In order to sustain itself, the UK must become a new and different Union


Jim Gallagher reflects on what the Scotland Bill tells us about the Scotland-UK relationship and devolution more broadly. He argues that the Bill presents a challenge to the unwritten constitution, and that now is the time to clarify and codify the territorial aspects to make a statement about how and why the Union hangs together.

The Scotland Bill calls to mind, irresistibly, the aphorism of Lampedusa: if things are to stay the same, they’ve got to change. If it is to sustain itself as a Union, the UK must become a new and different one. The Scotland Bill should be the catalyst for change, but this isn’t only about Scotland.  It is about how the UK understands itself as a territorial state. Like Scotland, Wales and Northern Ireland understand the UK as a voluntary association bound together by common interests and shared experience, in many ways like a federal country. But too many at the centre of the UK see a unitary state with some untidy territorial edges. In essence this understanding is based on a half-baked notion of parliamentary sovereignty. If the UK wants to stay together, this has to change.

The Scotland Bill makes the nature of Scotland-UK relationship more explicit, and implies similar things about Wales and Northern Ireland too. The UK is a multinational state, an association whose membership is voluntary, and that is now very explicit for both Northern Ireland and Scotland. Scotland has always had its own institutions, separate from the UK’s. For first three centuries after the union, these were Scottish, but undemocratic. For the last 15 years, Scottish institutions have been accountable through the Scottish Parliament. The Scotland Bill puts it beyond doubt that this is irreversible. Devolution is permanent, and the Scottish Parliament is master in its own house: its power is paramount in devolved matters, and it controls its own composition. That is the point of the constitutional provisions of the Bill: statements of the obvious if you like, but that will be true of many constitutions–if you know how the institutions work in practice, you will find the constitutional legislation almost banal.

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The Scotland Bill so far: Major constitutional legislation proceeding at the speed of an express train


Plans for expanding the powers of the Scottish Parliament have developed rapidly since the Scottish referendum. Jim Gallagher takes advantage of the pause afforded by Parliament’s summer recess to take stock of the Scotland Bill’s progress, and consider the stability of increased decentralisation in the longer term.

Parliament’s summer recess is a good time to catch breath and reflect on the breakneck process of the Scotland Bill. This is constitutional legislation, but proceeding at the speed of an express train.

Express delivery of new powers for the Scottish Parliament was promised during the referendum campaign. The pro-union parties promised – in what was to become the Smith commission – to agree plans in very short order; then they made ‘The Vow’ about what those plans would contain (in, of all places, the Daily Record). The timetable demanded draft legislation before the general election, and a bill introduced immediately thereafter. All of this has duly happened.

The Scotland Bill is very similar to the pre-election draft, with changes to address points of criticism. It is faithful to the Smith recommendations: Virtually complete devolution of income tax – Check. Assignment of half of VAT – Check. Declaration of constitutional permanence for the Scottish Parliament, and legislative basis for (what we must still call) the Sewel Convention – Check. Devolving £2.5 billion of benefits – Check. So from any perspective this is major stuff.

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Scotland after the Referendum: “It was business as usual that got us into this position in the first place”

October’s seminar at the Constitution Unit entitled The Day After Judgement: Scotland and the UK after the Referendum responded to the vote on independence held in Scotland on 18 September. Professor Jim Gallagher and Professor Iain McLean discussed the future of the UK Union and the devolution of power from Westminster to Holyrood. Julian Payne reports.

At the Scottish independence referendum on 18 September more than 55% of Scots voted in favour of remaining in the United Kingdom. Last week, at the latest Constitution Unit seminar, the repercussions of this decision were discussed by Professor Jim Gallagher and Professor Iain McLean, both distinguished academics with extensive experience in devolution. The speakers emphasised that following the referendum it would be wrong to assume that we can revert to ‘business as usual’. Instead, what is required is a system of devolution for Scotland that is in line with the Union that was defended in the referendum.

The question of a referendum was first raised in 2007 when the Scottish National Party (SNP) formed a minority government in Scotland. Polling data going back to 1999 suggested that an independence referendum was never going to yield a majority yes vote. Why did the SNP say they wanted a referendum when the Scottish Parliament did not have the legal power to hold one and data suggested they were going to lose anyway? According to Prof. McLean, the insistence on a referendum for Scottish independence can be attributed to ‘cheap talk’ – it cost nothing to say and it would be voted down in the Scottish Parliament anyway. However, the election of an SNP majority administration in Edinburgh in 2011 and the promise of a referendum in the SNP manifesto meant that there was no turning back.

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Can Scotland trust Westminster to transfer enough powers to seal it for a No result?

Brian Walker explores whether the pro-Union parties can offer enough devolution to persuade voters Scotland will be given priority if they vote No.

