Table Of Contenti
THE SCOTTISH INDEPENDENCE
REFERENDUM
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The Scottish Independence
Referendum
Constitutional and Political Implications
Edited by
AILEEN McHARG
Professor of Public Law, University of Strathclyde
TOM MULLEN
Professor of Law, University of Glasgow
ALAN PAGE
Professor of Public Law, University of Dundee
NEIL WALKER
Regius Professor of Public Law and the Law of Nature and Nations,
University of Edinburgh
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Preface
The Scottish independence referendum of 2014 marked a watershed in our legal,
political, economic, and cultural history. For the first time since the 1707 Union
the constitutional standing of Scotland was put seriously in question. Should
Scotland remain part of the United Kingdom or should it pursue the course of
autonomous sovereign statehood?
To understand how that question came to be asked with such urgency today
and not before, why it was answered as it was (with a narrower than expected
‘No’), why matters remain unsettled, and whether and how some final settlement
might eventually emerge from the intense constitutional politics of the immedi-
ate post- referendum period, is a large and daunting task. It is a task that requires
both a broad historical and comparative perspective and a detailed focus on the
here and now. It demands that we examine the big picture, while remaining alert
to the fact that it remains a fast- moving and incomplete picture.
It is, nevertheless, the task—o r, rather, the multi-t ask— that we set ourselves in
the present volume. As constitutional lawyers, the editors were naturally most con-
cerned, and best equipped, to look at the referendum and its aftermath through a
constitutional prism. However, we have tried to take as wide and generous view of
constitutional matters as possible, and so have included contributions from histor-
ians, political scientists, and economists, from international and European lawyers, as
well as from constitutional lawyers and theorists. All of our contributors are acknow-
ledged experts in their field and all have contributed to the referendum debate in
one way or another. The editors themselves, and some of the other contributors, are
founder members of the Scottish Constitutional Futures Forum (SCFF) (<http://
www.scottishconstitutionalfutures.org/> ), which through its blog and busy schedule
of public events was and remains closely involved in the constitutional debate.
We would like to thank our various academic homes, namely the Law Schools of
Dundee, Edinburgh, Glasgow, and Strathclyde, for the support they have given to
the SCFF, and also in the production of the present volume. We also owe a special
debt of gratitude to our publishers, and in particular to our editor Elinor Shields,
for recognizing that this was a volume which, such was its topicality, required to be
produced promptly without compromising OUP’s usual high standards.
In what follows, we do not pretend to pronounce the last or definitive word on
the Scottish independence referendum. We do hope, however, to provide a cooler
and more comprehensive view of a significant occurrence in the international cal-
endar of constitutional events than has been available or possible until now, and
to supply a resource that will prove helpful to those engaged in the continuing
business of domestic constitutional reform.
The editors
December 2015
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Table of Contents
List of Contributors ix
PART I. THE ROAD TO THE REFERENDUM
1. Introduction 3
Tom Mullen
2. The Independence Referendum in Historical
and Political Context 29
Colin Kidd and Malcolm Petrie
PART II. THE REFERENDUM PROCESS
3. The Scottish Independence Referendum: A Model
of Good Practice in Direct Democracy? 53
Stephen Tierney
4. The Referendum Campaign 75
James Mitchell
PART III. THE REFERENDUM DEBATE
5. The Constitutional Case for Independence 101
Aileen McHarg
6. Making the Case for Union: Exactly Why Are
We Better Together? 127
Jim Gallagher
7. Economics and National Autonomy 153
Andrew Scott
8. Scotland, Secession, and the European Union 175
Sionaidh Douglas- Scott
9. International Law, the Independence Debate,
and Political Settlement in the UK 197
Christine Bell
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PART IV. TERRITORIAL POLITICS AND THE UK
CONSTITUTION AFTER THE REFERENDUM
10. A Constitution in Flux: The Dynamics of Constitutional Change
after the Referendum 225
Nicola McEwen
Appendix to Chapter 10: Regional Authority Index Regional
Scores Codebook 242
11. The Territorial Constitution and the Future of Scotland 247
Neil Walker
12. The Referendum Debate, the Democratic Deficit, and
the Governance of Scotland 277
Alan Page
13. Devolutionary Federalism Within a Westminster- derived Context 295
Nicholas Aroney
14. The Technical Jekyll and the Political Hyde: The Constitutional Law
and Politics of Scotland’s Independence ‘Neverendum’ 325
Andrew Tickell
Index 347
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List of Contributors
Nicholas Aroney is Professor of Constitutional Law and Fellow of Emmanuel College at
the University of Queensland. He is a member of the governing council of the Australian
Association of Constitutional Law and recently completed an Australian Research
Council fellowship focussed on the study of comparative federalism.
Christine Bell is Professor of Constitutional Law and Assistant Principal (Global Justice)
at the University of Edinburgh. She was a member of the Advocate General for Scotland’s
Legal Forum, the Scottish Constitutional Futures Forum, and Lawyers for Yes.
Sionaidh Douglas- Scott holds the Anniversary Chair in Law at Queen Mary Faculty of
Law, University of London and is an Honorary Fellow of Lady Margaret Hall, Oxford. In
2015, she was special adviser to the Scottish Parliament’s European and External Affairs
Committee’s inquiry into the implications of EU reform and the EU referendum for
Scotland.
Jim Gallagher is a Member of Nuffield College, Oxford, and Visiting Professor in the
School of Law at Glasgow University. As a civil servant he worked in government at both
UK and Scottish levels. During the referendum he advised the Better Together Campaign.
Colin Kidd is Wardlaw Professor of Modern History at the University of St. Andrews and
a Fellow of All Souls College, Oxford. Although not formally affiliated to any organiza-
tion or party, he contributed articles to the press on the side of the No campaign, and
collaborated with Labour politicians outside the fold of Better Together.
Nicola McEwen is Professor of Territorial Politics at the University of Edinburgh, and
Associate Director of the Centre on Constitutional Change. She was a Senior Scotland
Fellow under the ESRC Future of the UK and Scotland programme.
Aileen McHarg is Professor of Public Law at the University of Strathclyde. She is a found-
ing member of the Scottish Constitutional Futures Forum, a member of the Law Society
of Scotland’s Constitutional Law sub- committee, and was a member of both Academics
for Yes and Lawyers for Yes.
James Mitchell is Professor of Public Policy at the University of Edinburgh. He held
an ESRC Senior Scotland Fellowship under the ESRC Future of the UK and Scotland
programme.
Tom Mullen is Professor of Law at the University of Glasgow. He is a founding member
of the Scottish Constitutional Futures Forum.
Alan Page is Professor of Public Law at the University of Dundee. He is a founding
member of the Scottish Constitutional Futures Forum and was a member of the Advocate
General for Scotland’s Legal Forum.
Malcolm Petrie is Leverhulme Early Career Fellow in the School of History, Classics and
Archaeology at the University of Edinburgh.
Andrew Scott is Professor of European Union Studies at the University of Edinburgh.
Between 2012 and 2014, he was seconded as Adviser to the Scottish Government’s
European and External Relations Secretariat.
