Mark Shephard, University of Strathclyde suggests that Federalism could save the Union, but then again, so might independence… This post originally appeared on the British Politics Group Blog

The Yes campaign have wanted it more, been more organised and visible, and have offered more positives and hopes via the November 2013 White Paper Scotland’s Future while also being able to attack all the things a sizeable proportion of the electorate in Scotland do not like namely, Thatcher, the Tories, class, the bedroom tax, and the 9% recommended pay rise for MPs. This attack strategy has arguably been ‘upped’ in the last few weeks and this is most likely a key cause of getting Labour and undecided voters to see that the Yes campaign promises Labour voters a greater chance for more Labour policies seeing the light of day than a No vote. The Yes campaign have played a very clever hand in which they have addressed the needs of the emotional and the rational by offering ‘independence’ that appeals to those who want independence no matter what, and then for the questioning, it looks like Yes are offering a fair bit of independence but within the Union such as keeping the Pound Sterling, the monarchy, NATO membership and maintaining the NHS, the BBC, and a social union.

There is much comparison between Scotland and Norway, but when Norway voted for independence in 1905, the result was virtually unanimous with over 99.9% of voters voting Yes (which at 85% turnout included an overwhelming majority of the electorate). Whichever side wins in Scotland, it looks like neither will obtain the support of the majority of the electorate, and so, while this should not matter in terms of legal legitimacy which just requires a plurality of the vote (whoever wins) it might matter in terms of perceived legitimacy. When the SNP won the 2011 Scottish Parliament elections, for example, critics were keen to point out that although they had won the majority of seats they had done so with just over 22% of the electorate’s support. The same is true of Westminster elections as the Conservatives’ (main coalition partner) won just over 23% of the electorate’s support in the 2010 General Election. Indeed, lack of legitimacy has been a feature of British (and Scottish) elections for decades, for example, Lord Hailsham warned about the perils of elective dictatorship which ironically was a charge levelled at Labour, but which became more synonymous with the subsequent Conservative governments led by Margaret Thatcher.

In the very first BPG blog, and indeed since I started teaching in Scotland in 1998, I have argued that there are two solutions to the current constitutional questions facing the UK today: independence or federalism (approximately symmetrical regional units with city hubs) and yet neither of the two main parties alternating in power at Westminster has formally offered this. Given the likely close vote in the independence referendum, and now the possible quick rush to federal solutions, it looks like I was right. If the mainstream UK parties are serious about the Union, then devolution and a few more powers are no longer going to pass muster. Federalism could save the Union, but then again, so might independence…it just depends upon the flavour of independence on offer, and probably most importantly, the kind of independence that is actually deliverable in an interdependent world.

To the passionate and to those who have taken sides there is a huge difference between a Yes and No vote in the Scottish independence referendum. To a few observant others however, it looks like if you vote No you get quasi-Yes (devo-max) and if you vote Yes, you get quasi-No (BBC, NHS, Pound Sterling, HM Queen, NATO, shared embassies, social union…). Either way you could argue it is a victory for Yes as they are going to get either devo-max or independence even if ‘independence’ looks a lot like devo-max just with a wee bit more max. And if it is No, then Yes might continue until there is a Yes vote; the ‘Neverendum’. So for Yes it could be argued it is a sort of ‘heads I win, tails you lose’ scenario.

Even if the reality of what is being proposed is much closer today than the campaign rhetoric suggests, there is nothing to say that come the 19th September, the reality actually becomes more like the rhetoric. If we say the No side were to win, what exactly is the Union position on devo-max? If history repeats itself, will they recoil on their promises? If we say the Yes side were to win, how far will they go? In particular, what will a written constitution mean for Scotland? We have been promised that parliamentary sovereignty (no parliament can bind its successor) will be replaced with people’s sovereignty (enshrined in a written constitution containing a lot of policy statements). This sounds great in theory, but in practice will it mean that Supreme Court Justices (or possibly just one middle-of-the-road Justice holding the balance of power in a split court) have de facto sovereignty rather than the people or the people’s representatives? (i.e. representative democracy). At least with parliamentary sovereignty (which is checked by much already, e.g. Human Rights Act) the voters can throw the rascals out at the next election. In short, might parliamentary sovereignty paradoxically offer more power to the people than people’s sovereignty which might offer limited power of consultation for a brief moment in history? Also, once you put policy into a constitution (e.g. right to bear arms) it can be hard to take it out even if the subsequent interpretations of that policy are nothing like what was originally envisaged. Moreover, if the money is no longer there, should we bind future generations to policies that they may no longer be able to afford? And if we write a constitution elastically (e.g. ‘must seek to protect and enhance the quality of the environment’) might this create an expectations gap between what is actually possible versus what is desirable in an ideal world? Will this lead to a further spiralling down in trust of our politicians?

One thing is certain, not everything will be achievable. Politics involves compromise and negotiation. ‘…we promised 10 oranges and delivered a couple of these and changed a few other things along the way to compensate for this…’ is most likely what will happen. And we as citizens need to recognise this. In addition, if we are paying in less than we are spending, how long can promises of even more spending add up without rises in taxation? Who pays, and how much?

What is becoming clearer is that the constitutional landscape will have to change either way of the vote. Politics has never been this interesting or this important to those living in not just Scotland, but also the rest of the UK and further afield (e.g. Spain and Catalonia). These are the days we will remember for the rest of our lives.