Response to the unionist arguments from Professor Adam Tomkins

I have read and listened to the views of Professor Adam Tomkins, lecturer in constitutional law at the University of Glasgow, as published in an ongoing series of articles and interviews on the Vote No Borders website.  See:  http://www.votenoborders.co.uk/professor_a_tomkins  As a former practising English lawyer with an amateur but semi-informed understanding of constitutional issues, I’d like to summarise his views and respond to some of them.  

If I am honest, this article is a bit dry and long so if you read any of it, please jump to the “Conclusion” section at the bottom.

  1. Further devolution

Professor Tomkins gives his support to further devolution of powers to the Scottish Parliament, particularly full income-tax raising powers.  He regards the referendum as an opportunity to create a new constitutional settlement for all UK nations, including England.  He doesn’t mention federalism or give any further detail as to what this settlement could look like.

The arguments for further devolution from the main Westminster parties are mainly about further control of domestic policy.  I would like to see Professor Tomkins examine how to reconcile conflicting national perspectives on UK-wide policies (e.g. defence, welfare reform) within the UK in his proposed new, UK-wide constitutional settlement following a possible “No” vote. 

Part of the case for independence rests on the growing rejection by the Scottish majority of UK-wide policies by Westminster governments they didn’t elect.  In previous generations, there was sufficient political diversity in Scotland (i.e. more Tory MPs) for this not to be a major issue. But if we want a modern constitutional system in the UK, we need to consider the emergence of stronger political trends along national lines (within the UK) in recent decades.  At the least, constitutional experts like Professor Tomkins should be examining the issue of strong national policy preferences within the UK and providing a cogent case for or against the need to incorporate them into a new constitutional settlement.  He has not done this so far in his series.

So let’s think outside the box about the possible new constitutional settlement after “no”.  How about David Cameron consulting Alex Salmond (and perhaps also Carwyn Jones) on replacing Trident, the bedroom tax, the response to the Gaza crisis etc in a new so-called “Council of Home Nations”?  I haven’t seen any proposals by the main 3 Westminster parties along these lines, in the context of federalism or further devolution.  It’s a real issue which I haven’t seen Better Together or the UK government discuss.  Why is this?  I think it is because they are desperate not to let go of complete Westminster sovereignty over UK-wide policies. If this means ignoring majority Scottish opinion, then so be it. But if it isn’t that, what is the reason?  At the same time, they could get their constitutional experts thinking of imaginative solutions if they are serious about keeping the UK together.  

Professor Tomkins takes it as read that further devolution will happen following a “no” vote. But if Scottish voters are being asked to reject the only guarantee for political change that the ballot paper gives them, then it is very important for them to examine just how genuine the promise of and desire for further devolution amongst the Westminster parties is. 

The SNP’s response to the further devolution proposals is that they don’t trust the Westminster parties to implement them.  The Westminster parties brought out proposals quite a long way into the referendum campaign when support for independence was on the rise.  They came up with different proposals along party lines when they could have put their heads together on one of the few issues that they share some common ground on.  We all know that manifesto commitments don’t always translate into real policy.   We all know that Westminster politics can descend into party political point-scoring, backbench filibustering, and mutual recriminations when good policy ideas fail to reach the statute book.  There is no reason why proposals for devolution will be immune from these things.   This is a genuine issue and the SNP’s response is not just anti-union propaganda.  I think Professor Tomkins should consider this issue. It’s part of the equation for voters.

  1. Economic risk balanced against the desire for national self-determination

Professor Tomkins states :

The core of the case for the Union has two strands: trade and jobs; and prosperity and security.”

I will come to the core of the case for independence later.  But from what I have seen from Better Together, Professor Tomkins is right that economic risk is the biggest argument that the “no” campaign promotes. He goes on to give detail as to how the existence of political frontiers even within common trading areas is a significant brake on trade, vis-a-vis trade within a politically united state.  He emphasises that Scotland’s trade with the rUK is huge compared to the rest of the world and that consequently many jobs in Scotland depend on it.

I am not qualified to argue with his statistics. I am sure there is something to what he says. I would add however that a fair amount of rUK trade and some rUK jobs will depend on trade with Scotland too.  So we have every reason to seek solutions together so that our economic links are not jeopardised by independence.  Thus the economic risks that independence entails depend somewhat on the political will within the rUK government and rUK businesses to work together amicably with an independent Scotland.   This is a risk factor mostly beyond the control of the Scottish government. 

