Aims

The primary aims of the Constitutional Commission are four-fold:-

To ensure that any proposals for constitutional developments that affect Scotland are fully debated and decided in Scotland.
To examine how the proposals of the Power Inquiry for more participative governance could be implemented in Scotland.
To clarify the constitutional implications of various forms of relationship with other countries of the UK.
To prepare the broad outline of a draft Constitution for Scotland.

Secure Autonomy - A sovereign Scotland within a re-negotiated Union? Print E-mail
This Article considers an intermediate position between the current devolved administration and independence.  It rejects “Devolution Max” as an unsatisfactory solution, and Federalism as unworkable.  Instead, it explores the idea of “Secure Autonomy” for a sovereign Scotland, achieved through a re-negotiation of the Treaty of Union.

Note: The purpose of this page is to discuss a form of Secure Autonomy for Scotland within the United Kingdom.  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.



SECURE AUTONOMY: RE-NEGOTIATING THE UNION 

 

PART ONE – THE SEARCH FOR AN INTERMEDIATE POSITION

 

1.         Independence is certainly a big 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 seriously alarmed by the percieved 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 would certainly be narrow and highly polarised.  It could lead to a victory for the status quo – essentially putting constitutional development in Scotland off the agenda for a generation.  This would be disasterous for all who care about democratic reform and constitutional government in Scotland, no matter where we stand on the issue of full independence.

3.         There is therefore a need to explore intermediate options - positions which offer more than the status quo, whilst stopping short of full independence.  The intermediate position could be an end in itself for some – just as, for many, the current devolution arrangement was an end in itself.  For others, it would be regarded as a step towards full independence; it would provide a chance to show that independence is viable and beneficial, not a “leap in the dark”. 

 

4.         There are three intermediate positions to consider: "Devolution Max", "Federalism" and "Secure Autonomy". 

 

PART TWO – “DEVOLUTION-MAX” 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 local of sovereignty. 

6.         In terms of powers, it is suggested that Scotland ought to have greater power over a wider range of policy areas, from the seemingly trivial like airguns to major policy areas like taxation and nuclear energy.  The Calman Commission made some tentative and very cautious proposals for extending Scottish powers in some areas. 


7.         In terms of sovereignty, a post-Calman “Devolution Plus”, or even a more extensive “Devolution Max”, would offer no improvement.  Sovereignty would remain, not in the people of Scotland where by right it belongs, but in the Crown-in-Parliament in Westminster.  The powers devolved to the Scottish Parliament are not possessed by the people of Scotland; they are on loan, and that loan can be called in at any time by Westminster.  The referendum on devolution might make the abolition of the Scottish Parliament politically difficult, but it offers no legal or constitutional guarantee: the power of a Westminster whipped-majority is supreme.  Only a written Scottish Constitution, endorsed by, and capable of being amended by, the people of Scotland in a referendum, can impose limits on the power of a Scottish Parliament.

 

8.       The essence of sovereignty is security: that the powers we have are ours by virtue of our sovereign right as a free people, and not on loan to us from the Crown-in-Parliament at Westminster.  Without sovereignty, we might enjoy certain rights and power, but we do not possess them.  What has been given might be taken away.  This is not an idle threat: the experience of Northern Ireland shows that the British State is willing to suspend or abolish devolved institutions when the British State deems fit.

 

9.       Therefore enhanced devolution must not be promoted as an intermediate position; it would be a continuation of the status quo, nothing more.  Instead a way must be found to offer secure autonomy by a restoration of sovereignty to the Scottish people (even if certain powers are still to be shared with, or within, a British State).

 

PART THREE – FEDERALISM IS IMPOSSIBLE IN THE UNITED KINGDOM 

 


10.       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.  Catalunya 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 Catalunya’s rights; in both cases their autonomy is secured by a written and rigid Constitution.  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 (something which is probably desirable, but unlikely to come about for as long as the two-party duopoly endures).

 


11.       As German-style or Spanish-style 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.” 

 


12.       The Liberal Democrats are aware of the impossibility of federalism in the UK without fundamental constitutional reform.  Their approach is to secure that reform at the UK level.  In the current political climate, that is highly unlikely to be achieved in the foreseeable future – English legal and constitutional conservatism is too strong to allow the UK’s unwritten conventional system be replaced by a written Constitution.

