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Aileen McHarg: Has the United Kingdom Had a Good Referendum?

Last Friday, I took part in a Scottish Constitutional Futures Forum event at Edinburgh University, entitled 100 Days to Go: Four Nations and a Union.  The aim was to explore the impact of the independence referendum from the perspective of the United Kingdom and each of its constituent nations.  The question I sought to answer was ‘has the UK had a good referendum?’  In other words, has the UK as a state or a constitutional entity had its standing and legitimacy enhanced or diminished by the referendum process?  Is it likely to emerge after 18 September changed or unchanged?  Will it be stronger or weaker as a result?

A Question of Perspective

The answer to this question is, of course, at least partly a matter of perspective.  Viewed from abroad, the UK will probably emerge very well from the referendum, whatever its result.  The mere fact that the UK state has permitted the referendum to take place, and that the question whether Scotland should become independent is being addressed in an entirely peaceful (if sometimes ill-tempered) way, through a fair, democratic, lawful and well-regulated process is a fine tribute to the British constitutional virtues of flexibility and pragmatism, and to the UK’s long-standing commitment to democracy and the rule of law.  We don’t have to look very far to find examples of how badly some other constitutional orders deal with secessionist pressures.

However, from my perspective – which is that of someone who lives in Scotland, who is very closely engaged in the constitutional debate, and who (having initially been undecided) now intends to vote ‘yes’ to independence – I find it hard to avoid the opposite conclusion: that the UK has not had a good referendum.

In this post, I want to explain my reasons for reaching that conclusion, and to explore the potential implications for the UK and its constitution in the event of a no or a yes vote.

The Polarisation of the Debate

One set of reasons why I think that the UK has not had a good referendum stems from the inevitably polarising effect that the independence debate has had on the attitudes of people (or at least people within Scotland) towards the UK.

Undoubtedly, for some on the ‘no’ side, the referendum will have had the effect of deepening their commitment to the UK.  It will have transformed what Colin Kidd tells us was in Scotland hitherto predominantly a banal or ‘wallpaper’ unionism[1] into a much more active and passionate loyalty to the UK, and a stronger sense of British identity, as the prospect of losing it is contemplated.  If, as still seems the more likely outcome, there is a ‘no’ vote on 18 September, then perhaps the UK could be said to have been strengthened as result.

There are, however, three problems with this interpretation.  First, the impression I get is that, for many committed ‘no’ voters, the referendum campaign has not been a positive experience.  In fact, I get the distinct sense that many people would rather it wasn’t happening at all, and that they just want to get it over with.  Undoubtedly, the referendum campaign has been experienced very differently by committed ‘yes’ and ‘no’ voters.  For ‘yes’ campaigners, this is an exciting and hopeful time, pregnant with possibilities for change and new beginnings (vague and sometimes conflicting though these may be).  For some ‘no’ campaigners, facing the risk of losing something very important to them, it may be no exaggeration to say that it has been a deeply traumatising experience.  This helps to explain, I think, some of the extreme negativity of the ‘no’ campaign: it is very much a defensive process, which has not therefore generated much by way of a positive case for the UK.

Secondly, given that negativity, there will be a large proportion of that putative ‘no’ majority for whom their vote is less an endorsement of the UK than a judgment that the case for independence has not been made out.  Polling evidence that sufficient people would shift their vote to produce a ‘yes’ majority if they thought that they would be financially better off in an independent Scotland, or if David Cameron were to win a second term as Prime Minister in 2015 does not suggest a strong attachment to the constitutional status quo.

Thirdly, the referendum campaign has had a polarising effect on ‘yes’ voters too.  For many people who started off the process undecided or lukewarm about independence, the campaign will have had the effect of reinforcing their dissatisfaction with the status quo.  Again, to some extent that will have been a consequence of the way in which the ‘no’ campaign has been conducted.  For some people, their reaction to some of the perceived threats or misrepresentations (particularly from the UK Government) about the consequences of a ‘yes’ vote will have been ‘well, if that’s what you really think of us, we’ll be better off without you’ (I could put it less politely).  As Michael Keating has pointed out in the context of the issue of EU membership, the sheer implausibility of some of the ‘no’ campaign’s arguments has had the perverse effect of letting the ‘yes’ campaign off the hook.  They need only point to the flaws in the ‘no’ campaign’s arguments rather than robustly defending their own position.  In this sense, negativity may be said to have bred negativity.

