Category Archives: Scotland

Mark Elliott: A “Permanent” Scottish Parliament and the Sovereignty of the UK Parliament: Four Perspectives

MarkThe Report of the Smith Commission for Further Devolution of Powers to the Scottish Parliament has been published. It contains an array of significant proposals concerning the devolution of further authority to the Scottish Parliament. Stepping back from the detail, however, it also contains two — related — proposals that are potentially of constitution significance in bigger-picture terms.

In his foreword, Lord Smith writes:

The Scottish Parliament will be made permanent in UK legislation and given powers over how it is elected and run. The Scottish Government will similarly be made permanent.

In the report itself, these ideas are fleshed out (slightly) in the following terms:

UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions.

The report goes on to say that:

The Sewel Convention will be put on a statutory footing.

Viewed from a purist legal-constitutional perspective, these statements promise more than they can deliver — but, this post will argue, this does not necessarily diminish their significance.

Can the UK Parliament relinquish its authority?

Saying (as the report does) that UK legislation “will state” that the Scottish Parliament and Government are permanent institutions is not the same as saying (as the foreword does) that the Scottish Parliament “will be made” permanent. An Act of the UK Parliament might say that the Scottish Parliament is permanent, but that will not necessarily make it so. This follows because, at least on an orthodox analysis, the UK Parliament is incapable of legally diminishing its sovereign authority.

The point was well made by Laws LJ in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151. The focus in that case was upon the relationship between EU and UK law, which raised questions about whether the European Communities Act 1972 (“ECA”) was in any sense entrenched, so as to make it capable of prevailing over other, including subsequent, legislation. Laws LJ thought not:

Whatever may be the position elsewhere, the law of England disallows any such assumption. Parliament cannot bind its successors by stipulating against repeal, wholly or partly, of the ECA. It cannot stipulate as to the manner and form of any subsequent legislation. It cannot stipulate against implied repeal any more than it can stipulate against express repeal. Thus there is nothing in the ECA which allows the Court of Justice [of the EU], or any other institutions of the EU, to touch or qualify the conditions of Parliament’s legislative supremacy in the United Kingdom. Not because the legislature chose not to allow it; because by our law it could not allow it. That being so, the legislative and judicial institutions of the EU cannot intrude upon those conditions. The British Parliament has not the authority to authorise any such thing. Being sovereign, it cannot abandon its sovereignty.

Laws LJ went on to suggest that the ECA was a “constitutional statute” and was for that reason immune from implied repeal, but that is a distinct matter (to be considered later). Questions about the status of the Scottish Parliament clearly arise in a context different from that which applied in Thoburn, but they raise comparable fundamental issues. If the UK Parliament were legislate to the effect that the Scottish Parliament “is permanent”, the implication would be that the UK Parliament had become incapable of abolishing the Scottish Parliament. Equally, if the Sewel Convention — which provides that the UK Parliament will not normally legislate on devolved matters absent the consent of the relevant devolved legislature — were “put on a statutory footing”, the implication would be that the UK Parliament was legally disabled from legislating on devolved matters absent such consent.

However, orthodox constitution theory — as the dictum above from Thoburn indicates — suggests that any statements along these lines that were inserted into a UK statute would not be legally binding. Because, “[b]eing sovereign, it cannot abandon its sovereignty”, any provision in legislation purporting to limit the UK Parliament’s capacity to legislate would be ineffective: it would constitute an attempt to do the one thing that a sovereign legislature cannot do.

Viewed, then, through a purist legal-constitutional lens, the promises concerning a “permanent” Scottish Parliament ring rather hollow. However, three alternative perrspectives yield rather different conclusions. The remainder of this post will attempt to do no more than briefly sketch those three alternatives in increasing order of potential legal significance.

Political considerations

The first possibility is that UK legislation providing for a permanent Scottish Parliament and placing the Sewel Convention on a statutory footing would be politically but not legally significant. In other words, they would constitute a crystal-clear commitment on the part of the Westminster Parliament to desist from interfering in Scottish devolved affairs. Importantly, however, on an orthodox legal analysis, this commitment would amount to an undertaking not to exercise sovereign authority that would persist in Westminster, as distinct from something that would detract from that sovereign authority. An analogy may be drawn with section 4 of the Statute of Westminster 1931, which provides that:

No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof.

The effect of this provision was not to legally disable the UK Parliament, as a matter of UK constitutional law, from legislating for Dominions against their wishes — but, as Lord Denning MR observed in Blackburn v Attorney-General [1971] 1 WLR 1037, ‘Freedom once given cannot be taken away. Legal theory must give way to practical politics.’ A similar point might be made in relation to devolution, its technical legal reversibility being eclipsed by the political difficulty — if not impossibility — of putting the devolution genie back in the bottle.

Contingent entrenchment

Second, it may be possible for a provision in a UK statute that sought to secure the permanence of the Scottish Parliament to be entrenched contingently rather than absolutely. In other words, rather than attempting absolutely to prevent future UK Parliaments from acting inconsistently with such a provision (by abolishing the Scottish Parliament), an attempt might instead be made to stipulate conditions that would have to be fulfilled before the permanence provision could be overridden. For instance, a requirement of a special (e.g. two-thirds rather than simple) majority or a special form of words (e.g. express rather than implied) might be required. However, the possibility of such contingent — or “manner and form” — entrenchment is not firmly established as a matter of UK constitutional law. Some cases — including Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151 and Ellen Street Estates v Minister of Health [1934] 1 KB 590 — pour cold water on the idea. Other decisions, however, are more sympathetic, certain of the Law Lords’ speeches in Jackson v Attorney-General [2005] UKHL 56, [2006] 1 AC 262 being cases in point.

If contingent entrenchment were deemed possible, then interesting questions would arise concerning how far this idea might be pressed. Could, for instance, the Westminster Parliament contingently entrench a provision guaranteeing the permanence of the Scottish Parliament on the basis that such a provision could not be overridden or repealed unless a condition requiring the Scottish Parliament’s consent were fulfilled? This would technically amount to contingent entrenchment — it would be a condition capable of being fulfilled, thereby leaving open the theoretical possibility of abolition — but it would amount to a condition so hard to fulfil and so unlikely to be fulfilled as to disclose an effective diminution in Westminster’s authority. This, in turn, raises questions about whether any theory of contingent entrenchment would admit of conditions outwith the control of the Westminster Parliament (compare, e.g., special-majority requirements and requirements concerning referendums or the approval of an external institution).

Constitutional statutes and common-law constitutional values

A third possibility is that the courts might regard a provision stipulating that the Scottish Parliament was sovereign to be a “constitutional” provision. (The courts might instead regard the whole of the UK Act concerned to be a constitutional statute, although, as David Feldman, “The nature and significance of ‘constitutional’ legislation” (2013) 129 LQR 343 shows, the notion of constitution provisions as distinct from statutes makes more sense.) Applying the kind of approach advocated in Thoburn and in R (HS2 Action Alliance) v Secretary of State for Transport [2014] UKSC 3, [2014] 1 WLR 324, this would suggest that the provision in question would enjoy a superior legal status to ordinary statutory provisions. However, at least in its current state of development, the notion of constitutional legislation (or provisions) appears to suppose that any such special status amounts in practice to nothing more radical than immunity from implied repeal. This hardly suggests that characterising the permanence provision as a constitutional one would confer significant legal (as distinct from political) security upon the Scottish Parliament.

However, one of the significant aspects of the analysis in HS2 (about which I have written at greater length here) is that attention was paid to the relationship between constitutional values and statutory constitutional provisions. In HS2, the constitutional fundamentality that was ascribed to Article 9 of the Bill of Rights 1689 was said to derive not from the fact that the Bill of Rights was a constitutional statute, but from the normative significance of the value codified by Article 9. The Supreme Court therefore doubted whether the ECA 1972, notwithstanding that it has been characterized as a constitutional statute, would prevail (absent express provision) over the value codified by Article 9.

Viewed from this perspective, a provision in a UK statute stipulating the Scottish Parliament’s permanence might equally be considered to be a codification of the underlying constitutional value of the autonomy and enduring nature of devolved institutions. Significantly, HS2 contemplates the possibility that not all constitutional values and provisions might be equal, and that some might be deemed to enjoy a deeper level of fundamentality than others. A statutory provision guaranteeing the permanence of the Scottish Parliament might well fall into such a category — and, if it did, it might turn out that the practical consequences of its inclusion in such a category went beyond mere immunity from implied repeal. Whether any constitutional value is so fundamental as to be wholly beyond disturbance by Westminster is, of course, an unresolved matter — but the possibility of such a super-fundamental category of values is of a piece with oft-cited judicial assertions in Jackson to the effect that rule-of-law requirements such as the availability of judicial review may point towards in extremis limitations upon the UK Parliament’s authority.

