Giving with one hand: Scottish devolution within a unitary state

Transcription

1 SYMPOSIUM Giving with one hand: Scottish devolution within a unitary state Stephen Tierney * This essay employs Scottish devolution as a prism through which to examine two public policies used to manage national diversity: accommodation and integration. While an accommodationist discourse can certainly capture many of the substantive constitutional outcomes sought by substate national societies, it may not provide the symbolic recognition that will articulate fully a plurinational concept of the state. Following from this, the essay focuses on the tension at the heart of the Scotland Act In terms of its autonomy provisions and the recognition these imply, the act may be seen as a genuine attempt to redefine the United Kingdom s constitution in a plurinational direction. However, in other ways, the structure of the settlement embodies strong integrative tendencies that sustain the categorical distinction between host state national society, on the one hand, and substate national societies, on the other. Finally, it is observed that the expanding powers of the European Union may restrict efforts to reorient the state in a plurinational direction, since many devolved powers of substate nations and regions are subject to the normative supremacy of parallel levels of EU competence. Introduction [I]t is hard to see any form of successful accommodation of multiple nations within a single state that does not include federalism. 1 This article has two points of focus. First, it addresses the devolution settlement for Scotland as a case study in the constitutional implementation of a plurinational model of the state. Second, and more broadly, it reflects upon the ever more sophisticated conceptual challenges to particular constitutional orders, and to constitutionalism in general, that are being mounted by substate national societies. Each subject will be examined in the context of the two prevailing public policies used by states to manage national and other forms of * Reader in law, University of Edinburgh School of Law. I am grateful to Sujit Choudhry and Ailsa Henderson for helpful comments on this paper. s.tierney@ed.ac.uk 1 Richard Simeon & Daniel-Patrick Conway, Federalism and the Management of Conflict in Multinational Societies, in M ULTINATIONAL DEMOCRACIES 338, 364 (Alain-G. Gagnon & James Tully eds., Cambridge Univ. Press 2001). The Author Oxford University Press and New York University School of Law. All rights reserved. For Permissions, please journals.permissions@oxfordjournals.org I CON, Volume 5, Number 4, 2007, pp doi: /icon/mom024 Advance Access publication September 28,

2 Tierney Giving with one hand 731 diversity. These policies accommodation and integration are distinguished by John McGarry and others in the following way. On the one hand, integrationists aim to ensure the equality of individuals, accepting diversity in the private realm but opposing public recognition of substate group identities; on the other, accommodationists promote dual and multiple public identities, implying equality with full respect for differences as the best means of managing deep diversity. 2 Next, in section 1, the idea of accommodation is specifically scrutinized. It is argued that, while an accommodationist discourse can capture many, if not all, of the constitutional outcomes sought by substate national societies, it seems inadequate for the articulation of a second demand, namely, a conceptual reworking of the very idea of the plurinational state. When accommodation is formulated in terms of states managing minorities, 3 it implies a categorical distinction between state national societies and substate national societies, and it is this very distinction that is challenged by the more radical manifestations of contemporary substate nationalism. Following from this theoretical analysis, section 2 of the essay will focus on the tension at the heart of the devolution arrangements for Scotland. In terms of the wide areas of devolved competence it contains and the tenor of recognition that this level of autonomy implies, the Scotland Act 4 can be viewed as a genuine attempt to redefine the United Kingdom s constitution in a plurinational direction. In other ways, however, the settlement embodies strong centralizing or integrative tendencies that sustain the categorical distinction between the host state or dominant national society, on the one hand, and the substate national societies, on the other. These assimilationist integrative tendencies (a distinction will be made in section 2 between assimilationist integration and partnership integration) manifest themselves not as self-conscious attempts to undermine cultural differences but, rather, as a network of semiformal and informal patterns of central control in relations with the devolved institutions. This reflects an enduring unitary-state mentality at work, here, apparent in mechanisms that tend to induce conformity by the devolved institutions with central policy initiatives. This inconsistency between the ostensibly plurinational realignment of the state, represented by the autonomy and recognition elements of the settlement, on the one hand, and the assimilationist integrative tendencies, stemming from the informal centralizing of intergovernmental relations, on the other, is a consequence, at least in part, of political design by the U.K. government and Parliament when framing the 2 John McGarry, Brendan O Leary & Richard Simeon, The Integration-Accommodation Debate: An Outline, CONSTITUTIONAL DESIGN FOR DIVIDED SOCIETIES: INTEGRATION OR ACCOMMODATION? (Sujit Choudhry ed., Oxford Univ. Press, forthcoming 2008). 3 Id. 4 Scotland Act, 1998, c. 46 [hereinafter Scotland Act].

