Through a glass, darkly : Glimpsing Scotland’s constitutional future


A lecture given by Professor J D Gallagher, Policy Scotland, Glasgow University on 21 October 2015

In this lecture I want to do three things. Take stock, just over a year after the referendum, of where Scotland now stands, and identify the most salient constitutional fact about Scotland; and make a proposal for dealing with this reality.

Anniversary management

I am glad to be giving this lecture one month after the referendum anniversary, and a week after the SNP conference, and not at the time of either. Marking political anniversaries can be a fraught business. History gets reconstructed, refreshed, and used as a battering ram. Just ask the Irish. It seemed to me that a month ago was an occasion hyped up to something close to hysteria. If you were to read some of the press coverage, never mind the rantings in some of the more excitable parts of the Internet, Scotland was only a short step away from a rerun of the referendum, in which the population would comprehensively reject the union with England, and all that goes with it. The usual compliant commentators talked about inevitability. Enthusiasts on the Yes side demanded Scotland be asked the question again. Presumably they would keep asking it until they get the answer they want, at which point the enthusiasm for consulting the population would presumably cease abruptly. The only legitimate majority for them, it seems, is a Yes majority.

We need to get some perspective on this. Of course, the 45% vote for Yes in the referendum was a big achievement for nationalist movement. Of course, 56 now 55 SNP MPs was a remarkable general election outcome. But they are really just the same thing: 45% scoops the pool in a first past the post election. And 2 more things follow as a matter of course. 45% of course lost a referendum, and the electorate saying pretty much the same thing again 6 months later is absolutely no argument, of course, to rerun the referendum process.

The deal with the last referendum was that it was “once in a generation”. I’ve never been quite clear how long a generation was, but it’s measured in decades, not months. The SNP leadership are ambivalent about a rerun. At a tactical level, they know they couldn’t afford to lose two in a row. But more sensibly, I hope, any wiser heads in the nationalist movement understand that leading a deeply divided country into independence would be a recipe for disaster. I will return to this question of division and its implications later.

A different recollection

It is normal at this point, looking back at the referendum, to say earnestly that it was a great process of democratic engagement. After all, over 80% of the electorate turned out to vote. There was more debate, in the media, online, and even in public meetings on this than on any other public policy question I have seen. Citizens, we are told, were engaged and excited. I myself was certainly engaged, as the process consumed my life for 2 years or more, as a citizen, an academic, as a talking head, a campaigner and goodness knows what else. And I suppose I got quite excited. And there were some good things about the referendum process. By and large, it was reasonably good-humoured, and generally if not wholly unvitriolic. It was unusually well-informed, at least if you think the publication of academic analysis and weighty government documents make a debate well-informed. Despite the emotion, it passed off without many unpleasant scenes.

At this point, I would normally be expected to say that I would not have missed it for the world. But let me tell you I most certainly would have. I didn’t ask for the referendum, I didn’t propose it, I was forced to take a view on a question that I didn’t particularly want to be asked and forced into arguing publicly against a change that I thought was wrong and dangerous for the country. Just to be clear I’m not making an anti-democratic point here: I’m talking about my experience, and the experience of many, of this particular referendum.

The single most important political fact about Scotland

I think you will find that my experience and my view are that of about half of the Scottish people. This referendum, for all the pious talk of democratic engagement, was a deeply divisive process. Not only did people have to make a binary choice, but the experience of the process was profoundly different for the two different groups. Yes campaigners and many Yes voters were carried along on a tide of relentless positivity, buoyed up by hopes and sustained, it seemed to me, by something very like a revivalist fervour. No voters, on the other hand, found themselves having to make a choice they hadn’t sought. They were reluctant guests at a party they were compelled to attend. Often they were uncertain, fearful, and (here I speak from personal experience) accused of being somehow disloyal, anti-Scottish and sometimes worse.

This isn’t just anecdote. Surveys conducted after the process show how differently the two sides felt. Most Yes voters thought the referendum brought the country together. What they actually experienced was that it brought them together with other like-minded individuals, their new co-religionists. They simply forget those on the other side. The overwhelming majority of No voters saw that it divided the country. Most Yes voters say they were able, during the campaign, to speak out and to have their say. The experience of No voters was quite the opposite: around half of them were inhibited from speaking. And of course there’s plenty of evidence of division between friends, and within families, over the issue.