It is of the essence of our unwritten constitution that we cannot predict with certainty how constitutional crises that test the limits of legislative authority will play out. However, it is fair to say that our courts are sketching a constitutional order that is increasingly normatively rich, and which forms an increasingly hostile environment for an unreconstructed notion of the sovereignty of the Westminster Parliament.  It would be foolish to assert with certainty that if a future UK Parliament were to renege on the settlement proposed by the Smith Commission, it would — as a matter of law — be able straightforwardly to do so. It would, however, be equally foolish to assert that courts would stop in their tracks a UK Parliament that wished to proceed in such a way. Traditional analysis holds that the hard edges are knocked off the legal doctrine of parliamentary sovereignty by means of recourse to political constitutionalism. However, as I have argued elsewhere, the relationship between merely political and more fundamentally constitutional forms of restraint requires further exploration. There are, arguably, points at which the distinctions between legal, political and constitutional forms of restraint begin to break down — and the more fundamental the norm at stake, the greater is the stress under which such distinctions are placed.

Against this background, the proposal to legislate for restraints upon the UK Parliament — so as to attempt to secure the permanence of the Scottish Parliament — is intriguing. One way of understanding the proposal is as a tacit acknowledgment that reliance upon political restraint in Westminster is no longer perceived — from a Scottish perspective — as sufficient, and that the sort of harder, legal dividing lines familiar in federal systems are regarded as necessary. The difficulty is that grafting such an approach onto a system premised upon the sovereignty of a central legislature is far from straightforward. This problem, however, is one that stems from an understanding of the UK constitutional system that may be getting past its sell-by date.

Viewed in this way, the proposals of the Smith Commission harness what might, in time, turn out to have been the dawn of a new era of constitutionalism in the UK: one that is not content to rely purely upon political constitutionalism as a means by which to contain the potential for excess implied by legislative supremacy, but which instead invokes the constitution itself — in potentially legal as well as political guise — as a vehicle for supplying such restraint. It follows that while, from an orthodox legal-constitutional perspective, guarantees as to the Scottish Parliament’s permanence contained in a UK statute would not be worth the paper they were printed on, it should not be taken for granted that that perspective is the right one from which to attempt to gauge the political or legal implications of what is being proposed.

Mark Elliott is Reader in Public Law at the University of Cambridge. He can be found on Twitter as @DrMarkElliott. This post first appeared on Mark’s blog, Public Law For Everyone

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Stephen Tierney: Is a Federal Britain Now Inevitable?     

stierneyThe Smith Commission Report issued today promises a restructuring of the United Kingdom which may prove to be more significant than the devolution settlement of 1997-98 itself; the acquisition of extensive tax and welfare powers would make Scotland one of the most autonomous regions in western Europe.

Notably the UK’s economic and fiscal coherence has hitherto been a key factor in allowing the asymmetrical and ad hoc nature of devolution to embed itself without any great disruption to the constitutional structures of the central state. With the dismantling of this system it seems that a tipping point might well be reached for our lop-sided and messy system of territorial government. The Smith Commission proposals, if implemented, will have knock-on consequences for several fundamental features of the UK constitution: parliamentary supremacy, the idea of the House of Commons as a national chamber for Britain, possibly the nature and composition of the House of Lords, and the relative freedom of the UK Government in its dealings with the devolved executives. It is perhaps ironic therefore, but I believe also inevitable, that a process which was designed studiously to avoid the federal question will now bring federalism to the table as possibly the only medium term solution to the deep imbalances which will come with further, radical powers for the Scottish Parliament.

How Does Smith Raise the Federal Question?

Federalism has rarely been seen as an attractive option by the British political class, and its feasibility as a constitutional project for Britain is certainly not beyond question. But some kind of federal solution will surely be needed to deal with two related issues: the extent to which Scotland’s representation within the House of Commons, so far only marginally affected by devolution (reduced from 72 to 59 by way of the Scotland Act 1998 as amended), will appear ever more anomalous as the Scottish Parliament’s powers expand; and the very real risk that as Scotland becomes ever more detached from Westminster, the Union will become largely irrelevant to many Scots. The latter is far more dangerous since it could well mean that Scottish independence is in the longer term now more rather than less likely. If this is true the unionist parties, which make up the majority of the Smith ‘Commission’ (which was in reality an inter-party bargaining group), risk seizing defeat from the jaws of referendum victory.

Viewed in this way it is not too dramatic to say that federalism may become the last throw of the dice for the Anglo-Scottish union: serving both to manage relations between a hollowed out central state and its nations/regions, and giving Scotland a sense of purpose in union as well as a sense of strength in autonomy.

I have discussed the inadequacy of the Smith process elsewhere. I won’t dwell on that issue here except to observe that once again, as in 1997-98, the UK has embarked upon a radical reorganisation of territorial authority on the hoof, formulating powers for Scotland without a broader conversation about what this will mean for the wider UK or for how Parliament functions.

But while from the perspective of ‘winning’ the referendum there was arguably a political imperative to set up Smith (see The Vow), this does not change the fact that the exclusion of the rest of the UK from its deliberations makes little sense. While independence is arguably a unilateral decision, further devolution for Scotland is not, and surely cannot be dealt with only by Scottish politicians determining simply what Scotland wants. The UK Government itself recognised this in 2012. It ruled out a multi-question referendum which would include a third option of ‘devo-more’ on the basis that further devolution would have to be discussed and negotiated across the UK; there was certainly sense to this. But on 18 September this was precisely the alternative to independence which was offered to voters. The Vow in effect meant that those voting No were not choosing the status quo but instead were signing a blank cheque for the as yet unformed Smith Commission.

Leaving process and principle to one side, the substantive consequence of this is that we have yet another asymmetrical process that promises to transfer more and more powers to the Scottish Parliament, making an already very lop-sided system of territorial decentralisation ever more so. On this basis the Smith report can only be a proposal. The UK Government will surely only agree to the increased powers for the Scottish Parliament it recommends if the whole package works to the advantage of the rest of the UK, for example by reducing or removing the perceived Scottish subsidies contained within the Barnett formula. The Smith Commission attempts to answer the Scottish question; but in doing so it in fact also raises the British question: how will the institutions of the British state adjust both to manage these new powers and to deal with the issue of fair representation across the state?

Federalising Britain: Correcting the ‘Representation Deficit’

There is much confusion about what federalism is, partly because of a failure to distinguish ‘federation’, which is often used to provide a very strict definition of the institutional nature of a federal state, from ‘federalism’ which is a much more flexible term, capturing what Daniel Elazar calls the inter-related ‘self-rule’ and ‘shared rule’ dimensions of territorial relations within a state.

From this perspective we can see the lop-sidedness of UK devolution as being all about the grant of ‘self-rule’ with very little focus upon ‘shared rule’; dispersing power to the Scotland, Wales and Northern Ireland without also binding them closely within the institutional structures of the central state. This is in effect a ‘representation deficit’ and Smith indicates that steps must be taken to avoid devolution falling further into the black as it were. The radical levels of tax devolution which Smith presages must be accompanied by a reimagining of the place of regions and nations within the decision-making bodies of the central state. This is needed both to correct unfairness within the system (for example a now more stark West Lothian issue) and to stem the pathology of a slow descent towards independence which might result from a system that offers detachment without any correlating integration.

Here are four questions which must now be answered after Smith:

  • Can further devolution be proposed only for Scotland, without provoking decentralisation across the UK?

An issue that accompanies the lop-sidedness of devolution is its strong asymmetry; what I have called double asymmetry: only some parts of the state are devolved, and those which are have very different models of government.

Each of these two features is likely to change. There are now proposals for strong devolution for Manchester. Attempts by the Blair government to promote a regionalist agenda fell flat but a new agenda, focused also on cities, which promises powers over areas such as housing, transport and economic development might be bolstered also by representation for English cities and regions in a revamped House of Lords (discussed below). Another incentive for regional powers could well be the sense that a Scottish Parliament with tax powers might use these to gain different forms of competitive advantage which should be countered within English regions. There is no mention of English devolution in Smith but it is now on the agenda.

If the powers of the Scottish Parliament increase, Wales will no doubt lobby for further competences if the current trajectory of Wales tracking Scotland’s growing autonomy continues. Federalism does not require symmetry, but in the past ten years we have seen Welsh devolution move closer to the Scottish model and this trend could well continue.

  • Can powers be taken away from Westminster with no impact on how Westminster is composed or how it operates?

