How a Referendum ‘No’ Vote Should Become Devo-max


By Mark McNaught
David Cameron saw the exclusion of a second question from the 2014 referendum as a victory. This is unsurprising given that polls currently reflect a great unease at the prospect of outright independence, but a great hunger among Scots for more powers and autonomy. Cameron may currently perceive it to be to his tactical advantage. However, this ‘victory’ may prove ephemeral. If the Scottish government plays its cards right, they can ensure a greater autonomy regardless of the result of the referendum.

Much of the justified unease among Scots regarding independence can be attributed to a lack of certainty about the constitution of an independent Scotland. What would the relationship be with the UK in the case of independence? What would the drawbacks and advantages be? Very important questions abound: defence, NATO, currency, the BBC, etc.

In answering these questions, both sides of the debate need not only to make their vision of a post-referendum constitution crystal clear, but also legally binding. The yes campaign will be laying out a vision for what an independent Scotland could be over the next two years. In response to a question posed about a written constitution to Mr Salmond after signing the referendum agreement on October 15, he said it could wait until 2016. I would argue that this cannot wait until after the referendum, it has to be a part of it.

If the constitution of the government in an independent Scotland is deferred, Scots will be deprived of the information necessary to make a judicious decision. A ‘yes’ result must legally bind the Scottish government to institute the constitution that is proposed part and parcel with the referendum. Otherwise, it is a jump into the dark, and risks sorely disappointing those who supported independence if the constitutional arrangements are not what they promised.

It is also incumbent upon the UK government and the ‘better together’ campaign to provide legally binding constitutional changes which will take immediate automatic effect in the event of a ‘no’ vote. Cameron “promising” to maybe provide more powers if Scotland votes no is beyond inadequate.

These questions include taxing authority, control over natural resources, and many others. Could Scotland adopt its own written constitution even if it remains in the UK, so as to codify and assure these newly gained powers? Another fundamental question which must be answered is EU adhesion. Cameron has talked about holding a referendum over EU membership after 2015, perhaps with the option of full withdrawal.

If Scotland votes to stay in the UK in 2014, then a UK referendum is held after 2015 over EU membership, and a majority of the UK but a minority of the Scots vote to leave, would Scotland be obliged to leave the EU even if Scots voted to stay in? Could Scots be yanked out of the EU against their will, and become part of rump Europe? These questions must be answered so Scots know what they are voting for, so as to avoid Thatcherism on steroids.

In any case, the referendum presents the opportunity for fundamental constitutional change. The faded doctrine of parliamentary supremacy is a grim fairy tale. A strong majority of Scots do not support the opaque and arbitrary constitutional status quo. If the Scottish government does its job right, these measures would render a ‘no’ vote a de facto devo-max.

The Scottish government has the authority under the referendum agreement to phrase the question, they can include these provisions for an independent Scotland, and demand that the UK provide legally binding clauses in the event of a ‘no’ vote. If they refuse, the credibility and veracity of the ‘better together’ campaign will be undermined. Scotland could choose to remain in the UK knowing exactly its place, powers, and authority, assured well into future generations. Or, Scotland can choose to become independent, knowing exactly its place, powers, and authority well into the future. If Scots will it, it can be a win-win referendum.

If the UK and the Scottish governments are to credibly make their case for remaining in the UK or independence, their promises must be legally binding. Otherwise, any result will be contested and lack legitimacy. The time for foggy promises and nationalist rhetoric is passed. May both sides get down to brass tacks and inform the Scots about their constitutional future whatever the result. Scots deserve constitutional clarity to make the biggest decision in more than 300 years of UK history.

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