Dissenting Radical

The Common Good: A 'Christian-Left' perspective on radical theology, progressive politics, authentic culture and sustainable living.

Month: October, 2017

Slowly, slowly, catchy indy.

I don’t see any ultimate constitutional solution for Scotland short of full independence, but there are plenty of penultimate solutions to be explored.

These half-way solutions might at least move things forward a bit, and do so in ways that build consensus and avoid unnecessary divisions. A good next step might be to gain for Scotland the same sort of constitutional status that Gibraltar and the Cayman Islands enjoy today, or that the Eastern Caribbean enjoyed before independence under the Associated Statehood Act 1967.  That might satisfy the vast majority for now, ‘devo maxer’, ‘federalist’, ‘home ruler’ and ‘nationalist’ alike – even if some of us would like to go further later.


How to become independent the easy way

There are various ways in which a state can become independent. In the case of becoming independent from the UK, the most normal means was as follows:

1. In response to local demand, a devolved legislature is set up.

2. Pro-independence parties win a majority in the legislature.

3. UK government convenes a Constitutional Conference to work out the details of independence: timing and process, but also substance of the post-independence Constitution. The negotiations take place between various political parties in the territory, as well as with the UK Government. This results in a report that set out things like who will be a citizen of the new state, how its institutions will be set up, etc – including things like protecting the pensions of civil servants.

4. The proposals of the Constitutional Conference may be put to the people in a referendum. This means that they are not voting on the concept of independence, but on an agreed constitutional transition to independence. Note: If there is no a referendum, the legislature of the territory might approve the independence Constitution instead. Sometimes there was an additional election, before or after the Constitutional Conference, in place of a referendum.

5. The UK Parliament passes an Independence Act, which divests Westminster of sovereignty and grants to the territory a new Constitution (as agreed at the Constitutional Conference).

6. The new Constitution comes into effect by UK Order-in-Council on ‘the appointed day’. At that point, the band plays, the soldiers march past, some royal flunkey takes the salute, the Union Flag goes down, the new national flag goes up, and they have a big party in the streets.

7. Alongside this, there might be some continuing arrangement for defence co-operation, financial co-operation etc. That’s the grown up way to deal with things – to recognise that while independence cannot be prevented, there are enduring shared interests that can provide a basis for a good post-independence relationship.

That’s the normal process by which the UK gave independence to most former colonies. There were some variations. In a few cases, it didn’t work that way and it was either very messy (Ireland) or did not end well (Rhodesia). Of course, this doesn’t deal with the full politics of the situation – how to win the case for independence – but it does show that with mutual respect and goodwill, the mechanics of the process are not eligible.

Has Brexit helped or hindered Scottish independence?

Apart from the first month after Brexit, the polls on Scottish independence have been remarkably 2014 static. Brexit seems to have encouraged some and discouraged others in equal measure.

My own view is that legally, economically and technically Brexit has made Scottish independence less risky. The best solution is for Scotland to become independent and apply immediately to join EFTA. Joining EFTA avoids questions around a ‘Spanish veto’ and consolidates a North Sea alliance with Norway.

With the prospect of being a forgotten region of a lost UK under a ‘no-deal’ hard Brexit scenario, there’s now no realistic risk of a worse situation in the event of independence. That’s because there’s no longer stable and attractive status quo for Unionists to defend. The threat of exclusion from EU, so effectively mobilised in 2014, has been completely neturalised by the UK’s own actions. On the other hand, independence does bring an opportunity for a better situation, in terms of access to the customs union and single market.

Brexit has also made Scottish independence more necessary. It is necessary for access to the economic advantages of European markets and to the social advantages of European human rights, employment rights, and environmental and consumer protection laws – all of which risk being torn up under a hard Brexit settlement. It is also necessary because the Britain that is emerging in a hard Brexit scenario is a distinctly inward-looking and backward-looking one, with polarised angry politics and a dysfunctional political class.

Furthermore, Brexit has given Scotland allies in Europe – for the first time in 300 years, Scotland now has a foreign policy, and that policy is noticeably more constructive than that of the UK. However, I fear of parallels between Scotland and Catalonia may have made some of those allies lukewarm at best.

