Last week’s first televised debate of the referendum campaign revealed few surprises of tone or content, even if the outcome disappointed pro-independence hopes of a momentum-building surge in support.  As expected, Alex Salmond concentrated on  the core message  of political self-determination, and the prospect of the new Scotland embracing a model of social and economic solidarity that London is increasingly unable or unwilling to deliver.  With equal predictability, Alistair Darling for  ‘Better Together’ insisted upon the precariousness of the pro-independence position on currency, placing this at the suggestive centre of a wider  narrative contrasting the vulnerability of a fledgling Scottish polity to the  reassuring solidity of the existing British state with its broader institutional shoulders and deeper pockets. It was not, truth be told, a good night for the ‘ vision thing’. Salmond seemed somewhat less energised and less sure-footed than usual in his portrayal of the promised land, perhaps inhibited  by the artificial format of the TV duel and by the strong pre-debate expectations that his quick wits and populist style would win the day hands-down. For his part, Darling, true to form, simply chose not to let his political imagination off the leash. He stuck to a narrow brief, defending the status quo, or at least a soft focus version of it, and concentrating his fire on the supposed gaps  and shortcomings of the ‘Yes’ case.

For Better Together, as has so often been the case over  30 months of campaigning, what  was not said was more interesting and more revealing than what was. One particularly deafening silence, much commented on in the immediate aftermath, surrounded Darling’s refusal, despite many repeated invitations from his opponent,  to offer an explicit endorsement of the proposition  that Scotland could  be successful as an independent country. In an episode that  rapidly descended into Paxmanesque political  pantomime, and which hardly flattered either party, Darling’s discomfort was that of someone torn  between a desire not to offer a succulent soundbite  to the ‘Yes’ campaign  (‘Darling makes case for independence’), and an anxiety not to appear dismissive of the potential of his fellow Scots.

There was, however, another telling silence, less apparent,  quite unremarked in  post-debate commentary, but ultimately of deeper significance. On more than one occasion, Darling referred to Scotland as  ‘part of something larger’. Yet when he did so, he omitted to give that larger entity a name. This might seem trivial. After all, everyone knows where and what he was talking about –   who the ‘we’ are who, in his view, are and ought to remain  Better Together. And so, perhaps, we should read nothing more into his silence than a (reasonable) assumption of the self-evidence of his object of desire. Yet  that would be too simple an explanation. For Darling’s reticence  can also be seen as a mark of  reluctance, even of unease. It  betrays a sense that the state we are in is best  left understated, so to speak; and that it might be to the symbolic disadvantage of the ‘No’ campaign to apply a label to the entity whose preservation  they seek.

 An appreciation of why this is the case takes us to the heart of the question of Scotland’s constitutional future, not just over the vital final weeks of the referendum contest but also in the years to come.

What’s in a name? 

The awkwardness begins with the sheer range of candidate labels. Was Darling talking about – or rather not talking about – Britain, or the United Kingdom, or perhaps ‘The Union’? As Aileen McHarg  reminds us in a recent post, these are not interchangeable terms, and the uncertain movement between them is a symptom of Better Together’s indecision over whether and how to present a holistic case for the defence. The terms  may refer to ( more or less) the same geographical unit, but each speaks in a somewhat different register. Crudely, we may think of Britain as the cultural entity, the UK as the institutional entity, and the Union as the abstract idea – the constitutional key to what these islands hold in sovereign common. Clearly, those different registers – cultural, institutional and constitutional – overlap, and they also closely interact, but they do nevertheless reveal different levels of understanding of our wider political community. And, as we shall see, Better Together is not entirely comfortable operating at any of these three levels.

Take first, Britain. The long decline of Britishness as a dominant national identity from the 19th century high water mark of Protestantism and empire is well-known. As recently as 1970, asked to choose a single nationality as many as 39% of Scots identified as British. By 2013 that figure had fallen to 23%. The significance of this cultural fact  in framing the referendum debate Is often overlooked just because it is nowadays so well established. But it can hardly  be overestimated.  As the Edinburgh Agreement confirms, it is Scotland’s referendum to decide, not Britain’s, and the arguments on both sides – from Better Together every bit as much as the nationalists – always appeal first and foremost, and often enough solely,  to the Scottish rather than to the British national interest in making their case.

Yet that  is not to say that a cultural sense of Britishness is irrelevant to the debate. Only around a quarter of contemporary Scots assert an exclusively Scottish identity, the rest admitting at least to a residual sense of British  identity, and more than one third regularly claiming their British identity to be as strong if not stronger than their Scottish identity.   Migratory patterns further complicate cultural identity. Over 800,000 people born in Scotland live elsewhere in the UK, mostly in England; and according to the Scottish Government’s recently published draft interim constitution, those members of that sizeable  diaspora who presently qualify as British citizens  (i.e., nearly all) would automatically join the vast majority of the  5.3  million Scottish residents  as  citizens of  a newly independent Scotland, including the half million Scottish residents who were born in England.[1] Ties of family, friendship and work link many people across the four nations well beyond this considerable population of internal migrants, and together with shared language and heritage, and a wide array of  cultural institutions from the BBC  to the British Lions, and from the royal family to the Trades Union movement, feed a resiliently self-reinforcing sense of affinity and common sentiment.

So while it is a dominant identity for relatively few, being British remains an integral part of the cultural self-understanding of most participants in the referendum. It follows that even if it is emphatically the Scottish rather than the British national interest that is at stake in this referendum, some attention must be paid to British values,  and  to the value of Britishness,  as part and parcel of any attractive conception of that Scottish national interest.  No-one understands this better than Alex Salmond, and that is why he has been so ready to extol and to endorse  the enduring  virtues of British culture  to audiences both North and South of the border. It is also why he has been at pains to offer reassurance about Scotland’s  post-independence commitment to many aspects of ‘social union’, not least the 400 year old monarchical union.  For Better Together, however, despite such nationalist concessions, this remains  a delicate  subject. Indeed, the generosity of the endorsement of a residual Britishness by Scottish nationalists, in particular by the nationalist leadership, can even serve to highlight Better Together’s  own difficulty in painting a more robust picture and a more confident sense of the place of British culture in Scottish political life, and so further expose the tension between culture and polity in any vision of a continuing British state.