On September 18 voters in Scotland will take a momentous decision based on two sets of uncertainty: on independence which is on the ballot paper and on more devolution which is not. A recent survey by the British Election Study suggests 74% of voters want some or a lot more devolution. Only 35% of them are Yes supporters.  57% of No voters actually want more devolution and 50% of all voters believe it will happen if No wins. This is a rising tide the pro-Union parties are desperate to harness.

And so to counter the clearer appeal of independence, the leaders of Scotland’s pro-union parties gathered on Calton Hill in Edinburgh on 16 June to deliver a joint promise of more devolution in the event of a No vote. David Cameron declared:

All the mainstream pro-UK parties believe in further devolution, so whilst we would want to build consensus for a set of measures and legislation, there is no reason why these changes shouldn’t happen early in the next Parliament.

Lib Dem peer Lord Jeremy Purvis, leader of the cross-party Devo Plus group, enthused that all of the major parties were now ‘clearly and unequivocally supporting a stronger Scotland.’

In early July Purvis joined representatives of the other two parties, Anas Sarwar MP, Deputy Leader of Scottish Labour and member of the party’s Devolution Commission and Peter Duncan, a communications consultant and former Scottish Conservative MP,  for an Institute for Government debate:  Scotland in a changing UK: Unionist visions for further devolution after the referendum. Is  the impression of chiming pro-union agreement justified?

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The size of a Scot-Free House of Commons

The effect of Scottish independence on the United Kingdom is being discussed in all sorts of contexts, such as division of energy reserves, military resources, national debt (and probably even the Royal Yacht Britannia at Leith!).  One interesting effect will be the size of the House of Commons when there are no Scottish MPs.

The present boundary reviews, giving effect to the new legislation reducing the overall size of the Commons, will see 52 Scottish seats out of a total of 600 after the next election, set for 2015.  So, if and when Scotland departs the Union – whether this is before or after the next general election – there will be just 548 MPs.  This will be, I think, the smallest number since the Union of 1707.

Will this be viewed as an added free bonus for those seeking significant cuts in the number of MPs, or an opportunity for restoring any dilution of representation caused by the current cut of 43 MPs in the remaining UK?  Has this even been discussed seriously amidst all the constitutional debates and legislation of the last 2 years, or is this another example of ‘non-joined-up’ constitutional reformism?

How will the relatively few MPs from outwith England feel in a Union Parliament even more dominated by English MPs?  Will it be an English Parliament in all but name?  Might this new scenario arguably justify some greater degree of compensating ‘over-representation’ for Wales and NI?  As noted in my previous post (here), is any of this within the narrow remit of the McKay Commission on the ‘West Lothian Question’, and, even if so, would it want to look at just the Welsh and Northern Irish aspects? And wait until someone raises the ‘Lords WLQ’, ie ‘Scottish’ peers – however defined! – continuing to sit, and to speak and vote on all UK matters….

Thinking about a post-Scotland Union

In a recent post (here), I looked at the future of the Union in the context of the proposed referendum on Scottish independence. This new post does not examine those aspects which are being well-aired by others, such as the mechanics of a referendum (timing, question, franchise, legal basis etc) and implementation of its result (either way) or the economic or political viability of an independent Scotland. What I want to develop briefly from the issues raised in the previous post is the nature of the Union, if Scotland should become ‘independent’ of the UK as presently constituted.

The last few weeks of the constitutional issue being at the forefront of media and political debate have exemplified all the problems and potentialities that have been raised over the years. The debate has ranged all the way from mature, technical examination of the constitutional legalities to what may be characterised as little better than latent prejudice (especially in some reaction ‘south of the border’). But the core contradiction remains, and is being peddled as furiously as ever. That is, the parallel arguments that Scottish independence would ‘destroy’ the Union and that the Union would continue even if Scotland was no longer a part of it. This is muddled by the constant confusion/conflation of ‘England’ and the ‘UK’, and the related problem of the Union question too-often being ‘simplified’, or, more accurately, wrongly described, as a Scotland-England issue. All these unfortunately cloud the serious constitutional debate, both in theory and in practice, eg who should be able to vote in a referendum on Scottish independence, and examination of the various aspects of the ‘West Lothian Question’.

For all in the current Union, especially those outside Scotland, the nature of this Union now, and what it may or may not be after Scottish independence, is a vital issue in informing the current debate. Will it be – as seems to be generally assumed almost by default – a Union of England, Wales and Northern Ireland, carrying on ‘as normal’ save for the absence of Scotland (much as happened re Southern Ireland in last century)? Will the Union break up completely into four separate, independent countries, and if so, how is that achieved – somehow legally automatically as a consequence of Scottish independence (extremely unlikely), or as a result of further constitutional change, such as further referendums in some or all of the remaining parts of the UK? Will there be a constitutional and political redefinition of a post-Scotland Union, perhaps in some form of regional/federal direction, to take account of the even-greater asymmetry that would result (in all sorts of West Lothian, Barnett and other contexts)?

