Should Scotland vote for what is best for Scotland?

Kieran Oberman, University of Edinburgh

Kieran Oberman, University of Edinburgh

Kieran Oberman urges us to think ‘what is best for everyone affected by the referendum, wherever they live?’

The Yes and No camps are busy telling us that Scotland will be made better or worse off as a result of independence.  What they both seem to assume is that “what is best for Scotland?” is the relevant question to ask.  But why?  The referendum will have an impact on people beyond Scotland’s borders.  So isn’t the relevant question to ask, “what is best for everyone affected by the referendum, wherever they live?” Clearly, the outsiders who will be most affected are those living in the rest of the UK.  In the event of a Yes victory, politics within the rest of the UK is set for a shake up.  Currently, Scotland sends 59 MPs to Westminster.   Most are Labour; only one is Conservative.  So Scottish independence is likely to shift UK politics rightwards.  This rightward shift is unlikely to take the form sometimes imagined: endless Tory majorities.  Rather Labour and the Liberal Democrats will themselves shift rightwards in search of the new median voter.

This should be good news if you are on the right.  Scottish right-wing internationalists (if there are such people) have good reason to vote yes.  But for those on the left, it should be deeply concerning.  If the left is correct in thinking that right-wing policies worsen social injustice, then Scottish independence is likely to worsen social injustice in the rest of the UK.  Scottish left-wing internationalists may have reason to vote no even if, as the Yes camp claim, Scotland itself would better off on its own.

There is a global dimension to all this as well.  Scotland, post-independence, will not be a major international actor, but the rest of the UK will retain much of its influence.  A rightward shift in UK politics will mean a rightward shift in the UKs approach to foreigners: expect more hostility towards the EU, more loyalty to the US, even tighter immigration restrictions etc.

Left-wing Yes supporters will argue that an independent Scotland will offer a left-leaning role model for others to follow.  Whether Scotland will really be all that left-leaning is questionable. Surveys of political values reveal that Scotland is not actually that different to the rest of UK.  The problem the Conservatives have in Scotland might be due less to their right-wing policies as their perceived Englishness.  But even if Scotland did offer some kind of Scandinavian-style social democracy, the role-model argument seems far-fetched.  If the rest of the world wanted a Scandinavian role model to inspire it, it already has one: Scandinavia.  Moreover, large countries tend to ignore the affairs of smaller neighbours.  The UK’s ignorance of the politics in the Republic of Ireland is rivalled only by the US’s ignorance of Canada.

Some contend that the referendum will actually have little affect on UK politics.  They point out that Scotland has only been decisive in three British elections in the last fifty years: 1964, 1974 and 2010.   Two points on this.  First, three out of thirteen elections seems significant to me.  That is almost one in four.  Second, one only knows whether Scotland is decisive or not after an election.  Going into an election, party strategists must plan for all possibilities.  Given the possibility that missing Scottish votes will prove decisive in a post-independence election, Labour and Liberal Democrats are likely to play it safe and shift right-wards.  The idea that party strategists will simply ignore the loss of dozens of safe seats and plough on as before is hard to believe.

Now to some, all of these considerations are beside the point because they will reject the internationalist approach from the outset.  For them, the question “what is best for Scotland?” is the pervasive question in the public debate for a good reason: it is the relevant question. The idea that Scottish residents should countenance voting for the sake outsiders, while anticipating harm to Scottish livelihoods, will seem preposterous, even treacherous.  Scotland, like any other country, can legitimately put itself first when deciding its own affairs.

I certainly accept that the internationalist approach goes against current orthodoxy, but I want to question whether that orthodoxy is defensible.  For the question remains: what can justify the view that Scots should show greater concern for other Scots than for outsiders?  Every one is human.  Why worry about some human beings more than others, simply on the grounds of their geographical location?

That question is rarely raised in everyday politics, but it as a question that nationalist political theorists have sought to answer.  One of their most powerful arguments rests on an analogy between nations and families.  People are often entitled to do things for their family members that they need not do for strangers.  If your mother is in hospital, it is okay to visit her; you do not have to visit other patients as well. If you want to read a bedtime story to your child, you can do so without incurring the obligation to read to every child.  Families are often entitled to put their members first.

Perhaps nations are like families.  If the analogy holds, then it would seem permissible for nationals to prioritise fellow nationals.  But does the analogy hold?  One thing that seems important about families is that they are (usually) a site of love and intimacy.  It is arguably part of love and intimacy that it involves prioritisation.  By visiting your mother in hospital, you express your love for your mother.  In reading to your child, you experience intimacy with your child.  No such argument from love and intimacy can be made in the case of nationals.  The vast majority of our fellow nationals are strangers we will never meet.  A person who refuses to award her fellow nationals priority status does not thereby miss out on a loving, intimate relationship.

Anti-nationalists, moreover, have their own analogies.  Clearly there are cases in which it is unjust to award one group of people priority status on the basis of a morally arbitrary characteristic.  Racism, sexism and sectarianism are wrong.  What makes nationalism any different?

The left, which often prides itself on its opposition to arbitrary discrimination, has had an uneasy relationship with nationalism.  This is true as much in Scotland as elsewhere.  Johann Lamont, the leader of the Scottish Labour Party, has described nationalism as a “virus that has affected so many nations and done so much harm”.  Strong words.  But if nationalism is to be rejected and internationalism embraced, then the Scottish Labour Party, along with everyone else, should be prepared to accept losses for Scotland for the sake of outsiders.

This article has so far suggested that right-wing internationalists have reason to vote yes and left-wing internationalists reason to vote no.  But let me end here by saying a little to redress the balance.  The SNP are promising the removal of British nuclear weapons from the Faslane naval base.  If they deliver it would add pressure on the UK to scrap its weapons altogether.  Whether that possibility lends one reason to vote Yes depends on how one feels about nuclear weapons.

Moreover, once one adopts the internationalist approach, some of the No camp arguments lose their force.  Consider the argument that an independent Scotland would lose out on being part of a country whose influence is disproportionate to its population size.  From an internationalist, and democratic, perspective, that does not seem such a bad thing.  The UK’s disproportionate influence is unfair – a product of colonialism and power politics.  The UK does not deserve its permanent seat on the UN Security Council, for instance, and were the UK to lose it upon a Scottish exit, as some warn, that should be welcomed, especially if it meant a shake up in which poor countries achieved a greater say.

