Tag Archives: Scottish Independence

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.

5 Comments

Filed under Scotland

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.

2 Comments

Filed under Scotland

Nick Barber: If Scotland Had Voted Yes…

Nick1This is a copy of a blog post that was, in the event, not needed. My colleagues have told me that my writing has a calming, if not soporific, quality, and I thought that I should use this skill to good effect by preparing a post for publication in the event of a ‘yes’ vote in the referendum.

 The post was written at a time when it looked like the vote could go either way. Now, just a few days later, the context in which it was produced seems both foreign and remote. There is a temptation – which I have resisted – to modify its text in the light of hindsight. I’ve left it unaltered: it stands as an exercise in counter-factual constitutional history, an engagement with the constitution crisis that might have been.

 

Don’t Panic

After months, decades, of polls showing a substantial majority in favour of the union the decision by the Scottish people to vote for independence has come of something of a surprise. The reasons for this reversal will be analysed for years to come, and other countries facing secessionist pressures may have something to learn from the failure of the ‘no’ campaign, but for those in the United Kingdom the ‘yes’ vote raises a set of more pressing constitutional problems. For Scotland, the prospect of independence must be an exciting prospect, if also a daunting one. For the rest of the United Kingdom, though, the rUK, the Scottish vote may be seen as a rejection, even as an abandonment.

This post reflects on the immediate challenges facing each side of the divided union. It argues that these negotiations should not be seen as a zero-sum game: each side has an interest in ensuring that the other’s interests are protected. It considers the steps that will need to be taken in the rUK Parliament to begin this negotiating process. Finally, it moots a radical model for future cooperation between Scotland and the rUK: a new legislative body granted a limited jurisdiction by these two sovereign states, empowered to make legal and executive decisions at the level of the Union.

No Hard Feelings

Whilst it may be hard for some to appreciate this morning, Scotland’s secession vote is a story of constitutional success, a success of which all parts of the United Kingdom can be proud. Most new states are the product of war. The Scottish state will have emerged from a fair vote following a peaceful and informed campaign.

As a number of commentators have noted (see Martin Wolf in the FT and Alan Trench at Devolution Matters), the Scottish negotiating position is relatively weak. Most of what Scotland needs to be successful in the short term requires the support of the rest of the UK. Over the European Union, for example, prior to independence, Scotland’s engagement with European institutions will be mediated through the United Kingdom’s government. It will fall to the rUK to help Scotland secure the interim arrangements that will enable it to be treated as if it were a member of the EU in the period (quite possibly a period of five to ten years) between Scottish independence and its accession to the Union. Similarly, the immediate stability of the Scottish economy will depend on the action of the rUK government. It is likely that Scotland will see capital flight as companies and people shift their money from Scottish banks to rUK institutions, and financial institutions, and perhaps other businesses, will relocate from Edinburgh to London. rUK could act to mitigate this – but, in the aftermath of a ‘yes’ vote, why should it?

There are several reasons why the rUK should seek to help and support Scotland – and should resist the temptation of the immediate and superficial pleasures of adopting a tough negotiating stance. First, it is in rUK’s long-term interest to maintain a strong, friendly, relationship with Scotland. On a host of issues – from defence to foreign policy, from the economy to domestic security – rUK and Scotland will need to find ways to work together. It would be a mistake for the rUK to sour its relationship with Scotland for short-term advantage or out of a misguided sense of revenge. Secondly, it is in rUK’s immediate interest to have an economically successful state as a neighbour. Trade between Scotland and the rUK will be an important source of wealth to each side: a poor Scotland will be a weak trading partner. And if there were an economic collapse in Scotland – as some have warned – it is likely that there would be population movement from Scotland to rUK, placing pressure on rUK’s welfare systems.

In short, it is in rUK’s interests to negotiate generously with Scotland, even though Scotland has a weak hand to play in the negotiating process.

The last few paragraphs have discussed the political dimension of the negotiating process. This is, though, a blog on constitutional law: it is now time to consider the constitution issues that arise within this political framework.