So when we look back at our great democratic festival, and when we construct a narrative of what a fine, empowering, participative process it was, we’re denying the experience of half the population. Two years of talking about independence split the country down the middle. Of course one can say it was a great triumph for the Yes side to get so many people on their side of the divide – but the divide is their real achievement.

Was this the intention of the SNP? I don’t think so, because they hadn’t planned to have a referendum at all. Remember that a manifesto promise to hold a referendum was a device which sanitised an SNP vote for those opposed to independence but wanting change at Holyrood, while at the same time it offered committed supporters of independence a potential route to their goal. But the promise was made in the expectation that the absence of a majority at Holyrood, or the intransigence of government at Westminster, would mean it didn’t have to be delivered.

The referendum did however happen, and now we have to live with the consequences. The consequence is a politics still defined by the constitutional question and a society split down the middle. That’s the single most salient fact about Scottish politics today. How do we deal with it?

Dealing with division

Some years ago the SNP changed its emphasis. It decided to emphasise that it was the Scottish National Party, not a Nationalist Party, and it set itself twin objectives, promoting Scottish independence and promoting the interests of Scotland. You might reasonably ask whether it is possible to do both of these things at the same time, as it is pretty plain, certainly in my view, that independence would not be in the interests of Scotland. But that is another story. What we saw at the time of the referendum anniversary however was a movement which was wholly nationalist, not national, not reaching out to the other half of the nation, and a party apparently wholly consumed by the objective of promoting independence.

SNP politicians, dominant in Holyrood and Westminster, were playing to that half of the country which supports them, but not to those who are alienated from their project. Indeed one has the sense that the SNP leadership, having created the extraordinary energy of the Yes movement are being led by it. Perhaps they welcome that, perhaps they are elated by it; but I suspect there are also pretty worried by it as well. Nicola Sturgeon is riding a tiger, and she may not dare to get off. Hence she temporises on another referendum. She cannot say she does not want one, for fear of the tiger. Instead she tries to position the SNP as having an unfettered right to decide when to call another referendum and tells her supporters: the people will decide when, and she’ll decide when they have decided.

Now we learn from leaks to the BBC that she’ll know that when the opinion polls move far enough her way. That is cynical. You might think this just the stuff of internal nationalist politics, how to manage the zealots while still acting like a government. And from an internal nationalist perspective that maybe how it is seen. But from the point of view of the country as a whole, it’s a process which intensifies division, rather than producing any form of reconciliation or shared way forward for the whole of Scotland.

If I am right in saying that division on the constitutional question is now the single most salient fact about Scottish politics, it is extraordinary that Scotland’s political leadership says or does nothing about. And for good or ill, Scotland’s political leadership is the SNP, now utterly dominant in Westminster and Holyrood. Indeed it was striking that, apart from a pious, rather naive, church service two days after the vote, no serious effort of any sort has been made to reach across the divide created by the referendum.

It is not that the SNP are unaware of the problem. One of the more entertaining episodes of referendum anniversary was the release of Alex Salmond’s victory speech. It was as if Captain Kirk had been beamed into an alternate reality, in which he had won. The striking thing was that it was under the banner “One Scotland”, and concentrated on building bridges to those who had voted No. But it is interesting that reconciliation was only contemplated if the Nationalists had succeeded. If the people decide the other way, we must remain a divided nation. That is neither healthy nor acceptable.

So if the triumphalist anniversary celebrations were not the way to deal with division, what is? There are lessons which can be drawn from other divided societies, often post-conflict. I referred to Ireland earlier, and I hesitate to make any direct analogy between the story of that island, and in particular the divisions in the Northern Ireland, and Scotland’s position. I would prefer to hope that, building on the positive aspects of the referendum experience, Scotland could offer a model for others. Nevertheless there are some obvious morals to draw from others’ experience.

The simplest is mutual respect for the legitimacy of each side’s position. They are not there to have their wishes disregarded, nor simply to be converted. When SNP politicians talk about “reaching out” to No voters it is to convert them, not to listen to them. A politics that consists of nothing other than campaigning for another referendum on independence is not consistent with mutual respect. The SNP affect to believe that history is on their side, but behave as if it is not. If independence is indeed inevitable, as the sweep of public opinion changes in a decades-long process, then all independence supporters have to do is wait, and the fruit will fall into their lap. Instead many give the impression of being desperate to crystallise any temporary 51% of support into an irreversible change to independence.