Finally, and most importantly, while the internationalist approach takes seriously the impact of the referendum on the rest of the world, it does not ignore the impact on Scotland.  Since it is in Scotland that the strongest impact will be felt, an internationalist would be willing to vote against the interests of outsiders, as long as the benefits for Scotland are sufficiently great. This article has proposed an internationalist approach to deciding how to vote, but it has not claimed that that internationalist approach yields any easy conclusions.  On the contrary, the internationalist approach complicates matters further by bringing a range of new considerations to light – considerations that are all too often ignored in the public debate.

Posted in Overseas Perspectives | 2 Comments

Event: The Economics of New Borders: Implications for Scotland

The Economics of New Borders: Implications for Scotland
Thursday, 26 June 2014 at 18:00
St. Cecilia’s Hall, Niddry Street, Cowgate, EH1 1NQ

As the Scottish independence referendum approaches, economic questions have come to dominate the public debate on Scotland’s future. Would a new border affect Scotland’s trade with the rest of the UK and, if so, by how much? What new economic policies could an independent Scotland pursue? And how would independence affect Scotland’s per-capita income and prospects for economic growth?

The School of Economics at the University of Edinburgh, together with the Scottish Institute for Research in Economics (SIRE), is pleased to announce that it will host a public panel discussion on the economics of new borders.

The aim of the event is to showcase what methods economists use to evaluate the possible costs and benefits of independence, discuss the experience of other countries and explore the implications for Scotland.

The Panellists

  • James E. Anderson is a Professor of Economics at Boston College. He is a research associate at the distinguished National Bureau of Economic Research, and serves on the editorial board of the Review of International Economics. Among other topics, his research explores the relationship between trade within and across country borders.
  • Enrico Spolaore is a Professor of Economics at Tufts University. He is a research associate at the National Bureau of Economic Research, and editor of a forthcoming book on Culture and Economic Growth. Among other topics, his research explores the economic determinants of country size.
  • Stephen Farrington is Deputy Director of the Economics Group at HM Treasury, and responsible for the Treasury’s analytical work on the Scotland independence debate. Previously, he served as the head of the economy forecast team at the Office of Budget Responsibility.

The panel will be chaired by Robert Zymek (School of Economics, University of Edinburgh).

Please note participation is free but registration is required due to venue capacity.

To book a space please visit the online registration facility (via Eventbrite): http://tinyurl.com/ohao3zz

Venue details: http://www.ed.ac.uk/maps?building=st-cecilias-hall

Posted in Events | 1 Comment

A New Direction for the Conservatives on Devolution?

Alan Convery, University of Edinburgh

Alan Convery, University of Edinburgh

Alan Convery responds to the Strathclyde Report produced by the Scottish Conservatives, an important moment for the party.

For the Scottish Conservatives, the publication of the Strathclyde Commission report on further devolution marks another significant moment in a long journey for the party. Having passed from strident opposition to a Scottish Parliament to the Calman Commission and lines in the sand, they now have their own set of proposals on devolution. This is significant in two main ways: the Scottish Tories appear to have found a path through the competing ideological demands of their Conservatism and Unionism; and for the first time since the 1970s they have something authentically Tory and positive to say about devolution.

Firstly, the Scottish Conservatives have found it extremely difficult to reconcile two facets of their ideology: a belief in the Union and a Conservative belief in fiscal responsibility. Their interpretation of the demands of Unionism in the 1980s and 1990s led them to oppose the creation of a Scottish Parliament. However, when that Parliament came into being, they then found it difficult think about how a Conservative might improve it. In principle, it would be difficult for a Conservative to support an institution that had so little responsibility for the taxes that it spent. It would surely have been better from the outset to try to reform the Parliament in order to move the political debate in Scotland towards the more natural Conservative territory of the proper balance between taxing and spending. However, many Conservatives still continued to view every new power for the Scottish Parliament as a concession to the SNP and a betrayal of the Union. The Conservatives spent many years trapped by this unreformed ‘Unionism of 1995’. This report may mark the point when the Scottish Conservatives finally free themselves from these ideological knots and start to think for themselves again about devolution.

Although the party is now armed (finally) with an ideologically coherent position on devolution, there is still more to be done. Can the party now match this devolution agenda with an authentically Scottish policy agenda? 

Secondly, pushing their position beyond their support for the Calman Commission and the Scotland Act 2012, the Conservatives now have their own unique devolution offer. Although none of what they propose is strikingly original (having been foreshadowed to varying degrees in the other parties’ commissions and in reports from Devo Plus (http://www.devoplus.com/) and the IPPR (http://www.ippr.org/publications/funding-devo-more-fiscal-options-for-strengthening-the-union)), it is the first time since 1999 that they have deliberated internally and produced their own blueprint. Crucially, the Conservatives have now arguably outflanked Scottish Labour on the issue of more devolution. It will be interesting to see if their thinking has moved on sufficiently to try to take explicit advantage of this position by portraying themselves as the main Unionist party of devolution.

The headline proposal of the report to devolve all income tax fits with the other parties’ reports on further devolution. Indeed, some form of devolution of income tax is the common thread running through all of the proposals. Specifically, the Liberal Democrats also propose that all income tax and air passenger duty should be devolved. The proposals for some welfare devolution also chime with the other parties’ ideas. However, there is one omission that stands out: the report is silent on the issue of the future of the Barnett Formula. Labour propose to retain it; the Liberal Democrats want a reformed system.

Although the party is now armed (finally) with an ideologically coherent position on devolution, there is still more to be done. Can the party now match this devolution agenda with an authentically Scottish policy agenda? If kneejerk Unionism was a 1990s Tory habit that needed to be ditched, then so is recycling English policies for a Scottish context. While most Scottish Tories (and those on the Scottish centre-right) will acknowledge the significance of today’s report, others may feel that it has only taken the party as far as the logical position it really ought to have adopted in 1999.

Posted in Referendum process, campaign and vote | 1 Comment

Who will decide the referendum outcome?