On the other hand, the Scottish government believes that the current economic position of Scotland is strong enough to justify independence at this time.  (This is seen to be more of a thorny issue for Welsh nationalists.) The Scottish government goes on to say that independence would allow them to implement policies which would ensure a fairer distribution of wealth across Scottish society. They make their own case as to how independence could actually result in a wealthier Scotland, overall. 

I can see that savings on the costs of Trident and keeping oil revenues in Scotland would help.  Beyond this, I am not able to assess the merits of the competing economic predictions from the “Yes” and “No” campaigns.  But the diversity of opinion seems to be legitimate.  As far as I am aware, Professor Tomkins is not an economist however I am sure he is better informed than most to assess the merits and demerits of all of the Scottish government’s economic arguments for independence.  So far, he has focused only on the issues for trade which arise from the creation of a new political border. 

Turning to the case for independence, its core is national self-determination.  Many voters undoubtedly find this an attractive argument.  Even if it is a silly argument, its popularity is such that it cannot be ignored by commentators on the Unionist side. It cannot be quantified and analysed in the same way that the different views on economic risk can.  Nevertheless, I would like to see Professor Tomkins examine the issue of national self-determination on its own merits.  He is an expert in constitutional law and so must have some insight into the issue.  (He may have published his position elsewhere, rather than on the Vote No Borders website but I am not aware of this.) 

If he does give any weight to national self-determination, then Professor Tomkins has to balance the desire for independence against his economic case for continued union.  This is not an obvious or easy thing to do but it is what voters have to do.  If he concludes that political self-determination for Scotland through independence is secondary to the likely economic risks of independence, then what reasons would he give to voters?  Or does he believe that political self-determination for nations is such a non-issue that he has gone on to examine the economic case for Ireland re-joining the UK, a European super-state, or perhaps a one world government? I exaggerate to make a valid point.

I would also like to see an honest examination by unionist academics of the economic and political stories of other countries following secession from larger political entities e.g. Ireland, or following dissolution of supra-national entities e.g. the Nordic federation.  This kind of comparison is an important factor in a vote with such far-reaching implications for the life of a nation, and I believe that there should be academic study of the issue.    

  1. Public institutions

Professor Tomkins deals with the issue of public institutions as part of his first article and more specifically in an interview published under the quote :

The Scottish Government’s independence White Paper is based on a false legal analysis of what a yes vote would mean.”

 Professor Tomkins makes the point that the UK would not be dissolving but that Scotland would become a foreign country in international law.  Scotland would have to apply for membership of international institutions whereas the continuing UK would not.  Professor Tomkins goes on to point out that apportionment of the assets and liabilities of public institutions between Scotland and rUK following independence would be a matter of political negotiations, not law.  The usual principle of apportionment would be according to population, meaning that Scotland would inherit 8.5% of the UK’s current public assets and liabilities.  However, he says that this apportionment would not apply to the UK’s foreign assets like embassies though he does not say why.  He states that an independent Scotland would have no legal grounds on which to say that the pound is as much its own currency as that of the rUK.

I don’t think anything that Professor Tomkins has said here is wrong.  He makes statements of legal and practical reality following independence, but doesn’t go on to make any argument as to how this reality should steer voters towards a “no” vote.  It is possible that the Scottish government would refuse to accept its pro rata share of UK liabilities if the UK government does not grant it a proportionate share of assets e.g. Bank of England reserves.  But as he said, this will be a matter of politics and not law, and surely, on this basis, any political position from either party can be taken into negotiations, no matter how silly or unfair. 

Ultimately, a “Yes” vote will entail negotiations between Scotland and the rUK on the division of assets and liabilities mainly along broad moral, political and practical principles, more than legal ones.   This gives ample scope for posturing and obstructiveness by either side.  All political change has a hassle-factor and brings uncertainty.   Independence negotiations will be no different. But again, these uncertainties have to be balanced against the merits and appeal of national self-determination, over the long-term, and not examined in isolation. 

  1. Defence and security

Professor Tomkins neatly summarises his position by saying :

With independence Scotland would lose all the benefits of scale, capability and global influence which she currently enjoys.”

