This is a copy of a blog post that was, in the event, not needed. My colleagues have told me that my writing has a calming, if not soporific, quality, and I thought that I should use this skill to good effect by preparing a post for publication in the event of a ‘yes’ vote in the referendum.

 The post was written at a time when it looked like the vote could go either way. Now, just a few days later, the context in which it was produced seems both foreign and remote. There is a temptation – which I have resisted – to modify its text in the light of hindsight. I’ve left it unaltered: it stands as an exercise in counter-factual constitutional history, an engagement with the constitution crisis that might have been. 

Don’t Panic

After months, decades, of polls showing a substantial majority in favour of the union the decision by the Scottish people to vote for independence has come of something of a surprise. The reasons for this reversal will be analysed for years to come, and other countries facing secessionist pressures may have something to learn from the failure of the ‘no’ campaign, but for those in the United Kingdom the ‘yes’ vote raises a set of more pressing constitutional problems. For Scotland, the prospect of independence must be an exciting prospect, if also a daunting one. For the rest of the United Kingdom, though, the rUK, the Scottish vote may be seen as a rejection, even as an abandonment.

This post reflects on the immediate challenges facing each side of the divided union. It argues that these negotiations should not be seen as a zero-sum game: each side has an interest in ensuring that the other’s interests are protected. It considers the steps that will need to be taken in the rUK Parliament to begin this negotiating process. Finally, it moots a radical model for future cooperation between Scotland and the rUK: a new legislative body granted a limited jurisdiction by these two sovereign states, empowered to make legal and executive decisions at the level of the Union.

No Hard Feelings

Whilst it may be hard for some to appreciate this morning, Scotland’s secession vote is a story of constitutional success, a success of which all parts of the United Kingdom can be proud. Most new states are the product of war. The Scottish state will have emerged from a fair vote following a peaceful and informed campaign.

As a number of commentators have noted (see Martin Wolf in the FT and Alan Trench at Devolution Matters), the Scottish negotiating position is relatively weak. Most of what Scotland needs to be successful in the short term requires the support of the rest of the UK. Over the European Union, for example, prior to independence, Scotland’s engagement with European institutions will be mediated through the United Kingdom’s government. It will fall to the rUK to help Scotland secure the interim arrangements that will enable it to be treated as if it were a member of the EU in the period (quite possibly a period of five to ten years) between Scottish independence and its accession to the Union. Similarly, the immediate stability of the Scottish economy will depend on the action of the rUK government. It is likely that Scotland will see ‘capital flight‘ as companies and people shift their money from Scottish banks to rUK institutions, and financial institutions, and perhaps other businesses, will relocate from Edinburgh to London. rUK could act to mitigate this – but, in the aftermath of a ‘yes’ vote, why should it?

There are several reasons why the rUK should seek to help and support Scotland – and should resist the temptation of the immediate and superficial pleasures of adopting a tough negotiating stance. First, it is in rUK’s long-term interest to maintain a strong, friendly, relationship with Scotland. On a host of issues – from defence to foreign policy, from the economy to domestic security – rUK and Scotland will need to find ways to work together. It would be a mistake for the rUK to sour its relationship with Scotland for short-term advantage or out of a misguided sense of revenge. Secondly, it is in rUK’s immediate interest to have an economically successful state as a neighbour. Trade between Scotland and the rUK will be an important source of wealth to each side: a poor Scotland will be a weak trading partner. And if there were an economic collapse in Scotland – assome have warned – it is likely that there would be population movement from Scotland to rUK, placing pressure on rUK’s welfare systems.

In short, it is in rUK’s interests to negotiate generously with Scotland, even though Scotland has a weak hand to play in the negotiating process.

The last few paragraphs have discussed the political dimension of the negotiating process. This is, though, a blog on constitutional law: it is now time to consider the constitution issues that arise within this political framework.

The United Kingdom Parliament

The Fixed-Term Parliaments Act 2011 specifies 7th May 2015 as the date of the next General Election. This presents problems for negotiations between rUK and Scotland, as it will not be until after this election that the final negotiating team for rUK can be formed.   Alan Trench has argued that the date of the General Election should be brought forward, a decision that would allow the process to begin as soon as possible and give the UK Parliament a mandate for the negotiations. I agree, but before the current Parliament is dissolved it needs to enact two groups of measures to regulate the operation of the UK and Scottish Parliaments in the period between the ‘yes’ vote and independence.

First, the United Kingdom Parliament should transfer the broadest possible powers to the existing Scottish Parliament. The UK Parliament can no longer claim to represent the whole of the peoples of the United Kingdom and, so far as possible, the Scottish Parliament should govern and speak for Scotland. The UK Parliament – or the UK Government, though a section 30 order – should also empower the Scottish Parliament to create the processes and structures through which negotiations with the UK are to be undertaken. It is worth noting that it would be a mistake for the UK Parliament to enact, or to empower the Scottish Parliament to enact, the so-called Interim Constitution mooted by the Scottish Government. Some of the provisions in that document fall beyond the scope of Westminster – whether Scotland keeps the monarchy or introduces a new set of environmental rights are matters for Scots to decide – but others will be matters of negotiation. For example, the citizenship question – the question of who will become a citizen of Scotland and who will remain a citizen of the UK – will require careful discussion. This is not a decision that Scottish institutions can take by themselves. At the end of the negotiating process the UK Parliament should enact a thin constitution for Scotland before granting it independence – but this statutory constitution will almost certainly differ from the Interim Constitution proposed by the SNP, and will probably be quickly overtaken by a new, indigenous, document passed by the Scottish Parliament after independence.