Dr. Nicola McEwen, University of Edinburgh

Dr. Nicola McEwen, University of Edinburgh

Nicola McEwen reflects on reports that voters of non-Scottish origins will play a decisive role in the referendum vote at The Conversation, noting that the emphasis on country of origin in analysing voting intention is misplaced.

The latest ICM poll made delightful reading for the yes campaign the other day. It showed a split of 52/48 against independence (42/39 once we factor the “don’t knows” back in), suggesting that the yes campaign needed only a two percentage point swing to reach a majority. The once buoyant Better Together campaigners look decidedly more worried these days.

There is still a long way to go before the poll in September, but recent polls increasingly suggest that the result may be close. This would make it easy to conclude that should a particular group of people be more inclined to vote yes or no, it would have a decisive impact on the result.

The point is, we can draw many correlations to illustrate the constitutional preferences of different categories of voters. But to do so would shed little light on understanding why people will vote yes or no.

Last weekend Scotland on Sunday suggested in response to the ICM poll that the decisive group in question could be “the 460,000 people who live in Scotland but were born in England” (or at least those 16 and over who are eligible to vote).

The ICM poll suggested that just 28% of them say they will vote yes compared to 58% who intend to vote no. They contrasted this with those born in Scotland who appear to marginally favour independence by 42% to 40%.

But why focus on country of origin? This seems an entirely arbitrary and potentially provocative demographic feature to pinpoint – one which is of little relevance in a campaign in which issues of ethnicity and even national identity are largely absent.

Demographic pick and mix

We can point to any number of demographic characteristics to suggest that a particular group could swing the result either way, and in numbers which would carry much more weight than the 9% of Scots born in England.

What about the 51% of Scots who are women? The same poll indicated that just 35% of women would vote yes compared to 44% of men. Once you exclude the don’t knows, a majority of men in this poll expressed support for independence, but the female vote would produce a no outcome.

Or should we single out the 1.5 million Scots who are older than 65? They are markedly more opposed to independence than any other age group. Or perhaps the decisive group will be the ABC1 voters, only 35% of whom in the ICM poll said they’d vote yes, compared to the 42% of the working and lower-middle class (53% once we exclude the don’t knows) voters.

Or the power to determine the outcome might be seen to lie in the hands of those in the north east or the south of Scotland, who are notably less enthusiastic in their support of independence than those from the other regions sampled.

The point is, we can draw many correlations to illustrate the constitutional preferences of different categories of voters. But to do so would shed little light on understanding why people will vote yes or no.

Parizeau’s faux pas

When in 1995 the voters of Quebec came within a whisker of voting for independence, then premier Jacques Parizeau infamously placed the blame for the defeat on “l’argent puis des votes ethniques” – money and the ethnic vote. That comment, more than the result itself, led to his immediate resignation from a party that had at that time worked hard to promote itself as an inclusive civic nationalist party.

The Scottish National Party has done even more to champion the cause of civic nationalism. With groups such as New Scots for Independence and Scots Asians for Yes, it has long sought to present Scotland as a multi-cultural nation and independence as a project for everyone resident in Scotland, irrespective of where they were born and bred.

The Independence White Paper proposes an inclusive citizenship policy, emphasising that “a commitment to a multi-cultural Scotland will be a cornerstone of the nation on independence”. And it is a credit to both sides in this campaign that neither has sought to play an ethnic card.

Neither has sought to define categories or degrees of Scottishness. We can be confident that this inclusive approach will be carried forward into the period after the referendum, whatever the result. Rocks would melt in the sun before the Scottish first minister expressed a reaction similar to that of the former Quebec premier.

The ESRC Future of the UK and Scotland programme will be conducting an academic survey during and after the referendum to try to understand why people voted yes or no, and the identities, attitudes and events that helped to shape their voting behaviour.

Previous referendum and election surveys would suggest that demographic characteristics – age, region, gender or country of origin – are unlikely to represent the decisive factor.

Posted in Referendum process, campaign and vote | 1 Comment

Reflections on the SNP conference

Professor James Mitchell, University of Edinburgh

Professor James Mitchell, University of Edinburgh

James Mitchell discusses this weekend’s SNP conference in Aberdeen, reflecting on the party’s 80 year history and its future.

The SNP meets in Aberdeen this weekend almost exactly 80 years after its foundation.  There will be many references to the long journey, the many friends lost along the way – no doubt Margo MacDonald will rate a few mentions – and insistence that repaying the debt requires current members to work hard up to the referendum.

Parties are like other institutions (and people) – they love anniversaries.  They adopt a Whiggish view of their history, viewing the past through the lens of today.  The referendum is seen as the inevitable climax of a long struggle for independence that started eight decades earlier.

Its opponents charge it with proposing ‘independence lite’ unaware that in so doing they are assisting the SNP in projecting an image that might be more palatable to Scotland’s rather (small ‘c’) conservative electorate.

There are continuities, not least evident amongst activists who kept the idea alive through generations.  But the SNP’s history has been marked as much by discontinuities.  The SNP of 1934 was on the fringe of the fringe.  Political history is littered with parties that fought to survive and survival invariably involved change.  The most enduring feature of the SNP has been its name.  Even that was questioned at various points.

Douglas Crawford (SNP for Perth and East Perthshire 1974-79) once suggested changing the party’s name but that suggestion found few supporters.  Even Alex Salmond once thought that the party ought to change its name.  His preference was for Scottish Independence Party to ensure its core objective was in its name but he soon abandoned the idea.  Instead, when he was a vice chair of the party in the 1980s he altered the party symbol in minor ways, each time irritating many members.

But even independence has not been the term for the core objective of the party throughout its history.  The party in 1934 compromised on ‘self-government’ and referred to ‘sovereignty’, in an ambiguous effort to draw in wide support.  But ‘independence’ became the common term used.  The party only formally changed its objective in its constitution in 2004 under an important review under John Swinney leadership.  There was a paradox in this change.  The party had shifted its view from Euroscepticism to Euroenthusiasm over the previous decade.  It was moving towards a more sophisticated understanding of the position of states in international politics yet the change appeared to signal a step backwards, towards a more hardline position.