3 732 I CON October 2007 Vol. 5: 730 Scotland Bill, 5 and in part the result of the constitutional context, whereby devolution was created in an ad hoc manner rather than as one aspect of a more coherent and systematic process of constitutional reform. With this ambivalence at its core, the new system was made to fit in many ways incongruously within an otherwise highly centralized constitutional structure. Of those elements that tend toward integration in an assimilationist sense, section 2 will spotlight mainly the system of informal and quasi-formal intergovernmental relations at the executive level. Observed in passing will be the related lack of structure in interparliamentary relations that results in various tensions, such as overlapping representation (the West Lothian question) and concerns regarding the presence of ministers representing Scottish constituencies who take seats in the central cabinet. Finally, section 2 will also identify other tensions, for example, those possibly latent in the newly planned Supreme Court for the United Kingdom, which some feel has the potential to assimilate the distinctive characteristics of the Scottish legal system into the larger English system. Throughout the essay one other circumstance will be kept in mind that also helps establish the context for any process toward enhanced autonomy, representation, and recognition for substate national societies within the U.K. namely, the procrustean bed created by an integrating Europe and its regulatory structures. The expanding powers of the European Union, of course, limit the political capacity and legal competence of member states to act autonomously. However, these EU powers also have the knock-on effect of restricting efforts to reorient the state in a plurinational way, given that many of the devolved powers of substate nations and regions inevitably fall within and are subject to the normative supremacy of parallel levels of EU competence. 1. Plurinational constitutionalism: The conceptual challenge [E]thnocultural minorities do not go quietly any more; assimilationist nationbuilding projects tend not merely to be ineffective they also usually backfire by reinforcing and nationalizing minority cultural identities. 6 The challenge presented by substate nationalism is both unique and profound: unique, in that it calls into question implicit assumptions concerning the demotic composition of the modern state; profound, in terms of the implications it conveys not only for the structure of existing constitutional orders but also for the very conceptual underpinnings of classical accounts 5 Scotland Bill, , Bill [104]; THE SCOTLAND BILL: A GUIDE (Scot. Office 1997). 6 W AYNE NORMAN, Preface, N EGOTIATING NATIONALISM: NATION-BUILDING, FEDERALISM, AND SECESSION IN THE MULTINATIONAL STATE xiii (Oxford Univ. Press 2006).

4 Tierney Giving with one hand 733 of constitutionalism. In light of this, political philosophers in the last decade have led the way in advance of constitutional theorists in demonstrating that the traditional schema used to frame debates regarding multiculturalism must be modified when addressing what is distinctive about substate nationalist constitutional claims. In modifying the interpretive schema, as it bears upon nationalist claims, we must consider in a new light the historiographical resources, normative justifications, and substantive aspirations that are specific to these claims in order to see clearly how the multinationalism debate differs in character from traditional multicultural debates. 7 The very structure of the traditional debate concerning the democratic state was based on what we might call a unitary demos thesis in other words, an assumption that the state embodies a single nation that provides an exclusive societal context for all of its citizens. Within the state, there may be considerable cultural and ethnic diversity, but these minorities comprise a second-order group, categorically different from that of the national society of the state. One of the advances made by contemporary political philosophers is to have demonstrated how this thesis is rendered deeply problematic by the existence of more than one societal demos within the same polity. 8 It is only very recently that constitutional theorists have begun to work through in detail some of the implications of these theoretical developments for constitutional praxis. 9 From this early work it is apparent that a number of the traditional conceptual devices used by constitutional theorists and practitioners need to be reformulated in light of the radical challenges plurinationalism poses to the very essence of a state s constitutional identity. Let us begin with the distinction between what may be called, respectively, the plurinational challenge and the multicultural challenge. 10 Treatment of the issue will necessarily be brief. It is certainly the case that these two challenges have features in common, but our purpose, here, is simply to identify one important difference. Debates over multiculturalism in a liberal democracy tend to take place in a context of broad acceptance, even among the cultural minorities themselves, of the unitary demos thesis. People are mostly 7 See, e.g., W ILL KYMLICKA, MULTICULTURAL CITIZENSHIP (Oxford Univ. Press 1995); MARGARET MOORE, THE ETHICS OF NATIONALISM (Oxford Univ. Press 2001); see generally M ULTINATIONAL DEMOCRACIES (Alain-G. Gagnon & James Tully eds., Cambridge Univ. Press 2001). 8 Ferran Requejo, Democratic Legitimacy and National Pluralism, in DEMOCRACY AND NATIONAL PLURAL- ISM 157 (Ferran Requejo ed., Routledge 2001); Margaret Moore, Normative Justifications for Liberal Nationalism: Justice, Democracy and National Identity, 7 NATIONS & NATIONALISM 1 (2001). 9 M ICHAEL KEATING, PLURINATIONAL DEMOCRACY: STATELESS NATIONS IN A POST-SOVEREIGNTY ERA (Oxford Univ. Press 2001); STEPHEN TIERNEY, CONSTITUTIONAL LAW AND NATIONAL PLURALISM (Oxford Univ. Press 2004). 10 Sujit Choudhry, National Minorities and Ethnic Immigrants: Liberalism s Political Sociology, 10 J. POL. PHIL. 54 (2002).

