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I want to consider the constitutional implications for the United Kingdom following September’s referendum on Scottish Independence.

If Scotland votes ‘No’ 

The constitutional consequences are easier to see in the case of a `No’ vote in September. Scotland is then almost certain to be offered more devolution, since all three major UK parties have promised further devolution of taxation powers. That, however, could further unbalance its position in a United Kingdom based on asymmetrical devolution. It is possible that the English Question would be resurrected, and that the Union would come under threat, not from Scotland but from England. England of course is by far the largest and most populous part of the United Kingdom, but the only part of the United Kingdom without a Parliament or assembly of her own. It is therefore the anomaly in the devolution settlement. But her reliability has perhaps been taken for granted, and English nationalism has not, until recently been a political force of any moment. Part of the reason for this no doubt is that, with a characteristic lack of logic, many in England have failed to recognise the distinction between being English and being British, treating the two as interchangeable. This may now be changing as a result of devolution and of euroscepticism, stronger in England than in other parts of the country. Perhaps UKIP is best understood as an English nationalist party, the English equivalent to the SNP. It favours an English parliament.

Scotland through its Parliament, enjoys a great deal of political leverage; so also does London through its directly elected mayor, even though the mayor has but limited statutory powers. The rest of England, however, has much less leverage. This is particularly in the case of the great cities of the Midlands and the North – Birmingham, Manchester, Newcastle etc – which show no inclination to favour regional devolution, and – with the exception of Liverpool – have rejected directly elected mayors. These cities claim that they face even more serious social and economic problems than Scotland, but lack the political leverage to ensure that Westminster does something about them.

England has long resisted devolution. In 2004, the North East, thought to be the reason most sympathetic to regional devolution, rejected it in a referendum by around 4 to 1. Even if, however, it had endorsed devolution, that would not have resolved the West Lothian Question since no one is suggesting that the English regions should enjoy legislative powers.

There is some limited support for an English Parliament. But there is no federal system in the world in which one of the units represents over 80% of the population. The nearest equivalent is Canada where 35% of the population live in Ontario. Federal systems in which the largest unit dominates, such as the USSR, dominated by Russia, Czechoslovakia, dominated by the Czechs, and Yugoslavia, dominated by the Serbs, tend not to survive.

The case against an English parliament was best summed up by the Royal Commission on the Constitution, the Kilbrandon Commission, in 1973.

A federation consisting of four units – England, Scotland, Wales and Northern Ireland – would be so unbalanced as to be unworkable. It would be dominated by the overwhelming political importance and wealth of England. The English Parliament would rival the United Kingdom federal Parliament; and in the federal Parliament itself the representation of England could hardly be scaled down in such a way as to enable it to be outvoted by Scotland, Wales and Northern Ireland, together representing less than one-fifth of the population. A United Kingdom federation of four countries, with a federal Parliament and provincial Parliaments in the four national capitals, is therefore not a realistic proposition.

Federalism, therefore, is an unlikely solution.

Therefore a `No’ vote is likely to resurrect the West Lothian Question, especially if a  Labour or Labour/Liberal Democrat government is returned in 2015. Such a government might well lack majority support in England and be dependent on the votes of Scottish MPs. There could be a renewed call for `English votes for English laws’, but that would of course mean two governments – one, including Scotland, for foreign affairs, defence and macro-economic policy, and another excluding Scotland, for health, education, transport, housing, and other matters devolved to the Scottish Parliament. There may in addition be pressure to review the Barnett formula which many English MPs believe is too generous to Scotland.

A `No’ vote, therefore, is likely to pose new strains upon the Union, and it will not end the constitutional debate as to the final shape of the United Kingdom.