On the other hand, while Brexit has made Scottish independence both less risky and more necessary, it has also made it more difficult – in political terms – to achieve. We have seen growing intransigence of the UK govt. It is unclear whether we will have another Edinburgh Agreement (the deal between the UK and Scottish Governments) which allowed for a legitimate referendum in 2014;  without some agreement providing for a process which is both legally and politically legitimate, we are in danger of being pushed into a situation where independence by lawful means becomes impossible – and, of course, independence by unlawful means would be near-suicidal, as Rhodesia proved.

Ultimately, the case for independence is as strong as ever – and it is at heart a democratic case – but it is not going to be easy. Presenting Scottish independence as a normal path of constitutional development for a commonwealth country (e.g. seeking comparisons to Canada, Australia etc) is a better bet than seeking comparisons with secessionist movements in continental Europe – if only because the Commonwealth provides another layer of international legitimacy that can, potentially, unite nationalists and unionists. After all, the Commonwealth Charter – signed by the Queen and UK Prime Minister, no less, commits the Commonwealth to a set of meta-constitutional values that can help legitimate a Scottish state – values such as democracy, human rights and the rule of law, but also a respect for the independence of small states.

Thoughts on Nationalism

1. Some of forms of nationalism are certainly wicked – violent, oppressive, arrogant, exclusive and racist. These should be rightly condemned.

2. However, this does not mean all nationalism is bad. There are also varieties of civic nationalism that can be a benign and progressive force. It contains concepts of national solidarity and shared purpose that can be used to promote the common good and to demand democracy, social justice, good government etc. 

3. Nationalism is present on both sides of most secession debates. It’s not just the pro-secession side who rely on nationalism, but also the anti-secession side. 

4. Often, it seems that the bad forms of reactionary or imperialist nationalism are on the side of the anti-secessionists, while the democratic civic forms of nationalism are on the side of the pro-secessionists.

5. Nevertheless, the anti-secessionists call the pro-secessionists ‘nationalists’, as if that were an insult, and they expect to get away with it. That’s no’ fair.

Process and Timing

I’ve just finished a close reading of Zambia’s National Constitutional Conference Act 2007 and the Constitution of Kenya Review Act 2008.

Never let it be said that I don’t know how to have a good time.

But seriously, I’ve really started to think about questions of process more deeply. Not just the broad principles of how to structure the constitution-making process or how to balance politicians, experts, civil society, general public, international community etc, but also the real nitty-gritty of how to create and sustain the institutions of transition: How to fund constitution making bodies, how to support them, how to set up their own internal decision-making rules.

Above all, I’m thinking about how the constitution building process relates, in time and in personnel and institutions, to the wider state building process. Does the constitution come before, during or after the design of postage stamps and the setting up of embassies?

The 6-Rs of Constitutions

Here’s a handy alliterative aide memoire for the functional elements of constitutions.

I call it the 6-Rs.

1. Representation and referendums (franchise, electoral systems, terms of office, direct democracy provisions).

2. Relationships and responsibility (how institutions of govt interact, separation of powers, checks and balances etc).

3. Rights (human rights and enforcement mechanisms).

4. Recognition, religion and respect (national identity, language, church-state relations, status of minorities etc).

5. Regions (sub-national govt, federalism, localism).

6. Reform (how the constitution can be amended).

How do we address the needs of 45 vs 55 or 39 vs 61 or 48 vs 52? Winner takes all is pretty grim..

There is indeed a problem with snap referendums deciding major issues on a knife-edge. Super-majority referendums is one way to go – although it opens up theoretical difficulties about the nature of constituent power. A stricter absolute majority rule (50%+1 of total eligible voters). May in practice have a similar effect without raising these theoretical problems. It will tend to favour the status quo (because, on expected turn-outs, it means a clear majority of those who vote must be in favour), but in principle political equality is maintained.

Another possibility is to hold sequential majoritarian referendums: let’s say, there’s a period of 5 years (one complete electoral cycle) after which a second referendum is held. If that second referendum confirms the first, then action is taken. Again, it does not speak directly to the need for minority protection, but it does prevent snap decisions by thin majorities.

