Tuesday, November 18, 2014

Should Scotland seek self-governing Crown Dependency status, like the Isle of Man?

A guest post by Gavin Falconer

One of the results of the independence referendum is that it makes all of us, whether we like it or not, gradualists. Nearly all of you reading this will believe in the removal of Trident and in an end to elective wars against far-flung peoples; most of you also in a Scots republic with an elected head of state. None of those things will be happening in the near future.

That's not to say that there are not interesting times ahead. Over the next few months and years there will be a struggle to devolve as much power as possible to Scotland, with the erstwhile Yes campaign on one side of the argument and the Westminster establishment on the other. The Conservatives will be keen to keep as much of Scotland's oil income as they can in order to pass it on to their plutocrat friends in the form of tax cuts. The Labour Party will wish to retain its Scottish MPs as House of Commons lobby fodder, and those MPs will be happy to deploy esoteric arguments about the indispensible role of an increasingly attenuated pan-British welfare system in order to keep their snouts in the trough.

Deprived of its major weapon of an independence referendum, the Yes campaign will have to use alternative tactics: electoral pressure, yes; but also arguing from inside the system. Recently I read a biography of Daniel O'Connell, the great nineteenth-century Irish politician who delivered "Catholic emancipation", the right of Catholics to sit in the Commons, but failed in his attempts to achieve the repeal of the Union with Ireland Act 1800. O'Connell was a wily barrister and always keen to remain on the right side of the law, even if it meant calling off unjustly banned events, disbanding his own organisation or meekly yielding to the indignity of a rigged show trial. He was also famed for his "monster meetings", each attended by upwards of 100,000 people, which while peaceful carried with them an implied threat of mass action. The mass action that the Yes campaign can threaten is a second referendum, but only if it thinks it can win one. The coming period will therefore see a race to convince the public of the justice or injustice of the forthcoming devolution proposals.

Much has been made already of the circumstances in which another referendum might be called, one scenario being that England might vote to leave the EU but Scotland to stay in it. There is no guarantee, however, that the English will vote to leave, since presumably businesspeople and workers whose livelihoods depend on membership will campaign strongly to remain, as will many trades unions, whose attitude to the EU has been transformed since 1975. A second referendum may therefore depend on winning an argument about devolution, and since the "devo super-max" promised by Better Together is likely to be a lukewarm poultice rather than an out-and-out slap in the face, there is no guarantee of that either. Depending on how the likelihood of calling a referendum is phrased in the SNP manifesto, Westminster may refuse to play ball too, meaning that it would have to be held on an advisory basis. One obvious argument that the establishment would use against us is that the same question had been decided upon so recently.

There is an alternative route, however. Devo Max as those who actually study such things understand it is very similar to the position enjoyed by the Isle of Man, which through the Tynwald deals with everything save defence and foreign affairs. Putting to the people the question of whether Scotland should become a self-governing crown dependency is clearly very different from asking whether Scotland should become an independent country, so there could be no question of denying a referendum on democratic grounds. The issue of access to EU markets would be neutralised; the Isle of Man has full access for goods, and anyone with a British grandparent has access as a worker. In fact, we would even have our own passports.  Another advantage is that, because there is already a territory with the status in question, everyone will be clear on what it means, and that it is a practical proposition. As we have seen, "Devo Max" can mean different things to different people, sometimes out of sheer badness, but more often out of ignorance or genuine disagreement. At times it can be like wrestling jelly.

And there is a precedent for a second referendum on a different question. In 1995, Quebec came very close to accepting a question on "sovereignty-association". With luck, Scotland could do the same — and we got more support the first time round than Quebec.

The knock-on effects of crown dependency status would include losing Scots representation in the House of Commons and therefore what marginal — in fact, more or less illusory — influence we have on defence and foreign affairs. In my view, that loss would be more than compensated for by the competences and revenue streams accruing to a crown-dependent Scotland, which of course include the ability to set up an oil fund. According to mysociety.org, only 21 divisions out of the thousands since the Labour victory of 1997 would have gone differently if Scots MPs had been unable to participate, and some of those votes were on purely English issues.  In the 1997-2001 Parliament, there would have been none at all.