What of the United Kingdom? Surely as we move from the cultural software  to the institutions that  supply the hardware of the modern state the ‘No’ campaign find themselves on firmer ground. For here we are talking about the deeply embedded and closely enmeshed political and economic infrastructure of a 300 year old state; about its common  monetary and fiscal framework and financial institutions, its NHS  and wider system of social welfare, its dense network of common regulatory agencies,  its armed forces, its global diplomatic presence,  and its membership of key international institutions from the EU to the UN Security Council, and from NATO to  the G8 and G20. And certainly, the kernel of the campaign case for the status quo, as underlined by the formidable sweep and detail of the Scotland Analysis papers  of HM Government and by the tendency   of   Better Together spokespersons to disaggregate the case for the UK into its many particular benefits, has been here; in the advantages that accrue from belonging to something tried and tested, bigger and more resourceful, and with a long established international position  and global  reputational  capital.

There is much in all of this, and it may well provide the decisive  platform for a ‘No’ vote on September 18th. Yet  there is an obvious snag here too. For the stress upon results, what is sometimes called ‘output legitimacy’, leaves the ‘No’ side exposed to counterclaim, and also threatens to cast its overall approach in an unflattering light. To begin with, if it is the record of the British state which  supplies the case for the defence, then it is bound to be the entire record, and, of course, there is much both in the UK’s imperial past and in its long post-imperial decline and  repositioning  that can be singled out  for criticism by those who are inclined  to emphasise the downside; and once debate is joined at this level, there can be no copper-bottomed,  position-independent way of demonstrating  that one side’s assessment  of the balance sheet is superior to the other’s.

In addition, a results-based assessment has a necessarily contingent quality. Success depends upon performance and performance depends upon the presence and maintenance  of  favourable    preconditions. On the one hand, this leaves the defenders of the British state vulnerable to arguments that these conditions have been eroded and circumstances have changed; that the UK   as an integrated project  in some sense or other has been ‘broken’ or is on the verge of becoming so, whether because of  declining financial and diplomatic muscle in a world still suffering the shock waves of the financial crisis. or a congealed neo-liberal consensus at the centre, or the prospect of a UKIP-fuelled marginalisation or exit from Europe.  On the other hand, that same preoccupation with successful outputs, and with the conditions of success, also feeds what we might call the tendency towards counterfactual negativism in Better Together’s portrayal of the Yes case. Whether on currency Union, or membership of the EU, or  future defence contracts, the No campaign is drawn by its results-orientation to scrutinise closely the basis of the nationalist boast  that they could achieve equivalent or better outcomes in another possible world.  And while close scrutiny of hypothetical claims is understandable, and perfectly reasonable, it does also help fertilise the view, enthusiastically cultivated by the other side, that the No camp is  motivated  by narrowly  instrumental considerations; that Project Fear  and Mission Balance Sheet are its only and small-minded  answers to the expansively regenerative politics of nationalism.

Which brings us third, and finally, to the idea of  Union. Can this idea – this most abstract rendition of the state we are in –  supply the deep  constitutional code that holds the cultural pieces of Britain together, and which makes the institutional framework of the UK and its attendant benefits more than the sum of its parts? In some respects, the idea of Union offers an unlikely candidate for this task. As Colin Kidd has ably demonstrated,[2] the history of unionism in these islands is not a singular one, but a complex tapestry  of sometimes divergent,  sometimes interfluent themes. In particular, the banal conception of Union and unionism – especially well-known in Scotland and Ireland –  as shorthand for the single, consolidated and  historically both largely centralised and imperially expansive British state, is only one part of the story. The other main version of unionism has been generally less prominent over the modern era,  yet  it is both etymologically persuasive and  more consonant with the everyday meaning of the term. It begins with a much earlier pre-1707  Scottish impulse to address relations with the large English neighbour on the basis of  presumptive equality, continues through various iterations over the centuries of legal Union, and has acquired renewed resonance in very recent times. On this alternative view, unionism is counterposed not to nationalism and to the independence of the component parts, but to an idea of English empire over the territory of the British Isles and beyond. The two  versions of unionism, then, do  have in common the preservation of the British state, but while in the first version the state prevails by denying or disdaining nationalist sympathies, in the second and more progressive version it prospers by accommodating and in significant measure embracing such sympathies.

Arguably, it is the second version of unionism that supplies a more persuasive, if still only partial, reading of recent British constitutional history. Unarguably, it is the second version that must be deepened and amplified if the Union is to prevail in the longer term. The distinctive components of this progressive unionism are  both structural and ethical. In structural terms, the Union offers a very special model of constitutional design, incorporating a rare  idea of constitutional authority. The Union state is understood – at least ideally if not always strictly as a matter of historical record  – as a conditional compact between sub-state national authorities, each of which retains or (in the less idealised version) rescues and regains  some core of constituent power – some claim of national right – to revisit the terms and the very existence of Union.  The Union state, then, emerges and matures through a process  of evolution and according to the shifting balance of constitutional forces, rather the unfolding of a single master project. Equally, its form always remains provisional, open to further development rather than a matter of finality. And its shape is inevitably asymmetrical, reflecting the different composition and aspirations of its national parts – what Michael Keating calls its ‘plurinational’ rather than its ‘multinational’ pedigree[3] – rather than the careful symmetry of the units we find in  classical federalism. Last, and most fundamentally, the Union state, progressively understood,  must  draw a distinction between constituent power and constituted authority – or between (plural) political sovereignty and (singular) legal sovereignty. The coherence of the polity requires  that a particular settlement of legal authority hold firm at any particular time and cannot lightly be overturned, but the need to respect the equality of the national parts also requires – whether or not as part of a formal  constitutional amendment procedure –  that this settlement remain open to revision in a way that allows and respects the renewable  expression of popular sovereignty (normally indicated  through referenda) by these national parts.

The ethical dimension of a progressive unionism is perhaps even more under-articulated, but it has recently been given thoughtful articulation by Gordon Brown.[4]  Brown insists that it is a necessary rather than a contingent feature of the British state, as well as a distinct advantage over an independent Scotland,  that it be a ‘Union of social justice.’ That is to say, there should be and should remain an ‘insurance policy’ between the national parts enabling, through common fiscal instruments, whatever redistribution is necessary to guarantee common standards of welfare across the UK as a whole wherever and whenever resources and risks are otherwise unequally divided. Clearly, this inclusive commitment to a basic threshold of social justice requires some measure of common investment in values such as egalitarianism, community spirit and social responsibility – social democratic standards  that Brown reminds us are, by any historical measure,  as much English as they are Scottish, Welsh or Irish – but it also requires this to be matched by the  deep political tolerance of diversity necessary to give effect to the structural dimension of Union. That is to say, a progressive unionism must find a way of reconciling solidarity with respect for different forms of cultural life and their political expression. And in  so doing it must recognise and manage the following difficulty;  that  each cluster of values is both the condition of and a constraint upon the other. Solidarity is required for a settled  order of political pluralism to prevail, but the more pluralistic – the more diversely accommodating – the polity, the greater the challenge there is  to generate such  solidarity. Equally, without robust recognition of national diversity in today’s Britain, the trust and respect necessary to sustain cross-national solidarity will not be forthcoming, yet  the political arrangements necessary to deliver the solidarity dividend themselves set limits on how far political diversity can be accommodated.

