Scottishprudence...

... is a blog on Jurisprudence based in Scotland.
Worth having a look for those of you who are interested in legal theory and various
other scholarly issues.

Scottish elections/ Does the UK need a "genuine" constitution?

The actual results for the Scottish election are as follows: the Scottish Nationalists won 20 seats to take their total to 47, and to become, for the first time ever, the largest party in scotland, ending 50 years of Labour domination; Labour lost 4 seats, moving down to 46; the Tories and Lib Dems lost one each, to move down to 17 and 16 respectively; and, in many ways the biggest losers of the night, "others" (such as Greens and Socialists) lost 14 seats - only two greens and one independent remain. There is already a lengthy wikipedia page on the results.

Not huge losses for Labour, then, but significant enough to see them lose the symbolic status of largest party in Scotland, and, more importantly, to make it likely that SNP leader Alec Salmond will be the next First Minister. There was a significant swing from Labour to SNP; this was bolstered significantly, however, by the fact that most of the supporters of the Scottish Socialist Party seem to have opted to vote for the Nationalists after the fairly spectacular, if grindingly inevitable, implosion of their first-choice party; and it is this that largely accounts for the fact that labour are only 4 MSPs down, despite the Nats gaining 20.

We are, it seems, set for some interesting times in Scotland; and this, at least, is to be welcomed. Indeed, it may be that the devolution arrangements, so clearly designed with Labour governments both sides of the border in mind, will be tested in the next few years by an SNP-led executive in Edinburgh dealing with the Tories in Westminster. The inevitably messy politics of coalition are also playing out in Scotland now, with minority government a real possibility as the Liberal Democrats have stated fairly publicly and clearly that the largest party has the "moral authority" to govern, and that a unionist coalition to stop a nationalist government was thus not on the cards (although it remains to be seen whether they will hold firm to this, or perform a laughable u-turn to match that of their 1999 "pledge" on university tuition fees - the jury is out on this one).

The biggest issue, however, has, as one commentator put it fairly early on last night, is "not the count but rather the counting". Lorenzo is correct to note, in his post immediately below, that the Scottish elections turned out to be a shambolic, shameful embarrassment in many ways: hundreds of postal votes not issued in time through nothing other than ineptitude; numerous counts postponed until the next day through teething problems with the new computer systems; and, most importantly, over one hundred thousand spoilt or rejected ballot papers. To try to put that last figure in perspective: let's assume a possible electorate of something like 4 million voters, and a turnout of around the 50% mark (unfortunately, I haven't been able to find accurate figures for these; any info on this would be welcome). That gives us around 2 million people actually casting their votes, of whom 100,000 - or a massive 5% - have been effectively disenfranchised (excepting, of course, the few that will have spoilt their papers on purpose). The reason for this seems clear enough - the decision to switch to a single transferable vote system in the local elections which took place at the same time, and which, for the first time, required not simply putting a cross beside a candidate's name, but providing a set of numbered preferences. There seems to have been clear confusion over which ballot paper requried which marks, with one election officer suggesting that around 60% of those voting were less than sure of exactly how to do so when entering the polling stations.

This much is clear. What is significantly less clear, however, is the extent to which this in any way reflects on the absence of what Lorenzo refers to as a "genuine" constitution - by which, I suppose he means a clear, written document, laying out systematically the "nature of devolution, the place of the House of Lords, and the status of the Human Rights Act". Firstly, it seems clear that none of the difficulties encountered last night would have been in any way reduced by such a move. We do not have to look to ancient history to find that serious electoral difficulties have arisen in states that have provided models for the whole world as to what a "genuine constitution" looks like; and attempts to introduce the constitutional question in these terms and at this time begins to look a little like disingenuous back-door constitutionalism.

Secondly, and at a more general level, it is far from clear that the heirarchy and pre-commitment involved in constitutional entrenchment of the sort that Lorenzo envisages is always entirely desirable; that very often, the attempt to formalise and systematise everything leaves no space for the common sense that has long been a part of the British, and particularly the Scottish, political, social and philosophical mindset (indeed, this is one of the source of one of the most commonly criticised caricatures of the EU in the UK).

Put simply, there is, in the UK, a genuine sense that we don't need a "genuine" constitution; that, for all of their formal imperfections and lack of clear conceptual divisions, the UK political institutions generally function in a largely satisfactory manner. And, in defence of such a viewpoint - which, I think, is the unspoken - perhaps even unconscious - starting position of many of my compatriots - we have in the UK a history of functional political stability, and liberal democratic credentials, that stand up to comparison with even the most heavily constitutionalised of European or American states.

Considerations such as these are not, of course, conclusive one way or the other; they do, however, call for serious engagment from those for whom the UK's lack of a written, or "genuine", constitution is major ethico-political issue. Perhaps we must, in exploring these issues, revisit the classical debate on the French Revolution between Edmund Burke and Thomas Paine; in any event, I hope it is a call that Lorenzo will take up in more detail here...

