Scotland might vote no, but the key question is ‘what happens next?’

Those in favour of Scottish independence look set to lose September’s referendum, despite the recent tightening in the polls following the second debate between First Minister Alex Salmond and the BetterTogether Chair Alistair Darling. But, argues Adam Tomkins, the more important question is what happens next.


The Isle of Jura from Space (Credit: Wikimedia Commons)

Something extraordinary is happening in Scotland, but it is happening by accident. On 18 September a specially extended electorate in Scotland – enlarged to include 16- and 17-year olds – will decide whether Scotland continues in the United Kingdom or whether she leaves to become her own independent state. A Yes vote will bring the 307-year Union with England and Wales to an end.

Were that to happen it would be the biggest shock to the United Kingdom polity since the Napoleonic Wars and the loss of the American colonies. Yet still England seems largely unaware of, never mind anxious about, the fate which may befall it later this year.
Perhaps this is because the polls have persistently indicated that it will not happen, and that Scots will vote by a comfortable majority to remain in the Union. The two most recent polls put the margin at 61-39 and 59-41, suggesting that three out of five Scots will vote No. Mood in the No camp is buoyant, but no-one thinks that the outcome is in the bag or that it is impossible for the Yes camp to win.

When devolution was delivered by the newly elected Blair government in 1998 it was designed in no small part to ‘kill Nationalism stone dead’, as George Robertson famously put it. With home rule having finally been realised, after a long but peaceful struggle, Scottish appetite for independence would be much diminished. This was not the whole of the reason why Labour created a new Scottish Parliament, but it was a large part of it.

To start with, it worked. In the first elections to the Scottish Parliament, in 1999, the SNP won only 35 seats (out of 129); four years later they slumped to 27. From 1999-2003 and again from 2003-07 the Scottish Labour party and Scottish Liberal Democrats formed a coalition. In the 2007 election, however, the SNP came back sharply, overtaking Labour as the largest single party (with 47 MSPs to Labour’s 46). Their charismatic leader, Alex Salmond, immediately declared victory and set about forming a minority administration, which lasted the full term.

And then in 2011 came the earthquake, as the SNP won what Holyrood’s architects had thought impossible: an overall majority. As first-past-the-post delivered a hung parliament in Westminster, the PR-based mixed member system at Holyrood delivered majority rule. The SNP blew Labour away in places, such as Donald Dewar’s old constituency of Glasgow Anniesland, in which not even their most enthusiastic supporters had foreseen victory.

The SNP’s manifesto for the 2011 Scottish parliamentary election committed the party to holding a referendum on independence. In the 2007-11 Parliament the SNP government had published a Draft Independence Referendum Bill, but no bill on the subject was introduced into Holyrood in those years, no doubt because the large Unionist majority in the Parliament would have voted it down. Mr Salmond’s 2011 manifesto commitment was not one he ever expected having to fulfil. Either it would be voted down by another Unionist majority or it would surely be struck down in the courts.

The Scottish Parliament is a legislature of limited competence. The United Kingdom constitution and, in particular, the Union are matters reserved to Westminster under the Scotland Act 1998. For Holyrood to legislate on reserved matters is ultra vires and unlawful. The referendum commitment was not serious policy. It was a stunt, designed to trap those of a pro-Union persuasion into ‘denying the Scots their referendum’, thereby providing Mr Salmond with another invented grievance with which he could fan the flames of Scottish separatism.

In 2011 the key member of Her Majesty’ Government in London who understood what Mr Salmond was up to was Lord Wallace of Tankerness, the Advocate-General for Scotland who, as Jim Wallace MSP had been the leader of the Scottish Lib Dems and the Deputy First Minister in Edinburgh from 1999-2005. With his long experience of Scottish politics, Lord Wallace could see trap the Scottish Government had set. With an SNP majority in Holyrood there was nothing in Edinburgh to stop the Scottish Parliament passing a referendum bill. But the lawfulness of that bill would inevitably be challenged. Having the Supreme Court in London strike down legislation passed in Edinburgh would be bad politics for the Union, especially when that legislation was designed to give the Scottish people a say on their constitutional future in fulfilment of a manifesto pledge.