Immediately after the referendum David Cameron tied new powers for Scotland to a concomitant recalibration of the powers of Scottish MPs at Westminster. This was shot down immediately by the Labour Party and the Prime Minister back-tracked. But it appears increasingly that this was a tactical retreat. The West Lothian question cannot be avoided; apart from anything else it will be an issue at the General Election next year. This need not mean an English Parliament but it will require a revision of the role of Scottish MPs at Westminster, perhaps along the lines of the McKay recommendations.

Another proposal, which would go some way to deal with the representation deficit, is reform of the House of Lords. Ed Miliband in his speech to the Labour Party conference in September 2014 suggested a new chamber of the nations and regions of the UK. This idea was earlier advanced by Gordon Brown. This would only be feasible if accompanied by meaningful devolution to English regions and cities and again it is not mentioned in Smith. But such a reformed chamber could offer a genuinely union-focused institution at the centre of the state, pushing back against the relentlessly fissiparous trajectory which Smith alone might otherwise deliver.

  • Can the Scottish Parliament become one of the most powerful sub-state legislatures in the Western world with no formalisation of the competence limits between it and Westminster?

Another dimension typical of a federal system is that both the central and regional tiers of government have constitutionally-demarcated spheres of operation. The reassertion of parliamentary supremacy in, for example, the Scotland Act is another way in which the UK has hitherto looked non-federal. But Smith now proposes that the Scottish Parliament be made ‘permanent’ (para 21). Such a move would presumably also extend to the prohibition of removal of its powers without the Scottish Parliament’s consent: Smith confirms that the Sewel convention will be put on a statutory footing.

There are various ways in which this could be done. One is of course a self-conscious reconstitution of the state – reforming the state’s rule of recognition around a new foundational document: a Liberal Democrat report has called for ‘a declaration of federal union’. But this is surely unnecessary. Some arrangement analogous to the European Communities Act 1972, but building in more explicit self-limitations on Parliament’s powers, would no doubt satisfy those who want guarantees of Scottish home rule, without dealing with the kompetenz-kompetenz issue which is still left open post-Factortame. This seems to be what Smith envisages in providing that its permanence will be guaranteed by ‘UK legislation’ (para 21). Another related way to do this would be through a new Act of Union or Acts of Union passed in parallel by the two parliaments. Technically it could be argued that each could be open to repeal (s37 of the Scotland Act 1998 would need to be taken into account), but by another reckoning such a double endorsement could take on an unsettled constitutional status as did the 1706/07 Acts, at least as viewed within the Scottish legal system. Smith also refers to the ‘sovereign right of the people of Scotland to determine the form of government best suited to their needs’ (para 20); again, if any such reference were to be included in the preamble of a new statute, this would add considerable weight to the constitutional status of legislation designed to ‘entrench’ the Scottish Parliament.

  • Can a territory enjoying such a delegation of powers continue to interact with Whitehall on the basis of informal and discretionary arrangements?

Another area which has been lacking is any formalisation in the ways in which sub-state executives interact with the UK government. So far devolution has worked through very informal arrangements through the Joint Ministerial Committee system, supported by Memoranda of Understanding and supplementary ‘concordats’. If the Scottish Parliament is empowered to set radically different fiscal and welfare priorities this could put great strain on the system and some form of formalisation may well be needed. This is recognised firmly by Smith. Lord Smith himself in his foreword to the Report asserts that ‘weak inter-governmental working… needs to be fixed. Both Governments need to work together to create a more productive, robust, visible and transparent relationship.’ This is fleshed out in Pillar 1 of the Report which calls for the ‘urgent’ reform of the JMC and a new Memorandum of Understanding to formalise inter-governmental (and inter-parliamentary) relations and open them up to ‘much stronger and more transparent parliamentary scrutiny’ (para 30). The proposals extend also to the area of UK relations with the EU. Smith recommends that Scottish Ministers be ‘fully involved’ in agreeing the UK position in EU negotiations relating to devolved policy matters, that they be consulted before final UK negotiating positions relating to devolved policy matters are fixed, and that devolved administration ministers be allowed to speak on behalf of the UK in Brussels in certain circumstances (para 31).

These measures could also help resolve the representation deficit by again giving Scottish (and surely the other sub-state governments) a clearly demarcated say in setting central government policy priorities in areas of shared concern. Certain issues could be unpalatable for some, for example giving the regions effective veto powers in relation to certain matters, perhaps exercised through the reformed second chamber (a measure that would require amendment to the Parliament Acts). But powers of this kind may be needed to give the union a real sense of meaning to those on the periphery.

Federalism: Feasible Within our Unwritten System?

To conclude, the federal idea is a more open canvas than the term ‘federation’ would suggest. It is flexible and open to a range of institutional possibilities; arguably it does not even require full-blown codification through a new foundational document. Indeed, it seems to me that the UK has been on a federal trajectory at least since 1998 and that Smith can be seen as another stage, albeit a dramatic one, on this incremental journey. But a number of important changes do seem likely to accompany a significantly strengthened Scottish Parliament. For example, we may well see a demand for regionalism in England, a recalibration of the House of Commons, and possibly also radical reform to the House of Lords. Efforts to make the Scottish Parliament permanent will take on a federal perspective, seeming to limit Westminster’s supremacy in this sphere at least; if this occurs a concomitant formalisation of respective executive powers also seems likely as Smith suggests.

Such reforms would both extend and crystallise the ‘self-rule’ dimension of a federalising UK while also offering institutional corrections to the representation deficit. Whether all of this will create a stronger sense of partnership and a renewed sense of belonging to a common union we simply don’t know, but without such a broader set of reforms the Smith process may well further unsettle the union it was intended to save.

 

Stephen Tierney is Professor of Constitutional Theory in the School of Law, University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law. ESRC Senior Research Fellow, ESRC Centre on Constitutional Change

Suggested citation: S.Tierney, ‘Is a Federal Britain Now Inevitable?’ (27th November 2014) (available at http://ukconstitutionallaw.org).

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Stephen Tierney: Solomon Grundy Does Constitutional Change: The Smith Commission Timetable to Transform the Scottish Parliament

stierneyIn the month of November the Smith Commission is set to draw up the most significant programme of constitutional change for the United Kingdom since 1998. Already the period within which citizens could submit their views on this process has passed; the Commission having set a deadline of 5 p.m. on 31 October.

Such a rapid process runs counter to both the due diligence that is surely needed before any decision is taken to restructure the UK tax (and possibly welfare) systems so radically and the due process which ought to accompany such a seminal constitutional development. Unfortunately the principles of deliberative constitutional decision-making and popular democratic engagement which figured strongly in the recent independence referendum are unlikely to gain much traction in the current rush to change.

The referendum campaign was indeed a remarkable period of citizen empowerment. The turnout of 84.7% is only one dimension of this; in a deeper way many citizens were greatly invigorated by the referendum and the role they had in discussing and ultimately in making such a huge decision. The Smith Commission process, by contrast, bears all the hallmarks of a return to elite-led constitutional change; and it is deeply ironic that the impetus for such a rapid and party-led process should be the independence referendum itself. As the 18th of September approached and the polls seemed to tighten, the leaders of the main unionist parties issued ‘The Vow’, promising more powers for the Scottish Parliament and setting out a firm timetable for change.

The day after the referendum Prime Minister Cameron announced that Lord Smith of Kelvin would oversee a process to take forward these commitments, and Lord Smith announced details of the Commission only four days later, on 23 September. The five main parties (Conservative, Greens, Labour, Liberal Democrats and SNP) each appointed two members to the Committee and they rapidly formulated their individual submissions to it (each party had submitted its views by 10 October). On 3 October the public and civil society were invited to give their views, all to be done by the end of that month. This leaves only one month for the Commission to consider all of this material and to produce a cross-party Heads of Agreement by 30 November, with a view to a new draft Scotland Bill by 25 January. This is an astonishingly speedy programme. The UK constitution which has evolved slowly over centuries now faces a potentially open-ended overhaul by means of a Solomon Grundy timetable.

My first set of objections are less of principle and more of prudence. Due diligence surely demands a thorough process to assess the practicalities and implications of changes that pose very real challenges to the UK’s economic and financial integrity. It is not enough to make policy decisions and then complete an assessment of how these can best be operationalised later; the operational difficulties which present themselves in a practical review of their feasibility are themselves crucial in informing policy in the first place. The devolution of extensive tax and welfare competences within such a highly integrated state requires to be tested for their impact both on Scotland and on the rest of the UK. Tax powers were extended to Scotland by way of the Scotland Act 2012 following a much longer and more detailed review. The Calman Commission met for a year and its proposals were extensively debated in both the Westminster and Holyrood parliaments. Even then, the most important tax powers enacted in 2012 (which will in all likelihood pale into insignificance in light of the Smith recommendations) will not be in place until 2016.