He believes that Scotland would have difficulty in joining NATO while insisting upon being a non-nuclear power.   He alleges that Scotland would have to face the same threats to its security as it does currently within the UK, but starting off with a fraction of the UK’s intelligence expertise. 

All this is very well but it represents no more than the current political thinking of the 3 main Westminster parties.  The SNP suggests a radical break with Westminster policy on defence and security issues which it can only achieve if Scotland is independent and if it has the backing of the majority of voters in Scotland – which at the moment it does.  At least a third of English voters also reject Trident replacement (though they are represented in Westminster by just one – Green – MP).  So this is a question of democratic debate about defence issues in which views can fluctuate over time and vary across the political spectrum in both England and Scotland. 

Professor Tomkins is opposing independence on the basis of his personal opposition to current SNP defence policy.  The question for Professor Tomkins and those of like mind is whether or not they believe that people in Scotland should be able to conduct a debate on defence issues in their own Parliament, separately from any similar debate in Westminster by the rUK.  This is a different question and it hangs on one’s views on the principle of national self-determination, not personal views on specific policies at any given moment in time.  Independence is for life, not just for Christmas – or the next general election. 

Professor Tomkins has also published a critique of what he calls the nationalists’ “indy-lite” position.  I haven’t deliberately ignored this but I need more time to produce a considered response.

Conclusion

I acknowledge that Professor Tomkins is entitled to put forward his views however he wishes, and inevitably he will need to simplify for the benefit of the non-specialist public.  But his is a heavyweight perspective and he has some responsibility to be comprehensive.  I think he has not tackled thoroughly enough some of the issues which he raises or which are in the general public domain in the independence debate. In summary:

  • He has suggested a new constitutional settlement for all the nations of the UK in the event of a “no” vote but not given any detail as to what it could or should look like.

 

  • In particular, he has not considered how to reconcile the conflicting perspectives on UK-wide policy issues that run along national lines, within the UK nations.

 

  • He has not considered the real danger that the unionist parties’ varied proposals for devolution will not reach the Westminster statute book any time soon, or at all.

 

  • He believes that the strongest case against independence is the economic one but goes on to consider only one aspect of it. Namely, he considers that the erection of a new political frontier will adversely affect trade between Scotland and rUK.  However, he does not assess the merits of the Scottish government’s various policies which they claim will result in independence benefitting the majority of Scots financially.

 

  • He does not analyse the significant individual and collective desire for independence as a normal expression of national self-determination. He does not refer to the role that this desire has as a driving force to help make a success of independence, in spite of the inevitable obstacles.  In failing to do so, he does not help voters to balance this desire against his favoured economic arguments for continued union.

 

  • He does not examine the inevitable compromises and limits to national self-determination that the UK as currently constituted entails for Scotland.

 

  • He rejects the case for independence outright without examining the possibility that independence could work in different circumstances at some stage in the future or now with the adoption of different policies.

 

  • He does not examine the evidence on the economic histories of other countries following secession from larger entities – like Ireland.

 

  • He identifies the current uncertainties surrounding the division of public assets and liabilities that negotiations for independence, following a Yes vote, will entail. However, again he does not balance this against the desire for national self-determination.

 

  • He endorses the current Westminster government’s defence policy and rejects the SNP’s proposed defence policy for an independent Scotland. However, he does not explain why his own current views on defence mean that defence policy should necessarily and always be a matter for Westminster and not Holyrood.

Professor Tomkins’ support for the union boils down to his endorsement of the UK’s current defence and security policies, his prediction that some form of further devolution on domestic and tax policy will follow a “no” vote, his prediction of a reduction in trade with the rUK because of the existence of a new national border and the complications that negotiations over dividing up assets and liabilities will entail. 

As I have outlined above, his views raise a host of unanswered questions as to what continued membership of the UK will mean for Scotland.  As a courtesy, I have emailed this article to Professor Tomkins.  If I get a reply, I’ll publish it here.

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8 thoughts on “Response to the unionist arguments from Professor Adam Tomkins

  1. devolution is of great importance that is the style of legal professors, their don’t answer what their don’t. thanx for the piece. am waiting for a response from the prof.