The case for the  Union state as an answer, however complex, to the internal pluralism of the British state is strengthened by it suitability to the wider political environment. The Union  idea may represent a departure from  the constitutional orthodoxy of the modern state, but its more decentred and negotiated understanding of  sovereignty and its provisional and iterative approach to constitutional agreement  reflects and adapts to recent developments in  geopolitical circumstances. For the broader constitutional picture in a globalising age  is not simply of a two-level power system, but of a multipolar pattern. Constitutional  authority  in and for the Union today is in fact balanced precariously not just amongst  London, Edinburgh, Cardiff and Belfast, but also between these sites and Dublin, Brussels ( EU political institutions), Luxembourg (EU Court of Justice) and Strasbourg ( European Court of Human Rights). Legal  jurisdiction  in this densely interconnected environment, therefore,  comes not in organically compact blocks but  is salami-sliced across a range of political settings. In turn, that multipolar authority system has encouraged a more general  underlying   condition of   ‘constitutional unsettlement’.[5] With so many constitutional sites co-implicated, and with no undisputed ‘authority of  authorities’  to plan or co-ordinate their interaction, the course of constitutional change becomes unpredictable, with the resolution of each arena of negotiation and disputation heavily dependent upon similarly unresolved questions in other arenas. So, as we have seen, uncertainty about Britain’s future in the EU, and to a lesser extent  the ECHR, and similar doubts about an independent Scotland’s European prospects, have become  staples of the referendum debate, just as, reciprocally, the referendum result will significantly affect the stakes and influence constitutional (re)negotiation in all these other areas.

All in all, the idea of the Union state, especially under the  flexible arrangement of the unwritten constitution, seems  a good fit for this fluid scenario. In particular, with its   recognition of the inevitably of power-sharing, and in its emphasis upon the open-ended political treatment  rather than the definitive  legal resolution of diverse constitutional claims, the Union state can speak a language of  relative rather than absolute authority, of shifting rather than final settlement, that is appropriate to our time and place.

The Union’s new vows 

There remains, of course, a gap between such a progressive unionism in theory and the Union in practice. The Union today remains largely uncelebrated, as double-edged  a source of comfort and inspiration for the defenders of the state we are in as are the ideas of Britain and the United Kingdom. In part this is because of the legacy of traditional unionism –  the banal, knee-jerk  version that rejects rather than encourages accommodation of political and cultural nationalism below the state. In part, too, it is because the difficult work of rethinking the Union in a more rounded fashion requires a kind of cross-party engagement and reasoned, inclusive dialogue that has not found an easy place in the referendum campaign. Significant progress has been made. The Scotland Act 2012, negotiated between Westminster and an SNP-led Holyrood, is gradually rolling out more fiscal powers and new fields of competence to the Scottish Parliament, while the three main pro-Union parties have all published plans for further constitutional reform, and have agreed to develop these under a joint platform post-referendum. But much of this activity has been reactive, a second agenda behind the main priority of fighting the referendum in more critical and defensive mode.

Yet if the new progressive unionism outlined  above is to be taken seriously as a long-term solution to Scotland’s constitutional question,  then it must do more. The structural and ethical questions it asks  offer new opportunities to the political imagination, but they also pose significant challenges. More work is needed not just to convince sceptical nationalists that their aspirations can be accommodated, but also to commit effectively  to the procedures of ‘joined up’ constitutional reform the Union needs if it is to integrate concern for the Scottish question and for the sub-state national question more generally, with all the other aspects of the multipolar constitution.

The task of achieving and sustaining a long-term commitment among Unionists to progressive unionism should not be underestimated. Nor should anyone understate the difficulty of selling to a wider audience such a project, whose core message is a rejection of the false clarity of some versions both of nationalism and of traditional unionism, in a manner that is itself sufficiently clear and appealing. One thing is certain, however. If the British/UK/Union state is to succeed in promoting a grown-up and sustainable constitutional model for the 21st century, it has to get used to declaring its own name and aim in public.

Neil Walker is Regius Professor of Public Law and the Law of Nature and Nations at the 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.

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?

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.

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.

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.

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.

Neil Walker, University of Edinburgh

In a post originally published at the Scottish Constitutional Futures Forum, Neil Walker discusses the nature of interventions by the president of the EU Commission and the ramifications it might play in the debate. He argues in favour of national candor, saying ‘If any of the key players on the EU stage is opposed to Scottish membership then they should either show the courage of their convictions through a discourse of public justification linked to the interests of the Union as a whole  or, failing that,  they should at least be prepared to declare their intentions to act out of national self-interest’

Let me lay my cards on the table. I remain inclined to vote ‘no’ in September’s referendum. I put it no stronger than ‘inclined’ in part  because I believe, in  the spirit of democracy – even democracy referendum-style – that those of us who have not signed the party pledge should keep an open mind as long as possible. That, indeed, is one of the reasons  why,  18 months ago,  some of us set up the Scottish Constitutional Futures Forum  and its  accompanying blog. But my reservations are also partly because  recent  events  have fuelled my anxiety about  the climate in which the debate is taking place. They have made me wonder whether the case for independence is getting a fair crack of the whip on the international stage, and have caused  me to ponder the implications of lending my vote to a position that remains so reliant upon negative rather than positive arguments.

I am not talking about the shenanigans over a Currency Union. It may  be a minority position, but I believe both sides have been giving as good as they get on this question, and that neither comfortably occupies the moral high ground. There has always been something  both opportunistic and wishful in the nationalist stance. Sterling, once derided as a busted flush,  is reclaimed as a joint birthright. The Euro, once hailed  as the bright new  monetary dawn, is conveniently relegated to the status of a political  lifestyle choice rather than faced up to as an obligation of EU membership that can, at most, be  deferred.