The United Kingdom Parliament

The Fixed-Term Parliaments Act 2011 specifies 7th May 2015 as the date of the next General Election. This presents problems for negotiations between rUK and Scotland, as it will not be until after this election that the final negotiating team for rUK can be formed.   Alan Trench has argued that the date of the General Election should be brought forward, a decision that would allow the process to begin as soon as possible and give the UK Parliament a mandate for the negotiations. I agree, but before the current Parliament is dissolved it needs to enact two groups of measures to regulate the operation of the UK and Scottish Parliaments in the period between the ‘yes’ vote and independence.

First, the United Kingdom Parliament should transfer the broadest possible powers to the existing Scottish Parliament. The UK Parliament can no longer claim to represent the whole of the peoples of the United Kingdom and, so far as possible, the Scottish Parliament should govern and speak for Scotland. The UK Parliament – or the UK Government, though a section 30 order – should also empower the Scottish Parliament to create the processes and structures through which negotiations with the UK are to be undertaken. It is worth noting that it would be a mistake for the UK Parliament to enact, or to empower the Scottish Parliament to enact, the so-called Interim Constitution mooted by the Scottish Government. Some of the provisions in that document fall beyond the scope of Westminster – whether Scotland keeps the monarchy or introduces a new set of environmental rights are matters for Scots to decide – but others will be matters of negotiation. For example, the citizenship question – the question of who will become a citizen of Scotland and who will remain a citizen of the UK – will require careful discussion. This is not a decision that Scottish institutions can take by themselves. At the end of the negotiating process the UK Parliament should enact a thin constitution for Scotland before granting it independence – but this statutory constitution will almost certainly differ from the Interim Constitution proposed by the SNP, and will probably be quickly overtaken by a new, indigenous, document passed by the Scottish Parliament after independence.

The flip side of this transfer of powers should be a limitation of the capacity of Scottish MPs to vote in Westminster. The West Lothian question is a mainstay of constitutional seminars: why should Scottish MPs vote in the UK Parliament on matters that relate largely to England, when English MPs do not get to vote on similar matters that relate to Scotland? The question becomes more pressing the more powers the Scottish Parliament gains and, now, as Scotland is poised to leave the Union, the moral entitlement of Scottish MPs to vote in Westminster is severely limited. The problem is compounded by the need to hold a General Election during the negotiating process. It is possible that the balance of power in the Commons could turn on the presence of Scottish MPs: the Conservatives might win a majority in rUK, but Labour could win a majority of seats in the UK as a whole. Under the existing constitutional settlement, it is possible that the leader of the Labour Party would be invited by the Queen to form a government – and would be dependent on the support of Scottish MPs for his majority.

I have discussed this issue further elsewhere, but the ‘yes’ vote demands that the West Lothian question is addressed as a matter of priority. There are two problems that need to be resolved: the capacity of Scottish MPs to vote on rUK matters, and the role of Scottish MPs in the formation of the next rUK Government. Both of these issues can probably be resolved through a resolution of the Commons – though given their constitutional significance it might be preferable to use a statute. The voting rights of Scottish MPs should be limited to those areas that fall outside of the powers devolved to the Scottish Parliament, with the Speaker empowered to issue a ruling on the question in the event of disagreement.  This restriction on the voting power of Scottish MPs would go well beyond that recommended by the McKay Commission. For most practical purposes, Scottish MPs will cease to play a role in Westminster – but there will be some issues, such as foreign policy and some economic matters over which Westminster will still need to act for the UK as a whole, and Scottish MPs should be entitled to participate in these decisions. Allied to this, the Commons should pass a resolution requesting that the Queen not take account of Scottish MPs when deciding which party leader should be invited to become Prime Minister after an election.

The solution to the West Lothian question proposed in the last paragraph is a rough and ready one: it is only attractive because of the relatively short period of time during which Scottish MPs will continue to sit in the Commons after the ‘yes’ vote. The problems that the proposal would otherwise face – the capacity of Scottish MPs to serve as Ministers, the difficulties of distinguishing Scottish and rUK issues, the problem of maintaining voting limits on MPs in a system which supposedly remains characterised by parliamentary sovereignty – are far less pressing if the settlement need only last 18 months.

The Negotiating Process: A New Legislature for the Union?