5 734 I CON October 2007 Vol. 5: 730 agreed that there is one national society within the state that establishes a dominant set of cultural practices. The issue at stake, therefore, is how minority groups which, though culturally diverse are, nonetheless, part of the demotic whole should have their differences accommodated (that is to say, protected, fostered, and/or promoted) by the state in accordance with principles of justice, while bearing in mind the state s need to cultivate societal cohesion for the national demos as a whole. In other words, the essential issue is the tension of reconciling the politics of difference with the politics of nation building and national consolidation. Deep disputes attend the search for such a balance; nevertheless, there is at least consensus on the existence of a single national society within which these contestations take place. 11 Substate nationalist arguments for constitutional justice, however, are not about accommodating cultural differences, on the one hand, or facilitating nation building, on the other. Instead they challenge the very conception of the state as a unitary national site within which only one process of nation building can take place. Accommodation, when framed as states managing minorities, cannot capture such a constitutional challenge, given the categorical distinction the idea of accommodation implies between the entity doing the accommodating or managing (the state) and the entity being accommodated or managed (the minority). Precisely because it embodies the national society of the state, so the dominant society regards itself as entitled by the implicit assumption of standard liberal democratic accounts to make decisions about how far to go in accommodating a cultural minority. It must do this while retaining the right, and indeed the duty, to maintain its own nationbuilding agenda in the name of societal stability. 12 But it is just this categorical distinction and this assumption of privilege that is questioned by substate nationalists. They contest the idea that the state can be neutral with regard to nationality. 13 Instead, the state is shown to be the institutional vehicle for promoting the nation-building agenda of a dominant national society. The radical claims of substate nationalists are aimed at a conceptual reorientation of the nature of the state. Only by dismissing the possibility of neutrality within existing arrangements can a new conception of the plurinational 11 Deep diversity, of course, characterizes America as a multicultural society, but the commitment to the existence of one American nation remains strong. Richard Posner has argued that this reality was put into sharp focus as Americans, otherwise divided on internal issues of culture, united around their common national identity in response to the attacks of September 11, Richard A. Posner, Strong Fibre after All, ATLANTIC MONTHLY, Jan. 2002, at 22, John McGarry, Federal Political Systems and the Accommodation of National Minorities, in THE HAND- BOOK OF FEDERAL COUNTRIES 416 (Ann L. Griffiths ed., McGill-Queen s Univ. Press 2002). 13 Ferran Requejo, Political Liberalism in Multinational States: The Legitimacy of Plural and Asymmetrical Federalism in M ULTINATIONAL DEMOCRACIES 110, (Alain-G. Gagnon & James Tully eds., Cambridge Univ. Press 2001): Despite the usual liberal defence of a laissez faire approach to cultural matters, experience indicates that the state has not been, nor can it be, culturally neutral.

6 Tierney Giving with one hand 735 state be built, based on mutual recognition that the different nations of the state form a partnership of equals. The powerful normative claims to be found in the narratives of substate national societies are rooted, therefore, not in the politics of difference but, rather, in what we might call the politics of similarity. Hence the processes of nation building and consolidation that remain ongoing within substate nations parallel to the equivalent processes at the state level. It will be useful to explore, therefore, how notions of union and equality characterize the self-perception of substate national societies and their conception of relations with other national societies in the host state in particular the dominant national society of the state. It is in light of these ideas of union and equality that substate national societies call for partnership with the dominant society rather than accommodation by it. 14 In presenting a narrative of alternative or multiple nation-building projects within a single state, national societies usually offer alternative historiographies as well; typically, these might concern the origin and nature of the state and its constitution and differ radically from the dominant historical narrative embodied in the orthodox constitutionalism of the state. 15 This historicallybased critique demands a radical reconfiguration of how the state and its vision of sovereignty is imagined. 16 Only through a review of the constitutional historiographies of substate nationalist movements itself an underdeveloped area of study 17 can we appreciate how different are the constitutional claims made by these alternate histories when compared with the demands, framed within the discourse of accommodation, that seek a top-down grant of legal rights to facilitate cultural diversity. Indeed, the nationalist constitutional agenda is not driven primarily (or even, in some cases, significantly) by the notion of cultural differences among national societies. The key feature of any claim for the constitutional recognition of national pluralism is the demand to have extensive control of the decision-making processes within the substate national territory and significant influence within the central organs of the state. This degree of control and influence should be understood in terms of autonomy and representation respectively. It seeks the embodiment of these features not only in the constitution s structure but also in the extent to which 14 The agenda of sovereignty and partnership advanced by Quebec nationalists at the time of the 1995 referendum on sovereignty is one example. See T IERNEY, supra note 9, at E UGÉNIE BROUILLET, LA NÉGATION DE LA NATION: L IDENTITÉ CULTURELLE QUÉBÉCOISE ET LE FÉDÉRALISME CANADIEN [NEGATION OF THE NATION: QUÉBÉCOIS CULTURAL IDENTITY AND CANADIAN FEDERALISM] (Les Éditions du Septentrion 2005). 16 Stephen Tierney, We the Peoples: Balancing Constituent Power and Constitutionalism in Plurinational States, in T HE PARADOX OF CONSTITUTIONALISM: CONSTITUENT POWER AND CONSTITUTIONAL FORM 229 (Martin Loughlin & Neil Walker eds., Oxford Univ. Press 2007). 17 For a rare example, see DAVID M. THOMAS, WHISTLING PAST THE GRAVEYARD: CONSTITUTIONAL ABEYANCES, QUEBEC AND THE FUTURE OF CANADA (Oxford Univ. Press 1997).