The flip side of this transfer of powers should be a limitation of the capacity of Scottish MPs to vote in Westminster. The West Lothian question is a mainstay of constitutional seminars: why should Scottish MPs vote in the UK Parliament on matters that relate largely to England, when English MPs do not get to vote on similar matters that relate to Scotland? The question becomes more pressing the more powers the Scottish Parliament gains and, now, as Scotland is poised to leave the Union, the moral entitlement of Scottish MPs to vote in Westminster is severely limited. The problem is compounded by the need to hold a General Election during the negotiating process. It is possible that the balance of power in the Commons could turn on the presence of Scottish MPs: the Conservatives might win a majority in rUK, but Labour could win a majority of seats in the UK as a whole. Under the existing constitutional settlement, it is possible that the leader of the Labour Party would be invited by the Queen to form a government – and would be dependent on the support of Scottish MPs for his majority.

I have discussed this issue further elsewhere, but the ‘yes’ vote demands that the West Lothian question is addressed as a matter of priority. There are two problems that need to be resolved: the capacity of Scottish MPs to vote on rUK matters, and the role of Scottish MPs in the formation of the next rUK Government. Both of these issues can probably be resolved through a resolution of the Commons – though given their constitutional significance it might be preferable to use a statute. The voting rights of Scottish MPs should be limited to those areas that fall outside of the powers devolved to the Scottish Parliament, with the Speaker empowered to issue a ruling on the question in the event of disagreement.  This restriction on the voting power of Scottish MPs would go well beyond that recommended by the McKay Commission. For most practical purposes, Scottish MPs will cease to play a role in Westminster – but there will be some issues, such as foreign policy and some economic matters over which Westminster will still need to act for the UK as a whole, and Scottish MPs should be entitled to participate in these decisions. Allied to this, the Commons should pass a resolution requesting that the Queen not take account of Scottish MPs when deciding which party leader should be invited to become Prime Minister after an election.

The solution to the West Lothian question proposed in the last paragraph is a rough and ready one: it is only attractive because of the relatively short period of time during which Scottish MPs will continue to sit in the Commons after the ‘yes’ vote. The problems that the proposal would otherwise face – the capacity of Scottish MPs to serve as Ministers, the difficulties of distinguishing Scottish and rUK issues, the problem of maintaining voting limits on MPs in a system which supposedly remains characterised by parliamentary sovereignty – are far less pressing if the settlement need only last 18 months.

The Negotiating Process: A New Legislature for the Union?

Part, perhaps even a large part, of the negotiating process will revolve around the division of assets and liabilities between Scotland and rUK. Prior to the vote most of the debate in the media has focused on this issue; the question of who gets what out of the Union.   Less consideration has been given to another aspect of these negotiations: the need to create a new set of institutions through which the rUK and Scotland can agree on joint action. These new institutions will be necessary in a host of areas: from aspects of foreign policy to immigration, from security to transport, there is a range of decisions that must be agreed by the two states before action can be taken. Beyond this, there is a broad penumbra of issues outside of this core in which cooperation is desirable, even if not essential. There would be advantages in adopting common, or at least complementary, economic and social policies, for instance.

There are two groups of forms these transnational institutions could take. First, they could be forums in which representatives of the executives of the two states meet. The British Irish Council could provide a model for this, or might even provide a basis from which such an institution could develop. Second, and more radically, a body, perhaps a legislature, could be created that had a closer connection to the people or the Parliaments of the states it represents. Its members could either be directly elected by the peoples of Scotland and rUK, or they could be drawn from the Parliaments of those territories.

I want to end this post with a radical suggestion, that would require a deal of imagination on each side – rUK and Scotland – to come about. One model for future cooperation that should be on the table is a new rUK/Scotland legislature; empowered by those two states to make legally binding decisions in defined areas. The greater the powers given to this body, the more constitutionally significant it will become. At the most extreme, a legislature and executive could be created at the rUK/Scotland level. If a currency union were to come about, regulatory and fiscal decisions could be made at this level. Similarly, the apparatus of foreign and defence policy could be accountable to this set of institutions – indeed, perhaps the relationship of the states and some international institutions could be mediated through these bodies. rUK and Scotland could share the UN security council seat, and hold joint membership of the EU. This new constitutional settlement would have to be ratified by each side – as sovereign states, both Scotland and rUK would have to agree to the deal – and, probably, would require the approval of a referendum in each territory.

Such a proposal might seem like a pipe dream whilst Scotland is still heady with the excitement of independence and the rUK is feeling the bitterness of rejection. But each side would have much to gain from the deal. It would solve the problems presented by the division of currency, EU membership, and maintain the strength of the Union internationally. It would also constitute an innovative form of constitutional structure grounded in the agreement of two states to act together for their common benefit: a model from which, perhaps, other states might draw inspiration.

 Nick Barber is Associate Professor of Constitutional Law at Oxford University, and a Fellow of Trinity College, Oxford.

This post first appeared on the UK Constitutional Law Blog.