Part, perhaps even a large part, of the negotiating process will revolve around the division of assets and liabilities between Scotland and rUK. Prior to the vote most of the debate in the media has focused on this issue; the question of who gets what out of the Union.   Less consideration has been given to another aspect of these negotiations: the need to create a new set of institutions through which the rUK and Scotland can agree on joint action. These new institutions will be necessary in a host of areas: from aspects of foreign policy to immigration, from security to transport, there is a range of decisions that must be agreed by the two states before action can be taken. Beyond this, there is a broad penumbra of issues outside of this core in which cooperation is desirable, even if not essential. There would be advantages in adopting common, or at least complementary, economic and social policies, for instance.

There are two groups of forms these transnational institutions could take. First, they could be forums in which representatives of the executives of the two states meet. The British Irish Council could provide a model for this, or might even provide a basis from which such an institution could develop. Second, and more radically, a body, perhaps a legislature, could be created that had a closer connection to the people or the Parliaments of the states it represents. Its members could either be directly elected by the peoples of Scotland and rUK, or they could be drawn from the Parliaments of those territories.

I want to end this post with a radical suggestion, that would require a deal of imagination on each side – rUK and Scotland – to come about. One model for future cooperation that should be on the table is a new rUK/Scotland legislature; empowered by those two states to make legally binding decisions in defined areas. The greater the powers given to this body, the more constitutionally significant it will become. At the most extreme, a legislature and executive could be created at the rUK/Scotland level. If a currency union were to come about, regulatory and fiscal decisions could be made at this level. Similarly, the apparatus of foreign and defence policy could be accountable to this set of institutions – indeed, perhaps the relationship of the states and some international institutions could be mediated through these bodies. rUK and Scotland could share the UN security council seat, and hold joint membership of the EU. This new constitutional settlement would have to be ratified by each side – as sovereign states, both Scotland and rUK would have to agree to the deal – and, probably, would require the approval of a referendum in each territory.

Such a proposal might seem like a pipe dream whilst Scotland is still heady with the excitement of independence and the rUK is feeling the bitterness of rejection. But each side would have much to gain from the deal. It would solve the problems presented by the division of currency, EU membership, and maintain the strength of the Union internationally. It would also constitute an innovative form of constitutional structure grounded in the agreement of two states to act together for their common benefit: a model from which, perhaps, other states might draw inspiration.

 

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

Suggested citation: N. W. Barber, ‘If Scotland Had Voted Yes…’ U.K. Const. L. Blog (22nd September 2014) (available at http://ukconstitutionallaw.org).

2 Comments

Filed under Scotland

Cormac Mac Amhlaigh: For a Constitutional Convention for the United Kingdom

CormacThe referendum has come and gone and there is a mix of numbness and relief intermingled into the haar which descended upon Edinburgh several days ago but failed to dampen the electrified atmosphere which accompanied the referendum. It was said long before the referendum even happened, that whatever the outcome, more and deeper constitutional change would be the one certainty in the uncertainty of the election result. This was brought home by the eleventh hour promises by the three parties on the eve of the referendum itself, as well as Cameron’s post-referendum speech which put the English question at the heart of any constitutional reform. As the referendum results are being unpicked with much staring into crystal balls as to what will happen next, two features of the post-referendum debate, such as it is, stand out; many references to the ‘three political parties’ and various options as to what needs to happen next and what types of reform are possible and/or probable: more fiscal powers for the Scottish parliament, a possible English parliament and so on.

With this emphasis on political parties and concrete proposals, the one elephant in the room is mention of the people. It is a virtual cliché at this stage that the one winner of the referendum (apart from the lacklustre ‘No’ campaign) was democracy and political engagement based on the fact that the long two-year campaign involved wide participation from the public with informed debates on almost every dimension of political life in Scotland as well as the extraordinarily high turnout for the referendum (not to speak of the almost pre-Invasion Iraq proportions of voter registration). If this is true, then, if anything should be preserved from the referendum experience, it should be a mechanism to secure and enhance this democratic political engagement and this is why rather than pledges, vows, discussion of taxes and England we need a fully-fledged open and deliberative constitutional convention to deliberate on the constitutional future of the United Kingdom.

If one thing became clear from the referendum, it was the idea that the Westminster Parliamentary system was ‘broken’, so much so that Alex Salmond took to using the ‘Westminster establishment’ as a term of derision in the week before the vote. Yet what we are seeing in the pre-referendum ‘Vow’ as well as Cameron’s post-referendum speech is more of the same; constitutional reform being jealously fought over by the exclusive club of the three main Westminster parties where each party tries to promote or prevent a proposal which will promote or prevent them from getting into power sooner or promote or prevent them from holding onto it for as long as possible. This is precisely what has caused political disengagement and voter disaffection not just in Scotland but right across the United Kingdom.