The Smith timetable is also odd given that we are heading towards a UK general election. Indeed the plan is to put the Smith proposals on hold after initial agreement is reached and draft legislation prepared, with legislative implementation intended to follow after the election. But surely it makes sense to wait until the election is over before even the decisions of principle are reached. The Smith Commission is of course the result of the political commitment made in The Vow, and for political reasons the parties feel the need to move fast. But this does not seem to be a prudent or a principled way to make such huge decisions. The general election provides an entirely credible reason to set deliberation back until next year. By any measure it is better to do things correctly than to do them quickly. Instead we will have a hastily produced policy decision made by party bartering; the subsequent legislative process will serve merely to implement rather than fully deliberate on the wisdom of the proposed reforms.

And then there is the issue of due process. As a point of democratic principle fundamental constitutional change should be open, inclusive and deliberative if the people of Scotland, and more pertinently the people of the rest of the UK, are to consider it legitimate. This is no small matter. Regardless of how popular the changes prove to be or how well they work in practice, the health of democracy depends as much, if not more, upon the propriety and legitimacy of the process by which they are effected.

The bigger picture is of course the UK constitution as a whole. The Smith Commission is concerned only with additional powers for the Scottish Parliament. But is it feasible to address this issue alone without also considering the knock-on consequences for the entire country? For example, one element of The Vow was to make the Scottish Parliament ‘permanent’, but how could such a constitutional guarantee be made without significant changes to parliamentary sovereignty, the very basis of the British constitution?

More broadly, we were told that further devolution could not be an option on the referendum ballot paper because it was a UK-wide issue, and yet here we are. Already the West Lothian Question has re-appeared as a counterpoint to more powers for Scotland. Should decisions be taken on radical tax powers for Scotland without advance notice of whether, and if so how, these powers may lead to a significant loss of influence for Scotland at Westminster? We also don’t know if this process might prompt a strong campaign for an English Parliament within the UK system, further devolution for Wales and Northern Ireland, a re-worked system of intergovernmental relations, potential issues of compatibility with European Union law (something which Smith says it will address), and even moves to some kind of quasi-federal system, possibly involving a realignment of the House of Lords as a chamber of the nations and regions of the UK, a point raised by Ed Miliband in his speech to the Labour Party conference in September 2014. Scots should know whether the price of more powers will be a radically new constitutional structure within which the position of Scotland is in some ways marginalised. Instead, the Smith Commission in its media statement of 22 October, its last before it went into lockdown to produce its final proposals, asserts both that its proposals should ‘[n]ot be conditional on the conclusion of other political negotiations elsewhere in the UK’, and ‘[n]ot cause detriment to the UK as a whole nor to any of its constituent parts’. There is simply no guarantee that such a unilateral process will not have detrimental consequences for the UK as a whole or its constituent parts, including Scotland itself.

Given the importance of the issues at stake, what then of the democratic credibility of the process? Does the Smith Commission really offer scope for proper deliberation at either elite or popular levels? Deliberative democracy remains a recent and developing turn in political theory, but if we are to try to identify a principle that unites deliberative theorists across a very wide spectrum of differing approaches it is that decision-making is best made in an open and reflective manner, where participants listen as well as speak, and in doing so are amenable to changing their positions.

It is not impossible for the Smith Commission to conduct itself in such a way but the fact that its membership is open only to political parties and the limited time it has been set to reach an outcome makes reflexive deliberation very difficult. Indeed, when we see the proposals submitted to Smith they are largely the well-established positions of the political parties and not the result of any independent or cross-party review. There will of course be give and take in a process of inter-party bartering, but is this the type of democratic deliberation to which post-referendum Scotland aspires?

All of this suggests the need for restraint; for the two governments to set up a much more inclusive and wider-ranging review over a much longer period of time which can be conducted in a more independent way, relatively free from party political horse-trading. Such a process would be able to take the views of many people across civil society as well as assess the interests which are likely to be affected by the devolution of extensive tax and welfare powers; it would also consider the full implications of such changes for the UK as a whole.

In light of this recent experience why not see the referendum as the first step in a new endorsement of popular politics? The post-referendum environment offers the chance to re-engage with a public which is better educated about, engaged with and enthused by constitutional politics than ever before. There have been many experiments in popular deliberation across the world in recent years which have served to give people a meaningful say both in framing major constitutional issues and in making decisions upon these issues directly. To step back and explore such avenues would be no retreat from the democratic will of the people; on the contrary, such an engagement would help fulfil the democratic promise of the referendum.

 

Stephen Tierney is Professor of Constitutional Theory in the School of Law, University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law.

Suggested citation: S.Tierney, ‘Solomon Grundy Does Constitutional Change: The Smith Commission Timetable to Transform the Scottish Parliament’  (31st October 2014) (available at http://ukconstitutionallaw.org).

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Sionaidh Douglas-Scott: British withdrawal from the EU: an existential threat to the United Kingdom?

Sionaidh-Douglas-Scott-avatar-1409859580-96x96The Conservative party’s proposal to repeal the Human Rights Act (and their proposal’s many faults) has already been well documented. However, as Roger Masterman has already pointed out on this blog, ‘It seems unusual then, that the target of Grayling’s indignation is the supposed denial of supremacy caused by the non-binding influence of decisions of the European Court of Human Rights, rather than the more realistic (though perhaps equally problematic) assertion that legal competence has been ceded in some way to the Court of Justice.’ But the European Union is very much a target of indignation for conservative and other eurosceptics, and David Cameron has promised, if re-elected, an in-out referendum by 2017, if the terms of Britain’s EU membership cannot be renegotiated. With UKIP support gaining in the polls, pressure is growing on other parties to support an EU in-out referendum. There is a realistic prospect that the UK may leave the EU.

There are many arguments that can be made as to why the UK should remain within the EU. This posting addresses just one: the serious constitutional consequences for both the constituent parts of the UK, and the UK as a whole, should there be a ‘Brexit’. Given that the UK has just survived perhaps the most serious threat ever to its constitutional existence, in the form of a very closely run Scottish referendum on independence, and given the fervent and almost desperate nature of the ‘Vow’ made by all three party leaders to accord greater powers to Scotland if necessary to maintain the Union, the risk of such further constitutional instability should be taken seriously.

At first it might seem that Scotland’s ‘No’ vote for independence would lessen the chance of EU secession, given the relatively greater pro-EU vote in Scotland (‘relatively greater’ because UKIP did gain one constituency in the Scottish European parliament elections of 2014). How each constituent part would vote is not certain, but according to 2013 House of Commons figures, 53% of Scots said they would vote to stay in the EU, compared with a third who said they would vote to leave. This was in contrast to attitudes in England, where 50% said they would vote to leave the EU compared with 42% who would vote to stay in. At the last European Parliament elections in May 2014, UKIP gained the largest percentage of votes in the UK overall, with 27.5%, but in Scotland only 10.46% of the vote. Furthermore, EU regional funding tends to benefit Scotland, Wales and Northern Ireland more than it does England. Wales and Northern Ireland are net recipients from the EU Budget, and in particular, Northern Ireland stands to lose significant sums if the UK withdrew from the EU. Likewise, to the extent that the devolved nations have access to EU institutions in areas of devolved competence, they enjoy an international presence that would be difficult to replicate through country-specific diplomatic missions. So there are distinct advantages to be lost by an EU exit.

However, the relatively lower eurosceptic vote in the devolved nations would not make a great impact on an EU in-out referendum overall, given that (according to the Office for National Statistics) the population of the devolved nations eligible to vote is small compared to that in England. How much does this matter? It matters a great deal if the vote in the devolved nations is of a less eurosceptic complexion than the English vote in an EU in-out referendum.

Destabilising devolution

It is with the devolution settlement itself that an EU exit would wreak the most havoc, risking a constitutional crisis. Both the European Convention on Human Rights (ECHR) and EU law are incorporated directly into the devolution statutes in Scotland, Wales and Northern Ireland. For example, section 29(2)(d) of the Scotland Act 1998 (SA), provides that Acts of the Scottish Parliament that are incompatible with EU law or with ECHR rights are ‘not law’. Section 108(6) Government of Wales Act 2006 states that any act of the Welsh Assembly incompatible with EU law or the ECHR, falls outside its competence. Section 24 of the Northern Ireland Act prohibits any legislation contrary to EU or ECHR law.