Lord Wallace’s solution was to give to the Scottish Parliament the legislative power needed to make a referendum bill lawful. His condition was simply that the referendum had to be ‘fair, legal and decisive’. It had to be regulated by the UK’s Electoral Commission (as the AV referendum of 2011 had been) in accordance with the rules that normally govern referendums in the UK. It had to be on a single question relating to independence. And it had to be understood on both sides to be determinative of the matter. There would be no slipping into what the Canadians have come to call a ‘neverendum’.

Lord Wallace’s offer was published by the UK Government in January 2012. So taken aback were the SNP leadership that they really now might have to have their referendum that it took a full ten months for them to reach agreement with the UK government – in the Edinburgh Agreement, signed by the Prime Minister and the First Minister in October 2012. Throughout this ten-month period, the real sticking point for the Scottish Government was that there should be just the single question on independence.

Independence, or Devo-Max?

The SNP won their historic majority in 2011 not because of their constitutional politics but despite them. What Scots liked about the SNP minority administration of 2007-11 was its competence and what they liked about the SNP leadership was not their zeal for separation but the sense they would always fight Scotland’s corner. Rightly or wrongly, the Scottish Labour party had come to be seen as too close to – perhaps even dependent upon – the UK party. Lacking autonomy, it failed to generate a sense that it is a Scottish party first and foremost, rather than a Scottish branch of a UK organisation, dancing to London’s tune. The SNP, rather obviously, does not have this problem.

The SNP’s electoral success is in no small measure due to the triumph within the SNP of the gradualists over the fundamentalists. Alex Salmond is a pragmatist. Over the last twenty years or more he has led his party away from the absolutist positions it once held. In the 1990s the SNP boycotted the Scottish Constitutional Convention, whose work led to the arrival of devolution in 1998, because a majority in the SCC wanted to talk only about home rule and not about independence. The Tories, too, sat it out. This had the effect of handing the initiative entirely to Labour and Liberal Democrat politicians, making the SNP (and the Tories) irrelevant to Scotland’s constitutional politics just at the critical moment when devolution was taking shape in the minds of civic Scotland.

The tension between the new pragmatism and the older fundamentalism of the SNP resurfaced in 2012. Conscious of the fact that independence had only ever been a minority preference in Scotland, some amongst the Nationalist leadership were concerned that an independence referendum with no ‘third option’ would lead only to defeat, putting their cause back rather than accelerating its realisation. As a minority administration from 2007-11 the SNP had led a ‘national conversation’ about Scotland’s constitutional future, in which two options had been put forward: independence and ‘devo-max’. Devo-max means the maximum that could be devolved within a single state and, for the SNP, that meant the devolution to Scotland of everything except foreign affairs and defence, macro-economic policy and the currency.

At the same time as the national conversation was taking place the Unionist parties in the Scottish Parliament established their own commission to examine the 1998 devolution settlement and to make recommendations as to its reform: the Calman commission. Calman reported in 2009; its recommendations were accepted by Gordon Brown’s Labour government and also, later in 2010, by the Coalition. Most of Calman’s recommendations have now been enacted in the Scotland Act 2012.

Calman and the 2012 Act go much less further than the SNP’s devo-max. The centrepiece of the 2012 Act is income tax. From its inception the Scottish Parliament had the power to vary the basic rate of income tax (up or down) by up to three percentage points but the power was never used and, indeed, was allowed to lapse. The 2012 Act replaces it with a new system whereby the Treasury will set the rates of income tax for Scottish taxpayers at ten percentage points lower than for income taxpayers in other parts of the UK. It will then be for the Scottish Parliament to decide whether to equal the rates used in the rest of the UK, or whether to set Scottish rates higher or lower than those used in England, Wales and Northern Ireland. This regime is enacted, but it is not yet in force: under the 2012 Act it will come into force in 2016 (but only if there is a No vote in September’s referendum). Once in force it will mean that Holyrood is responsible for raising about 30 per cent of its budget.

