Category Archives: Constitutional reform

James Hand: Lords response to Labour Peers’ Working Group Report – A Programme for Progress: The future of the House of Lords and its place in wider constitution.

James-Hand-140-x-150The House of Lords have recently debated the Labour Peers’ Working Group report looking at the future of the House of Lords and its place in a wider constitution. The report was published on 28th May 2014 and was generally well received by contributors from all sides during the 4 hour motion to take note. Lord Dubs, one of the authors, has set out the key conclusions of the working group here but in summary they seek to achieve in the interim a smaller House of Lords, limited to 450 members, ahead of a constitutional convention to decide on the future of the House of Lords and, potentially, other constitutional issues. The report also dealt with other matters such as recommending the final abolition of the remaining hereditary peers’ right to sit (in contradiction to the compromise in 1999 ‘binding in honour’ on those who assented that they should remain until the second and final stage of reform had taken place), ceasing to wear robes during introduction and some procedural reforms. This post, however, shall focus on two significant issues arising from the debate: the prospects for a convention and the division over the means for the reduction in the size of the House.

A constitutional convention

There has been much talk of a constitutional convention in Scotland should the Yes campaign win September’s referendum there (see e.g. Aileen McHarg’s and Katie Boyle’s blog posts) but regardless of the outcome of that referendum the constitutional position of the whole UK, and the House of Lords within it, is open to question following years of piecemeal constitutional reform. With one or two notable exceptions, there was general support among the speakers for the proposal that there should be a convention.

While the report limited the scope of the proposed convention to considering ‘the next steps on further reform of the House of Lords and any consequential impact on the House of Commons and on Parliament as a whole’ (para 3.14), some speakers took a wider approach. Lord Gordon of Strathblane, for example, endorsed the idea but held that the way European legislation was dealt with and the operation of the House of Commons would be higher up the list for consideration by such a body and Lord Norton of Louth, who had previously argued for one before with a different scope, considered that we need one ‘to help us make sense of where we are, and not necessarily to tell us where we should be going—Parliament can decide that once we have a much clearer appreciation of where we are in terms of the structures and relationships that form our constitution’ (at col 952). Only two peers from some 40 peers who spoke, expressed opposition: Lord Stephen questioned whether any convention could come up with any new answers about the Lords and Lord Howarth of Newport thought that the political parties should distance themselves but that the process ‘might valuably be undertaken by academics and think tanks, which could elucidate the issues and offer useful ideas.’ He further stated that a ‘royal commission, or a commission or convention, will get things wrong… [w]hat they recommend will be found not to work’ before going on to note to the shortcomings of the US Constitution and the 1990s Scottish Constitutional Convention (at col 959).

Significantly, both front benches spoke positively of a wider convention. Lord Hunt of King’s Heath, for the Opposition, noted that not ‘all noble Lords are in favour of such a proposal, but we cannot consider Lords reform in isolation from the many other pressing issues that we face in relation to the constitution, not least, as [Lord Maxton] said, in today’s era of new technologies, and also, as the noble Lord, Lord Phillips, said, in view of young people’s disengagement from politics’ (cols. 983-984). For the Government, Lord Wallace of Saltaire went further:

The case for a commission or convention is out there. There was an excellent report by the House of Commons Political and Constitutional Reform Committee last year which suggested that the Government have no view on this issue at present. However, personally and as a Minister, this is a question that we ought to be debating in the last year of this Parliament. I welcome what the noble Lord, Lord Foulkes, and others are doing. It is one that we all need to consider because we need to look at how all of this runs together. (col. 987)

That is not say that a convention will be immediately forthcoming as time is too short to define what is sought before the election, but that the topic of a convention is, to quote Lord Wallace, ‘precisely the sort of thing’ that could usefully be considered in the last year of a fixed-term parliament which could then be taken forward by the next government. A constitutional convention for the UK (or rest of the UK) can thus be seen to be more likely than it has been in the past.

Reducing the size of the House

There was broad agreement that the House of Lords needed to be smaller and, with one exception, that it should be smaller than the House of Commons. The Act passed in the last session (colloquially termed the Norton-Steel-Byles Act) sought to reduce membership through expulsion due to criminal offence, voluntary resignation and removing those who failed to attend any sitting during a session (the first of which is in force now and the latter two due to come into force this summer). The report proposed a more drastic threshold of 60% of sittings in a session (which they curiously refer to as an average (at para 8.11)), unless there are exceptional circumstances, and a compulsory retirement for all those who reached the age of 80 in the preceding session (at paras 8.5-8.6).

To have an arbitrary age limit cut-off is inherently discriminatory – in another context it has been described as ‘the statutory age of senility’ – and the justification is slight. Its proponents describe it as the least worst alternative. However, there was support by a number of peers for an evolution of the process that saw the hereditary peers whittled down (attributed to Billy Bragg by the Joint Committee on the Draft House of Lords Reform Bill and as, for example, written about here). Each Parliament, the parties could determine how many peers each should have (possibly based on the general or other election results, either by each election or through using a rolling average) and then elect or select within themselves which peers should remain. Lord Norton of Louth when preferring such a scheme to an arbitrary age limit noted that it ‘would enable the issue of overall size, as well as party balance, to be addressed effectively’ (col. 952). Lord Haskell appeared to prefer a one-off repeat of the Weatherill hereditary peer reduction followed by a formula allowing new peers to be allocated between the parties and the cross-benches (col 980). The proposal fared less well on the front benches. Lord Hunt of Kings Heath drew an unflattering comparison with the hereditary by-elections (where there are sometimes more candidates than remaining peers to act as electors, particularly with regard to the Labour hereditaries) and considered that the cut-off at the age of 80 was the least worst option (col. 983). Lord Wallace of Saltaire pictured ‘a wonderful series of bloodlettings within each of the two groups’ (seemingly forgetting about the Liberal Democrats and others) but, when challenged by the Earl of Sandwich, acknowledged that it was ‘one way of addressing the question of topping up after the election’ (cols 988-989).

In seeking to dismiss the concept of a modified-Weatherill approach to the question of the numbers of sitting life peers (either as a one-off or occurring each Parliament), the frontbench spokesmen appear to have overlooked a number of issues. Lord Hunt was concerned that a system that sought to replicate the general election results would be a strange basis for a distinct House. However, he fails to take account of a sizeable presence of cross-benchers (fixed in one version of the proposal at 20%) which would automatically render the make-up of the House different from the Commons. Furthermore, a system of rolling averages – to avoid temporary blips in electoral support being reflected in the less democratic, less powerful, more reflective House – could be used if a longer term view was sought or, to reflect the differences in different elections, a formula comprising local and European results instead or as well could be adopted. While such a system to reduce the peers – and in the Norton, if not Haskell formulation, keep the number in regular (and reasonably proportional) check – is derived from the Weatherill reduction of peers, to disparage it based on the hereditary peer by-elections is to ignore the differences in size of much of the electorate (there are, for example, over 200 Labour life peers (and nearly 100 Lib Dems) but they have only four sitting hereditary peers each). What would take place would not be a ‘blood-letting’ in Lord Wallace’s words but a pruning (or re-potting if former peers returned following a change in the political wind) which could take account of the age and past attendance but would do so in the round and not as an arbitrary cut-off. Such a system would allow peers to emulate the now late Lord Wilberforce, who regularly attended over 100 times a year, even when in his mid 90s, if they had valuable contributions to make while allowing others to retire if they so wished or to take a sabbatical and return if there was sufficient support amongst their colleagues. Only if there had been a large number of appointments during a session (which could be prevented by a statutory appointments commission) or there had been a radical change in support would there ever likely be a sizeable change in membership (which would be further reduced by both the option of retirement and the inevitability of death).

There seems to be near universal agreement that the House of Lords’ size needs to be constrained, not least as the risk now looms large of a ballooning house if new appointments are made to reflect changing strength in the Commons looms (as predicted by Robert Hazell & Ben Seyd and Meg Russell) even if there is not unanimity about the actual size. It would, on the precedent of the Weatherill amendment, only take a small change to legislation to bring about a system of indirect election as mooted by Lord Norton of Louth which would retain much of the existing strengths (and membership) of the House and which could act to prevent chamber-hopping (see e.g. Meg Russell’s piece from March) and allow more time for a wider-ranging constitutional convention to take place.

 

James Hand is an Associate Senior Lecturer at the University of Portsmouth

(Suggested citation: J. Hand, ‘Lords response to Labour Peers’ Working Group Report – A Programme for Progress: The future of the House of Lords and its place in wider constitution’ U.K. Const. L. Blog (29th June 2014) (available at http://ukconstitutionallaw.org/)).

 

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Merris Amos: Scotland, Independence, and Human Rights

Merris Amos.jpgIn its weighty tome, Scotland’s Future, the Scottish Government promises that at its heart, an independent Scotland will have “the respect, protection and promotion of equality and human rights.” Furthermore, this will not be just an empty gesture but will be “enshrined in a written constitution to bind the institutions of the state and protect individuals and communities from abuses of power.” The promise is also made that as an independent state, Scotland will live up to its international obligations on equality and human rights. Furthermore, protections already enjoyed will continue in a written constitution. These will include the rights contained in the European Convention on Human Rights (ECHR) but other rights will also be considered for inclusion. Specifically mentioned are the rights contained in the UN Convention on the Rights of the Child and principles designed to “deliver greater equality and social justice.” Any new rights or future changes will be developed in “full consultation with the people of Scotland”. It is also promised that Scotland will continue to have its own human rights body.

If the intention is to encourage a “yes” vote from those basing their vote for or against Scotland’s independence on human rights protection alone, this is a very good start. Leaders of the major political parties in the rest of the UK find it difficult to mention the words “human rights” let alone make promises to improve the legal protection of human rights or explore the possibility of adding new rights to those already protected by the Human Rights Act (HRA). Officially, the most recent pronouncement was from the Commission on a Bill of Rights which reported in 2013. Unable to agree on much, a majority of the Commission concluded that there was a strong argument in favour of a UK Bill of Rights which would build on all of the UK’s obligations under the ECHR and provide no less protection than was contained in the HRA. However, a different majority concluded that socio-economic rights were not something that should be included and that the present declaration of incompatibility contained in section 4 of the HRA should be retained as “there was no desire for conferring on courts a power to strike down inconsistent Acts of Parliament.” There has been very little progress on human rights law reform since.