Therefore, although the Westminster Parliament may repeal the Human Rights Act 1998 or the European Communities Act (ECA) 1972, this would not bring an end to the domestic incorporation of the ECHR or EU law in devolved nations. It would still be necessary to amend the relevant parts of devolution legislation. But this would be no simple matter and could lead to a constitutional crisis. Although the UK Parliament may amend the devolution Acts, the UK government has stated that it will not normally legislate on a devolved matter without the consent of the devolved legislature. This requires a Legislative Consent Motion under the Sewel Convention. However, the devolved legislatures might be reluctant to grant assent, especially as one feature of the ‘Vow’ made to the Scottish electorate was a commitment to entrench the Scottish Parliament’s powers, thus giving legal force to the Sewel Convention. So the need to amend devolution legislation renders a UK EU exit constitutionally highly problematic.

Should devolved nations be able to host separate referenda?

Would it be possible for the devolved nations to demand their own referenda in the event of a Westminster mandated EU in-out referendum? In the frenzied last days before the Scottish independence referendum, there was talk of moves towards a ‘federal’ UK. This does not seem very likely now, and whatever recommendations the Smith Commission will deliver later this year (which are likely to include more financial, welfare and taxation powers for the Scottish Parliament) they are unlikely to include greater autonomy in foreign affairs. However, as many areas of EU competence are devolved matters, and continued Scottish membership of the EU was a concern in the event of Scottish independence, the matter is likely to be of great interest in Scotland. Notably, between the 2015 UK general election and the promised 2017 EU in-out referendum will come another election – the 2016 Scottish parliamentary elections. The SNP may perform well in that election, bolstered by the 45% vote in the independence referendum and progress toward ‘devo max’. In which case, the Edinburgh government – which is generally of a more pro-European and social-democratic hue than Westminster – might call for a new independence referendum if there were a serious prospect of a 2017 referendum leading to a UK EU exit, presenting such a further independence referendum as Scotland’s means of remaining within the EU. And given this change of circumstances they might gain over 50% of the vote. This would not find favour in London, which would almost certainly not accord a repeat referendum the sanction of legitimacy accorded to the 2014 vote. However, regions have been willing to go ahead with referenda even without a constitutional sanction – such as Catalonia this November.

In the face of such a prospect, should a potential EU in-out referendum be required to take on a different constitutional form to past UK-wide referenda? Should a requirement be set for a majority of exit votes in each of the devolution jurisdictions before UK withdrawal is possible? Or perhaps each of the devolved nations should be able to hold its own in-out referendum, and a ‘federal’ standard set whereby UK withdrawal is only possible if a majority of the devolved nations vote to exit? 

Scotland and the sovereignty question

A British exit from the EU is sometimes justified in terms of the maintenance of parliamentary sovereignty, which presently must concede the supremacy of EU law (acknowledged both in ECJ caselaw such as Costa v ENEL, and s 2(4) ECA). However, the Diceyan orthodoxy of parliamentary sovereignty has never held as much weight north of the border. In the 1953 case of MacCormick v Lord Advocate in the Court of Session, the Lord President, Lord Cooper, (a former Conservative and Unionist politician and eminent legal historian) contested the Diceyan orthodoxy thus:

‘The principle of the unlimited sovereignty of parliament is a distinctively English principle which has no counterpart in Scottish constitutional law….Considering that the Union legislation extinguished the parliaments of Scotland and England and replaced them by a new parliament, I have difficulty seeing why it should have been supposed that the new parliament of Great Britain must inherit all the peculiar characteristics of the English parliament but none of the Scottish parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the parliament of England.’

Linda Colley’s well-known work, Britons: Forging the Nation, reminds us that both the British state and the British national identity were ‘forged’ by the Acts of Union of 1707. The United Kingdom is only 300 years old, not an ancient natural phenomenon, and it may be undone. Given that the Union of 1707 brought into being the British state, ought we not give this historical event of the Acts of Union its due as a keystone of the British constitution, rather than the Diceyan mantra of parliamentary sovereignty? In which case, perhaps we should recognise that the British constitution is not simply the English constitution, and that Scottish constitutional principles (and Northern Irish, and even now nascent Welsh – given the recent ‘Welsh Bye-laws case) play their part in a multiple constitutional order, and may be of particular salience at times of crisis or ‘constitutional’ moments, such as the issue of whether to withdraw from the EU. Scottish intellectuals, lawyers and politicians of many different political persuasions stand by an indigenous Scottish tradition of popular sovereignty that is claimed to date back to the Declaration of Arbroath in 1320. They hold that, before the 1707 Act of Union, sovereignty resided in the Scottish people – and that it still does so, in spite of the claims of Diceyan parliamentary sovereignty.

Many Scottish unionist politicians accept the doctrine of Scottish popular sovereignty. It was this doctrine that pervaded the Claim of Right for Scotland in 1989, which was signed by the great majority of Scotland’s MPs and many of the leaders of Scottish civil society. The draft Constitution for an independent Scotland, published earlier his year, stated that ‘the fundamental principle’ that ‘the people are sovereign…resonates throughout Scotland’s history and will be the foundation stone for Scotland as an independent country’.

Therefore, meditation on the entirety of the Union, and its constitutional basis, poses the question of whether, at least in Scotland, the doctrine of popular sovereignty might form the basis of Scotland’s own right to determine whether or not it exits the EU. If Scotland chose to remain, and England to leave, the scope for constitutional crisis would be extreme.

Impact on Ireland and the Northern Ireland peace process

Lastly, the impact on the island of Ireland of a UK exit from the EU should be considered. It could well be source of great instability. Although Ireland itself is clearly a separate state, and has long since left the UK, it is nonetheless in a somewhat different relationship to the UK than the other current 26 members of the EU. Section 2(1) of the Ireland Act 1949 (the British Act of Parliament passed to deal with the consequences of the Irish Republic of Ireland Act 1948) declared that, even though the Republic of Ireland was no longer a British dominion, it would not be treated as a ‘foreign country’ for the purposes of British law. Irish and UK history are much intertwined and, were the UK to exit the EU, it would mean an external border of the EU would run through the island of Ireland. The shared border with the Republic of Ireland has long been of enormous symbolic and practical importance. What would happen to the Common Travel Area between the two islands if the UK exited the EU? Would visa requirements and customs duties be imposed?

The Belfast or ‘Good Friday’ Agreement of 1998, an international treaty signed by the UK and Republic of Ireland, enshrined North-South and East-West co-operation, effected constitutional changes and established cross-border bodies. It includes many provisions concerning EU and ECHR law, and the status of the UK and Ireland as EU member states is woven throughout the Agreement. Indeed, the section entitled ‘Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland’ speaks of ‘close co-operation between (the) countries as friendly neighbours and as partners in the European Union’. The Good Friday Agreement required the British government to incorporate the ECHR into Northern Ireland law. Any amendment through changes to either the Human Rights or Northern Ireland Acts which did not meet the human rights commitments in the agreement would be incompatible with this international treaty. The peace process in Northern Ireland is unfortunately not irreversible, but it has been unforgivably ignored in UK discussion on whether to withdraw from the EU. It is also likely to be ignored in Brussels, where there is some impatience with British demands in any case.

In March 2012, a joint Statement by Taoiseach Enda Kenny and Prime Minister David Cameron set out a programme to reinforce the British-Irish relationship over the next 10 years. It emphasised the importance of shared common membership of the EU for almost forty years and described them as ‘firm supporters of the Single Market’. However, a UK EU exit would have consequences for the future of the Belfast agreement and in particular implications for Anglo-Irish co-operation in dealing with cross-border crime and terrorist activity. To give just one example: the UK and Ireland make frequent use of the European Arrest Warrant (EAW). Figures indicate that since the EAW entered into force, the great majority of requests made by Northern Ireland for surrender of persons have been to Ireland. Prior to the introduction of the EAW, a number of European and domestic measures in the UK and Ireland regulated extradition proceedings, and resurrecting these would be a painful process, fraught with difficulties and uncertainties and potential for endless litigation. While the EAW has not always functioned ideally, a return to bi-lateral extradition conventions and other measures would be very undesirable. (Although the UK’s current plans are to exercise a block opt-out from over 130 EU Justice and Home Affairs measures, the apparent intention is to opt back in to the EAW immediately).

In conclusion, a British exit from the EU risks undermining the very self-determination and national sovereignty that its adherents believe it will bring about. This is because it risks shattering the fragile balance and stability of the UK by threatening the peace settlement in Northern Ireland and raises the possibility of a further independence referendum in Scotland. Surely such constitutional risks are not to be taken on lightly? But at present, there is little indication that anyone calling for an EU exit is giving them much thought. 

