Its long tradition of muddling along makes it more likely that the United Kingdom will attempt a patch-up of an already rickety constitution about to get hit with the twin destructive pressures of:
- substantially asymmetric new powers for Scotland – irrevocably pledged;
- ‘English votes for English matters’ which is simply just and to which the Prime Minister has publicly committed.
The logical answer to an effective constitutional reform is now generally agreed to be federalism – but that loose consensus is yet to be tested by the collision of political, national and regional vested interest; and by the fact that no federation in history has succeeded where one partner in a small number of member states has 84% of the combined population.
This level of asymmetry would be extremely challenging.
However, the very fact that England – the 84% element – remains wholly undevolved leaves significant latitude for the design of a viable federation.
There are several varieties of federalism in existence to learn from.
Tam Dalyell is the former MP whose constituency named the still unaddressed question he asked upon devolution: the West Lothian question – which nailed the wrong of Northern Irish, Welsh and Scottish MPs voting on Enlish matters at Westminster, where their own devolved authorities suffered no such external interference.
Dalyell has now come up with what is, in theory, the ideal way of becoming a federation: abolish the three devolved parliaments and federate on the basis of local authorities, perhaps regionalised.
This proposition is akin to the Austrian and Swiss federations, where both countries with like populations of 8-9 million, have central federal governments with separate devolved administrative divisions, Austria nine Bundeslanders and Switzerland 26 cantons.
It is worth noting that in most and perhaps all federations, the self-governing status of members and the distribution of powers between them and the federal government, are constitutionally embedded and are beyond any unilateral decision by either party to change them.
Looking at the examples of existing federations, how they work, what powers reside with the member states or regions and what with the federal government is fascinating and underlines the sense of Tam Dalyell’s proposition. This is workable and efficient n avoiding an additional tier of government – but is politically unrealisable because it is based on a necessary but impossible tabula rasa.
Were the Scottish Government not a nationalist one and not, by raison d’etre, wedded to separatism but genuinely committed to the value of union, it could resile the Scottish parliament in favour of a federation of administrative regions based on a logic other then nationalism.
That is not going to happen, but if it did, it would lead by example. Wales would follow suit; although the geopolitics of Northern Ireland have always made it a different partner.
The state of the Union
Serious constitutional reform to create a robust federation would be a major enterprise where the first question to be asked would have to be whether the level of commitment to that federation by each of its members was sufficiently unequivocal and reliable.
Were this not to be the case, there would be no point in setting out on so regenerative an excursion.
In the current circumstances, this primary condition for reform cannot be met.
Scotland voted clearly in favour of staying in the Union- but not resoundingly. It is clear from public statements by many of the leading figures in the Scottish government as well as in the Scottish National Party at large, that whatever lip service is paid to the democratic decision, it is fundamentally not accepted. Indeed, the incoming First Minister, Nicola Sturgeon has openly said that independence is a mater of when.
She also said: ‘There is no going back – and much as they might have wanted to, Whitehall politicians and mandarins cannot put us back in a devolved box. Scotland is now more politically engaged and assertive than at any stage of the democratic era.
‘The word ‘devolution’ is no longer adequate, for that describes a process of handing down carefully circumscribed powers from on high to a relatively passive people.’
Beyond this denial of the right of the clear majority vote to settle the matter, it is now, daily, being deliberately undermined by Scottish government and SNP press releases which seek to deepen the alienation from the Union which the pro-independence campaign successfully created in 44.7% of a soaring 85% turnout of the electorate.
It has been pointed out that this turnout led to more people voting to remain in the United Kingdom than had voted the SNP to its unprecedented overall majority in Holyrood in the 2011 Scottish Election.
With a massive new paying party membership, outnumbering its fairly stable pre-referendum membership, the SNP is now virtually in the control of this hybrid mass of born again bravehearts – all hard wired to independence.
It would be naive in the extreme to imagine that the 2016 Scottish Election will not be seen and used as an opportunity to seek a mandate for independence which, if granted in a parliamentary majority at that election, would justify either a straightforward Unilateral Declaration of Independence [UDI] or a second referendum.
The United Kingdom government as the constitutional superior, has the authority to refuse a second referendum so soon after the destructive impact and the cost of the first one. But the likely response to that by the massed supporters of independence would be likely then to drive a UDI.
The only certain way of avoiding this tension in the 2016 Scottish Election would be a concerted, determined, well managed and successful campaign at that point to defeat the SNP roundly at the ballot box.
As things stand today with the other parties in Scotland – and particularly with the ill-led and unevolved Labour party at large, there is no evidence to support any hope that this would even be attempted.
The logical likelihood therefore is another SNP majority in 2016, with the stability of the Union thrown into uncertainty or chaos, depending on bow the fact of that majority were to be deployed.
This scenario makes improbable any attempt by the United Kingdom to engage in fundamental constitutional reform at this stage. Some sort of unsatisfactory fudge is all but inevitable for quite sound reasons. Had Scotland a different colour of government, a well found and sustainable federation might have been essayed; but then, had Scotland had a different color of government, the prospect of constitutional reform would not be in the frame at all.
This leaves in the sights of the survivability of the Union the imperative for damage limitation and contingency planning – as part of the fudge.
Damage limitation and contingency planning
Enhanced devolved powers will come to Scotland as pledged and on schedule, regardless of how that skews the Union. There is no alternative in terms of realpolitik.
This lack of options is the result of panic after culpable inaction, a wholesale failure of political judgment in the major UK political parties and their blinkered self interest in other matters, such as the 2015 General Election.
There was then the late and scrambling indignity off the BOGOF special offers almost on the toes of the referendum. In our view this tactic changed few votes and bequeaths an almost terminal cost to the Union for no real benefit. But it must now be delivered regardless.