By contrast, whilst the details are limited, the Scottish Government’s promises about human rights would address at least three of the problems with the current state of legal protection of human rights in the UK which the Commission on a Bill of Rights failed to do. First, as the Scottish Government itself recognised, whilst Scotland’s current equality and human rights framework is strong, that framework’s future cannot be guaranteed under current constitutional arrangements. The same goes for the rest of the UK. Once campaigning gets under way for the 2015 UK general election, it is likely that the repeal of the HRA will once again be a feature of the Conservative Party’s campaign as it was for the 2010 general election. Including human rights protection in a written constitution offers much more effective protection from the political winds of change than that offered by a mere Act of Parliament. Although it is likely that politicians would continue to criticise politically unpalatable judgments, such as those concerning prisoner voting, such criticism would be unlikely to be accompanied by promises to repeal or amend the constitution, particularly if the new constitution occupied a special place in the hearts and minds of the Scottish people. The experience of other countries demonstrates that including human rights protection as a key part of a written constitution also improves knowledge of and respect for human rights law, particularly if changes to present arrangements are developed in full consultation with the people of Scotland.

Second, whilst the details are not clear, it is likely that a written constitution containing human rights protection would mean that the legislation of the new independent Scottish Parliament would be vulnerable to legal challenge in the courts were it to be incompatible with human rights law. Whilst under the Scotland Act 1998 this is the situation at present in relation to the devolved legislation of the Scottish Parliament, it is not the situation in respect of the laws of the Westminster Parliament. Under section 4 of the HRA all a court can do is issue a declaration of incompatibility and wait for government, and Parliament, to change the law with all the delay and uncertainty that this entails. And finally, given the traditionally strong commitment to social justice in Scotland and willingness to include in the written constitution rights additional to those in the ECHR such as children’s rights and principles designed to “deliver greater equality and social justice”, it is likely that by contrast to the rest of the UK, human rights protection in an independent Scotland would extend to justiciable economic, social and possibly cultural rights. As appreciated during the lengthy process towards a Bill of Rights for Northern Ireland, often such rights have a more concrete meaning for people than civil and political rights and can help to muster support for human rights law generally whilst providing much needed protection for vulnerable individuals in an era of growing inequality.

Involving the people of Scotland in the future of human rights law, entrenching the outcome in a written constitution to which the legislature was subject, extending protection to economic, social, cultural and other human rights and support for a strong independent human rights commission would undoubtedly place an independent Scotland in the leading position on the protection of human rights when compared to the remaining countries of the United Kingdom. Were the HRA to be repealed following the next general election, the comparison would be even starker. But before planning a move to Scotland, it is important to be realistic about what will actually be achieved in relation to human rights protection were Scotland to achieve independence.

With a limited portfolio, it is fairly simple for the present Scottish government to be positive about human rights protection. Issues which have caused consternation for politicians at Westminster, such as the detention, control and deportation of terrorist suspects, have not arisen in the Scottish legal or political system. An independent Scotland would have responsibility for all matters including immigration and national security and much more difficult human rights questions would arise. Whilst it may be resisted, there would be a strong temptation to water down promised human rights protection in the face of public perceptions that human rights law is a “villain’s charter” an “obstacle to protecting the lives of citizens” and “practically an invitation for terrorists and would-be terrorists to come to Scotland”. Such notions have been prevalent in the UK print media over the last 14 years, including Scotland. Much initial work would have to be done to essentially rebrand the idea of human rights in the minds of the public, ensure sufficient education and promotion and encourage respect for the human rights parts of the written constitution. As the experience of other states demonstrates, the budget for an “open, participative and inclusive constitutional convention” would be considerable.

A related issue is what relationship Scottish courts in an independent Scotland would have with the European Court of Human Rights (ECtHR) when adjudicating on human rights claims. It is assumed that Scotland would be a party to the ECHR and thereby accept the right of individual petition to the ECtHR. Were the new constitution to be silent on the matter, it is also likely that Scottish judges would make full use of the jurisprudence of the ECtHR. Whilst there is considerable political mileage in the idea of a “Scottish” approach to human rights interpretation and application, which would garner respect and a margin of appreciation for Scotland before the ECtHR, again it is necessary to be realistic. It is only in a small minority of claims that there is actually room for a national approach. A recent example is the UK broadcasting ban on political advertising which was upheld by the ECtHR in Animal Defenders International v United Kingdom 2013. Other attempts to seek respect for a UK approach to human rights from the ECtHR, the blanket ban on prisoner voting for example, have not been successful.

In relation to the range of rights to be protected, it is important to appreciate that there exists a strong narrative force in the UK, and other national jurisdictions, against making economic and social rights justiciable in the same way as civil and political rights. As noted above, this was the conclusion of the Commission on a Bill of Rights and despite the promise of the Scottish government, the result of further consultation with powerful interests groups may mean that this promise is impossible to deliver. As it was for the HRA, a first step may be simply to offer protection to the rights contained in the ECHR and Protocol No.1, as noted in Rights Brought Home, the White Paper accompanying the Human Rights Bill, “ones with which the people of this country were plainly comfortable”. And finally, it is not clear from Scotland’s Future how the written constitution would limit the power of the Scottish Parliament to legislate. It is possible that human rights protection may afford Scottish judges something more than a declaration of incompatibility but less than a strike down power raising similar problems of delay and effectiveness which have bedevilled section 4 of the HRA.

Whatever the outcome of the referendum, by making the protection and promotion of equality and human rights as a part of a written constitution one of the issues for consideration, the Scottish Government has set an excellent example. Should the vote be for independence, those with the power to embrace and reform human rights law in the rest of the UK should take careful note.

Merris Amos is a Senior Lecturer at the School of Law, Queen Mary, University of London.

(Suggested citation: M. Amos, ‘Scotland, Independence, and Human Rights’ U.K. Const. L. Blog (13th May 2014)  (available at  http://ukconstitutionallaw.org/).

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Andrew Le Sueur: Imagining judges in a written UK Constitution

Andrew Le SueurThe tide of interest (among those who care about these things) in the idea of a written, codified constitution for the United Kingdom rises and falls. At the moment the tide is quite high, but certainly not high enough to flow into the estuaries of government policy making.

In 2010, Richard Gordon QC —a public law scholar-practitioner at Brick Court Chambers, London —wrote a book length blue print for a codified constitution (though expressing himself tentatively in terms of aiming to stimulate a debate). In Repairing British Politics, he rejects parliamentary supremacy as a defining principle and envisages judges having broad and deep powers to enforce the constitution. As my Essex colleague Anthony King put it in a review of the book: “By implication — and notwithstanding a passing reference to ‘the available resources of the State’— unelected judges would even have the power to order other authorities to provide citizens with the aforementioned food, water, clothing, housing and free health and social care services”.

Meanwhile, across the road at the LSE, Conor Gearty is leading a “trailblazing project that invites members of the public to participate in, offer advice on and eventually to draft a new UK constitution through crowdsourcing”. On Thursday 26 June 2014, the project will be hosting a “Constitutional Carnival”when “All those involved in the project, and many others joining for the first time, will be invited to come together to have their say on what should be included in a UK constitution”. One session will be on “Where should judges fit in a written constitution?”. It will be interesting to see what emerges.

The latest contribution to the debate comes today from the House of Commons Political and Constitutional Reform Committee, which publishes its report on Constitutional role of the judiciary if there were a codified constitution (14th report of Session 2013-14, HC 802). Chaired by veteran Labour MP Graham Allen, this cross-party select committee has been toiling away since it was set up in June 2010 “to consider political and constitutional reform, scrutinising the work of the Deputy Prime Minister in this area”. Two major planks of Nick Clegg’s agenda have fallen off the lorry since then: House of Lords reform and an alternative vote electoral system for the House of Commons. With time on its hands to mull over the bigger picture, the PCRC launched a wide ranging inquiry in September 2010 on “Mapping the path to codifying — or not codifying — the UK’s Constitution”, supported by researchers at the Centre for Political and Constitutional Studies at King’s College London. Today’s report on the role of the judiciary is one aspect of that inquiry.

The PCRC’s report starts by acknowledging that the British judiciary already have a role in relation to constitutional matters, quoting examples I gave in my written evidence:

determining legal disagreements about the respective powers of different institutions within the constitution, for example between the UK Parliament and the UK Government, or between the central and local government;

dealing with legal questions about the division of powers between the UK and the European Union, under the guidance of preliminary rulings by the European Court of Justice;

adjudicating on legal questions about the exercise of powers by executive and legislative institutions in Scotland, Wales and Northern Ireland in accordance with the devolution settlements created by the UK Parliament;

protecting fundamental rights of individuals, including those in the Human Rights Act 1998, taking into account the case law of the European Court of Human Rights. [...]

judicial review of executive action and delegated legislation, ensuring that public bodies remain within the powers conferred on them by Acts of Parliament and operate in accordance with judge-made legal principles of (for example) fairness and rationality.

The report goes on to “welcome the fact that the Constitutional Reform Act 2005 enshrined judicial independence in law”.

From there, however, the committee feels unable to say much more about what would change, in relation to the judiciary, if there were to be a written constitution:

The role of the judiciary would undoubtedly change should the UK adopt a codified constitution, but the precise nature of that change will be difficult to assess until there is an agreed definition of the current constitutional role of the judiciary. In our terms of reference we set out to explore the current constitutional role of the judiciary but this needs further work.

That’s quite right. There are a number of different ways in which the British constitution could be “written”and each model —including a non-legal constitutional code, a consolidation Act bringing together current statute law on the constitution into a single enactment, and a full blown constitution —would have different implications for the role of judges.

Having rehearsed some well trodden pros and cons of parliamentary supremacy (and whether it should or indeed could be retained in a written constitution), the PCRC expresses interest in the idea (which I share) of a “declaration of constitutionality” modelled on similar lines to section 4 of the Human Rights Act 1998, which would give courts power to declare that an Act of Parliament is inconsistent with a norm of the constitution without striking down the offending provision. It would then be left to government and Parliament to decide how to respond.

In a statement that will I’m sure provide inspiration to setters of undergraduate essay questions in years to come, the committee states “Before the UK could move towards a codified constitution there would need to be a precise definition of the ‘rule of law”’. I am not sure that is right: arguably, the committee gets this back to front. A better way of understanding the umbrella concept of the rule of law is to say that it includes what is written down in a constitution.

Sharing a view previously expressed by the House of Lords Constitution Committee, the PCRC shows little appetite courts having power to undertake  pre-enactment review of legislation. Nor is there much support for setting up a specialist constitutional court: based on the evidence received (including mine), the report concludes that “the Supreme Court could adjudicate on constitutional matters”.

All in all, it is difficult to resist the view that the PCRC’s report is a damp squib on the big issues. It offers little new on the key question of whether parliamentary supremacy could or should be retained under a new constitutional document. To be fair, it is unrealistic to expect a cross-party select committee, midway through a larger inquiry, to say much more on this contentious issue. In the press release accompanying today’s report, the committee’s chair Graham Allan is quoted as saying “The Committee expects to publish the results of its wider inquiry into codifying, or not codifying, the UK’s constitution in the summer.” Let’s see.