  2. Tomkins’ view on the international law status of Scotland is not his own but is drawn from the UK government’s legal opinion obtained from Crawford and Boyle in Appendix A in this document.

    https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/79417/Scotland_analysis_Devolution_and_the_implications_of_Scottish_Independan…__1_.pdf

    Crawford and Boyle likewise offer no reasons whatsoever why a weird entity called the ‘rUK’ would be the continuator state and sole inheritor of the former UK’s international standing, embassies and treaties, or why Scotland was ‘extinguished’ in 1707 but England (apparently) wasn’t.

    The Treaty and Acts of Union in 1707 established the British state and are its foundational documents.

    As a fact of history, we may note that no international treaties appear in the name of either the kingdom of Scotland or the kingdom of England after 1707. Any treaties made by the parliament sitting at Westminster, and now incorporating Scottish MPs, are made in the name of The United Kingdom of Great Britain. So it is clear that in international law terms, the kingdom of England was also extinguished in 1707 in favour of a compound state known as the UK, and that if Scotland leaves that state, then the UK is effectively dissolved.

    However, as you note, there is politics, and there is law. International law is highly theoretical, and there is no higher court which makes it or enforces it globally. Thus Tomkins, basing himself on Crawford and Boyle, and they basing themselves solely on rhetoric, can offer no basis for such opinion, for there is none. There is simply what the respective parties and their friends come to agree on. Thus it may be a matter of mutual agreement and convenience that in the event of a Yes vote, and following negotiations, that England assumes the mantle of ‘continuator state’ and calls itself by the legal fiction of ‘rUK’ (though this name is a contradiction in terms, since only the kingdom of England would remain – Wales is a principality, and moreover, was never a signatory to the Treaty or Acts of Union setting up the UK in 1707; and Northern Ireland is a rump of six counties of the province of Ulster, a province of the former kingdom – of Ireland – which has since left the United Kingdom and is no more a kingdom, but a republic. Furthermore, by the Good Friday Agreement, the UK has agreed that the six remaining counties of Ulster are no longer an integral part of the territory of the UK). However, what’s in a name?

    Politics thus trumps law, but in approportioning Scotland’s share of UK assets and liabilities, it is a matter of historical fact that Scotland has helped establish the wealth and standing of the UK, and out of all proportion to her size. Scotland currently contributes 10% of the taxation of the UK, a proportion per capita in excess of her 8% population, and her territory is 1/3rd of the UK. What each party comes to agree to will be the result of political negotiation, and given the degree of integration between Scotland and England, it is, as you note, not in anyone’s interest to make these negotiations deliberately difficult.

    • Thanks for this. It looks like I let Prof Tomkins off the hook on the issue of competing theories as to the successor states to the current UK. I’d like to get this right. Following the Act of Union, didn’t England and Wales (on the one hand) and Scotland (on the other) both vanish as independent states, to be replaced by Great Britain? As I understand it, the Act of Union provided no mechanism for secession. Great Britain was legislated into eternal existence. There is no legal reference point within UK law to determine what happens in the case of Scottish independence. It’s all politics, as informed by general principles of international law. Have I got this right?

  3. The Treaty does not provide a mechanism for secession, you are right, but it does provide for the continuation of separate key Scottish institutions like its legal system, Church, and education system. Thus ensuring that a modicum of separate institutional identity and legal persona continues which could keep alive the prospect of eventual secession at some future time. There is no authority which decides what is the continuator state, it is simply a matter of agreement between the states and their friends. The larger territory and population tends to be regarded as the successor. But there is no ‘rule’. It is a subject of negotiation and politics, not ‘law’ as such.

    Professor David Scheffer has taken issue with Crawford and Boyle’s legal opinion (for that is all it is, opinion) and argues that Scotland’s case is simply unique.
    http://www.gla.ac.uk/media/media_269576_en.pdf

  4. Yet another excellent contribution.

    Like most of the Unionists, Prof Tomkin’s ideas are nearly all based upon the the premise that Indie Scotland would continue to follow the same political path that the UK is on, when the reality of Yes is that most of us want some radical departures.

    On Trident for example: Too rid Scotland and hopefully the rUK of these WMD’s, then a Yes is worth it for me, even if as a nation we end up economically worse off. From my research I doubt we would, but that would be worth it for me.

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