Scotland's Future after the Referendum: ByW. Elliot Bulmer

EXECUTIVE SUMMARY

• There needs to be an intermediate position between devolution and independence.

• Devolution is unsatisfactory because it ignores Scottish sovereignty.

• Federalism is unworkable in the UK.

• Secure Autonomy recognises Scottish sovereignty and self-determination, while sharing powers on a consensual basis.

• 'Charter of Autonomy' would set out enduring basis for new Union and for a new democracy in Scotland.

THE SEARCH FOR AN INTERMEDIATE POSITION

1. Holding a referendum on the simple question of independence has been polarizing. It has inspired hope, optimism, engagement, political activism and constructive thinking about the future, but also evoked fear and denial. The No campaign's decisive victory in the Scottish independence referendum has removed independence from the immediate political agenda, perhaps for a generation, but the challenge now is to channel those positive emotions into the betterment of Scotland, rather than allowing negativity and defeatism to mar our future.

2. This means that an effort must now be made to achieve as much as possible of the transformative Yes agenda - on economic and social as well as on constitutional fronts - while recognizing the legitimate concerns and preferences of the majority who voted No.

3. No voters are not a homogenous block. Indeed, intransigent No voters, opposed to all forms of further autonomy for Scotland, were almost certainly a minority. Some No voters were quite open to the possible advantages of independence, but were alarmed by the perceived economic and political risks of statehood; they saw the Union as a guarantee of Scotland's stability and viability. Others were opposed to outright independence for reasons of historical, emotional or cultural loyalty to the British State, but still keen for Scotland to attain greater control of our own affairs. Many of those who voted No did so on a conditional basis, taking late interventions by Gordon Brown, David Cameron, Ed Miliband and Nick Clegg as an indication that a No vote would not be a vote for no change, but a vote for much greater autonomy within a radically reformed UK. 'Solemn vows' to this effect were publicly given.

4. Thus the referendum result can be interpreted not only as a defeat for independence, but also as an endorsement of substantial change. This endorsement reflects a widespread but unfocused desire, before the referendum question was set, for an intermediate position between independence and the devolved status quo. That intermediate position was not carefully articulated and was removed from the agenda at the insistence of the United Kingdom Government. However, now is the time to respond to the public's endorsement of fundamental change, to articulate an intermediate position, and to bring a demand for that position into the centre of Scotland's agenda. There is an opportunity to capture the public imagination, to set the terms of debate, and to build a consensus around an intermediate position that can unite both disappointed Yes voters and the broad swathes of No voters who want real change.

5. This intermediate position would maintain the United Kingdom while radically changing the nature of the UK, such that the UK recognises Scotland's sovereignty and right to self-determination, and guarantees its autonomy over almost all aspects of domestic policy. For some, this intermediate position could be an end in itself, for others, it could be seen as a further step towards full independence in the medium to long term future. Either way, the strategic opportunity for the Scottish Government is to set the intermediate position so as to give Scotland as much autonomy, and as much security for that autonomy, as is possible.

DEVOLUTION FAILS TO RESTORE SOVEREIGNTY

6. Devolution was designed to delegate powers from Westminster to Holyrood whilst retaining sovereignty in Westminster. Thus there are two different problems relating to the current devolved system. One is concerned with the powers of Scottish institutions; the other is to do with the locus of sovereignty. 'Devolution Plus' or 'Devolution Max' focus solely on the degree of devolved powers, but not on the location of sovereignty. Under any devolved scheme, Scotland would continue to be dependent on Westminster. This is a violation of the principle of the Claim of Right, which insists that it is for the sovereign people of Scotland to decide their own constitutional order. The principle of the sovereignty of the people means that only a fundamental law of a constitutional nature, which is capable of being amended not by the unilateral decision of any Parliament, but only by a decision of the people of Scotland in a referendum, can legitimately define and limit the powers of the Scottish Parliament.

7. Without popular sovereignty, Scotland might enjoy certain rights and powers, but does not possess them. What has been given in devolution might be taken away. This is not idle speculation: the experience of Northern Ireland shows that the British State is willing to suspend or abolish devolved institutions when Whitehall deems fit.

8. Therefore enhanced devolution is not a suitable intermediate position. It would still place Scotland at the mercy of Westminster majorities. It might confer 'more powers' but would not place Scottish institutions on a democratic constitutional basis that upholds our sovereignty.