In my written evidence to the committee I argued for political realism in the debate about the role of the judiciary. I said that, thinking about the topic of judges in the constitution generally, it is possible to envisage a range of possible roles.

At the maximalist end of the spectrum would be a design that (for example) empowers the judges to adjudicate on the constitutionality of Acts of the UK Parliament with a remedial power to quash Acts that are incompatible with the UK Constitution; the UK Constitution might also include legally enforceable socio-economic rights (to health, housing, education and so on); there might also be ‘abstract’ judicial review of bills before they receive Royal Assent. A design of this sort would involve a shift in the balance of power to decide matters of national interest away from the UK Parliament and Government towards the courts.

A minimalist design of the judicial role in the UK Constitution would not give the courts power to quash Acts of Parliament (so preserving the existing principle of parliamentary supremacy), would avoid creating justiciable socio-economic rights (confining rights to the civil and political ones familiar from the European Convention on Human Rights currently incorporated into national law by the Human Rights Act 1998), and would not have a system for abstract judicial review of bills.

Where on the maximalist-minimalist spectrum a UK Constitution should sit has to depend on (a) efficacy and (b) political acceptability. Efficacy is concerned with what is needed, from a ‘technical’ legal perspective, for the UK Constitution to make a real improvement compared to current constitutional arrangements. Political acceptability is about being realistic as to what political elites and the general public would find attractive or tolerable.

In the current political climate it is difficult to imagine that mainstream political opinion would accept an enlargement of the role of judges in adjudicating on legal questions that relate to controversial matters of public policy. The existing powers of courts under the Human Rights Act 1998 and in judicial review claims are regularly called into question by members of the Government and have few champions within Parliament. There is little public understanding of the role of courts in these areas and the constitutional function of the judges is routinely disparaged and misrepresented in the press. This political background against which the continuing debates about a UK Constitution take place is unlikely to change in the foreseeable future. Politically realistic constitutional reformers should therefore favour a minimalist role for judges in a codified constitution and provide reassurance to sceptics and opponents of judicial power that adoption of a UK Constitution need not involve the judges in novel legal tasks.

I stick to that view. At a time when the government, including the Lord Chancellor, find judicial review of administrative action unpalatable, it is not practical politics to argue for greater powers for the UK courts to strike down “unconstitutional”Acts of Parliament. Anti-judicial review sentiments were not invented by the present coalition government. Under previous administrations, ministers did not see the point of it. In 2003, David Blunkett MP, when a minister in Tony Blair’s Labour government, captured what I sense to be the dominant view of all recent governments: “Frankly, I’m personally fed up with having to deal with a situation where Parliament debates issues and the judges then overturn them”.

Andrew Le Sueur is Professor of Constitutional Justice at the University of Essex and president of the UK Constitutional Law Association.

(Suggested citation: A. Le Sueur, ‘Imagining judges in a written UK Constitution’ U.K. Const. L. Blog (14th May 2014) (available at: http://ukconstitutionallaw.org/).

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News: The House of Commons Political and Constitutional Reform Committee Reports on Royal Consent

Parliament from river

The House of Commons Political and Constitutional Reform Committee reported on the practice of Royal Consent. Royal Consent was discussed on this blog in a post by Thomas Carter Adams. The doctrine requires the consent of the Queen, or, in some situations, the Prince of Wales, before a bill which affects their personal interests is discussed in Parliament.

Unsurprisingly, the Committee recommends that this requirement be abandoned.  The Committee – like the correspondents to the earlier blog post – had some difficulty identifying precisely what type of constitutional rule this was: whether it was an aspect of the prerogative, a rule of parliamentary procedure, or a convention.  It concludes that it is a rule of parliamentary procedure, and so falls within the province of each House of Parliament to modify or remove.  The Committee concluded that the provision could be abolished by the Houses making an address to the Crown followed by a Resolution of each House.

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Scot Peterson: Constitutional Entrenchment in England and the UK

peterson_scotFrequently people think that there are only two ways address flexibility in a constitution: to legally entrench an entire document and to protect it with strong judicial oversight, or to have a political constitution and a sovereign parliament, which, in the words of A.V. Dicey, ‘has … the right to make or unmake any law whatever….’ One aspect of this sovereignty is that parliament cannot bind itself: ‘That Parliaments have more than once intended and endeavoured to pass Acts which should tie the hands of their successors is certain, but the endeavour has always ended in failure.’

Parliament has regularly used language limiting its future options. The Bill of Rights (1688) says that the rights declared there ‘shall be declared, enacted, and established by Authority of this present Parliament, and shall stand, remain, and be the Law of this Realm for ever’. More recently, Parliament promised in the European Union Act 2011 to hold a referendum on any law that increased the competencies of the EU and put in place mechanics for holding itself accountable through judicial review. Are these attempts really as pointless as Dicey claims?

The intention of the convention parliament in 1689 was to put an end to the conflicts of the preceding seventy years (interrupted by the reign of Charles II). The more recent act, too, was a product of what preceded it. Originally the Labour government had ruled out a referendum on the Treaty Establishing a Constitution for Europe (2004), which among other things introduced new shared competencies with member states. When the press speculated about Labour’s prospects before the 2004 European Parliament Elections (June 2004), Tony Blair announced that there would be a referendum on the treaty. After the treaty collapsed (because it was rejected in France and the Netherlands), the member states entered into the Lisbon Treaty, which had many of the same characteristics as the proposed constitution. Conservatives accused Labour of inconsistency in being unwilling to hold a referendum on the Lisbon Treaty, and in their manifesto promised a referendum lock on any future transfers of competencies, so that politicians would not be able to waver for short-term, political purposes. That promise became part of the coalition agreement in 2010 and was enacted into law.

The language used by parliament in both of these cases is a commitment device. It need not even be judicially enforceable to constrain (impose additional costs on) future choices by the legislature. Public embarrassment, through a newspaper’s exposure of inconsistency, is a practical means of ensuring accountability, so long as the newspapers do their job. And, as under the Human Rights Act 1998, the legislature may permit the courts to point out, but not to correct, inconsistency with entrenched law. An overly simplistic distinction between codification and a political constitution eliminates complex differences between these tools, and wastes resources that should be available to policy makers.

Scot Peterson is the Bingham Research Fellow in Constitutional Studies and Junior Research Fellow in the Social Sciences at Balliol College, University of Oxford.

(Suggested citation: S. Peterson, ‘Constitutional Entrenchment in England and the UK’ U.K. Const. L. Blog (25th March 2014) (available at  http://ukconstitutionallaw.org/).

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Dean Knight: Report from New Zealand: MMP Review, Constitutional Review, and Legislative Disclosure

Knight - Headshot H1Some constitutional tid-bits from New Zealand from the last wee while.

Obvious developments to report on include two significant reviews of New Zealand’s constitutional and electoral arrangements:

  • the Electoral Commission’s independent review of the MMP electoral system; and
  • the Constitutional Advisory Panel’s consideration of constitutional issues.

But, sadly, neither of these look likely to led to any real change – at least in the short-term.

The one other development worthy of mention – mandatory legislative disclosure requirements designed to improve the quality of legislation – was introduced without fanfare but perhaps has greater potential for influence.

Some brief comments on the first two, along with a more detailed explanation of the latter, follow. 

A         Review of MMP: sensible suggestions forestalled

The Electoral Commission completed its review of the MMP electoral system and proposed a number of – in my view, sensible – tweaks to the electoral system that has been running for nearly 20 years in New Zealand. Amongst other things, it proposed changing the thresholds for the entitlement to party list seats (reducing the party vote threshold from 5%-4% and removing the controversial one electorate seat threshold). It also dismissed concerns about some features of MMP that had caused some public disquiet (dual electorate/list candidacy and list MPs contesting by-elections).

But any reform stalled – with the government indicating that it would not be actively progressing the recommendations, in the absence of parliamentary consensus or wide-spread agreement. Consensus or wide-spread agreement was, of course, unlikely. Changing the thresholds would be the death-knell for some smaller parties, and consequently would probably hamper the governing National party’s prospects of garnering a majority coalition at the next election. (On the stale-mate, see Geddis, “Stop Wasting Our Time” and Johannson, “National quiet on MMP changes”.) An opposition Labour MP recently had his Member’s Bill seeking to implement some of the review’s recommendations drawn from the ballot; however, it looks unlikely his Bill will have the numbers to pass.

Despite an independent review, political self-interest continues to present a barrier to updating and reforming the MMP electoral system in the light of years of practice and experience.

B         The constitutional review: a long conversation, beginning not ending

The Constitutional Advisory Panel also reported on its consideration of constitutional issues – or, rather, “The Constitutional Conversation”. Unsurprisingly it lacked tangible recommendations for reform.

The independent panel had been charged with considering a range of important constitutional issues, including a written constitution, term and composition of parliament, human rights protections, the Treaty of Waitangi and other issues relating to Crown-Māori relations.

The process of wide-spread public engagement by the independent panel was impressive, and stirred up quite a lot of activity and debate about matters constitutional. (Even, for example, a two-day workshop I was involved in, where 50 young people drafted a new constitution from scratch!) Over 5,000 submissions from a wide-range of people and groups were received.

But the Panel’s final report tended to only recount the (divided) public opinion on the issues, rather than generating concrete suggestions for reform. Firm recommendations were quite limited and process orientated:

  • the continuation of the constitutional conversation generally;
  • the inevitable call for greater civics education;
  • further work and consultation in relation to particular issues; eg, the role and status of the Treaty of Waitangi, a longer parliamentary term, and, notably, strengthening the NZ Bill of Rights Act (including socio-economic rights; entrenchment; enhanced judicial remedies).

Given the mammoth task the Panel was charged with, the diluted response was perhaps not unexpected. The government’s response to the report is due later this year.

C         Legislative Disclosure Requirements: unheralded but significant

Modest in nature, but perhaps with significant potential, one other initiative is of some constitutional interest. In the middle of last year, Cabinet quietly issued a circular on new vetting and disclosure requirements for government legislation (CO(13)3).

“The government wants to ensure that its policies get translated into legislation that is robust, principled and effective. … The requirements draw on existing expectations about what makes good legislation to:
- bring attention to specific features of a piece of proposed legislation and/or the key processes through which it was developed and tested;
- make this information publicly available in an accessible and cost-effective way; and
- thereby facilitate greater and more effective scrutiny of that legislation by Parliament and the general public.
The increased provision of information, and scrutiny of that information, is expected to improve legislative quality over time by increasing the attention given to follow good practices during the development of legislation.”

The regime builds on other legislative vetting, such as the regulatory impact analysis and reporting on consistency with the NZ Bill of Rights Act and seeks to pull together information useful to those scrutinising legislation. It includes a mixture of the elaboration of the policy objectives, disclosure of testing and analysis, and explanation of consistency with a range of standards and norms. (Compare some of the recent work proposing legislative standards for Westminster: eg, House of Commons PCR Committee “Ensuring standards in the quality of legislation” and Caird, “A Code of Constitutional Standards”.)

