Neil Walker On UK Constitutional Practice and the Future of Scotland

Neil Walker, University of Edinburgh School of Law, is publishing The Territorial Constitution and the Future of Scotland in The Scottish Independence Referendum: Constitutional and Political Implciations (A. McHarg, T. Mullen, A. Page, and N. Walker, eds.; OUP, 2016). Here is the abstract.

This paper considers the ways in which constitutional thought and practice continue to shape the distinctiveness of Scotland as a political community in the post-independence referendum period. The emphasis is not just on the immediate future, nor on some ideal ‘deep future’, but on the foreseeable future. What are the candidate models and plausible pathways by which the future development of the territorial constitution might be pursued? What benefits and drawbacks are associated with different approaches and what are their prospects of success? In particular, what are the limits of accommodation of Scottish self-government within the framework of the UK state, and how, if at all, might such an accommodation be maintained in the face of continuing strong support for independence? The headline notion of the 'territorial constitution' provides a useful angle of approach to these questions. The territorial constitution could signify one of three things. It might refer to the overall constitutional order as conventionally understood. Here we use the ‘territorial’ part as mere shorthand to refer to the (geographically located) state as a constitutional whole. Yet, however familiar, this usage is of limited utility in unpacking Scottish constitutional distinctiveness. In its tendency to reduce constitutional authority to the sovereign state alone, this 'Westphalian' version of the territorial constitution obstructs an adequate appreciation of Scotland's situation and prospects in a more complex regulatory environment. Instead, the article introduces two applications of the idea of a territorial constitution that are less familiar but more promising for our purposes. One usage, which has recently gained ground in mainstream constitutional debate, treats the ‘territorial’ adjective as referring to just one discrete dimension and focus of treatment within a broader constitutional order, albeit an order that may still be understood in terms of the paramount authority of the sovereign state. That dimension involves the vertical distribution of authority within the polity. This is the usage with which we are mainly concerned in the present paper. The other possible application to which we refer departs more radically from our conventional constitutional frame of reference. More than a matter of adjectival stress, instead it treats ‘territorial constitution' as a compound noun -- a distinct and separate species within the constitutional genus, and so as only one of a variety of 'constitutional' orders (including functionally defined orders such as the EU, or the 'security constitution' of the UN) applicable to any particular population. From these broader perspectives, many of the positions on the Scottish constitutional future under review in these turbulent post-referendum times, from the traditional unitary state with limited devolution of powers, through the new brand of asymmetrical Unionism and a broader framework of multilateral federalism to the option of sovereign independence, look like positions along a spectrum rather than categorically distinct choices.

Download the essay from SSRN at the link.