However, there will be many people who vote ‘yes’ for whom this issue not about national identity, nor about them and us.  We see that, for example, in the proliferation of grassroots campaign groups, such as Africans for an Independent Scotland, English Scots for Yes, and EU Citizens for an Independent Scotland.  For many people, the attraction of independence is the opportunity it presents to do something different; to break away from what they see as the flawed – and apparently unreformable – UK constitutional, political, economic and social model.  For such people, the issue at stake is not merely one of more powers for, or greater constitutional recognition of, Scotland, but rather what can be done in the context of a new state, which (apparently) cannot be achieved within the UK.

So, even in the event of a ‘no’ vote, there will nevertheless be a substantial minority of people in Scotland for whom the legitimacy of the UK state has been weakened, and only a committed unionist minority for whom it has been actively strengthened.  This seems to me to be problematic in terms of the long-term stability of the UK, and Scotland’s place within it.

Union Not United Kingdom

The second reason why I think that the UK has not had a good referendum is that it has actually not featured very much in the campaign.  That might seem a strange thing to say, because of course the choice on offer is between remaining part of the UK or becoming a separate state.  However, it seems to me that the entity being defended by the ‘no’ campaign is the Union, not the United Kingdom, which is not exactly the same thing.  In other words, the idea that is being defended is that Scotland should continue to be linked to England, Wales and Northern Ireland in a common state.  However, that state – the United Kingdom – as it currently exists is not being actively defended.  On the contrary, all three main unionist parties now accept that it needs to change in the event of a ‘no’ vote.

This focus on Union rather than United Kingdom is problematic in two senses.

Pragmatic and One-Sided Debate

First, the emphasis of a Unionist rather than UK narrative is on Scotland and its interests rather than the UK and its future.  Scotland is thereby promoted as the primary unit of political determination and political identification, and the Union is constructed in primarily instrumental terms.  The question becomes, to borrow from Monty Python, ‘what has the Union ever done for us?’

As the campaign has gone on, the nature of the case for remaining in the Union has become pretty clear.  It is essentially twofold: an argument about greater economic opportunity and economic security, and an argument about increased international power and influence and hence greater physical security.  There are interesting, and potentially important, differences of emphasis as between the various unionist parties (particularly between Labour and the Conservatives) and aspects of the case are certainly not unarguable.  Nevertheless, the terms of the debate are by now reasonably well understood.

However, what is much less clear is what Scotland has ever done for the Union.  There has been very little attempt to articulate why the UK benefits from retaining Scotland.  In fact, the impression given by the UK Government’s various Scotland Analysis papers is that the practical benefits are all on Scotland’s side, and that the rest of the UK could manage very nicely without us, thank you very much.

Of course, this is unlikely to be entirely true, and one can guess at the reasons (particularly regarding reduced international strength) why the UK government is keen not to lose Scotland.  However, the general point I’m making is that the emphasis on the Union rather than the United Kingdom means that the anti-independence case has been made in largely pragmatic and rather one-sided terms, which does very little to reinforce the legitimacy of the UK state.

Lack of Critical Engagement

The second reason why the focus on Union rather than United Kingdom is problematic is because it fails to engage with the deeper critique of the British state that animates some of the ‘yes’ campaign.  As I’ve already said, the case for independence is not just about dissatisfaction with Scotland’s place in the Union, but is about dissatisfaction with the nature of the UK state itself.  This is, of course, nothing new.  The same double critique of the constitutional status quo was present in the campaign for devolution in the 1990s, and the same desire for democratic renewal – to do things differently and better – as well as to address Scotland’s democratic deficit informed the design of the devolution arrangements.  In that sense, devolution and independence are clearly part of the same constitutional debate; they are not, as some have argued, separate issues requiring different constitutional processes.

Undeniably, some of the criticisms of ‘Westminster’ are rather vague and ill-considered; to some extent, ‘Westminster’ serves as a general bogeyman to be blamed for all Scotland’s political ills.  However, there are more considered critiques which serve as a counterpoint for the kind of new Scotland that many ‘yes’ campaigners are seeking.[2]  Again, though, there is nothing particularly novel about these critiques.  They are fairly standard and familiar criticisms about, for instance, the stunted nature of British democracy, excessive centralisation, inadequate respect for fundamental rights, an imbalanced economy, a grudging and beleaguered welfare state, and so on.  In other contexts, you would expect many in the ‘no’ campaign to agree with some or all of them, and they are issues which are of course being discussed elsewhere.  But there has been no engagement at all that I have seen with these criticisms in the context of the referendum debate.  The substantive constitutional and policy debate is all on the ‘yes’ side, particularly around the design of a post-independence Scottish constitution.

To some extent, of course, that is entirely understandable.  Tactical considerations dictate that one should focus on exposing the flaws in the other side’s case, rather than debating the weaknesses in one’s own.  The defensive nature of the ‘no’ campaign, identified above, may also suggest a desire to close down rather than open up the constitutional debate.  However, this failure to engage with criticism of the UK and its current constitution has had further unfortunate implications for the conduct of the ‘no’ campaign. 