The norms and standards which trigger disclosure are pretty well-established and, in a large part, echo the Legislative Advisory Committee’s long-standing Guidelines on the Process and Content of Legislation. Disclosure statements, prepared by departments based on a set template, are expected to explain the policy background, set out details of consultation and testing, and report on the following matters:

  • consistency with New Zealand’s international obligations
  • consistency with the government’s Treaty of Waitangi obligations
  • consistency with the New Zealand Bill of Rights Act 1990
  • creation, amendment or removal of offences, penalties and court jurisdictions
  • privacy issues
  • compulsory acquisition of private property
  • charges in the nature of a tax
  • retrospective effect
  • strict liability or reversal of the burden of proof for offences
  • civil or criminal immunity
  • significant decision-making powers
  • powers to make delegated legislation
  • other unusual provisions or features.

Disclosure statements must be made publicly available, through a central repository, when the relevant Bill is introduced into Parliament, and later amended, if any substantive amendments are subsequently made to the Bill (see www.legislation.disclosure.govt.nz). Initially deployed under a Cabinet circular, the government’s intention is that the disclosure regime subsequently be enacted in legislation.

The disclosure regime has its genesis in a number of failed efforts to enact aggressive and enforceable legislative standards, driven mainly by the small, right-wing ACT party which is presently a member of the coalition government. It proposed a Regulatory Standards Bill, which would have seen the courts being given some powers to enforce prescribed standards (an interpretative direction similar to those found in human rights legislation, as well as an express power to issue declarations of inconsistency). However, the proposal proved controversial, particularly the loaded legislative standards proposed and judicial enforcement (see eg Ekins, “Regulatory Standards in New Zealand; Treasury, “RIS: “Regulating for Better Legislation”; Thwaites and Knight, “Administrative Law Through a Regulatory Lens”). A compromise was eventually reached where improvements would instead be made at the departmental and parliamentary level. From that came this enhanced and comprehensive vetting and disclosure regime.

Will the disclosure regime improve things though? Time will tell.

There is some reason to be optimistic. Anecdote and intuition suggest that pre-parliamentary legislative vetting pays dividends (although it is difficult to measure). And, like regulatory impact statements and Bill of Rights consistency-reports, disclosure statements will provide politicians and interested parties with ammunition against problematic legislative provisions. Witness, already, disclosure statements being deployed a number of times in the critique of Bills by parliamentarians and commentators.

But one weakness is that the disclosure regime is not directly interwoven into the parliamentary process or given institutional support within Parliament itself. Its impact would be stronger if, for example, a specialist select committee was charged with assessing compliance (much like the non-partisan and respected work of Regulations Review Committee in relation to delegated legislation). Otherwise, whether the disclosure regime improves the quality of legislation will depend whether it is taken seriously by parliamentarians and the extent to which it melds itself into the constitutional culture. Or whether it becomes merely a perfunctory, “tick-box” exercise. We will see.

Dean Knight is a Senior Lecturer in the Faculty of Law, Victoria University of Wellington, New Zealand.

 

(Suggested citation: D. Knight, ‘Report from New Zealand: MMP Review, Constitutional Review, and Legislative Discloure’ U.K. Const. L. Blog (10th March 2014) (available at: http://ukconstitutionallaw.org/)).

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Filed under Comparative law, Constitutional reform, New Zealand

Meg Russell: The Byles/Steel bill – unless amended – holds grave dangers for the Lords

Meg RussellOn Friday 28 February Dan Byles’ Private Member’s Bill on Lords reform completed its Commons passage. It is now in the Lords, and will be sponsored by David Steel. The bill, which allows retirement from the Lords and expulsion of non-attendees and serious criminals, has been presented as a small, uncontroversial “housekeeping” measure. But as already argued in an earlier blog post, as currently drafted it would in fact introduce a very major change that would alter the Lords fundamentally, and in very undesirable ways.

I will not repeat the basic arguments in my earlier post, which is still available to read (see here). But it urged an amendment at Commons report stage, to ensure that those allowed to depart the Lords (through retirement or expulsion for non-attendance) cannot immediately run for the House of Commons. Such calls were made throughout the bill’s Commons passage, but have been resisted by ministers. This is both puzzling and very worrying. It is puzzling because a ‘cooling off’ period before those departing the Lords could run for the Commons has been included in numerous earlier proposals, from the Wakeham Royal Commission to the Clegg bill (both of which are quoted in my previous post). It is worrying for reasons that I will now spell out, somewhat more forcefully than before. In the rest of this post I summarise the problem, reflect on what the Lords should do, and end on responses to some points that have been made against the change that I propose – all of them unconvincing.

The bill as drafted (clause 4(5)(b)) explicitly allows departing Lords members to run for the Commons. The problem that this creates applies not to existing peers, who presumably gave up any Commons ambitions when accepting their life peerage. It relates instead to new members appointed after the bill has passed. One of the weaknesses of the debates to date (on which more below) is that they have focused too narrowly on the likely short-term effects, in terms of how many current peers may depart – and insufficiently on the long-term effects, in terms of future appointments. But while there may be small, short-term gains through allowing a few peers to retire, the effects of the bill in the longer term would be far larger, and potentially extremely damaging to the Lords.

To illustrate, let us consider three possible candidates for the Lords once the bill has passed:

  • Candidate A has served two terms as an MP, and is appointed to the Lords in 2015 after narrowly losing his seat. He badly wants to regain his constituency, and spends much of the next five years working there, maintaining a constituency office and regularly campaigning door-to-door.
  • Candidate B has fought several Commons seats unsuccessfully in the past, and after missing out again in 2015 is rewarded with a seat in the Lords. But she still yearns after a Commons career, so seeks reselection as soon as possible, and uses the Lords to try and raise her local profile above that of the incumbent local MP.
  • Candidate C is appointed to the Lords in 2015 after many years working as an adviser to his party leader. From there he starts looking for a Commons constituency, and uses Lords speeches primarily to broadcast his suitability as a future MP, and maybe even a future leader.

Candidates A, B and C are not so very different to many who have been appointed to the Lords in the past – indeed, around 60% of current party peers are either former parliamentary candidates or MPs. The key difference is that such people currently have to weigh up carefully whether they still want a Commons career. Those in doubt will turn down any offer of a peerage; those accepting one will set other ambitions aside. I do not see candidates A, B and C as bad people who are doing anything underhand or inappropriate; it is understandable that they should see the Lords as a useful temporary resting place. Nor would their party leaders be acting improperly; indeed, it is easy to see how and why leaders would embrace these new patronage powers. The point is that the bill as it stands fundamentally changes the calculus both for those offered seats in the Lords, and for those doing the appointing. Unless the route from Lords to Commons is explicitly ruled out, people will understandably conclude that it is fine to use it. If the bill passes in its current form, please have no doubt: these changes are certain to occur.

It should hopefully already be clear what effect this would have on the Lords. Many members would become far more preoccupied with constituency business and campaigning than with parliamentary scrutiny work; many would watch far more carefully what they said, in order to appeal to the media, local voters and their party leaders; in seeking to make Lords debates more eye-catching, they would make those debates more politicised. In addition, many members would become short-term occupants of the Lords, staying only a few years before another career could be developed – with a consequent loss of long-term thinking. Should this be considered fanciful, look (as set out at greater length in my previous post) at Ireland, and more recently Canada. In Ireland chamber-hopping is absolutely the norm, and Senators (despite not being directly elected) spend much of their time on local campaigning work. Only last month I acted as an adviser to the Irish Constitutional Convention, where this problem with their parliament was much lamented.

The Byles bill has been presented as a small “tidying up” measure, but these changes would be fundamental, and major. For hundreds of years (with a couple of exceptions, discussed below) members have been able to move from Commons to Lords but not the other way around. The bill would thus change centuries of British tradition, and the consequences need very careful thinking through. It could be argued to the bill effectively ends life peerages in all but name: allowing members to depart the chamber when they wish, at any age and after any period of service. But members can de facto already do this if they really wish, simply by ceasing to turn up. The one thing that they cannot do is run for the Commons. Perhaps some see advantages in changing these historic arrangements; but if so they should make a positive case for change, out in the open, and subject to proper scrutiny. This has absolutely not happened so far.

During the passage of the Byles bill through the Commons, concerns about these matters were raised repeatedly, particularly by Conservative backbencher Jacob Rees-Mogg. In response, at second reading last October Dan Byles said that, “That is the sort of detail that I would be more than happy to discuss… and we could consider whether some small amendment might be made in Committee” (col. 1005). When a ‘cooling off’ period was specifically suggested, so that departing peers had to wait several years before running for the Commons (as was provided in clause 41 of the Clegg bill), Byles said that “I would be interested to look into whether a time bar solution could be achieved” (col. 1055). Hence it was reasonable to assume that the problem would be resolved by government-backed amendments at committee stage – but it was not. At report stage last week the concerns were repeated. Rees-Mogg proposed amendments (particularly amendment 21) to deal with them, arguing that it was “fundamentally undesirable” (col. 558) for the Lords to become a base for aspirant MPs. Dan Byles responded that “we all agree that we would not want the House of Lords to become a training ground for a seat in the House of Commons” (col. 560). Stephen Twigg, speaking for the opposition frontbench, described this as “a serious issue” and “a risk” (col. 561). The minister likewise said that “We do not want to see the House of Lords become a nursery for the Commons where young hopefuls start their careers” and claimed to “fully understand” the concerns expressed (col. 562). Nonetheless no amendment was made. Despite pressures both behind-the-scenes and in the chamber, ministers had resisted changes to resolve the problem.

These developments demonstrate in part the weakness of the private members’ bill process. The bill had its second reading and report stage on ill-attended Fridays, with little media attention. Its sole committee session lasted a mere 38 minutes. There was no pre-legislative scrutiny, no call for evidence, no opportunity for witnesses to appear, and consequently no outside group engagement. The limited time available also led to great resistance to amendments. This was worse for the Byles bill for most PMBs, due to fears that any Commons amendments would make its Lords passage more difficult. Those in the Commons were warned to stick rigidly to the contents of David Steel’s previous bill on the topic, which had passed the Lords in 2012-13. Steel’s bill had also failed to include a ‘cooling off’ period, but it was a similarly fragile creature, with fears at the time that any amendments would derail it. Yet everyone knew that its prime purpose was as a spur to government action; and once government gets involved, Private Members’ Bills inevitably get tidied up. Now, however, the original Steel bill is being treated as a kind of revered text, which cannot be altered. The deafness to argument which is occurring over this bill is a classic recipe for bad policy-making, and even for policy disaster. On such an important matter it is essential for reasoned amendments to be properly debated and considered.