The Labour party famously said that devolution would kill nationalism in Scotland ‘stone dead’. This week’s referendum goes to show just how wrong they were and that the ‘typically British response’ of pragmatism and piecemeal reform on the recommendations of hopelessly distant Commissions, hand-picked and vetted by the party faithful, is no longer fit for purpose. Independence may be off the agenda for a generation, but the referendum result must not stop the bottom-up political movement for reform of the system. While it is true that arcane constitutional matters do not win general elections, what this week has shown is that they have the potential to cause major constitutional upheaval and for that reason alone, the parties should rise above immediate short-term electoral gain and to see the bigger constitutional picture. This is too important an issue to be left to the political parties and their electoral ambitions.

Therefore, for both principled and pragmatic reasons the United Kingdom needs a full constitutional convention to deliberate on its future. Iceland, Ireland and even the European Union (yes, even that bastion of political non-responsiveness) have all experimented with conventions in the recent past, with differing levels of success, but what they all share was a form of open democratic political engagement which doesn’t take the people for granted once political representatives assume office and puts the most important question of politics, the nature and form of the constitution and the level and distribution of power under it, back into the hands of the people. Early post-referendum signs are encouraging with the Green Party and even David Miliband calling for a constitutional convention but they must be taken seriously and followed through. In the avalanche of proposals and counter-proposals which will be forthcoming in the weeks and months ahead, then, this is a plea for a focus on process over fixed outcomes, democratic means over settled ends, for a more democratic, responsive, and fair constitutional settlement for this (just about) United Kingdom.

 

Cormac Mac Amhlaigh is Lecturer in Public Law at the University of Edinburgh. 

Suggested citation: C. Mac Amhlaigh, ‘For a Constitutional Convention for the United Kingdom’ UK Const. L. Blog (22nd September 2014) (available at http://ukconstitutionallaw.org)

6 Comments

Filed under Scotland

Paul Reid: Where now after ‘no’? A starter for 10.

paulIt is often said that one of the greatest characteristics of the United Kingdom’s unwritten constitution is its ability to evolve and adapt to change.  From the Prime Minister’s statement this morning, it appears that this 307year-old constitution has a lot of evolving to do in a very short space of time.  Perhaps a strength, or perhaps a weakness, of the constitution has been its ability to carry on whilst fundamental questions like the ‘West Lothian question’ have remained un-answered.  Those will now have to be answered and the period for doing so is said to be months not years.  That appears a tall order for a constitution that declared the intention to replace the House of Lords with an elected chamber over a century ago.  The inescapable questions that arise from the Scottish vote are many and touch all corners of the Union and almost all corners of the constitution.  Many blogs and other articles will be penned in the days, weeks and months ahead as the issues are discussed, debated and then (if the timetable holds) decided.  So here is a starter for ten (or rather, ten for a starter):