Scottish Elections: the chaos wins

Everyone expected the results of the elections, but by now it is like waiting for Godot. What characterised the Scottish elections is the lack of clarity produced by a shambolic voting system.

SNP and Labour parties are fighting to the last vote to secure the majority and lack of clarity in these circumstances is not at all positive.

In any case, my feeling as an external beholder is that the UK should engage in a wide constitutional debate as to the nature of devolution, the place of the house of lords, and the status of the human rights act.

This may be the right time to start developing a genuine constitution for the UK.

Do you want to know more about Scottish Elections?

Here's a good link for you: http://www.holyrood2007.net/Scotlandnew/index.php

This is an interesting new e-democracy project, which deserves some attention!

France and Scotland Face Big Political/Constitutional Changes

France will elect its new President. Segolene or Sarkozy, or maybe even Bayrou will change the scene of French politics, or at least they will refresh it given that Chirac has monopolized it in the last 12 years.

Very soon, Scotland will also vote for its 'local' elections, perhaps the last. If the SNP (scottish nationalist) wins, then those elections will probably be national in the future. For an European living in Scotland this alone may be a good argument against SNP: why would we vote to lose our vote?

Gordon Brown will look at this election with great interest. If the SNP wins and Scotland goes toward independence, then its chances of becoming a strong prime minister collapse: he could not claim anymore to represent british interests. In any event, UK constitutional politics seemed geared toward a time of change!

All this may contribute to a renewal at the European Constitutional level. France may well have a new referendum on a simplified text, probably a simple Treaty. The UK will have to redesign its European politics. If England remains Euro-Skeptic, Scotland is in general quite Euro-friendly.

Scotland v Italy, 17-37: you'd better believe it!

This is a fine European Week-end. One needs to get away from politics and law from time to time...

Scotland & Kosovo

The Guardian argues how a possible supervised independence for Serbia’s Province of Kosovo might play the role of a precedent in other cases such as Scotland for example. The Guardian writes, “The breakaway British region of Scotland could be among the beneficiaries of this week's expected UN recommendation that Kosovo be granted provisional independence from Serbia, leading in time to full sovereign status. If the plan backed by the US, Britain and Germany is formally accepted by the UN Security Council, it will be taken as an important international legal precedent by would-be separatist movements from Georgia to Moldova to Chechnya, and possibly also the Scottish National party.” For more information read here.

More on Scottish Independence

Things have been a little quiet on here of late, Lorenzo's efforts notwithstanding. To get the ball rolling again, I thought I'd share this interesting and insightful comment on, and expansion of, my post below that I received via email from my father Angus MacDonald, a lifelong resident in and observer of the Scottish political scene...

It is interesting to note that recent polls on Scottish independence show considerable support for this idea on both sides of the Scotland - England border. The polls seem also to show that the support for this in England is based substantially on the view that the Scots are 'subsidy junkies', reliant on an unequal distribution of government financial support through a funding mechanism known as the Barnett formula. Joel Barnett was Chief Secretary to the Treasury during the years 1974 to 1979. The first North Sea oil was piped in to Teesside in 1975. In 1974 Professor Gavin McCrone, who was Economic Adviser to the Secretary of State for Scotland, wrote his report entitled 'The Economics of Nationalism Re-examined'. This report concluded that an independent Scotland “could now expect to have massive surpluses on its budget and on its balance of payments and with the proper husbanding of resources this situation could last for a very long time into the future”. It also concluded that “for the first time since the Act of Union was passed, it can now be credibly argued that Scotland's economic advantage lies in its repeal”. This report was suppressed and only recently released under freedom of information regulations.

At that time, when the oil had just begun to flow, the slogan ' It's Scotland's Oil' had much appeal, but there was also, understandably, some doubt about the true value of the oil, how long it would last, and what would happen to a separate Scotland once it was finished. But there was also some unease about the situation that could develop in the best case scenario - that the oil truly was a massive and long-term windfall; these islands are probably too small, comfortably to contain massive differences in wealth between neighbouring states. That the balance of advantage would lie very clearly with the very much smaller state could only heighten the potential for tension. Perhaps this thought partly underpinned Professor McCrone's qualified comment - repeal of the Union could arguably be in Scotland's economic ( as opposed to political?) interest. The suppression of this paper meant that the debate was uninformed by the authoritative assessment of the potential of oil for Scotland that Professor McCrone had made, but in my view it is by no means certain that Scotland would have opted for independence then, even if the views expressed in this report had been widely known. Whether from fear of going it alone, from a sense of solidarity with and affection for England and the other parts of the UK, from an unwillingness to create major inequalities of wealth and the tensions that this could cause, or from a mixture of all these things, Scotland may well not have opted for independence at that time.

