Note: The Constitutional Commission, while acknowledging that sovereignty of the people as the source of all political authority, does not take a collective view on the desirability, or otherwise, of Secure Autonomy as an alternative to full independence. This is intended only as a contribution to public debate.
PART ONE – THE SEARCH FOR AN INTERMEDIATE POSITION
1. Independence is a significant step. Some see it as a necessary step if Scotland’s potential is to be unlocked and our democracy to thrive. Others, while not blind to its possible advantages, are somewhat alarmed by the perceived economic and political risks, and maintain trust in the Union as a guarantee of Scotland’s stability. Still others, while keen for Scotland to attain greater control of our own affairs, are opposed to outright independence for reasons of historical, emotional or cultural loyalty to the British State.
2. If a referendum were to be held on a simple two-option basis (“independence” or “status quo”) the result might be narrow and highly polarized: it could lead to a victory for the status quo – essentially putting constitutional development in Scotland off the agenda for a generation, if past practice is any guide. If polling data is to be believed, the intermediate position has wide public support and if put on the ballot (as an alternative to the status quo, as part of a structured, two-question referendum) is likely to be endorsed by the people.
3. There is therefore a need to explore intermediate options – positions that offer more than the status quo, whilst stopping short of full independence. For some, this intermediate position could be an end in itself, for others, it could be seen as a further step towards full independence. Either way, the strategic opportunity for the Scottish Government is to set the intermediate position so as to give Scotland as much autonomy, and as much security for that autonomy, as is possible.
4. At present, the intermediate position is undefined. There have been calls for ‘Devolution Plus’ (Reform Scotland) and ‘Devolution Max’ (Henry McLeish), but no one scheme has yet been able – politically, rhetorically and symbolically – capture the public imagination. There is a chance here to set the terms of debate.
PART TWO – DEVOLUTION FAILS TO RESTORE SOVEREIGNTY
5. Devolution was designed to delegate powers from Westminster to Holyrood whilst retaining sovereignty in Westminster. Thus there are two different problems relating to the current devolved system. One is concerned with the extent of the powers of Scottish institutions; the other is to do with the locus of sovereignty. ‘Devolution Plus’ or ‘Devolution Max’ focus solely on the degree of those powers, but not on the location of sovereignty. Scotland would continue to be represented in the House of Commons, albeit in diminished numbers, and sovereignty over Scotland would remain in the British Crown-in-Parliament.
6. It ought to be unthinkable for Westminster to have this power; parliamentary sovereignty is incompatible with the principle of sovereignty of the people, as expressed in the Claim of Right. No Act of Parliament, but only a Scottish Constitution, capable of being amended only by a decision of the people of Scotland in a referendum, can legitimately define and limit the powers of the Scottish Parliament
7. Without popular sovereignty, Scotland might enjoy certain rights and powers, but does not possess them. What has been given might be taken away. This is not idle speculation: the experience of Northern Ireland shows that the British State is willing to suspend or abolish devolved institutions when Whitehall deems fit.
8. Therefore enhanced devolution is not the best intermediate position.
PART THREE – FEDERALISM IS IMPOSSIBLE IN THE UNITED KINGDOM
9. The classic intermediate position would be some sort of federalism or quasi-federalism on a German or Spanish model. Bavaria has guaranteed rights under the German federal Constitution. Catalonia has guaranteed rights under the Spanish Constitution and under its own Statute of Autonomy. The German Parliament cannot unilaterally infringe Bavaria’s rights and the Spanish Parliament cannot unilaterally infringe Catalonia’s rights; in both cases their autonomy is secured by a written and robust Constitution.
10. Many would advocate something similar for Scotland, but owing to the lack of a written Constitution in the UK, this would be impossible to achieve without a fundamental reform of the UK Constitution along German or Spanish lines.
11. Fundamental reform along such lines is unlikely to be achieved in the foreseeable future – the British establishment has exhibited no appetite for such radical change at the core: English legal and constitutional conservatism is too strong to allow the UK’s conventional system to be replaced by a modern, written, federal Constitution. It is easier to lop bits off the UK than to try to change the core workings of the British State.
12. Federalism also raises the problem of what to do with England: it is too big to be one state in a four-state federation, but cannot be divided into mere ‘regions’ without undermining the principle of a federation between four ‘home nations’.
13. As Federal solutions are not possible in a UK setting, we must investigate other means of guaranteeing a form of secure autonomy which recognises, in the words of the Scottish Claim of Right, “the sovereign right of the people of Scotland to determine the form of government best suited to their needs.”
