20 March 2023

Reflections on the Pathway of Scottish Independence

Anthony Salamone on the SNP leadership campaign, its kaleidoscopic debate and the pathway to statehood for Scotland

Anthony Salamone

It is unsurprising that a leadership contest for the Scottish National Party, as a party of independence, should give significant attention to matters of independence. More interesting, and revealing, is the plethora of positions, opinions and suggestions, from the leader candidates and many others, on the pathway to statehood for Scotland, its potential intervals and its eventual destination. On many of these questions, the Sturgeon administration projected an external uniformity which, evidently, did not reflect the variety of views within the SNP. The internal dialogue on matters of policy catalysed by the leadership campaign should be normal for a major Scottish political party. The elements of awkwardness and surprise associated with this dialogue reflect its relative absence over recent years and the general approach of previous leadership. If the SNP aims to reimagine itself, which would surely be necessary for its future success, the party will need more of such dialogue, not less.

At the same time, given that independence is the proposition of foundational constitutional change, the SNP will eventually need a coherent prospectus for statehood – presumably one which secures widespread backing within the party. Incidentally, as I argued in a speech last November, it would be better for proposals for independence to be written by its principal proponents articulating their own collective vision, not by civil servants whose role is to deliver public policy. While they would lose the imprimatur of government, those proponents would gain the freedom to present their robust case for statehood. Normally, I would define the Scottish independence debate as having two primary components: the procedural discussion on whether a new referendum should happen (or these days, some other event) and the substantive discussion on whether Scotland should become a state. The procedural discussion is referred to, often somewhat pejoratively, as the debate on “process”. Both are essential to the questions of whether or when Scotland ever becomes an independent state.

For me, this emphasis on statehood is intentional and purposeful. The latent governing basis of the independence debate is whether or not Scotland becomes a state. In that light, the question of “Should Scotland be an independent country?” is more sentimental than practical. A better question, which is decisive and instructive, is: “Should Scotland become an independent state?”. Indeed, a future referendum would be more accurate where it was based on the latter question. In turn, the pathway to statehood, after a bona fide referendum that produced a majority for independence, merits close consideration. With their material vagueness and rhetorical ebullience, the three “Building a New Scotland” papers published by the Sturgeon administration provide no real illumination on a viable pathway. Moreover, while the diversity of recent contributions within the SNP on the manner and shape of independence has gained prominence, less remarked is that those contributions have in large measure lacked either a substantive anchor or an informed rationale. While novel for today’s SNP, it is easy to stake simple claims on how long the transition to statehood might take, what that transition would require or how the state could join the European Union. The value of such claims does not rest on their self-described conservative or introspective nature, but on their relationship to Scotland’s current position within the United Kingdom and the realities of international relations.

The statehood timetable

Independence would necessitate profound and lasting transformation of Scotland as a nation, based on the establishment of the Scottish state. It would demand new institutions, different mentalities and wider perspectives. As the pressures of the real world would make evident immediately after the referendum, relabelling what already existed in Scottish politics and society would deliver a mere fraction of the change that would be needed. I would divide the construction of the Scottish state into two principal phases: the Transition Phase, from the date of the referendum to the date of statehood, and the Foundation Phase, the first decade after the date of statehood. The Transition Phase would include negotiations between Scotland and the remainder UK, transfers of powers and resources to Scottish institutions, and preparations for Scotland to become a state. The Foundation Phase would involve continuing the post-independence construction of the Scottish state, joining the European Union, the United Nations and international organisations (based on decisions then), and developing the bilateral relationship between Scotland and the UK. In simplest terms, the Transition Phase would be “before independence” and the Foundation Phase would be “after independence”.

In turn, the length of the Transition Phase is synonymous with how long it would take for Scotland to become an independent state after a referendum endorsing that outcome. Calculating the duration of such a transition is not an exact science. Moreover, the process of making Scotland into a state from the former United Kingdom would be bespoke, so the experiences of other countries becoming independent would not be particularly relevant. While further analysis is required, to me, it would be sensible to envision that Scotland could reasonably take 36 months to become a state, from the date of the referendum to the date of statehood. If a post-referendum Scotland adopted such a target, it would need to marshal its society and its institutions adeptly to meet it. Ultimately, similar to EU accession, the most consequential factor in the eventual length of the Transition Phase would be how well and timeously Scotland, as a collective, prepared itself for statehood. Inherent in the proposition of independence is the pledge, and the imperative, that Scotland would take full responsibility for itself, particularly in terms of the institutions and functions of the state, in ways that no one alive has known. Its combined approach to the Transition Phase would be a significant test of that pledge.

At the same time, while government or society could have targets for the pathway to statehood for Scotland, they would be ill-advised to set artificial deadlines that could result in needless “cliff edges”. For instance, a target to statehood of 3 years should mean that the purposeful intention would be for Scotland to become a state within that time frame, not that Scotland would become a state at the end of that period regardless of its levels of progress or preparedness. We cannot declare with certainty today how long it would assuredly take Scotland to conclude its Transition Phase after a referendum. We would only truly know the answer after the process had been completed. Such uncertainty is inherent to a constitutional debate of this nature. That uncertainty does not mean that independence would be infeasible or that sensible debate on the subject is impossible. Instead, it signifies that it is not reasonable to expect a definitive answer to every question of independence upfront; that the pathway to statehood would be evolutionary and could well be different to how its proponents imagined; and that voters are probably best advised to make a decision on independence based on their preferred future for Scotland, not on the process or timetable to attain it.

