A federal Scotland: Proposal for a Memorandum of Offer on how Scotland would be governed according to federal principles – Professor Marc Weller

This Memorandum would represent a definite offer of a constitutional settlement according to federal principles for Scotland should its people decide in a forthcoming referendum to remain within the United Kingdom. Such an offer would be made by the principal political parties favouring continued union.

Scotland would have significantly more power over its affairs but stay within the UK, under Professor Marc Weller's proposal for a federal system (Picture: David Cheskin/PA)

1, The United Kingdom and Scotland

1.1. Scotland shall be recognised as a sovereign nation within the constitutional order of the United Kingdom. Scotland exercises its sovereign rights and powers through participation in the United Kingdom according to federal principles.

1.2. Scotland shall enjoy the greatest measure of self-governance. This will enable the people of Scotland to pursue their own political, economic and social path in accordance with their freely expressed will and their distinct history and culture.

1.3. In accordance with federal principles, Scotland shall have the opportunity to contribute meaningfully to decisions taken by the United Kingdom institutions when specifically affecting Scotland or when acting in the common interest.

1.4. The other constituent nations of the United Kingdom, England, Northern Ireland and Wales, may seek a similar or different status, depending on their preferences. This may be the status quo, further devolution, the formation of an entity composed of city regions, as is at times proposed for England, or governance according to federal principles, as is foreseen for Scotland.

1.5. No change or action of any kind shall be undertaken, however, that puts into question, or is incompatible with, the Northern Ireland peace agreements and the continuing peace process there.

1.6. The Scotland Act 2016 shall be replaced by a comprehensive constitutional settlement to be reached between the United Kingdom and Scotland within the time-frame and according to the provisions set out in this Memorandum.

MSPs would be able to insist on the removal of nuclear weapons from Scotland (Picture: Russell Cheyne/PA)

1.7. Scotland shall adopt its own constitution in compliance with the constitutional settlement and this Memorandum.

1.8. The people of the United Kingdom, wherever they reside, and their institutions, remain committed to the following principles and values:

Genuine and vibrant multi-party democracy; The rule of law and dedication to human rights; Effective, accountable and transparent government; Justice and equality for all, men and women; A life in dignity for all with adequate provision for those in need, including vulnerable groups; Openness and tolerance towards others and respect for divergent faiths and traditions; Commitment to environmental protection and sustainability, addressing in particular climate change; Bringing about positive change in the world through development cooperation and the pursuit of social and international justice.

2, Powers of Self-Governance

2.1. Scotland shall retain its legislative, executive and adjudicative institutions. These institutions shall enjoy all powers (competences) required for meaningful self-governance. This includes the powers historically retained by Scotland, in particular those concerning its legal system and Scotland’s own educational provision at all levels, powers already transferred through devolution, and additional powers to be transferred in accordance with this Memorandum.

2.2. These powers shall enable Scotland to pursue, inter alia, its own educational, cultural, social, welfare and health policies which will provide for inclusion, full equality and social mobility in these sectors and within society at large.

2.3. In particular, Scotland shall ensure that all can lead a life in dignity, including those in need of special assistance, medical care, welfare or other special provision. Scotland shall maintain effective and efficient public services in each sector, including all aspects and levels of education, the National Health Service Scotland, state pensions, disability support, welfare and social security provision and assistance to members of vulnerable groups.

2.4. These services and provisions shall be funded at the levels determined by Scotland in its own budget. However, such provision in each sector shall not fall below the average level of provision offered elsewhere in the United Kingdom.

2.5. The additional powers assigned to Scotland by virtue of this Memorandum in order to ensure full and effective self-governance will be enumerated in a Schedule which shall be considered a part of this Memorandum. Any power not assigned either to Scotland or the United Kingdom in the Schedule shall be considered a concurrent power (Section 4 below).

2.6. The assignment of powers to Scotland in accordance with this Memorandum is permanent and cannot be revoked or amended without the consent of the Scottish Parliament.

3, Economic Sovereignty

3.1. Scotland shall be able to develop its own economic path. It shall have sufficient powers and freedom within the UK economy to direct its resources towards the development of infrastructure and training, and business-development and innovation, in its own, unique way.

3.2. Scotland shall continue to benefit from, and where appropriate contribute to, the development of a UK-wide economic, transport and communications infrastructure, enhancing its access to materials, goods, services and markets in the UK and abroad, and facilitating its own development and trade.

3.3. In attracting further significant foreign direct investment, Scotland shall be supported by the relevant institutions of the United Kingdom, including its trade delegations.

3.4. Scotland shall pursue its own agriculture and fisheries policy in consultation with the United Kingdom institutions and the other constituent nations.

3.5. Scotland shall enjoy full powers of taxation and for raising further revenue, balanced by the taxes, customs and charges reserved for the United Kingdom as are enumerated in the Schedule and as is necessary to fund the functions and powers assigned to the United Kingdom institutions.

3.6. If the level of United Kingdom central income is not sufficient to fund these functions, Scotland, along with the other nations, shall contribute to these costs in accordance with the relative proportion of their populations.

