Scottish Independence and the Constitution

On September 18, Scotland will vote on whether or not to secede from the United Kingdom. If the Scottish people actually vote to leave (which seems unlikely, if polls are any indication), the United Kingdom will find itself in a constitutional predicament of epic proportions. The House of Lords Constitution Committee has examined the subject in some detail and  produced an interesting report on the constitutional implications of a ‘yes’ vote.

Much of the press coverage of the report has focused on the committee’s assertion that the United Kingdom is not bound by the Scottish Government’s proposed timetable for independence (they want Scotland to be fully independent by March 24, 2016), but the committee also looked at how independence will affect Parliament itself.

By Scottish_Flag.jpg: flickrtickr2009 derivative work: Endrick Shellycoat (Scottish_Flag.jpg) [CC-BY-2.0 (http://creativecommons.org/licenses/by/2.0)%5D, via Wikimedia Commons

Right now, 59 Scottish MPs sit in the House of Commons. A ‘yes’ vote wouldn’t automatically affect their status (Scotland will continue to be represented at Westminster until Parliament provides otherwise), but it would put them in an awkward position. The idea that MPs from a soon-to-be-independent country could have a say on matters affecting the rest of the United Kingdom (including the terms of Scotland’s independence) is obviously problematic. The most straightforward option would probably be for Scottish MPs to recuse themselves from the discussion of non-Scottish issues, though it might be wise to make that policy official through a resolution of the Commons.

The uncertainty over the status of Scotland’s MPs could also have an impact on who gets the keys to Number 10 Downing Street. If Labour is returned to power with a narrow majority after the next General Election, the departure of Scottish MPs could eliminate that majority. Unless a new government could be found within 14 days, there would have to be an early General Election, which would sort of make a mockery of the Fixed-Term Parliaments Act 2011! Of course, a small Labour majority could be imperiled before Scottish MPs leave: if they can’t vote on non-Scottish matters, the government might find it difficult to win key votes.

On the other hand, the House of Lords would be largely unaffected by Scottish independence. The vast majority of peers are peers of the United Kingdom rather than peers of Scotland, so there wouldn’t be any reason for them to leave after independence. However, the Constitutional Reform and Governance Act 2010 requires peers to be to be resident and domiciled in the United Kingdom in order to sit in the Lords. The Constitution Committee pointed out that peers resident in Scotland would have to move to (and pay taxes in) the United Kingdom in order to keep their seats.

One issue that the committee did not address was the monarchy, despite the fact that several witnesses discussed it in their testimony. Although many of its members have republican leanings, the Scottish National Party is officially committed to keeping the Queen as head of state of an independent Scotland. This would place Scotland on the same footing as Canada or Australia vis-a-vis the United Kingdom. One question that remains unanswered is whether or not the Queen would need to appoint a vicegerent to act on her behalf in Scotland. In other Commonwealth Realms, the vast majority of the Sovereign’s functions have been delegated to Governors-General, but that is largely a consequence of geography. Given the proximity of Scotland to the rest of the United Kingdom, the Queen could probably continue to discharge her duties in person.

The British government will be in uncharted territory if Scotland decides to leave the United Kingdom. While the Irish Free State seceded in the 1920s, it did so under vastly different circumstances since there had been an armed rebellion against British rule. The dissolution of the British Empire doesn’t really provide much in the way of precedent either since Scotland isn’t a colony. The road to Scottish independence may well be a bumpy one…

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