My default is against federalism and consociationism and in favour of splitting into smaller states (within overarching frameworks that provide for international co-operation in matters such as defence and trade). Over-engineered consociationalism doesn’t seem to be a stable solution and it doesn’t lead to good governance outcomes. Federalism incurs all sorts of costs in terms of accountability, transparency, efficiency and good government which are simply avoided in smaller, more homogenous, unitary states. Independence is often the neatest, simplest option.

My preferred solution to ‘minority within minority’ problems, when these are territorially concentrated, is partition. India is better off for not having Pakistan be part of it. Ireland is better off for not having to accommodate the angry and oppositional population of the north. That is a consistent application of the principle of self-determination, and I think it is also self-limiting (in that partition or secession-from-seceding states at some point runs up against limits of viability and practicality, at which point it can go no further- there’s no real prospect for ‘the republic of me and you and I’m no so sure about you’.

Of course, when minorities are not territorially concentrated, it is more difficult. When these minorities are defined by characteristics such as ethnicity, language etc, it may be possible to incorporate forms of group autonomy into an essentially unitary constitution (as in Kosovo).

However, in the Scottish case, there are just differences of opinion, not differences of being. My suspicion in the Scottish case is that if Scotland were independent, unionism would very quickly change from a constitutional position to a foreign policy position. There would be those in Scottish politics who would seek closer relationships with England (and Atlanticism generally), while others would seek closer relationships with Europe. I expect that actual opposition to their being a Scottish state would dissipate within a relatively short time. This may or may not be the case in Catalonia.

Inclusive citizenship rules and scope for dual citizenship, together with reciprocal rights to live and work in the two countries, may also be helpful in smoothing anxieties – this was the case with the independence of Ireland, for example.

Thoughts on Catalonia

I’ve stayed out of the Catalan issue. It’s ‘not my circus, not my monkeys’. I have always been suspicious of attempts to link the Catalan and Scottish situations too closely, because their constitutional situations are so different. My tendency has been to frame Scottish independence in ‘British-imperial’ terms, to see Scotland’s move from direct rule, through devolution, to independence as a Commonwealth Realm as simply the unfinished business of the transformation of the British Empire into the Commonwealth. I’ve sought to compare Scotland to places like Canada and Australia, Jamaica and Malta, in achieving a negotiated and mutually recognised constitutional independence.

In doing so, I have drawn some criticism from the radical left of the Scottish independence movement, who have accused me of opportunism, cowardice or lukewarmness. But my intention has always been to avoid situations that can make things worse. Independence can be difficult. Transitions often are. By pointing to the already independent nations of the Commonwealth, rather than to the other independence-seeking nations of Europe, I have tried to show that Scotland can achieve independence peacefully, democratically, and on a sound democratic constitutional basis. No one – least of all those in favour of independence – want blockades, embargoes, border-patrols, capital flight, or any of that nonsense. We are trying to be grown up and sensible about it. And we do that on the basis that the UK has a good(-ish) track record of granting countries independence when they really show they want it. All we had to do was show that we wanted it enough, and the peaceful, lawful way would be made.

Catalonia is not in that position. The Spanish state has refused all attempts at parley. It has been intransigent and uncompromising. The referendum of 1 October might have been unrecognised according to Spanish law, but the use of state force to disrupt a peaceful exercise of popular sovereignty was a sign that the Spanish government has complete disregard not only for the constitution it claims to be defending (which, after all, is supposed to defend freedom of expression and freedom of assembly), but for the principles of democracy that stand behind, above, and prior to, that constitution.

The Catalan situation reminds us that the cause of national self-determination is inextricably linked to the cause of democracy. That’s not to say every nation must necessarily be independent, but it must have the democratic right to determine its own status. In the words of the Scottish Claim of Right, I defend ‘the sovereign right of the people to determine the form of government best suited to their needs’.

This principle of popular sovereignty is at the foundation of constitutionalism and the origin of all legitimate government. If the state tries to crush that, it has already lost its legitimacy.

So, I’m not Catalan (but I have plenty of relatives by marriage who are). Whether Catalonia decides to become an independent state is up to them. But their right to decide is a right which all democrats everywhere must defend.