A Reflection on Scotland: Sovereignty, Federalism and Self-Determination

Readers will be aware that the recent Scottish referendum vote for independence resulted in a decision to remain in the UK by a margin of 55% to 45%. Despite the result, the conversation on independence is not over, nor are the implications of the vote and the shock waves that reverberated from it entirely absorbed within the UK and the European Union family. Fragmentation of the Union remains a prescient reality in the United Kingdom, and the consequences of the last minute promises made by Prime Minister David Cameron on giving greater autonomy to Scotland including on the regulation of taxation and welfare support portend extensive constitutional rifts to come. It is not entirely clear what Devo-Max (the now commonly used shorthand for maximum devolution) means, but for sure it is no easy half-way house between full independence and the status quo.

The United Kingdom must now devise and negotiate a further constitutional settlement that mandates a more clearly defined federal structure. This is no easy task. Further splitting the divisions of power in the United Kingdom is difficult to do coherently. An obvious challenge is the dominance of the English population (85%) as well as the challenge of figuring out what is an English domestic matter and what constitutes a regional matter for Scotland, Wales and Northern Ireland.  Definitional separation is not a simple matter to agree or implement. Moreover, the appeasement strategy to Scotland has already provoked calls from one political party in Northern Ireland for greater devolved powers there. Here, there is a prescient danger that the extension of Scottish promises across the Irish Sea could unpick the tightly negotiated Good Friday Peace Agreement which has brought a period of relative stability and prosperity to a region that has experienced over thirty years of violent conflict. That agreement is premised on an agreed consociational structure where both internal balances between the main Nationalist and Unionist parties, function in tandem with a particular set of agreed relationships to the United Kingdom and the Republic of Ireland. Undoing that balance runs serious risks of derailing the delicate political balance that has brought transition and a degree of peaceful co-existence to the jurisdiction.  The prospect of Scotland gaining more political and economic  autonomy under devo-max than was negotiated via international treaty with two guarantor states, an American negotiator in chief and the  engagement of the Clinton Administration as a whole leaves the stability of the Good Friday settlement in some serious local doubt.

Arguably, the closer devo-max comes to independence, the more it may raise all the same objections that were raised to full independence.  This includes the risk of ‘a race to the bottom’, greater transaction costs for individuals moving between jurisdictions, different tax regimes for commercial entities creating costs that they pass on to consumers and more.  While negotiations on devo-max are some way off, these concerns are increasingly populating the post-referendum landscape.

And what of European trembling at the prospect of Scottish independence?  Joseph Weiler, writing before the referendum took a dim view of the emergence of an independent Scotland.

… I am convinced that Scottish independence coupled with simultaneous, or close to simultaneous, membership of the Union will provoke a domino effect among many nations and regions in Europe. Independence pure and simple is in many cases threatening and unattractive. There is a long list of candidates, in Spain, France, Italy and elsewhere who would be emboldened by the Scottish example. Feeding this frenzy for secession and independence in Europe is the premise that all these new States will somehow find a safe haven as Member States of the European Union. Absent that assumption, appetite for independence would be significantly muted.

Has the ‘No’ vote muted the domino effect?  There is little evidence to that effect. The European ripples include greater clarity to self-determiantion calls by Catalonia among other regions.  Here, while the recent Spanish Supreme Court’s unanimous decision to halt a proposed referendum prevents an immediate articulation of any expression of collective self-determination, it is a temporary measure.  Despite the judicial barrier there are calls to proceed with the referendum (scheduled for November 9) even as the Court considers the case filed by the Spanish central government. Catalonia is not alone as the sentiment to self-determination and singular national identity infuses the political realities of Kurds, Walloons, and Chechens (to mention but a few).

I am less inclined than others perhaps to see the conversation in Scotland (or elsewhere) in zero sum terms, either as running diametrically contrary to the historical ethos of European integration or as requiring a necessary correlation for national identity within a democratic state as necessitating independence.  Rather, we might want to celebrate a new era of conversation about the meaning and form of self-determiantion, embrace its inherent messiness and be clear-eyed that referenda or not the issues are simply not going away and will remain a sustained part of mature political conversation in multi-ethnic, multi-national polities. 

 

About the Author(s)

Fionnuala Ní Aoláin

Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School, Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland Follow her on Twitter (@NiAolainF).