Self-determination

My post about Scotland and the banks attracted an outbreak of criticism from fervent Scottish Nationalists. I found this rather bizarre, as throughout the post I assumed there would be a "Yes" vote in the September referendum. How this translates to "Coppola despises #indyref" is a mystery.

But it raised a question. What opinion, if any, do I - a British citizen living in the south of England - have a right to express? The events of the last week have made it very clear that Scottish independence would affect all of the UK. I have no vote in this referendum, but I definitely have an interest in its outcome. It is therefore wrong to suggest (as some do) that I have no right to comment AT ALL on Scottish independence and its effects. Scottish independence would affect me. Therefore I have a right to express an opinion on it.

I am no constitutional lawyer, but it is clear to me, at any rate, that the UK must continue in some way after Scottish independence. I am a citizen of the United Kingdom, and I have no vote in this referendum. Is my citizenship to be revoked on the say-so of the Scots? Is the country in which I was born and to which I have given my allegiance to be broken up without my agreement? The claim by some that Scottish independence would mean the end of the UK cannot be allowed to stand. Breakup of the UK would need the agreement of ALL its citizens. The very fact that the Scots have been allowed to have their own referendum is a clear indication that the UK would continue in some form after Scottish independence. A "Yes" vote would be secession, not breakup. Comparisons with Czechoslovakia are moot.

The European leadership certainly seems to understand this. Jose Manuel Barroso, President of the European Commission, observed that Scotland would be "a new country, a new state, coming out of a current member state". To him, clearly, the UK would remain after independence - diminished, but still standing. Even if it adopted a new name (perhaps "the United Kingdom of England, Wales and Northern Ireland") it would still be the same country and therefore remain a member of the European Union. He also made it clear, as have other European officials, that an independent Scotland would have to apply for membership of the EU. John Swinney of the SNP described this as "preposterous" and claimed that Scotland had been a member of the EU for forty years. I'm afraid as far as I can see this is simply wrong. The EU recognises the UK as a member state, not its constituent parts. Scotland is only a member of the EU by virtue of its membership of the UK. If it leaves the UK, it is de facto no longer a member of the EU.

A similar problem arises with Scotland's claim to "a share" of sterling. Sterling is the currency of the UK, and the Bank of England is the central bank of the UK. If Scotland were to leave the UK, it would leave behind both the currency itself and the institutions that support it. Emotional shouts of "the pound is Scotland's too" and "the Bank of England was founded by a Scot" don't change this situation.

The SNP's proposal to create a "sterling area" similar to the Euro zone, thus enabling Scotland to retain sterling with Bank of England support, has foundered on political opposition in the UK and economic arguments from the Governor of the Bank of England and from the UK Treasury. The three main UK political parties have - unusually - presented a united front in opposing currency union with an independent Scotland. Describing this as "ganging up" to "bully" Scots into rejecting independence is perverse. The SNP has to make the case for currency union, not only from Scotland's perspective but also from the perspective of the rest of the UK. So far, it has failed to do so. Until it comes up with a compelling argument that currency union would be beneficial not only for Scotland but for the rest of the UK, it is is off the table. That doesn't mean an independent Scotland couldn't use sterling, and it doesn't mean that Scotland's claim on the assets of the Bank of England wouldn't be honoured. Indeed, it would not be in the UK's interests to withhold Scotland's share of the Bank of England's gold and FX reserves. An independent Scotland's new central bank would need them.

Personally I think the currency union proposed by the SNP would be bad news not only for Scotland, but also for the rest of the UK. I explained why in this post from two years ago, and John Aziz has reached similar conclusions, as has Martin Wolf of the FT - a formidable opponent. So I think those supporters of "independence" who favour a currency union are mistaken. But more importantly, they do not have the right to force an unwanted currency union on the rest of the UK.

The fact is that Scotland's self-determination has to be negotiated, and negotiation is a long and delicate process. The outcome of the independence referendum will set the framework within which that negotiation will take place. At present there is considerable discussion about what would have to be negotiated following a "Yes" vote. But there is no discussion about what would have to be negotiated following a "No" vote. And yet, in its way, a "No" response would have as many implications for the future of the UK as a "Yes" vote. Whatever the outcome of this referendum, the UK is set for radical change.

The independence referendum was originally intended to have a third alternative - the so-called "devo-max", under which Scotland would remain in the UK but would manage its own fiscal affairs. In the event of a "No" vote, the Scottish government would no doubt push for devo-max - indeed this was originally its preferred option.