7 736 I CON October 2007 Vol. 5: 730 the constitution recognizes, symbolically, the state s dual or multiple national composition. Indeed, this multiplicity, or plurinationality, must be seen as a feature of the constitution s very identity. 18 The narratives of union and equality show that arguments for plurinational recognition are arguments for recognition of the similar nature of all national societies within the state and of their equal importance as sites of identity and loyalty for their members. We will now turn, briefly, to each of these narratives union and equality as they arise in substate nationalist discourse, with an eye to the evolution of Anglo-Scottish relations within the U.K. The notion that the substate territory entered the state either as a fully formed or, at least, as an incipient national society is often central to the constitutional claims presented by substate nationalists. Such is true, for example, of debates in Canada, Spain, and the U.K., where the vision of a state shaped by the union of more than one nation remains strong, albeit in different ways, in the national stories of Quebec, Canada s numerous Aboriginal peoples, the Basque Country, Catalonia, and Scotland. 19 This version of the state s evolution has been reinforced in various ways; first, by memories of the cultural and institutional distinctiveness that these territories enjoyed at the time of their inclusion within the state. A second factor contributing to this vision of the state s origin lies in the affirmation of the central role played by these territories in the process of state formation; the centrality of these substate national societies to this process, as they understand it, is supplemented, in certain cases, by the conviction that the state s nature as a union of nations was either implicitly or explicitly recognized at these important constitutional moments. And, as a final factor, the state s ongoing evolution is also conditioned by the substate nation s retention of societal distinctiveness in the aftermath of union. Together, these factors have created a tendency among substate national societies to envision the larger polities to which they belong as, in some sense, union states. 20 This is a very strong narrative in Scotland, where the idea of union, as articulated in the Acts of Union 1707, is central to constitutional understandings of the historical origins of the state. 21 By this account, the 1707 acts were a kind of protoconstitution in written form, guaranteeing the survival of the distinctive institutions of Scottish public life and, in particular, 18 M ICHAEL KEATING, NATIONS AGAINST THE STATE: THE NEW POLITICS OF NATIONALISM IN QUEBEC, CATALONIA AND SCOTLAND (Palgrave Macmillan 2001). 19 K EATING, supra note Stein Rokkan & Derek Urwin, Introduction: Centres and Peripheries in Western Europe, in T HE POLI- TICS OF TERRITORIAL IDENTITY: STUDIES IN EUROPEAN REGIONALISM 11 (Stein Rokkan & Derek Urwin eds., Sage 1982); James Mitchell, Evolution and Devolution: Citizenship, Institutions, and Public Policy, 36 P UBLIUS: J. FEDERALISM, Winter 2006, at Union with Scotland Act, 1706, 6 Ann., c. 11 (Eng.); Union with England Act, 1707, c. 7 (A.S.P.).

8 Tierney Giving with one hand 737 of a separate legal system. This view of matters has led to an alternative understanding of the nature of the U.K. as a Rechtstaat, an outlook that competes with the dominant constitutional story, even on the question of fundamental law. 22 Some important constitutional actors in Scotland continue to accord a higher constitutional status to the Acts of Union than to the legislative competence of the U.K. Parliament, which is otherwise seen as the U.K. s receptacle of legal sovereignty. 23 Related to the narrative of union, in the constitutional rhetoric of substate nationalism, is that of equality. Parity of esteem was an expression often used in the search for dialogue during the negotiations that led to the Belfast Agreement in Northern Ireland, and, in general, it sums up the constitutional aspirations of many substate nationalist actors in plurinational states. Visions of union and equality were combined in the extraparliamentary campaign in the 1980s and early 90s for constitutional change in Scotland; the effect was to reinvigorate the legalistic 1707 challenge 24 to orthodox notions of sovereignty with the modern dynamics of political self-determination. This campaign involved a broad range of political and civic actors and resulted in a declaration that the Scots retained an inherent right to self-government. 25 Such an assumption cannot help but question, implicitly, the idea of a unitary constitutional order purportedly founded on a single source of national constituent power. However, rather than an outright rejection of the union constitution, this process can be seen, in fact, as a reaffirmation of that constitution the constitution of a union state. This campaign aired the grievance that the union pact, stemming from 1707, had been undermined by subsequent U.K. constitutional practice, in particular, by the constitutional centralization in the 1980s; this process, it was argued, went against the foundation of mutual national respect that was believed to have been embodied in the original union Neil MacCormick, Is There a Constitutional Path to Scottish Independence?, 53 PARLIAMENTARY AFF. 721, 727 (2000). MacCormick argues in reference to Scotland s position within the U.K.: There is no doubt that we have a single state, but it is at least possible that we have two interpretations, two conceptions, two understandings, of the constitution of that state. 23 F ACULTY OF ADVOCATES, RESPONSE TO THE CONSULTATION PAPER BY THE SECRETARY OF STATE FOR CONSTITU- TIONAL AFFAIRS AND LORD CHANCELLOR: CONSTITUTIONAL REFORM: A SUPREME COURT FOR THE UNITED KINGDOM (Faculty of Advocates 2003). 24 The legalistic 1707 challenge refers to the argument that the Acts of Union of 1707 constituted fundamental law. See Union with Scotland Act and Union with England Act, supra note 21; see John Robertson, The Idea of Sovereignty and the Act of Union, in T HE CHALLENGE TO WESTMINSTER; SOVEREIGNTY, DEVOLUTION, AND INDEPENDENCE 198 (Harry Thomas Dickinson & Michael Lynch eds., Tuckwell Press 2000). 25 S COTTISH CONSTITUTIONAL CONVENTION, SCOTLAND S CLAIM, SCOTLAND S RIGHT (1995). 26 C AMPAIGN FOR SCOTTISH ASSEMBLY, A CLAIM OF RIGHT FOR SCOTLAND, para. 19 (1988). The resilience of this tradition recently resurfaced in the context of plans for a new Supreme Court for the U.K. discussed in section 2, infra.