 

PART FOUR –  SECURE AUTONOMY: A “NON-INCORPORATING” UNION 

 


13.       Secure autonomy and a restoration of Scottish sovereignty, without upsetting British Unionist sentiment, and without requiring a fundamental reform of the system of government south of the border, requires the elaboration of a new settlement which goes beyond our existing models of devolution and federalism.   This new settlement might be described as a “Non-Incorporating Union” (as opposed to the Incorporating Union which resulted from the 1707 treaty). 

 

14.       To develop the idea, let us examine a political structure which might be useful as a model: the “historic compromise”, or Ausgleich, which formed the basis of the Austro-Hungarian Empire from 1867 to 1918.  This compromise, which transformed a multi-national dynastic centralised Empire into a “non-incorporating” union, was agreed between the Hungarian and the Austrian Parliaments.  The Empire was divided into two States, “Austria” and “Hungary”.  Each was fully autonomous over all matters of domestic law, policy and finance.  Each State had its own citizenship, its own Crown, its own Parliament, its own responsible Government, its own Constitution (which, in Austria’s case, was a written Constitution with a Bill of Rights), and its own civil service.   There was a personal union in the monarchy: the Emperor of Austria was King of Hungary, and 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).  Besides these common mnisteries, 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.  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 ministries or 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.

 

15.       Transforming the UK into a similar Non-Incorporating Union might involve the following provisions:

 

(a) The United Kingdom consists of two States: “Scotland” and “the Kingdom of England, Wales and Northern Ireland”.  Each is autonomous over domestic law, policy and finance.

 

(b) Each State has its own citizenship, its own Crown, its own Parliament, its own responsible Government, its own Constitution (which, in Scotland’s case, must be a written Constitution with a Bill of Rights), and its own civil service.

 

(c)  There would be a personal union in the monarchy: the Queen of England, Wales and Northern Ireland would be Queen of Scots.  The Crowns would be distinct (with different constitutional roles), but the person of the monarch would be united.   All Succession Acts would have to pass both Parliaments.

 

(d) There would be an Inter-Ministerial Council consisting of: (i) the Prime Minister of Scotland; (ii) The Prime Minister of England, Wales and Northern Ireland; (iii) the UK Secretaries of Foreign Affairs, Defence and Finance, who shall be appointed upon the joint nomination of the two Prime Ministers; (iv) a Secretary-General, who would be the administrative chief of the IMC.

 

(i)         The UK Secretary of Foreign Affairs would responsible for the joint foreign policy.   He would be in charge of the UK diplomatic and consular services. 

 

(ii)        The UK Secretary of Defence would be responsible for the unified 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 also had its own local defence force (the Territorial Army, and in Scotland, a National Guard).  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 Inter-Ministerial Council, and each State would be responsible for paying its own share.

 

(e) There would be a Common Travel Area, similar in principle to 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.

 

(g) The UK would present a common face to the world in international relations, with the UK Inter-Ministerial Council being responsible for relations with the EU, NATO and the UN (although no Treaty would be binding on Scotland or valid in Scots law unless approved by the Scottish Parliament). 

 

(h) There would be a common 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.

 

(i) There would be co-operation on common projects, such as railways and postal services, but these would be negotiated between the two States on an ad-hoc basis, without common ministries or 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.

  

16.       Secure autonomy within a non-incorporating Union 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.  We would remain, however, for foreign and military purposes, closely allied with England, Wales and Northern Ireland in a “United Kingdom”.


 

TREATY OF POLITICAL, MILITARY AND ECONOMIC UNION,

BETWEEN THE KINGDOM OF ENGLAND, WALES AND NORTHERN IRELAND

AND THE SCOTTISH FREE STATE

 

PART ONE – PURPOSE OF THE TREATY

Establishment of the Union

1. This Treaty establishes a political, military and economic Union between Scotland and England, Wales, and Northern Ireland, to be known as the United Kingdom of Great Britain and Northern Ireland.


Replacement of the Union of 1707

2. This Treaty replaces and supercedes the Treaty of Union of 1707.


Legal Continuity in International Law

3. The legal continuity of the United Kingdom of Great Britain and Northern Ireland shall be maintained in international law, and nothing in this Treaty shall effect the membership of the United Kingdom of Great Britain and Northern Ireland in the European Union, the NorthAtlantic Treaty Organisation, or any other international organization.