So the Lords is now left in a dreadful position. Typically when a bill leaves the Commons with outstanding problems, the Lords provides the forum for them to be carefully discussed and sorted out. It would be a terrible irony if this norm was broken with respect to a policy that concerns – and indeed threatens – the House of Lords itself. But the government claims that any Lords amendments will kill the bill, due to lack of time for these to be considered in the Commons. I am reliably advised by Commons clerks that this is not actually true – while there are no Private Member’s Bill Fridays left, several tricks could be used to get necessary Lords amendments through the Commons by May if the government wants the bill. The Lords therefore should carefully consider possible amendments to deal with the problem.

Options include:

  • Inserting clause 41 of Nick Clegg’s bill of 2012, which would require a ‘cooling off’ period of 4 years (which could be amended to a longer period). This seems the preferable and least contentious solution.
  • Simply removing subclause 4(5)(b), which provides that those departing the Lords are not disqualified from “being, or being elected as, a member of that House [i.e. the House of Commons]“. This would retain the current absolute bar on future candidacies – which probably goes too far, and could create legal uncertainty.
  • Restricting retirement provisions to current peers, not new entrants. Also problematic, as pressures for retirement would recur and require further legislation. Would also need to apply to provisions for expulsion by non-attendance, otherwise this creates a loophole.
  • Restricting these same provisions to those aged over 65 (as was suggested by Jacob Rees-Mogg’s unsuccessful amendment 3 at Commons report stage for the first of the provisions). This too would be a reasonable long-term solution.

Any of these amendments would resolve a weakness highlighted by MPs and therefore be unlikely to face Commons opposition. If the Lords does amend the bill, and the government does not deploy the tactics available to get it through the Commons, it is ministers not peers who would be culpable for killing the bill. If the bill is not amended in one of these ways, my reluctant advice to peers would be to resist it.

It pains me greatly to have to suggest this latter outcome, even as a possibility. I have long argued for the next small steps on Lords reform, both publicly (e.g. here and here) and behind-the-scenes. Allowing retirement would clearly be a beneficial next step. But a conspiracy of silence to get a flawed version of retirement onto the statute book is clearly a bad idea, and the threats in the bill as it stands are far too great. I began research in this area 16 years ago precisely in order to offer objective, evidence-based advice on Lords reform. That evidence tells me that any gain from the bill as is will be relatively small, while its long-term consequences will be huge and negative. Opening up a direct route from Lords to Commons, which has been closed for centuries, would be a major constitutional and political change. If this bill is truly about “housekeeping”, then using one of the amendments above to maintain something similar to the status quo is essential.

Postscript
Finally (in a post which is already far too long) the really committed may want to hear some of the arguments which have been made against the ‘cooling off’ period, and why I believe that they are wrong:

Argument 1: Peers have been able to leave the Lords and run for the Commons before, under the 1963 and 1999 Acts.

Response: these changes occurred in very different circumstances, and only ever extended to those who had inherited their seats in the Lords (i.e. entered by accident of birth) not those who had themselves been appointed. Hereditary peers of “first creation” were not covered by the 1963 Act, while the 1999 Act was a one-off exodus. Neither implied any change to the type of people appointed.

Argument 2: The ‘cooling off’ period proposed in other packages has been in the context of election to the second chamber, not appointment.

Response: This is simply untrue. The Wakeham Royal Commission (as quoted in my previous post) was particularly strong on this point, despite proposing a largely appointed house.

Argument 3: Once in the pleasant environment of the Lords, few people will feel motivated to depart for the Commons.

Response: I believe that this argument is naive, and too influenced by feelings among some current peers. It is important to remember that those now in the Lords have – by definition – renounced the option of a future Commons career. But the bill allows people who feel very differently to be appointed, and their party leaders will be tempted to do so. It is undeniable that a Commons career remains a desirable to many people active in politics, for example promising a salary, access to senior ministers, and a chance at a cabinet career. Indeed a majority of current party peers have run (successfully or unsuccessfully) for the Commons in the past.

Argument 4: Introducing a cooling off period would deny democratic rights to people to run for the Commons.

Response: In fact, a bill with a cooling off period (of say 4, 5 or 10 years) would significantly increase freedoms beyond what they are now. Life peers have been barred since 1958 from running for the Commons (and likewise, aside from exception 1 above, this has always applied to hereditary peers). Few have complained about this restriction.

Argument 5: There is no time in the Lords to consider amendments, given that the second reading is occurring so late (28 March).

Response: It is very unfortunate that the sponsors of the bill chose a late second reading date, seemingly to procedurally block the opportunity for amendments. The Companion to Standing Orders does set down minimum time periods between stages (e.g. 14 days between second reading and committee stage), but these are only ‘recommended’, and it is not unusual for them to be breached by agreement of the usual channels. If an amendment is put down, a committee stage will be required to debate it, and one can be provided.

Argument 6: It would be better to get this bill through, and if a problem occurs to then legislate to correct it afterwards.

Response: This is a very dangerous suggestion. Once the legislation is on the statute book there is absolutely no guarantee that it can be changed. A “corrective” PMB in the next session could easily die, or indeed be blocked by ministers. Then once the route from Lords to Commons has been opened post-2015, it would probably prove impossible close it again: such legislation would appear critical of particular individuals who have taken this route, or of their party leaders; party leaders will anyway by then have adjusted to the enhanced patronage that the bill provides. Far better not to take the risk - even if this means waiting for a better safeguarded retirement provision in a future bill

Dr Meg Russell is Deputy Director of the Constitution Unit, and Reader in British and Comparative Politics at UCL. She is author of The Contemporary House of Lords: Westminster Bicameralism Revived (Oxford University Press, 2013) and Reforming the House of Lords: Lessons from Overseas (Oxford University Press, 2000), and has acted as adviser to the Royal Commission on Reform of the House of Lords, the House of Lords Appointments Commission, the Leader of the House of Commons, and various parliamentary committees.

REPOSTED WITH THE KIND PERMISSION OF THE CONSTITUTION UNIT BLOG.

Suggested citation: M. Russell, ‘The Byles/Steel bill – unless amended – holds grave dangers for the Lords’  Constitution Unit Blog (5th March 2014)  (available at http://constitution-unit.com)  OR  M. Russell,  ‘The  Byles/Steel bill- unless amended – holds grave dangers for the Lords’ U.K. Const. L. Blog (5th March 2014) (available  at http://ukconstitutionallaw.org/).

 

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Stephen Tierney: Why is Scottish Independence Unclear?

stierneyAs commentators we seem to end many of our contributions to the independence debate with the rather unhelpful conclusion that much remains, and will continue to remain, uncertain; a state of affairs accentuated by recent comments on the prospect of currency union and EU membership. This must frustrate those hardy souls who read to the end of our blogs seeking enlightenment. Perhaps then we owe readers an explanation as to why it is so hard to offer a clear picture of how an independent Scotland will be brought about and what it would look like.

In trying to envisage life after a Yes vote it is natural to begin with the Scottish Government’s White Paper published in November 2013 which, at 648 pages, cannot be accused of failing to set out the SNP’s broad vision for independence. But for several reasons we must treat this only as the start of our quest and certainly not as a definitive template for a new Scottish state.

Here are some reasons why:

1. The White Paper is selective

The White Paper is certainly comprehensive but inevitably offers if not a Panglossian then at least an optimistic picture of the future, using evidence that supports the Scottish Government’s case for economic success and relatively easy transition to statehood. Inevitably many of these claims have been subject to contestation, and since they are dependent upon varying circumstances and the cooperation of other actors, not least the UK Government, they cannot be taken to be the last word on independence.

2. Are we sure there will be negotiations?

This is surely the easiest question to answer. The White Paper not unreasonably assumes a process of mutually cooperative negotiations given the Edinburgh Agreement in which the UK and Scottish governments undertook ‘to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom.’ This has recently been restated by a UK Government minister. It can also reasonably be assumed that despite the bluster of the referendum campaign it will be in the interests of the UK to build a constructive relationship with its near neighbour. But there are still many unknowns concerning the negotiation process and its possible outcomes.

3. Who will negotiate?

On the one hand we would expect the Scottish Government to take the lead for Scotland. But let’s not forget the Yes campaign is a broader church than simply the SNP, and different contributors to this, such as the Green Party, will have their own agendas which they would seek to advance in negotiations with the UK. Furthermore, in the White Paper the Scottish Government announced that it ‘will invite representatives from the other parties in the Scottish Parliament, together with representatives of Scottish civic society, to join the Government in negotiating the independence settlement.’ (para 2.7) Who might take part, what influence would these other actors have, and how might their influence re-shape the negotiations? Also, on the UK side different uncertainties present themselves. We assume the UK Government will negotiate for the UK, but with a general election in May 2015 a new government may take a different view of the negotiation process.

4. What if negotiations break down?

An unlikely scenario but one which does add more uncertainty to the mix is the possibility of failure of these negotiations to result in agreement. If negotiations do indeed break down, what then: a unilateral declaration of independence? This possibility has rarely been considered within the Scottish debate but it would raise a new set of issues regarding both the terms of separation between Scotland and the UK, at which point international law would provide some guidance as to the default position, and for Scotland’s status internationally.

5. Will there be a deal?

We can expect a deal at the end, but in light of the ‘personnel’ issues considered at point 3 the terms of any negotiated deal are hard to predict. How many of the goals to which it aspires in the White Paper will the Scottish Government achieve, and on which issues will it have to compromise, not only with the UK but with other parties to the negotiations on the Scottish side?

6. Surely experts can predict the outcome of negotiations?

Given that a UDI is highly unlikely, as commentators we can reasonably focus upon the terms of negotiations, but here voters must be struck by how we suffix our references to the most likely outcomes by restating how many variables are at work. It is no surprise that on the various issues at stake experts will reasonably disagree about different scenarios. As commentators we also have a duty not to enter the debate in a polemical way, using expert knowledge to advance the cause of one particular side. It is important to remain objective, presenting the evidence for the different sides of each argument as best we can.

7. Clarity and simplicity are not synonyms

The subject matter for negotiations could scarcely be more complex – disentangling a state with a highly integrated advanced economy. So many issues will need to addressed together that even listing the topics to be dealt with is a difficult, and inevitably an incomplete, task: the economy, the currency, debt, welfare, pensions, oil and gas, higher education, the environment, defence, the European Union, security and intelligence, borders, citizenship, broadcasting etc. etc. Issues surrounding each of these issues will have to be negotiated. Therefore, there is reasonable disagreement among commentators about the nature of the competence which an independent Scotland would acquire in relation to each of these, and as to the prospects for some degree of on-going cooperation or union with the UK in relation to each area of competence. And even if we commentators can reach some kind of consensus about a particular issue taken in isolation we need to factor in that each is a potential bargaining chip in negotiations. There may well be trade-offs which see some aspects of the Scottish Government’s preferred model of independence subject to compromise in return for other gains.