9 738 I CON October 2007 Vol. 5: 730 These examples highlight the potentially radical nature of the plurinational constitutional challenge. Questions are emerging that bear directly on the normative authority of established patterns of legal supremacy. Such questions create the conditions for a type of Kompetenz-Kompetenz dispute that we typically associate with sovereignty struggles between EU member states and the new legal order that they have created. 27 As the constitutional agenda of substate nationalism develops in a number of liberal democracies today, we find that these debates concerning the relationship between union and sovereignty also exist within plurinational states. These developments present radical challenges to the internal manifestations of state sovereignty that are similar in conceptual form to the external challenges with which states are more familiar. 28 As substate national societies grow more confident in their developing constitutional competences and in the theoretical underpinnings that are maturing parallel to these changes, it seems we are merely at the beginning of a process that will demand further rethinking of established constitutional orthodoxies. This process is similar to that which normative liberal theory has gone through. With this broader conceptual challenge as context, we now turn to the devolution settlement set out in the Scotland Act, highlighting those elements that go some way toward meeting the plurinational challenge and those that remain wedded to a unitary state mentality. 2. Devolution for Scotland: Plurinational realignment without federalism? When Labour set about changing Britain s constitution in 1997, it did so with the cavalier abandon of a party giddy with popular support. The result was jerry-built. The structures will not weather a constitutional crisis. 29 In 1998, there was a very strong sense that the devolution settlement in the Scotland Act was a genuine albeit speedily mounted and somewhat ad hoc attempt by the U.K. government and Parliament to meet the aspirations of a substate national society for meaningful self-government. Although this 27 The term Kompetenz-Kompetenz (literally competence concerning competence ) originated in Germany in the context of debate as to whether an arbitrator could have the power to rule on his/her own jurisdiction; now it is used more generally to signify the power to allocate decisionmaking authority. For a discussion of its significance in the EU context, see KAREN J. ALTER, ESTAB- LISHING THE SUPREMACY OF EUROPEAN LAW: THE MAKING OF AN INTERNATIONAL RULE OF LAW IN EUROPE (Oxford Univ. Press 2001). 28 States face external challenges both from the expanding normative reach of international law and from new suprastate legal orders, such as, most obviously, the EU. See Stephen Tierney, Reframing Sovereignty: Sub-state National Societies and Contemporary Challenges to the Nation-state, 54 INT L & COMP. L.Q. 161 (2005). 29 Editorial, Gordon Brown Must Enter the Devolution Debate, OBSERVER (London), July 2, 2006.

10 Tierney Giving with one hand 739 article s focus is only upon Scotland, it should be noted that both the parallel, and more modest, constitutional settlement for Wales, 30 as well as the highly imaginative and constitutionally radical agreement for Northern Ireland contained in the Belfast Agreement, 31 also bear testimony to the decentralizing spirit of the time. The degree to which a state has dispersed power may be gauged with reference to a standard institutional grid along a continuum ranging from strong to weak realignment, with federalism at one end and administrative decentralization at the other. It seems, however, that such traditional, institutionally focused approaches to multilevel government provide only a partial insight into the degree to which a plurinational state s constitution and, as significantly, its constitutional culture are, in fact, aligned to reflect its nature. The realm of institutional models, therefore, is another area that becomes problematic as a result of the plurinational challenge. For example, there is an old distinction between multinational models geared toward aligning the constitution with a plurinational vision and other territorial models that make no distinction between discrete national subunits and other territorial regions that are part of the host state national demos. 32 It is only recently, however, that theorists have begun to engage seriously with the implications of this distinction for constitutional design. 33 One possible approach to this distinction would be to analyze the constituent parts of each model to see where they fall on the scale ranging from federalism to administrative decentralization. This could be done for various vectors, each of which would represent a way of aligning the constitution in a plurinational direction. We will address three of these vectors in the Scottish context. Two concerning autonomy and representation are familiar to traditional types of analysis, while a third, which is more symbolic and concerns recognition, tends to be overlooked in more institutionalist approaches. This exercise will help us not only to assess the extent to which a particular model of constitutional realignment is genuinely plurinational rather than simply heavily decentralized but also to examine how a particular set of constitutional arrangements may be strongly plurinational, in certain ways, but weakly so in others. Such an approach is especially appropriate when seeking to understand the curious model that is Scottish devolution (and devolution in the U.K. more generally). It is widely believed that only federalism offers adequate means to achieve a truly multinational constitution. As a general point, this argument, advanced by Simeon and Conway in the epigraph to this article, must be cor- 30 Government of Wales Act, 1998, c H OUSE OF COMMONS, BELFAST AGREEMENT, 1998, Cm ; Northern Ireland Act, 1998, c. 47, See, e.g., KENNETH WHEARE, FEDERAL GOVERNMENT 49 (4th ed., Oxford Univ. Press 1963). 33 F ERRAN REQUEJO, MULTINATIONAL FEDERALISM AND VALUE PLURALISM (Routledge 2005).