PART FOUR – SECURE AUTONOMY: A “NON-INCORPORATING” UNION
14. Instead of Devolution or Federalism, a new intermediate position could be found, that makes it possible to share powers in key areas while maintaining the principle of the sovereignty of the people of Scotland. This new settlement might be described as a ‘Secure Autonomy within a Re-Negotiated Union’
15. Secure autonomy goes beyond Devolution Plus or Max in that it protects the right of Scotland to determine its own relationship, bilaterally, with the rest of the United Kingdom. It goes beyond federalism in that it is a horizontal union of co-equal states sharing powers by agreement, without a federal government, federal parliament or federal judiciary. Its essence is a ‘Non-Incorporating’ treaty of union (as opposed to the ‘Incorporating Union’ which resulted from the 1707 treaty). In technical terms, it would be a ‘Staatenbund’ (a ‘Union-of-States’) rather than a ‘Bundesstaat’ (a ‘Union-State’).
16. There are several historical examples of non-incorporating unions, allowing equal states to share common powers: the European Union, the Benelux Union, the United States under the Articles of Confederation (1781-1789), the German Bund (1814-1866) are all, to varying degrees, forms of non-incorporating union.
17. Perhaps the best example (i.e. that which is most instructive in the Scottish case) is that of the Austro-Hungarian Empire under the ‘historic compromise’ of 1867. This compromise, which transformed a multi-national dynastic centralised Empire into a ‘non-incorporating’ union, was agreed between the Hungarian and the Austrian Parliaments:
(a) The Austro-Hungarian Empire retained a single external identity in international law for purposes of foreign affairs and defence; internally, it was divided into two States, ‘Austria and rest’ and ‘Hungary’, each fully autonomous over all matters of domestic law, policy and finance.
(b) Each State had its own citizenship, its own Crown, its own Parliament, its own responsible Government, its own Constitution, and its own civil service.
(c) There was a personal union in the monarchy: the Emperor of Austria was King of Hungary.
(d) There were three joint ‘Imperial and Royal’ ministries: foreign affairs, war, and finance. These ministers were responsible to the Emperor-King (unlike the Austrian and Hungarian Prime Ministers, who were responsible to their respective Parliaments).
(e) Besides these common ministries, there was a Customs Union and common external trade tariff, negotiated between the two Governments, approved by the two Parliaments, and renewed every ten years.
(f) There was also a common coinage and a joint national bank, and co-operation on common projects, such as railways and postal services, but these were negotiated between the two States on an ad-hoc basis, without common institutions to operate them; each Government would introduce appropriate legislation into its own Parliament, and would be responsible for the administration of these schemes within its own territory.
18. Transforming the UK into a Non-Incorporating Union might involve an Agreement (a quasi-treaty) between the two Governments, ratified by both Parliaments, containing the following provisions:
(a) The United Kingdom retains a single identity in international law for the purposes of foreign affairs and defence. Internally, it is divided into two States: ‘Scotland’ and ‘England, Wales and Northern Ireland’. Each is fully autonomous over all matters of domestic law, policy and finance.
(b) Each State has its own Crown, its own Parliament, its own responsible Government, its own civil service, and its own Constitution (which, in Scotland’s case, as a ‘progressive beacon’ as a new state, ought to be a written Constitution).
(c) There would be a personal union in the monarchy: the Queen of the United Kingdom would, in Scotland, bear the co-equal title of ‘Queen of Scots’; she would have a parallel coronation in Scotland and take an oath to the Scottish Constitution. All Succession Acts would have to pass both Parliaments.
(d) There would be a British Executive consisting of four joint ‘British’ Secretaries of State: foreign affairs, defence, finance, and internal co-operation. The British Secretaries of State would be appointed by the Queen, on the advice of the Prime Minister of England, Scotland and Northern Ireland, given after consulting the Prime Minister of Scotland. The Prime Minister of England, Wales and Northern Ireland would be President of the British Executive; the Prime Minister of Scotland would be Vice-President. There would be a common secretariat. (Ultimately, this means that the British Executive would fit into the existing ‘English’ system, as a special sort of committee of the inner cabinet; the practical effect would be that the Prime Minister of Scotland would have a seat, and the right to be consulted in the appointment of the four ‘British’ Secretaries of State.)