The options’ or ‘solutions’ cannot really be considered in any informed way without considering the nature of the current Union, in ways including those raised in my previous post, such as whether the 1707 Union may arguably be so much the defining and necessary component of the Union such that its severing must lead to the dissolution of the Union and negate the option of a continuing Union of the three remaining countries. In that sense, it is very different consitutionally from the relationship of Wales to the Union, and of Northern Ireland to the Union (the latter even having existing statutory arrangements for leaving the Union).

For example, others have commented on the narrowness of the remit of the new McKay Commission on the ‘West Lothian Question’. On the face of it, it will not be able to contemplate the possibility of Scottish independence and its impact on the Union and the Union Parliament.  While this may seem constitutionally ‘proper’ from a ‘Centre’ perspective, is it politically wise, especially now that we are entering a period where we are, or should be, openly ‘thinking the unthinkable’? For this high-powered Commission to spend its valuable time devising schemes – after, apparently, only consulting ‘experts’, rather than having a full, online public consultation – that may prove redundant, or in need of fundamental reframing, because of any external change such as Scottish independence, is wasteful and short-sighted. Much will depend on whether the Commission looks at each country’s relationship with the Westminster Parliament discretely, or on the basis of a common system with necessary adaptations for each case (much like the 1990s issue of whether we were creating one devolution with three variations, or three individual devolution schemes).  Even if Scotland remains in the Union, there may be a situation of , say, ‘devo-max’ – will the Commission be able to create arrangements that can encompass not only variable devolution across the nations, but also potentially different degrees of devolution within each nation?

Similar considerations apply to other aspects of the Union, such as financing/Barnett.  Will analysis on the basis of a three-nation Union be different from that of a four-nation one?

So let us get on with some real discussion within and between all parts of the Union, such as what Wales or Northern Ireland think of what their positions in a smaller Union or post-Scotland arrangement might be, or what England (and its various sub-divisions) thinks in so far as that is different from what the present Union ‘Centre’ thinks.  We need to hear from the political parties both at UK and national level, for example. The issue is greater than ‘saving the Union’ or ‘losing Scotland’ or whatever.  A Scottish independence referendum should not be treated by the political classes as a one-off event, to be dealt with and then to move on, with any ad hoc responses as may be seen to be required, if any (much like the 1975 EC or recent AV referendums).  The opportunity should be grasped for a ‘no holds barred’ examination of the whole constitutional system in these isles.

For Unionists, this could mean not merely a Union saved, but a better, more acceptable and viable Union, with some of the anomalies and frictions – West Lothian, Barnett etc – diminished or removed.  For others, it may mean an amicable departure of one consituent component of the current Union, or even dissolution of the current Union.  At the very least, a full and frank, informed debate could ‘clear the air’ of much of the tensions and confusions that have grown up over decades and especially since the late 1990s, making any future constitutional development, in whatever direction(s), more not less practicable.

But what Union?

Amid all the renewed discussion of ‘Scotland & the Union’ – inc referendums and West Lothian Commission – one core issue still remains almost unasked, never mind unanswered.  What is this Union that is being fought over?

Put aside all the current legal/political/constitutional arguments, such as the confusion/conflation (whether by deliberate policy or ignorance) about whether an independence referendum would be ‘legal’ and/or ‘binding’.  What it all boils down to is a relatively simple matter – should what we know as ‘the Union’ (calling it the ‘United Kingdom’ adds an extra and unnecessarily complicating layer of argument) continue as it is, and as it has been developing for 300 years, or should it be significantly altered or even dissolved, primarily because of a decision over Scotland’s place within it?

From a realpolitik perspective, this has always been overshadowed by the one, determining geo-political fact of England’s huge dominance within this Union of 4 nations/territories.  To much of the outside world, the UK is ‘England with some other bits added on’, ie a kind of (if it can be so described neutrally) ‘Greater England’, or even to many, ‘England’. More importantly, this is how the Union is also perceived by many internally – whether by nationalists as an argument for ‘independence’, or negligently by the dominant English.  Hence, much talk in political and media circles of ‘losing’ Scotland, in much the same way as Southern Ireland was ‘lost’ last century.