Perhaps the most common way in which it plays out is in producing a rather lacklustre defence of the UK.  Colin Kidd made the point in a recent essay that ‘[l]oyalty towards the British-state-in-theory is compromised by one’s immediate feelings towards the British-state-in-practice.’[3]  This might be called the ‘UKOK’ defence of the Union.  The UK is okay.  It’s not great, but it’s okay.

Alternatively, although less frequently, you get a rather more enthusiastic, but unconvincingly jingoistic defence of the UK: the litany of Britain’s past glories and the claim that it is a force for good in the world (see, for example, recent essays by Simon Schama and Adam Tomkins).  This kind of argument invites a ‘yes, but’ response.  Britain led the way in abolishing slavery – yes, but what about our role in the slave trade or our record as a colonial power?  Britain is an exemplar of the rule of law and individual liberty – yes, but what about the Iraq War or the advent of secret trials?  And so on.

A third (and particularly unattractive) strategy is to deflect criticism of the British state by rubbishing the desire for an independent Scotland to be different.  So in recent weeks we have seen, for instance, claims that people in Scotland are just as keen to curb immigration, cut down on overseas aid and crack down on benefit claimants as people elsewhere in the UK (and there was actual gloating from some on the 'no' side when UKIP won a seat in Scotland in the European Parliament elections).  We have also seen arguments that an independent Scotland would not be able to afford a more generous welfare state.  Further, there has been quite a lot of recent focus on the shortcomings of the Scottish Parliament and Scottish political life more generally, with the promotion of a general theme about the centralising and dictatorial nature of the SNP government in particular.  None of these arguments is necessarily wrong, or illegitimate.  But my point is that the ‘no’ campaign has sought to deflect criticism of the UK onto criticism of Scotland in a way which simply reinforces the overall negativity of the campaign.

Again, therefore, by failing to engage with the ‘yes’ campaign’s critique of the UK, the ‘no’ campaign has failed to take the opportunity to build positive support for the UK.  This approach to the campaign, coupled with the fact that the referendum debate is still one which is taking place largely within Scotland, has a somewhat paradoxical consequence.  While the referendum will quite clearly be seen as a ‘constitutional moment’ for Scotland, irrespective of its outcome – i.e., a defining moment in the polity’s constitutional development[4] – it is highly unlikely that it will be regarded as a constitutional moment for the wider UK.

The United Kingdom After a ‘No’ Vote

This does not, however, mean that there will be no constitutional change for the UK after the referendum.  On the contrary, as I have said, in the event of a ‘no’ vote, all the major unionist parties are now promising reform of the devolution settlement in Scotland.  The Conservatives’ Strathclyde Commission published its proposals earlier this month, to add to earlier proposals from the Liberal Democrats and Labour.  Moreover, it now appears that a joint commitment to reform (although not to a precise set of proposals) from all three parties is imminent in order to reassure sceptical voters.    

What, then, is the likely scope of that reform?  Although there are important differences between the three sets of proposals, there are nevertheless some interesting common features.  One which has been rather overlooked in the press coverage is that all three parties are not merely offering more powers (particularly financial powers) for the Scottish Parliament, but that all recognise the need for broader constitutional reform – albeit in differing forms and with different degrees of radicalism.  The Liberal Democrats have the most radical vision, advocating a fully federal UK accompanied by a written constitution.  This is, however, only in the long-term.  In the short term, they propose in effect merely to strengthen the Sewel Convention.  Labour go slightly further, proposing both to legally entrench the Sewel Convention and (more vaguely) to strengthen and formalise inter-governmental relationsBoth parties have also called for an explicit statement of the purposes of the Union to guide future relations between the UK and the devolved nations.  Perhaps not surprisingly, the Conservatives are the least radical in terms of wider constitutional recommendations, making only a general call for future developments to devolution to be considered in the round by a committee of parliaments and assemblies, but with no precise remit and no timetable.

Two things are, however, notable about these reform proposals.  First, they are exclusively focused on the territorial constitution – there is no link to any broader set of constitutional debates or reform proposals in any of the parties’ reports.  Second, in terms of concrete proposals, they are limited to Scotland.  In other words, they appear to be primarily tactical in motivation, continuing the pattern of asymmetric and reactive devolution which has characterised the territorial constitution to date.