  1. “English votes on English laws” appears to be the presumptive answer to the West Lothian question.  That must be unobjectionable in principle but the practice appears more challenging.  You need only pause for a moment to recognise a number of difficulties: first, in a system of asymmetric devolution excluding the Scottish MPs cannot be the answer.  “English votes on English laws” must also call for the exclusion of Welsh MPs and Northern Irish MPs when the matter under debate relates to matters that have been devolved to those respective countries.  Thus the House of Commons has various different compositions with different consequences for the majority of the government of the day.  Secondly, the exclusion of non-English MPs works fine if the Bill before the House of Commons is exclusively English.  What about Bills which predominantly relate to the law of England but the odd clause has a Scottish (or Welsh, or Irish) element to it?  A third consequence flows from the a-symmetric nature of the current devolution arrangements: what is an “English only” issue is not clear.  Some form of harmonisation of the devolved powers would surely be necessary for this to be a workable long-term solution.
  2. The most obvious difficulty with “English votes on English laws” arises when the government relies upon non-English MPs to make up its majority.  At one level, this ought not to prevent the exclusion of non-English MPs: if the majority of English constituencies returned an MP from a given party, that party has a democratic claim to govern England.  But it presents significant practical difficulties: it would be unworkable in the context of the current House of Commons to have a one government for “English” matters and another government for “UK” matters.
  3. When Dr (now Lord) Reid was appointed Health Secretary questions were asked about the appropriateness of that appointment, representing as he did a Scottish constituency, given health had been devolved to the Scottish Parliament.  Is it now untenable to have a Scottish MP (or, with their respective spheres of devolution a Welsh or Northern Irish) appointed to a portfolio that has been devolved?  Again, that would appear unobjectionable in principle.  Perhaps a convention has emerged (or will soon emerge) to that effect?
  4. But what of the office of Prime Minister: could a Scottish MP now hold that office?  That must be open to doubt if “English votes on English laws” were to become a reality.  But it would surely be equally unacceptable to the other nations of the United Kingdom if the consequence of “English votes on English laws” resulted in a convention (at least) that the Prime Minister represent an English constituency.
  5. And what of the legislation that Parliament will pass when only composed of English MPs?  Is it the act of a sovereign legislature, beyond the challenge of the courts?  That is not the case for any other devolved legislature.  But if legal limits are to be imposed on this reformed parliament they will have to be clear and imposed by legislation and not changes to parliamentary procedure.  What of human rights?  Not a popular subject if the popular press are to be believed.  But each of the current devolved legislatures have their competence delimited by reference to the ECHR.  Will this new form of House of Commons be subject to similar limitation?  It would be a curious result if the English legislature was vested with the power to abridge the fundamental rights of those living in England in a way that other devolved legislatures were barred from.
  6. Does all this not lead necessarily to an English Parliament?  If so, does that not also require a separate English government?  Federalism?  Entrenchment of the broader devolution settlement so that it is formally put beyond the reach of the Westminster Parliament?  Given the overwhelming size of England how will be balance of power between the First Minister of England and the Prime Minister of the United Kingdom be struck?  Is that a matter to be resolved by convention or by law?
  7. Next, a point that I must credit to a non-lawyer friend of mine (an engineer in fact).  Looking at the ‘referendum map’ of Scotland it is largely red.  As I type this over my morning coffee it is 27-4 to ‘no’ on a count of the local authorities.  That appears a pretty decisive victory for the ‘no’ campaign.  Of course, look at the actual votes cast and we see that, across the country, the result is, with a bit of rounding, 55-45: a much closer contest.  That reminds us of the distorted results that a first-past-the-post system can produce.  If this were a two-horse election race, ‘no’ has won a landslide.  But the ‘yes’ vote, with a turnout in excess of 85%, has had more votes cast in its favour than any government that Scotland has ever elected!  Is the voting system to be part of the constitutional discussion that is about to take place?  If not, why not?
  8. If the electoral system is put on the agenda that should go hand-in-hand with finally completing reform of the House of Lords.  Whether elected, appointed or a mixture of the two, if we can solve the ‘West Lothian question’ in a matter of months then the ‘House of Lords question’ must also be capable of resolution.  Indeed, any truly comprehensive package of constitutional reform could not ignore it.
  9. And if we are to have a comprehensive package of constitutional reform, in fact, even the reforms mentioned by the Prime Minister this morning, will it be back to the polls?  The timetable envisages these reforms being concluded before the next UK general election.  The three main parties may well be agreed on the need for the reform.  But none of them have a mandate from the UK electorate for such wide-reaching reform.  Should the package of reforms not be put to the people for approval?  If that is to be done before the 2015 election, a referendum is the only vehicle for that.  Given the relatively trival matters that must now be submitted to a referendum under the European Union Act 2011, it seems hard to accept substantial and fundamental constitutional reform for the whole United Kingdom without asking the 96% of the population that did not vote in Scotland’s referendum whether they want that.
  10. If the process that has been started touches on so many areas of the constitution, is it responsible to do this in a matter of months.  Is this not the catalyst for a root and branch review of the constitution?  Everything should be on the table, not just the devolution settlement: electoral system, human rights, House of Lords and sovereignty (which necessitates resolving our stance on the EU).  That will take years but if the current system is ‘broken’ (to use the Prime Minister’s word) then it needs a proper repair and not yet another running repair.