PART TWO – AUTONOMY OF STATE ENTITIES


Establishment of State Entities

4. Within the United Kingdom there shall be two State Entities: the Scottish Free State and the Kingdom of England, Wales and Northern Ireland.

 

Territories

5. The Scottish Free State shall consist of all the mainlands and islands subject to the jurisdiction of the Scottish Courts under the Scotland Act, 1998. All other parts of the United Kingdom shall constitute the Kingdom of England, Wales and Northern Ireland. 


Constitution of Scotland

6. Scotland shall adopt as its fundamental law that Constitution which is annexed to this Treaty [SEE DRAFT CONSTITUTION IN OUR BLOG SECTION], which may be amended in accordance with the provisions as to amendment therein stated.


Constitution of England, Wales and Northern Ireland

7. Upon the coming into effect of this Treaty, Scotland shall cease to have representation in the House of Commons and House of Lords; the said House of Commons and House of Lords, together with Her Majesty, shall be the “Parliament of England, Wales and Northern Ireland”, and shall govern England, Wales and Northern Ireland according to its historic Constitution.


Separation of Legislative Functions

8. Upon the coming into effect of this Treaty, Scotland shall not be bound by any future Acts of the Parliament of England, Wales and Northern Ireland; and England, Wales, and Northern Ireland shall not be bound by any future Acts of the Parliament of Scotland.


Citizenship

9. Upon the coming into effect of this Treaty, all citizens of the United Kingdom who are eligible for Scottish citizenship under the terms of the Constitution of Scotland (annexed) shall become citizens of the Scottish Free State. Other citizens shall be citizens of the Kingdom of England, Wales and Northern Ireland.


Public Debt

10. Each State Entity shall assume liability for the service of the Public Debt of the United Kingdom as existing as the date hereof, and towards the payment of pensions as existing at that date, in such proportion as may be fair and equitable, having regard to any just claim on the part of Scotland by way of set-off or counter claim, the amount of such sums being determined in default of agreement by the arbitration of the Inter-Ministerial Council.

Autonomy of State Entities

11. Subject to this Treaty, the Scottish Free State and the Kingdom of England, Wales and Northern Ireland shall each enjoy full legislative autonomy over matters in their respective territories (civil and military, foreign and domestic).

 

PART THREE – POLITICAL UNION

Union of the Crowns

12. The personal union of the Crowns of the Scottish Free State and the Kingdom of England, Wales and Northern Ireland shall be forever maintained. Her Majesty shall be styled “Queen of the United Kingdom of Great Britain and Northern Ireland” when representing the United Kingdom, “Queen of Scots” when representing the Scottish Free State, and “Queen of England, Wales, and Northern Ireland” when representing England, Wales, and Northern Ireland.


Reciprocal Citizenship Rights

13. Citizens of the Scottish Free State shall have the right of free ingress and egress to and from the Kingdom of England, Wales and Northern Ireland, and the right to reside therein, and to enjoy therein all the rights and privileges of citizenship; and the same rights shall extend, in Scotland, to citizens of the Kingdom of England, Wales and Northern Ireland.

 

Public Offices

14. Subject to any restrictions imposed by the Inter-Ministerial Council or by law, citizens of the Scottish Free State, for a period of twenty years from the date of this Treaty, may serve in public offices in the Kingdom of England, Wales and Northern Ireland, on the same terms as the citizens thereof, after taking any required oath; and the citizens of the Kingdom of England, Wales and Northern Ireland shall have the same rights in respect of holding public offices in Scotland. This shall not extend, however, to membership of Parliament, Ministerial offices, or judicial offices.

15. The salaries of any public officer who is removed, or who chooses to resign from office, owing to the effect of this Treaty, shall be provided with compensation and a full pension, at the expense of the Scottish Free State, if they become a citizen of Scotland, or at the expense of Kingdom of England, Wales and Northern Ireland, if they become a citizen of that Kingdom.


Treaties and International Agreements

16. The United Kingdom, acting through the Inter-Ministerial Council, may negotiate and ratify treaties and international agreements binding on the United Kingdom; but no treaty or agreement shall effect the domestic law of either State Entity, nor the rights of its citizens, unless approved by that State Entity in accordance with its own constitutional requirements.