The fact that there would no longer be any Scots MPs at Westminster would also mean that there would be no high-profile establishment politicians protecting their vested interest against the common weal by arguing against independence when — as will surely happen — the substantive question is put to the people again. The absurdities of crown-dependency status are many, including the lack of power over foreign affairs, but, like "English votes for English issues", they are ultimately also arguments for full independence.

Another benefit of asking a question on crown-dependency status is that it to some extent circumvents Westminster by making a direct and highly embarrassing appeal to the monarch. Obviously, that is a distasteful tactic for democrats, but the Queen, who, purring aside, is supposed to be neutral, would find it harder to face down the democratic will of the people than the Tories and Labour are at the moment.

And, of course, it might never come to that, since Westminster could simply buckle under the pressure. A manifesto commitment to a referendum on crown-dependency status, effectively Devo Max + 1, may be the best weapon the Yes parties have to achieve Devo Max itself — and, probably quite soon afterwards, the independent republic that the people of Scotland deserve.

25 comments:

  1. I think these proposals for a new referendum are much more promising than another independence vote. Additionally, there would be pretty much overwhelming support amongst most Scots for it.

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  2. The Isle of Man strikes me as a pretty appalling compromise to be honest. It's basically being part of the UK with more devolved powers but absolutely no representation in UK institutions. A bit like making a proposal that the price to get devo max is to also give up all of our MPs in Westminster at the same time. Why would that be in our interest?

    I want a system that gives Scottish representatives a say over the key decisions that affect them. That's the basic minimum required from a democratic perspective. If there are key decisions being made in Westminster (foreign policy is a pretty important area, the regulation of our economic market likewise) then we should absolutely have representation in Westminster. Going to war while Scottish MPs vote against it is one thing; going to war based on the decision of a parliament in which we don't even have any Scottish MPs is quite another.

    Just letting the rest of the UK decide key issues for us while we tag along like a rowing boat tied to their cruise liner is really the exact opposite of what we should be calling for. I appreciate the argument, but there's no way we should be sacrificing our UK representation unless we're completely independent and have all the levers of power in our hands. That's basically the worst of all worlds.

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  3. "It's basically being part of the UK with more devolved powers but absolutely no representation in UK institutions."

    It's not being part of the UK, because the Isle of Man, Jersey and Guernsey are all outside the UK, and always have been. Neither is it really about devolving power, because all three territories are states as of right and enjoy a degree of sovereignty. It's easy to get hung up about the word "dependency", but part of the point of making this comparison is to draw attention to the ludicrousness of the fact that the Isle of Man's constitutional status is considerably more advanced than Scotland's.

    From a theoretical perspective I can appreciate the point you're making about Scotland not being able to vote on foreign affairs and defence, but in concrete terms I'm not sure what good it did us that Scottish MPs were able to vote on the Iraq War.

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    1. "It's not being part of the UK, because the Isle of Man, Jersey and Guernsey are all outside the UK, and always have been."

      Obviously that's true formally, but the point I'm making is that they're part of the UK in all but name yet they don't have any representation. As in the boat analogy above, it's not much consolation to be "technically" in another boat if you're tied to somebody else's decisions and forced to go wherever they go.

      It's not just about foreign policy, the Isle of Man is also completely integrated into the UK's market and relies on the rest of the UK in countless other areas (e.g. all of the economic regulations not covered by the EU's single market). For Scotland that situation would be many times worse because of the relative size of the economy. If you ignored UK regulations while still being tied to their market you'd just be creating trade barriers so we'd therefore be obliged to implement whatever regulation they happened to decide in Westminster, without any input at all.

      Bringing up Iraq, as I alluded to above, is all well and good if the alternative (as with independence) is a situation where Scottish MPs could choose not to be involved. However in this scenario we'd actually have substantially less influence than we have now. We wouldn't even have a basis for influencing other MPs in that discussion, far less a vote on it ourselves. From a basic democratic perspective it would be absurd to voluntarily enter into a situation like that.