Of course mutual respect cuts both ways. There is one sense in which the Unionist side of the argument has been over-respectful: every argument for Scotland’s remaining in the UK was preceded by some hesitant throat-clearing about the legitimacy of aspirations for independence, acknowledging that it was not impossible. In campaign tactical terms, this was a triumph for the Yes campaign. By presenting a caricature of the No argument – “too wee, too poor, too stupid” – they persuaded their opponents to announce that Scotland was big, rich and clever, before saying that it should nevertheless remain in the UK. But that’s not really about mutual respect. Mutual respect on the UK side of the argument means acknowledging that if is to Scotland stay in the UK, the UK has to change. I’ll talk about that again later.

Three steps to “Constitutional generosity”

I recently heard a French Canadian scholar use the phrase “constitutional generosity” in the context of the Québec argument. He thought it would be a good thing, for a divided society, but did not have any very specific proposals to make it real for either Quebec or Scotland. But it is nevertheless an intriguing concept. If both sides of the argument in Scotland could find a way to demonstrate constitutional generosity, perhaps Scotland could invest all the energy and talent devoted to constitutional argument into political and social development.

If mutual respect is the first step, the second is acknowledging the constitutions are not an end in themselves. They are a means to an end. This is, if you like, the “constitutional” element of the generosity. We have that acknowledge that all this constitutional argument is a prelude to how we make the lives of our citizens better, and can only be justified for those reasons. Even that most sanctified of constitutional documents, that crystallisation of Enlightenment philosophy, the US Constitution, is avowedly a means to an end, set out in the Declaration of Independence, the aims of “life, liberty, and the pursuit of happiness”. To put it very bluntly, anyone who thinks that constitutions are ends in themselves is a fanatic. The referendum unearthed enough of those, but I was intrigued, and pleased, to learn that the present First Minister is not amongst them. She says that independence is a means to the end of social justice. I reckon she’s wrong there, but at least it’s potentially a basis for dialogue across the divide.

The third step is the willingness to take a risk about one’s own position. That’s more than just saying that if there were a referendum you might lose. It’s about acknowledging that in the long run the opposing view might become the settled position of the Scottish people. Because, in truth, a referendum is a rotten way of making an irreversible and closely contested choice. It’s a good way of confirming a choice that has already in essence been made, but when the population as a whole hasn’t settled on a view a referendum is, as we have seen, a recipe for division. Both sides in the constitutional argument in Scotland have to accept that in the long run their position might not prevail in the minds of the people, and be genuinely willing to accept that. What’s been disappointing about the referendum, and what shows that referendums are not the best way of making an irreversible but closely contested decision, is the number of people who are simply not prepared to take No for an answer.

Of course there is an asymmetry here. If there were another referendum, and it secured 55%, it’s hard to imagine Nationalists saying the question was anything other than settled. Everyone would be compelled to take Yes for an answer. But when it was 55% the other way, many on the nationalist side seemed to take a different view. This illustrates not so much intellectual dishonesty in nationalism – though I see plenty of that – but that a referendum does not work for so closely divided a question, whichever way the balance lies. Indeed Nationalists ought to be very uncomfortable with the possibility of another referendum and a narrow victory. When Nicola Sturgeon says she wants to be sure of winning before holding a referendum, I hope she is not just playing tactics. I hope she means holding a referendum if and only if it will gain an overwhelming majority, because division and independence would be a poisonous combination. The question they have to ask themselves is – if they are unwilling to accept 55% for No, why would anyone else feel the need to accept 55% for Yes? Best out of three, anyone?

Here Ireland does offer a cautionary tale. The division over the 1921 Treaty did not just lead to a bloody civil war. More relevant to our case, it has defined the Republic’s politics ever since: the two political parties who have formed every government in Dublin since then were formed by that division and defined only by it. It’s as if an independent Scotland were split down the middle for a century or more into two parties: those who had supported independence and those who had opposed it.

Putting generosity into practice

That is a future to be shunned: but nor can the fact that around half of Scots do support independence be avoided. This is where the constitutional generosity comes in. What would it look like in practice if we took those 3 steps? Both sides would acknowledge that the referendum which was held really did settle the question, for this political generation. But both sides would acknowledge the legitimacy of the others’ aspiration for generations to come, and agree on a constitutional framework for this generation that acknowledged as much of both positions as possible.

