Wednesday, 31 December 2014

2014 - A Pause for Reflection

Every moment in life is precious in some respect, but for many, myself included, 2014 has taken on an added importance. In addition to the day-to-day challenges we all face, in Scotland, at least, we were also confronted with an existential question: one which energised, agonised and antagonised almost in equal measure. For me personally it has been one of the more difficult, but rewarding years of my life, and one which I can say at least has ended in a better place than it began.

I have a number of reasons to be grateful for the past year. After a tricky start to the year, I made some satisfying progress with my thesis, with two extensive chapters that, in the wake of the current constitutional debate, have become particularly relevant. I also took up teaching in the second half of this year, tutoring some 80 or so second-year law students in administrative law. This challenge is one I have greatly enjoyed, albeit it has been exhausting at times, and I hope I have been in some way useful for those students. If I have encouraged even some of them to persevere with public law despite its capacity to be turgid and esoteric, then I reckon I have done my job properly. Helping others to learn is a truly gratifying privilege and to have the opportunity means a great deal to me.

Parliamentary Club Leaders 2013-14
L to R: Hannah Gower, Duncan Crowe, me, Heather Whiteside,
Brian McCarthy

Outside of my academic pursuits, I have had a lot of fun debating this year. Firstly, I had a whale of a time giving my "Prime Ministerial" in GUU Parliamentary debating in January, where I enjoyed the support of a number of my predecessors and close friends. It also meant a great deal that my dad, a twice Glasgow graduate himself, was there to see it. What I found the most satisfying, however, was not my own personal success. It was, alongside the other leaders from last year, bringing through other debaters and helping them to develop and realise their potential. There is a real sense in GUU debating not just of doing well by ourselves, but also by others, and that we have a responsibility to pass on better than we ourselves inherited. I hope we lived up to that.

Somewhat to my own surprise, I became involved in intervarsity debating again too. I entered somewhat of a self-imposed absence from that form of debating after Berlin Worlds at the beginning of 2013, and had not expected to resume in any serious capacity. That changed in February when, having been roped into speaking at the Scottish Mace, and approached it initially as a bit of a laugh, Marc Fryer and I somehow ended up joining two other GUU teams in the final. It was the first time in a long time that I genuinely found that type of debating a fun experience for more than simply the competition.

Ljubljana IV Final
It re-energised me and motivated me first to trial for Euros and then to forge a hugely successful partnership with Heather Whiteside. We reached the Ljubljana IV Final and then broke 5th at the European Championships in the summer. It involved some hard graft, but towards the end we really started to work well as a team and I was happy that we managed to continue the success of Duncan Crowe and John McKee in the previous two internationals. There is a clear sense in which the momentum they have built for the current generation of GUU debaters has been sustained, vindicated most recently in the fantastic efforts of Owen Mooney and Chris Edgar in Malaysia, breaking 23rd. I wish them good luck in the New Year as they try to bring the trophy back to Gilmorehill.

GUU Freshers Week Independence Debate
After all the rigmarole of the independence referendum, including bizarrely ending up speaking in a debate with Tommy Sheridan (on the same side!) it is good to see a degree of normality starting to return to Scottish public life. I voted Yes in the referendum, with a very heavy heart, and confess I had to take a while to regain my composure after I left the polling station. Many described the referendum as a triumph for civic engagement, but for me, I did not feel that glow. The enormity of the decision has still divided our country and a lot of those conflicts will take some time fully to heal, but the process has been somewhat cathartic. We now have a process by which both more powers for Holyrood should be delivered and a political environment in which it will become progressively more difficult for people to sidestep the structural issues behind our constitutional malaise. I am glad that the referendum was not much closer than it was in terms of the result, as that would have made reconciliation and the pain associated with it much more difficult.

Zagreb Railway Station: the Journey Begins
Enough of politics. Perhaps most importantly, 2014 has been a year in which friendships have been sustained and flourished. It meant a lot to me to have many good friends coming back to the GUU in January to support me, but I have also forged a number of meaningful friendships in the last year or so with people who were previously only acquaintances. I had a great week travelling through Europe after Zagreb with Matteo Catanzano, visting places I had never seen before and being able to unwind, free from work and other pressures. Meaning in life is so often less what it is you are doing, but who you are able to share it with. I am grateful for the friendships forged this year and hope they last a lifetime.

I wish everyone, especially my friends and family, a fortuitous 2015. No doubt it will bring its own challenges, but if 2014 taught me anything, it is that our potential is so often constrained primarily by what we think we can achieve.

Tuesday, 16 September 2014

The confessions of an exasperated British federalist

Our future in our hands: which way is best?
If you had asked me four years ago what I thought of the idea of Scottish independence the scorn and incredulity on my face would have been apparent before you had finished the sentence. Of course I was against it. I saw it as parochial, superficial, divisive and really rather peculiar. I also, perhaps unlike most Scots, saw Britishness as an immutable characteristic of my identity. Why would I want to break up my country? What a ridiculous proposition! Moreover, insofar as Scottish independence was articulated, I heard it mostly from people of a distinctly left-wing disposition. Those who knew me then, or indeed now, would probably choke themselves in a fit of laughter at the notion that I would embrace a political movement with apparently socialist-leaning ideals. I can live with centre-right governments and aspects of my politics, particularly on economics, are specifically centre-right by most reasonable definitions.

And yet, on Sunday, and I found myself in a debate at the Glasgow University Union, sharing a platform with Tommy Sheridan, firebrand socialist of poll tax and perjury fame, arguing that Scotland should vote Yes on Thursday 18th September to Scottish independence. Though I argued vociferously for the benefit of the gallery (though not quite so much as Tommy did) my feelings ahead of this referendum are far from unequivocal. I confess whichever way Scotland votes I will feel uneasy about the implications of that decision.