The statehood transition

The transition to statehood would conclude with the separation and independence of Scotland from the United Kingdom. The processes underpinning that transition should be measured, cumulative and definitive. While it may be useful to examine major constitutional transitions undertaken by different polities, Scotland’s circumstances would be unique and it would be unhelpful to be governed by the experiences of or comparisons with others. Instead, Scottish and UK institutions should determine how to facilitate Scottish statehood in a manner which recognises Scotland’s starting position within the UK, responds to the aspirations of the Scottish people (such as to join the EU) and prepares for a constructive bilateral relationship between Scotland and the UK as separate states. To me, it would be preferable to structure this transition by means of an agreement between the Scottish and UK Governments. As I outline in Scotland’s EU Blueprint and Scotland’s Global Blueprint, this Transition Agreement would establish the framework for the pathway to statehood for Scotland, including the negotiations. It would ideally be concluded within six months of the independence referendum. Work towards Scottish statehood would then take place on the basis of that Transition Agreement.

With such an approach, the Transition Agreement could enable the progressive transfer of reserved powers to Scottish institutions. Those powers would be transferred in stages, instead of defaulting them all to Scotland on the date of statehood. A progressive method would ensure that Scotland could acclimatise to various powers and responsibilities in an orderly fashion, instead of adapting to them all simultaneously at the beginning of the Foundation Phase. Early stages could include media broadcasting and the civil service. Later stages could include national security and defence. The final stage could be near or at the point of statehood. Such sequencing would support the construction of an organised and effective Scottish state. That construction would demand different political and policy cultures than those which exist in Scotland today. To reflect their new roles as institutions of the state, and to signal a new era in Scottish governance, the Scottish Government should be replaced with the Government of Scotland and the Scottish Parliament with the Parliament of Scotland. The constitution of the state, which should be prepared during the transition, would confirm their roles.

The Transition Agreement would also facilitate the intergovernmental negotiations on Scotland’s separation from the UK, resulting in the establishment of the Scottish state. Those negotiations would be complex and multifaceted. While both parties should consult widely within their respective political systems, the negotiations should be conducted by governments, not by coalitions, bodies or commissions. Given the scale of the task, it would make sense for each side to have a panel of senior negotiators, instead of a single chief negotiator. The substantive agreements to give effect to statehood for Scotland, resulting from the negotiations, could take different forms. To me, a logical approach would consist of two principal treaties. The first treaty, a Treaty of Establishment, would deliver Scotland’s separation and independence from the UK (including, if necessary, the dissolution of the “Union” between Scotland and England) and address associated matters, including legacy considerations on finance, policy and transition. The second treaty, a Treaty of Amity, would provide for institutions and mechanisms to structure the bilateral relationship between Scotland and the UK, such as the creation of a Bilateral Commission to manage certain aspects of practical cooperation. The two treaties might allow supplementary agreements to be concluded under them, to support the evolution of relations between the two states during the Foundation Phase for Scotland and beyond.

The EU accession process

If Scotland chose after the independence referendum to seek to join the EU, it would be able to apply after the date of statehood. The EU consists of states and, prior to that date, Scotland would not be a state. I have analysed and explored the considerations of Scottish EU accession in great detail, as I have chronicled the state of Scotland’s EU debate. Two points in particular would define Scottish EU accession and membership, both of which are largely unappreciated in Scottish political discourse. First, joining the EU would be a constitutional decision of the highest order that would reshape most, if not all, aspects of the Scottish state. The EU’s institutions, laws and policies would become part of the fabric of Scottish society. Those realities are neither negative nor cause to abandon a desire for EU membership. European integration, embodied by the EU, is rooted in worthy ideals for a better and united Europe. Instead, they demonstrate that Scotland, as a collective, would have change itself substantially from its position today to become a productive and successful EU Member State. By the time of a future date of accession, it would be fairly irrelevant that Scotland did not support Brexit many years ago. Scotland’s success or lack thereof within the EU would depend on how well its public and its political system adapted to the choices, challenges and opportunities of European integration.

Second, Scotland would be one, relatively modest, piece of the European puzzle. Its prospects for success within the EU would rest on recognising that position and working from and around it. Scotland would be immovably on the geographical periphery of the EU, which is a disadvantage. Its own choices would determine whether it was in the political core or periphery of the EU. Sentiment in favour of the EU is pleasant, but would not deliver much without a suitable EU membership strategy, professional talent in the political system and civil service, and political investment from the prime minister and the rest of government. In general terms, it would be perfectly possible for Scotland to become a successful and influential EU member, relative to its size and position, over time. However, that outcome would never be permanent or guaranteed. It would demand continuous and effective attention, investment and skill. The European level would be an intrinsic part of Scottish politics and policy, and having good influence at that level would be essential to Scotland shaping its own destiny.

Scotland’s EU accession process would take place during the Foundation Phase, after its formal application to the EU. However, it would be both feasible and advisable to prepare for that accession process during the Transition Phase to the greatest extent possible. The core purpose of that process is to ensure that the candidate is fully prepared to accept the rights and obligations of being an EU Member State. In the end, it would be Scotland’s choice how expeditiously and comprehensively it prepared itself to join the EU. Many of the choices made during the transition to statehood would have a bearing on EU accession. In turn, it would be best to build the state with EU membership in mind. At present, Scotland has a headline commitment to align with EU law where practical. In reality, almost no proactive and substantial alignment has taken place to date. On alignment, as with the accession timetable, the pre-accession relationship, an accession referendum and borders between Scotland and the UK, the imperative for more informed and substantive debate is undeniable. In common with EU accession, the pathway to statehood for Scotland would involve choices – but those choices would be shaped by wider realities. Beyond the kaleidoscope of Scotland’s internal politics, European and global circumstances continue to develop, shaping the context for our future.

Anthony Salamone FRSA is Managing Director of European Merchants

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