FEDERALISM IS IMPOSSIBLE IN THE UNITED KINGDOM

9. The classic intermediate position would be some sort of federalism or quasi-federalism on a German or Spanish model. Bavaria, for example, has guaranteed rights under the German federal Constitution. Catalonia has guaranteed rights under the Spanish Constitution. The German Parliament cannot unilaterally infringe Bavaria's rights and the Spanish Parliament cannot unilaterally infringe Catalonia's rights; in both cases their autonomy is secured by a written and robust Constitution. Many would advocate something similar for Scotland, since federalism seems to create an opportunity for a more secure, stable and balanced system of power-sharing.

10. However, owing to the lack of a written Constitution in the UK, this would be impossible to achieve federalism without the adoption of a written Constitution, for example along the lines of those of Germany or Spain. It would require reform of the House of Lords (turning it into a federal upper chamber) and a host of other consequential reforms. This would necessarily undermine the monarcho-parliamentary absolutism at the root of the UK. Restructuring of this type is unlikely to be achieved in the foreseeable future - the British establishment and English politics have shown no appetite for such radical change at the core. English legal conservatism is too strong to allow the UK's conventional system to be replaced by a modern, written, federal Constitution, and it is easier, from their point of view, to find bespoke solutions for Scotland than to challenge the core workings of the British State in ways that could undermine privileges.

11. Federalism also raises the problem of what to do with England. England is too big to be just one state in a four-state federation of nations, since its population would dominate the whole. Dividing England into regions is also a poor solution, since it would undermine the principle of an equal federation between four 'home nations': either (i) Scotland would have to have the same powers and status as, say, 'the South West of England', which would not amount to sufficient self-rule from a Scottish perspective; or (ii) federalism would have to be asymmetrical, to recognize Scotland's special status and powers, in which case many of the problems of asymmetrical devolution, including the West Lothian Question, remain unsolved.

12. Federalism would not guarantee Scotland's right to self-determination. A federation pools sovereignty, sharing it between the constituent units and the federation. It is difficult to see how a federal system could be compatible with the Claim of Right, unless clear provision were made for secession and for the renegotiation by Scotland of the extent of shared powers.

SECURE AUTONOMY

13. To reconcile the Union with 'the sovereign right of the people of Scotland to determine the form of government best suited to their needs' we need to look at solutions that are neither devolved nor federal, but which instead establish an autonomous, sovereign Scotland, which enjoys the right to self-determination while sharing powers and functions with the UK Government and the UK Parliament in matters of common concern such as foreign affairs, defence and currency. Such sharing of power must be with Scotland's consent, for Scotland's benefit, on Scotland's terms, and for as long as Scotland so wishes. This would be true home rule, guaranteeing Scotland 'secure autonomy' within a consensual Union.

14. Secure autonomy goes beyond any form of enhanced devolution or federalism in that it protects the right of Scotland to determine its own relationship, bilaterally, with the rest of the UK.

15. The essence of the secure autonomy proposal is that while the UK Parliament cannot bind its successors - and thus cannot make any scheme of devolution permanent - it can renounce its sovereignty. It has done so in relation to the many states that have become independent from the UK since the second world war: the UK Parliament cannot legislate for countries such as India, Ireland, Malta or Jamaica. These renunciations of sovereignty were achieved by means of various country-specific Independence Acts, the effects of which are irrevocable. To bring about secure autonomy for Scotland, the UK Parliament could enact a Scotland (Autonomy) Act, similar in form the various post-colonial Independence Acts, the effect of which would be to make an irrevocable renunciation of Westminster's sovereignty over Scotland.

16. That Autonomy Act would contain a schedule setting out a Charter of Autonomy for Scotland. The Charter of Autonomy would function as a quasi-constitution and would be the supreme law of Scotland. However, unlike the Constitution of an independent state, this Charter of Autonomy would reserve certain functions and powers to UK institutions.

17. The status of the Charter of Autonomy as a supreme law, the main features of which cannot be amended without the consent of the people of Scotland, would provide stability and reassurance all round, protecting the arrangement from opportunism by either the UK or the Scottish Parliaments, and ensuring the democratic functioning of Scottish institutions.

18. The powers reserved to Westminster under the Charter of Autonomy would be those essential to the maintenance of the UK as a single state for the purposes of international law (chiefly, royal succession, foreign affairs and defence) and for the macro-economic stability of both Scotland and the rest of the UK (free movement, common currency, certain shared services), as well as a few other miscellaneous matters where duplication would be costly or unnecessary (e.g. DVLA).