Emotionally British, ideologically Unionist

Emotionally, I still consider myself to be British. If anything, this referendum campaign has given greater cause for introspection as to the nature of my Britishness than of my Scottishness. I empathise with people for whom this referendum feels like being made to choose between those two identities, especially given the inferences of some of the rhetoric of the Yes campaign. There is something seductive about the idea that a national identity, and I do think Britishness is a national identity, can grow and flourish out of overlapping, perhaps confused, incongruent and messy national and regional identities that are part of, but never wholly subsumed by, the nation they create.

For me, Britain, notwithstanding certain aspects of its past and the attitudes of a xenophobic minority in the present, has always been about the celebration and comfort of diversity, tolerance, and being an outward looking family who, though not always agreeing, can come together and understand one another in pursuit of a noble but humble purpose. Together we seek to do good by each other and to the rest of the world.

Further, I do not think that Britain oppresses Scotland or Scottishness. Scotland is a confident, vibrant and successful nation: one which stands tall in the world, through its culture, its sport, its far-reaching and ambitious diaspora, and its intellectual and political contributions to modern life. The nation of the Highland Clearances, received pronunciation and the Scotch cringe of which Scottish nationalists often speak is not the one I recognise as having lived in my whole life. Our eccentricities are not viciously suppressed by the British state. As Alex Salmond himself put it back in January 2012: "Scotland is not oppressed and we have no need to be liberated". We do not need the crutch of statehood to achieve great things and to express ourselves as a nation or as a people. We are already doing it within the Union and would do so in almost any set of circumstances.

I do not accept, as many Nationalists tell us, that Scotland will be punished or made to suffer if it votes No. On the contrary, devolution has coincided with arguably the most optimistic and hopeful period in Scotland's history. For all the painful impact of certain welfare cuts in the last five years, it is easy to forget that child poverty across various measures is down by more than a third in Scotland over the course of the last decade, in no small part thanks to the flexibility of devolution and the unity of purpose behind a number of measures pursued at a UK-wide level. There is clearly an appetite for Scotland to be responsible for more of its domestic affairs, but in a world where even the Tories are offering some more powers for Holyrood, that is hardly incompatible with being a Unionist.

I do not even think it is necessarily true, as the First Minister never tires of telling us, that the people best equipped to make decisions that affect Scotland are necessarily the people north of Carlisle, in isolation, all of the time. Sometimes I think the people who should be making the decisions about how government affects our lives should be a lot closer to home than that, and other times, more remote. I do not think it is necessarily true that just because the Conservatives are unpopular in Scotland, our current Westminster Government is therefore "illegitimate" in Scotland, or at least not simply because the majority of Scottish MPs are Labour.

I do not think, with the complex and integrated history of the nations on these islands, that it necessarily follows there are clear lines we can draw when deciding who "we" are politically. This could scarcely be more obvious when, as a European, I think sometimes Scotland should be bound by decisions made predominantly by representatives elected by the citizens of other states. I cringed when Alan Bissett said on the floor of the GUU Chamber that you should vote Yes if you think Scotland is a country and No if you do not, while simultaneously claiming this debate was not about nationalism. That seemed to me to be an absurd characterisation of what this referendum was about.

By all rights I should be a Unionist, heart, body and soul, and an ideological one too. Yet I find myself on the brink of marking an 'X' in the Yes box on 18th September and very unlikely to vote No.

Britishness is in crisis

The thing is, I find myself increasingly compelled to take the reasons I reject much of the traditional Yes case to their logical conclusion. Just as Scottishness does not need statehood to flourish and be successful, neither too should the ties of Britishness, or Unionism, need the trappings of statehood to exist and to flourish. Just as voting No does not mean Scotland is just a region, neither too does voting Yes mean Britain is not a nation, or at least it should not do. Are the No side really suggesting that that bond of family, of culture, of togetherness is so weak that it cannot endure a separation of our existing political institutions? That is not the Britishness that is part of me.

If Britishness really is that weak in its current form, and has become so dependent upon the crutch of its political institutions for its endurance, then it really is in trouble. The Union does not need patching up, or loosened, through simply more promises of incremental devolution. It needs completely rebuilt from the bottom up. Britain's lack of clarity of purpose is being exposed by an ironically disparate and divided movement, in the form of the Yes campaign, which has managed to suppress its own incoherence in pursuit of what it perceives to be a common goal.

Whereas the independence movement can externalise its existential bipolarism onto visible, real, and material harms, the Unionist movement, if indeed it is just a single movement, has no such luxury. On the contrary, it has become bashful, lest it be associated with a nutter fringe that has stolen the territory of British nationalism from the tolerant, open-minded, previously self-confident majority.

Structural reform is needed

For Britishness to find its sense of self again, and to strive confidently and independently of its political institutions, it needs first to reform those institutions. It has to do so in a way which enables the different components of its identity to grow and to complement one another, as our compound society faces up to challenges of an increasingly global nature. This means asking ourselves not just what powers are exercised by which political bodies, but what we fundamentally see those political bodies as being, who and what they represent, and what their relationship is between one another.

The problem with devolution is that it has failed to re-imagine the nature of the Union and of Britishness at all. Instead of articulating a new, cohesive ideal for how the nations of Britain mesh together, it brought together two very awkward bedfellows indeed. The political environment, cultivated mostly by the Scottish Labour Party, was distinctly Scottish nationalist in its nature.

Whether it was the Scottish Constitutional Convention with "the sovereign will" of the Scottish people or the fostering of the idea of "illegitimate" governments at Westminster, the justification for Scotland being the "self" in self-government carried with it the inference that Britishness was not the self, or that insofar as it was, it was only so to the extent that it was acquiesced to by Scotland. Perversely, this Scottish nationalist political sentiment was welded to the structures of a unitary state. Whatever the political reality of divided powers, there was no attempt to re-invent a sense of the British constitution or the Westminster Parliament, and all its trappings and tradition of supremacy.

