Scotland and the Constitution

Stephen Noon and Kezia Dugdale have, with the Centre for Public Policy at the University of Glasgow, just published a major report suggesting a way forward for the constitutional question in the UK that would put Scotland on the same footing as Northern Ireland.

They recommend that:

“the existing mechanism for triggering a unification referendum in Northern Ireland should be the basis for agreeing a pathway to a future independence referendum in Scotland. This would mean that the key test becomes whether or not it is likely that a majority of people would vote for independence in such a referendum. Meeting this test should place a legal duty on the UK govt to agree to a referendum.“

Stephen was the head of Strategy for the Yes campaign in 2014 and Kezia Dugdale was a very senior figure in the No campaign. This is a highly significant report. You can read the report here:
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You can listen to discussion about it from Holyrood Sources here:

It has, in my opinion some real strengths but also some real flaws. I think its worth some of your time to have a look at.

First of all there’s much to commend in this report, in terms of an effort to move things on, and in terms of trying to do ‘reconciliation’ between feuding tribes in Scotland. Noon and Dugdale start their report by saying: “10 years ago, during the independence referendum, we were on different sides of the debate. Today, we are able to find a degree of overlap and agreement on a way forward. We have not fundamentally altered our positions on independence or the Union, but for both of us the experience of the past ten years has been to step away from an either/or, black or white mindset to see if it is possible to conduct the conversation in a different way – starting not from what divides us but on the ground of what unites us.”

They argue: “We recognise also that there were very different experiences of the referendum itself. For some, it was a time of fear and uncertainty, with the prospect of independence viewed as something deeply threatening. For others, it was a time of engagement and empowerment, of confidence and possibility, as people reflected deeply on the sort of country they wanted.”

For me, and we will address this later, this raises the question of what exactly people felt ‘threatening’ about the process of discussing a Scottish democracy? While it is important to recognise different experiences on both sides, it’s also important to drill down a bit on this and ask: what exactly was being threatened? Because just saying “Well I feel British and don’t want anything to change” doesn’t sound like a very credible position. Also, for some on the No side – corporations, landowners, political fiefdoms – what was being ‘threatened’ was their power.

From the Executive Summary:

• The 2016 settlement brought new powers to the Scottish Parliament, especially in tax and social security. These also brought new complexity to devolution in the interaction between devolved and reserved competences and an associated fiscal framework that lacks the flexibility and maturity that a 25-year-old parliament should have.

• Brexit also profoundly reshaped the environment within which our parliament operates, accompanied by new legislation, such as the UK Internal Market Act, that have added to the complexity and eroded the authority of the Scottish Parliament.

• These developments merit a re-examination of the 2016 settlement. They also pose a genuine question for all Scotland’s political parties: is it possible for a future Scottish Government to address some of the fundamental and deep-rooted challenges that Scotland faces without looking at how the current constitutional settlement works, in particular in relation to the fiscal arrangements which shape Scotland’s budget – a budget which, in turn, shapes every aspect of policy?

• The Scottish Government and Scottish Parliament, working with the UK government, should agree to the establishment of a Commission on the Constitution on a model influenced by the recent independent, cross-party and civic commission that took place in Wales. This Commission would be tasked with reviewing the current devolution settlement with a focus on three areas:

1. How it has been impacted by Brexit.
2. Whether, given the current policy challenges and opportunities, the boundary between devolved and reserved competencies is correct.
3. How the fiscal arrangements are working in practice.

• The work of the Commission should include a range of civic and community engagement, as part of a deliberative process that goes beyond politicians and institutions.

It attempts, in Kezia’s words to codify the route through which you leave the Union and attempts to answer the question of whether this is a voluntary Union or not.

The key paragraphs are:

• In addition, we recognise that the issue of Scotland’s future in or out of the Union was not resolved forever in 2014. If the Union is voluntary, upheld by consent and not just by law, there ought to be a recognised, legal and fair process to test, when appropriate, whether the people who live in Scotland can determine whether they want the country to remain in the Union or to transition to independence.
  
• The existing mechanism for triggering a unification referendum in Northern Ireland should be the basis for agreeing a pathway to a future independence referendum in Scotland. This would mean that the key test becomes whether or not it is likely that a majority of people would vote for independence in such a referendum. Meeting this test should place a legal duty on the UK government to agree to a referendum.
• The decision on whether the test had been passed would rest with the Secretary of State for Scotland, but within a set of criteria previously agreed with the Scottish Government. The threshold agreed would be such that it did not act as an insurmountable barrier but rather served to confirm the solidity of pro-independence support.
• Under our proposal, once such a referendum process is triggered, UK ministers would agree a section 30 Order to devolve the necessary competences to the Scottish Parliament, within an agreed framework, following the model of the 2012 Edinburgh Agreement.
• Victory in the referendum would be achieved on the basis of 50 per cent plus one of the votes, following the norm for constitutional referendums in the UK.

Okay.

There are some problems.

First, this account just seems to whitewash or erase the actual power dynamics at play here and act as if we are just working with honest brokers and good faith actors. Recent history suggests otherwise.

Given that, as the authors note (1.2): “Conversations that we had with journalists and political commentators at that time had as their starting point the assumption that the pro-UK side would win comfortably – a reasonable view given that polling in the days running up to the signing of the Edinburgh Agreement suggested support for the Union was at 58 per cent among those certain to vote, with independence backed by just 30 per cent of respondents.”

“Along with the fear of making things worse by blocking a referendum, there was also a sense that the anticipated victory for the pro-UK side would put the question of independence to rest for a political generation. For UK ministers, these were powerful and persuasive incentives. Compared with the transformed political environment post-2014, with independence support sitting at or above 2014 levels and political positions more clearly drawn, agreeing to a referendum in 2014 seemed a significantly easier political choice for a UK government than it would be given current circumstances.”