Sionaidh Douglas-Scott is Professor of European and Human Rights Law at Oxford University.

 

(Suggested Citation: S. Douglas-Scott, ‘British withdrawal from the EU: an existential threat to the United Kingdom?’ U.K. Const. L. Blog (13th October 2014) (available at http://ukconstitutionallaw.org).

 

 

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Filed under Devolution, Europe, European Union, Northern Ireland, Scotland

Stephen Tierney: ‘And the Winner is… the Referendum’: Scottish Independence and the Deliberative Participation of Citizens

stierneyOnly 45% of Scots said yes to independent statehood, but a massive majority said yes to direct democracy. The turnout of 84.65% was the highest for any UK electoral event since the introduction of universal suffrage, significantly trumping the 65.1% who voted in the 2010 UK general election and the 50.6% who bothered to turn out for the 2011 Scottish parliamentary elections.

But turnout is only part of the picture. The story we are hearing time and time again from voters and campaigners alike is that citizens felt greatly empowered by the referendum and the role they had in making such a huge decision. Evidence is emerging of the extent to which people sought out information about the issue at stake and engaged vociferously with one another at home, in the workplace, in pubs and public meetings, and, to an unprecedented degree in British politics, on social media through Twitter, Facebook, blogs etc. My own evidence is merely anecdotal, but as someone who lived through the referendum campaign, I can say that in the month before the vote I experienced a level of public engagement with a major political issue the like of which I have never known.

And it is surely significant that it was a referendum which proved the catalyst for this level of public engagement. One of the main criticisms of referendums in political science is that they are in fact incapable of fostering the deliberative participation of citizens. The strength of this argument, however, hinges upon an assumption that referendum processes are easily manipulated by elites. By this construction referendums tend to be held quickly by way of a snap poll organised at the behest of the government; voters are presented with an issue which is itself confusing and can be made more so by an unintelligible question; voters themselves lack the time, sufficient interest in the matter at stake or the competence to understand or engage properly with the issue, and in effect turn up at the polling station, if indeed they bother to do so at all, in an unreflective manner, often following party cues in determining how to vote.

The Scottish process could not be more different from this caricature. Voters had plenty of  time to discuss and reflect upon the issue (the plan to hold a referendum was announced in January 2012) and the question (‘Should Scotland be an Independent Country?’) was very clear, having been reviewed by the independent Electoral Commission. I have mentioned the levels of engagement in the referendum by citizens, and indeed one of the most empowering elements of the entire process was the way in which, as the 18th of September approached and opinion polls narrowed, political elites on both sides had to sit on the side-lines, aware that the power to change or not to change the UK state lay entirely in the hands of the Scottish people.

The thorough regulation of the Scottish referendum demonstrates that major constitutional decisions can be made by the people without any significant democratic deficit. Certain conditions are certainly important: the issue must matter to the voter (a turnout of only 42% for the UK referendum on the electoral system in 2011 highlights this); its significance must be readily understood; and the campaign rules must to be structured in a way that creates a level playing field for both campaigns without the distorting effects of massive spending by one side in particular. But when these conditions are achieved as they were in Scotland, then the field is set for a citizen-led process.

What then are the likely consequences of this? There is a trend towards referendum use in the UK and the success of the Scottish referendum will no doubt lead to demands for more direct democracy. For example, processes of further European integration require a referendum under the European Union Act and of course the Conservative Party is committed to at least the possibility of a referendum on continued EU membership in 2017. Whatever arguments can be led in opposition to such referendums, the notion that people are incapable of reaching informed decisions on important and even complex issues has been severely undermined by the Scottish referendum.

This may also have knock-on consequences around Europe. The way in which the referendum seems to have reinvigorated politics in Scotland, and perhaps more widely in the UK, has not gone unnoticed by a foreign media which descended en masse upon Scotland in the week leading up the referendum. In many ways the strength of the process rather than the issue of independence itself became the story. Other sub-state territories will find their arguments for a referendum on independence bolstered by this, in democratic terms at least. But also those states which now increasingly turn to the referendum in relation to the ratification of EU treaties will have a role model for the effective and legitimate application of direct democracy.

The referendum is indeed on the rise in many other states, and this is itself part of a wider process of grassroots political engagement by citizens through non-conventional avenues. The politics of protest has been much talked about in recent years, but at a more prosaic level the internet has opened up a far more diverse range of sources of information for citizens, and at the same time has presented platforms for horizontal engagement among citizens through social media in ways which even ten years ago were barely feasible. Many citizens who are engaging in political argument to an unprecedented extent with many more interlocutors than ever before will not be satisfied unless they also have the power to make political decisions.

Another consequence is that arguments of principle against the referendum have been further undermined by the success of the Scottish process. It does often appear that the opposition we find to referendums in political theory and among political scientists owes more to a broader scepticism with popular politics altogether. Referendums are stereotyped as democratically problematic, not because citizens are in fact ill-informed voting fodder (if this were the case how could we legitimise representative democracy?) but because they get in the way of politics as an almost exclusively elite process interspersed by the occasional inconvenient election.

A theme of great interest today is the emergence of new experiments in applying deliberative democracy in processes of constitutional change, for example in Iceland, Ireland and Canada. What is interesting is that despite the role of the referendum in the latter two cases – in Ireland as a required stage in constitutional amendment and in Canada following citizens assemblies in British Columbia and Ontario – the connection between popular deliberation and the referendum has rarely been explicitly drawn. The Scottish process may well change this. Deliberative democracy is not just about deliberating, it is about deciding. When the people are asked to participate directly in politics it is unsurprising that they are not satisfied by then handing back decision-making power to elites; when they help frame a constitutional issue they also expect to be able to determine that issue.

The referendum is not a perfect device, and if not properly regulated it can indeed be manipulated by elites. But if the process is properly designed we now know it can work well. The Scottish referendum has not changed the borders of the UK but it has challenged the boundaries of our imagination. Constitutional politics may never be the same again.

 

Stephen Tierney is Professor of Constitutional Theory in the School of Law, University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law. He currently holds an ESRC Senior Research Fellowship to study the Scottish referendum process. He served as independent adviser to the Scottish Government on the technical aspects of the referendum for six months in 2012, and in January 2013 was appointed constitutional adviser to the Scottish Parliament’s Referendum (Scotland) Bill Committee.

This post originally appeared on the I-CONnect blog, and is reposted here with thanks.

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Aileen McHarg: What Does the Union Need to Do to Survive?

aileen

The victory for the No campaign in last week’s referendum means that, for the foreseeable future, Scotland will remain part of the United Kingdom, and that its (domestic) governance will continue to be split between Westminster and Holyrood.  The result was a decisive one in that there was a clear margin of victory, achieved through a fair and legitimate process.

However, the referendum is less decisive than some may have hoped for in two senses.

First, the level of support gained by the Yes campaign (44.7%) was actually a considerable achievement given that it started well behind, with polls in 2011 showing that no more than a third of the electorate favoured independence (see James Mitchell’s post on this blog).  Moreover, Yes campaigners show no signs of abandoning their cause.  Since last Friday, there has been a remarkable surge in membership of the SNP (as well as the Scottish Greens and the SSP), and the latest poll on voting intentions at the next Holyrood election suggests that the SNP will gain an even higher share of the vote that it did in 2011.

Secondly, the clarity of meaning of the result was significantly undermined by the Better Together parties’ belated insistence that a No vote did not mean a vote for the status quo.  Even if it is not clear how much this contributed to the No victory (see Mitchell), it has created a strong expectation that reform of the UK constitution, and of Scotland’s place within it, is required.  Again, this has been confirmed by events since the referendum, including the Prime Minister’s speech on the morning of 19 September pledging to honour the reform commitments made prior to the referendum, the publication of the text of a House of Commons motion by the unionist parties setting out the timetable for reform, and the appointment of Lord Smith of Kelvin to broker an agreement between the parties on the details of reform.

On both counts, therefore, there is a sense that the No vote signifies merely a provisional choice to remain within the Union, rather than a decision that settles the matter for a generation or more.  Although the unionists have won an important battle in the campaign to hold the UK together, it is too early to claim that they have won the war.  If the Union is to survive in the long term, significant reform will be required to address the constitutional discontents evident in Scotland during the referendum debate – and now also evident elsewhere in the UK, particularly in England, in its aftermath. 

Far from being resolved, therefore, the debate on the future of the UK’s territorial constitution has only just begun.  At this stage, however, it is easier to identify what issues need to be addressed than how best to do so. 