If Scotland votes ‘Yes’    

A `Yes’ vote raises even more complex problems. The first is that of who is to represent the United Kingdom government in the negotiations. The government, after all, would still be representing the whole of the United Kingdom, but negotiating on behalf of the rest of the United Kingdom i.e. the United Kingdom minus Scotland. Should Scottish ministers be represented in these negotiations since they represent constituencies which will no longer be part of the United Kingdom after March 2016? But there is, until Scottish independence becomes an accomplished fact, no such constitutional entity as `the rest of the United Kingdom’.

The next British general election is due in May 2015, eight months after the referendum. A government with just eight months of its term left does not have very much legitimacy. Some have suggested that the 2015 general election should be postponed until 2016. That, of course, would require the consent of the House of Lords which has an absolute veto on an extension of the life of the Commons under the Parliament Act. But the government elected in 2010 will have lost a great deal of credibility in the event of a `Yes’ vote. David Cameron would be accused by critics of having called an unnecessary referendum and mismanaged the campaign – and, in consequence, to have presided over the break-up of the United Kingdom. There must be a real question as to whether the government elected in 2010 will enjoy sufficient of a democratic mandate to pursue the negotiations. It could appear as a mere caretaker government.

Lord Hope, the Scottish judge, has argued that the negotiations are best conducted by appointed commissioners, representing the three major British parties. But this raises the problem that the interests of the Conservatives and Labour in the negotiations would not be the same. The Labour Party would not want to speed the negotiations, for as soon as they are completed, Scottish MPs would leave the House of Commons, and Labour would lose 41 MPs – the Conservatives would lose just 1 and the Liberal Democrats 11. It has indeed been suggested that there should be a second general election in the rest of the UK in 2016 when Scottish MPs leave the House of Commons. Labour, therefore, has an incentive to prolong the negotiations, while the Conservatives have the obligation to speed them up. It will, in any case, not be easy to complete the negotiations by March 2016, the date set by the SNP. It took almost 18 months to negotiate the Edinburgh Agreement, and the problems involved in independence are far greater. The `velvet’ divorce between the Czech Republic and Slovakia in 1993 was preceded by no fewer than 31 treaties and over 2,000 separate agreements.

It is of course possible that the Scottish Parliament elected in May 2016 will yield a majority for Labour or for a Labour/Liberal Democrat coalition, a government composed of parties opposed to independence. Such a government might well say that the terms hoped for by the SNP are unobtainable. It might ask Westminster to provide for a second referendum to consider whether Scots want to continue with independence on unfavourable terms.

The European Union will also cause problems for an independent Scotland. International lawyers believe that the rest of the United Kingdom would be the continuator state and that an independent Scotland would therefore have to make an application to join the European Union. The Scottish Government’s White Paper accepts that a treaty amendment is needed for Scotland to remain within the European Union. She cannot, however, make a formal application to join the European Union until she has become independent. This will mean a period during which she is independent but outside the European Union. She would therefore have to negotiate to secure access to the European Union’s internal market during the interim period. She might have to pay an economic price for this benefit.

Agreement to the accession of an independent Scotland would of course require the agreement of the other 28 member states according to their constitutional arrangements, which could include referendums. It could therefore take some time. A Spanish government, particularly one such as the present, led by a party of the Right, might well seek to veto Scottish entry into the European Union; and it might well be supported in such a stance by the French government, fearful of separatist tendencies in Corsica and Brittany. An attempt at a veto would be unlikely to succeed, since an independent Scotland would easily meet the criteria – democratic government, rule of law, protection of human rights – etc. for European Union membership. But the other member states might well delay negotiations so as to provide a disincentive to other separatist movements; and it might refuse to allow a derogation from membership of the Eurozone, so requiring Scotland to join the euro.

The likelihood is that, even with goodwill on all sides, independence would not be achieved by March 2016, and that entry to the European Union would not occur for some time afterwards.

This article originally appeared in CA Magazine. Professor Bogdanor will be speaking at the Institute for Chartered Accountants Scotland conference, ‘The Future of the UK – An Independent Debate’, in London on the 8th July.



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