(i) The UK Secretary of Foreign Affairs would responsible for the joint foreign policy. He would be in charge of UK diplomatic and consular services. Treaties affecting the internal law of Scotland would apply in Scotland only if ratified by the Scottish Parliament.
(ii) The UK Secretary of Defence would be responsible for the defence of the UK, but each Parliament would be responsible for the laws concerning the recruitment and administration of its own quota of troops, and each State would have its own local defence force (the Territorial Army; in Scotland, the Scottish Defence Force). The UK, like NATO, would be a case of separately administered forces under a unified command structure.
(iii) The UK Finance Secretary would responsible for the common finances (i.e. the finances of the joint foreign affairs and defence ministries). The budget would be prepared by the British Executive and each State would be responsible for paying its own share, out of its own revenues, in its own way – (i.e. full fiscal autonomy).
(iv) The UK Secretary of State for internal co-operation would be responsible for overseeing the implementation of shared services and common projects – e.g. DLVA, rail links.
(v) The UK would maintain its own common consular and diplomatic service, which would report to the British Executive.
(vi) The finance ministry (and other ad-hoc joint authorities) would consist of civil servants seconded from the civil services of the two States, supporting a small core British Executive secretariat staff
(e) There would be no UK Parliament. Instead, UK-wide foreign affairs, defence and finance select committees, chosen on a 2:1 ratio from the Parliament of ‘England, Wales and Northern Ireland’ and from the Scottish Parliament, would scrutinize the acts of the British Executive.
(f) The British Executive – essentially at the level of agreements between the two Prime Ministers – would be able to make proposals for common projects, railways, postal services, vehicle licensing etc, but these would have to be approved by the two Parliaments; each Government would introduce appropriate legislation into its own Parliament, on the understanding that the other would do likewise, and would, unless otherwise provided, be responsible for the administration of these schemes within its own territory. Provision might be made for the establishment of joint boards to administer these common services (under the direction of the UK Secretary of State for Internal Co-Operation).
(g) Each State would have its own citizenship and issue its own passports, but citizens of ‘England, Wales and Northern Ireland’ and citizens of Scotland would both, as such, have UK citizenship (in the same way as German and French citizens both, as such, have EU citizenship).
(h) There would be a Common Travel Area, based on that which operates between the UK and Ireland, and the citizens of Scotland would be free to live, work, and hold office in England, Wales and Northern Ireland – and vice versa.
(i) The British Executive would be responsible for relations with the EU, NATO and the UN, although with the proviso that no matter especially concerning Scotland should be agreed without the consent of the Prime Minister of Scotland (or other designated Scottish Minister), who would have the right to be present in such discussions.
(j) There would be a common currency and coinage. Initially, the Sterling would remain as the common currency and the Bank of England would remain as the lender of last resort. Any change to the Euro would require the consent of both States.
(k) Changes to the Agreement would require the approval of both Parliaments; either side may leave the Agreement by means of a referendum.
19. The above outline of Secure Autonomy is only a guide, setting out one possible model of Secure Autonomy arrangements; there are many points of detail to be resolved, and other models, such as those of the Benelux Union, that might also be considered. Yet the advantages of Secure Autonomy, as herein laid out, are clear. It would deliver most of the benefits of independence: Scotland would have, subject to the Union and the EU law, substantial autonomy on all matters of law and policy, including much of macro-economic policy and control over vital resources. Scotland would be able to adopt, for itself, a Constitution which reflects the principle of the sovereignty of the people, not Parliament, and which is a model of modern democratic governance. At the same time, Scotland would remain in a ‘United Kingdom’, reassuring moderate Unionist sentiment, maintaining a ‘social union’, and preserving the security, economic, military and diplomatic advantages commonly attributed to the Union by its supporters.
20. This paper does not take the view that Secure Autonomy would be superior to full independence. Nevertheless, the principle of Secure Autonomy appears to offer the best hope of a workable ‘intermediate position’ between the status quo and full independence, if that is what the people of Scotland desire. The peoples of these Islands have stood together in war and peace, and many continue to value that connection. Unfortunately, the old arrangement, the ‘Union-State’, did not always work: too often, the distinctive voice and interests of Scotland were drowned out. Secure Autonomy, a ‘Union of States’, would enable Scotland and the rest of the UK to go forward together in a mature partnership of equals, sharing certain powers and responsibilities where this is in our mutual interests, while respecting the liberty, autonomy and distinct interests of each country.
 After Scottish members have been withdrawn from the UK Parliament, it would continue as the Parliament of ‘England, Wales & Northern Ireland’.