Regaining Losers’ Consent in Scotland

The first challenge is to restore the legitimacy of UK decision-making in Scotland.  At its most basic, the constitutional case for independence rested on a claimed democratic deficit in the status quo – in other words, that only independence would ensure that Scotland always gets the government it votes for.  Of course, in a democracy, one cannot always expect to be in the majority.  The stability of the system therefore depends on the existence of “losers’ consent”, i.e., that voters accept the legitimacy of the government even if they did not vote for it.  Where there is no losers’ consent, because the minority does not accept the legitimacy of the political community within which the majority has been obtained, then the political system is likely to be unstable.

In the case of Scotland, the legitimacy of the UK as a political community seems to have been significantly weakened for a substantial proportion of the electorate.  According to the post-referendum poll conducted by Lord Ashcroft, the most important reason for supporting independence for 70% of Yes voters was the principle that all decisions about Scotland should be taken in Scotland, while another 10% were primarily motivated by the desire to ensure that there would be no more Conservative governments.  Moreover, for a significant proportion of No voters, their support for the Union appears to be conditional.  Lord Ashcroft’s poll showed that only 27% of No voters were primarily motivated by a strong attachment to the UK.  47% were mainly concerned about the risks of independence, while 25% thought that a No vote would mean more powers for the Scottish Parliament, whilst retaining the security of being in the UK. This is confirmed by Better Together’s own admission that they chose to focus so heavily on the risks of independence because their private polling showed that of the roughly one third of the electorate who remained undecided in summer 2013, 64% said they would vote for independence if they were certain that Scotland would be no worse off as a result.

This, then, suggests a weak basis for the legitimacy of UK decision-making in Scotland, which is vulnerable to further erosion if voting patterns in Scotland and the rest of the UK continue to diverge, or if the material benefits of remaining in the Union are reduced.

Nevertheless, it may not be impossible to rebuild legitimacy.  Forced choices about primary motivation may in fact conceal a more complex set of motivations and more mixed political affinities.  For instance, while the 2014 Scottish Social Attitudes survey showed that, on a forced choice, 65% opt for a Scottish national identity, and only 23% for a British identity, when allowed a more nuanced choice, 63% opted for some sort of mixed Scottish/British identity.  Interestingly, the Yes campaign did not attempt to deny this dual identity during the referendum debate. Rather they sought to depoliticise Britishness in favour of social, cultural or geographic understanding of it.  The challenge then, for supporters of the Union, is to rebuild a dual political identity to fit with a dual governance structure.

Three strategies seem possible, but none is unproblematic.  One is to alter the distribution of powers between the Scottish and UK Parliaments so that fewer decisions are subject to a UK rather than a Scottish majority.  This is, however, risky in two ways.  First, since there is no non-contentious basis on which to distribute powers, this is bound to remain a source of tension, with the ongoing potential to provoke a constitutional crisis if the UK institutions make decisions which are strongly opposed in Scotland.  Secondly, the more political decisions are made in Scotland, the more this seems likely to strengthen Scottish political identity at the expense of Britishness.

The second strategy is to attempt to ensure that Scotland continues to benefit from membership of the Union, or at least that Scots perceive the benefits of Union to be greater than the benefits of independence.  This may mean material benefits, or it may mean political opportunities – a persistent theme in the Yes campaign was the claimed greater opportunities for social democratic and political reform in an independent Scotland, compared with the UK.  But this strategy is highly problematic too.  It is inherently difficult to ensure that the Union continues to deliver economic benefits to Scotland, and attempts to do so artificially, for instance through the Barnett formula, are liable to breed resentment in other parts of the UK.  In addition, the more powers that are exercised in Scotland, the less risky a further step to independence is likely to be seen, whereas continuing to talk up the risks of independence may simply maintain focus on it as a live constitutional option.

Questions of political opportunity are easier to address in principle – and in particular, reform of the electoral system at Westminster might go some way towards reducing the perceived polarisation of political attitudes in Scotland and in England in particular.  However, the key problem here is whether there is any real appetite for political reform at Westminster.

The final strategy is, as Neil Walker has suggested, to try to rebuild the ethical case for the Union based on arguments about broader solidarity and inter-dependence, and about the value of the UK itself as a special kind of plurinational state which is capable to combining respect for national diversity with broader solidarity.  But again there are problems.  Quite apart from the questions of how and by whom this ethical case would be made, the UK is in competition with other sites of solidarity and for managing inter-dependence, most notably the EU.  These may prove to be more attractive in the long run, particularly if the UK itself retreats from international co-operation through withdrawal from or renegotiation of the terms of EU membership.  In addition, a convincing defence of the UK as a plurinational state requires reform going beyond further piecemeal tinkering with the scope of devolved powers.

Recognising the UK’s Plurinational Nature

The asymmetric nature of devolution in the UK means that, while the constitution feels plurinational at the peripheries, it remains essentially unitary at the centre.  Devolution can be explained in a number of ways, but at least on one understanding it amounts merely to a form of minority protection against the dominance of England, rather than involving a fundamental rethinking of the territorial constitution.  This gives rise to a number of problems which threaten the future stability of the state.

In the first place, there are some well-known anomalies, the most prominent of which is the West Lothian Question, or the question of English Votes for English Laws.  But we can add to this the mismatch between the legal and political constitutions as regards the entrenchment of the devolved institutions; differential forms and levels of devolution, some aspects of which are difficult to justify in principle; and a system of territorial financing which is perceived to be unfair.

A second problem is the lack of recognition of the plurinational nature of the state at the centre.  This is manifested in, for example, a weak and largely informal system of inter-governmental relations, which allows the UK government to dominate the devolved governments; the lack of any explicit territorial representation in the UK Parliament; and ad hoc arrangements for representing devolved interests in EU decision-making.

Finally, there is a fundamental lack of clarity over the nature of the territorial constitution, revealed by, for example, contests over the location of sovereignty (in the UK Parliament or the Scottish people?); uncertainty over the very existence and content of UK constitutional law (as distinct from local inflexions of it); and deep uncertainty over how to handle constitutional issues on which there may be different territorial majorities – rumbling discontent over the franchise for the independence referendum is one example; the threat of British exit from the EU or repeal of the Human Rights Act are others. 

Once again, these problems are much easier to state than to resolve.  As we have seen in recent days, David Cameron’s apparently modest proposal to resolve the West Lothian Question by ensuring that only English MPs can vote on laws which affect England only in fact raises a whole host of practical, political and constitutional objections.  Similarly, Ed Miliband’s proposal that the House of Lords should be replaced by a Senate of the Nations and Regions, while superficially attractive, does nothing by itself to resolve any of the ‘wicked issues’ that have so far stymied House of Lords reform, such as what powers it would have, how much of a rival it would be to the House of Commons, and whether it would still be able to perform its scrutiny function effectively.

A full answer to the anomalies and uncertainties of the current territorial constitution implies a properly federal constitution, with devolution all round, an entrenched written constitution, and territorial, not merely majoritarian, consent to future reforms.  Again, though, it is hard to detect any real appetite for root and branch reform of this nature.  Nor indeed is it obviously desirable in principle.

Embracing Not Destroying the Union State

The basic problem with any attempt to federalise the UK is that it seeks to impose a symmetrical (or broadly symmetrical) constitutional model on a country which is in fact deeply asymmetrical. 

One issue is, of course, the sheer size of England relative to the other parts of the UK.  This, in my view, makes any federal solution based on England as a federal unit simply unworkable.  There is a sense in which it would be unfair – as well as unrealistic – to treat England, with its 54 million people, as constitutionally equivalent to Scotland, Wales and Northern Ireland, with only 10 million people between them.  In any case, because of its size, it is hard to say that England is really disadvantaged by the current constitutional arrangements – the largely theoretical problem of the West Lothian Question aside – such as to justify the creation of an additional layer of government.

The regions of England, on the other hand, arguably are disadvantaged, but as Mark Elliott has pointed out, it cannot seriously be suggested that the English regions should have the same legislative powers as Scotland, Northern Ireland or even Wales.  Moreover, there are significant issues about whether there are sufficiently strong regional identities in England to avoid creating new losers’ consent problems. 

The second problem is that the asymmetry of the current devolution arrangements has not come about by accident, because there was insufficient ‘joined up’ constitutional thinking on the part of their architects.  Rather, these were deliberate attempts to create bespoke institutional arrangements for territories with different constitutional histories, facing different constitutional problems, and whose pre-existing governance arrangements were already different.  While the fact of devolution creates some commonalities across the devolved nations, these underlying differences cannot simply be wished away in the interests of constitutional tidiness. 