      The argument also makes the assumption that because it was true in Iraq it will therefore be true forever. Westminster representation isn't perfect, but it's not worthless either. There are plenty of decisions where Scottish votes do make a difference - and it's quite possible if the SNP get as many seats as the polls are predicting that we'll have even more influence than usual after 2015. I don't think it's a particularly radical notion to think that if there's a parliament entitled to send us to war it might be a good idea to have some direct representation in it.

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  4. Off the top of my head, one problem is that Scotland gets territorial waters but not an EEZ https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/346012/UK_Territorial_Sea_Limits.pdf

    The Isle of Man, previously restricted to 3 nm of territorial waters, exchanged that in 1991 for the 12 nm, but took from then no share of the UK revenue for oil and gas. For fairness sake, Scotland having the same status would have to do the same.

    So it would be goodbye to oil and revenue in our EEZ, undergound cities, seabed exploitation, geothermal energy, mineral recover, whatever, and probably for good even if we did then become Independent in 10 or 20 years, as we would have voluntarily given it away. That's unlike Devo-Max where as still being part of the UK, when we become Independent we get our full 200 nm EEZ (minus of course bordering countries). We would instead be an enclave in the rUK EEZ, at least as far as I can see.

    That's a price I'm not paying. I vote NO.

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  5. Correct indyref2.....its why it made tavish scotts threats about shetland to become one in the event of a yes all the funnier....

    Personally, think it might confuse people

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    1. Indeed. Crown Dependency status is completely a sideways step from Scotland's current path, and a dead-end one at that. As noted by other commenters, it's the sort of status that coould be suitable for small comunities like the Falklands (3,000), Jersey (100,000), Isle of Man (86,000), where the population is relatively low, and the burden of providing the whole trappings of a State would be proportionately high. Even Iceland has a population of 350,000 to be a State, and it has limited defence for instance.

      With a population of 5.31 million, Scotland taking that sideways step would be laughable, the equivalent of Denmark asking to be a Dependency of Germany!

      We have Devolution, even if Smith comes out with something watery we will have more Devolution. A strong body of pro-indy MPs will inevitably achieve more Devolution, and even in the least successful slowets case progress, Scotland will inevitably come to FFA, perhaps Federal status. But the chances are very strong we will be Independent in 20 years at the most, more like 10, and very possibly 5 or less. Why on earth would we want to voluntarily give that up, with the massive momentum we have right now?

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    2. It certainly wouldn't be a sideways step - it would involve leaving the United Kingdom, gaining a measure of sovereignty (we have literally none at the moment) and taking on virtually all powers apart from foreign affairs and defence.

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    3. James - and giving up our EEZ, restricting ourselves permanently, for ever and ever and a day, to a 12 nautical mile territorial limit, unlike most of those of the 193 Independent countries who have a coastline.

      I'd actually call that a backward step! I'd be campaigning for a NO vote.

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    4. I may be missing something here, but I'm struggling to see how we can "give up" an EEZ we do not currently have.

      And why the word "permanently"?

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    5. Currently as part of the UK we do indeed currently have an EEZ, just as much as England, Wales and Northern Ireland, the other component parts of the UK, have. When we become Independent, we clearly take our share of the EEZ with us, under UNCLOS III.

      The Isle of Man does not have an EEZ, in fact there is talk of them trying to get one from the UK Gov - good luck with that. If the Isle of Man became Independent now, it would walk away with the clothes it stands up in, 12 NM Territorial Waters, and no EEZ at all. There is a similar but different to if Shetland and Orkney had gone Indy before Scotland - they would be seen as an enclave in UK / Scottish waters, as is the Isle of Man.

      Unless negotiations with the UK Government to become a Crown Dependency allowed Scotland to keep our rights to the current EEZ which is unlikely as it would cause ructions from the Isle of Man, it's very likely we'd get the same "deal" as the Isle of Man - i.e. a 12 nm TW, but no EEZ.