17. Each State Entity shall have the authority to enter into treaties and international agreements concerning its own affairs; but any treaty or international agreement negotiated by either State Entity, or to which either State Entity wishes to become a party, shall be laid before the Inter-Ministerial Council; and no treaty or agreement shall be entered into by either State Entity without first having been approved by the Inter-Ministerial Council, certifying that it is not harmful the United Kingdom’s military or strategic interests.


Representation in International Organisations

18. The United Kingdom shall be responsible for the representation of Scotland and England, Wales and Northern Ireland in the European Union, NATO, the United Nations, and other international organizations in the United Kingdom is a member; but before resolving any matter concerning which the State Entities have separate interests, the delegation of the United Kingdom shall consult with, and have the approval of, the Inter-Ministerial Council.


PART FOUR – MILITARY UNION


Armed Forces

19. Subject to the terms of this Treaty, each State Entity shall maintain its own Armed Forces and be responsible for its own defence and its own contribution to the collective defence of the United Kingdom.


20. The Armed Forces of the United Kingdom existing prior to the coming into effect of this Treaty shall be transferred to the Kingdom of England, Wales and Northern Ireland, except for the Scottish Regiments and units of the Regular Army and Territorial Army, which shallbe transferred to the Scottish Free State.


21. Except with the express consent of the Inter-Ministerial Council, the establishment of the Armed Forces of the Scottish Free State not exceed one-fifth of the establishment of theArmed Forces by England, Wales and Northern Ireland.


22. Citizens of Scotland and of the United Kingdom may serve in the Armed Forces of either country, after taking any required oath, according to the terms of Article 14 of this Treaty.


Declaration of War and Military Actions

23. The Scottish Free State shall not declare war on any other State, nor shall the Scottish Free State engage in any armed conflict or military action, without the prior consent of the Inter-Ministerial Council. The Kingdom of England, Wales and Northern Ireland may engage in armed conflict or military action without the prior consent of the Inter-Ministerial Council,but must not involve Scottish troops unless the consent of the Scottish Parliament is given.


24. In the event of war being declared against the United Kingdom, or in the event of an actual attack against it, by any foreign State, both the Scottish Free State and the Kingdom of England, Wales and Northern Ireland shall act as allies for their mutual defence, security and protection, under a joint Commander-in-Chief to be appointed by the Inter-Ministerial Council.

Naval and Coastal Defence Forces

25. Until an arrangement has been made between the Governments of the Scottish Free State and the Kingdom of England, Wales and Northern Ireland, whereby each State Entity undertakes her own coastal defence, the defence by sea of the whole United Kingdom shall be undertaken by the forces of the Kingdom of England, Wales and Northern Ireland; but this shall not prevent the construction or maintenance by the Government of the Scottish Free State of such vessels as are necessary for fisheries protection and coast defence purposes.


26. The provisions of Article 25 shall be reviewed by the Inter-Ministerial Council at the expiration of five years from the date hereof with a view to the undertaking by Scotland of a share in her own naval defence and naval contribution to the defence of the United Kingdom.


27. The Government of the Scottish Free State shall each afford to the Kingdom of England, Wales and Northern Ireland:

(a) In the time of peace, harbour and dockyard facilities at Faslane and Coulport, and such other facilities as may be mutually agreed upon by the Inter-Ministerial Council.

(b) In time of war, or of strained relations with a foreign power, such harbour, dockyard, and other facilities, as the Inter-Ministerial Council may require for the purposes of such defence as aforesaid.

 

PART FIVE – ECONOMIC UNION


Free Ports and Airports

28. The ports and airports of the Kingdom of England, Wales and Northern Ireland, and of the Scottish Free State, shall be freely open to the ships aircraft of the other State Entity on payment of customary port or landing dues.


29. There shall be a common United Kingdom register of merchant shipping and common rules, to be approved by the Inter-Ministerial Council, concerning the merchant marine.


Common Currency

30. The United Kingdom shall maintain a common currency. Until otherwise decided, this shall be the Pound Sterling. The Inter-Ministerial Council may decide to adopt the Euro as the currency, subject to the consent and approval of the Parliaments of both State Entities.


Free Trade and Free Movement

31. Neither Scotland nor the United Kingdom shall place restrictions on the free trade of the other, nor on the free movement of goods, services, people, or capital, between the two States.