It remains the case that the UK is best understood as a union state, rather than a unitary state or a quasi-federal one, and any reform of the territorial constitution should seek to embrace this fact, rather than set out to destroy it.  From this perspective, a number of recent suggestions for reform seem profoundly misguided.  For instance, Jack Straw has proposed that the Union should be made indissoluble and further independence referendums banned.  However, this would do great violence to the constitutional understandings of many people in Scotland (including some who voted No), and for consistency it would have to be extended to Northern Ireland, which would breach the Belfast Agreement.  It is similarly mistaken to try to tie proposals on English Votes for English Laws to the question of further powers for the Scottish Parliament, or to advocate (as Lord Norton of Louth has done) a reduction in the number of Scottish MPs, or to suggest that Scottish MPs should not be able to become Prime Minister or hold any of the great offices of state.  All of these proposals look too much like taking revenge on the Scots for daring to hold the independence referendum, and are likely to backfire should another one ever take place.  Too enthusiastic a promotion of a ‘Britishness’ agenda is also likely to expose territorial divisions rather than doing anything to heal them.

As Vernon Bogdanor has argued, “[a]symmetry is the price England pays to keep Scotland within the union.”  If a way cannot be found to make asymmetry tolerable to the English majority, then the Union will not survive.

A Note on Process

A final word on the process by which the territorial constitution should be reformed.  After the expansive and participatory constitutional process of the independence referendum, and the lost chance of further popular participation in the drafting of a new Scottish constitution, it is in some ways disappointing that the constitutional reform process has reverted to type.  Further powers for Scotland are to be thrashed out behind closed doors by the political parties, presided over by a member of the quangocracy.  Meanwhile, reform at Westminster has been overtly politicised.  The government has announced an accelerated timetable for reform in a fairly naked attempt to gain electoral advantage over the Labour party, while Labour’s response that the issue should be entrusted to a constitutional convention looks more like an attempt to buy itself time than a genuine commitment to participatory constitutionalism.

I find myself genuinely torn on this question.  On the one hand, there is undoubtedly much to be said for the principle of public involvement in constitutional reform, as Cormac Mac Amhlaigh has argued, and any proposals would have much greater legitimacy if they resulted from a popular process rather than from a party political compromise.  In addition, a constitutional convention would be able to consider more fully the implications of particular changes for other aspects of the constitution than the balkanised process that seems to be under way.  On the other hand, given the difficulties involved in any attempt at wide-ranging reform, it is hard to see how public involvement could have the same generative capacity as in relation to the much more straightforward question of whether Scotland should become independent, or even the relatively simpler task of developing a written constitution for a newly independent state.  There is also a political imperative to be seen to respond quickly to the independence referendum – particularly in Scotland, but probably also in England as well.  In the circumstances, perhaps the best we can hope for is some form of muddling through, in which case a constitutional convention may serve only to delay and complicate matters.

Aileen McHarg is Professor of Public Law at the University of Strathclyde.

 

This post originally appeared on the Scottish Constitutional Futures Forum Blog.

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Barry Winetrobe: The West Lothian Dead End: Asking the Wrong Question after the Scottish Referendum

BarryBarry Winetrobe argues that the sudden focus on the ‘West Lothian/English Question’ is misconceived, and that it is just a surrogate for the more salient issue of sub-national financial arrangements.

Hello darkness, my old friend, I’ve come to talk with you again.” With apologies to Simon & Garfunkel, we note the post-referendum retrieval, from the very long grass in which it seemed to have been quietly resting, of the West Lothian/English Question (‘WLQ’). Oh dear.

The WLQ Pandora’s Box was opened by the Prime Minister in his Downing Street statement on the morning of Friday 19 September: “The question of English votes for English laws – the so-called West Lothian question – requires a decisive answer.” Ever since, the pundits – media and academic – have been frantically debating the procedural, constitutional and party political implications of this spanner in the post-referendum works, including its unilateral linkage or otherwise to the three party leaders’ ‘Vow’ on greater Scottish devolution published on 16 September.

All constitutional debate is welcome, especially if it engages the public. But a WLQ focus on further UK constitutional reform can be nothing but a disruptive and damaging distraction. Those of us who had always argued that WLQ was just one of those ‘constitutional anomalies’ common in the so-called British Constitution, which should be accepted, rather than something to be ‘solved’, have cause to worry. Like Lords reform, WLQ is both logically and politically insoluble under our present constitutional framework. If it is not to be ‘solved’ by the break-up of the Union, or by some form of genuine federalism (and where have the Lib Dems been on the latter during and after the referendum campaign?), it should not be treated as something which can be solved now by our political elite, especially under the present fevered circumstances.

In written and oral evidence to the McKay Commission, I argued – unsuccessfully – that the Committee, with such a high-powered membership, should not fall into the trap of trying to devise some clever, rational and ‘practical’ solution to WLQ, but should grasp the opportunity of examining the more genuine parliamentary and inter-parliamentary issues arising from devolution. Events seem to have borne out this warning, culminating in Sir William McKay’s extraordinarily endearing admission on BBC radio (as quoted in the print/online media eg The Guardian website, 21 September): “You can’t lower any of our solutions, immediately and without amendment, into the present situation. They will have to be tweaked – a fairly hefty tweak, more a kick than a tweak.

What we have had confirmed in the immediate referendum aftermath is that WLQ is, for many politicians, merely a surrogate for the actual post-devolution ‘fairness’ issue: finance. In so far as the Barnett Formula’s continuance has been guaranteed by the party leaders ‘Vow’, it is the perceived unfairness of the post-devolution allocation of central funding among the various nations and regions of the UK that is the issue worthy of addressing and, if there is thought to be a problem, ‘solving’.

The various TV and radio vox pop sessions, and the pronouncements of the media, south of the border, have demonstrated how WLQ parliamentary procedural ‘unfairness’ and financial ‘unfairness’ have become conflated into a single alleged grievance – with even its own new shorthand term, ‘goodies’.

It is much easier to focus on a grievance if it can be explained in simple terms. Thus there was little public concern about the WLQ or English Question, until it was described in crude phrases like ‘English Votes for English Laws’. The Question as originally posed by Tam Dalyell in the 1970s was not even primarily addressed to that, being more concerned with the inability of the Scottish MPs to vote on devolved matters concerning their constituents, not on their continuing ability to vote on the equivalent English matters.

Thus far UK ‘devolution finance’ (to use a crude shorthand for all the various sub-national transfers etc) has been rather opaque. Who knows what the Barnett Formula actually is? Like its sub-national cousin, local government finance, it is as impenetrable as the proverbial Schleswig-Holstein question. While this allowed all sorts of guestimates to be bandied about as to Scotland’s ‘unfair share’ – remember Ken Livingstone’s during London Mayoral campaigns on how many billions goes from London to Scotland? – there was no real engagement or development of the debate in the public mind.

If methods were devised to make devolution-related financial transfers more transparent and simple to understand, there could be a genuine, meaningful public debate. Remember the seismic shift in local government finance when the opaqueness of domestic rates was replaced by the superficial simplicity and transparency of the poll tax? Instantly, taxpayers could quantify the financial cost of spending policies – and of transfers between areas and councils through RSG etc – in terms of ££s rather than ‘p in the £’ rateable values. Indeed, it was this transparency that helped kill the poll tax itself, and ultimately Margaret Thatcher’s premiership.

While this may have short-term risks for the devolved nations, it would ultimately assist the maturing of the devolved arrangements as they develop. One glaring flaw in the original ‘settlement’ was the fact that the devolved bodies had powers to spend but not to raise the revenue required for that spending, barring a minor power not ever used. As that taxing side of the equation is enhanced, making them more responsible and publicly accountable for their spending policies, any Barnett-related unfairness should be reduced and possibly eliminated. With it would go, if done properly, apparent grievances of English taxpayers funding better quality services (free personal care, free prescriptions, no tuition fees etc) for the Scots, which is the genuinely corrosive risk to the current Union constitution.

So, forget WLQ, except as a party political punchbag, and focus on sub-national finance arrangements. The erosion, especially in the 1980s, of the post-war consensus (or acquiescence) in redistribution as a positive principle of public policy means that such debates on financial transfers from one part of the UK to another, and the like, will be difficult, with a greater need for those in favour of redistributive policies to make a strong case against those whose instinct is now that they should get back from the state all that they paid into it, and that their hard-earned money should not be given, without consent, to other areas or people. These are the proper political and constitutional ‘fairness’ arguments we should now be having.

Barry Winetrobe is an Honorary Senior Research Associate at the Constitution Unit, UCL.

 

Suggested citation: B. Winetrobe, ‘The West Lothian Dead End: Asking the Wrong Question after the Scottish Referendum’ U.K. Const. L. Blog (23rd September 2014) (available at http://ukconstitutionallaw.org).

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