This background makes the view that independence would be good for Scotland, because Scots would then realise that, as Simon Jenkins wrote recently in the Guardian in an otherwise reasonable and balanced piece, 'that public money does not grow on English trees', deeply ironic. Deprived of the conclusions of an authoritative analysis, perhaps even motivated to some extent by a degree of altruism, Scotland continued with the Union, a situation sweetened a little by the Barnett Formula. The high political visibility of this formula, coupled with anunquestioned assumption that the wealth provided by North Sea oil could not possibly have been bestowed anywhere other than on Westminster, have been major factors in producing the view in England of Scotland as a land supported by subsidy; this in turn has fuelled the growth of the view in England as well as Scotland that independence for Scotland would be good for both - the very thing that the suppression of the McCrone report was designed to avoid. Had a fully informed debate been allowed to happen at the time, the Union would not now be threatened by the combination of smug condescension on the one hand, and resentment on the other.

Back on the agenda: Scottish Independence

After a few years of turmoil and worse-than-expected electoral performances from the Nationalists, the issue of Scottish independence seems to be firmly back on the agenda, with a recent Scotsman/ICM poll putting support for separation from the UK at some 51% - its highest level since before devolution. Doubtless this is in large part the Scottish manifestation of the UK-wide disillusionment with Labour in general and Blair in particular, with the increasing support for the Tories that is evident in other areas of the United Kingdom not really a serious option in its northernmost nation. This has been further bolstered by the release of previously secret government documents from the 1970s, in which the then Labour Government was advised by a leading economist that oil revenue would give an independent Scotland one of the strongest currencies in Europe and an "embarassingly" large tax surplus. The report was supressed by the Government of the day, fearing the almost inevitable surge in support for the Scottish Nationalist Party, and was only made public a few months ago under freedom of information legislation. Many are likely to feel, not without significant justification, that the decision to do so was as cynical as it was fundamentally undemocratic, particularly as the first devolution referendum, held at the end of the decade, failed to achieve the qualified majority required by legislation.

Leaving aside the democratic significance of the fact that the recent poll suggests that 51% of Scots now favour independence, it is worth having a brief look at the contours of the current debate, with potentially crucial Scottish Parliament elections approaching next year. As Simon jenkins has noted in the Guardian, some fairly big guns from the UK Labour Party, including Blair, Brown and Reid, have been in Scotland recently to make the case against independence. I'm far from convinced, however, that Blair's chosen line of attack will be effective:

What I think it's about is the attempt by the SNP and others to say you're only truly Scottish if you're making the case for independence, but that's rubbish... You can be Scottish and British.

We share a currency, we share armed forces, we share social security systems - you rip Scotland out of the UK and you lose those benefits, and you will end up with an uncertain economic future with less power for people in Scotland to effect the big changes in the world.

the trouble with these is that, while the first just doesn't ring true, the second is likely to be counter-productive in the prevailing Scottish climate. The claim that "real" Scots support independence and reject "Britishness" altogether is an attempt to win support by making the position of the enemy extreme and unpalatable to most; it is not, to my knowledge, one that finds much support in the official rhetoric of the Nationalists, or, indeed, of the other pro-independence parties represented in the Parliament, namely the Socialists and the Greens. As argumentative strategies go, it is fairly transparent, and unlikely to be successful as such.

In terms of the second part of his argument, Blair would do well to remember that Scotland overwhelmingly voted "old" Labour throughout the Thatcher years - it always was, and remains, a considerably more left-wing nation than its southern neighbour, and the directions taken by New Labour in pursuit of the middle-English vote have not always been welcomed in the North, with the Scottish Labour Party being tainted by association if not by actual complicity. Nowhere is this clearer than, for example, the controversy over the war in Iraq; unpopular enough in England, but even more so in Scotland. Long used to the risk of having their voices lost in Westminster, many the Scottish electorate may well decide that having less power internationally is infinitely preferrable to having "big changes" effected in the world, of the type seen most dramatically in Iraq but readily evident elsewhere, in their name but without their consent.

Blair is correct that it is "up to them to make the argument" about the positive benefits of the UK; however, the current strategy seems to be a decidedly risky one. Of course, no decision about whether to remain within or dissolve the Union is without risks, both economic and political; but, as the impressive weight of expert opinion on both sides of the question suggests, these can only really be assessed in hindsight. In any event, it seems unlikely in the extreme that the simple act of secession would itself determine the future prosperity of either Scotland or England, in the manner that some on both sides of the debate seem to suggest; rather, such would depend in very large degree on the choices made subsequently. In terms of the current debate, in the light of forthcoming elections, we can but hope that, this time around, the Scottish people will be entrusted with all of the facts available in order to make a properly informed choice on this issue of central importance.