014 or 2015. In this instance, clearly, it is just for the ‘Scottish people’ to take part – as the referendum is purely advisory and seeks a mandate from the Scots for independence negotiations with the UK government – notwithstanding the caveat expressed above that the term ‘Scottish people’ is only an approximation in this instance. Following a vote in favour of independence, then I would argue that the same process as outlined above should take place: negotiations and legislation towards Scottish independence followed by two referendums – one of the Scottish people only (about independence), and one of non-Scottish UK citizens only (about the constitution and composition of the new UK).
What about the issue of the SNP’s plans to ask two questions in its referendum: 1) whether people want Scotland to be an independent country; and 2) if they do not want independence, whether they want so-called ‘devo max’ or ‘independence lite’: fiscal, and virtually total political, autonomy under the UK defence and macro-economic umbrella? In a sense, if the SNP-organised referendum is purely advisory, I don’t think this matters, as whatever the outcome, there would still need to be negotiations with, and legislation by, Westminster to enact whatever was decided; and, I would argue, there would need to be a second binding referendum in Scotland even for devo max. In fact, it might even be more convenient for Westminster if the Scots opted for devo max, as the UK government could probably get away with not consulting non-Scottish UK citizens about it on the basis that the existing Union remained ‘unaffected’.
Somehow, I don’t think the process in reality will work in such a neat, logical and fair way, because it raises too many intractable questions that neither the Westminster nor Holyrood governments, in their different ways, wish to bottom out. A non-exhaustive list of these questions is as follows:
Who would be eligible to vote in a binding Scottish-independence referendum, and how would a list of eligible persons be drawn up? My contention, as above, is that only prospective citizens of an independent Scotland should vote, including those resident outside Scotland. But how do you determine what constitutes ‘Scottish nationality’?
What is the constitutional justification, and what are the constitutional implications, of these referendums, potentially three in number? The UK government might wish to restrict a binding referendum to Scottish nationals / residents on the independence question, in order not to stir up the issue of popular sovereignty for the residual UK: if the UK government’s legislation on Scottish independence and a new settlement for the remaining UK is dependent on the approval of the people in a referendum, then this involves conceding that, in this instance at least, the people are sovereign, which therefore challenges the whole doctrine of parliamentary sovereignty on which the established system of governance in the UK depends.
The English Question: a referendum on the new UK, minus Scotland, would involve consulting the English people for the very first time regarding the arrangements for their governance, just as the people of the UK’s other nations have already been consulted about devolution, and the Scots would be being consulted about independence. This potentially establishes a legal precedent that there is such a thing as ‘the English people’ who might have the human and legal right to self-determination. In practical terms, any public debate and referendum on the constitution and governance of the residual UK would inevitably force the Union establishment to engage with the English Question in some form or other, even if only because the option of an English parliament would inevitably come up for discussion.
In addition, if the establishment tried to reaffirm the existing constitutional and governance arrangements unchanged – apart from the absence of Scotland – there could be a real possibility that the new UK settlement would be rejected by the English people in a referendum. For instance, if the new UK involved no recognition for a distinct English nation, no English parliament and even no attempt to prevent non-English-elected MPs from voting on English legislation, it is quite likely, in my view, that it would not pass. Maybe even the Welsh and Northern Irish would vote in favour of the new UK while the English rejected it. What then? Better to keep the English Question in the bag by not asking it.
What would the composition of the new UK be, anyway, and what would its constitutional status be? The new UK could no longer formally call itself the ‘United Kingdom of Great Britain and Northern Ireland’, because Great Britain (the product of the 1707 Acts of Union) would be dissolved by Scotland’s departure. But could the new UK even call itself the ‘United Kingdom of England, Wales and Northern Ireland’? I ask this because, at the time of the Acts of Union of 1707, ‘Wales’ didn’t exist as a distinct, separately named kingdom or part of the Kingdom of England: it was fully subsumed into the Kingdom of England, and the Acts of Union involved a union between the two kingdoms of England (including Wales) and Scotland. So if the Acts of Union are annulled, does not ‘Great Britain’ just revert to the two former kingdoms? Where is ‘Wales’ in the equation? Would a new Act have to be legislated actually creating or re-creating Wales as a distinct kingdom? Or would it be a case of ‘re-naming’ the re-emergent, post-Acts-of-Union Kingdom of England the ‘Kingdom of England and Wales’? And how would the English and Welsh people feel about being merged into a single nation and / or kingdom thus named?
And then what would the status of the union with Northern Ireland be? Wouldn’t the 1800 Acts of Union between Great Britain and Ireland also be nullified by any repeal of the Acts of Union between England and Scotland? That’s because the ‘Great Britain’ that was united with Ireland via the 1800 Acts would no longer exist. So would you need a new Act creating Northern Ireland as a kingdom and / or merging it into a single ‘Kingdom of England, Wales and Northern Ireland’? And how would that affect the delicate sectarian balance in the Province?