      If Scotland then later became Independent we'd walk away with a 12nm TW but no EEZ. Perhaps we could pursue getting an EEZ via UNCLOS III but at the very least it would be far more difficult because we would be seen to have voluntarily surrendered our rights to our currently existing share of the EEZ as part of the UK, and become an enclave as a Crown Dependency

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    6. EEZ stands for Exclusive Economic Zone. What exclusive control do we have over the natural resources in "our" EEZ? It's a nonsense.

      As for your suggestion that we would be permanently surrendering our rights as a future independent nation, I'm extremely dubious about that. An "enclave" is part of another state - by definition an entire independent country cannot be an enclave, regardless of whether it is a former dependency.

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    7. Actually, to be fair, there's the alternative definition of enclave, which is a country entirely surrounded by another country (like the Vatican City). But that could never apply to Scotland either.

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    8. LOL. I just realised you're yanking my chain. Nice one!

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  6. ".its why it made tavish scotts threats about shetland to become one in the event of a yes all the funnier...."

    I take it Tavish backs Glasgow, Dundee and other areas that voted Yes going independent (maybe as an embryonic iScotland) on the back of September's vote? I mean what's good for Shetland...

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  7. I think it more correctly should be called Indi-Lite rather than DevoMax.

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  8. UDI if devo max not delivered as per The Vow.

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  9. That might work for the isle of man, but I'd be wary of letting go of our (minor) representation on foreign affairs and defence while there is a substantial body of Scots in the armed forces (something the isle of man doesn't have) and therefore in the line of fire.

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  10. I have been considering the same model or similar in the post-IndyRef period. There are certain advantages and, of course, certain disadvantages. However it seems a reasonable step to at least air the possibilities. In a Crown Dependency model fiscal freedom is always part of a trade-off for something else.

    There are other models that could be looked at. The Kingdom of the Netherlands recently had a constitutional revamp to bring itself up to date and is now principally made up of 4 "countries" РAruba, Cura̤ao, the Netherlands and Sint Maarten Рeach as a constituent part of the overall larger whole. This sounds far too pragmatic for a Westminster parallel to be devised though!

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    1. All of these models are essentially based on tiny communities tying themselves to a larger state. You might see that as gaining autonomy, I see it as giving up any influence we have over UK politics while still being subject to UK political decisions.

      It's a very dangerous argument. I see it made quite a lot from well meaning people who support independence - the idea that because we only have a small number of MPs our representation in Westminster is completely worthless so there's little downside to giving it up. London only has 11% of MPs but I think we'd agree that the idea London doesn't have any influence is absurd.

      Scotland is a large economy with a sizeable population. If we are going to be stuck with the UK then we should absolutely be fighting our cause within the UK's institutions as forcefully as possible. We're in a situation right now where the SNP stands half a chance of even directly influencing government policy as part of a deal with Labour after 2015 - why on earth we'd consider just giving up and becoming some kind of glorified vassal state at this point is beyond me.

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    2. You've clearly made your opinion on the issue but, as I said, it seems a reasonable step to at least air the possibilities.

      I personally do not favour a route down this path for similar reasons to those that you state but in a democracy we must consider all viable alternatives. I have heard a few rather clever individuals privately express the Crown Dependency option as a subject to examine.

      Let's not forget that there could be an altogether more radical solution achievable in the short- to medium-term that nobody has yet voiced or dreamed up so I'm not for closing doors until the options are all closely examined.

      One thing that might create value in going down the Crown Dependency route is that all the political stars in the Scottish firmament would have to aspire to sit in just the one house at last.

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  11. Surely a resurrection of Dominion status is preferable? The Dominions of the Empire were separate signatories to the Treaty of Versailles and had substantial control over foreign affairs. A Dominion of Scotland would not be independent, it would basically be a Crown Dependency like the Isle of Man except if the UK votes to go to war in Iraq then the Scottish government could opt out and not go to war.

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    1. I suggested dusting that idea down on a forum on this blog yesterday. There could be quite a bit of mileage in that in my opinion. The Crown Dependency model is too limiting but the Dominion is a different possibility altogether.

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  12. No. We are a partner in this Union - supposedly. To name ourselves dependency is unthinkable.

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    1. Don't get hung up on names - power is what's important.

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