What the Union can do and ought to do, if a scintilla of political judgment can be disinterred, is to waste no time in implementing sound damage limitation measures to prepare for the contingency of Scotland leaving the Union in the short to near mid-term.
This directly involves Orkney and Shetland who themselves now have urgent contingency planning to do.
The initiative is with the far north
Orkney and Shetland have, with the Western Isles, produced an initiative, Our Islands, Our Futures, upon which they engaged in devolution discussions and to a degree, negotiations, with both the Westminster and Scottish Governments during the referendum campaign.
They sent a delegation to Westminster and to Holyrood. Both governments eventually made them offers on the sort of devolution they might make available to the island chains in the event of Scotland remaining a member of the Union or, variously, becoming independent. Neither offer was more than tokenist and both were in that sense, instinctively patronising.
All three island clusters voted against Scottish independence: Western Isles, at 53% by less than the national 55%; but the Northern Isles substantially pro-union with Orkney at a resounding 67% and with Shetland recording a strong 63%.
The day before the vote, which had been expected to be pro-independence, the Convener of Shetland Islands Council announced that when the result of the vote was known, the Council might have a statement to make. The trigger for any statement was understood to be a pro-independence vote; validated by the fact that, with a pro-union vote, no statement has been issued.
The smart thinking was that, had Scotland chosen independence, Shetland Islands Council was going to ask for a local referendum to determine whether Shetland would ask to stay with the United Kingdom and possibly pursue the status of becoming a Crown Dependency.
The interest in the Crown Dependency option was confirmed before the referendum vote by the Secretary of State for Scotland, Alistair Carmichael, who is MP for Orkney and Shetland.
It is not known quite what the view is from Orkney [whose vote was even more strongly pro-Union] but if the Northern Isles were to act in concert they would have a very strong negotiating position in contingency planning for the survival of the Union – but not for long.
Shetland’s interest is in gaining control of the revenues from the oil and gas in its own territorial waters. Up north, ‘It’s Scotland’s Oil’ has become ‘It’s Shetland’s Oil’.
Objectively, North Sea oil is a declining asset. This is underlined by the journalist Andrew Neil’s revelation earlier this week that the Treasury is considering devolving the North Sea revenues to Scotland, amongst the ‘special offer’ enhanced devolution settlement now under consideration by Lord Smith’s commission. It is also emphasised by industry giant, Apache’s statement this past week that it is considering selling off its North Sea assets to focus on American shales.
Andrew Neil’s information puts pressure on Shetland to make an early decision on its future – because, if the UK devolves North Sea revenues to Scotland, there is no way that Scotland will devolve any of them to Shetland. As a declining asset these revenues matter in their entirely to Scotland, with an ambitious social justice agenda which will have to be paid for.
An independent Shetland as a Crown Dependency, however, or a Shetland with devolved status from the UK and control over its own oil and gas revenues, would do very well indeed with such a revenue share. Moreover, with its small population, even allowing for substantial and developmental increases, a Shetland with appropriate constitutional status would have latitude to offer the industry a very attractive tax regime which would support both investment in new production technologies and in the necessary decommissioning programmes in its own sea area.
From the UK perspective, if Scotland leaves the Union – and the logical assumption now has to be that it will and that therefore immediate contingency planning is essential – it will take its geographic share of North Sea assets with it, so why not devolve Shetland’s share to Shetland now, in exchange for a political deal which would retain a relationship with the important specific culture and territory well offshore to the north.
With an asymmetry fudge turned to advantage, it is not inconceivable that Shetland could be offered a form of devolution which would give it the independence it wants while retaining membership of the Union.
The safest strategy for Shetland and for Orkney, if it is similarly minded, would first be to ask for their own devolution settlement from the United Kingdom. This would be more quickly achievable and would protect them from an enforced and clearly unwelcome inclusion in a future independent Scotland. From such a secure position they would then be free to discuss the possibility of Crown Dependency status.
The advantage to the United Kingdom of facilitating such an arrangement centres on defence and national security. As we have pointed out before, an independent Scotland would have to follow through in demanding the removal of the Trident nuclear missile system from Faslane and Coulport in Argyll.
Orkney, with Scapa Flow as a viable national submarine base and with room on Mainland island for an RAF air base, would offer a counter to the loss of Faslane and the RAF bases on Scotland’s east coast and to the degraded defence capablity of a union without its northern mainland territory. NATO would be reassured that the loss to the UK of Scotland would be countered by the siting of a monitoring and response air and submarine capability to the far north, sandwiching what it would see as the security black hole between the Northern Isles and the continuing United Kingdom.
Part of the United Kingdom’s contingency panning ought strategically to be to start planning now the relocation of the facility at Faslane and Coulport to Orkney, since this is not an operation that can be completed quickly – and to implement it as soon as possible.
For the United Kingdom, to leave the Northern Isles within a Scotland which is more than likely to depart the Union would be an irrecoverable folly. For Orkney, the presence of the UK national submarine base and a fast response RAF capability would bring a substantial economic uplift to the islands. For Shetland and for the Northern Isles as a union of their own, independent economic sustainability is fully achievable in this scenario, by each of various means.
Strategic intelligence is all about contingency planning, preparation; and damage limitation.
With Scotland as volatile as it currently is and with no let up in sight, the UK cannot feasibly enter into radical constitutional reform towards a confederation – but it can take this protective action to ensure the survival of Union without Scotland.
Postscript: Shetland News, online here, is reporting a special full meeting of Shetland Isles Council tomorrow morning, Friday 10th October 2014. The agenda item is the constitutional future of Shetland.
Note: Foundation articles for this piece are:
- United Kingdom devolution: a dog’s dinner to herd cats, published on 5th October 2014;
- Conundrums and codswallop on United Kingdom constitutional reform, published on 6th October 2014;
