Scotland, citizenship and choice: the deep constitution

One school of thought views the debate on Scotland’s constitutional future as a clash of competing nationalisms: Scottish vs British/UK. There is little doubt that on either side there are combatants who will support their country, whether it is right or wrong.  These are people less concerned with what kind of Scotland or UK exists than the flag to be flown over public buildings - who either refuse to engage in outlining the kind of state and society they envisage or simply use these kind of arguments instrumentally.

But an alternative debate exists and though it gets little airing in the media, it is important and deserves attention.  There has long been ample evidence that support for constitutional reform was contingent rather than springing from the view that a nation has an automatic right to become a state. While the elites engage in endless, arid argument over whether international treaties have to be renegotiated or are inherited, the appetite amongst the public is for some sense of how constitutional change will affect their daily lives, if at all.

This is a debate about the kind of welfare state we want as much as anything else.

From one perspective, welfare is seen as a matter for the political parties to argue over and not a constitutional issue.  This is a dated view of constitutional affairs.  The days when a constitution was concerned with institutional politics – the relations between different levels of government and between legislatures, executives and the judiciary - are behind us.  Modern constitutional deliberation is concerned with rights – the negative rights of earlier times but also increasingly with positive rights.  If a constitution is to do more than outline formal institutional relations then welfare matters need to be incorporated into debate.

This has become even more pressing at a time of economic difficulties.  All too often those who lose out during these times are those most reliant on the state for protection.  So what, if anything, does a constitution offer to ensure welfare rights?  What protection does a constitution offer for the weakest in society?  Are constitutions only to be designed, as in the past, for the protection of negative rights – freedom not to be subjected to actions of others including arbitrary government actions – or should they be designed for the protection of positive rights – including social security broadly defined?[1]

There are four key aspects of the constitutional debate in regard to welfare:

1. No-one can be expected to answer these questions precisely but we should expect some sense of the kind of state and society envisaged by both sides.
2. This is a debate about choices and capabilities.  Each potential future will involve making choices about the kind of state and society we live in that are within our capabilities to deliver.
3. Capabilities also involve choices.  Wealthy states – as Scotland or the UK would both be – must decide on how that wealth is distributed. 
4. The welfare state status quo is not an option.

THE KIND OF STATE/SOCIETY ENVISAGED

We should expect some idea in broad terms of the kind of state and society envisaged under either future constitutional scenario.  Both sides support a welfare state, but what kind?  We have witnessed significant changes in the provision of welfare in the UK over time and there will be further changes in the future.  Much is unpredictable under either constitutional scenario.

Indeed, anyone making precise claims should be treated with suspicion.  If we have learned one lesson in recent years then it is the need for a greater degree of humility in forecasting in the social sciences – dare I say especially in economics.  But we should expect some sense of the direction from both sides of this debate.

All we can say is that what we have now will change.  This is not a debate between the status quo and change under independence.  This is a debate between two forms of change, in terms of welfare rights.  The assumption that the constitutional status quo equates with the welfare status quo should be dismissed.

In 1999 no-one could have predicted the policies pursued by the Scottish Parliament with anything approaching precision.  One-dimensional public opinion surveys fail to capture changes that will emerge – just as they failed to predict the kinds of changes that occurred when devolution was established in 1999.  Holyrood developed its own welfare logic.  In broad terms this was predictable even if detail it was unpredictable.

Devolution debates were closely associated with debates on welfare issues.  In those debates, people in Scotland expressed support for continuity.  But they wanted continuity of the welfare state, not of the way the UK was structured constitutionally.  Whether continuity in welfare was provided by a centralised or devolved state was secondary for many people.  That has not changed significantly – many Scots want to retain the state to which they owe most loyalty – not the UK state, nor a putative Scottish state but some (admittedly ill-defined) welfare state.

There was much naivety in the early years as to what devolved government could do – an expectations gap existed between what it could do and what people wanted from it.  This was largely hidden in the first decade of devolution due to the phenomenal rising levels of public expenditure across the state.  This public financial backdrop meant that decisions were made piecemeal and on an implicit assumption that spending levels would be maintained.