A counterfactual diversion

To illustrate what this might mean I want us to do a little thought experiment, and imagine that something I had argued against three years ago had happened. You might remember that the Scottish government toyed with the idea of a three-option referendum: the options being the status quo, enhanced devolution, or independence. Now of course there is no doubt at all that the middle option would have one, if the referendum process had been in any way fair. That’s because it would have had to take into account the second preference of each voter, and the middle option would almost certainly have been the second preference of Yes voters, in the first or second preference of No voters. And so we might well today the looking at the constitutional settlement which apparently had overwhelming support. It’s not surprising, therefore, that Mr Salmond didn’t pursue the idea.

It may be more surprising that I argued against it then, even though I predicted that outcome then. I was against it because it didn’t seem right that whoever had the power to draw up the middle option was in effect given the authority to draft the constitution of the country. That might have been a tempting offer to a devolution anorak like me, but it seemed to me then that while the work to draw up that option it might have been technically possible, it did not have political legitimacy and would have had little democratic scrutiny. But of course after the referendum that’s almost exactly when we have ended up. After the various party devolution commissions, the so-called Vow, the Smith Commission and now the Scotland Bill we have ended up more or less in the middle, more or less where the median Scottish voter would have ended up. Only this time there’s been a great deal of technical work, a lot of political negotiation, and there is now a prolonged process of democratic scrutiny.

Scotland is divided on the constitutional question. Instead or forcing another binary choice on people, leaving them just as divided, we should be looking for a constitutional settlement that satisfies as many people as much as possible.

The opportunity of the Scotland Bill

So it seems to me that the Scotland Bill offers both sides of this argument that opportunity to practice some constitutional generosity. It will produce the sort of outcome that might well have been heavily endorsed in a three-option referendum. As the UK government and others have repeatedly said, it will make the Scottish Parliament one of the most powerful sub-state institutions and the world. The extent of tax and spending devolution will be comparable to that of a Canadian province or a Swiss Canton, and indeed the range of spending and legislative freedom which the Parliament has is in some respects greater than those. What the Bill will do, especially through its welfare provisions, is to enable Scotland to operate a markedly different social model from the rest of the country whilst remaining within the UK. It does this, in part, by devolving some welfare benefits, notably those related to disability. But in an approach which is pretty well unprecedented internationally, it also allows the Scottish Parliament to top up UK welfare payments from the Scottish budget including Scottish taxes.

I have argued elsewhere for amendments to these provisions to ensure that they are as wide as possible. We need to rule out the notion that these devolved powers are in any way controlled by the UK government. The result will be that welfare and social security in particular will now be a shared responsibility of the two governments. The UK government will deliver and pay for UK levels of benefit payments, but these will be a guaranteed minimum, which the Scottish Parliament can add to if it wishes. As a consequence, Scotland will be able to opt for Scandinavian levels of welfare, and of course the consequent taxation, while still sharing risks with the rest of the United Kingdom. If indeed the argument for constitutional change is that Scotland is a left of centre, communitarian, nation embedded in a neo liberal UK, then the provisions of the Scotland Bill will enable Scots to give effect to those values without losing the benefits of economic and social sharing with the rest of the country.

Whether that is indeed so remains to be seen. I admit, perhaps with disappointment, to some scepticism. But the point of constitutional change in a democratic society is to make the option available. The reality of Scottish history for the last 3 or 400 years is that Scotland has always been both integrated and separate from the rest of the United Kingdom, setting a balance between autonomy and sharing which has varied over time, as circumstances change. 300 years ago, the union with England produced a single state with a common foreign and defence policy, and a single market with (after some ups and downs) a single currency. In the last century that also developed into a shared welfare state, with common expectations about pensions, benefits and public services. The Scotland Bill will adjust that sharing, but not remove it. In a sense it will move Scotland closer to the degree of autonomy it had before the complete integration of UK welfare at the end of the 20th century.

So it may seem as if I am arguing that the UK, through the Scotland Bill, is already making a constitutionally generous offer. And to a substantial degree it is. But as I have argued elsewhere, I think it needs to go rather further . Amendments needed to the Bill, but it is more significant than that. The UK needs not merely to see the Bill as a series of tactical concessions to Scottish nationalism, or even as the delivery of promises made during the referendum campaign, important though that is. It needs to take the opportunity to review its own territorial nature. It is no longer acceptable for people in Scotland, and indeed Wales and Northern Ireland, to see the UK as a complex territorial state, but for many at the centre to behave as if it were a unitary state based on an outdated notion of parliamentary sovereignty. The Scotland Bill throws up major issues which make urgent the long overdue revision and codification of the UK’s territorial constitution. It is no longer sustainable to see devolution as an untidy footnote in how the UK is run.