8. It’s politics, stupid

What would make things clearer? Well the obvious solution to a lot of uncertainty would be agreement between the two governments on a range of issues ahead of the referendum. The Electoral Commission (paras 5.41-5.44) has recommended ‘that both Governments should agree a joint position, if possible, so that voters have access to agreed information about what would follow the referendum. The alternative – two different explanations – could cause confusion for voters rather than make things clearer.’

But this is not going to happen. Uncertainty among voters is an important card for the Better Together campaign. It is simply not in the political interests of the UK Government to work with the Scottish Government to clarify possible negotiation outcomes. And in any case it may not be in the interests of the Scottish Government either should such pre-referendum discussions result in stalemate, thereby serving only to heighten rather than diminish uncertainty before the vote.

9. After independence: designing Scotland’s constitution

Even if negotiations are concluded and independence formally endorsed we will not have a final picture of Scotland’s constitutional future. Scotland will not at that stage have a constitution. According to the White Paper there will be an interim period during which some form of transitional arrangement will be needed. There will then be a Scottish parliamentary election in May 2016, and only after this, according to the White Paper, will a constitutional convention be established to draft a constitution. So many of the proposals set out in the White Paper concerning Scotland’s constitution are contingent upon how this convention is established, how it will draft a constitution, what this will contain, and how it will be ratified (i.e. will it be approved by the Scottish Parliament or by way of another referendum).

And what would the institutions of government in an independent Scotland look like: will the Queen be head of state? Will there be a one chamber or two chamber parliament? Will Scotland have a new constitutional court? The Scottish Government has views on these issues but also accepts they will be for the constitutional convention to determine. And what institutional arrangements would be needed to maintain areas of cooperation or union with the UK? All of these issues will remain to be settled.

10. It takes three to tango

And of course the foregoing issues focus upon Scotland’s relationship with the UK. What of Scotland’s external relations? Issues such as state recognition; succession to international rights, obligations and treaties; and membership of international organisations, all remain to be fully worked out. And most crucially, the European Union presents two huge issues. The first is how Scotland will be admitted to membership, something which remains a focus for debate, not helped by the bizarre interventions of senior EU politicians. The second issue is surely much more salient and the source of more reasonable disagreement, namely the terms of such admission.

11. What is ‘independence’ anyway?

All of these questions raise a larger issue, namely the heavily integrated nature of the modern nation-state and the web of international relations which bind states within Europe. As the details of the Scottish Government’s proposed model of independence emerge, for example in relation to the currency, what is envisaged is in fact the continuation of important relationships with the UK as well as new and close relations with international partners. But clarity on these points is obscured by campaign gaming. The Yes side is reluctant to voice these aspirations in detail since this will invite the ‘we will never agree to that’ response which we have seen in relation to currency union. This will inevitably mean that much of the detail of what the Scottish Government aspires to will most likely remain unstated at the time of the referendum. The challenge for voters then is a broader one: it concerns how they understand the very meaning of statehood and sovereignty in today’s Europe. The reality today is that any new state emerging from within the EU and intending to remain within the EU will, by definition, instantiate a novel form of statehood which delivers independence but not separation. This, a unique state of affairs, is the factor which poses the deepest analytical challenges to political actors, to constitutional theorists and practitioners, and, since a referendum is the mechanism assigned to determine such an outcome, ultimately to voters.

Is there any point in expert commentary?

Yes of course. There are many technical issues which can be clarified. This will not fully explain how Scottish negotiations will go with either London or Brussels but it can make clearer the issues which will be subject to negotiation.

Secondly, much of the uncertainty stems from the political positions of the two sides: Better Together which does not want to suggest negotiations will go smoothly for the Scottish Government; Yes Scotland which claims that they will. However, the UK Government’s position following the hard reality of a Yes vote is likely to be significantly different from that as stated in the heat of the referendum campaign. Again academics must try to disentangle these two different positions. At the same time they can probe the viability of the claims made by the Scottish Government in its White Paper.

In the end some kind of bigger picture may emerge, albeit through a glass darkly. People when they vote will do so with two rival visions of the future in mind. These will not be perfect predictions of what either an independent Scotland or an on-going UK (we must also remember that a No vote also carries many uncertainties concerning the future) will look like in 1, 5 or 10 years’ time, but they will need to make sense to the people casting their votes. As commentators, all we can do is try to offer some objective guidance so that these visions bear closer resemblance to reality than they otherwise might. A modest aim maybe, but no one ever said constitutional change was simple.

Stephen Tierney is a Professor of Constitutional Theory at the University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law.  He is currently ESRC Senior Research Fellow under the Future of the UK and Scotland programme

Suggested citation: S. Tierney, ‘Why is Scottish Independence Unclear?’ U.K. Const. L. Blog (25th February 2014) (available at: http://ukconstitutionallaw.org/).

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Filed under Constitutional reform, Devolution, European Union, Scotland, UK Parliament

Neil Walker on Scotland: Hijacking the Debate

NeilLet me lay my cards on the table. I remain inclined to vote ‘no’ in September’s referendum. I put it no stronger than ‘inclined’ in part  because I believe, in  the spirit of democracy – even democracy referendum-style – that those of us who have not signed the party pledge should keep an open mind as long as possible. That, indeed, is one of the reasons  why,  18 months ago,  some of us set up the Scottish Constitutional Futures Forum  and its  accompanying blog. But my reservations are also partly because  recent  events  have fuelled my anxiety about  the climate in which the debate is taking place. They have made me wonder whether the case for independence is getting a fair crack of the whip on the international stage, and have caused  me to ponder the implications of lending my vote to a position that remains so reliant upon negative rather than positive arguments.

I am not talking about the shenanigans over a Currency Union. It may  be a minority position, but I believe both sides have been giving as good as they get on this question, and that neither comfortably occupies the moral high ground. There has always been something  both opportunistic and wishful in the nationalist stance. Sterling, once derided as a busted flush,  is reclaimed as a joint birthright. The Euro, once hailed  as the bright new  monetary dawn, is conveniently relegated to the status of a political  lifestyle choice rather than faced up to as an obligation of EU membership that can, at most, be  deferred.

The Unionist response may be  no more elevated  than this, but is surely ranks no lower. There is an arguable case, if a far from compelling one, that it would be in rUK’s best interest to refuse the  departing Scots a Currency Union. There are certainly risks  either way, and  rUK might well change tack in the cold light of a ‘yes’ vote. But Better Together is being no more narrowly strategic than the nationalists in arguing forcefully for the position that  best suits its immediate interests. It is a position that could backfire – may already be backfiring – as it allows the nationalists to play the victim card, and to point out that, as the residual sovereign in the event of post-yes-vote negotiations, rUK enjoys  the ‘bully’s’  advantage  of  being able to make promises  – or threats – that it can credibly deliver upon in self-fulfilment of  its prophecies and  prejudices. But in the final analysis, the Better Together position, like the nationalist one, is a democratically legitimate one. It is articulated by  elected politicians of various parties in favour of a constituency – the UK – whose  right to retain the decisive constitutional  voice is the very issue at the heart  of the referendum. And while nationalists may proclaim the inconsistency of Better Together’s new position with its previous self-denying ordnance against pre-specification of the terms and conditions of independence, they must also acknowledge that  the Unionist parties, by building a united front on sterling, have at least  answered another widely aired  doubt. For  once they have demonstrated their ability to get their act together and find common voice when it really matters.

The issue of democratic credentials, however,  brings me directly  to the point of my comment: namely that other awkward union, the European Union, and the position of Jose Manuel Barroso, President of the European Commission, on the subject. Barroso has previously given strong indications of where he stands, so perhaps we should not be too surprised by his remarks on the BBC’s flagship Andrew Marr Show last weekend. The novelty of his latest contribution may only have been one of emphasis, but the tone was nevertheless striking. Apparently the prospects of membership for an independent Scotland, never untroubled in his perspective, are now to be assessed as  “extremely difficulty… If not impossible.”

These remarks have been well publicised. Predictably, they have been seized upon by Better Together as vindicating their long-standing scepticism about an independent Scotland’s EU future, and as further evidence of the emptiness of nationalist promises. But why should anyone listen to Barroso on this topic?  Does he have a legitimate political voice in the debate? Does he speak from a position of legal authority?  Or, regardless of his political or legal standing, does he simply have a good insider argument, and one that we should heed? The answer, on all three counts, would seem to be ‘no’. Why is this so, and why is it important to the integrity of the debate that the kind of intervention Barroso has sought fit to make should be challenged?

First, there is the question of legitimate political voice. Barroso is not an elected politician. One upon a time he was. Between 2002 and 2004 he was Prime Minister of Portugal. Since then he had done two stints and ten years as the unelected President of the European Commission. His position, which he will vacate this year, does depend upon that of two elected institutions – on the  Council ( made up of nationally elected politicians) which proposed him, and on the European Parliament which  was required to approve  his appointment.  Under new rules introduced by the recent Treaty of Lisbon, the appointment of his successor will be subject to an additional  indirect democratic check – namely the requirement that his or her nomination by the European Council should ‘take account’ of the results of the latest European Parliamentary elections. In fact, the last European elections in 2009 already saw a move towards an overtly political style of appointment, with Barroso the chosen candidate of the   European People’s Party.    But none of these developing procedures and practices can make an elected politician out of an unelected public servant. Barroso has no popular mandate, and perhaps some sense of that lay behind his protestations to Andrew Marr, rendered not a jot more credible by their repetition,  that his words did not constitute an attempt ‘to interfere’ in a matter of internal Scottish and British politics.

But even if Barroso represents no electoral constituency, does he, as head of the Commission, nevertheless possess a clear legal authority, or even a duty,  to step into the Scottish debate? The Commission certainly has an extensive legal remit. According to Article 17 of the Treaty on European Union, it ‘shall promote the general interest of the Union’.  Yet in so doing we should understand the Commission’s  role as servants of the Treaty framework rather than its master. Article 17 continues by specifying the Commission’s role in ways that reflect and confirm its status  as  the EU’s  administrative college. Its responsibilities are largely downstream. They include the monitoring of the  application of European law, the performance of various budgetary, management, executive and management functions, as well as the power to initiate ( but not decide) legislation under the Treaties. In all of this the Commissioners, including the President, like civil servants everywhere, are charged to act independently of external influence.

None of this suggests any stand-alone authority for the Commission or its President on the high political question of new membership, except insofar as this is directly specified in the Treaties. But if we look at the relevant provisions  – Article 49 on accession and  Article 48 on  the alternative route of general Treaty revision – the standing of the Commission is a distinctly modest one. As regards accession, its role is only one of consultation, with the key decision-making reserved to the European Parliament and the Council. As regards general Treaty revision, the Commission is one of a number of institutions that may make proposals, but here the decisive voice lies squarely with the national governments.