It would be easy to see devo-max as simply a matter of devolving much more to the Scottish government. But it goes much further than that. It raises questions about the governance of the entire UK. Not only would the West Lothian question have to be resolved, and the hated Barnett Formula revised to take account of Scotland's new fiscal autonomy, but the whole relationship of the Scottish and Westminster parliaments would need to change. Would Scotland return fewer MPs to Westminster - say the same number as for the European parliament? And how would this affect the balance of power in Westminster? Would Westminster be forced to create regional parliaments in England to prevent a huge imbalance developing? Would more powers have to be devolved to Welsh and Northern Irish assemblies, and even to English regional parliaments or to large cities such as London? In short, would the UK find itself inexorably moving towards a federal model of government?

If so, then there is a strong case for a second referendum in the event of a "No" vote - a referendum in which ALL the people of the UK would decide how they wish to be governed.




Comments

  1. This comment has been removed by the author.

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    1. Good point - we simply need to add an asterisk to the word Great Britain* - and a footnote saying "not quite as great as it used to be but still pretty darn good".

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    3. Thanks Huw Sayer

      I deleted my comment as I think this is more accurate

      The union in the title United Kingdom does not refer to a union between Scotland and England, it refers to a union between Great Britain and Northern Ireland. So what is being countenanced by the referendum is not as simple as one entity leaving a union that it has with another.

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  2. Agree Independence is a Scottish issue but devolution is a UK issue. The anti democratic nature of the original devolution (a plebiscite only in Scotland not the UK) therefore only makes sense if seen as a step to independence. Should Scotland reject the logical conclusion of devolved Govt then the UK as a whole should vote on retention or any extension of that devolution. Of course such a position could be accused of bullying for a Yes vote in #IndyRef.

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  3. Good post Frances and I agree with your point that a No vote will still leave many issues to be resolved.

    Meanwhile, as a liberal, I support the right of the 8% of the UK population living in Scotland (many of them not Scots) to self determination.

    But I reject the idea that they can then demand anything of the remaining 92% in the rest of UK (many of them Scots) either in share of assets or control of the UK currency and institutions. Nor do I care whether they take their 8% of the debt with them (as others, including the Treasury, have suggested, the share they might take is not worth the cost of negotiating any other concessions).

    As I have said elsewhere: Club House Rules apply - if you choose to leave the club you don't get to take the biscuits with you, or a share of the petty cash (and you might not get a full refund on your membership fees).

    If the people of Scotland choose to leave the UK - that's their choice (and good luck to them) but the UK remains (they don't get to dismantle the rest of the Union just because they leave). Scotland will have to set up as a new nation and negotiate entry to the world from there. However, if they want the (debatable) benefits that come with the UK they should stay.


    @HuwSayer

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  4. As the "British" Raj was pretty much the Scottish Raj, there is always India and the rupee. Auckland Colvin and his father John Russell Colvin (both Wiki) would approve. Given the critical nature of the currency issue it is open to anyone to join the discussion and for the issues to be made clear. Good post.

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  5. As a Scot who will be voting Yes, I agree with your points about the currency. A new fiat currency is the only truly independent choice, though politically it is a tough call, as many potential Yes voters will lack the courage for such a big step. I would like the new Scottish government to know all about MMT and functional finance as well, but that's a dream too far!

    However, I don't agree with your (and Mr, Barro's) logic that in the event of a split-off of part of the UK, only one of the parties loses its EU membership. Why should that be? Neither of the two parties was the country that entered the EU, it would no longer exist, so both should lose membership.
    Is it size-related? If Scotland had been 50% of the UK in population, would that change the logic?

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    1. Isembard,

      I explained in the post why the democratic principle means that the UK cannot cease to exist as a consequence of Scotland's decision. The same applies to the UK's membership of the EU. The people of the rest of the UK have no vote in this referendum. We are not voting to leave the EU. You are. Why should we lose our membership because you choose to leave?

      Mr. Barroso has simply stated the existing policy of the EU. A new state that is created by secession from an existing member state must apply for membership. But the existing state does not lose its membership because a part of it has split away.

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  6. I agree that from the rUK's point of view, it is undemocratic and unfair. It's just as unfair as us having to endure Tory governments that were democratically elected by English voters. The latter is technically democratic but fails the democratic principle you appeal to.

    Nevertheless, the UK, comprising England, Scotland, Wales and Northern Ireland, is the state that joined the EU. If you take part of it away, it's not the same state anymore - this is self evident.
    I think you'll find that the referendum is not about voting to leave the EU, It's about voting to leave the UK.
    I don't think that one automatically follows the other as you suggest - can you refer me to the EU document that states the policy you describe in your last paragraph, as opposed to statements by individuals?

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    1. 1) Parliamentary sovereignty means that Westminster can simply redesignate the rest of the UK as "the United Kingdom". Westminster did this when Ireland left and it can do it again. It is wrong and, frankly, arrogant of the Scots to think they can unilaterally force breakup of the UK.

