It is the question ringing out loud across the border as I write this. It has the media in uproar and politicians from the UK parliament and the Scottish parliament threatening each other. You could be forgiven actually, for wondering when Alex Salmond is going to roll his secret tanks up to the border and declare war on the ‘Westminster elite’. I don’t like that name. It infers that Scotland is some hard done to underdog facing up to a leadership which has nothing to do with the Scottish people. However you spin it though, the Scottish people do have a say and do vote as everybody else in the union does.
So I have already managed to tear off on a tangent! This is the problem with the referendum though; too many fierce ideals and convictions (the belief kind rather than prison obviously) crashing into each other. The legal issues cannot be identified clearly. Should they even come into such a monumental moment? Of course they should, otherwise this article would be futile. There is no escaping them after all. The legalities of independence in the very north of our union would need to be addressed and I cannot help but fear and relish the intricacies of such an occurrence! In the ‘for independence’ camp we have the theories of sovereignty and self-determination plaguing voters’ minds while those against it trot out the formalities which can be, quite frankly, terrifying. Would you really want to vote on such an issue when it could mean job losses and possibly the death of your economy for generations to come? Both sides are born of genuine noble intentions but the legal ramifications of those intentions are far more intriguing. Just think for a moment on the enormity of the matter. Of course Scotland already has a lot of control over its own affairs but that by no means suggests the rest is straight forward.
The arguments over currency heavily rely on economic issues so for sake of ease I will completely ignore it! More of interest is the direct constitutional friction which would result from an affirmative answer to that humbling question. First and foremost, the border of the UK would change. There would be an official international line just north of where I live. I doubt Mr Salmond truly wants to start a war with the rest of us but still, passports at the ready people! Then of course we have to look at the legislation and conventions we have in place. My mind is immediately drawn to the Act of Union. This has to be the first thing turning over in any public law academic’s, or student’s, mind right?! The specific words are ‘forever after’. So by voting for independence the UK Parliament is immediately being challenged in its legislative jurisdiction and competence. That in itself is fascinating. But practically I don’t think arguing the Scottish people cannot be independent ‘because we said so’ is a good way for Cameron to go. Perhaps it is important still.
The Act of Union would need to be repealed, along with all other legislation which affects Scotland in any capacity. This is a daunting task and will certainly be achieved by the far simpler method of implied repeal no doubt. In so doing however, the UK parliament will need to pass legislation which identifies its primacy, at least in the legislative process, over the Scottish parliament. An absurdity, I think you will agree, that for the UK legal system to acknowledge Scotland’s sovereignty it must first grant it. Implied repeal v legislative supremacy eat your heart out! Proposals at the moment (though I would strongly suggest you remember they are only proposals put forward by politicians, make of that what you will) suggest an independent Scotland would remain a commonwealth nation and retain Her Majesty as the head of state. But politically the connection would be severed meaning that the Scottish parliament does gain its desired sovereignty. The effect of this on the rest of the UK is astounding.
In a constitutional sense our legal, political and national systems are being torn apart. Those of us who sincerely lament the demise of the union and, as a side note, despise any level of ‘devolution’ are forced to watch, powerless as this occurs. Those who argue everyone has a right to self-determination are right, in principle alone. In practice such an argument becomes based on arbitrary regressions. Constitutionally Great Britain would cease to exist surely? This would see varying levels of clamour for further devolution to other regions of the union, England included. Here is the point of no return. It is painful to accept too, but this point has already been met. Should Scotland make the irreparable and monstrously stupid decision to tear itself away from partners in crime then the plethora of constitutional changes will be innumerable and hotly debated.
It will take years to settle a new union under a new, or at least drastically amended, constitution. Should they choose the correct option and vote no, the scale of disruption will be no less enormous. A unitary system, of which we have remained in at least some form, will be destroyed in a slow and conscious effort to federalise the United Kingdom. Devolved parliaments will ultimately become state legislatures and a uniformity of recognisable systems across the members of the United States of Great Britain will all but end. Rather than constitutional cohesion, we will face nothing but friction and challenge between the legislatures and should the federal parliament face opposition it would have no choice but to bow down in defeat. Such a proposition is horrible to my mind. It smacks of ‘we will keep you at arm’s length’. Such systems suffer greatly in their effectiveness and challenge concepts we have all held in common for many years. Would we see legislation requiring ratification across the members of the union? Would state legislation have the power to trump federal? Would the judiciary be granted, by virtue of the supremacy of the Supreme Court, constitutional veto authority? Every relationship between every institution in the union will irrevocably and extraordinarily shift.
What could in fact be argued is that the decision of the referendum (save for a 90/10% split against independence) is all but irrelevant. The union is already doomed, at least in any current condition. I do in fact dread to think what public law students will be learning in only 3 years from now. Bradley and Ewing are most definitely going to need to acutely change their constitutional text book! As is every academic publisher in this area. That in itself does not make the new situation a bad thing, it just emphasises that the change has already happened. I see no valuable reason for the vote, which takes place in exactly 7 days from now, to go the way of the SNP and their war cries of rhetoric. If it has, by the time that you read it, then I can certainly say I will be upset. I will be excited at the possible constitutional constructions which will arise from it of course, but I do not wish to see it happen and if any of you are wondering I am 50% Scottish. It makes absolutely no difference! Better together or yes Scotland is the choice before voters, Scottish resident voters alone, in a week’s time from now and whichever way they opt certain Scottish nationalists have pushed the United Kingdom to a point of no return in which our constitution shall never be the same again. Perhaps this will spark the codification of constitutions across our union even? If I am to be realistic though, I sincerely doubt that. If nothing, else whatever remains of the United Kingdom shall undoubtedly continue in its fervency for constitutional flexibility. As a last consideration its worth wondering whether such flexibility has, right now, been its downfall.