Devolution even took a legal form that varied little from the colonial relationships arrived at in places like Australia and Canada in the 20th century. Power devolved is at least notionally power retained. We should be clear that Scotland is no colony: it is a partner with democratic representation and influence on the British state. But devolution is a Frankenstein's monster that attempts to marry two existentially incompatible visions about the relationship between the four nations and Britain. It says that domestic governance in the Celtic nations should be conceived of as unrelated and tolerated anomalies to otherwise homogeneous Britishness.

The absence of a distinctively English voice or set of voices merely serves to accentuate the sense in which these are anomalies and re-enforces the idea that Britishness is really Englishness, and if not a threat to, then at least incompatible or ill-fitting with, Scottishness, Welshness or Northern Irishness. Yet the politics of those devolved institutions are distinctly Scottish, Welsh and Northern Irish, albeit to varying degrees. They are not British in a positive sense, and are defined by what they hollow-out from Britain as a political entity. We cannot have a coherent, confident and positive British identity for as long as England is so unsure of itself. It does not know who and what it is in clear contradistinction to Britain. It is this tension that makes those who consider themselves to be "Scottish not British" think that Britain and Britishness poses a threat to the idea of Scotland as a strong and confident political voice.

What we have needed for decades is a series of political and constitutional relations that clearly conceive of Britain as a partnership of nations and regions, rather than the slow and irreversible demerger that devolution represents. Even if Scotland votes No and more powers are given to the Scottish Parliament, they will not put this issue to an end. The fundamental structure remains in place. The conflict of a unitary British state still jars, arguably more so, with a Scottish people that increasingly see themselves not just as a primary, but ever more so an exclusive, political community.

Reinventing the Union

Put simply, only a form of federalism can save Britain as an idea and free it from a political system that satisfies few and exasperates many. To achieve such a structure, we need to rekindle the idea that the Union is in fact a relationship between nations and that Britain is a mutually supportive by-product of that interaction rather than the means by which one nation is seen, even if inadvertently, to dominate the others. We need to create a set of circumstances in which "Scottish not British" people see the Union as a partnership of equals, facilitative of Scottish (and English, Welsh and Northern Irish) self-confidence and influence in the wider world.

Such a partnership, I regret, will unlikely be achieved in my lifetime within the Union we have now. Notwithstanding the best intentions of Liberal Democrats, whistling in the wind about federalism for well over a century, there is no appetite for English devolution, either as a nation or into discrete regional Parliaments. The whole concept of the "West Lothian Question", where the votes of Scottish MPs determine policies that affect only England, is borne out of the idea that Westminster is really England's Parliament writ a little larger.

If the Scots wanted control over their domestic affairs, they are expected to achieve the acquiescence of Britain as a whole to set up their own Parliament. If the English want control over their domestic affairs, their only proposed solution is to find a way forcibly to remove the Celtic nations from certain decision-making at Westminster. This is, in effect, what the "English Grand Committee" or similar proposals like "English Votes for English Laws" would do.

To achieve federalism, we need a rapid and full-blooded awakening of an inclusive form of English nationalism or of English regionalism. We need a system in which the nations share and integrate resources and institutions not because of inertia, because it has always been that way, but because of affirmative consent: a sense in which they have deliberately come together in pursuit of a common goal. Those goals have to be defined by the nations as they are in the 21st century and not the increasingly irrelevant ideals of what held us together in the past. It is not enough simply to say that you are a Unionist: we need to know what Union it is of which you are a Unionist.

This was no more obvious than in what Drew Smith, Labour's constitutional spokesman, said at the debate on Sunday. He said the reason there was not a third option on the ballot paper for "enhanced devolution" or whatever was because "before we decide on the rules of the club we have to decide whether we want to be a part of the club." This psychology has the concept of a Union completely the wrong way around. The constitutional debate is not just about the minutiae of the rules of the club. It is about the fundamental terms on which the club can be said to exist at all. We cannot say whether we want to be part of the club unless we know the basic assumptions on which the rules are drawn up.

From Federation to Confederation

And so, this Unionist found himself increasingly coming to the conclusion that the only way to save Britain might yet be to break the state that sustains it. To save Britain from itself, it needs shocked into a type of constitutional reform that not even the mere threat of a Yes vote has initiated. With every panicked statement about further powers, whether Devo Max, Plus, Light, Full Fat, Turbo or Supercharged it becomes more and more obvious that the current crop of Unionist leaders do not know how to reinvent the Union. They are so wedded to making this Union work that they may already have lost the opportunity to preserve a Union of any meaningful description.

Perversely, Alex Salmond's vision for an independent Scotland or at the very least a UK-wide version of his devolution max alternative, if advocated by someone who had at heart the intention to save Britain, would come close to a kind of partnership of equals, or at least set it in motion. It would not be a federation, a state of states, as such, but it would be a kind of confederation.

The different communities of the United Kingdom, and potentially even the Crown Dependencies, could have entered into an international compact of mutual support, sharing a travel area, a currency, a titular Head of State, a codified constitution of sorts enunciating common fundamental freedoms and the terms of their co-operation. They could have drawn inspiration from the European Union and created a form of supplementary "British citizenship", conferring political and social rights on the members of the participant nations, islands and territories.

They could have an integrated approach to defence and diplomatic affairs, albeit one based on principles of consensual collective action rather than unilateral brow-beating. We could have developed a clear principle of subsidiarity, encouraging all four nations to recognise the special cultural, historical and political identities of our island communities and England's minority nations and regions like Cornwall and Yorkshire. This would give people throughout these islands real democratic control over the every-day decisions that affect their lives, with most of the advantages of pooling resources when it was in their mutual interests.