 The Unionist response may be  no more elevated  than this, but is surely ranks no lower. There is an arguable case, if a far from compelling one, that it would be in rUK’s best interest to refuse the  departing Scots a Currency Union. There are certainly risks  either way, and rUK might well change tack in the cold light of a ‘yes’ vote. But Better Together is being no more narrowly strategic than the nationalists in arguing forcefully for the position that  best suits its immediate interests. It is a position that could backfire – may already be backfiring – as it allows the nationalists to play the victim card, and to point out that, as the residual sovereign in the event of post-yes-vote negotiations, rUK enjoys  the ‘bully’s’  advantage  of  being able to make promises  – or threats – that it can credibly deliver upon in self-fulfilment of  its prophecies and  prejudices. But in the final analysis, the Better Together position, like the nationalist one, is a democratically legitimate one. It is articulated by  elected politicians of various parties in favour of a constituency – the UK – whose  right to retain the decisive constitutional  voice is the very issue at the heart  of the referendum. And while nationalists may proclaim the inconsistency of Better Together’s new position with its previous self-denying ordnance against pre-specification of the terms and conditions of independence, they must also acknowledge that  the Unionist parties, by building a united front on sterling, have at least  answered another widely aired  doubt. For  once they have demonstrated their ability to get their act together and find common voice when it really matters.

The issue of democratic credentials, however,  brings me directly  to the point of my comment: namely that other awkward union, the European Union, and the position of Jose Manuel Barroso, President of the European Commission, on the subject. Barroso has previously given strong indications of where he stands, so perhaps we should not be too surprised by his remarks on the BBC’s flagship Andrew Marr Show last weekend. The novelty of his latest contribution may only have been one of emphasis, but the tone was nevertheless striking. Apparently the prospects of membership for an independent Scotland, never untroubled in his perspective, are now to be assessed as  “extremely difficulty… If not impossible.”

These remarks have been well publicised. Predictably, they have been seized upon by Better Together as vindicating their long-standing scepticism about an independent Scotland’s EU future, and as further evidence of the emptiness of nationalist promises. But why should anyone listen to Barroso on this topic?  Does he have a legitimate political voice in the debate? Does he speak from a position of legal authority?  Or, regardless of his political or legal standing, does he simply have a good insider argument, and one that we should heed? The answer, on all three counts, would seem to be ‘no’. Why is this so, and why is it important to the integrity of the debate that the kind of intervention Barroso has sought fit to make should be challenged?

First, there is the question of legitimate political voice. Barroso is not an elected politician. One upon a time he was. Between 2002 and 2004 he was Prime Minister of Portugal. Since then he had done two stints and ten years as the unelected President of the European Commission. His position, which he will vacate this year, does depend upon that of two elected institutions – on the  Council ( made up of nationally elected politicians) which proposed him, and on the European Parliament which  was required to approve  his appointment.  Under new rules introduced by the recent Treaty of Lisbon, the appointment of his successor will be subject to an additional  indirect democratic check – namely the requirement that his or her nomination by the European Council should ‘take account’ of the results of the latest European Parliamentary elections. In fact, the last European elections in 2009 already saw a move towards an overtly political style of appointment, with Barroso the chosen candidate of the   European People’s Party.    But none of these developing procedures and practices can make an elected politician out of an unelected public servant. Barroso has no popular mandate, and perhaps some sense of that lay behind his protestations to Andrew Marr, rendered not a jot more credible by their repetition,  that his words did not constitute an attempt ‘to interfere’ in a matter of internal Scottish and British politics.

But even if Barroso represents no electoral constituency, does he, as head of the Commission, nevertheless possess a clear legal authority, or even a duty,  to step into the Scottish debate? The Commission certainly has an extensive legal remit. According to Article 17 of the Treaty on European Union, it ‘shall promote the general interest of the Union’.  Yet in so doing we should understand the Commission’s  role as servants of the Treaty framework rather than its master. Article 17 continues by specifying the Commission’s role in ways that reflect and confirm its status  as  the EU’s  administrative college. Its responsibilities are largely downstream. They include the monitoring of the  application of European law, the performance of various budgetary, management, executive and management functions, as well as the power to initiate ( but not decide) legislation under the Treaties. In all of this the Commissioners, including the President, like civil servants everywhere, are charged to act independently of external influence.

None of this suggests any stand-alone authority for the Commission or its President on the high political question of new membership, except insofar as this is directly specified in the Treaties. But if we look at the relevant provisions  – Article 49 on accession and  Article 48 on  the alternative route of general Treaty revision – the standing of the Commission is a distinctly modest one. As regards accession, its role is only one of consultation, with the key decision-making reserved to the European Parliament and the Council. As regards general Treaty revision, the Commission is one of a number of institutions that may make proposals, but here the decisive voice lies squarely with the national governments.

If the Commission does not command a central  legal role in these matters, should we not nonetheless be prepared to listen carefully to the views of its President simply as an expert in Union-craft –  as someone who has the knowledge and experience gained from a decade of independently ‘promoting the general interest of the Union’? Absolutely. Of course we should! The snag  here is  that the President has chosen to say nothing worth saying – nothing that would draw upon a considered sense of that general interest,  but instead restricts himself to well-worn  prognostications about what others  might do in pursuit of their particular interests. He trades on the symbolic authority of his position to do nothing more than profound than  recall that the reception of an independent Scotland into the European Union, whether through the  Article 49 route that he envisages, or through the relatively  ‘seamless’ Article 48  route that the nationalists argue for, would  require the approval of all 28 existing member states; and then to advise that this is an arithmetically formidable threshold, especially given the reservations of certain member states about independence movements in their own backyards – a caution that, as Barroso proceeds to reminds us,  has led Spain, concerned with Catalonian and Basque claims, even to refuse to permit a precedent as distant as the recognition of Kosovo as an independent Balkan state.

What is glaringly absent from the debate, both in the  knowing buck-passing of Barroso’s intervention and in the broader silence of the EU’s main movers and players on the Scottish question, is the articulation of any kind of public philosophy that would provide good reasons, rather than simply motivations of base political self interest, why an independent Scotland should or should not be welcomed with open arms. How, precisely, is the EU, still  resolved by common commitment of the member states in the preamble to the Treaty on European Union ‘ to  continue the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen in accordance with the principle of subsidiarity’, to justify the exclusion of an independent Scotland? Why should  a country of 5  million citizens, who  have also been EU citizens for 40 years and who have expressed no desire to leave the European Union, be treated less  generously than the 110 million new EU  citizens – over 20% of the EU’s total population – who have joined from Central and Eastern Europe since 2004? Why should Scottish citizens instead be placed in the same category of Kosovo, or any other  potential candidate from beyond the Union’s distant borders?