11 740 I CON October 2007 Vol. 5: 730 rect; however, it is also the case that other models, such as U.K. devolution or quasi federalism in Spain, while lacking some of the institutional protections federalism provides, nonetheless may provide for a strong plurinational realignment in other ways. Certain elements of the Scottish devolution settlement, such as its very extensive catalogue of devolved powers, its asymmetrical nature, and the explicit and implicit symbolic recognition that this carries, do have a distinctively plurinational flavor. Seen from another perspective, however, the U.K. remains more akin to an institutionally unitary polity that envisages itself as uninational in composition. And, from this angle, it displays integrationist tendencies that are oriented more toward assimilation than partnership. We will now explore this tension as it plays out in the institutional design of Scottish devolution Plurinational elements in the devolution settlement: Autonomy and recognition The autonomy provisions of the Scotland Act embody a retaining model of devolved power, whereby those matters that are reserved to the exclusive competence of Westminster are explicitly articulated within the act, with all other matters devolved. 34 The range of devolved matters is extensive; 35 since there are few explicitly articulated concurrent or shared powers, the Scottish Parliament has, in effect, exclusive competence in these areas, including the power to repeal existing U.K. legislation. 36 Although the act confirms the ongoing power of the U.K. Parliament to legislate in devolved areas, 37 there is now a constitutional convention to the effect that the U.K. Parliament will not do so without the consent of the Scottish Parliament. 38 At the same time, the limitations imposed on the Scottish Parliament are tightly drawn, with strong procedural blocks in the act preventing the passage of ultra vires legislation. 39 Also, in substantive terms, the Scottish Parliament lacks certain notable powers, the most striking of which are tax-varying powers; the only exception to central fiscal control is the power of the Scottish Parliament to vary the basic rate of income tax by 3 pence in the pound. 40 This feature combines with other factors in particular, central control over intergovernmental relations (discussed below in section 2.2) to create what we 34 Scotland Act, Id., scheds This competence is of course, in jurisdictional terms, limited to Scotland. See Scotland Act, 29(7)(a). 37 Id. at 28(7). 38 See Winetrobe, infra note Scotland Act, 31(1) (2), 32(2) (3), Id. at 73.

12 Tierney Giving with one hand 741 might call soft limitations on the devolved competence. As a consequence, the seemingly strong devolved powers should not be taken at face value since, as a matter of practical reality, the Scottish executive often has little room to maneuver when setting its own policy priorities. Finally, when assessing this devolved autonomy, the policy-setting agenda of the EU is an additional and important consideration. The legislative competence of the Scottish Parliament is constrained by a legal hierarchy within Europe whereby any domestic power that is also an area of EU jurisdiction is subordinate to inconsistent treaty provisions or legislation emanating from Brussels. 41 In practice, this proves to be a particularly restrictive influence, given that many matters devolved to the Scottish Parliament are also matters of European competence. 42 Turning to the issue of symbolic and related forms of recognition, it may appear that the very language of devolution, in contrast to that of federalism, inherently belies any sense of plurinational recognition. The term devolution suggests a top-down grant of power from the center, 43 and, in this respect, federalism, with its clear implication of divided sovereignty, is a much stronger medium through which to articulate, even at the symbolic level, a plurinational approach. 44 In general, this is correct but, again, we should be wary of an overreliance on the traditional rhetoric of decentralization and the concomitant assumption that we can map this taxonomical construction neatly onto models of plurinational realignment. Devolution for Scotland contains elements that, in contrast to the implicitly vertical structure, seem to embody some level of acknowledgment of the state s plurinational nature. These elements are manifested in two ways. The first is implicit in the substantial asymmetry of U.K. devolution, which we see in three respects. First, only territories that can be characterized as substate national societies have achieved devolution (although the status of Northern Ireland as a substate national society, rather than as a territory containing two substate national societies, is, of course, heavily contested). Second, one substate national society England does not have devolved government at all. Third, each of the three models of devolution for Scotland, Wales, and Northern Ireland differ considerably inter se, 45 which reflects the differing historical trajectories of each territory made various by how they entered the state, the nature and 41 Scotland Act, 29(2)(d). 42 S IMON BULMER ET AL., BRITISH DEVOLUTION AND EUROPEAN POLICY MAKING: TRANSFORMING BRITAIN INTO MULTI-LEVEL GOVERNANCE 3 (Palgrave Macmillan 2002). 43 Requejo, supra note 13, at 110, W ILL KYMLICKA, FINDING OUR WAY: RETHINKING ETHNOCULTURAL RELATIONS IN CANADA 135 (Oxford Univ. Press 1998). 45 Compare Scotland Act, Government of Wales Act, supra note 30 (although note also the Government of Wales Act 2006, which moves Welsh devolution slightly in the direction of the Scottish model), and Northern Ireland Act, supra note 31.