The dilemma is that Alex Salmond, most of his followers and most of the Yes movement, do not share, in their heart of hearts, that vision of a British Confederal Union. On the contrary, the reasons they have for wanting a currency union, to share the Head of State, and to be part of the Common Travel Area, are purely instrumental. They want to avoid scaring the horses by convincing those who are "Scottish not British" or "more Scottish than British" that not much of their day-to-day life will change. They know that, in the absence of a big idea for a new Union their opponents can passionately and wholeheartedly believe in, their primary obstacle to independence is fear of the practical consequences and not Scotland's sense of Britishness.

The gamble for me, and I suspect for a fair number of Scots, is whether to put faith in the political class that has systematically and repeatedly failed to articulate a vision for a new Britain in the 21st century just one more time to get it right, or to take this opportunity to put the Union as we know it out of its misery and try to build something new. I have tried throughout this campaign to find the confidence in Westminster to be radical and inventive, but I feel as though I have waited in vain. All that is left for me is either to vote Yes on Thursday or to spoil my ballot and declare a plague on all of their houses.

Friday, 11 July 2014

Taking Responsibility

Those who have followed my previous utterances on Scottish independence will know that I am sceptical of a lot of the rhetoric and claims made by the SNP and the Yes campaign. I don't describe myself as centre-left, unlike, probably, most politically active Scots in that movement. I don't consider myself to be a nationalist, even of the civic variety. I don't agree with many of the claims of either campaign that Scotland will be a significantly more or less prosperous society if it becomes independent. I don't even agree that we will be a noticeably more equal society if we become independent.

A common argument I hear, with which I have considerable difficulty, is the suggestion that we should vote Yes to create a more equal society. We are told that the policies of the Tories, especially on welfare, are strongly opposed by Scotland and that we need to control welfare to build a society that adequately protects the most disadvantaged. It seems superficially attractive. It is true that the two parties Scotland votes for most strongly, the SNP and Labour, do adopt a less hostile attitude, in terms of rhetoric and with respect to some specific policies on the question of welfare than do the Tories. This does not, however, appear to translate into actual attitudes towards welfare. When polled on actual policies, the majority of Scots support welfare to work programmes of the kind pursued by Westminster, would reduce access to benefits for immigrants, have very similar attitudes towards immigration as the rest of the UK and only very slightly register as more left-wing on whether taxation should be higher to fund more public services.

This is important, because central to the rhetoric of the Yes campaign is that we need independence to be able to make different decisions from the Westminster government "that we didn't vote for". If our attitudes towards actual welfare policies are broadly the same as the British electorate as a whole, however, how do they suppose we will vote for different policies in an independent Scotland? Sure, we vote for parties that are more left-wing under the current settlement, but we never think to ask why that's the case given how apparently similar we are on social attitudes.

I think I know why this dichotomy exists. Scots have come to think of themselves as being more left-wing because, as a polity, they have not really been given the responsibility for making decisions about how they respond to global challenges. Whereas many other nations, which by no particular moral reason have come to become our default political communities, have had to face up to the challenges of interdependence and the fiscal constraints that a global market place on what our governments can do, Scotland has not been confronted with those decisions. Its primary experience of global capitalism, of modern challenges to managed economies, and the ability of the state to provide, with ease, for all, has been to see a political elite from outside take those decisions. That political elite never really had to rely on the Scottish political community to address these problems, so Scotland was never really a part of that discussion. It's not just that the Tories introduced unpopular policies in Scotland, culminating in the Poll Tax; it's that in the centralised British state the winning coalition required neither the hearts nor the minds of middle Scotland, whether they were a Tory or Labour administration.

The consequence is that Scotland has identified the blame for the negative consequences of these global forces with Westminster, despite them being phenomena over which any government can exercise only limited control. Scottish politics has, culturally, served to blame the British state, the British establishment, for all the negative aspects of their current predicament. As a polity, we have learned to associate anything that is difficult to solve as being easy to solve if it weren't for a malevolent Westminster. As a nation, as a polity, we have never been confronted with these decisions, and we have never taken the responsibility for the consequences.

In this respect, devolution was only a partial answer. It gave us responsibility for how money was spent, how to run our schools, our healthcare system, our Universities, our transport network, our justice system and the like. On the relative virtues of how money was spent, we got a taste of that responsibility. Yet we continued constantly to compare ourselves to Westminster. "Look at how we don't have tuition fees/prescription charges/expensive personal care for the elderly" we would say, triumphantly. "Look at how this power has meant we don't have to do things like Westminster!".

And in the areas where we didn't have power, especially in welfare, we insist that all of our ills would be solved if only we voted for independence: "we did this with devolution, look what we could do if we get away from Tory governments". We can scrap the bedroom tax! We can be more compassionate! Aren't we wonderful?

All the time, we have taught ourselves to associate everything that is done well with ourselves, and everything that is done badly with the external: that which we don't control. Yet without the responsibility for raising the lion's share of what it spends, the entire culture of the Scottish Parliament in some respects made the national psyche worse. If there wasn't enough money for colleges, it's Westminster's fault because of the block-grant and the Barnett formula. If we didn't have a cancer drug fund, it was Westminster's fault because of austerity.

Seldom does it seem to occur to Holyrood that the reason we might not be able to spend on certain policies is because we have chosen to allocate resources to other things. It seems we are content instead always to find someone else to blame. We abdicate responsibility by suggesting the limits on what we can achieve are external, but only to ourselves and not to governments with just a bit more power. This responsibility deficit that plagues Holyrood may to some extent be mitigated if the Scottish Parliament gets real control over income tax and some other taxes. But in many respects, the cultural damage has already been done.

I often hear a characterisation that Scotland is "too wee, too poor and too stupid" to be an independent country. Ironically enough, I hear it more from Yes supporters misrepresenting the views of No voters than I actually do from No voters themselves. I suspect that if Scotland is too wee and too stupid, it's been helped in no small part by a rhetoric and a political culture that defaults to blaming others for our predicament.