The point in posing  these rhetorical questions is not to suggest that the propositions they contain will simply collapse under the weight of their own absurdity. For there  may well be a principled case to  make  against automatic and accelerated membership of an independent Scotland. We find the embryo of such a case, for example, in the analysis of Joseph Weiler, the current President of the European University Institute in Florence. He has argued, with special  reference to the Catalan case,(see http://www.ejiltalk.org/catalonian-independence-and-the-european-union/) that just as national minorities in existing member states who presently enjoy extensive forms  of individual and collective freedom have no  automatic right to secede as a matter of general international law, so, too, the  European Union in its accession policy should not be expected to indulge the independence claims of these unoppressed sub-state nations.To the contrary, the very ethos of integration, reconciliation and continental solidarity that has fed the European project from its post-War beginnings, according to Weiler, should lead  the European Union to take a dim view of any separatist impulse that seems to betray these very founding virtues. From this perspective, therefore, far from having a stronger claim than those external candidates  who have benefited from the post-Cold War Enlargement, those nations already comfortably nested in the EU’s Western European heartland  of multi-level governance should be promised no safe European haven if they insist on the path to independence.

I happen to disagree with both the specific thrust and the wider implications of the  Weiler thesis. To begin with, and most narrowly, even if Weiler’s reasoning is applicable to the situation of Catalonia, where no constitutionally permissible route to referendum and independence is presently countenanced at the level of the wider Spanish state, the Scottish case  is quite different. Here, the Edinburgh Agreement reflects the preparedness of the Uk’s flexible constitution to accommodate the prospect of independence. So for the EU to set its face against Scottish independence would be  to dismiss the significance of the member state’s own recognition of the legitimacy of secession.  Secondly, and more broadly, whether we are dealing with the  Scottish or the Catalan case or that of any other national minority, surely more store than Weiler allows should be set by an aspiring nation’s own sense of what is the constitutionally adequate vindication of its desire for collective autonomy. If nothing short of independence is deemed adequate from the perspective of the constituency in question as an affirmation of shared political identity, it is difficult to see why such a subjective  aspiration should be dismissed in favour of a supposedly objective  standard of adequate individual and collective freedom. Thirdly, even if a special case for the EU  as an entity possessing and pursuing a unique historical mission to make internal secession both unnecessary and unacceptable can  be advanced,  it seems unduly dogmatic to use this to justify a rigid policy against  continued membership of new internal states. There are, after all, other and rival views of the deeper purpose of the European Union. The priority given in the Preamble to the TEU to the principle of subsidiarity has already been mentioned, and this surely reflects an alternative  and more independence-friendly perspective. In the face of these competing narratives, should the public policy of the EU on accession not remain more agnostic?

Whether or not my arguments convince, they surely serve to demonstrate  that the EU’s accession policy is and always has been intimately linked to the deep purposes of the world’s first supranational polity, and to ongoing debate, inevitably controversial, over what precisely these deep purposes demand.  It is, therefore, a matter that  requires reasoned public argument and justification of the sort that Weiler attempts rather than a mere weighing of the strategic ‘private’ preferences of national parties. Yet all we get from Barroso is the latter. Not only is this less than we might expect from someone committed to the general interests of the Union, but it also allows the prejudices of national parties to be entered to the calculation without the embarrassment of a first person airing.

In a nutshell:  If any of the key players on the EU stage is opposed to Scottish membership then they should either show the courage of their convictions through a discourse of public justification linked to the interests of the Union as a whole  or, failing that,  they should at least be prepared to declare their intentions to act out of national self-interest. Barroso’ s intervention allows a significant oppositional note to be struck without either of these tests of public candour being met. The danger increases that our independence debate become hijacked to poorly specified and undefended external considerations. That surely is bad news for anyone interested in the referendum as a means to the long-term, widely accepted  resolution of our national conversation.

Kieran Oberman, University of Edinburgh

The University of Edinburgh’s Kieran Oberman discusses whether Scotland possesses a moral right to secede.

What is perhaps most striking about the debate regarding Scottish independence is not what people are saying but what they are ignoring.  When one brings the philosophical literature on secession to bear on the public debate one notices that a number of points are being assumed that require defence.  In this article I wish to address a crucial assumption made on both sides, by the No camp as much as the Yes camp, by the UK government as much as the SNP: the assumption that Scotland has a right to unilaterally decide it’s future.

What gives Scotland a moral right to secede anyway?  One plausible view of secession is that an area of a state only has a right to secede if it is suffering serious forms of abuse.  Something close to this view is defended by perhaps the most prominent theorist of secession, Allen Buchanan.  It is also the view invoked in the world’s most famous secessionist document, the US Declaration of Independence.  According to the Declaration, “Governments long established should not be changed for light and transient causes”.  Secession can only be justified in light of “a long train of abuses”.  It was the long train of abuses that George III had supposedly inflicted against the thirteen colonies that, in the eyes of the Founding Fathers, justified their bid for secession.  What “long train of abuses” can the residents of Scotland complain of?

Alex Salmond might try to construct a list of this sort.  But what about David Cameron?  It was Cameron, recall, who signed the Edinburgh Agreement that set the referendum in motion.  Cameron clearly does not think that Scotland has suffered a long train of abuses, so why did he sign the agreement?  Why did he not adopt the stance taken by the Spanish Prime Minister, Mariano Rajoy, in relation to Catalonia and refuse to permit a referendum to take place?

One obvious response is that the Scottish independence referendum is what democracy demands.  The SNP won the 2011 Scottish Parliamentary election. It would have been undemocratic to deny Scottish residents an independence referendum when they had signalled, by voting SNP, that the referendum is something they desired.  But if a referendum is to take place, why should only Scottish residents be given a vote?  Much has been written on the fact that the 753,286 Scottish people living outside of Scotland will not be able to vote in the referendum (while the 366,755 English people living in Scotland will) but little has been written on the arguably more important fact that non-Scottish people living outside of Scotland cannot vote.  Why shouldn’t the people of England, Wales and Northern Ireland get a vote as to whether their state is divided?  To say that it is not an issue that affects them is simply untrue.  It does affect them: militarily, economically and, for many, emotionally since they regard the union with Scotland as important to their national identity.  In short, the democracy argument for secession quickly lands us in what some philosophers have termed the “boundary problem”: the fact that before we can decide something democratically we must first decide who belongs to the demos.  One candidate solution to the boundary problem, the “all-affected-interests principle”, would not endorse a Scotland only electorate.

