A second Scottish Referendum

by Elias Blum

The Scotland Act 2016 is one of the strangest confections ever to have emerged from Westminster’s constitutional fudge factory. I am not concerned here with its matters of substance – its tax or welfare powers, for example – but with the elements of constitutional principle that it contains.

(1) By declaring that the Scottish Parliament and Scottish Government are ‘permanent’ and that they are not to be abolished except by referendum, a modicum of symbolic constitutional entrenchment is recognised. This changes a key principle of devolution – that sovereignty is retained at Westminster, and that devolved institutions are mere creatures of the Westminster Parliament – and instead nods, although only very subtly, to a principle of, if not Scottish national sovereignty, at least guaranteed Scottish national rights to autonomy within a divided sovereignty.

(2) The requirement for a two-thirds majority vote in the Scottish Parliament to amend certain provisions concerning the electoral system in Scotland – which again provides an element of constitutional entrenchment. It introduces to Scots public law the notion of ‘protected subject matters’, recognising that some types of law are more fundamental than others, and they they ought to be protected from majoritarian change. (Moreover, the scope of ‘protected subject matters’ could be expanded in future to include other matters of constitutional significance, thereby providing a way and means towards ‘creeping constitutionalism’.)

(3) The recognition of the Sewel Convention does not formally rescind the right of the Westminster Parliament to legislate directly for Scotland, but it does blur the Diceyan distinction between law and convention, and makes it clear that an attempt by Westminster to legislate for Scotland in respect of a devolved matter would be an extraordinary act – and perhaps that to do so without a very good reason would be to undermine the whole basis of devolution.

(4) But, on the other hand, it gives to the Scottish Parliament a vast, sweeping and largely unchecked power to reconstitute itself – outside of the very limited set of ‘protected subject matters’ by Acts of the Scottish Parliament passed by an ordinary majority. Until now, the Scotland Act served as a quasi-constitution for Scotland, in that it was a higher law which it was not within the power of the Scottish Parliament to change; now it no longer serves that function, and so long as they don’t abolish the Parliament or change the electoral system, most of the institutional structure could be torn up or rearranged at will by an incumbent majority in Holyrood. I find that quite dangerous, and it would have been much better, from a constitutionalist point of view, if the Scotland Act itself had been a ‘protected subject matter’ and therefore capable of being amended only by a two-thirds majority.

After the failure of the 2014 independence referendum the window for ‘big bang’ holistic constitution-making seems to be closed (at least for now). The present trajectory is a more incremental approach towards constitutionalism, with the emergence of a fragmented, partially-written, semi-entrenched statutory framework that slowly builds the substance of a distinct Scottish constitutional order without the opportunity for fundamental nation-building. In other words, that Scotland’s current constitutional trajectory looks rather more like, say, New Zealand or Canada than Ireland or India.

The Scotland Act 2016 is demonstrative of this piecemeal, incrementalist approach. The problem with such ‘muddling through’ is that, while it seems to provide a patched solution to current problems, fundamental issues of nation building and state building are never satisfactorily addressed. What results is a mess, a pseudo-semi-constitution that evades more fundamental democratic reform. It’s like building a house without starting with the foundations.

Even without independence, we could have done much better than this. We could develop a new constitutional settlement, short of independence, with a status similar to that of Gibraltar – with Westminster having jurisdiction over foreign affairs, defence, citizenship and passports, but with autonomous home rule, grounded in our own written constitution, over everything else.This sort of constitutional settlement is what the SNP government should now be formulating, and this is what they should be putting to the people in a second referendum. Appetite for another referendum on independence may be muted, and support divided, but such a home rule settlement would, I am sure, win overwhelming support.

Of course, in the case of Brexit (please, Lord, no) all bets are off. Then independence will be the only option, and the sooner it comes the better.