The paradox is easily explained.  Independence operated more as a slogan, a means of mobilizing activists and offering a clear objective than as a fully developed constitutional option. That journey towards a more nuanced understanding combined with attachment to a symbolically sharper term has served the SNP well.  And it was a journey that continued.

The SNP White Paper on independence, issued after it first came to power in 2007, may have used the term independence but there were many references to interdependence. Even a casual reading of the document suggests a rejection of old-style notions of state sovereignty however much ‘sovereignty’ remains a favoured term amongst party activists.  The journey continued with the publication of last November’s White Paper.  Finding anyone in the SNP willing to concede that the prospectus was anything other than independence is a challenge.  Its opponents charge it with proposing ‘independence lite’ unaware that in so doing they are assisting the SNP in projecting an image that might be more palatable to Scotland’s rather (small ‘c’) conservative electorate.

But careful reading suggests that what the SNP proposes might be termed confederal.  In the final analysis the term adopted is less important, though not for activists. What is understood by independence has always been at issue.  How this is interpreted by the electorate will determine whether the SNP’s next conference will involve a massive celebration amidst the hard work involved in negotiations (old-style independence would require far fewer negotiations) or whether it needs to review not only its strategy but also how it conceives of Scotland’s constitutional future.

Posted in Referendum process, campaign and vote | 1 Comment

Constituting Scotland: a Retreat from Politics?

Dr Steven Tierney, University  of Edinburgh

Dr Steven Tierney, University of Edinburgh

Writing at the Scottish Constitutional Futures Forum, Stephen Tierney discusses the prospect of an interim constitution in the event of a yes vote.

The Scottish Government has recently announced its intention to introduce a draft Scottish Independence Bill into the Scottish Parliament which will set out an interim constitution for Scotland in the event of a Yes vote in September’s referendum. It will also describe the process by which a permanent written constitution will be drafted following the Scottish Parliament elections in 2016. The announcement by Deputy First Minister Nicola Sturgeon that this latter process will be participative and collaborative is to be welcomed, as is the Government’s commitment to the principle of the sovereignty of the people. In this article, however, I wish to challenge the modern inclination to embed more and more values beyond the reach of legislatures, arguing that popular sovereignty is best maintained by modest constitutional arrangements which leave as many policy choices as possible to elected parliaments.

As yet of course we don’t know what the final constitution will contain, but if Scotland does become independent it will do so at a time when more and more countries are opting for ever more elaborate written constitutional documents. It seems that this fashion is likely to rub off on any constitutional convention established to draft a Scottish constitution.

Once the essential organs of government have been established, why not leave the democratic will of the people, expressed through their Parliament, to shape policy for the new state? It seems strange that the newly won autonomy of an independent people should be immediately truncated by the deep entrenchment of a highly partial set of policy preferences.

The Scottish Government in its White Paper, Scotland’s Future has already suggested that Scotland’s constitutional structure is likely to be radically different from the current unwritten arrangement of the United Kingdom, entrenching issues as specific as a minimum standard of living, a ban on nuclear weapons and environmental protections. In this desire it is not alone; many constitutional activists at UK level would love such an opportunity to turn the UK constitution into a rigid structure of supposedly settled values, and who knows, Scottish independence may well provide that opportunity should the break up of the state prompt a moment of fundamental constitutional reconstruction also at UK level.

I should say immediately that my argument is not against a written constitution for Scotland per se. In the event of independence some form of foundational written document will be needed to replace the Scotland Acts of 1998 and 2012; even if an unwritten constitution were considered desirable, it is simply impossible today to replicate the conditions under which the UK Parliament acquired its authority. The powers of the Scottish Parliament and Scottish Government will require to be defined, as will the court structure, its hierarchy and the limits of its jurisdiction. A proposal to make provision for local government (proposed by the White Paper) would also fit within this model of a limited, institution-framing constitution; all of which would serve as a democracy-facilitating rather than a democracy-constraining set of provisions. But is it necessary to go beyond such a minimal constitutional model which would still leave policy choices to the new parliament? A new constitution will be needed, but it does not require to contain detailed policy issues which should rightfully remain the preserve of the elected parliament.

Notably the White Paper anticipates a document that will collate a very broad range of principles and detailed policies. For example:

  • entitlement to public services and to a minimum standard of living;
  • protection of the environment and the sustainable use of Scotland’s natural resources;
  • a ban on nuclear weapons being based in Scotland;
  • rights in relation to healthcare, welfare and pensions;
  • children’s rights; and
  • rights concerning other social and economic matters, such as the right to education and a Youth Guarantee on employment, education or training.

And this captures only a few of the policy preferences that will be put on the table during any drafting process. Certainly all of these issues will be for any constitutional convention drafting the constitution to determine, but the very fact that the White Paper considers such detailed policies to be appropriate for constitutional protection will serve to invite others to put forward their particular agendas and preferences, and these may well find their way into a new constitution, no matter how specific, contingent and deeply contested they may be.

I would like to sketch very briefly six key concerns with such a detailed model of constitutional codification:

  • legitimacy
  • judicial supremacy
  • rigidity
  • the stifling of political debate
  • a marginalisation of the political power of citizens, and
  • the creation of a constitutional battleground.

First, it seems highly questionable from the perspective of democratic legitimacy that the first generation of post-independence Scots should take upon themselves the power to crystallise a broad range of current predilections – some of which may well be fads – as constitutional principles. This will immediately constrain the decision-making capacity of successive generations of voters across a potentially vast array of policy issues.

Secondly, by constitutionalising specific values and policies, the constitution will significantly ramp up the powers of judges. The authority to resolve disagreements which are currently matters of political deliberation will be handed to a small unelected group which is arguably both unsuited and, in democratic terms, unentitled to determine these issues.