There were several reasons why in 2012 the UK government was insistent that any independence referendum be a straightforward yes or no question about independence, with no third option about devo-max. First, the 2012 Act was already legislating for further devolution; the changes it provided for needed to bed down before consideration could be given to anything more. Secondly, there is no country anywhere in the world run along the lines of the devo-max proposal set out by the SNP. Devolution is designed to strengthen the Union, whereas devo-max would break it. Thirdly, while the United Kingdom has long recognised that it is for Scotland to decide whether to remain in the Union, it does not follow that Scotland may dictate to the rest of the UK the terms on which she remains. An individual may choose unilaterally to leave a club of which he or she is a member, but that individual cannot dictate to the fellow club members what the rules of the club should be: that is a matter for the club as a whole.

The Scottish Government, by contrast, wanted to keep open the possibility of a multi-option referendum. Early in 2012 both governments put their proposals to public consultation and in due course each consultation exercise revealed large majorities in favour of what the UK Government had been proposing: that the matter needing to be resolved was independence and that the issue should not be clouded by asking a second question (or giving a third option) about devo-max.

The Scottish Government did not press the issue, and the result is that the one question Scots will be asked on 18 September is ‘Should Scotland be an independent country?’ This wording was approved by the Electoral Commission. The Scottish Government had proposed the question ‘Do you agree Scotland should be an independent country?’ The Electoral Commission found that the ‘do you agree’ formulation should be dropped but, in other respects, saw no objection to the SNP’s wording.

The Referendum Campaign

In his foreword to the Scottish Government’s January 2012 consultation document, First Minister Alex Salmond wrote that ‘Scotland is not oppressed and we have no need to be liberated’. I have used that line at town hall meetings only to be booed until I tell the audience its author. There is a vocal but rather small minority of Scots who do regard the independence debate as a crusade for freedom, but this is not the view of the SNP leadership nor of the official lead campaign, Yes Scotland. Scotland is free already and Scots are freely choosing whether to remain in the UK or to leave it. Of course passions run high on the campaign trail and there has been some thoroughly nasty abuse online, most notoriously on Twitter, but no punch has been thrown, no blood has been spilt and the abuse has not descended into violence. Scotland is not Northern Ireland and both sides are conscious of the importance of keeping it that way.

The core of the campaign for independence posits not that Scotland is oppressed but that Scotland is different. It is based on the view that England and Scotland are two nations moving in divergent directions, growing further apart as their respective centres of political gravity pull away from one another: England the neo-liberal centre-right nation consumed by euro-scepticism, and Scotland the Scandinavian-style social democracy. The UK has a Conservative-led government because England voted Tory and despite the fact that there is only one Tory MP in Scotland (out of 59): Scotland is ruled by a government it did not vote for. The same is true of Leeds, Liverpool and Newcastle, of course, but Yorkshire, Merseyside and Tyneside are not nations and are therefore distinguishable from Scotland (which is certainly a nation). Not that the north of England, or Wales, or Northern Ireland feature very much in the Nationalists’ rhetoric: for them England is embodied in the Prime Minister. Posh, wealthy, right-wing, expensively educated. It is the crudest of stereotypes. But, more invidiously, it does as if everyone in England is like that and no-one in Scotland is.

The argument for independence has been framed as a matter of political and civic identity, rather than of ethnic self-determination. In the summer of 2013 the First Minister made a speech in which he said that Scotland was a member of six unions and that he wished to remove it from only one of these: Scotland should be politically independent of the rest of the UK, but it would still be in the EU and NATO, it would still have a currency union and a social union with the UK, and it would remain in the Union of the Crowns by which England and Scotland share the same monarch.

This vision of independence, sometimes called ‘indy-lite’, is not shared by all advocates of Scottish independence. Some would go much further in seeking a break with all vestiges of the British state. But the development of this vision of independence is part of the pragmatism that has steered Nationalist thinking in the last twenty years. The SNP leadership deserves credit for moving the party away from a narrow ethnic nationalism. I moved to Scotland from England (where I was born) 11 years ago. In that time, I have not experienced any anti-English prejudice. There is plenty of anti-English sentiment when England are playing football or when Scotland are playing England at rugby but, for the most part, this is healthy rivalry and nothing more sinister.

