British politicians are still clinging to antiquated notions of sovereignty, argues Michael Keating. While British governments have in recent decades come to accept the idea of Scottish self-determination, they have not been able to see their way beyond traditional ideas of sovereignty, so that Scotland must be subordinate to Westminster or completely independent. The moderate solution to the problem is rejected while the extreme one is reluctantly accepted. It is not necessary to become an independent state in order to forge a distinct welfare settlement but a new division of competences would be required

Keating, Michael

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08/03/2014Scotland could end up as a kind of post-sovereign polity ina looser union with Englandblogs.lse.ac.uk /europpblog/2014/03/08/scotland-could-end-up-as-a-kind-of-post-sovereign-polity-in-a-looser-union-with-england-2/British politicians are still clinging to antiquated notions of sovereignty, argues Michael Keating. WhileBritish governments have in recent decades come to accept the idea of Scottish self-determination,they have not been able to see their way beyond traditional ideas of sovereignty, so that Scotlandmust be subordinate to Westminster or completely independent. The moderate solution to theproblem is rejected while the extreme one is reluctantly accepted. It is not necessary to become anindependent state in order to forge a distinct welfare settlement but a new division of competenceswould be required.There are several ironies in the current constitutional debate in Scotland. One is that both sides aretalking the language of union. The label ‘unionist’, previously a highly charged term associated with the Conservativeand Unionist Party and loaded with Irish implications, has been embraced by all UK parties, including Labour and(with the occasional qualification) Liberal Democrats. On the nationalist side, Alex Salmond has argued that thereare six unions, of which an independent Scotland would keep five (currency, monarchy, society, Europe anddefence). Another irony is that, while the Edinburgh agreement and the referendum question excludes ‘third way’options such as ‘devolution max’, both sides are seeking to position themselves in that very middle ground in theknowledge that occupying it is the key to victory.Post-SovereigntyThis is not mere political posturing but reflects a profound truth about modern constitutionalism, that the oldsovereign nation-state formula no longer works. We are in an era of ‘post-sovereignty’. This does not mean thatsovereignty has disappeared but that in its traditional monist form it is no longer the only principle of political order.1/4Scottish Parliament, Credit: ajnabee (CC-BY-SA-3.0)More profoundly, sovereignty as a principle is in question. At the supranational level, the European Union hasbecome a legal order in its own right and, within its domain, its laws trump national ones. The only redress to this,recognized in the Lisbon Treaty, is secession – but that option is also open to Scotland within the United Kingdom.Indeed the principle of state sovereignty is also in question domestically. Arguments that the Scottish Parliament isthe creation of Westminster, which could abolish it tomorrow, carry little political credibility. Moreover, the issue ofsovereignty has never been resolved in Scotland, where Blackstone and Dicey’s ideas have never commandedconsensus. The existence of the Scottish Parliament focuses this alternative idea of where sovereignty might lie.Hence there are, and always have been, two interpretations of the union: as the incorporation of Scotland into asovereign and unitary state; and as a bargain that can be revisited from time to time by either party. Similararguments exist in Spain and in Canada, although their legal basis is perhaps less developed.In such states, it is futile to seek a single foundational principle to underlie constitutional order and definesovereignty. The endless Canada/Quebec search for a settlement and the current constitutional deadlock betweenthe majorities in Catalonia and Spain show this. The only option is a constitutional pluralism that does not seek to digdown to the foundations all the time but recognizes differences in constitutional traditions and aspirations. TheNorthern Ireland settlement is a rare example of two states accepting this idea. In recent decades, Britishgovernments have come to accept the idea of Scottish self-determination, in a way they did not a hundred years agoin the case of Ireland. John Major, Margaret Thatcher and now David Cameron have reinterpreted the union in thisway. On the other hand, they have not been able to see their way beyond traditional ideas of sovereignty, so thatScotland must be subordinate to Westminster or completely independent. So the moderate solution to the problem isrejected while the extreme one is reluctantly accepted. Canada and Spain have similarly missed out onopportunities in the Meech Lake Accord and the revised Catalan Statute of Autonomy because they could not accepteven the hint of divided sovereignty.Opinion polls in Scotland have regularly shown a large section of the population (usually a plurality) in favour ofextended devolution within the United Kingdom. Since this is almost everyone else’s second option, it would seemto be the basis for achieving the widest degree of consensus (based on necessary compromise if not shared2/4premises). It is true that there is some confusion over exactly what people do want and how much variation in policythey would accept across the United Kingdom, but there seems little appetite for a separate military effort or formalstatus within the United Nations. On the other hand, there is support for more control over taxation and welfare, thebig items of domestic policy not already devolved. This is not surprising. Both economic and welfare policy arerescaling upwards and downwards in Europe so that the nation-state is not the sole level for either or for the socialcompromises that they embody. This is as true of a potentially independent Scotland as it is for the United Kingdom.Implications for ScotlandScots do not differ radically from citizens elsewhere in the United Kingdom in their broad preferences for welfare.Public policy, however, does not emerge directly from citizen preferences but from the aggregation and compromiseamong interests and preferences within political institutions. This has produced a rather different balance withinScotland, notably on matters of universalism and public provision. In the longer run such differences necessarilyimply distinct fiscal choices, and indicate the need for mechanisms by which Scotland might recapture the benefitsof its own social investments, for example in university education. It also points to changes in the balance of welfareinstruments so as to fit local needs and preferences. Measures like the ‘bedroom tax/spare room subsidy’, designedfor conditions in the south of England, may have little relevance in Scotland (or in the north of England for thatmatter).As a matter of functional efficiency, the present division between passive welfare (reserved) and active welfare(largely devolved) creates mismatches and disincentives, which are beginning to be recognized. The location ofhousing benefit at the same level as responsibility for social housing is one instance. Another matter is the interfaceamong unemployment support and disability support with training, economic development, urban regeneration andsocial work services. There is never an undisputed optimal level for the integration of public services and the idea of‘joined-up government’ is often a naïve illusion, but we can probably do a lot better than at present.It is fruitless to design a reformed system of devolution predicated on the present mode of welfare state. One thingthat we do know is that the welfare state is going to undergo some major changes, if only for pressing financialreasons. This provides an opportunity to rethink how Scottish welfare might fit into an emerging multilevel model andhow resources might most effectively be deployed.It is not necessary to become an independent state in order to forge a distinct welfare settlement but a new divisionof competences would be required. The nearest comparator would be the province of Quebec which, after repeatedefforts to arrive at a constitutional settlement, has engaged in the building of a distinct polity within the Canadianfederation and use its extensive taxation and welfare responsibilities to forge a distinct welfare settlement, notradically different from that elsewhere in Canada but sufficiently distinct to have made a real difference in outcomes.In the numerous meetings I attend in Scotland on the constitutional issue, it is these social and economic issues thatfeature most prominently.It is my belief that Scotland will end up as a kind of post-sovereign polity in a looser union with England and forgingits own social compromises within the constraints of markets and wider unions. Our politicians, however, will take usthere while denying strenuously that this is what they are doing, and still clinging to antiquated notions ofsovereignty.This article was originally published on the PSA’s Insight blogPlease read our comments policy before commenting .Note: This article gives the views of the author, and not the position of EUROPP – European Politics and Policy, norof the London School of Economics.Shortened URL for this post: http://bit.ly/1g6gOOk3/4 _________________________________About the authorMichael Keating – University of Aberdeen / University of EdinburghProfessor of Politics, Universities of Aberdeen and Edinburgh and Director of ESRC Scottish Centreon Constitutional Change.4/4

Scotland could end up as a kind of post-sovereign polity in a looser union with England

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