19. Everything else would be Scotland's responsibility, including the right to raise and spend all of its own money. This would give Scotland the ability to pursue very different models of economic and social policy to address problems of poverty and inequality, and to fund those policies from its own resources. It would, at the same time, remove any suspicion of being 'subsidised' by the rest of the UK. Scotland would pay a contribution to the rest of the UK for its share of shared services, but the UK would have no tax-raising powers in Scotland.

20. The Charter of Autonomy would create a new Union: not an 'incorporating Union', as in 1707, but instead an equal, consensual Union in which Scotland shares powers by agreement. There are several historical examples of such a Union.

(a) Perhaps the best example is that of the Austro-Hungarian Empire under the 'historic compromise' of 1867. The Empire retained a single external identity in international law for the purposes of foreign affairs and defence; internally, it was divided into two entities 'Austria and rest' and 'Hungary', each being fully autonomous over all matters of domestic law, policy and finance. Each entity had its own Parliament, its own responsible Government, its own Constitution, and its own civil service. There was a personal union in the monarchy: the Emperor of Austria was King of Hungary, and three joint ministries: foreign affairs, war, and finance. These ministers were responsible to the Emperor-King (unlike the Austrian and Hungarian Prime Ministers, who were responsible to their respective Parliaments). Besides these common ministries, there was a Customs Union and common external trade tariff, negotiated between the two Governments, approved by the two Parliaments, and renewed every ten years. There was also a common coinage and a joint national bank, and co-operation on common projects, such as railways and postal services, negotiated between the two entities on an ad-hoc basis and implemented through parallel legislation.

(b) Another example is that of the Cook Islands in relation to New Zealand. Since 1964, the Cook Islands have enjoyed full autonomy, under their own Constitution, over almost all matters except for foreign affairs and defence. This is an important example for Scotland's purposes, because New Zealand, like the UK, is one of the few countries that lacks a written Constitution, but this has not prevented the establishment of a written Constitution for the Cook Islands.

(c) Although the specifics of constitutional status differ, in practical terms, Scotland would be in a position not unlike that of the Channel Islands and the Isle of Man, which enjoy substantial autonomy while still being reliant on the UK Government for the purposes of foreign affairs and defence, and while still using the pound. The key difference is that Scotland would be 'inside' the UK, while the Channel Islands and the Isle of Man are 'Crown dependencies' of it.

21. This arrangement would be attractive to moderate Unionists because it would, obviously and visibly, maintain the Union. Scots would still be 'British'. They would still carry UK passports. They could still join, and be protected by, the British armed forces. They would still be represented abroad by UK embassies and consulates. They would still use the pound. At the same time, moderate supporters of independence cannot fail to recognize that this offers the best possible chance not only for substantial autonomy, but also the chance to use fiscal and policy levers to achieve, if they wish, progressive social and economic change. It is possible to present this policy as the logical next step in a process (which may, eventually, led to further steps), while also presenting it as a mature, pragmatic, consensual compromise. It is expected that such a Charter of Autonomy, especially if backed by both Governments, would be endorsed by a clear majority of the people in a referendum.

22. The quid-pro-quo of this arrangement is that: (i) Scotland would cease to be represented in the House of Commons; and (ii) independence would be effectively ruled out for a generation. These conditions over an incentive and a reassurance to the UK Government to accept such a beneficial arrangement to Scotland. In place of Scottish members of the House of Commons, the Scottish Parliament would elect delegates to Westminster, who would vote only on Scottish measures. Unlike previous proposals for English Votes for English Laws, however, this would not create a situation where the Government in the UK as a whole cannot legislate for England, since there would be no Scottish members for the purposes of confidence votes - and so Scotland would have no direct influence in the composition of the UK Government. As compensation for this, Scotland would be represented inter-governmentally: the First Minister would be consulted by the Prime Minister on shared powers (similar provisions currently exist in relation to Gibraltar).

CONCLUSION

23. The Secure Autonomy as proposed appears to offer the best hope of a workable 'intermediate position' between the status quo and full independence. The peoples of these islands have stood together in war and peace, and most Scots continue to value that connection. Unfortunately, the old arrangement, the 'Union-State', did not always work: too often, the distinctive voice and interests of Scotland were drowned out. Secure Autonomy would enable Scotland and the rest of the UK to go forward together in a mature partnership of equals, sharing certain powers and responsibilities where this is in our mutual interests, while respecting the liberty, autonomy and distinct interests of each country. It would deliver most of the proposed advantages of independence while preserving the security, economic, military and diplomatic advantages commonly attributed to the Union by its supporters.