This is not to say that ethnic nationalism has been purged from twenty-first century Scotland. It rears its head from time to time but – as with Alasdair Gray’s misjudged essay on ‘settlers’ and ‘colonists’ or as when Gordon Wilson, once leader of the SNP, attacked the English ‘southern cancer’ – when it does so it appears immediately incongruous and out of place. Scotland has moved on, even if its former political leaders and some of its literary stars have not.

The move from ethnic to civic nationalism has been essential to the SNP’s strategy. Independence has always been a minority pursuit in Scotland. In order to turn that natural minority into the one-day majority the Nationalists need on 18 September, they have had to appeal to voters who would not normally see themselves as supporting the break-up of Britain. The demographic selected is white working-class disaffected Labour (or ex-Labour) voters: people who have voted for Labour candidates for generations but who feel that the party has left them behind, caring more now about the middle English vote than its traditional heartlands. This is a demographic which, in England, is beginning to be wooed by UKIP. North of the border it has long since been the SNP’s primary target.

This has required deft manoeuvring by the SNP leadership. Their electoral strongholds have tended to be places that once upon a time voted Tory: Aberdeenshire, Perthshire and the Borders (hence their nickname, ‘Tartan Tories’). This is still Alex Salmond’s base but his deputy Nicola Sturgeon is the MSP for Govan, a working-class area of Glasgow where Sir Alex Ferguson comes from and where Rangers FC have their home. Ms Sturgeon has been remarkably successful in persuading west of Scotland voters in Glasgow and its environs to peel away from New Labour and embrace the SNP as the party of working class Scotland.

This may explain why as much of the independence referendum debate has been about socialism as it has been about independence. The core SNP vote will vote Yes no matter what: they do not need to be convinced. But to get a majority to vote with them the SNP needs to present the case for independence as if it is not an end in itself but a means to a greater end. It is only by voting Yes that Scots can recover that left-of-centre government they are said to crave. If you care about child poverty or are concerned about the creeping privatisation of the NHS, your safest bet is to vote Yes. Appalled by food banks? It’s Westminster’s fault. Outraged by the bedroom tax and other similar attacks on the poor? Westminster again. Yes Scotland and the SNP do not seem to have to explain how food poverty would be avoided in an independent Scotland: the mere fact that it is exists in the UK is reason enough to break away from Britain and start over.

Yet, under the unusual scrutiny that has come with the referendum, we are learning more about what Scots think. It turns out that, far from being a repressed social democracy held back by the English yoke imagined by Caledonia’s dreamers, Scottish social attitudes are not so different from those preferred south of the border. One poll in May this year found that 68 per cent of Scots favour stricter controls on immigration, that 49 per cent favour leaving the EU or are neutral about doing so, and that 62 per cent support making benefits available only to those who have lived in Scotland for more than five years. Perhaps one of the reasons why the Yes vote seems to be stuck at about 40 per cent is that most people in Scotland do not want the Scandinavian levels of taxes and duties that would be needed in order to pay for the sorts of public services wished for by the social democrats.

On this view the least persuasive of all the arguments for independence is precisely the one Yes Scotland have led with. The truth is that were Scotland to vote Yes it would lead not to permanent rule by the centre-left but to the revival of the centre-right in Scotland, whose electoral fortunes remain bleak for the time being, yet who are campaigning most fervently for a No vote.

What next? After the referendum

What happens when the voting is over? This question is relatively easy if there is a Yes vote. There would be so much work to do that everyone in Scotland who wanted to play a role in building the new state would be busier than ever. The Scottish Government know that they could not do it alone, and the SNP leadership has rightly signalled that this would be a project for all of Scotland (including Scots who are currently ministers in the UK government).

The polls indicate, however, that there is not going to be a Yes vote. If they are right, what happens after a No vote is a rather important question. Independence will have been rejected, but its principal proponents – the SNP – will still be in power. David Cameron will be facing a general election only eight months after the referendum but the First Minister will be secure in office until at least May 2016, unless he resigns or is toppled from within his own ranks, neither of which seems likely. Mr Salmond has plenty of political fire in his belly, and he will fancy his chances in 2016 of an historic hat-trick. The polls do not indicate that the SNP will be crushed in the referendum. Absent a landslide defeat, there is no reason to think that the First Minister would be unseated by his own party members.

