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Barry Winetrobe: Will the Scottish Referendum Produce 'a Decisive and Respected Outcome'?

As the Scottish independence referendum campaign reaches its final days, it may be worth highlighting a little-discussed aspect which may become very relevant immediately after 18 September – the assumption that the referendum will resolve the matter, either by a Yes vote inevitably leading to independence, or a No vote leading to the continuation of the present UK, probably with more devolution.

Is this assumption valid, especially if there is a Yes vote? Will any Yes outcome inevitably and irrevocably lead, in some to-be-determined process over the coming months, to the creation of an independent Scotland outside the UK?

This assumption seems to derive from the 2012 Edinburgh Agreement between the UK and Scottish Governments, certainly in the view of the Lords Constitution Committee in its recent inquiry on the constitutional implications of the referendum. ItsMay 2014 report stated that

the UK Government…in the ‘Edinburgh agreement’ of October 2012, agreed to accept as binding the result of a referendum held before the end of 2014 (para 3) and the Edinburgh agreement was for a ‘decisive’ referendum whose outcome will be respected on both sides (para 67).

The latter statement arose in response to a speculation by one witness, Professor Iain McLean, that Scottish MPs might wish to remain in the Commons after a proposed Independence day if an anti-independence Scottish Parliament was elected in 2016 and wished to ‘abort the negotiations – however small that likelihood is.

Though there is some other documentary evidence of this view, even from UK Government sources, a close reading of the text of the Edinburgh Agreement may not bear out this interpretation unequivocally. The preamble stated that

The governments are agreed that the referendum should .. deliver a fair test and a decisive expression of the views of people in Scotland and a result that everyone will respect

and paragraph 30 said:

They look forward to a referendum that is legal and fair producing a decisive and respected outcome. The two governments are committed to continue 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.

In my written evidence to the Committee, I considered the ‘decisiveness’ of a Yes vote:

The referendum question’s unfortunate phrasing and the absence of any further direct recourse to the people in Scotland or, at any point, in the rUK specifically on Scottish independence and the future of the UK, means that there is no necessary guarantee that a Yes vote will inevitably lead to Scottish independence within a relatively short period of time or at all. Despite the two Governments’ Edinburgh Agreement statement that ‘everyone will respect’ the result, it is unrealistic to expect that all anti-independence forces will cease to work for the maintenance of the Union from 19 September 2014 onwards, especially if there were to be a ‘close result’, in terms of the size of the Yes majority or the level of turnout5, and/or if post-referendum polling suggested any significant drop in support for independence. All the necessary processes – from the various negotiations themselves to any parliamentary legislative procedures – provide opportunities for pro-Union forces to pursue their opposition, overtly or otherwise, to Scottish independence.

This makes it probable that any major election, such as those in 2015 and (if the process is not completed by then) in 2016, becomes a surrogate for such a direct say. These election campaigns will be an obvious further opportunity for anti-Independence forces to persuade Scotland to ‘change its mind’.

I also noted further potential difficulties if, for example, distinct parts of Scotland, such as the 3 islands areas, vote No (a recent Holyrood petition asked that they be given a second referendum a week later). In addition, it is impossible to predict the ‘political’ weather in both Scotland and the UK over the next 2-3 years, and the political make-up of their parliaments and governments (and so of the respective negotiating teams) after their respective general elections, or to foresee what major economic or geo-political shocks may have an impact on Scottish and UK politics during the post-referendum period.

Some, whatever their view on the substantive issue of Scottish independence, may question the fairness of a proposition that while a No is decisive for, say, a generation, a Yes is, like a Christmas puppy, ‘for life’. Again, presumably no one would question the democratic right of an independent Scotland to decide, at some point in the future, to alter further its constitutional status, by, for example, ‘rejoining’ the rUK in some form. It seems odd if the only point in time when such a decision cannot be made is after a Yes vote but before actual independence. Or, to put it another way, whatever else changes in the constitutional/political world over a period of 18 months or whatever, there is to be one fixed and unalterable constant, that of a successful process resulting in independence. That seems as absurd as the idea that no change to the power or composition of the House of Lords is to have any impact on the relative primacy of the House of Commons.

Professor Aileen McHarg, in her recent thoughtful blogpost, Has the United Kingdom had a good referendum?, suggested that one of the flaws of the referendum campaign had been a focus on the ‘Union’ (i.e. the link between Scotland and the other 3 nations by a common state) rather than on the nature and constitution of that ‘United Kingdom’. Perhaps that latter debate will suddenly emerge after a Yes vote, as the implications sink in at ‘the centre’? As independence negotiations proceed – or possibly stall – the call for a wider rethink of the UK itself may gain traction, with a resort, say, to a parallel ‘UK Constitutional Convention’ (as some in Westminster and elsewhere have been calling for anyway) as a way out.

Who knows, given the muddled and ‘unintended consequences’ ways of British constitutional change, perhaps the outcome of a Yes vote for Scottish independence may not be Scottish independence, but a constitutionally reformed – perhaps even federalised – UK, including Scotland!

Barry K Winetrobe has taught constitutional law and government for many years, and has written many articles and book chapters, and given evidence to parliamentary and other committees, on Scottish/UK constitutional developments.

This post first appeared on the Constitution Unit blog.

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