It seems hugely naive and avoidant of actual power relations to say, on the one hand, the only reason that David Cameron’s government agreed a referendum was because they thought it would destroy independence and on the other hand have avoided consistent mandates over time but would agree to these changes. As the authors themselves admit:

“The circumstances in 2012 that led to the Edinburgh Agreement were unique and over the past decade the prospect of a future referendum has become politically more contested – indeed, the process and possibility have become, and remain, a source of dispute and division.”

“For the UK Government, the balance of risk has shifted, given substantially higher base levels of support for an independent Scotland in the post-referendum period compared with the years preceding the 2014 referendum.”

“It is possible that a second, single-party, pro-independence majority in the Scottish Parliament, with that government elected on a clear manifesto commitment to hold an independence referendum, would be sufficient to persuade the UK government to concede a second vote. Indeed, some have indicated to us that this would have been the case in 2021, if the SNP had won outright. That may reflect a majoritarian political culture that still pervades Westminster politics, where single party majorities are the norm. In proportional representation systems, as evident in the 25 years of devolution, such an outcome is clearly exceptional.”

“Ciaran Martin, a former senior UK civil servant, has argued that whether the pro- independence majority is a single party or multiple parties “is of zero constitutional or legal significance. A majority is a majority, and … no one has attempted to define a different threshold for a trigger for a referendum.”13 Following the 2021 Scottish Parliament election, there was a pro-independence majority of SNP and Green MSPs, but this was not recognised by the UK Government as constituting a mandate for a new independence referendum, despite the subsequent Scottish Parliament vote for such a referendum.”

“Following Martin’s logic, this transformed the Union into one upheld by force of law rather than by consent.”

Indeed.

The authors are right that: “If the Union is voluntary, upheld by consent and not just by law, there ought to be a recognised, legal and fair process to test, when appropriate, whether the people who live in Scotland can determine whether they want the country to remain in the Union or to transition to independence.” But they do not address why there is not.

The proposals are too vague. The idea that the Secretary of State for Scotland should “read the room” just seems completely inappropriate. Where is there a specific figure of what constitutes a mandate – given historically as the authors own – this mandate has been ignored in the past? Is it 60% of people polling? Who gets to choose this figure?

There is a phrase used in movements of struggle that ‘No Justice no Peace’ and I think that the Unionist side need to own some of the power dynamics at play here rather than say “that was tough on everybody now we need to move on”. Having recognised via Ciaran Martin that previous mandates have been ignored, this can’t just be glossed over.

The lack of a precise figure on what constitutes a mandate feels too vague and puts all the power in the hands of the Secretary of State rather than in the citizens of Scotland. Given that we are already told that previous democratic mandates have been ignored, and given that devolution itself is being actively undermined, and given the starkly ideological nature of the current Secretary of State for Scotland – and indeed that entire office – we are being asked for the incumbent minister to ‘read the room’. Really?

Finally, to get back to the question of No voters feeling ‘threatened’ by the process, established by the UK government, it needs some unpacking. It’s certainly fair to acknowledge that different groups of people experienced the whole moment differently. People who never thought this might happen, people who were just, to borrow a phrase ‘comfortably numb’, were shocked. They’d never had to question the order of things. They’d never had the British state and its culture and institutions challenged at all. They’d never had to think about anything. Things were just as they were. Almost a natural state of being. UK: OK.

A few years ago Bella was contacted by a whistle-blower sharing the donors for Scotland in Union. For legal reasons we couldn’t share the information, But what it revealed was that the supporters of the project were overwhelmingly landed gentry. These were the Scottish (with an emphasis on the ‘ish’) landed power. This isn’t about your gran reminiscing about the Queen, or people having their feelings hurt because they ‘just feel British’, this is about organised groups defending their in-built wealth and power.

The paper is strongest when it suggests “The work of the Commission should include a range of civic and community engagement, as part of a deliberative process that goes beyond politicians and institutions.” But this feels too vague.

The second point is that the ‘no detriment principle’ makes perfect sense. They say:

• Under current arrangements, the Scottish Government must balance its budget each year as a requirement of the Scotland Act. It can underspend but cannot overspend. As part of the review, consideration should be given as to whether there can be greater flexibility to balance budgets over the spending period of a parliament. This would enable front-loaded investment in prevention and public sector reform and serve a public policy purpose, given that both can unlock savings in the long term.

• The operation of the ‘no detriment’ principle is another example of where a small change in the settlement could deliver significant policy results. If Scottish Government investment produces a saving for the Treasury, for example, if investment in social housing leads to a reduction in housing benefit costs, then that saving should be passed on to the Scottish Government to incentivise and support investment in a sector that is so important in terms of both tackling poverty and inequality and supporting economic growth.

But what is absent is any analysis of why these power relations exist? Who is responsible for this state? Scotland’s devolution settlement isn’t being stymied by accident. The authors are caught in the realities of British state power. This feels like a technocratic solution to a set of power relations.
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On the podcast Andy McIver describes himself as a ‘federalist’. But this is a meaningless description. There are no routes to federalism. None. This is a myth. The idea of transcending differences is a nice idea and I am all for a period of ‘truth and reconciliation’ but it needs some truth, no just reconciliation.
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The idea of the Secretary of State for Scotland ‘monitoring the situation’ is disastrously vague. It’s really welcome that somebody is doing something about anything. But the terms of the ‘trigger’ seem very unclear. Also, the agency still lies overwhelmingly with the British state and not with the people of Scotland. Given the level of accumulated distrust and breakdown over these years this seems unlikely to gain popular support. For such a project to be successful, it would require a much deeper level of civil society participation and transparency than has been outlined.