These confusions breed the contradictions that bedevil this whole question, politically and constitutionally.  It allows, for example, claims that the Union is little more than England’s last, domestic Empire.   Is there a distinction between ‘Britain/Britishness’ and ‘England/Englishness’. The feeble and unsuccessful attempts over recent years to identify and define ‘Britishness’ as something distinct from ‘Englishness’ suggest not.  England’s dominating place, due to population etc, makes it difficult for institutions to be established that reflect and represent it alone.   Most such institutions – from the Parliament at Westminster to the BBC’s ‘National’ services – tend to have to double-run as UK and English (or sometime English/Welsh) bodies.  Devolution (especially since the late 1990s) has made this much more complex, whether for good or ill.  The Westminster Parliament and Whitehall Government have to act for the UK, GB, England/Wales/NI, England & Wales and England in various guises – not in itself an insuperable task, but one which doesn’t lend itself easily to public understanding., especially when the Union itself is the issue.

Neat, rational attempts to ‘solve’ these issues – by English regionalism or by some more formal form of federalism – have either failed or not been attempted, because they do not solve the basic asymmetry of the Union – that, in a Union of 4 nations, one is overwhelmingly large and dominant, which has either to be accepted as such (even if creating parallel institutions for it may seem both financially and practically wasteful) or ignored.  So, we have the problem or conundrum of what the Unit calls ‘the English Question’ – how to recognise and represent England within this asymmetrical Union.

Another conundrum or paradox is how to treat the 3 ‘smaller’ parts of the Union.  This seems to be through a Centre policy of keeping them sweet, so that they remain part of the Union, especially through perceived financial advantages (Barnett etc) and ‘disproprotionate’ political means (devolution, Commons ‘over-representation’ etc).  This sends the message that the Union is not one of genuine voluntary members and partners, but rather one where one or more of them have to be ‘kept in’, lest they want to leave the club.  This both undermines the Unionist message of a mutually advantageous and supported Union, and breeds resentment within England of favourable treatment of the ungrateful periphery, raising the more fundamental question within England of whether the price of Union is one worth paying – and, if so, why?

That the Union is one of ‘nations/countries’ rather than of regions is clear, otherwise economic and related questions would apply as much to the disdavantaged areas of England (and their own asymmetry vis-a-vis London and the South-East of England) as they do to Scotland, Wales or NI.  So any constitutional issues appear to be soluble only at the nation/country level, unless some more compelling arguments are made for a viable form of regionalism or regionalised federalism.  The idea of a pan-European solution somehow making the problem go away in some form of ‘Europe of the Regions’ or otherwise – much like the fantasy talk some decades ago about ‘solving’ the Irish Question througfh the virtual withering-away of the Irish border within a developing Europe – seems off the table for now at least.  Ideas of a wider ‘These Isles’ solution that somehow combines the present UK and Ireland in some post-modern not-quite-confederation seem to have receded too, if they were ever really considered.

So, the current real debates on the Union, largely driven by the Scottish aspects, need to focus on what the Union is, and what is wanted from it or from a reshaped version of it, or even from its dissolution.  The contradictions – deliberate or otherwise – in the current debate need to be addressed.  For example, will Scottish independence ‘break up the Union’ or will it mean that a ‘smaller UK’ carries on regardless much as it did after most of the island of Ireland left it?  The immaturity of the current debate, sadly, is such that both arguments can be propounded by the same people at the same time.

Suppose Scotland did ‘leave’ the current Union, is what remains really the Union, however diminished?  The difference between Scotland and Ireland is both historical and constitutional, in terms of the nature of the pre-existing ‘partnership’, with the Scottish Union with England supposedly (depending on your view of history) a far more genuine and voluntary one than was Ireland’s conjunction with the rest of the British Isles.  In that sense the 1707 merger is what fundamentally defines the Union, and so its dissolution must be more than a mere diminishing, but logically must be a dissolution.  Yet, in the absence of any genuine debate of a post-Scotland Union, the conventional assumption seems to be that a Union of England, Wales and NI carries on, with the focus not on it but on the constitutional implications for an independent Scotland, esp in relation to this continuing Union and to the EU and other international/supranational bodies.

And what is the Welsh and Northern Irish perspective on all this? Have they been surveyed on their views of a future post-Scotland Union?  This argument, if discussed at all, seems to be stuck at the level of UK-wide referendums on Scottish independence, which is really another way of saying ‘England should decide’.  That doesn’t really assist anyone.  Would a Scottish departure prompt some rethink within this Union-Lite for further constitutional realignments, both internally and re Scotland, Ireland, Europe etc?  Would it really be a continuing Union or a dissolved Union that somehow nevertheless carries on without Scotland?  Does anyone really think that ‘losing’ Scotland solves all the constitutional anomalies within the current Union, rather than making them worse, by making English dominance over the Union-Lite, and especially its remaining two other members, even greater?

Lots of questions.   Time for some of them to be asked and seriously discussed.