13 742 I CON October 2007 Vol. 5: 730 resilience of national sentiment in each, and their differing aspirations for a reshaped union in The second element implicitly acknowledging the state s plurinationality is recognition through the more unequivocal symbolism of multiple nationhoods. This type of recognition is, of course, embodied in the very name United Kingdom, in the design of its flag, and in the common usage of the term nation to describe Scotland, Wales, and England. However, it is also to be found in the tenor of the devolution settlement for Scotland. For example, in the white paper that set out the U.K. government s plan for devolution, former Prime Minister Tony Blair declared: Scotland is a proud and historic nation in the United Kingdom. 46 There are other ways in which the devolution settlement supplements the symbolic recognition of Scottish nationhood, most prominently, in the usage of Parliament to name the devolved legislative assembly. The use of this term hinting at symbolic if not legal parity with Westminster can be seen as an acknowledgment of Scotland s historical status as an independent country with its own Parliament until The emblematic significance of this nomenclature is reflected in the asymmetrical language used in framing the U.K. s other devolved institutions; in contrast, Wales and Northern Ireland have assemblies, setting a different tone for their relationships with Westminster. The symbolic recognition of nationhood has been less forthcoming in other plurinational states, even where models of autonomy are federal or quasi federal. 47 To take Canada as an example, attempts to enshrine references to Quebec s distinctiveness in the Constitution have met with failure. 48 However, matters may be changing. Despite strong opposition to the idea of explicitly recognizing Quebec s nationhood, the House of Commons has passed a resolution recognizing that Quebec forms a nation within a united Canada. 49 Like another decade-old declaration that recognized Quebec as a distinct society, 50 this resolution does not have entrenched constitutional status, but it is still highly significant. Second, even though Quebec has used the considerable autonomy that belongs to the provinces to carve out different powers from 46 H OUSE OF COMMONS, SCOTLAND S PARLIAMENT, 1997, Cm. 3658, at v. 47 As Norman observes, Perhaps no fundamental feature of the political cultures of multinational democratic states varies more than the ways in which recognition is recognized, so to speak. N ORMAN, supra note 6, at Most notably in the failed Meech Lake process of 1987: Meech Lake Accord, Draft Constitutional Amendment 1987; and the failed Charlottetown process of 1992: Charlottetown Accord, Draft Legal Text, Oct. 9, Resolution Respecting the Recognition that the Québécois Form a Nation within a United Canada, H.C. 87, 39th Parl. (2006). 50 Resolution Respecting the Recognition of Quebec as a Distinct Society, H.C. 273, 35th Parl. (1995).

14 Tierney Giving with one hand 743 those used by other provinces and, despite some specific references to Quebec in the Constitution, there has also been considerable resistance to any constitutional grant of asymmetrical powers and to the watering down of the constitutional principle of equality among the provinces. 51 In Spain, by contrast, the Constitution countenances the development of asymmetrical powers. Both the Basque Country and Catalonia have used this to develop distinctive areas of competence, and, in Catalonia s case, the recently amended Statute of Autonomy extends these. 52 In terms of symbolism, the preamble to the Constitution recognizes Spain s cultural plurality and the right to self-government by the nationalities and regions of which it is composed. However, this is hedged with several qualifications. 53 The new Catalan Statute of Autonomy uses the word nation for the first time, but, in doing so, distinguishes Catalan perceptions of itself as a nation from those of the Spanish Constitution, which still conceives of Catalonia as a nationality only. 54 The issue of recognition highlights the limitations of an analysis that uses the classical line running from federalism to devolution as a conclusive guide to the degree of plurinational alignment to be found in a particular constitution. With this model we would understand Quebec, which enjoys the prerogatives that come with a heavily decentralized federal constitution, to have the greatest degree of constitutional recognition, followed by Catalonia, and then Scotland. As we have seen, however, the issue is not so clear-cut. Recognition can also be more important than the mere symbolic act it is often assumed to be. Although, by itself, recognition is not equivalent to substantive constitutional powers, it can be important in terms of the self-confidence of citizens within a substate national society and central to their sense of inclusion within a genuinely plurinational host state. 55 More significantly, perhaps, it can also 51 Stephane Dion, Le fédéralisme fortement asymètrique: Improbable et indèsirable [Strongly Asymmetric Federalism: Improbable and Undesirable ], in S EEKING A NEW CANADIAN PARTNERSHIP: ASYMMETRICAL AND CONFEDERAL OPTIONS 133 (F. Leslie Seidle ed., Institute for Research on Public Policy 1994). 52 Reform of the Statute of Autonomy of Catalonia, Organic Law 6/2006 (Parlament de Catalunya), available at 53 S PAIN CONST. pmbl. First, the recognition of nationalities is tempered by the first phrase in article 2, which states: The Constitution is based on the indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards. Second, it is notable that the nationalities are not named, as such; thus, the Constitution does not explicitly juxtapose other national territories with Spain in article 2. And third, reference to nationalities runs together with a reference to regions, which suggests a conceptual elision of the two. 54 Organic Law 6/2006, supra note Michael Keating observes in connection with recent debates over further autonomy for Catalonia and the Basque Country: What is remarkable is how little political energy was expended on the distribution of powers, the precise design of institutions, or relations with the central state. the balance of the debate concentrated on a series of highly symbolic and ideologically charged elements. Michael Keating, Rival Nationalisms in a Plurinational State: Spain, Catalonia and the Basque Country, in C ONSTITUTIONAL DESIGN FOR DIVIDED SOCIETIES, supra note 2.