This is one of the reasons I am sympathetic to independence. It has reached a stage in Scottish politics where the only way we can grow up, be mature about the challenges that face us, and to stop blaming others for the ills in our society, is to take responsibility for ourselves. Not because we will necessarily do a better job, but because having to take those decisions for ourselves will change the way we think about how those decisions are made. When it comes to things like welfare, the Scottish debate will actually have to be about our older population, a pensions timebomb, and structural unemployment. No more can it be about blaming the legacy of "the Tories" or "Westminster". We will have all the powers at our disposal so there can be no excuses. When we fail, they will be Scottish failures, and we will better understand ourselves and our society through those failures.

There is a learned helplessness in Scotland. We project our own failings onto the British state because, all too often, we haven't the courage to face up to them. I suspect independence just might change that.

Wednesday, 25 June 2014

Wednesday Zazu Because Reasons

"If this is where the monarchy is headed, count me out!
Out of service, out of Africa. I wouldn't hang about."

Tuesday, 17 June 2014

Beware the Draft Constitution

Consultation opened yesterday
Yesterday, the Scottish Government released a Draft version of the Interim Constitution for an Independent Scotland. The idea seems to be that it will take the form of a piece of legislation, passed by the Scottish Parliament, serving as a holding arrangement to facilitate the continued operation of governmental matters until a more comprehensive constitution can be drafted by a Constitutional Convention and, one presumes, ratified by a plebiscite.

I won't beat about the bush; this document is a bit of a mess in places and sorely needs rewritten. It is poorly drafted, filled with ambiguities, potential contradictions, and provisions that do not appear to serve any obvious constitutional or legal function whatsoever. There are also changes in certain areas that should be a cause for concern for the transitional period for which this constitution is in force.

I deal with it in broadly chronological order.

Clause 1 - Independence

This section attempts to do three things. First, it seeks to declare that Scotland will become independent on Independence Day. Second, that Independence Day shall be determined by a resolution of the Scottish Parliament, and thirdly that the Scottish Parliament and Government shall assume full competence in their respective areas. It appears to be confusing what a piece of Westminster legislation would need to do with what needs to be part of the Scottish Parliament's activities.

In order to be able to pass this Bill in the first place, there will have to be some enabling legislation from Westminster. The Scottish Parliament is not competent unilaterally to declare independence, being a body whose powers depend upon the Scotland Act. It reserves these constitutional matters to the Westminster Parliament.

Such a Bill will likely take a form, which is similar to the Canada Act 1982. It did two things. The first is actually contained in section 2. It provided that after the passing of the Act, the United Kingdom Parliament shall have no power to make laws in respect of Canada. The second, in section 1, was to give effect to the Constitution Act of Canada, which was contained in a Schedule at the end of that Act.

The Constitution Act 1982 itself was a product of the Canadian Parliament. It provided (in Art 59) for the coming into effect of the new Canadian constitutional order on the signing of a proclamation by the monarch.

The structural approach to the issues dealt with in clause 1 seem to be backwards. Subclause 3 is unnecessary; it is the inverse of that which would be dealt with expressly by the enabling Westminster legislation and is dealt with in clauses 10 and 11. Subclauses 1 and 2 deal with the same thing in an excessively wordy and clumsy way. If they want independence to be "given effect to" by a resolution of the Scottish Parliament, fine. That merely requires a provision in Part II of the Bill saying that the Constitution shall have effect on the passing of a resolution of the Scottish Parliament. That provision already exists: clause 36. This is an unnecessary mess.

Clauses 2-3 - Sovereignty

Nicola Sturgeon has made a big deal out of the fact that this constitution declares the Scottish people to be "sovereign". This is a popular sentiment that often gets bandied about in Scottish constitutional discourse, with grand appeals to the Declaration of Arbroath and the like. In her remarks, she seems to be conflating "being a democracy" with "the people being sovereign". She says "Sovereignty means the people of Scotland always getting the government we vote for to govern our country the way we want".

That isn't sovereignty in the sense we talk about Parliamentary sovereignty, the thing she wants to contrast it with and what clause 3 actually deals with. That's just being a democracy. The United Kingdom is already a democracy, albeit an imperfect one. What she is saying is that the privileged unit, or what constitutes "the people" for the purpose of democracy will become the Scottish electorate instead of the British electorate. It doesn't take Sherlock to work out that that is going to be the case anyway in the event of independence. Clauses 2 and 3 do nothing of substance to embody that change in anything more than a symbolic way.

Sovereignty of the people is contrasted with the much misunderstood notion of the "sovereignty of Parliament" in UK constitutional discourse. But what does "sovereignty of the people" actually mean, according to this Constitution?

You would think that it means that the people would be given a privileged relationship relative to the constitution? That's what it is taken to mean in other countries with constitutions that declare sovereignty to be in the nation, and to confer some sort of symbolic right to resistance against tyrannical government or to recognise a "constituent power" to amend the constitution. As an idea, it must surely mean the people have the right to amend or replace the constitutional framework if it becomes contrary to their will.

But no. It turns out the sovereignty we're going to enjoy is something rather more modest. Sure, we get lip-service to this grand ideal in clause 3(1):

"In Scotland, the people have the sovereign right to self-determination and to choose freely the form in which their State is to be constituted and how they are to be governed."

And even clause 3(2):

"All State power and authority accordingly derives from, and is subject to, the sovereign will of the people, and those exercising State power and authority are accountable for it to the people."

These grandiose claims are, then heavily qualified. We are told in clause 3(3) that:

"The sovereign will of the people is expressed in the constitution and, in accordance with the constitution and laws made under it, through the people’s elected representatives, at referendums and by other means provided by law."

And in clause 3(4) that:

"The sovereign will of the people is limited only by the constitution and by the obligations flowing from international agreements to which Scotland is or becomes a party on the people’s behalf, in accordance with the constitution and international law."

