The Constitution

Sovereignty and Independence Lite

Despite the fact that my PhD is a contemporary study of the impact technology has had on international taxation law, I’ve found myself delving into the concept of “sovereignty”. The link between international taxation and sovereignty is, in fact, far more significant than it first appears however I’ll bore you with that in a future post.

When considering Sovereignty in Scotland there are two issues: the internal constitutional question as to in whom it vests, and the question of what, externally, it will mean in the future.

The first is fairly straightforward, or at least one would think so. Our Austinian conception of sovereignty was best summarised by Harrison, thus:

The source of all positive law is that definite sovereign authority which exists in every independent political community, and therein exercise de facto the supreme power, being itself unlimited, as a matter of fact, by any limits of positive law.

From a jurists perspective sovereignty is the ultimate source of law within any legal order. It founds executive power, legislative competence, and jurisdiction. Hart would describe it as the “ultimate rule of recognition”.

Even a first year student of Constitutional Law would be able to tell you that sovereignty in the United Kingdom vests in Parliament, and would quote Dicey and Jennings at you until you until they were blue in the face to prove it. Yet this seems to have escaped the SNP’s notice completely.

In November 2007 Alex Salmond wrote:

We in the Scottish Government believe that sovereignty in Scotland lies with its people.

This, the First Minister has re-stated a number of times. But unlike Dorothy in the Wizard of Oz closing your eyes and repeating “there’s no place like home” won’t make it come true. The people of Scotland are not sovereign. Parliament may remain sovereign by common consent but that does not make the people the supreme source of law. Perhaps what Alex Salmond meant to say is that he believes the people of Scotland should be sovereign, which I don’t doubt for a minute.

However sovereignty isn’t merely an element of constitutional law but also an important concept in in international law. Mutual recognition of the sovereignty of other states is one of the fundamental elements of international law. Independence is an essential aspect of that sovereignty, as was discussed by Oppenheim:

Inasmuch as it excludes dependence upon any other authority, and in particular from the authority of another state, sovereignty is independence. It is external independence with regard to the liberty of action outside is borders in the intercourse with the intercourse with other States which a State enjoys. It is internal independence with regard to the liberty of action of a State inside its borders.

If there’s one point of fact on which I’m certain Alex Salmond would agree it is that Scotland is not independent.

This brings me onto the second of the two issues which is what sovereignty will mean in the future. Certainly if Alex Salmond wishes the people of Scotland to be sovereign then Scotland needs to be independent. But how much independence does Scotland need before you can describe it, or its people, as sovereign?

Adapting the old adage, independence is like an elephant – difficult to describe but instantly recognisable. Certainly it is not a binary concept. Even when Oppenheim considered sovereignty and independence in the 1950s sovereign nations were heavily dependent on each other. Nonetheless you’d be hard pressed to claim that a nation lacked independence because of its membership of the EU, or the WTO, or even if it were dependent on foreign aid. Independence does not mean self-sufficiency.

“Independence lite” – which would involve sharing (or, more likely, contracting out) defence, foreign affairs, and even social security – appears to be preferred option of the Scottish Government. What this would involve remains quite unclear. For example, would Scotland and the remainder of the United Kingdom (rUK) have joint, or shared embassies? Would such embassies have a joint ambassador? Or two ambassadors sharing an office? Or one ambassador with two hats? Certainly it seems quite absurd for one person to be accredited as ambassador for two sovereign nations.

Presumably Independence lite means sharing a place on the world stage. We would remain a single Member State of the European Union, our membership of the United Nations would still be through the United Kingdom, and we would still sign treaties as a single entity. In that circumstance it’s hard to see how Scotland would be externally independent as Oppenheim describes, and would therefore lack one of the essential components of sovereignty in international law. From an external perspective Independence-lite would not appear to be any different from Devolution-max.

The difference, therefore, between Indy-lite and Devo-max appears to be one of internal sovereignty. Devolution max would preserve the unitary state, with sovereignty continuing to vest in the UK Parliament. Independence lite would effectively create a confederated state – two internally sovereign nations within one externally sovereign state. Within those nations internal sovereignty could vest differentially. One would expect that within rUK Sovereignty would continue to vest in Parliament, while in Scotland it would vest in the people.

Independence-lite may well create the internal appearance of sovereignty – certainly Alex Salmond’s belief that the people of Scotland should be sovereign could be realised. But it’s difficult to see how such a settlement could be objectively described as “independence”.