3.7. Scotland shall be entitled to the proceeds from natural resources found on its territory or within its maritime spaces and shall have the authority to licence their exploration, exploitation and management, taking due account of environmental concerns.

3.8. Scotland shall contribute an agreed share of 15 per cent of any net proceeds from oil and gas found on its territory or within its maritime spaces that are in excess of £1 billion per year to help balance out inequalities imposed by nature upon other constituent nations.

3.9. Scotland shall have a voice in the creation of economic and monetary policy of the United Kingdom as a whole and shall be adequately represented in the United Kingdom bodies involved in this process.

3.10. Scotland shall have its own National Bank.

3.11. Scotland adopts its own budget and shall have the right to raise loans from the Central Bank of the United Kingdom and other lenders, including international institutions, within an agreed maximum percentage of Scottish GDP.

4, United Kingdom Powers

4.1. The United Kingdom institutions shall retain their present powers (competences), except for those assigned to Scotland in accordance with this Memorandum and Schedule.

4.2. The Schedule shall also enumerate concurrent powers exercised in conjunction with Scotland and, where appropriate, the other nations. Concurrent powers allow the United Kingdom parliament to establish a legislative framework of a general nature, leaving full authority for Scotland and, where appropriate, for other nations, to adopt further legislation and action within that framework.

4.3. Scotland remains free to exercise its own powers where the United Kingdom does not adopt legislation under its concurrent powers.

4.4. The Schedule shall also include an enumeration of United Kingdom agencies or other bodies entitled to operate directly in relation to the territory of Scotland or within that territory. Scotland shall facilitate the operation of such agencies, including on its territory.

5, The Power to Vary

5.1. Scotland shall have the power to vary certain laws and policies that otherwise lie within the competence of the United Kingdom institutions. This includes, in particular, immigration.

5.2. Scotland shall be entitled to regulate the inflow of foreign workers, immigrants and refugees into its territory in variation of UK law and policy up to an agreed level. Individuals profiting from this exception must reside in Scotland until they have received permanent leave to remain according to United Kingdom law. Scotland shall cover any expense associated with their presence until that point.

5.3. Variation is also permitted in areas where the United Kingdom institutions exercise their concurrent powers. However, this shall not apply where the United Kingdom Parliament designates a piece of legislation adopted under its concurrent powers as essential in the interest of the United Kingdom as a whole.

6, Scotland’s Representation in UK Institutions

6.1. Scotland shall be fully represented in all United Kingdom institutions that exercise powers in relation to Scotland, including at points of senior decision making. Due regard shall be paid to gender representation.

6.2. Qualified individuals from Scotland shall also be represented in the United Kingdom executive exercising functions on behalf of the UK as a whole, including the military and security services, in rough proportion to the percentage of the Scottish population. Due regard shall be paid to gender representation.

6.3. Membership in the House of Lords and representation on the Supreme Court shall be reviewed to ensure appropriate representation of Scotland and the other nations. Members of the House of Lords representing Scotland shall be so designated. Due regard shall be paid to gender representation.

6.4. The United Kingdom Parliament shall exercise its functions only in relation to items that lie within powers assigned to the United Kingdom according to Section 4 of this Memorandum as far as Scotland is concerned. Members from Scottish constituencies in the House of Commons and members representing Scotland in the House of Lords shall exercise their functions only in the debates and votes relating to these items.

6.5. The commitment of the principal political parties in the United Kingdom to include an appropriate number of Scottish members in any government they may form in the future is noted.

7, External Relations and International Development

7.1. The United Kingdom retains full and undivided legal personality in international law. However, Scotland shall have the authority to conclude executive agreements at the level of international law in areas where it has powers and may be directly represented in international bodies that admit such representation.

7.2. The United Kingdom government shall notify the Secretary-General of the Council of Europe that Scotland shall enjoy state immunity as a federal unit in accordance with Article 28 (1) of the European Convention on State Immunity, 1972.

7.3. Scotland shall be entitled to participate in major international negotiations that specifically affect its interests, including environment and trade, through a distinct contingent in the United Kingdom delegation.

7.4. Scotland shall receive enhanced visibility in UK foreign missions, including in particular in relation to trade and investment, and it may establish its own representative offices abroad.

7.5. The Prime Minister of the United Kingdom and the First Minister of Scotland, and the United Kingdom Secretary of State for Foreign, Commonwealth and Development Affairs and the Scottish Minister for External Affairs, respectively, shall engage in regular consultations about foreign policy issues – the former at least once a quarter, the latter at least once a month, or more often if the occasion so requires.

7.6. The economic environment permitting, the United Kingdom remains committed to the goal of contributing at least 0.5 per cent of its GDP in international development aid, to rise again to 0.7 per cent when possible. Scotland shall contribute fully to decision-making on international development aid.

7.7. Scotland may opt to have an element of United Kingdom development aid within the United Kingdom aid portfolio designated as its distinct Scottish contribution, in proportion to its population within the United Kingdom.

7.8. Scotland may make contributions to development aid beyond the present United Kingdom target of 0.5 per cent of GDP, or later of 0.7 per cent. These additional contributions will be designated within the United Kingdom aid portfolio as distinctly emanating from Scotland, or such additional aid may be assigned and distributed directly through Scotland’s own institutions.