Each of the parties in the No camp has published proposals outlining the ways in which they would like to see Scotland’s constitutional position develop after a No vote. While there are differences between the three sets of proposals, they are all pushing in broadly the same direction: the Scottish Parliament should grow further and, in particular, should become responsible for raising a greater share of the money it spends. The Scotland Act 2012, it seems, marks but the beginning of fiscal devolution in the UK.

The only major party not to have outlined its constitutional policy for Scotland in the event of a No vote is the SNP. It is unrealistic to expect them to do so before the referendum – they can hardly explain how they would like to see devolution taken forward whilst they are campaigning to end it – but it will be incumbent upon them after any No vote to answer the question which each of the Unionist parties has already addressed: what next? Independence having been defeated, what does the Scottish National Party now advocate as being in Scotland’s best interests?

This may be another reason for Mr Salmond to remain in post after a No vote: he is such a pragmatist that he would find it relatively easy to move his party onto fresh terrain. And it is essential that they do move onto fresh terrain. Whatever happens on 18 September determines the matter. If there is a Yes vote, there is no going back. Likewise if there is a No vote. It will be no good for the SNP to insist on ‘one more push’ to independence. A No vote takes independence off the table.

It may be, however, that the process by which devolution has been developed in the UK has taken us as far as it can. That process has had a double silo effect. Scottish, Welsh and Northern Irish devolution have each been developed as their own discrete projects. England has been left out, and the consequences for the centre have been parked – left for another day. That day is coming and the questions that need resolving are not easy. The Barnett formula, by which the block grant is calculated, is manifestly unfair to Wales, and the West Lothian problem, by which Scots MPs vote on matters in England which (because of devolution) English MPs cannot vote on in respect of Scotland, is unfair to England. That there is one MSP or MP for every 28,000 people living in Scotland but one MP for every 99,000 people living in England is an imbalance which is surely unsustainable in the longer run.

When examined from a Scottish perspective, England looks badly governed, especially outside London. But the solution is not obvious. England shows no desire to be divided into regions and an English Parliament would be hugely problematic given England’s size relative to that of the UK as a whole. Such a body would immediately rival the House of Commons for political supremacy. Who would be the more powerful: England’s First Minister or the Prime Minister of the UK? It may be, however, that a more pragmatic solution is emerging. The West Lothian problem can be addressed satisfactorily enough by altering Commons procedures , so that ‘English laws’ (however defined) are made, in at least some of their legislative stages, by ‘English MPs’ only. And within England, an accelerated localism agenda, coupled with a rolling out of the Government’s impressive city deals programme, may yet offer fresh regeneration of English governance beyond Whitehall.

The second aspect of the silo effect is that, within Scotland, devolution has been developed without the input of the SNP. As described above, they sat out the Scottish Constitutional Convention in the 1990s and more recently the Calman Commission was a joint enterprise of the Scottish Labour, Scottish Conservative and Scottish Liberal Democrat parties in which the SNP played no part. The fractured processes that have shaped our constitutional design and territorial reconfigurations over the past quarter century have run their course.

If there is a Yes vote in September, everything changes. The shock to the rest of the UK will be profound and the asymmetries of the country will be even more pronounced: England would constitute 92 per cent of the rest of the UK instead of its current 85 per cent. If there is a No vote this will mark Scots’ collective recommitment to the Union. But the Union would be foolish to react by breathing a sigh of relief and carrying on as if nothing had happened. The United Kingdom needs a sustainable solution to its territorial constitution: one that works for each of the four nations comprising the state, and one that works for the centre, too.

At the moment we do not even have the institutional architecture through which such a solution may found. We need to build it and we need to set it to work. It should aim at nothing less than a new Act of Union: a framework for the coming generations that will set the nations of the UK at ease with one another. Something extraordinary is happening in Scotland, but it may yet be that its result will be extraordinary for the whole of the United Kingdom.

This post originally appeared on Demos Quarterly and can be read here 

Note: this post represents the views of the author and not those of Democratic Audit or the LSE. Please read our comments policy before posting.

Prof-Adam-Tomkins-copyAdam Tomkins teaches constitutional law at the University of Glasgow. Follow him on Twitter @ProfTomkins.

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