Certainly, here are no grounds for thinking that cross-party agreement on the need to strengthen devolution in Scotland signals any deeper cross-party commitment to reform of the UK constitution.  Nor do I think, realistically, that the reform agenda has the prospect of becoming anything bigger.  Although there have been various calls for the establishment of some form of constitutional convention after the referendum, which could in principle trigger much broader-ranging process of constitutional renewal, this seems unlikely to happen.  In the first place, I think that the pressure will be on the unionist parties to do something reasonably quickly to make good their pre-referendum promises.  Secondly, I just don’t detect much broader appetite for joined-up constitutional reform.  The House of Commons Political and Constitutional Reform Committee may be keen, but they carry few other people with them.  Nor do I see at the UK level much appetite for the kind of radical democratic and constitutional renewal being discussed on the ‘yes’ side of the referendum: House of Lords reform is effectively stalled; reform of the House of Commons electoral system is off the agenda; human rights protection is more likely to be rolled back than extended, and so on.  At best, therefore, post-referendum constitutional reform is likely to result in some further incremental (and probably suitably ambiguous) moves towards a quasi-federal status for Scotland, rather than any more thorough-going recasting of the UK state.

All this raises the question whether the UK constitution is actually capable of radical reform.  In formal terms, of course, the UK has the ultimate flexible constitution; nothing is constitutionally sacred.  In practice, however, the constitutional culture is a very conservative, and power-hoarding one, which prefers incremental over root-and-branch reform.  Constitutional cultures can, of course, change, and the UK’s constitutional culture has to some extent changed already.  But cultures take decades to change.  This is the reason why I said above that for many people who are intending to vote ‘yes’ it is because the UK seems to be unreformable.  No doubt, many of the hopes for an independent Scottish state are unrealistic, and are likely to be disappointed, just as some of the expectations of devolution turned out to be disappointed.  But a new state at least offers hope for constitutional renewal where there seems to be none at present.

The United Kingdom After a ‘Yes’ Vote

What then, finally, of the prospects for the UK in the event of a ‘yes’ vote?

Here too the most likely scenario is one of continuity rather than change.  In laying claim to successor state status – and with it all the UK’s institutional apparatus – the UK government is certainly making a strong claim to constitutional continuity.  This is an argument which some nationalists can’t fathom.  They can’t understand how a state which is founded on a union can continue unaffected when that foundation union is broken.  The response is, of course, as Colin Kidd explained in his SCFF lecture last year, that the Union has never really been seen as foundational south of the border.  For the rest of the UK, then, the strong impression given regarding the effect of Scotland becoming independent is that, while some of its passengers may have left in one of the lifeboats, the ship of state will sail on regardless.

In fact this continuity view is reinforced by the fact that losing Scotland would rid the UK of one of its major constitutional irritants.  It would be far easier, for instance, to abolish the Human Rights Act or to withdraw from the EU without the uppity Scots objecting.  And potentially destabilising constitutional problems like the West Lothian Question would also be largely resolved.

Of course, Wales and Northern Ireland would remain as complicating constitutional factors.  But Northern Ireland has for most of the last century been largely ignored by mainstream constitutional thinking in the UK – placed in a box marked 'special case – do not open', while devolution to Wales has to a very large extent hung on the coat tails of Scotland.  With Scotland removed from the equation, some of the centripetal dynamic in Wales – which is politically much less different to England than Scotland is – might well be lost. 

This may of course be wrong.  It may be that a yes vote would trigger demand in Wales and Northern Ireland for greater constitutional protection from an even-more-dominant England.  It may also be that the loss of Scotland would be such a shock to the UK system that it produces a period of constitutional upheaval and re-examination.  However, the general lack of interest in the independence referendum from elsewhere in the UK tends to suggest otherwise.  James Mitchell has argued that the UK is best understood, not as a unitary or even a union state, but increasingly as a state of unions.[5]  In this context, the UK as an overarching constitutional entity is perhaps not merely absent from the current constitutional debate in Scotland, but increasingly less relevant throughout its constituent nations.

Aileen McHarg is Professor of Public Law at the University of Strathclyde

[1] C Kidd, Union and Unionisms: Political Thought in Scotland, 1500 – 2000 (2008), ch 1.

[2] See, e.g., T Nairn, The Break-up of Britain: Crisis and Neo-Nationalism (1977; 2003); S Maxwell, Arguing for Independence: Evidence, Risk and the Wicked Issues (2012); G Hassan, Caledonian Dreaming: The Quest for a Different Scotland (2014); R McAlpine, Common Weal: Practical Idealism for Scotland (2014).

[3] C Kidd, ‘The Defence of the Union: Ironies and Ambiguities’, in G Hassan & J Mitchell (eds) After Independence (2013).

[4] Ackerman, B, We the People Volume 1: Foundations (1991).

[5] J Mitchell, Devolution in the United Kingdom (2009).

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