The Founding Fathers thought that secession could only be justified in light of a “long train of abuses”. What “long train of abuses” can Scotland complain of?

Perhaps a better argument for restricting the vote to Scottish residents is that Scotland is a nation and as a nation it has a right to self-determination.  Here we encounter the principle of national self-determination over which so much ink, and blood, has already been spilled.  I have nothing to say regarding the principle apart from to note one of its obvious drawbacks: its inability to resolve matters when more than one nation claims a portion of territory.  Many people, inside and outside of Scotland, believe that there is such a thing as a British nation, not just a British state.  (For the state/nation distinction see here).  Assuming that they are right, does the British nation not have just as much of a right to national self-determination as Scotland?  If so, shouldn’t everyone who belongs to the British nation get a vote, not just those in Scotland?

Let’s try another tack.  Perhaps, we could view Scotland as some sort of giant club.  Ordinarily, people can set up clubs – golf clubs, debating societies, whiskey-tasting associations etc. – if they so want.  And ordinarily it is up to the members of clubs to decide which other clubs they wish to affiliate to.  So why can’t Club Scotland decide whether or not it is affiliated to Club UK?  Club UK should have no say in the matter.  It is not up to umbrella organisations to decide whether or not their affiliates stay affiliated.  (Or to use another analogy, invoked here, one does not, in modern times, need one’s spouse’s consent in order to get a divorce).  This “freedom of association argument” seems to do better than the democracy and national self-determination arguments in justifying the restriction of voting rights to Scottish residents.  Unfortunately it also has at least one strange implication.  For if any group of people can secede by invoking a right to freedom of association, then there seems no reason why seceding groups must be the size of nations.  Edinburgh could declare independence from an independent Scotland.  Leith could declare independence from an independent Edinburgh.  And so on.  In fact, in the Scottish case, this objection from repeated secession has particular resonance since the MSPs for Shetland and Orkney have discussed the possibility of seceding from Scotland, in the event of Scottish independence. The philosophers who endorse the freedom of association argument are happy to embrace the possibility of repeated secession (see here and here), or something close to it, but most will balk at it.  It is clearly not something that the SNP would favour, anymore than the UK government.

Despite mass support for a referendum within Catalonia, Spanish Prime Minister, Mariano Rajoy, has refused to grant one. Photo by Ivan McClellan Photography.

We remain then at a loss as to how the Scottish independence referendum can be justified.  Nevertheless, many people will still maintain that it is justified and that the alternative approach, modelled by Spain, of denying a region a vote on its future, even after it has signalled its desire for one, is mean spirited, if not unjust.  Cameron got it right, where Rajoy got it wrong.  This certainly was the view taken by my students when we debated the matter in class some weeks ago.  And indeed, there does seem to be something to be celebrated in the fact that this referendum is going ahead.  In many parts of the world, secessionists are treated as criminals, subject to arrest, torture and other human rights abuses.  Secession is granted only after many years of violence and sometimes not even then.  When David Cameron met Sri Lankan president Mahinda Rajapaksa, at the Commonwealth summit last month, there was a marked contrast.  Rajapaksa presided over a military victory against secessionists; preventing the break up of Sri Lanka and, the UN claims, killing thousands of civilians in the process.  Cameron is prepared to permit the break up of the UK without a single shot being fired.  This contrast too seems to be to Cameron’s credit.

Perhaps the best that can be said on the subject is something like the following.  Where the borders between existing states lie is, in truth, rather arbitrary.  Today’s world map is largely the product of a history of conflict, colonialism, ethnic cleansing and gunboat diplomacy.  In this context, perhaps what we should be looking for is not so much some ideally just principle for refashioning the borders of states, but rather some means by which decisions regarding territory and secession can be made that will keep most people happy or at least minimise violence.  Since many seem to believe in the principle that large and distinctive areas, such as Scotland and Catalonia, should be able to unilaterally determine their own futures, then perhaps this is the rule that we should urge states to adopt.  But notice that this argument for the “let the disputed area decide” rule is parasitic on people’s belief in that rule; it cannot justify that belief.  If there is a deeper argument for why, as a matter of principle, it should be left to Scotland, Catalonia or any other region to decide its future, the argument remains mysterious.

This post was originally published on the Just World Institute blog.

At the launch of their new book, After Independence, Gerry Hassan and James Mitchell discuss the constitutional options for Scotland, the implications of the white paper and the potential to expand the debate.

Many words will be written this week and in the years to come about the independence debate and the publication of the Scottish Government White Paper on independence launched yesterday in Glasgow by Alex Salmond and Nicola Sturgeon.

All of this has come about after negotiations between the UK and Scottish Governments. They agreed the question to be put to the Scottish people, about who could vote and the rules of the referendum. The two Governments and campaign organisations associated with each side seek to define the terms of the debate: independence vs. separatism; hope vs. fear; change vs. continuity.

There is nothing unusual in this. Elections and referendums in liberal democracies are about giving the public an authoritative voice on pre-determined choices.

As a device for consulting the people, the referendum is now more commonly used in the UK than the past. It has value in ensuring that a decision carries the legitimising power of public support, as happened in the 1997 devolution vote. But referendums have their limitations. They encourage highly adversarial politics and limit choices to what is on offer at the ballot box, even if the public might prefer something else. These features can limit public involvement to being spectators.

While little can be done about the choices available at the ballot box, there is no reason for limiting the scope of this debate. The referendum may have been a Government initiative but there is no reason why anyone need stick to a limited agenda.

The referendum may have come about through inter-governmental bargaining but the debate cannot be limited by government or the formal campaign organisations. There is no disputing the relative powers of these and the conventional media in setting the terms of the debate, but there has been growing evidence from across Scotland that this referendum is encouraging a multiplicity of people and bodies to articulate their own fears, hopes and expectations.

Much of this might at first sight appear to have little to do with the referendum question. However relevant or otherwise, the referendum is proving a useful means of discussing what kind of Scotland we want to live in, which cannot be boiled down to whether Scotland should or should not be an independent country.