8, Defence

8.1. National defence remains a task for the United Kingdom armed forces and a function under section 4 of this agreement. Members representing Scotland in the House of Lords or Scottish constituencies in the House of Commons participate in the deliberations and decisions of the United Kingdom Parliament on the use of military force. Similarly, the consultations noted in Section 7.5 shall address actual or potential military deployments.

8.2. The assessment of the Scottish contribution to the defence of the United Kingdom shall include the making available of basing and other facilities in Scotland.

8.3. If, after three years of entry into force of the Constitution of Scotland (Section 10.9 below), the Scottish Parliament declares its desire to withdraw from the United Kingdom nuclear deterrent by a majority of at least 50 per cent of all its members, the United Kingdom will remove its military facilities directly related to nuclear defence from Scotland.

8.4. The process of nuclear disengagement shall be completed over a period of no more than 12 years from the adoption of the decision by the Scottish Parliament. Six years after adoption of that decision, Scotland shall no longer be required to contribute to the nuclear weapons programme of the United Kingdom.

8.5. Instead, Scotland shall invest further in providing or enhancing its own air and sea rescue and coastal and fisheries protection service.

8.6. Scotland may also take on a more distinctive role in international peace-keeping when battalions of the Royal Regiment of Scotland are deployed within the overall framework of United Kingdom operations mandated by the United Nations.

9, Settlement of Disputes

9.1. The United Kingdom Supreme Court shall address any disputes between Scotland and the United Kingdom and their respective institutions about their respective powers or their exercise.

9.2. The United Kingdom Supreme Court shall review the draft Constitution of Scotland and certify before its adoption that it is in compliance with the constitutional settlement reached pursuant to this Memorandum.

9.3. The parties to this Memorandum will seek to ensure that the legislative changes necessary to bring Sections 9.1 and 9.2 into operation are adopted in a timely way.

10, Transitional Provisions

10.1. This Memorandum is brought into force if a future referendum for Scotland favours continued union.

10.2. A full draft constitutional settlement consistent with this Memorandum shall be reached between the United Kingdom and the Scottish authorities during a transitional period of no more than three years, commencing upon entry into force of this Memorandum.

10.3. If issues remain unresolved between the sides nine months before the end of the transitional period, a conciliation commission representing independent constitutional experts and both sides shall, within a period of three months, offer proposals addressing these remaining issues.

10.4. If the sides fail to reach agreement after considering those proposals within a further three months, the conciliation commission shall revise its proposals in the light of these further discussion over a further period of two months. These provisions shall then be incorporated into the draft constitutional settlement to be put before the people of Scotland.

10.5. Other nations opting for a change in their status through further devolution or according to federal principles will also hold referenda on their respective settlements.

10.6. The Scottish parliament shall determine the process and time-frame of drafting the Constitution of Scotland. The process may commence while discussions about the constitutional settlement are still on-going with the United Kingdom, but can only be completed after the final draft constitutional settlement is in hand, to ensure consistency between the two.

10.7. The draft constitutional settlement and draft Constitution of Scotland shall be approved by a referendum held in Scotland within six months of the adoption of the draft Constitution of Scotland by its drafting body, endorsement of the draft by the Scottish parliament and the finding of the Supreme Court according to Section 9.2, whichever is the later.

10.8. If the draft constitutional settlement and the draft Constitution of Scotland are not approved in the referendum, they shall be revised and a further referendum shall be held within 18 months of the first referendum. If the two instruments are not approved within that time-frame in a further referendum, the constitutional position of Scotland shall remain unchanged.

10.9. The constitutional settlement and the Constitution of Scotland shall enter into force 12 months after approval by referendum. The parties to this Memorandum will seek to ensure that the United Kingdom parliament will adopt all the required changes in United Kingdom law by that time. The authorities in Scotland and the Scottish parliament will ensure that all legislation and institutions necessary to operate the Constitutional of Scotland are in place.

10.10. During the transitional period, and until the constitutional settlement and the Constitution of Scotland are in force, the United Kingdom will maintain its pledge to compensate Scotland for European Union funding lost due to the departure of the United Kingdom from the European Union.

10.11. The constitutional settlement shall be reviewed by a joint expert commission of both sides every five years after the Constitution of Scotland’s entry into force. The commission may propose changes to the constitutional settlement which may be adopted by approval of both the United Kingdom parliament (Members from Scottish constituencies in the Commons and those representing Scotland in the House of Lords not participating) and the Scottish parliament. No further referendum on alternatives for Scotland shall be contemplated until three such review cycles have been completed.

10.12. During the transitional period, the other constituent nations will be invited to engage in discussions about their constitutional preference (status quo, further devolution, governance according to federal principles, or other options), paying due regard to Section 1.4 above.

Marc Weller is the professor of international law and international constitutional studies at the University of Cambridge and a barrister at Doughty Street Chambers. He is the author or editor of major works on the settlement of self-determination disputes and has over the past three decades served as senior legal adviser in many negotiations about autonomy, federal settlements or independence around the world.

© Marc Weller, 2021

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