      2) The UK is the EU member state and its parliament is Westminster. That remains the case even if Scotland secedes. As I said, you cannot force the breakup of the UK and therefore you cannot overturn its membership of the EU.

      3) As I explained in the post, Scotland is only a member of the EU by virtue of its membership if the UK. If it chooses to leave the UK, it also de facto chooses to leave the EU.

      4) There is a document on this. I am trying to find it. Will post it when I do.

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  7. 1) They can change the name but they can't make it the same state again. I believe the arrogant Scots you mention just want to escape from Westminster tyranny. The 'breakup of the UK' is a mere side-effect.

    2) I don't see the relevance of Westminster to the definition of the UK, unless you're talking about a mere name change again.The point is that the present UK would not exist.. No 'forcing' or 'overturning' is needed.

    3) Nothing to say on this.

    4) Interesting. I hope it's a small one.

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    1. 1) One region leaving does not force the rest to leave. There will be no "breakup of the UK".

      If the breakup of the UK is a "mere side effect", why are you so keen on it? It really doesn't matter to you.

      2) The fact that you don't see the relevance of Westminster to the definition of the UK is exactly the problem. Like most Scots, you don't understand the principle of parliamentary sovereignty, which is at the heart of the UK's unwritten constitution. Therefore you do not understand that the UK is defined by Westminster. The UK will continue to exist because Westminster will say it does. That's how parliamentary sovereignty works.

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    2. Reply to Isembard from Carl Gardner:

      This is much more a question of international law than of constitutional law.

      Whenever states change their territory or break up, we're faced with the question whether it's the same state, fundamentally (the "continuator state") or whether it's something else (was Germany the "same thing" after 1990? Was Russia the same state as the USSR?). The question here is whether rUK would be the continuator state – the identical subject of international law as the current UK – or not. Isembard's arguing that it wouldn't be.
      But the weight of precedent and opinion seems against him.

      http://europeanlawblog.eu/?p=1551

      This blogpost deals with the issues pretty well and links to
      https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/79408/Annex_A.pdf

      written advice from two international lawyers who conclude very persuasively that rUK would indeed be the "continuator state". Just as rUK was after the Irish Free State was created in the 1920s. I suppose Isembard may dismiss the advice as having been published by HMG, but I think he'd be wrong to.

      Of course what really matters here – international law always ultimately being about what states will accept – is what other EU member states think. At the moment there seems to be not the slightest hint that they'd see rUK as anything but the continuator state here.

      It's not a question of constitutional law, because no internal legal rule can determine any EU law question. Just as no Act of Parliament would be accepted by the ECJ as determining the meaning of any EU measure, so no internal law can determine membership of the EU.

      If that weren't right – if the UK's membership of the EU were determined by an internal constitutional rule of the rUK – then why couldn't Scotland provide in its new constitution that *it* is the rightful successor of the old UK? Why wouldn't that be determinative for EU law purposes?

      No: the answer's not to be found in any state's constitutional law, but in international law. The only reason anyone might be inclined to see the rUK's constitution as having any more weight than Scotland's is the vague perception that rUK would be the true inheritor – which accurately reflects the international law position.

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  8. I see no merit in this argument. The simple fact is the UK continues. Everyone who matters understands that and accepts it isn't even a question.

    If Isembard doesn't wish to recognise the UK after the Scots leave that is a freedom available to him, however barking his logic for so doing. I don't see anyone in the UK losing any sleep over it.

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  9. An interesting legal argument from Carl Gardner. TBD.

    Frances, (1) You still seem confused about why Scots want independence. If we could remain part of the UK and not get neo-liberal governments in Westiminster destroying us, that would be a better option to most I think.
    (2) "Like most Scots, you don't understand...(stuff)" - could you try to be a little more arrogant here?

    Mr. Tamasi - Appeal to authority ("Everyone who matters..") and Ad Hominem attack ("however barking his logic").
    Must try harder, Mr. Tamasi.

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  10. Isembard,

    "You still seem confused about why Scots want independence".

    There is a fine example of the arrogance I'm complaining about. I'm not remotely interested in why Scots want independence. I'm interested in why you are so sure that you exercising your democratic right to leave the union means the rest of us have to lose our citizenship.

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    1. A fine example of arrogance? Mirriam-Webster has a nice colloquial definition "an insulting way of thinking or behaving that comes from believing that you are better, smarter, or more important than other people".
      I might, or might not be, technically incorrect in my beliefs and statements to you, but I've not displayed any arrogance. I think I've been polite and respectful. However your "Like most Scots, you don't understand.." appears to me to be a 'fine example of arrogance'.

      I don't believe that Scotland exercising its democratic right to leave the union will leave anybody without citizenship, It's just that you (rest of UK) will be a citizen of a country that is no longer the UK as we define it now. It couldn't be simpler.