Thirdly, such a constitutional arrangement would bring a radical transformation to the constitutional culture of the country itself. Scots would be leaving what is arguably the most flexible constitutional system in the world and creating potentially one of the least flexible. It is fashionable (mainly among academics) to criticise the UK constitutional system precisely because of its unwritten form and the concomitant privilege given to the Westminster Parliament as sovereign law-maker. But this model has worked very well over several centuries, allowing the UK body politic to adapt itself smoothly to new developments: the creation and amendment of the devolution settlements for Scotland, Wales and Northern Ireland since 1998, and the conclusion of the Edinburgh Agreement paving the way for the independence referendum, being good examples. The principle underpinning parliamentary supremacy is a sound one: it is for Parliament, elected by the people, to debate and determine how law should manage competing political and moral values. If Parliament later changes its mind, this legislation is open to amendment or repeal by the same process. A written constitution replaces this with a form of rigidity which could lead to constitutional stasis. Furthermore, we also don’t know how deeply entrenched the new Scottish constitution will be because the convention which will draft the constitution will no doubt also determine its amendment procedure. But there is now a tendency around the world to make certain constitutional provisions virtually unamendable. At the very least, any issue given constitutional protection in a new Scottish state will be very hard to shift; that after all is the point of constitutional entrenchment. One mechanism which does serve to keep the people involved in constitutional deliberation is the referendum. It will be interesting to see what role, if any, is intended for referendums in the process of constitutional amendment under any new arrangements.

Beyond this, there is a danger that a highly detailed constitution can serve to supplant, and in so doing foreclose, political debate. Later attempts to amend issues which have been accorded constitutional protection will not only be difficult in practical terms but could be burdened with the stigma of illegitimacy. A constitution is not, after all, merely a regulatory device. It sets out the values of the state (particularly when it is a new state), and in doing so can help to shape the public identity of citizens. Once something is entrenched in a constitution it can become reified as a moral principle that transcends transient policy choices; extolled as a metaphysical value, the merits of which are rendered unimpeachable and to which citizens are called upon to owe unswerving allegiance. To campaign to amend such principles can lead to charges of disloyalty to the constitution and the political system itself. Incidentally, another recent move is to suggest that all holders of public office must pledge allegiance to the constitution and to its provisions: this is a particularly pernicious innovation, presenting the constitution as modern day Test Act, transforming dissent into heresy. It is to be hoped that this form of intolerance will be disavowed in any move towards a constitution for Scotland.

This raises a fifth issue: why do so many issues need to be entrenched beyond the decision-making competence of ordinary citizens? If matters of wealth distribution, international responsibility and good environmental policy are the preference of a majority of right-thinking people, why not leave it to the Scottish Parliament to legislate in these areas? Is there a failure of trust in the capacity of the people and/or the Parliament of an independent Scotland to make the right decisions? The rush to elevate so many issues beyond the realm of the political would seem to demonstrate a lack of confidence in a new country. Should the first step after ‘independence’ really be a detailed circumscription of the areas over which the Scottish people can, from generation to generation, determine and re-determine their own policies, in order to ‘protect’ them from their own ignorance or poor judgment? If Scots are fit for self-government then surely they are big enough and old enough to build their future through the rough and tumble of the political process.

A final danger is that if a signal is sent that the constitution is intended to micro-manage political and moral values then the constitution-drafting process could well become a battle for the soul of the country. The birth of the state could lead to a culture war resulting in a sharp delineation between victors and losers, and in turn leaving a large number of people feeling excluded from an elaborate, highly specific and deeply partial vision of national identity solidified in the constitution. Such a dispute could be just as acute, or indeed more acute, than the referendum campaign itself. It is not hard to imagine that certain pressure groups will be glad for the opportunity to see their own value preferences privileged within a constitution, placing these beyond the opposition of a simple majority of the people or their elected representatives. This, as I say, is a parlous game and a potentially undemocratic (as well as an entirely avoidable) one. It risks the drafting process being heavily influenced by the most vocal and best organised interest groups, including those which cast their opponents not only as wrong but as bad, thereby inhibiting debate and claiming that political victories which they manage to achieve are thereafter morally unquestionable and immune from any residual dissensus. By this construction it is not in reality the founding generation that gets to play for keeps, but rather activist elites within this generation which may well be both unelected and unrepresentative.

What then of the proposed process by which such a detailed constitution will come about? Until the Scottish Independence Bill is published we must rely upon the White Paper which suggests that a constitutional convention will ‘prepare the written constitution’ following the elections to the Scottish Parliament of May 2016 (some six weeks after Independence Day, set for 24 March). As yet we don’t know much about the proposed convention other than that it is intended to be ‘open, participative and inclusive’ and that the new constitution ‘should be designed by the people of Scotland, for the people of Scotland’. Given the potential that a highly detailed document will emerge from this convention, the composition of this body, who decides on its composition, how it deliberates and how it reaches decisions will each be a vital, and potentially deeply contentious, issue. We should watch keenly to see how the Scottish Independence Bill approaches these issues.

Independent statehood will itself be a massive step. Citizens will have to reorient their focus away from Scotland’s relationship with the UK political system, addressing one another in all their diversity as co-authors of a new polity. It should be a time for modesty and moderation, to take stock and consider the future carefully, to respect other views, to accommodate the deep differences that have always marked Scottish society but which have not been fully vocalised during a period in which attention was diverted from internal identities towards external influence. It will also be a time to heal divisions that may still be sensitive following the referendum campaign. I would counsel against rushing into an expansive process of constitution-building. Once the essential organs of government have been established, why not leave the democratic will of the people, expressed through their Parliament, to shape policy for the new state? It seems strange that the newly won autonomy of an independent people should be immediately truncated by the deep entrenchment of a highly partial set of policy preferences. The September referendum in itself encapsulates the spirit of vernacular politics – letting the people decide. If independence comes about, why would we abandon this inheritance?

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Labour’s Devolution Proposals: More questions than answers

Writing at the Future of the UK and Scotland site, Nicola McEwen examines the proposals put forth by the Labour Party’s Devolution Commission.

The future of the welfare state has been a key feature of the referendum campaign. Against the backdrop of the UK government’s controversial welfare reforms, the Scottish government and Yes Scotland have argued that an independent Scotland would oversee a more progressive, fairer welfare system. The Labour Party’s Devolution Commission proposals, published yesterday, are likely to reinforce the centrality of the welfare issue. But Labour’s welfare state is unmistakably British.

The spectrum of proposals – on tax as well as benefits – rests on a characterisation of the UK as a ‘sharing Union’, where solidarity, risks and rewards are spread across the UK’s nations and regions. The report affirms the Devolution Commission’s belief that the majority of cash benefits – “the core of the Welfare State” – should remain a responsibility of the UK parliament and government. But it proposes the devolution of two key areas of social security – Housing Benefit and Attendance Allowance.