CHOICE AND CAPABILITIES

This debate is about a choice between directions of travel towards potentially different types of social welfare.  It may be that an independent Scotland and the UK would travel in the same direction, perhaps at different speeds, though this seems unlikely.  Choices will be constrained by a number of factors.  Three are of particular relevance to this debate: available political support, public finances, and spill-over implications.

1. Political support: Scotland has diverged from the rest of the UK in public policy terms within the existing framework of devolution, which seems unlikely to change with more powers.
2. Public finances: The extent to which Scotland could afford to pursue more generous welfare remains a matter of contention, though the old assertions about Scotland’s inability to afford basic welfare are now only made by the most partisan.  However, there remains considerable scope for using existing spending much more wisely. Short-term decision-making over many decades, especially appalling during periods of significant increases in spending, has resulted in Scotland failing to make the necessary shift to preventative spending.  That shift will prove difficult to make in the current situation but will have to become a priority when possible.
3. Spill-over implications/externalities: It has been suggested that the current constitutional arrangements create few incentives to prioritise economic growth and encourages spending on services.  That may change with independence or under alternative models of devolution.  Devolved government added a democratic layer to the Scottish Office - a system that was a highly efficient lobbying voice for Scotland within government.  More fiscal responsibility will enforce greater concern for other public policy objectives than evident in the old Scottish Office or the early years of devolution.  This may limit the options for generous welfare support.

CAPABILITIES ALSO INVOLVE CHOICES

One of the paradoxes of Scottish politics has been that its two main parties – the SNP and Labour – are both instinctively social democratic yet there is a marked reluctance to face up to the challenge of explaining how welfare would be funded into the future and whether each party will confront challenging new ideas.

Scotland could afford generous welfare under either constitutional scenario but the reluctance to confront redistribution has limited this debate.  A healthy and open debate on the balance of tax and spend – informed by the kind of society desired – has been absent.  Scotland has yet to face up to the levels of maldistribution of wealth.

THE STATUS QUO IS NOT AN OPTION IN TERMS OF WELFARE

 Regardless of the constitutional status of Scotland, welfare provision will change.

Devolution had small ‘c’ conservative support – a defence against the prospect of a capital ‘Conservative’ Government rolling back the welfare state.  There may be little agreement (within the Government, far less within the NO camp) as to the extent and manner in which the welfare state is changing now but there seems little doubt that it is changing.  The constitutional status quo means uncertainty as far as welfare is concerned.

Supporters of independence will have to answer questions regarding welfare; but these questions are at least as pertinent as far as the constitutional status quo is concerned.

Meanwhile, real world developments should not be ignored. Against the backdrop of the adversarial debate on the constitution, considerable work and innovation is taking place in implementing at least some aspects of the Christie Commission’ recommendations, advocating a shift towards preventative spending and greater emphasis on outcome (see the summary and the 2011 report, 'The Future of Public Services in Scotland').  It may not have been noticed by those focused on party politics or the Holyrood village but much is happening and much needs to be done.  There is little danger of the many people involved in this work losing sight of this activity but it would be useful for those with a narrow focus on the ‘history making’ debate on the constitution to occasionally raise their heads and become more acquainted with these ‘day to day’ developments.

Conclusion

The main difference between today’s debate and the constitutional debate on the 1997 referendum is the greater degree of uncertainty surrounding welfare in the years ahead, regardless of how Scots vote in 2014.  This will make voting difficult, at least for those basing their vote on something other than the self-evident truths of British or Scottish nationalism.  Such information as exists is often suspect - coming from players in the game masquerading as umpires.  Whatever is decided, it will involve a leap of faith as far as welfare is concerned.  There can be no definitive answers.  There never are in liberal democracies.  But there can be serious debate.

[1] In this sense, this is a debate within a liberal democratic framework that focuses an observation about liberal democracies made by Arendt, one of the most important philosophers of the twentieth century.  Arendt wrote about having the ‘right to have rights’, and ‘a right to belong to some kind of organised community’. Elsewhere, I have spoken about this right to belong – who would be given citizenship and whether a Scottish or UK state would come closest to Enlightenment thinking.  In this article, I simply raise the question of the right to have rights and consider the rights available in an independent Scotland compared with those now available and likely to be available in the future.