And then there’s the question of the broader constitutional ramifications of repealing the Acts of Union. These are an integral part of a whole host of foundational acts of parliament that make up the delicate constitutional fabric of the United Kingdom, including, among others, the Act of Settlement of 1701, the Bill of Rights of 1689 and, of course, the Acts of Union of 1800. If you repeal one such act, you might have to repeal or fundamentally amend all the others, so you could easily end up needing to produce a completely new written constitution for the new UK-minus-Scotland. That might not be a bad thing in itself, and it could allow for a more flexible, federal constitutional structure in which the UK state is not completely dissolved or fundamentally altered by one part of it deciding to leave or re-join. This flexibility could enable the Scottish people to have a real choice in their binding referendum between independence and being part of a new UK constitutional settlement that would remain in place without them (thus solving the problem discussed above of what to do if the Scots rejected independence but the remaining UK supported the new constitution that was put in place as a consequence of the Scots voting for independence in the first, advisory referendum).
I feel that, because of the intricacy and potentially unforeseen consequences of repealing any of the parts of this delicate constitutional tissue, this may be considered far too important and technical a matter to be entrusted merely to the people. It could be left to the lawyers, politicians and constitutional experts to resolve. But the net effect could be that profound decisions affecting the nature of our nationhood and our rights as citizens could be decided as it were behind closed doors, and by a sovereign UK parliament that is unwilling to let go of any of its powers even if the original constitutional foundations and justifications for those powers no longer apply.
But the politicians should be extremely wary of tinkering with elements of the UK constitution whose interdependencies and effects even they do not understand – or they could find that their very authority to make such changes is challenged as never before since the English Civil War. For example, the English Act of Union with Scotland explicitly states: “the two Kingdoms of England and Scotland shall . . . for
ever after be united into one Kingdom by the name of Great Britain” [my emphasis]. This Act and the corresponding Scottish Act of Union with England also incorporate the Act of Settlement of 1701. This is the Act that specifies that the king or queen of England, and thereafter Great Britain, cannot be or be married to a Roman Catholic, and states that if this provision is ever broken, “the People of these Realms shall be and are thereby absolved of their Allegiance”. In other words, if today’s parliament takes it upon itself to dissolve the Kingdom of Great Britain that was originally instituted as a permanent settlement (lasting ‘for ever’); and if, in so doing, they repeal the Act of Settlement (which David Cameron has recently talked of doing independently of its impact on the Acts of Union, if such were possible), then it is possible they are guilty of high treason and that the people of England are absolved of any allegiance to the new state, whatever it is called, and to its king or queen.
Consulting the English (and Welsh and Northern Irish) people on what would effectively be a completely new constitution – whether a single written document or a series of fundamental amendments to existing constitutional Acts – could be a way to avoid potentially years of contestation and even violent resistance to a new settlement that contravened ancient, hallowed constitutional provisions setting out the rights and responsibilities of the rulers and the ruled. But precisely because it would stir up such intractable issues affecting the constitution and the composition of the UK, and the status and interrelationships of its different national parts, the establishment is likely to seek to gloss over these complexities, and will try to retain the constitutional status quo without consulting the people of the residual UK. So Scottish independence is unlikely to be done properly, and it could be a messy, protracted and painful process for the residual UK: a far more complex process in fact than Scottish independence would be for Scotland itself.
There could be a more rational alternative: a constitutional convention for the whole of the existing UK to work out and through a set of alternatives for the future constitution and governance of the UK, as such, and its constituent parts, which could include a form of independence and confederation for each of its nations. But politics doesn’t work in such a rational manner, at least not nationalist and unionist politics, which can contemplate only their all-or-nothing objectives, and not a happier, clearer and more constructive means to work out how the people of these isles can live and work together in an uncertain future.
What would it take for such a constitutional convention to become a possibility? An overture from the Westminster government to the SNP administration? A willingness on the part of the SNP to engage in such a process so long as full independence was a serious option on the table from day one? Recognition on the part of the Union establishment that England is a nation and should also be represented as such in the discussions?
It’s an exciting vision, but I can’t see it happening. But the alternative could be much, much worse in so many ways.
Filed under: Act of Settlement, Acts of Union 1707, Acts of Union 1800, Bill of Rights, confederalism, constitution, constitutional convention, constitutional reform, devolution, England, English governance, English nationhood, English Parliament, nationalism, Northern Ireland, parliament, politics, referendum, Scotland, Scottish independence, Scottish independence referendum, SNP, the English Question, UK governance, unionism, United Kingdom, Wales, West Lothian Question | 6 Comments »