The referendum and independence debate does not belong to any party, government or campaign group. Neither does it belong to the conventional media or ‘experts’ explaining the meaning of white papers or opinion polls.

There is no doubt that insider opinion has had and will continue to have the dominant part in setting the agenda of debate. But, paradoxically for a device that puts the voting public at the heart of the decision, the wider public needs to assert itself and find means of insinuating itself into this debate.

Referendums can be dangerous devices for sponsoring governments. The people do not always answer as expected or hoped for. It is conceivable that the result will end up pleasing neither government or camp. The result may prove contestable – and a close result is bound to be contested whatever may be said by both sides just now.

But this referendum offers an even bigger prize than that imagined by insider Scotland. It is about the kind of society we want and what kind of collective future we would like to bring into being. It offers an opportunity to raise awkward questions and challenge each side to outline where we are going, not just in the narrowest sense of constitutional politics but how we constitute ourselves in the widest sense.

Over the last two decades and more, constitutional debate across the globe has been far more expansive than the narrow debate that insider Scotland would have us focus upon. Modern constitutions commonly include references to gender rights, social and welfare rights and much more besides. Scotland’s constitutional debate needs to enter the modern world too.

The greatest challenge lies in addressing ‘missing Scotland’ and what has been become called ‘the missing million’: the part of Scotland’s electorate which has slowly and inexorably slipped out of our democracy and stopped voting in the last generation. This dynamic reflects the increasing concentration of politics on a narrow range of issues, the focus on ‘swing’ voters in marginal seats, and the decline of such factors as class and party identification.

It is true that turnout at elections has declined in many – though by no means all liberal democracies – a point underlined in Philip Coggan’s ‘The Last Vote’. But no one should be allowed to hide behind a general Western trend. Both sides in this referendum claim to be reaching out to a wider public, engaging in new ways and bringing people into their campaigns who had never previously been involved.

There is no reason to disbelieve this but the challenge comes with the results not just in the proportion who voted but the difference that participation makes. Who are these new political activists? What do they bring to our politics and what will be the longer-term consequences of their engagement?

This entails thinking about politics, political change and the roles and expectations on public bodies and institutions in a more multi-layered way reflecting the numerous pressures, demands and expectations in public life. Scottish politics for too long has been traditionally defined in a very narrow, constricting manner, which has left politics in the hands of insider groups, and the sum total of change at best swapping elites while the people watch.

The referendum and independence debate cannot be left solely in the hands of this ‘insider Scotland’ with their exclusive claims to representing and understanding the popular will. If it is to maximise change and political participation, there must be an acknowledgement of the diverse voices of ‘outsider Scotland’ who have been too often forgotten about, or paid lip service to in the language of the supposed ‘new politics’.

Two very different timescales are evident in this debate. The first is that Scotland has ended up having this independence debate sooner than most people assumed. The consequences are clear to see all around: the anger and dismay of certain pro-union voices, a general bewilderment and incomprehension in many undecided voters, and an over-zealousness and simplicity in some pro-independence opinion. But what is also happening is that in a very short space of time the idea of independence, once on the fringes of political life, has become mainstream.

If the first is the shortened road to the referendum, the second is the long road to the referendum (in the short term frame of 2011-14). This has allowed a host of self-organising, self-motivated groups to emerge outwith the reach of institutional Scotland. There is a generational shift in this, a gender dimension and the rise of social media; perhaps most importantly this signals a move from an over focus on ‘hard’ power to ‘soft’ power.

This week is a watershed moment, and it would be good if more of our debate could pause and reflect this and be more humble, generous of opposing views, idealistic and outward focused on the challenges ahead. It is in this spirit that we planned and commissioned ‘After Independence’, officially published this week, which collects two dozen essays on different aspects of independence, ranging far and beyond the narrow definition of constitutional politics – to economic, social and cultural policies, the nature of the UK and England, defence and international dimensions.

Whatever the final outcome on September 14th 2014 Scotland is being dramatically changed by this debate and irrespective of whether we vote Yes or No, Scotland, the union and the UK will never be the same again. This shows the shortsightedness of those who are already rushing to call the result, the latest of which is ‘The Economist’ ‘The World in 2014’ which has boldly declared, ‘The Scots will vote no to independence’. Instead, we should see this debate and result as part of a journey on the road to a politics and culture of self-government.

The phrase, ‘Another Scotland is possible’ is used by some of the new forces of the left gathering around this debate. Many mainstream voices scoff and pour cynicism on the naivety and idealism of such groups ignoring the scale of change Scotland has underwent in the last thirty years.

We have not and will not reach a final destination in this debate or in our society and politics. Rather than say, ‘Another Scotland is possible’, it would be more accurate to say, ‘A different Scotland is happening’. We just do not yet fully know the shape of that Scotland, who will emerge as the winners and losers, and the scale and form of the greater self-government.

Gerry Hassan is Research Fellow in cultural policy at the University of the West of Scotland. James Mitchell is Professor of public policy at Edinburgh University. Their collection, ‘After Independence’ is officially published by Luath Press priced £12.99. This blog was originally published on Open Democracy.

Neil Walker, University of Edinburgh

In a post published at the Scottish Constitutional Futures Forum, Neil Walker reflects on the implications of the referendum, questioning whether it will provide a decisive conclusion.

And so the countdown begins. But the countdown to what? Twelve months from now we should know the result of the referendum, but just how significant a marker will that be on Scotland’s constitutional journey?

One popular view – for many less a reasoned view than a deep-rooted assumption – maintains that the referendum will be decisive and conclusive of Scotland’s future constitutional shape and status. The contemporary history of the Scottish national debate began with Winnie Ewing’s by-election success in Hamilton in 1967, continued through the abortive devolution referendum of 1979, and reached a new pitch with the successful plebiscite of 1998 and the election of the new Scottish Parliament in 1999. According to the conventional narrative, this long Scottish constitutional ‘moment’ is now drawing to an end, the independence referendum scheduled for September 2014 its final act. And despite some early mutterings from the side-lines about the inclusion of a third ‘devo-max’ option on the ballot paper, that final act  will consist of a straight choice between ‘yes’ or ‘no’, ‘out’ or ‘in’.

But why should we conclude that the availability of a  straight choice to stay or leave – the first such choice offered the Scottish people in over three centuries of Union, will settle matters once and for all?

Read the rest of Neil Walker’s analysis at the Scottish Constitutional Futures Forum.

Neil Walker is Regius Professor of Public Law and the Law of Nations at the University of Edinburgh.