Independence: Time for a Substantive Debate

There will be a referendum on Scottish independence. This fact, I fear, so many in my party have yet to grasp. It’s understandable given that the SNP have already been in power for over four years, and were presented with an offer (the sincerity of which I would doubt) of Parliamentary support for a referendum by Wendy Alexander. It’s clear that Alex Salmond’s government aren’t in any rush to hold a referendum, knowing full well what a “no” vote could potentially do to his party, and the present timetable puts the holding a referendum eight clear years after the SNP first winning power. Nonetheless the SNP’s healthy majority in the Scottish Parliament means Alex Salmond has no excuse for not holding one by the end of this Parliamentary session.

With the exception of Henry McLeish’s recent intervention, the constitutional debate thus far has focused on the timing of a referendum, as well as a somewhat binary argument about the merits of separation. Very little regard has been paid to the substantial questions surrounding what an independent Scotland would actually look like. This, I suspect, is largely to do with an apprehension on the part of unionist parties towards accepting independence as a premise for discussions about Scotland’s future for fear of lending it credence. The SNP, meanwhile, are quite content for the details to be deliberately vague, allowing them to focus instead on populist arguments about sovereignty and self determination. I would contend, therefore, that without a serious debate about what sort of society an independent Scotland would actually look like then the unionist cause is doomed to failure.

So far, the only template we have to work from is the SNP’s Constitution for a free Scotland drafted in 2002. Oddly enough this hasn’t received very much attention since the SNP came to power, from politicians or scholars alike – with the exception of Bulmer’s recent study in Parliamentary Affairs. Written by former leader Bob MacIntyre and renowned constitutional scholar Sir Neil McCormick, the document appears at least to have entered SNP canon.

On the whole the document largely follows the Westminster model. It provides for a Constitutional Monarchy, with Crown prerogative being exercised by the Executive who, in turn, are drawn from the unicameral legislature. This approach is understandable given the desire of nationalists to present independence as being as unfrightening as possible. However this in itself poses the question: if you’re going to design a system from scratch, why on earth would you choose the one we’ve got?

My comrades in the Labour Party will testify to the fact that I’m most certainly not a republican in so far as the United Kingdom is concerned however it strikes me that the arguments which are usually proffered in favour of retention of the monarchy, being tradition and tourism, don’t really apply. The Constitution also provides that :

During any period of absence of the Monarch from Scotland, the Chancellor of Scotland (the elected presiding officer of Parliament) shall act as Head of State

Given that we could expect the Sovereign to be absent from Scotland for the vast majority of every year the Presiding Officer of Parliament would inevitably become the de facto head of state. This compromise between the traditional role of the monarch and an indirectly elected head of state seems to be imbued with the worst of both worlds – lacking the legitimacy of a directly elected head of state or the credibility of the British Sovereign.

Alex Salmond regularly asserts upon swearing his oath that he believes in the “ancient Scots Constitutional Principle that the people of Scotland are sovereign” (though where in our present constitution he finds that principle is beyond me) – why, therefore, would we design a system where sovereignty appears to flow from the top? There is no basis in popular sovereignty for the concept of “crown prerogative” and yet that is precisely what this constitution provides for.

Turning to the legislature, the Constitution provides for a single chambered parlaiment with committies similar in character to those in the present Scottish Parliament. It attempts to stymie the power of the majority in the legislature by providing that any measure can be delayed for 18-months by a two-fifths majority in Parliament. This, surely, simply means that governments will force through their least popular legislation legislation early in the parliamentary session and and the tail-end of any session could well end up being gridlocked. Furthermore, the committees appear to have no greater role than they do in the present Scottish Parliament. While the work of some of the committees over the past 12 years is to be commended they have not, on the whole, proved to be the effective check they were supposed to be.

Insofar as local government is concerned the draft constitution says little, but what is does say contradicts itself. It guarantees local government “genuine autonomy” from central government, yet in the same clause gives parliament a general power to legislate for local government – presumably including to potentially scrap it. Surely genuinely autonomous local government would be prescribed by the constitution, with its powers, functions and revenue guaranteed therein?

I offer these merely as illustrations of the various questions that surround Scotland’s constitutional future. Nationalists propose independence as a means of delivering a new Scotland, but you barely have to scratch the surface to see that what’s on offer hardly differs from the Scotland we’ve got. Political parties need to fully engage not simply with the question of whether or not Scotland should be independent but of what that independent Scotland would look like. For the nationalists it’s a chance to paint a new picture, of a daring new political structure where sovereignty genuinely flows from the people. For the unionists it’s a chance to highlight how shallow the change that’s on offer really is. Which ever side of the debate does this first will likely win the argument.

Is the Scottish Parliament Short With Short Money?

The Scottish Parliament, like its mother in Westminster, operates a system of financial support for opposition parties. “Short Money” is intended to level the playing field between the government, who have the resources of the civil service to aid them in formulating policy, and the opposition. It pays the salaries of researchers and press officers in each party’s support units, office costs, and certain other expenses to assist members in the pursuance of their “Parliamentary duties”.

