The Scottish independence referendum : constitutional and political implications PDF
Preview The Scottish independence referendum : constitutional and political implications
i THE SCOTTISH INDEPENDENCE REFERENDUM ii iii The Scottish Independence Referendum Constitutional and Political Implications Edited by AILEEN McHARG Professor of Public Law, University of Strathclyde TOM MULLEN Professor of Law, University of Glasgow ALAN PAGE Professor of Public Law, University of Dundee NEIL WALKER Regius Professor of Public Law and the Law of Nature and Nations, University of Edinburgh 1 iv 1 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © The Several Contributors 2016 The moral rights of the authors have been asserted First Edition published in 2016 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2016934699 ISBN 978–0–19–875551–7 (hbk.) ISBN 978–0–19–875552–4 (pbk.) Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work. v Preface The Scottish independence referendum of 2014 marked a watershed in our legal, political, economic, and cultural history. For the first time since the 1707 Union the constitutional standing of Scotland was put seriously in question. Should Scotland remain part of the United Kingdom or should it pursue the course of autonomous sovereign statehood? To understand how that question came to be asked with such urgency today and not before, why it was answered as it was (with a narrower than expected ‘No’), why matters remain unsettled, and whether and how some final settlement might eventually emerge from the intense constitutional politics of the immedi- ate post- referendum period, is a large and daunting task. It is a task that requires both a broad historical and comparative perspective and a detailed focus on the here and now. It demands that we examine the big picture, while remaining alert to the fact that it remains a fast- moving and incomplete picture. It is, nevertheless, the task—o r, rather, the multi-t ask— that we set ourselves in the present volume. As constitutional lawyers, the editors were naturally most con- cerned, and best equipped, to look at the referendum and its aftermath through a constitutional prism. However, we have tried to take as wide and generous view of constitutional matters as possible, and so have included contributions from histor- ians, political scientists, and economists, from international and European lawyers, as well as from constitutional lawyers and theorists. All of our contributors are acknow- ledged experts in their field and all have contributed to the referendum debate in one way or another. The editors themselves, and some of the other contributors, are founder members of the Scottish Constitutional Futures Forum (SCFF) (<http:// www.scottishconstitutionalfutures.org/> ), which through its blog and busy schedule of public events was and remains closely involved in the constitutional debate. We would like to thank our various academic homes, namely the Law Schools of Dundee, Edinburgh, Glasgow, and Strathclyde, for the support they have given to the SCFF, and also in the production of the present volume. We also owe a special debt of gratitude to our publishers, and in particular to our editor Elinor Shields, for recognizing that this was a volume which, such was its topicality, required to be produced promptly without compromising OUP’s usual high standards. In what follows, we do not pretend to pronounce the last or definitive word on the Scottish independence referendum. We do hope, however, to provide a cooler and more comprehensive view of a significant occurrence in the international cal- endar of constitutional events than has been available or possible until now, and to supply a resource that will prove helpful to those engaged in the continuing business of domestic constitutional reform. The editors December 2015 vi vii Table of Contents List of Contributors ix PART I. THE ROAD TO THE REFERENDUM 1. Introduction 3 Tom Mullen 2. The Independence Referendum in Historical and Political Context 29 Colin Kidd and Malcolm Petrie PART II. THE REFERENDUM PROCESS 3. The Scottish Independence Referendum: A Model of Good Practice in Direct Democracy? 53 Stephen Tierney 4. The Referendum Campaign 75 James Mitchell PART III. THE REFERENDUM DEBATE 5. The Constitutional Case for Independence 101 Aileen McHarg 6. Making the Case for Union: Exactly Why Are We Better Together? 127 Jim Gallagher 7. Economics and National Autonomy 153 Andrew Scott 8. Scotland, Secession, and the European Union 175 Sionaidh Douglas- Scott 9. International Law, the Independence Debate, and Political Settlement in the UK 197 Christine Bell viii viii Table of Contents PART IV. TERRITORIAL POLITICS AND THE UK CONSTITUTION AFTER THE REFERENDUM 10. A Constitution in Flux: The Dynamics of Constitutional Change after the Referendum 225 Nicola McEwen Appendix to Chapter 10: Regional Authority Index Regional Scores Codebook 242 11. The Territorial Constitution and the Future of Scotland 247 Neil Walker 12. The Referendum Debate, the Democratic Deficit, and the Governance of Scotland 277 Alan Page 13. Devolutionary Federalism Within a Westminster- derived Context 295 Nicholas Aroney 14. The Technical Jekyll and the Political Hyde: The Constitutional Law and Politics of Scotland’s Independence ‘Neverendum’ 325 Andrew Tickell Index 347 ix List of Contributors Nicholas Aroney is Professor of Constitutional Law and Fellow of Emmanuel College at the University of Queensland. He is a member of the governing council of the Australian Association of Constitutional Law and recently completed an Australian Research Council fellowship focussed on the study of comparative federalism. Christine Bell is Professor of Constitutional Law and Assistant Principal (Global Justice) at the University of Edinburgh. She was a member of the Advocate General for Scotland’s Legal Forum, the Scottish Constitutional Futures Forum, and Lawyers for Yes. Sionaidh Douglas- Scott holds the Anniversary Chair in Law at Queen Mary Faculty of Law, University of London and is an Honorary Fellow of Lady Margaret Hall, Oxford. In 2015, she was special adviser to the Scottish Parliament’s European and External Affairs Committee’s inquiry into the implications of EU reform and the EU referendum for Scotland. Jim Gallagher is a Member of Nuffield College, Oxford, and Visiting Professor in the School of Law at Glasgow University. As a civil servant he worked in government at both UK and Scottish levels. During the referendum he advised the Better Together Campaign. Colin Kidd is Wardlaw Professor of Modern History at the University of St. Andrews and a Fellow of All Souls College, Oxford. Although not formally affiliated to any organiza- tion or party, he contributed articles to the press on the side of the No campaign, and collaborated with Labour politicians outside the fold of Better Together. Nicola McEwen is Professor of Territorial Politics at the University of Edinburgh, and Associate Director of the Centre on Constitutional Change. She was a Senior Scotland Fellow under the ESRC Future of the UK and Scotland programme. Aileen McHarg is Professor of Public Law at the University of Strathclyde. She is a found- ing member of the Scottish Constitutional Futures Forum, a member of the Law Society of Scotland’s Constitutional Law sub- committee, and was a member of both Academics for Yes and Lawyers for Yes. James Mitchell is Professor of Public Policy at the University of Edinburgh. He held an ESRC Senior Scotland Fellowship under the ESRC Future of the UK and Scotland programme. Tom Mullen is Professor of Law at the University of Glasgow. He is a founding member of the Scottish Constitutional Futures Forum. Alan Page is Professor of Public Law at the University of Dundee. He is a founding member of the Scottish Constitutional Futures Forum and was a member of the Advocate General for Scotland’s Legal Forum. Malcolm Petrie is Leverhulme Early Career Fellow in the School of History, Classics and Archaeology at the University of Edinburgh. Andrew Scott is Professor of European Union Studies at the University of Edinburgh. Between 2012 and 2014, he was seconded as Adviser to the Scottish Government’s European and External Relations Secretariat.
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