These two sections mean, frankly, the opposite of the people being sovereign. What they say is that the people can only have their will expressed through the constitution itself, and that, by the way, international treaties also take supremacy.

What this means in practice is not that the people of Scotland would be sovereign. On the contrary, it makes the provisions of the constitution, and treaties with other states and bodies, the ultimate source of power in Scotland. It serves, along with later provisions, simply to refuse to imitate the "legislative supremacy" presently enjoyed by the Westminster Parliament. This means that if the Scottish Parliament passes laws in accordance with the democratic wishes of the electorate, which go against the Constitution, they will now be struck down by the Court of Session or High Court of Justiciary.

Constitutional oversight is an important function. Many onlookers will think restricting what Parliament can do with ordinary legislation is a good thing. I am one of them. Nevertheless, this provision transfers powers from the legislature, containing the representatives of the people, to the courts, a bunch of (mostly) white, old, privately educated, men; not from Parliament or the elites to the people.

Clause 4 - Interim Constitution

The desire is made clear here that the Constitution contained in Part II of this Draft Bill is intended only to be temporary. This seems perfectly logical, and allows a much bigger debate with stakeholder groups in a cross-party affair at a later date to produce something of greater permanence. I have, however, one significant concern. Nowhere in this Draft Constitution is there a provision outlining the process or authority of any body to amend the interim constitution. This is important for two reasons.

Firstly, it is necessary if the permanent constitution is properly to supersede it in the fullness of time. Secondly, if the Constitutional Convention for the permanent constitution is unsuccessful in being ratified, for whatever reason, we need a mechanism which allows for the amendment of the interim constitution to make any changes, from time to time, as may be necessary. This appears to have been an oversight on the part of the Scottish Government, who rather seem to be taking for granted that whatever is produced by a Constitutional Convention will in fact be agreed to by the Scottish people.

Clauses 5-8 - The State

These are largely perfunctory provisions. Clause 5 states, in possibly the least controversial manner possible, that Scotland is to be called Scotland. Clause 6 purports to determine the territory of Scotland:

"In accordance with international law, the territory of Scotland continues to consist of all the land, islands, internal waters and territorial sea that formed the territory of Scotland immediately before Independence Day."

This is somewhat confusing. Scotland's territory is not, as such, "defined" in international law, where borders are determined as between extant states, before Independence Day. There are boundaries that have been chosen for numerous domestic purposes in UK law, but this is different. What constitutes "Scotland's territorial sea" in particular will not be absolutely clear until the negotiations with the UK Government have reached a satisfactory conclusion. This needs to be revisited.

Clauses 7 and 8 are bog standard fare but not especially illuminating, declaring us to be a constitutional monarchy, a parliamentary democracy, to have a flag, and to let the Scottish Parliament decide if we should have a national anthem.

Clause 9 - The Head of State

A small thing, and it could just be me, but I think this clause has been very poorly drafted. It is not entirely clear whether the intention is to retain the formal Union of the Crowns, to purport to restore the old Scottish Crown, or to institute a new Crown. Rather than saying that "Her Majesty Queen Elizabeth is to be Head of State, as Queen" ("is to be": yuck) and "Her Majesty is to be succeeded as Head of State (and as Queen or, as the case may be, King) by Her heirs and successors to the Crown according to law" there should be an attempt here to stipulate the line of succession in terms that are readily accessible.

This does not necessarily mean that the line of succession has to be spelt-out at length here. It could choose to refer either to the (English) Act of Settlement 1701, or to Article II of the Union with England Act/Treaty of Union to preserve the existing line of succession, or to some accord mutually agreed between Scotland and rUK in advance of the split.

It has been suggested (H/T Adam Tomkins) that clause 9(3) is incompatible with clause 3(2) above, given that the privileges of the Crown are ultimately derived from the position of the monarch as sovereign. This would appear to be incompatible with the assertion that all power comes from the people, unless we are now to understand that crown privileges are to be understood as being derived from the people, an exercise in constitutional acrobatics if ever there was one...

Finally, I'm not sure whether it's an act of mischief to omit the Roman numerals after the Head of State's name, paying homage to the infamous case of MacCormick v Lord Advocate!

Clauses 10-11 - The Legislature and Executive

These provisions are fairly uncontroversial if stubbornly resistant to being aesthetically pleasing. It should be manifestly obvious that the legislature and executive's powers are "subject to the constitution". For some bizarre reason, the draft seems intent on emphasising the continuity of the Scottish Parliament and Government from the devolved institutions. It seems unnecessary to say that these bodies "continue" to have the powers of, respectively, law-making and administration. As a drafting point I would replace "continue to" with "shall".

Clause 12 - State Accountability

I have to confess I am at a loss as to what the actual point of this constitutional provision is. It just says that the Scottish Parliament is accountable to the people and that the Scottish Government is accountable to the Scottish Parliament. This is just a trite restatement of parliamentary democracy. This wasn't thought necessary in Canada's constitutional statutes, and it feels unnecessary here. There is no reason why this is necessary to ensure that those principles continue to operate, whether in practice or by enforcement through judicial action taken under the Constitution.

Clauses 13-15 - Juridical

This is where things get really interesting, and for me, worrying. Clauses 13 and 15 are uncontroversial. A commitment to an independent judiciary and a wishy washy reference to the rule of law continuing to apply. My principal objection is to clause 14.

Since the 18th century, litigants in Scotland in a civil case have had recourse to the House of Lords (and later, the UK Supreme Court) as a domestic court of last resort when appealing a decision of the Inner House of the Court of Session. This provided an important level of independence of approach to issues at the final stage of appeal or review, distinct from both the Sheriff Courts and the Court of Session, and has helped to ensure justice is both done and seen to be done. With the advent of devolution, the Judicial Committee of the Privy Council (and later the UK Supreme Court) were given supervisory jurisdiction over criminal trials insofar as matters of constitutional importance were engaged (such as European Convention rights). This provided important distance from the Sheriff Courts and from the High Court of Justiciary to provide a more critical approach towards matters particularly of procedural justice.

