Tom Mullen
We can’t rely on this pair. Drawing by Bob Smith
We live in a time of enormous constitutional flux. Little more than a decade after the establishment of a devolved parliament and government we are faced with an even more fundamental set of choices about whether and on what terms Scotland should remain part of the United Kingdom or become an independent state.
Following the signing of the agreement between the Scottish and UK governments on 15 October 2012, we now know that there will be a referendum on Scottish independence before the end of 2014. For Scots, this will probably be the most important political decision we make in our lifetimes. In choosing how to vote, we will be influenced by a range of factors. For some, strong emotions about national identity and culture will be the major influence, but whatever feelings about identity and culture they have, people will also be thinking about the practical consequences of independence. How will it affect Scotland’s economy? How much tax will they have to pay? Would an independent Scotland be able to finance public services adequately?
However, independence is not the only possible option for Scotland’s future governance. Opinion polls suggest that many Scots would welcome further devolution of power short of independence and different degrees of devolution are possible. Given that, it is disappointing that the agreement between the two governments allows only for a single question: ‘yes’ or ‘no’ to independence. The referendum ought to include the option of further devolution of power as an alternative to both independence and the status quo. Disappointing as the exclusion of the ‘third option’ is, it does not mean that it has been ruled out as a serious possibility. Clearly, if there is a ‘yes’ vote, independence is likely to follow, but while a ‘no’ vote might end serious debate about independence at least for a few years, further devolution of power within a UK framework would remain a live issue.
It is not my purpose in writing this article to advocate any particular option for Scotland’s constitutional future. The point I wish to make is that each of the possible options for Scotland’s future government has important legal and constitutional dimensions and voters need to know what the practical consequences of the different options are. However, it would be foolish to rely on the two governments or the political parties to give the voters all the information they need and every shade of reasonable opinion on these issues.
The quality of information and comment may be adversely affected by the partisan nature of the political debates around independence and devolution. This is where the Scottish Constitutional Futures Forum hopes to make an impact. The forum is an initiative of academics from five Scottish law schools (universities of Aberdeen, Dundee, Edinburgh, Glasgow and Strathclyde) though we expect others to join us soon.
The forum has been set up to address the wide range of issues bearing upon the constitutional choice facing the people of Scotland today. We have a unique opportunity to debate and decide Scotland’s constitutional future in a manner that is inclusive, well-informed and open-minded. Over the next two years we will host regular discussions of the key constitutional questions which arise. There will be public seminars and other events (the first on 2 November at the University of Glasgow) and we have set up a website to provide resources for those who want to be informed about the constitutional debate, and, via our blog, up-to-date commentary on the unfolding issues. You can visit our site at: www.scottishconstitutionalfutures.org
So what are the issues? There are issues both of substance and of process: issues relating to domestic law, international law and European law; and issues relating to many specific policy areas (defence, economic policy, the currency, taxation and public spending, social citizenship, human rights and the environment). One of the more controversial issues has been that of whether an independent Scotland would automatically become a member of the European Union or would have to apply for membership.
The political significance is clear. If Scotland were to be treated as if it were already a member state it would expect the terms of membership to be as they are now for the UK, although it might want to consider whether to keep the UK’s opt-outs. If, on the other hand, Scotland had to apply for membership, it is highly unlikely that, as a territory which currently forms part of the European Union, it would not be admitted. However, admission would require the consent of all of the member states. This means that the new Scottish state would have to negotiate the terms of entry which might not be entirely as it would wish.
The SNP’s stated position has long been that an independent Scotland would automatically be a member of the EU. The UK government has stated the contrary view, and Jose Manuel Barroso, president of the European Commission, speaking on BBC Radio 4 recently, appeared to suggest, albeit obliquely, that an independent Scotland would have to apply for membership. Both governments have access to expert legal advice but they also have an interest in the answers to such legal questions. There is a need for an independent forum in which such issues can be debated in a non-partisan way. The SCFF intends to provide this.
The controversy over EU membership is merely one example. Another much debated question has been whether the Scottish Parliament has the legal competence to hold a referendum (although that will not now need to be answered by the courts given that agreement has indeed been reached between the two governments to make an order under section 30 of the Scotland Act 1998 to ensure that the Scottish Parliament does have competence). In addition to technical legal questions about existing law, there is a range of broader constitutional questions to be addressed such as which reforms would be required to existing political institutions – parliamentary, executive or judicial – or which new institutions would be needed in an independent Scotland or in the event of further devolution.
If there is to be a major extension of devolved power rather than independence or the status quo, that also raises serious questions for the UK constitution. These include whether the UK parliament should be reformed to take account of that greater devolution (eg allowing only English MPs to vote on English legislation) or whether we need clearer legal regulation of budgetary and spending decisions to ensure fair treatment of the nations and regions that make up the UK. In fact, there is already provision made for significant further devolution of competence in the Scotland Act 2012. Although the extensions of devolved competence made directly by the 2012 act (eg regulation of air weapons, speed limits and drink-driving limits) are not major, the act also amends the Scotland Act 1998 to include a power in future to devolve ‘a tax of any description’, something which could have important economic consequences.
Although the creation of the forum has been prompted by the prospect of a referendum, it won’t disappear as soon as the referendum has been held. Neither will it focus exclusively on immediate debates over independence and the extension of devolved powers in the next two years. There is an important set of standing questions concerning the control and accountability of government. Even if there were to be no further devolution of power we need to ask ourselves whether Scotland’s existing government institutions are doing a good job of exercising control and ensuring accountability. There is room for doubt that they are and even if independence comes, these questions will be no less insistent.
I said above that this initiative has been promoted by a group of academic lawyers, but we are not an exclusive club. The forum intends to be as inclusive as possible, and to function as a disinterested meeting place for all sections of Scotland’s civil society and political community. Anyone is welcome to attend events or suggest activities or offer contributions to the blog, even – perhaps especially – readers of the Scottish Review.
Tom Mullen is professor of law at the University of Glasgow and a founder member of the Scottish Constitutional Futures Forum