In Westminster the level of funding is calculated on the basis of a fixed amount-per-member plus a further sum per 200 votes received. Following the Neill Report in 1998 the level of funding per member was, by a resolution of the House of Commons, more than doubled making Short Money in Westminster rather generous. The Short Money levels in the Scottish Parliament were established by s97 of the Scotland Act. As part of the transfer of legislative power to the Scottish Parliament during the first month of its existence the UK Parliament amended the Scotland Act by Order-in-Council to expressly un-reserve the making of payments to “any political party for the purpose of assisting members of the Parliament who are connected with the party to perform their Parliamentary duties.” As the present Short Money funding level in the Scottish Parliament is enshrined in statute primary legislation in the Scottish Parliament would be required to vary it. The consequence of this is that, relative to Westminster, the opposition in the Scottish Parliament is vastly under-resourced.

For the financial year 2011/2012 the level of funding for opposition parties in the House of Commons is £15,039.85 for every seat won at the last election plus £30.04 for  every 200 votes gained by the party, which for the Official Opposition makes a total of £20,050.24 per member. In the same financial year the level of funding of opposition Parties in the Scottish Parliament is a mere £7,094 per member. The votes element of the Westminster formula is designed, in part, to smooth out what can be stark variations in the sizes of oppositions in each parliament. There is no provision for such smoothing in the Scottish Parliament.

The result, therefore is that the main opposition party in the Scottish Parliament has seen its Short Money drop from £309,899.24 to £262,478 in a Parliament where the role of the opposition is more important than ever.

The Neill report in 1998 said of such events:

The Official opposition has a general duty to scrutinise the actions and the legislation of the Government.  We do not think it appropriate that it should receive a significantly smaller amount of Short money simply because it has recently suffered at the polls.  Indeed it can be argued that, if the party in government has an overwhelming majority in [Parliament], it is particularly important that the Official Opposition should be adequately funded and resourced.

When the Scottish Parliament debated the various statutory instruments which, among other things, gave them legislative competence over Short Money on 2nd June 1999 (exactly one month before Primary Legislative power was transferred to Holyrood) the opposition was united in its view that the level of Short Money was inadequate.

Mike Russell, lately Cabinet Secretary for Education, proposed that the Scottish Parliament refer a decision on what the level of opposition funding should be to the Neill Committee, and that the Parliament should agree in advance to accept whatever recommendation the committee made. He also argued that:

There is no doubt that by dramatically reducing the amount of Short money available to parties, which is, in effect, what the Westminster Government’s order does, the Labour party is attempting to ensure that the work of the Opposition parties is undermined.

Then SNP Deputy Leader and current Finance Minster John Swinney decried the government for showing “no hint of benevolence, no sense of fairness.”

Similarly, the then Scottish Conservative Leader David McLetchie argued that:

What is good enough for Westminster is apparently not good enough for the Scottish Parliament, and the apparent altruism of Her Majesty’s Government is only skin deep. In Westminster, Labour can afford to be generous as it is backed-at least for the time being-by a large parliamentary majority. In Scotland, Labour is doing everything it can to suppress opposition to its unprincipled coalition with the Liberal Democrats.

There can be little doubt that the then Scottish Labour leadership, arrogantly presuming that they themselves would never be in opposition, were attempting to choke off funding to the SNP. It wasn’t until the Scottish Labour Party were ejected from Government that the stark the folly of their presumption came to be realised.

A few days after the 2007 Scottish Parliament election Jack McConnell asked his colleagues for a substantial increase in their contribution to the Labour Support Unit from their individual allowances, which its fair to say was met with hostility from the more territorial Labour MSPs. Following her elevation to the Leadership of the Scottish Labour Party Wendy Alexander followed her Shadow Justice Secretary Pauline McNeill in calling for Short Money to be increased. Having only one seat more than Labour in the Scottish Parliament and been forced to live on paltry Parliamentary rations for their 8 years in opposition the SNP were understandingly unsympathetic.

But four years on things have changed radically. The SNP won well against a Scottish Labour Party which, in all honesty, deserved to lose. They have the first overall majority in a Parliament which wasn’t designed for such an eventuality. They’re guaranteed five years in government; Holyrood is to receive a raft of new competences from Westminster; and there will be a referendum on Independence for Scotland. As the newly elevated Cabinet Secretary for Parliamentary Business, Bruce Crawford can show the benevolence and sense of fairness of which Ted Short was so possessed, and which the Labour-led Executive so clearly lacked. And if fairness isn’t justification enough for the Scottish Government, maybe we can even call it “Crawford Money”.