Introduction

At the fourth public event of the Scottish Constitutional Futures Forum, held at the University of Edinburgh School of Law on 27 February, Prof. Christine Bell and Prof. Neil Walker of the Law School discussed the constitutional process governing the forthcoming independence referendum of 2014.  Prof. Bell set out the trajectory of the process to date, an outline of the key signposts in the future, and explored some of the critical issues, to provide some parameters for the debate and to actively foster discussion on the foundational issues involved in the referendum. Prof. Walker opted to analyse the Scottish process within the general context of constitution-making processes, focusing in particular on assessing the Scottish process against a number of ‘good process standards’. 

While it is not possible to do justice to the complexity and scope of each of the contributions, a number of key points may be noted.   

Are We in the Right Process? 

Regarding the central question – ‘Are We in the Right Process?’ – both speakers generally agreed that the constitutional process followed to date, while suffering from significant defects, has developed under significant pathway constraints and that, to some extent at least, the deficiencies have been unavoidable. However, there was a clear sense that the process could be improved in a variety of respects. 

The Uniqueness of the Process 

Both speakers viewed the Scottish process as unique in many respects.  Prof. Bell noted that, unlike many contemporary secessions, which have followed war, post-Cold War dissolution, or have resulted from a commitment to a referendum as part of an internationally mediated peace process, the Scottish context would involve a peaceful secession, by mutual consent (albeit reluctant consent on the part of the UK government), governed by an entirely domestic process. Prof. Walker emphasised that there is always something unique about the constitution-making process – there is no guide for making a constitution, no instruction manual – but there are also no normative constraints on how we go about the process. He suggested that we should not be too fatalistic about the process as its uniqueness means it is constrained by the particular circumstances of its emergence, but also flexible as to how it develops.

Five Key Issues

Five issues loomed particularly large at the seminar: 

First, the fact that the process has been, and continues to be, less inclusive than it might have been: the speakers noted that the debate has been exclusive, top-down and legalistic, generally involving executive deal-making in a ‘treaty-like’ process, rather than civic participation, which has led to a certain disempowerment of the public and a dissipation of any public excitement surrounding the referendum. It was observed that, ideally, a constitutional process should be an extraordinary and generative process, involving more actors than ordinary political and legislative processes, and allowing consideration of new possibilities, and that, although a lot of what is happening now in the debate is beyond the parties (e.g. the blogosphere, civil society), the debate is still being framed to a large extent by the parties, as seen in the preoccupation with abstruse (if still important) questions such as the detailed pathways towards and specific terms of EU membership.  

Second is the curious lack of substance in the debate to date. Prof. Bell suggested there was a sense of ‘the cart coming before the horse’, in that the constitutional referendum process is unfolding without a sense of the substance of what the outcome might be. It was suggested that this is due to the lack of any incentive for either side to address what can be achieved within its least preferred option, and also due to the nature of the process itself. Prof. Walker observed that the players are also the umpires, and this leads to various problems, including a lack of willingness to engage and reach out for common ground; public confusion; and the risk of procedural fairness questions taking centre-stage instead of substantive issues.  

Third, and related to the second issue, is the considerable degree of uncertainty that still exists concerning the political and practical implications of either outcome in the referendum, whether ‘Yes’ or ‘No’.  The UK government has avoided setting out any clear plan, possible structures or timeline to address the outcome of a ‘yes’ vote, while the Scottish government has not addressed the consequences of a ‘no’ vote.  The likely consequences of a ‘yes’ vote were set out: the triggering of a constitutional crisis in the UK and an external re-positioning of the UK, including a reduction in the UK’s ‘hard power’ and a re-opening of other ‘legacy’ issues and post-colonial justice issues (e.g. Gibraltar and the Falklands). It was suggested that the consequences of a ‘No’ vote are less clear: the Scottish government has made no reference to the consequences of a negative vote and there is no commitment, between the governments, to ‘more devolution’ or ‘no more referenda’. It was noted that the lack of clarity has been compounded by a blurring of the lines between independence and ‘devo max’ in terms of the practical realities of independence, in the event of a ‘yes’ vote, which would see key symbols of Britishness retained, such as the monarchy and the pound. Reference was made to the Electoral Commission’s assessment of the referendum question in January 2013, which stressed the need to inform voters, before they vote, on what process will follow the referendum, whatever the outcome is, and the desirability of both Governments agreeing a joint position if possible; which, Prof. Walker suggested, is highly unlikely.

Fourth, the speakers and audience alike noted a general avoidance of appeals to a politics of identity in the process as a whole and, in Scotland in particular, a disjuncture between the strong cultural identity of the Scottish people and an identitarian politics supporting independence. Prof. Bell noted that neither party appears to feel comfortable appealing to nationalism, whether Scottish or British; arguments are instead articulated in instrumental and pragmatic ways.  Prof. Walker observed that, if there is an embarrassment regarding identity politics, this may be partly explained by the fact that disagreements at this level are more irrational and less amenable to resolution, and a more general discomfort regarding identity politics, particularly in northern Europe, based on a post-modern anxiety that arguments should not be based on identity.  However, he emphasised that, while it is not easy to broach the issue in Britain’s political culture, it cannot be fully avoided: one must still be able to say something about why Scotland rather than Britain, why Britain rather than Scotland; and the modern context where sovereignty is less centralised and authority inevitably multi-layered makes these debates more rather than less necessary. Prof. Bell suggested that the referendum is already reconfiguring Scottish politics and Scottish identity, in that the Scottish government is seeking to win ‘yes’ votes from sectors of the electorate who are not traditionally nationalist, and also given the fact that non-Scottish residents are ‘Scottish’ in the sense of having a right to vote in the referendum.

Finally, Prof. Walker emphasised the importance of viewing the referendum as an open-ended resolution, noting that this process has a long history, going at least as far back as the devolution bill in the late 1970s, and even further, to the election of the first SNP candidate in 1967. It is therefore important not to be excessively ‘event-focused’ on the referendum as a resolution of the process: whatever the outcome is, the resolution will be open-ended, especially given that sovereignty in the modern world is a matter of degree. No solution will be unqualified or absolute. Characterisations of the referendum as a full resolution may be simply a result of ‘process fatigue’, but tend to unduly exaggerate the urgency of the question or the finality of its answer. 

Tom Daly is a PhD student at the University of Edinburgh School of Law