If Scotland is to remain in the UK for the next political generation or longer, then the generous offer is of a UK constitution which fully recognises the nature of the Scottish union. Of course it must recognise England too, but that is quite a different position. A risk which UK ministers must avoid is to see the UK simply a locus of competing nationalisms, because if they do it is inevitable that the largest nationalism, England’s, will win out. In fact over the years of the union between England and Scotland, England has demonstrated a combination of tolerance, sometimes perhaps indifference, and open-mindedness that has been constitutionally generous. The present generation of English politicians must not fall short of that. The place where they risk doing so is in relation to English Votes for English Laws.

English Votes for English Laws is the subject of a lecture in itself. The key to understanding the issue is to realise that in an asymmetric union like the UK Westminster is both the UK Parliament and the English Parliament, and the UK government governs England as well as the whole UK. Because England is 10 times the size of Scotland, 20 times the size of Wales and 30 times the size of Northern Ireland this seldom creates any practical difficulty. But there might be occasions when legislative change can be forced on England against the views of the balance of English MPs, if English opinion is split down the middle, and votes from the smaller countries tip the balance. So there’s a good case for some parliamentary procedure to make sure that England has its say, and on some issues that really do affect England maybe even a decisive say. But this cannot make the UK or England ungovernable, and that the moment the present government’s plans for English votes carry that risk. I suspect the present Ministers do not fully understand this, and they are under threat, of course, from an English nationalism which is focused on Europe as the other. Once that is off the agenda–as I hope it will be–they will have to return to this question.

Constitutional generosity for nationalists means something quite different: and it may be that on the face of it I seem to be arguing that they should be much more generous than the UK. Certainly their zealots need to shift their present position more. If they really care about Scotland’s interests and not just the constitutional project of independence, it’s time for them to stop campaigning for another referendum and try to make Scotland work better. I did wonder if I detected in Nicola Stugeon’s conference rhetoric last week some realisation of this reality. The arrogance, however, of the subsequent briefing that they would hold another referendum when the polls showed 60% support for independence, so that they would be sure to win, was deeply disappointing. This showed a commitment to nationalism, but little care for the nation.

Conclusion

Let me try to sum all of this up. Now that we’ve got the hysteria of the referendum anniversary out of the way I think it’s time for a bit of historical revisionism on the process. It wasn’t just a heart warming, life affirming festival of democratic engagement. Many people felt very good about it, but just as many found the whole process fear inducing, silencing and close to oppressive. Its lasting legacy, and the achievement of the referendum project, has been to define Scotland as a society divided on Yes/No lines. That division has not gone away, and if anything some of the anniversary hysteria seemed to me to worsen it.

If this division is the single most important fact about Scottish political life, as I argue it is, then it’s remarkable that Scotland’s political leadership do not seek to address it. Instead of tactical manoeuvring about whether and when there should be another referendum in which a narrow majority might, perhaps, vote for Yes, their responsibility, in my view, is to exercise some constitutional generosity.

That means respecting the fact that at least half of the nation is not part of the independence project, and is not going to be, and that bundling them into independence after a narrow referendum result would be poisonous for the country. For the next political generation, the result of the referendum and the views of those opposed to independence have to be fully respected.

But constitutional generosity cuts both ways. If Scotland is to remain in the UK for this political generation and perhaps future ones, the UK is to redefine its territorial nature enough thoroughgoing way, not just settling the details of the constitution for a devolved Scotland in the Scotland Bill, but setting out the territorial constitution of the UK as a whole, in a way which respects Scotland’s long-held status as both separate and part of the UK at the same time.

A constitutional settlement for Scotland which enables the country to run quite a different social model from the rest of the UK while still sharing important risks acknowledges many of the key demands of the independence movement. Both sides of the argument however are taking a risk. Supporters of the UK have to accept that increasing difference might simply make independence more popular and easier in a generation’s time. Supporters of independence have to accept the risk that Scotland will indeed want to rest an arrangement which gives it the best of both worlds. Both sides have to accept those risks. That’s where the generosity comes in.

If our political leadership in both Edinburgh and London are prepared to exercise this level of generosity, perhaps we can spend the next decades in Scotland arguing about what kind of country we want to become, not what country we belong to.