15 744 I CON October 2007 Vol. 5: 730 have implications at the level of constitutional interpretation. Thus, the difficulty in determining what effect a distinct society clause might have when interpreted by an activist Supreme Court made many Canadians wary of its inclusion in the Meech Lake and Charlottetown draft accords. 56 Finally, the issue of recognition also reminds us of a related problem with adopting an approach to plurinational alignment that is exclusively focused on institutions. Such a perspective may cause us to overlook the pathways of political practice and constitutional convention that exist at the interstices of legal forms and that facilitate informal or semiformal modes of decentralization, representation, and recognition. This blind spot in constitutional analysis is not exclusive to the plurinational context, but it is the case that the informal, symbolic ways in which a constitutional culture can consolidate the plurinational tenor of the state may easily come in under the radar of excessively formal analyses of decentralization Integrationism within the devolution settlement: Intrastate relations Any notion that Scottish devolution represents a plurinational realignment of the U.K. constitution requires some substantial qualifications. As already noted, Scotland s powers of autonomy are offset by subtle integrationist tendencies in the operation of reserved powers, particularly in the context of taxation. However, in addition to these constraints, there are far more obvious centralizing dynamics at work within the settlement, partly as a result of selfconscious policy decisions by the U.K. Parliament, and partly because devolution occurred in an inchoate way rather than as part of a broader reworking of the constitutional structure of the British state. The devolution model for Scotland is very lopsided when compared with a federal system. Although containing a great deal of detail concerning the balance between devolved and reserved matters, 57 the Scotland Act is much less explicit with regard to representation at the center what in federal systems is known as intrastate federalism. There are very few provisions touching upon how intergovernmental and interparliamentary relations should be managed under the devolved arrangements and how these pertain to the creation, structure, and modus operandi of institutions when coordinating policy for the U.K. as a whole. A formal system of intergovernmentalism is widely seen as a crucial component in any credible decentralized model; not only does such a system protect the subunit s degree of involvement in central decision making but it also helps prevent or, at least, resolve conflicts between different levels of government. All this being the case, substate national societies typically seek certain modes of integration in other words, formal pathways to representation 56 See supra note Scotland Act, 30, sched. 5.

16 Tierney Giving with one hand 745 at the center where they can meet with the dominant national society as partners in a joint multinational enterprise. Sujit Choudhry correctly observes how in a decentralized state not all forms of integration are assimilationist; 58 we need, therefore, to distinguish between what might be called partnership integration and assimilationist integration. The former is to be found in a plurinational federal or confederal model that provides for the equal engagement of the state s national societies; the latter is characterized by the subjection of substate national societies to decisions by the center in the making of which the substate units have only minimally or inadequately participated. In many ways the latter model characterizes the intergovernmental aspects of the devolution settlement for Scotland, and it seems that this is largely the result of the informal or quasi-formal structures that have accompanied devolution. An important body for relations between Scotland and London is the Joint Ministerial Committee (JMC); this establishes a format for cooperation between the ministers in Whitehall and their counterparts in Edinburgh and the other devolved administrations. 59 Generally, it operates through meetings between officials or in direct relationships between one London department and its devolved equivalent. Its remit is to deal with reserved matters, insofar as they might affect devolved territories, and devolved matters, where they have an impact on the rest of the U.K. Flowing from this arrangement is a series of memoranda of understanding and supplementary agreements known as concordats. 60 Such a semiformal model is integrative in an assimilationist sense for various reasons. One is the gatekeeper control exercised by the center a center that, by virtue of the Westminster system, has long had an extremely powerful executive. Since there is no legal requirement to conduct relations with the Scottish executive in any particular way (or indeed at all), the U.K. government can establish the terms for discussions, table the agenda it wants, and offer greater or lesser degrees of cooperation to the devolved administration or to individual departments within it, all based upon political preference. 61 In this way the devolved institutions in order to gain a role in these discussions can be persuaded to display greater political compliance. More importantly, just as there is no legal requirement to enter into negotiations, so there is no obligation on the part of the U.K. government to reach agreement with the devolved institutions on any issue of policy, even where it affects the devolved territory. Intergovernmental cooperation can be, and often is, simply a process of passing on information concerning decisions already 58 Sujit Choudhry, Does the World Need More Canada? The Politics of the Canadian Model in Constitutional Politics and Political Theory, 5 INT L J. CONST. L. (I CON) 606 (2007) (in this issue). 59 The JMC was established under the Memorandum of Understanding, 2000, Cm Richard Rawlings, Concordats of the Constitution, 116 L.Q. REV. 257 (2000). 61 Alan Trench, Central Government s Responses to Devolution, in E CONOMIC AND SOCIAL RESEARCH COUN- CIL DEVOLUTION BRIEFING NO. 15 (Economic & Social Research Council 2005).