 

PART SIX – INSTITUTIONAL ARRANGEMENTS


Inter-Ministerial Council

32. The government and administration of the United Kingdom, for the purposes set forth in this Treaty, shall be vested in Her Majesty, assisted by an Inter-Ministerial Council.


33. The Inter-Ministerial Council shall consist of: (i) the Prime Minister of the Kingdom of England, Wales and Northern Ireland, or another Minister deputed by him; (ii) the Prime Minister of the Scottish Free State, or another Minister deputed by him; (iii) three United Kingdom Secretaries of State – of Defence, Foreign Affairs, and Finance and Trade; and (vi)the Secretary-General of the Inter-Ministerial Council.


34. The United Kingdom Secretaries of State for Defence, Foreign Affairs, and Finance and Trade, shall be appointed by Her Majesty on the advice of the Prime Minister of the Kingdom of England, Wales and Northern Ireland, given after he has consulted the Prime Minister ofthe Scottish Free State. They shall serve during Her Majesty’s pleasure.


35. The Inter-Ministerial Council shall meet at York, or such other place as they shall from time to time agree upon.


36. Her Majesty shall be kept informed of the meetings of the Inter-Ministerial Council, and all orders, grants, commissions, letters-patent, and decisions, issued by the Inter—Ministerial Council, shall be signed by Her Majesty, counter-signed by the heads of the two delegations and by the responsible UK Secretary of State, and then attested by the Secretary-General.


Secretariat and Secretary-General

37. The Inter-Ministerial Council shall have the authority to establish a Secretariat for the administration of its functions. This shall be headed by a Secretary-General, who shall be appointed for renewable five-year terms by Prime Ministers of both countries acting jointly.


38. The Scottish Free State and the Kingdom of England, Wales and Northern Ireland, by means of an Joint Agreement reached by the Inter-Ministerial Council, and approved by the Parliaments of both State Entities, may share certain powers and functions, in relation to matters of common concern; these may include, but shall not be limited to: television licensing and supervision of the British Broadcasting Corporation, driver and vehicle licensing, the issuing of passports, environmental protection, the promotion of tourism, economic development, and matters relating to trade or commerce between the two State Entities. Such Joint Agreements shall be administered, under the overall direction of theInter-Ministerial Council, by an Executive Agency of one or both of the State governments.


Common Treasury

39. The Inter-Ministerial Council shall maintain a Common Treasury, from which the actions of the Inter-Ministerial Council, its Secretariat, and its Joint Agreements shall be funded. All disbursements from the Common Treasury shall be authorized by a resolution of the Inter-Ministerial Council. A statement of accounts shall be independently audited by the Audit Offices of both State Entities. Each State Entity shall be responsible for making its own contributions to the Common Treasury in the proportions agreed by the Inter-Ministerial Council. A committee consisting of the UK Secretary of State for Finance and Trade, the Finance Ministers of the two State Entities, and the Secretary-General of the Inter-Ministerial Council, shall assist the Inter-Ministerial Council to prepare the United Kingdom’s budget.


Resolution of Disputes

40. In the event of any dispute which cannot peacefully be resolved by the common consent of both State Entities in the Inter-Ministerial Council, either party may appeal to a Judicial Panel, consisting of three Scottish Judges, three Judges of England, Wales and Northern Ireland, and an impartial Chairman appointed by the consent of both parties. The Judicial Panel shall resolve all disputes in accordance with this Treaty; or, where this Treaty is silent or unclear, or inapplicable, in accordance with the prevailing law of nations; and in no case may either State Entity declare war, or commit any hostile or warlike act, against the other.


Approval and Ratification

41. This instrument shall be passed as an Act by the United Kingdom Parliament. That Parliament shall then be abolished. Its English, Welsh and Northern Irish members shall then constitute the Parliament of England, Wales and Northern Ireland, and Her Majesty’s Government in the United Kingdom shall become the Government of the Kingdom of England, Wales and Northern Ireland. The Scottish Parliament shall become an interim Parliament of the Scottish Free State, and the Scottish Government shall become the Government of the Scottish Free State. This Treaty shall then be ratified by both State Entities according to their respective constitutional provisions.


42. Any changes to the terms of this Treaty concerning the rights or liberties of Scotland must be approved by the people of Scotland in a referendum.

 

 

(C) Copyright W. E. Bulmer 2009. All rights reserved. 

Last Updated 20th August 2009.
 
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