Clause 14 proposes that the jurisdiction of the UK Supreme Court shall cease entirely. This is in and of itself understandable. However, the Scottish Government do not propose to replace the jurisdiction with that either of a Supreme or a Constitutional Court. This will have several negative effects. For one, it will lead either to the forced retirement or exile of Scotland's two most senior jurists, Lord Reed and Lord Hodge. More importantly, however, it will make it more difficult for those wronged by our main appeal courts to achieve the appropriate redress. The UK Supreme Court made a number of important interventions on questions of Scots law being incompatible with the European Convention on Human Rights, most notably on the question of access to legal assistance when being interviewed by the police under caution.

There is a risk that not having a court supervising the jurisdiction of the High Court and Court of Session, that rather more Scottish cases will end up having to go to Strasbourg, and the European Court of Human Rights, for a determination, in effect replacing a domestic court of last resort with an international one. In addition to the expense associated with defending cases in Strasbourg for the public purse, this will significantly alter justice in a way that risks both disempowering Scottish courts to reach solutions which reflect the nuances and needs of the Scottish justice system and deny some people proper access to domestic justice at all.

In any case, I remain uncomfortable with the notion that we could end up with two Supreme Courts, potentially arriving at different conclusions on the interpretation of, say, our interpretation of the same Convention right, without a court of final resort within the same jurisdiction to resolve that disagreement. In a system where the legislature will now be explicitly limited in a way the Westminster legislature is not, a Constitutional court for, among other things, asylum and immigration cases and anti-terrorism, a definitive power capable of conclusively striking down primary legislation should have some distance from the ordinary work of the Scottish courts system.

The retort, as with much else of this Draft, will no doubt be that Parliament can still discuss this draft and that in any case this is only an interim constitution. I find it difficult, however, once the precedent has been set re-establishing the High Court and Inner House as the Supreme Courts of Scotland, to see the Constitutional Convention insisting that this be changed again. The inertia of the new system will make calls for such a reform struggle to gain traction.

Clause 16 - The Civil Service

This clause is uncontroversial, and simply provides that the civil service will be a thing, that they've to be honest and impartial and objective. I'm not sure that it necessarily needs to be in the constitution, and indeed the clause delegates the regulation of the civil service to ordinary legislation. The future descriptive wording "Further provision about the Scottish civil service is to be made by Act of the Scottish Parliament." is not very constitutional in its framing and could be better expressed.

Clause 17 - Local Government

This is another one of those provisions of questionable worth given what it actually says. It aims to maintain the status quo, for now, with local councils and re-iterate the cycle on which their elections are to be held. The nomenclature seems, somewhat bizarrely, not to conform to the actual provisions of the Local Government etc. (Scotland) Act 1994, which refers to "local authority areas". Instead we get references to "local councils" and "local areas". It is sloppy language like this, which rather suggests that the drafting of this document has been slap-dash. The provision which maintains that "local councils have autonomy over the carrying out of their functions" seems to me to be unnecessary, unless local authorities are now to be able to rely upon this constitutional provision to get judicial decrees blocking interference in specific instances by the Scottish Government. Surely these protections already exist and are adequate in the local government legislation?

Clause 18 and 25 - Citizenship

I have deliberately brought these two clauses together because they relate to citizenship in one way or another. The first sets out the conditions for Scottish citizenship, both those who inherit it automatically and those who are eligible to claim it. It provides that the particulars of this may be qualified by Act of Parliament, but I would simply raise the issue of dual citizenship and the extent to which they have considered the consequences for someone presently resident in Scotland, holding UK citizenship and the nationality of another state, and in particular whether the automatic provision could lead to them being forced to surrender one of their other two nationalities. Clearly the Scottish Constitution cannot be responsible for the continuing provisions of British nationality law on independence, but it seems premature to be discussing an automatic citizenship route before these matters are settled.

As for clause 25, I'm left flabbergasted. It claims, in essence, that if you are a Scottish citizen on independence, you are also an EU citizen under Art 20.1 of the TFEU. There are a number of problems with this. Firstly, only the EU may confer EU citizenship. Scotland can no more "confer" EU citizenship on someone than it can confer Ghanian citizenship on them. Secondly, the Treaty confers citizenship on nationals of member-states. Scotland is not a member-state of the European Union, and will have to negotiate to a point of membership. Even if we assume that an expedited agreement is reached in advance of independence, this provision in the Constitution is totally unnecessary. Those rights accrue to member-state nationals irrespective of whether or not national law explicitly provides for it. This is a superfluous clause. Get rid of it.

Clause 19-22 - International Agreements

Clause 19 is a puff-piece saying that Scotland will "observe", "promote" and "respect" international law and make lots of friends and be peace-loving. Unless the intention is to allow citizens to impeach Government officials for breaking international law, I see no point in this provision. The Scottish Government appear not to have considered the full implications of this. In their explanatory notes they merely state that this will "give [the UN Charter] further domestic effect" without explaining what further effect that is.

Clause 20 is one of the clauses that comes into force in advance of the Scottish Government's proposed "Independence Day". This appears in practice to be a provision intended to make sure the executive has the competence to engage in international negotiations to ensure continuity of effect of international relations to the greatest extent possible. Quite why this needs to be in the Constitution, however, given what is actually needed there is Westminster enabling legislation before independence, and given after independence these powers are inherent to the executive, escapes me.

Clause 21 concerns the ratification of treaties signed by the Government by Parliament. The provision is not especially controversial, though I would point out this is further evidence of ugly drafting. clause 21(2) "That does not apply to" should be nowhere near any statute ever.