      When you say you are 'not remotely interested in why Scots want independence' you display the kind of disrespect and contempt that confirms my belief that a separation from, to be frank, the English, is an attractive prospect.

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    2. Isembard

      Actually, I made an accurate statement about one of the principal historic disagreements between England and Scotland. The Scottish parliamentary system worked differently from England's prior to the Acts of Union and parliamentary sovereignty as it applies in Westminster is TO THIS DAY not widely understood in Scotland. Indeed your comments here have amply demonstrated that you do not understand it. The UK will continue because Westminster will say that it does. It has the sovereign right to do this and nothing you may say or think changes that. It is unfortunate that you interpret this as "arrogance" on my part. I assure you it is not intended in that way.

      Please explain why when I say I am not interested in why Scots want independence I am displaying "disrespect and contempt", but when you display utter indifference to the concerns of the citizens of the rest of the UK that is apparently justifiable?

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    3. If you are interested in learning about parliamentary sovereignty, here are some links explaining it:

      http://www.parliament.uk/about/how/sovereignty/

      http://www.euromove.org.uk/index.php?id=6505 (particularly note paragraph 3: Scottish courts reject the principle of parliamentary sovereignty as a "distinctively English" concept)

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  11. I think you're confusing 'country' and 'state'. The UK is not a country, it is a state, made up of a number of countries. You were born (I assume) in the country of England. Clearly this will remain. But the state into which you were born will be no more, or certainly not as it was.

    This is an important distinction.

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    1. No, sorry, you have this the wrong way round. The UK under international law is a country, just as other countries made up of several regions are - Germany, for example, or the USA. You surely would not argue that the US is not a country? Equally, you cannot argue that the UK is not a country.

      If the UK were operating a federal model of government similar to that in the US, England, Wales, Scotland and Northern Ireland would be states within the country, just as Texas, Alaska, Hawaii and Connecticut are states within the country that is the United States of America. But the UK has a unitary model of government at the moment. It is that unitary model that is likely to change whatever the outcome of the Scottish referendum. Whether or not Scotland remains part of the UK is really not the issue.


      You cannot argue that one region declaring independence means the country no longer exists. Does Lviv's declaration of independence mean that Ukraine no longer exists? Would Texas leaving the United States mean the USA no longer existed? Hardly. It's the same here. The UK continues to exist if Scotland leaves. If there were ANY CHANCE AT ALL that the UK would cease to exist, this would be a whole-UK referendum not just a Scottish one.

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    2. It is with a very heavy heart I must concede you seem to be right on this. Still, you know what I mean ;)

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    3. Yes, I do know what you mean.

      But I am puzzled why you, like many, seem disappointed that a "yes" vote in the Scottish referendum would not mean the end of the UK. How is it democratic for less than 10% of the UK's population to determine the fate of the UK? That is even worse than the turnout for a local election, let alone a national one.

      Some supporters of Scottish independence seem to regard breakup of the UK as some kind of revenge for their sense of disenfranchisement because Westminster is dominated by political parties that they haven't voted for. But most people in the North of England would say the same. And so would many in the South, too. What about them? Where is their voice?

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  12. Describing this as "ganging up" to "bully" Scots into rejecting independence is perverse

    I think this is the one part of your post I really disagreed with. The fact that all three parties joined together does leave rather a bad taste in the mouth: there was no need to do this other than to make the point as heavily as possible.

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    1. So what were the three parties supposed to do, agree that one of them should support currency union just to make the SNP feel better? That is ridiculous.

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    2. No, and that's not what I said.

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  13. Ok, so one of them wasn't supposed to give an opinion at all, then, in case it looked like collusion? I'm afraid that's equally silly.

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    1. Pity's sake.

      I'm sorry I wasted my time on your blog and I won't do so again.

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  14. I'm afraid what is boils down to is that those proposing Independence, and the supporters thereof, have assumed that everyone will want to act in ways entirely in the interests of Scotland, and in no way consider the interests of those who Scotland wishes to leave behind. As a potential citizen and taxpayer of the rUK, I am very happy that those charged with representing my interests have taken the stance they have. I see no reason why the financial clout of 55m+ taxpayers in the rUK should be put at the disposal of a foreign country, which is what an independent Scotland would become. It is bizarre in the extreme that the Yes camp seem to regard this rUK decision of entirely rational self interest as some sort of betrayal.

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  15. England de facto seceded from the union when it parted from the post war consensus around the mixed economy .Scotland remains loyal to the post-war social democratic system while England has set out to construct an economy based on rent-seeking and inflated land values and so is heading for oblivion. The central bank rightly belongs to the loyalists in Scotland the North of England and Wales and should be removed from the secessionist south for the use of the kind of people who built it up post-war.The south of England and London can disappear up its own land price inflation.

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