If the Commission does not command a central  legal role in these matters, should we not nonetheless be prepared to listen carefully to the views of its President simply as an expert in Union-craft -  as someone who has the knowledge and experience gained from a decade of independently ‘promoting the general interest of the Union’? Absolutely. Of course we should! The snag  here is  that the President has chosen to say nothing worth saying – nothing that would draw upon a considered sense of that general interest,  but instead restricts himself to well-worn  prognostications about what others  might do in pursuit of their particular interests. He trades on the symbolic authority of his position to do nothing more than profound than  recall that the reception of an independent Scotland into the European Union, whether through the  Article 49 route that he envisages, or through the relatively  ‘seamless’ Article 48  route that the nationalists argue for, would  require the approval of all 28 existing member states; and then to advise that this is an arithmetically formidable threshold, especially given the reservations of certain member states about independence movements in their own backyards – a caution that, as Barroso proceeds to reminds us,  has led Spain, concerned with Catalonian and Basque claims, even to refuse to permit a precedent as distant as the recognition of Kosovo as an independent Balkan state.

What is glaringly absent from the debate, both in the  knowing buck-passing of Barroso’s intervention and in the broader silence of the EU’s main movers and players on the Scottish question, is the articulation of any kind of public philosophy that would provide good reasons, rather than simply motivations of base political self interest, why an independent Scotland should or should not be welcomed with open arms. How, precisely, is the EU, still  resolved by common commitment of the member states in the preamble to the Treaty on European Union ‘ to  continue the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen in accordance with the principle of subsidiarity’, to justify the exclusion of an independent Scotland? Why should  a country of 5  million citizens, who  have also been EU citizens for 40 years and who have expressed no desire to leave the European Union, be treated less  generously than the 110 million new EU  citizens – over 20% of the EU’s total population – who have joined from Central and Eastern Europe since 2004? Why should Scottish citizens instead be placed in the same category of Kosovo, or any other  potential candidate from beyond the Union’s distant borders?

The point in posing  these rhetorical questions is not to suggest that the propositions they contain will simply collapse under the weight of their own absurdity. For there  may well be a principled case to  make  against automatic and accelerated membership of an independent Scotland. We find the embryo of such a case, for example, in the analysis of Joseph Weiler, the current President of the European University Institute in Florence. He has argued, with special  reference to the Catalan case,(see http://www.ejiltalk.org/catalonian-independence-and-the-european-union/) that just as national minorities in existing member states who presently enjoy extensive forms  of individual and collective freedom have no  automatic right to secede as a matter of general international law, so, too, the  European Union in its accession policy should not be expected to indulge the independence claims of these unoppressed sub-state nations.To the contrary, the very ethos of integration, reconciliation and continental solidarity that has fed the European project from its post-War beginnings, according to Weiler, should lead  the European Union to take a dim view of any separatist impulse that seems to betray these very founding virtues. From this perspective, therefore, far from having a stronger claim than those external candidates  who have benefited from the post-Cold War Enlargement, those nations already comfortably nested in the EU’s Western European heartland  of multi-level governance should be promised no safe European haven if they insist on the path to independence.

I happen to disagree with both the specific thrust and the wider implications of the  Weiler thesis. To begin with, and most narrowly, even if Weiler’s reasoning is applicable to the situation of Catalonia, where no constitutionally permissible route to referendum and independence is presently countenanced at the level of the wider Spanish state, the Scottish case  is quite different. Here, the Edinburgh Agreement reflects the preparedness of the UK’s flexible constitution to accommodate the prospect of independence. So for the EU to set its face against Scottish independence would be  to dismiss the significance of the member state’s own recognition of the legitimacy of secession.  Secondly, and more broadly, whether we are dealing with the  Scottish or the Catalan case or that of any other national minority, surely more store than Weiler allows should be set by an aspiring nation’s own sense of what is the constitutionally adequate vindication of its desire for collective autonomy. If nothing short of independence is deemed adequate from the perspective of the constituency in question as an affirmation of shared political identity, it is difficult to see why such a subjective  aspiration should be dismissed in favour of a supposedly objective  standard of adequate individual and collective freedom. Thirdly, even if a special case for the EU  as an entity possessing and pursuing a unique historical mission to make internal secession both unnecessary and unacceptable can  be advanced,  it seems unduly dogmatic to use this to justify a rigid policy against  continued membership of new internal states. There are, after all, other and rival views of the deeper purpose of the European Union. The priority given in the Preamble to the TEU to the principle of subsidiarity has already been mentioned, and this surely reflects an alternative  and more independence-friendly perspective. In the face of these competing narratives, should the public policy of the EU on accession not remain more agnostic?

Whether or not my arguments convince, they surely serve to demonstrate  that the EU’s accession policy is and always has been intimately linked to the deep purposes of the world’s first supranational polity, and to ongoing debate, inevitably controversial, over what precisely these deep purposes demand.  It is, therefore, a matter that  requires reasoned public argument and justification of the sort that Weiler attempts rather than a mere weighing of the strategic ‘private’ preferences of national parties. Yet all we get from Barroso is the latter. Not only is this less than we might expect from someone committed to the general interests of the Union, but it also allows the prejudices of national parties to be entered to the calculation without the embarrassment of a first person airing.

In a nutshell:  If any of the key players on the EU stage is opposed to Scottish membership then they should either show the courage of their convictions through a discourse of public justification linked to the interests of the Union as a whole  or, failing that,  they should at least be prepared to declare their intentions to act out of national self-interest. Barroso’ s intervention allows a significant oppositional note to be struck without either of these tests of public candour being met. The danger increases that our independence debate become hijacked to poorly specified and undefended external considerations. That surely is bad news for anyone interested in the referendum as a means to the long-term, widely accepted  resolution of our national conversation.

Neil Walker is Regius Professor of Public Law and the Law of Nature and Nations at the University of Edinburgh.

Suggested citation: N. Walker, ‘Hijacking the Debate’ Scottish Constitutional Futures Forum Blog (18th February 2014) (available at: http://www.scottishconstitutionalfutures.org) or N. Walker, ‘Hijacking the Debate’ U.K. Const. L. Blog (18th February 2014) (available at: http://ukconstitutionallaw.org/).

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Nick Barber: After the Vote

Nick1At 650 pages Scotland’s Future  is not a light read.  It stands as the Scottish Government’s manifesto for a yes vote in the independence referendum.  The volume ranges from profoundly important questions relating to currency and Scotland’s membership of the European Union, right down to weather-forecasting and the future of the National Lottery.  Though it is likely many copies of Scotland’s Future will be printed, it is unlikely many will be read from cover to cover.  Its authors probably do not regret its length: by its very heft, the volume seeks to rebut claims that the consequences of independence have not been carefully thought through.  This post considers the immediate constitutional consequences of a yes vote in light of Scotland’s Future.  Its central argument will be that the timescale proposed by the Scottish Government for independence following a referendum is unrealistic, and may work against the interests of an independent Scotland.

Scotland’s Future sees a rapid move to independence after the vote.  The referendum will be held on the 18th of September 2014, and negotiations with the UK and the European Union will start shortly after.  The Scottish Government foresees that these negotiations will be completed by March 2016, 18 months later, and has picked 24th March 2016 as the day on which Scotland will become sovereign.   The first elections in an independent Scotland will be held on 5th May, 2016.  This is the date on which elections for the Scottish Parliament are to be held under the current devolution settlement.

So the key dates are:

18th September 2014: Referendum

 7th May 2015: Likely Date of General Election in United Kingdom (including Scotland)

 Early March 2016: Agreement between UK and Scotland, and between European Union and Scotland

24th March 2016: Independence for Scotland (via Acts of the UK Parliament and Scottish Parliament)

 5th May 2016: Elections to Scottish Parliament

There are two groups of negotiations that Scotland will need to engage in before March 2016: with the UK and with the European Union.  Each of these will be considered in turn.

Negotiations with the UK

The first question to be asked is who, exactly, will negotiate on behalf of the two territories.  The answer for the Scottish side is comparatively easy.  The Scottish White paper specifies that there will be a ‘negotiating team’ appointed, which will be led by the First Minister and include members from a number of political parties in Scotland and ‘public figures’ (p.72).  The Scottish Parliament will scrutinize the process as it progresses – a scrutiny that may complicate matters if, or rather when, difficult concessions need to be made.

Whilst there are still questions to be answered about the composition of the Scottish negotiating team – about the manner of their selection, approval, and, indeed, how this group of previously antagonistic politicians will manage to work as a ‘team’ – these can probably be resolved relatively quickly.  The United Kingdom’s representatives may prove harder to organise.  The principal, but not sole, reason why this may prove tricky is the General Election that will be held in May 2015.

The United Kingdom’s 2015 General Election is likely to impact on negotiations in a number of ways.  First, it makes it unlikely that much serious negotiating will be undertaken in the period between the referendum and the election.  The politicians responsible for the negotiations are likely to be distracted.  The Coalition Government will probably become weaker and more fragmented as the Conservative and Liberal parties seek to present distinct political identities to the public.  It will become steadily more difficult for the UK Government to act in a coherent manner. The looming election will also make meaningful compromise harder: no English politician will want to be seen making concessions to Scots just before an election.  But even more importantly, it will be the 2015 General Election that will determine which party, or parties, will lead the negotiations.  Whilst the negotiators for the UK are likely to be drawn from across the party spectrum, negotiations will be led by a representative of the governing parties: the Prime Minister will probably assume ultimate responsibility for the process.  Furthermore, just as the Scottish Parliament will review and, ultimately, approve the agreement on the Scottish side, the UK Parliament will play a similar role on the UK side.  Under our existing constitution, the final decision about Scottish independence rests with the UK Parliament, which will confer sovereignty on Scotland through a statute.  The agreement reached between the Scottish and UK negotiators must be one each Parliament is willing to endorse.  The political complexion of the 2015 Parliament may, then, be crucial in shaping the course and outcome of negotiations.

The 2015 General Election may raise further difficulties for the course of the negotiation.  Whilst it would make sense for negotiations to be held between Scotland and the remainder of the UK (that is, the UK less Scotland), no such constitutional entity exists.  The UK side of the negotiations will – nominally – include Scotland.  The 2015 UK Parliament will still represent, and sometimes legislate for, the whole of the UK.  The 2015 UK Government will still be responsible for the well-being of the whole of the state.   This will not prove a significant problem if the 2015 election produces a Government with a majority in England.  Then these constitutional conundrums can be ignored: Scottish MPs will have only limited impact in the UK Parliament, and negotiations can continue as if the UK representatives acted for those parts of the Union outside of Scotland.  Far more difficult, though, if after the 2015 election Scottish MPs hold the balance of power in the House of Commons. It could be that, for instance, Labour will gain a majority of seats in the Commons because of the support of Scottish Labour MPs.  If so, the conduct of the UK side of the negotiation may be partly, if indirectly, determined by Scottish MPs, and the product of the negotiations may require the support of Scottish MPs to become law.     And this balance of power would, of course, provide a further incentive for the UK representatives to slow down the pace of negotiations: once Scotland became independent, Scottish MPs would cease to sit in the UK Parliament.  If the governing party required the support of these MPs for its majority, it would lose control of the Commons and could, potentially, either be compelled to stand aside or hold a further election.