Clause 22 re-iterates that Scotland will adopt a dualist approach to international law in much the same way as the UK does presently. It prompts the question, however, precisely why they think they need to give domestic effect to Art I of the UN Charter in clause 19, given its nebulous content.

Clause 23 - Nuclear Disarmament

This is clearly a popular policy among many who support independence and many who do not. I must confess, however, that I'm not sure that this is appropriate for, in particular, the interim constitution. The Scottish Government do not have an explicit mandate for nuclear disarmament. This interim constitution will be binding on whoever wins the 2016 Holyrood elections, and that might not be the SNP. This provision compels the government, constitutionally, to negotiate the removal of Trident from Scotland. This seems presumptuous, unnecessary and unhelpful with respect to any negotiations about the future of the UK's nuclear armed submarines in the event of Scottish independence. Particularly given there is no provision in this constitution to amend this constitution, this could, hypothetically, be binding another party's government to an SNP policy not voted on by the Scottish electorate.

Clause 24 - EU Law

This one is simple. It replicates the European Communities Act and the constraints that have in any case existed on the Holyrood institutions in relation to European Union law. I am not sure this should be or needs to be in the Constitution but it does no material harm.

Clause 26-27 - Human Rights

This one is interesting. The intention here is to extend the status of the European Convention on Human Rights to all matters covered by the Scottish Parliament. As alluded to earlier, this categorically ends Parliamentary sovereignty. The absence of, as the UK has in section 4 of the Human Rights Act, a domestic buffer in the form of the "declaration of incompatibility" means that an Act of the Scottish Parliament could be struck down by a Strasbourg ruling. It does not appear entirely clear, when taken together with clause 34, what effect this would have on Westminster legislation passed on reserved matters such as immigration and asylum or anti-terrorism provisions, which may have or would have been merely subject to a "declaration of incompatibility" but domestically lawful. This section also neglects to outline how judges should determine whether legislation is in fact compatible with the Convention. The Human Rights Act (s3) and the Scotland Act (s101) currently adopt two different tests: which if either functions under this Constitution?

Clause 28-29 - Equality and Children

The first of these essentially entrenches the principles of the Equality Act into the Constitution. Seems fair enough. The second is essentially one expression of the "welfare principle" with respect to Children, which requires the well-being of children to be considered in all public functions pertinent to them. I doubt it will make any significant difference beyond symbolism, though it may have an impact on immigration decision-making where the statutory provisions are presently very contentious.

Clause 30 - Island Communities

A symbolic nod to the Scottish Government having to "take account of the particular needs of island communities, having special regard to the distinctive geographical characteristics of each of the areas inhabited by those communities". A noble goal, but unless this is intended in some way to be judicially enforceable with respect to infrastructure projects and the like, something I doubt, this is just window-dressing and of questionable necessity in an interim constitution.

Clause 31-32 - The Environment and Natural Resources

The first clause is largely window-dressing, stating empty and meaningless, judicially unenforceable "right to live in a healthy environment" and requiring the Scottish Government and public authorities, in some vague and indeterminate way to address green issues.

The second says that Scotland's natural resources "must" be used in a sustainable way and which provides some form of vague, nondescript benefit to the people of Scotland. Quite what purpose this serves escapes me: can we sue the First Minister if he authorises below cost or too speedy drilling in the North Sea? This is endemic of vague and meaningless constitutional provisions in this document. It's all very well to say that Constitutions should outline the aspirations for a nation or a society, but is it really necessary to clog-up an interim constitution with these things?

Clause 33 - Permanent Constitution

This provision is important insofar as it sets out the obligations for the setting up of a Constitutional Convention, and the issues that the Act of Parliament doing this must address. Mundane things from composition to funding and structure are required to be dealt with. What is interesting is that this Act must be passed "as soon as possible" (whatever that means). Unless an Act were to be pushed through by the Scottish Government between March 2016 and May 2016, the legislation for this Convention would have to be passed by the first elected Parliament of Scotland. This would at least assuage any fears that the SNP were seeking to gerrymander that process.

Clause 34-36 - Transition and Miscellaneous

As mentioned earlier, clause 34 provides for continuity of effect of domestic law post independence, which deals with most Westminster statutes. We see the awful "That is subject to the constitution" non-sequitur which should be redrafted in sub-clause (2) but otherwise this is straightforward. Given the importance of the Human Rights Act and the integral impact of its functions on legislation, I think we need clearer guidance as to the intended transitional effects, if any of it, and particularly the tests it applies to statutory interpretation.

Clause 35 is the repeal of the Union with England Act. I don't see why this needs to be done by the Scottish Parliament. This means transferring to the Scottish Parliament the competence to repeal an Act of a Parliament which ceased to exist in 1707, which has no legal continuity with Holyrood. Westminster will, for clarity's sake, have to repeal the English Parliament's Union with Scotland Act anyway, so it might as well be repealed at a Westminster level under the same enabling legislation.

Clause 36 relates to when the different provisions come into effect. As mentioned earlier this somewhat negates the need for the entirety of clause 1 of this Bill.


There are some interesting and sensible ideas in this proposed interim constitution. There are some pointless and convoluted provisions in this constitution. There are some dangerous or outright undesirable provisions in this constitution. The Scottish Government clearly have not resorted to the (relatively recent) historical examples when it comes to enabling legislation to achieve their desired result. They have sought to attribute politically mundane functions of the transition most effectively dealt with at a Westminster level to Holyrood legislation, and have shoehorned in provisions of questionable worth to a permanent, never mind an interim, constitution. The weaknesses in this document are most apparent by what is not dealt with as much as what is. There are assumptions that the process towards the permanent constitution are going to yield certain results, which are far from guaranteed.

Most importantly of all, though, the Scottish Government need better draftsmen!