The justification given is that these benefits are closely linked to devolved responsibilities in housing, health and social care. The same could be said for many more areas of social security, from child benefit to pensions, but these are considered central to the pooling of risks and resources within the UK ‘social union’. Housing Benefit and Attendance Allowance also carry symbolic significance for Scotland. Housing Benefit invokes the bedroom tax, which has been used by Labour, the SNP and the Greens to symbolise the iniquities of the UK government’s reforms. Attendance Allowance is closely linked to that most symbolic of policy milestones of the Scottish parliament, free personal care.

At the heart of the debate, then, are competing visions of communities of belonging. For Labour, the boundaries of solidarity and community are British. For the SNP and the broader Yes Scotland movement, ‘sharing and belonging’ – solidarity and welfare – go together more easily within Scotland.

However, the report – or at least the Executive Summary which was published yesterday – is surprisingly lacking in detail about how these policy competences would be transferred, and with what implications.

  • Housing Benefit is one of six cash benefits being merged and replaced by the Universal Credit under the UK Government’s welfare reforms. Notwithstanding the problems which have beset the introduction of Universal Credit, the Commission’s ‘Executive Summary’ report makes no mention of it. How would Housing Benefit be disentangled from the other benefits and tax credits which make up Universal Credit? How would a separate Scottish housing benefit be delivered? On what basis would the revenues to be transferred to the Scottish government to cover one element of Universal Credit be calculated?
  • While most claims for social security benefits made by Scots are processed by DWP offices based in Scotland, Attendance Allowance is not one of these. DWP centres in Preston and Blackpool administer Attendance Allowance for the whole of the UK. Would these centres have separate service agreements with the Scottish government? What would be the impact on their capacity to deliver such a service were it to be designed in different ways in Scotland and the rest of the UK?
  • UK social security policy is implemented through a highly integrated system of processing and delivery, with a centralised, complex IT system which calculates entitlements based upon policies set by the UK government. There is no suggestion in the report of deviating from this system. Could such an integrated system cope with divergent policies from two governments? If so, how and at what cost?

Beyond these specific examples, the report concludes that social security is more properly a responsibility of the UK parliament, as a reflection of “the social solidarity that helps bind the UK together”. Running throughout the report is a vision of Union, and of Britishness, founded upon myths of the post-war welfare settlement. This nation-building rhetoric has been a feature of Labour discourse for many years, and was particularly evident in the speeches and statements of Scottish ministers within the 1997-2010 UK Labour government, especially those of Gordon Brown. It is quite clearly a statement of purpose for a British Union, not a vision of Scottish self-government within that union. In the context of the referendum campaign, and the austerity agenda and welfare retrenchment of the current UK government, it may be a difficult sell.

The debate over which level of government should deliver social security is in part about practical, financial and instrumental concerns, but it is also a debate about the boundaries of community, identity and belonging. Labour’s proposals are an appeal to Britishness and British solidarity. As Gordon Brown noted in his evidence to the Devolution Commission: “We choose to share these risks and the relevant resources with the people with whom we belong. Sharing and belonging go together.” At the heart of the debate, then, are competing visions of communities of belonging. For Labour, the boundaries of solidarity and community are British. For the SNP and the broader Yes Scotland movement, ‘sharing and belonging’ – solidarity and welfare – go together more easily within Scotland.

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Welfare, fairness and independence

Dr. Nicola McEwen, University of Edinburgh

Dr. Nicola McEwen, University of Edinburgh

Writing at The Guardian, Nicola McEwen reflects on whether welfare in an independent Scotland would be more fair.

At its height, the welfare state was a symbol of nationhood and solidarity that helped Scots to feel at home in Britain. Nowadays, much of the core welfare state functions have been devolved to the Scottish Parliament. The one that remains at Westminster – social security – is taking a battering.

UK welfare reform has helped to make welfare and ‘fairness’ a central feature of the independence referendum. For the Scottish Government, independence would mean having the power to create a more equal society. But how distinctive would an independent Scottish welfare state be?

Not very, if we look to last year’s report by the Expert Working Group on Welfare. It recommended Scottish/rUK co-operation to deliver pensions and benefits for a transitional period to avoid any disruption in benefit pay-outs. The report also pointed to the complex arrangements for delivering pensions and benefits: most – though not all – benefits paid to Scots are processed in Scotland, but these DWP offices also process payments for claimants in the north of England, Yorkshire and London. Sharing service delivery would limit the scope for the two governments’ policies to diverge.

The independence White Paper hinted at more radical change. It included a commitment to immediately scrap the bedroom tax and halt the roll-out of universal credit and PIPs, pending the design and implementation of a new system of social protection. The expert group will set out its welfare vision this spring. Expect it to look more Nordic than British.

Change, however, won’t come easy. Independence would not be a ‘year zero’. Scotland would inherit existing institutions and services. These come with vested interests and modes of operation that can stymie change. Shifting resources from one group to another is always difficult politically, especially since rUK would remain Scotland’s main point of reference. The pressure would be for all Scottish public services and benefits to be at least on a par with those in England, if not more generous.

Scottish policy choices would also be constrained by the demographic and economic pressures that have made social protection the highest proportion of government expenditure across Europe. It’s far from clear that the Scottish government would have the fiscal resources and policy freedom to match its welfare ambition.

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Why is Scottish independence unclear?

Dr Steven Tierney, University  of Edinburgh

Dr Steven Tierney, University of Edinburgh

In a post at the UK Constitutional Law Association, Stephen Tierney reflects on outstanding issues on the debate and the role that academics can and should play in bringing people answers.

As commentators we seem to end many of our contributions to the independence debate with the rather unhelpful conclusion that much remains, and will continue to remain, uncertain; a state of affairs accentuated by recent comments on the prospect of currency union and EU membership. This must frustrate those hardy souls who read to the end of our blogs seeking enlightenment. Perhaps then we owe readers an explanation as to why it is so hard to offer a clear picture of how an independent Scotland will be brought about and what it would look like.