Perhaps in response to these worries the SNP has suggested that the UK General Election be postponed for a year.  This is a constitutional possibility, though a tricky one.  Postponing the election would require Parliament to repeal or circumvent the Fixed-term Parliaments Act 2011 and the support of the Commons alone would not be enough as the bill could still be vetoed by the House of Lords.  Parliaments have extended their own lives in the exceptional circumstances of World War I and World War II, but it is doubtful that the Scottish independence referendum – important though it is – presents a crisis of this intensity.  Furthermore, even if the General Election were postponed by a year, there is no guarantee that negotiations would be concluded within this timeframe.

A second reason why the negotiations will probably take longer than the Scottish Government hopes is that the UK side lacks an incentive to speed the process along.  Reading Scotland’s Future it is hard not to be struck by how many issues will need to be negotiated.  Once negotiations start, Scotland will be dealing from a position of comparative weakness.  The two things that Scotland will need in order for independence to be a success in the short and medium term – use of sterling as a currency and membership of the European Union – are both in the gift of the UK.  The UK ought to conduct negotiations in a positive and generous manner – it is in everyone’s long-term interest that Scotland becomes a prosperous and stable country after independence – but it should also ensure that the result protects the interests of those UK citizens outside Scotland.  Scotland’s Future proposes that the Bank of England will become Scotland’s lender of last resort, set the interest rates for both Scotland and the remainder of the UK, and determine monetary policy for the area.  Scotland would then require a share of ownership and control over the Bank.  Though Scotland’s Future suggests otherwise, it is likely that a corollary of this is that a great deal of financial regulation will also be undertaken at the British level: if the Bank of England is to act as lender of last resort, it will also want to have some control over financial regulations that mitigate the risks run by Scottish institutions.  Whilst the Bank of England might be the most important institution an independent Scotland would hope to share with the rest of the UK, it is not the only body that SNP plans to retain.  The Scottish white paper also suggests that around 30% of cross-border bodies will continue to provide services in Scotland (p. 363): once again, Scotland will wish to exercise a share of control over them.     Though it is plainly in the interests of Scotland to retain the pound and make use of the Bank of England and these other bodies, it is harder to see why it would be in the interests of the remainder of the UK to allow this.  Allowing Scotland a share in control of these bodies will reduce the control that citizens of the UK can exert over them: it is an open question why the UK should, or, more importantly, would, accept such a limitation on its sovereignty.  The two key cards held by the Scottish negotiators – allowing nuclear weapons to remain in Scotland and taking a share of the national debt – will need to be judiciously played.

Scotland’s negotiating position will be further harmed by its commitment to a rapid agreement.  The remainder of the UK could happily continue negotiating for years, Scotland’s Future proposes an agreement within 18 months.  Deadlines can be a useful part of a negotiating process, but only if both sides agree to adhere to them.  If – as is probably the case – an agreement takes longer to reach, the Scottish Parliamentary Election of 2016 presents a further challenge.  It is the looming presence of this election that may explain the SNP’s desire for a hasty settlement.  The 2016 election could complicate matters by returning a different government to Scotland – perhaps even a government that no longer supported independence.  This might provide an incentive for the UK negotiators to delay an agreement, hoping, perhaps, for an easier negotiating partner.  On the other hand, this risk may induce the Scottish team to make concessions to secure a quick agreement.

Negotiations with the European Union

In the previous section I noted that Scotland’s membership of the European Union would depend, in part, on the support of the UK.  The UK – like all other members of the EU – would possess the power of veto over Scotland’s application.  It is not in the UK’s long-term interests to deny Scotland membership of the EU, but its support cannot be assumed: Scotland’s membership of the European Union will be an important part of the negotiating process.

The relationship of a newly independent Scotland to the European Union is far from clear.  Whilst there was some early talk that Scotland would automatically become part of the EU on independence, Scotland’s Future accepts that there will need to be an amendment of the treaties for Scotland to join.  The normal processes through which a country applies for membership of the EU are found in Article 49 of the Treaty on European Union.  Scotland’s Future argues that this would be an inappropriate process to impose on Scotland, contending that Scotland, and its people, are already within the Union.  If Article 49 were insisted upon – either by the EU institutions or by any of the Member States – it seems that Scotland would have to gain independence before applying to join.  There would then be a problematic gap between independence and membership of the EU.  Scotland’s Future contends that, instead of Article 49, Article 48 would be the more appropriate mode to amend the Treaties to enable Scotland’s membership.

It is worth looking at Article 48 in a little more detail.  It reads, so far as is relevant:

 Article 48:

 1. The Treaties may be amended in accordance with an ordinary revision procedure. They may also be amended in accordance with simplified revision procedures.

Ordinary revision procedure

 2. The Government of any Member State, the European Parliament or the Commission may submit to the Council proposals for the amendment of the Treaties. These proposals may, inter alia, serve either to increase or to reduce the competences conferred on the Union in the Treaties. These proposals shall be submitted to the European Council by the Council and the national Parliaments shall be notified.

3. If the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the proposed amendments, the President of the European Council shall convene a Convention composed of representatives of the national Parliaments, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area. The Convention shall examine the proposals for amendments and shall adopt by consensus a recommendation to a conference of representatives of the governments of the Member States as provided for in paragraph 4.

The European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene a Convention should this not be justified by the extent of the proposed amendments. In the latter case, the European Council shall define the terms of reference for a conference of representatives of the governments of the Member States.

4. A conference of representatives of the governments of the Member States shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to the Treaties.

The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.

5. If, two years after the signature of a treaty amending the Treaties, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter shall be referred to the European Council.

 Scotland’s Future claims that this process could be undertaken and completed within 18 months.

A number of points arise out of Article 48.  The most striking point is that, on the face of it, Article 49 would appear the more appropriate mechanism for Scotland’s application.  Article 49 deals with new countries wishing to join the EU, Article 48 relates to treaty amendments that alter the powers of the EU. Even if Article 48 is used, however, it is likely that the process of treaty amendment would still be a lengthy one.

First, the Scottish Government would have to secure the competence to negotiate with the EU, and perhaps other Member States, from Westminster.  Second, the Scottish Government, whilst Scotland was still a part of the United Kingdom, would have to persuade the Council that it was entitled to make use of Article 48, despite Article 48 being confined to governments of Members States.  Then, thirdly, preliminary negotiations would begin with the European institutions, and Member States, before a formal proposal was presented to the Council.  Fourthly, the Council, in its turn, would then send the proposal to the European Council (comprising the Heads of State of the Member States and the President of the European Council) and notify the European Parliament.  Fourthly, if a majority of the European Council were disposed to consider the amendments further, the proposal would be put to a Convention or directly to a Conference consisting of representatives of the governments of Member States.  The former, the Convention, is used if the amendments seem of wide significance, and would require assembling representatives from a broad range of institutions to deliberate and debate the proposals.  The latter, the Conference, can be engaged directly if the reforms are more limited.  It is likely that Scotland’s application – which would affect the composition of the European Parliament, the Commission, and the Court – would require the summoning of a Convention.  In any event, the proposal would then have to be agreed by a Conference of representatives of the governments of Member States.  Fifthly, and finally, the amendments would then have to be ratified by those Member States.   This would probably require a referendum in France and perhaps in some other states too.  Most Member States would require that the amendments be ratified by their legislatures before becoming effective. Then – after the amendments had been ratified by all of the Member States – Scotland would be able to join the European Union.

The last paragraph made for heavy reading.  I do not claim to be a specialist in European Law, but to assume that the Article 48 procedure could be completed within 18 months seems laughably optimistic:  three or four years seems a more plausible timeframe.  Even this makes a number of assumptions.  It assumes that the difficult issues that Scotland must negotiate are quickly agreed.  It assumes that other countries – in particular Spain – do not block or slow Scotland’s application.  And it assumes that the EU is willing to undertake a discrete treaty amendment process to speed Scotland’s membership – and does not seek to include Scotland in the next round of EU expansion.

Whilst the timeframe of Scotland’s Future is unrealistic, it is highly likely that Scotland would be able to join the EU before 2020.  It is in no-one’s interest to exclude Scotland from the Union.  If, as is almost certainly the case, Scotland cannot complete the Article 48 process before the 2016 deadline, it is conceivable that some sort of international agreement could be reached between Scotland and the EU to preserve Scotland’s legal position.  Perhaps Scotland would then be treated a little like Norway: possessing many of the privileges and duties of EU membership, but not able to return MEPs to the European Parliament or appoint Commissioners.

Conclusion

The contention of this post has been that the timescale set by Scotland’s Future is unrealistically tight, and likely to harm Scotland in a number of ways.  There would be benefits to a slower process of negotiation, one which was planned to last four or five years.  Aside from giving Scotland more leeway in negotiations with the UK and more time to allow the treaty amendment process to run its course in Europe, this would also permit Scotland to start the process of formulating a new constitution prior to independence.  Scotland’s Future proposes that a Constitutional Convention be held sometime after the first elections in 2016, following independence.  But if Scotland waits for independence to begin this process it is likely that many of the fundamental aspects of the new Scottish Constitution will have been settled – Scotland’s currency, aspects of its economic policy, and its relationship with the EU are only the most obvious of the questions that will have been resolved by this point.  Other matters that a Convention might want to consider – the role of the Queen and the continuation of the Human Rights Act, for example – will already be part of Scotland’s provisional constitution, and may prove hard to shift.  There is a danger that, like Israel before it, Scotland will find it easier to muddle through with this provisional constitution rather than produce a fresh constitutional document.

Finally, a benefit of running these three processes in parallel is that a further referendum could then be held prior to independence. This second referendum would stand as a ratification of the agreement with the UK (a ratification that, the Constitution Unit argues, is needed to approve the deal), as a vote to join the European Union, and, finally, as an approval of Scotland’s new constitution.  Each of these three issues presents a strong argument for a second vote.

Nick Barber is University Lecturer in Constitutional Law at Oxford University, and a Fellow of Trinity College, Oxford. 

Suggested citation: N. W. Barber, ‘After the  Vote’  U.K. Const. L. Blog (14th January 2014) (available at  http://ukconstitutionallaw.org).

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Filed under Constitutional reform, Devolution, European Union, Scotland, UK government