Charlie Jeffery

A major survey reveals an added dimension to the debate over the future of the UK and it’s being driven by discontent among English voters, writes Charlie Jeffery

It is easy to think that the future of the UK is simply a matter of what Scotland decides in the referendum next year. But, largely unnoticed, England has begun to change in ways which may question the current form of the union just as much as Scotland’s referendum.

This is the central message from the latest Future of England Survey (FoES), a major poll conducted annually by the University of Edinburgh, Cardiff University and the Institute for Public Policy Research. The latest FoES shows how the English are beginning to see themselves – as the Scots have long done – as a national community that demands political recognition.

The drive for recognition is in part about identity. People in England have (at last, many in Scotland might say) begun to distinguish Englishness and Britishness. English identity has strengthened significantly in England since the late 1990s, and British identity weakened. While the strength of Englishness dipped last year – perhaps as a consequence of the Jubilee and the Olympics – twice as many in England prioritise their English identity (35 per cent) as those who prioritise their British identity (17 per cent).

Perhaps more significant is the way in which English identity shapes attitudes to constitutional questions. The English, put bluntly, are discontented with their lot. That feeling of discontent has much to do with devolution. People in England think devolution has given Scotland unfair advantages.

Around 80 per cent of people in England think that Scottish MPs at Westminster should not vote on English laws and that the Scottish Parliament should cover its spending through its own tax decisions. Over 50 per cent think Scotland gets more than its fair share of public spending while 40 per cent think that England gets less than its fair share. And around half think Scotland’s economy benefits more from the union and just 8 per cent that the English economy benefits.

These are not figures skewed by discontented northerners in England, caught between the political strength of devolved Scotland and the economic strength of London and the south east; they are remarkably uniform across England, also in the south east.

Importantly that is not just a complaint about Scotland. It is a complaint about the Westminster system itself. Over 60 per cent of people in England do not trust the UK government to act in England’s best interests. And in none of the questions we asked about England’s constitutional options did more than a quarter plump for the status quo. Over half favoured some form of England-specific, England-wide political arrangements: the top choice (of a third or so) was special arrangements for English laws in the UK parliament; second was a free standing English Parliament at around 20 per cent.

We also asked about the capacity of political parties in England – in government and opposition, inside and outside the UK parliament – to stand up for English interests. Table One (left) shows responses to this question in 2011, 2012 and 2013.

Two things are striking. The first is that no party is seen by more than a fifth or so of the English as standing up for their interests. The second is that Labour, Conservatives and Liberal Democrats are under pressure from forces outside the system. The top choice in 2011 and 2012 was “none of the above”. In 2013 it was Ukip. The party of the UK’s “independence” appears to have a specific and growing resonance in England.

Talk of Ukip inevitably raises the question of Europe. Here lies England’s other discontent. The EU is very unpopular in England. Asked whether Europe is a “good thing” or a “bad thing”, 43 per cent opted for the former and just 28 per cent the latter. And asked about an in-out referendum on Europe the answer is clear: English voters would leave: 50 per cent said “out” and just 33 per cent “in” with the rest undecided.

In these different ways the outline of a distinctive English politics is emerging, based on a strengthening English (and weakening British) identity, resentments about devolution and Europe, and a sense that neither the current political parties nor institutions of government are delivering for England. Significantly these different features of England’s new politics reinforce each other. Stronger English identity is associated with stronger levels of discontent about Scotland, stronger demands for some kind of English self-government, and passionate dislike of the EU.

It is interesting how these political attitudes map onto party allegiance. Liberal Democrat supporters are the furthest away from this new politics; they are more British, less resentful about Scotland, robustly pro-European and ambivalent about English self-government. Labour supporters are split. Conservative supporters are in the heartland of the new politics, but Ukip supporters are in the vanguard: they are the most English, the most discontented about Scotland, the most hostile to the EU and the most in favour of English self-government. Despite its “UK” title Ukip has become England’s national party.

What does all this mean for Scotland? We asked the FoES respondents the Scottish referendum question. They gave an answer pretty much the same as in most recent polls: Yes at 30 per cent and No at 49 per cent. So the union would be safe in England’s hands.

But it would be a different kind of union, with a limited role for Scottish MPs at Westminster and a Scottish Parliament that raised its own taxes. The English appear to be supporters of devo-max. Combined with their preference for English self-government this points to a union with a weaker centre and more autonomy in the component parts.

There is a joker in the pack though, and that is Europe. As Table Two shows – using recent Scottish data from MORI alongside FoES data for England – attitudes to Europe appear sharply divergent. In a referendum the English would vote to leave and the Scots would vote to stay. Europe plays a role in England’s emergent national politics that is not matched in Scotland. It marks out a dividing line between the two nations.

This dividing line may become important after next May’s European Parliament elections. Many expect Ukip to win. If it does do well, it seems unlikely – not least because it appears a response to England’s discontents – it will be anywhere near as strong in Scotland as England. The recent Aberdeen Donside by-election suggested as much. A newly prominent English nationalism that emphasises priorities quite different to those in Scotland may impact unpredictably on Scotland’s referendum.

What would the response be in England if Scotland did vote Yes? We asked the FoES respondents whether or not they agreed that England should become an independent country. A surprisingly high 34 per cent said yes, while 38 per cent said no, with the rest undecided.

We also asked what their views would be if Scotland voted yes next year. In that event 39 per cent were for English independence, 31 per cent against and 29 per cent undecided. We are accustomed to talking about the “rest of the UK” when imagining Scottish independence. Perhaps that – as those in Wales and Northern Ireland might note – is an optimistic assumption.

Professor Charlie Jeffery is Director of the Academy of Government at the University of Edinburgh. The FoES survey was carried out with 3,600 respondents in England from 23-28 November 2012.

This article was originally published in The Scotsman on 09 July 2013

Plenary session 2: Scottish governance under developing constitutional relationships
This session examines the feasibility of shared services, infrastructures and institutions, the governing arrangements necessary for co-ordinating them, and the likely power dynamics between governments. It looks at attitudes to independence and what forms them and give a regional and historical perspective on issues raised by the independence debate.

Speakers include Dr Nicola McEwen (University of Edinburgh), Professor James Mitchell (University of Edinburgh) and Professor Robert Young (University of Western Ontario).

Audio for the session is available here: http://www.esrc.ac.uk/publications/audio/future-of-uk-and-scotland-conference.aspx?media-component=tcm:8-26203&type=audio