As commentators, all we can do is try to offer some objective guidance so that these visions bear closer resemblance to reality than they otherwise might. A modest aim maybe, but no one ever said constitutional change was simple.

In trying to envisage life after a Yes vote it is natural to begin with the Scottish Government’s White Paper published in November 2013 which, at 648 pages, cannot be accused of failing to set out the SNP’s broad vision for independence. But for several reasons we must treat this only as the start of our quest and certainly not as a definitive template for a new Scottish state.

Here are some reasons why:

1. The White Paper is selective

The White Paper is certainly comprehensive but inevitably offers if not a Panglossian then at least an optimistic picture of the future, using evidence that supports the Scottish Government’s case for economic success and relatively easy transition to statehood. Inevitably many of these claims have been subject to contestation, and since they are dependent upon varying circumstances and the cooperation of other actors, not least the UK Government, they cannot be taken to be the last word on independence.

2. Are we sure there will be negotiations?

This is surely the easiest question to answer. The White Paper not unreasonably assumes a process of mutually cooperative negotiations given the Edinburgh Agreement in which the UK and Scottish governments undertook ‘to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom.’ This has recently been restated by a UK Government minister. It can also reasonably be assumed that despite the bluster of the referendum campaign it will be in the interests of the UK to build a constructive relationship with its near neighbour. But there are still many unknowns concerning the negotiation process and its possible outcomes.

3. Who will negotiate?

On the one hand we would expect the Scottish Government to take the lead for Scotland. But let’s not forget the Yes campaign is a broader church than simply the SNP, and different contributors to this, such as the Green Party, will have their own agendas which they would seek to advance in negotiations with the UK. Furthermore, in the White Paper the Scottish Government announced that it ‘will invite representatives from the other parties in the Scottish Parliament, together with representatives of Scottish civic society, to join the Government in negotiating the independence settlement.’ (para 2.7) Who might take part, what influence would these other actors have, and how might their influence re-shape the negotiations? Also, on the UK side different uncertainties present themselves. We assume the UK Government will negotiate for the UK, but with a general election in May 2015 a new government may take a different view of the negotiation process.

4. What if negotiations break down?

An unlikely scenario but one which does add more uncertainty to the mix is the possibility of failure of these negotiations to result in agreement. If negotiations do indeed break down, what then: a unilateral declaration of independence? This possibility has rarely been considered within the Scottish debate but it would raise a new set of issues regarding both the terms of separation between Scotland and the UK, at which point international law would provide some guidance as to the default position, and for Scotland’s status internationally.

5. Will there be a deal?

We can expect a deal at the end, but in light of the ‘personnel’ issues considered at point 3 the terms of any negotiated deal are hard to predict. How many of the goals to which it aspires in the White Paper will the Scottish Government achieve, and on which issues will it have to compromise, not only with the UK but with other parties to the negotiations on the Scottish side?

6. Surely experts can predict the outcome of negotiations?

Given that a UDI is highly unlikely, as commentators we can reasonably focus upon the terms of negotiations, but here voters must be struck by how we suffix our references to the most likely outcomes by restating how many variables are at work. It is no surprise that on the various issues at stake experts will reasonably disagree about different scenarios. As commentators we also have a duty not to enter the debate in a polemical way, using expert knowledge to advance the cause of one particular side. It is important to remain objective, presenting the evidence for the different sides of each argument as best we can.

7. Clarity and simplicity are not synonyms

The subject matter for negotiations could scarcely be more complex – disentangling a state with a highly integrated advanced economy. So many issues will need to addressed together that even listing the topics to be dealt with is a difficult, and inevitably an incomplete, task: the economy, the currency, debt, welfare, pensions, oil and gas, higher education, the environment, defence, the European Union, security and intelligence, borders, citizenship, broadcasting etc. etc. Issues surrounding each of these issues will have to be negotiated. Therefore, there is reasonable disagreement among commentators about the nature of the competence which an independent Scotland would acquire in relation to each of these, and as to the prospects for some degree of on-going cooperation or union with the UK in relation to each area of competence. And even if we commentators can reach some kind of consensus about a particular issue taken in isolation we need to factor in that each is a potential bargaining chip in negotiations. There may well be trade-offs which see some aspects of the Scottish Government’s preferred model of independence subject to compromise in return for other gains.

8. It’s politics, stupid

What would make things clearer? Well the obvious solution to a lot of uncertainty would be agreement between the two governments on a range of issues ahead of the referendum. The Electoral Commission (paras 5.41-5.44) has recommended ‘that both Governments should agree a joint position, if possible, so that voters have access to agreed information about what would follow the referendum. The alternative – two different explanations – could cause confusion for voters rather than make things clearer.’

But this is not going to happen. Uncertainty among voters is an important card for the Better Together campaign. It is simply not in the political interests of the UK Government to work with the Scottish Government to clarify possible negotiation outcomes. And in any case it may not be in the interests of the Scottish Government either should such pre-referendum discussions result in stalemate, thereby serving only to heighten rather than diminish uncertainty before the vote.

9. After independence: designing Scotland’s constitution

Even if negotiations are concluded and independence formally endorsed we will not have a final picture of Scotland’s constitutional future. Scotland will not at that stage have a constitution. According to the White Paper there will be an interim period during which some form of transitional arrangement will be needed. There will then be a Scottish parliamentary election in May 2016, and only after this, according to the White Paper, will a constitutional convention be established to draft a constitution. So many of the proposals set out in the White Paper concerning Scotland’s constitution are contingent upon how this convention is established, how it will draft a constitution, what this will contain, and how it will be ratified (i.e. will it be approved by the Scottish Parliament or by way of another referendum).

And what would the institutions of government in an independent Scotland look like: will the Queen be head of state? Will there be a one chamber or two chamber parliament? Will Scotland have a new constitutional court? The Scottish Government has views on these issues but also accepts they will be for the constitutional convention to determine. And what institutional arrangements would be needed to maintain areas of cooperation or union with the UK? All of these issues will remain to be settled.

