For Unionists, the Uncertainty Shoe is on the Other Foot

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By Mark McNaught

The Scottish government has released ‘Scotland’s Future: from a Referendum to Independence and a Written Constitution’, which starts to put the constitutional meat on the bones concerning Scotland’s future in the event of a ‘yes’ vote in 2014.

Alistair Darling has stated that it is not within the remit of the Better Together campaign to lay out what powers might be devolved in the event of a ‘no’ vote. What is their purpose then, other than to issue predictable scare tactics and fanciful statistics forecasting economic doom?

Evidently they are uninterested in making a positive case for continued union. At least we know what we can expect.

More fundamentally, the continuing clarification of Scotland’s constitutional future in the event of a ‘yes’ vote makes the result of a ‘no’ vote increasingly uncertain, both relatively and absolutely. Recent polls of Scots reflect increasing support for independence, and an overwhelming desire to have more powers. The only certain way for Scotland to assure more powers is to vote ‘yes’.

All three of the Unionist parties at the UK level have promised more powers to be devolved if Scots vote ‘no’. The Liberal Democrats have been the most concise, having issued a detailed paper on the issue.

In theory, a ‘no’ vote could lead to the Unionist parties reaching consensus on what powers to devolve, but we do not currently observe much of this from Westminster.

How can Scots know with any certainty that any of these promises will be kept?

In the wake of a ‘no’ vote, what will be the status of the coalition government and the prospects for a Labour victory? What pressures (economic, political, and otherwise) could be brought to bear on the UK government that could render further devolution impossible? Will the Liberal Democrats be in any position to give effect to their proposed devolution of powers, or will they be utterly irrelevant?

If Scotland votes ‘no’, will the UK government take punitive measures against Scotland for having the temerity to hold a referendum? Will they renege on promises to further devolve power? Could they even take back powers preventing the Scottish government from ever again having the power to hold a referendum? Will they slash Scotland’s budget?

The archaic UK unwritten constitution continues to allow Westminster to abolish the Scottish parliament entirely and revert to direct rule, as it has done to the Stormont Parliament in Northern Ireland in the past. Although this is not on the horizon, there is nothing to prevent future UK governments from doing so.

Given the current dysfunction of the UK political system, there is simply no way of knowing what constitutional changes would follow a ‘no’ vote, for better or worse.

The only way to provide any clarity would be for the UK parliament to pass a law before the 2014 referendum stipulating exactly which powers would be devolved, and include a provision allowing Scotland to remain in the EU even if the UK votes to leave and Scots vote to remain. This law would be put into effect automatically and immediately following a ‘no’ vote.

In the absence of this improbable event, all Scots can do is guess what would follow. It is entirely conceivable that upon Scots voting ‘no’, Westminster could strip powers from Scotland, slash the budget even further, then yank Scots out of the EU against their will. The UK government can give no effective assurances to the contrary.

If the ‘yes’ campaign plays its cards right, it can throw the uncertainty argument right back at the Unionists. If the Westminster government cannot provide the most basic guarantees of Scotland’s constitutional future in the event of a ‘no’ vote, then remaining in the UK begins to seem more perilous than independence.

If Scots vote ‘no’, they will likely never again have such an opportunity to control their own destiny, chart their own constitutional future, and assure that future generations can live under a fair, decent, equitable, and democratic political system.

Mark McNaught is a member of the Constitutional Commission and an Associate Professor of US Civilisation at the University of Rennes 2 France. He also teaches US constitutional law at Sciences-Po Paris.