10. It takes three to tango

And of course the foregoing issues focus upon Scotland’s relationship with the UK. What of Scotland’s external relations? Issues such as state recognition; succession to international rights, obligations and treaties; and membership of international organisations, all remain to be fully worked out. And most crucially, the European Union presents two huge issues. The first is how Scotland will be admitted to membership, something which remains a focus fordebate, not helped by the bizarre interventions of senior EU politicians. The second issue is surely much more salient and the source of more reasonable disagreement, namely the terms of such admission.

11. What is ‘independence’ anyway?

All of these questions raise a larger issue, namely the heavily integrated nature of the modern nation-state and the web of international relations which bind states within Europe. As the details of the Scottish Government’s proposed model of independence emerge, for example in relation to the currency, what is envisaged is in fact the continuation of important relationships with the UK as well as new and close relations with international partners. But clarity on these points is obscured by campaign gaming. The Yes side is reluctant to voice these aspirations in detail since this will invite the ‘we will never agree to that’ response which we have seen in relation to currency union. This will inevitably mean that much of the detail of what the Scottish Government aspires to will most likely remain unstated at the time of the referendum. The challenge for voters then is a broader one: it concerns how they understand the very meaning of statehood and sovereignty in today’s Europe. The reality today is that any new state emerging from within the EU and intending to remain within the EU will, by definition, instantiate a novel form of statehood which delivers independence but not separation. This, a unique state of affairs, is the factor which poses the deepest analytical challenges to political actors, to constitutional theorists and practitioners, and, since a referendum is the mechanism assigned to determine such an outcome, ultimately to voters.

Is there any point in expert commentary?

Yes of course. There are many technical issues which can be clarified. This will not fully explain how Scottish negotiations will go with either London or Brussels but it can make clearer the issues which will be subject to negotiation.

Secondly, much of the uncertainty stems from the political positions of the two sides: Better Together which does not want to suggest negotiations will go smoothly for the Scottish Government; Yes Scotland which claims that they will. However, the UK Government’s position following the hard reality of a Yes vote is likely to be significantly different from that as stated in the heat of the referendum campaign. Again academics must try to disentangle these two different positions. At the same time they can probe the viability of the claims made by the Scottish Government in its White Paper.

In the end some kind of bigger picture may emerge, albeit through a glass darkly. People when they vote will do so with two rival visions of the future in mind. These will not be perfect predictions of what either an independent Scotland or an on-going UK (we must also remember that a No vote also carries many uncertainties concerning the future) will look like in 1, 5 or 10 years’ time, but they will need to make sense to the people casting their votes. As commentators, all we can do is try to offer some objective guidance so that these visions bear closer resemblance to reality than they otherwise might. A modest aim maybe, but no one ever said constitutional change was simple.

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Welfare policy takes its place in the Scottish policy arena

Richard Parry, University of Edinburgh

Richard Parry, University of Edinburgh

Richard Parry addresses the evolution of Scottish welfare policy, noting that ‘it is clear that UK welfare reform policy has had the unintended effect of knocking social protection like a curling stone into the house of Scottish-driven policy debate’

At the heart of the devolution settlement of 1997 was the distinction between policies devolved to the Scottish Parliament and Government and those reserved to the UK level, which include income transfers between the citizen and the state.  This constrains the devolved system, but also gives a convenient excuse for not taking a position on contested  issues. Above all, there is no need to finance entitlement-based pensions and benefits whose cost might pre-empt on other public services.

Beyond a ‘preserve and defend’ strategy, the Scottish Government has started to articulate its own vision of welfare through its response to the Expert Working Group on Welfare it set up.  This response reflects the lack of a Scottish tradition of debate and philosophy on social protection similar to that in health, education and housing. 

Even before the referendum campaign, the fencing-off of pensions and benefits, hitherto neither defined by separate Scottish legislation nor even a distinct Scottish delivery system, was breaking down. The UK Welfare Reform Act 2012 imposed controversial policies interfacing with devolved areas – in housing, the spare room subsidy or bedroom tax (phrases that define the difference between the designers and recipients of policy); in social care, the Personal Independence Payments that replace Disability Living Allowance; and, in the overall system, Universal Credit, the kind of reckless, over-ambitious big idea about which the Scottish devolved system has been cautious.

Any earlier SNP thoughts that this might be handled passively as part of benefit simplification were swept aside by the insistence of anti-poverty groups that the Scottish Government use its powers to resist the Act. No Legislative Consent Order was proposed; a separate Scottish Act granted the order-making powers consequential on the UK Act; and a Welfare Reform Committee of the Scottish Parliament has been set up. There was keen interest in the manoeuverings of the Northern Ireland Executive to resist the bedroom tax and exploit the long-standing devolution of social security to Northern Ireland within  a parity of approach with the UK. Funding now passed in the Scottish Budget for 2014-15 will use devolved money to mitigate the effects of the bedroom tax rules.

Scotland’s Future makes it clear that an independent Scotland would call a halt to the concept of Universal Credit and the incorporation of Housing Benefit within it. Just as in health, the approach would seek to perpetuate traditional UK welfare state concepts better than England.  Ironically, the SNP’s promise to perpetuate the ‘triple lock’ on pension increases was subsequently endorsed by UK party leaders. Although the present 1% UK cap on annual increases in working-age benefits and (from 2014) child benefit and housing benefit will run out in 2016, the SNP would again take a jump in favour of generosity by promising to ‘ensure that benefits and tax credits increase in line with inflation’ (p159).  David Phillips’s work for the Institute for Fiscal Studies suggests that any generalized case that benefit payments are a drain on the UK at the moment, or on the finances of an independent Scotland,  is decreasingly true.

Beyond a ‘preserve and defend’ strategy, the Scottish Government has started to articulate its own vision of welfare through its response to the Expert Working Group on Welfare it set up.  This response reflects the lack of a Scottish tradition of debate and philosophy on social protection similar to that in health, education and housing. The debate will take time to crystallise; a second Expert Group has been at work and there is interest in the definition of distinctive themes of Scottish welfare system, more joined-up, inclusive and vaguely ‘Nordic’ in character.

All policy is incremental, and it will be difficult to make a rapid impact in terms of substance; the bedroom tax is a warning of the dangers of making any recipients instantly worse off.  But whatever the referendum result, it is clear that UK welfare reform policy has had the unintended effect of knocking social protection like a curling stone into the house of Scottish-driven policy debate.

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