 

Finally, I cannot resist a comment on the result.  Hopefully the analogy I am about to draw will not belittle too much the constitutional significance of what has happened in the last 24 hours.  But it seems to me apt.  It is often said that supporting the Scottish football team prepares you for anything.  I now think that is literally true.  The feeling I have this morning, having found myself in the minority of my countrymen, is reminiscent of the feeling I am all too often left with as I walk away from Hampden having just watched Scotland play one of the top footballing nations: weeks before the match victory is accepted to be impossible; but as the day nears a belief begins to build that we might pull off an unexpected result; but once the match has finished you walk away thinking ‘we almost got there’, ‘so proud of how we played today’, ‘that was always likely to be the result’, ‘at least we gave them a run for their money’ and, the consolation thought, ‘after a performance like that I am sure we will do it next time’.  Today feels the same, but without the consolation of next time to look forward to.  But, equally, the reaction of “no” voters I have spoken to reminds me of another common emotion of the Scottish football fan, this time having just played a so-called ‘lesser’ football nation: relief, ‘that was a bit close for comfort’, ‘we made that hard for ourselves’ and ‘we better improve going forward’.

Let’s hope that final emotion endures.  If the legacy of the referendum is that meaningful constitutional reform finally comes to the United Kingdom, then something really positive will have come from the vote.  Whether that can be done in the timescale promised is another matter.  Indeed, there is a good argument to take our time and do this properly.  But to finish the football analogy, all too often you arrive at Hampden for the next match after that ‘too close for comfort’ result to see the same players, in the same formation with the same tactics.  Memories can be short.  Hopefully the unreformed House of Lords can stand as a reminder of how momentum can be lost and the commitments made today are seen through to their conclusion.

Paul Reid is an Advocate with Ampersand Stable and a part-time tutor of Public Law at the University of Edinburgh

Suggested citation: P. Reid, ‘Where now after ‘no’? A starter for 10.’ , UK Const. L. Blog (19th September 2014) (available at http://ukconstitutionallaw.org).

1 Comment

Filed under Scotland, Uncategorized

John Stanton: Democracy and Scotland: Turning out for something special

johnAnd so the 2014 Scottish Referendum is done. The people of Scotland have voted and have rejected independence to the tune of 55% – 45%. Of course, the matter is far from settled and over the next few months, talk of devolution and of the English Question will no doubt feature prominently and be at the forefront of academics and politicians’ minds alike. Whilst the ‘No’ vote prevailed on the night, that vote wasn’t an acceptance of the status quo but for a fresh devolution discussion and settlement; one that would and could take place within a relationship of unity. Only time will tell if the desired constitutional reform materialises and the form that it will take.

There is, however, already one clear winner – democracy.

This important question of constitutional significance was left to the people of Scotland and, under the Edinburgh Agreement, was to be settled by one clear question, with the result taking a simple majority of its responses. This, of course, is to be praised. It goes right to the very heart of a democratic system that people should have a say on important, constitutional issues that directly affect the way in which they live and are governed. That is why there was a referendum in 1975 to determine continuing relations with Europe and it’s why we voted in 2011 on questions of electoral reform. Seeking popular opinion on questions of Scottish Independence was going to be the only way of democratically and fairly settling the issue. That the opinion of 16 and 17 year olds was included in that consultation only increases the democratic relevance of the vote and tests the water for potential electoral reform in the future.

What is most notable, however, is the turnout at the referendum, which is reported as being almost 85%. According to figures published by the Guardian, late in 2012, (http://www.theguardian.com/news/datablog/2012/nov/16/uk-election-turnouts-historic) you would have to go back to the General Election of 1951 (82.6%) to find a turnout that even comes close to this figure, and to 1997 to find the most recent occasion on which more than 70% of the population went to the ballot boxes. Even the Scottish Devolution Referenda of 1979 and 1997 failed to inspire more than 63.6% and 60.2% voters respectively. Problems with voter turnout are far from new and have troubled democratic processes in the UK for some time. The last three UK General Elections show an average turnout of just 62% whilst, at the local governmental level, the average across the country has dipped as low as 31% in recent years. Are there lessons to be taken from the Scottish Referendum, then?

As part of a recent and ongoing qualitative research project into local authorities in London, I have recently been exploring the trends of community and citizen empowerment and the manner in which people engage with local issues. One thing that has come to light is that individuals tend to participate, volunteer and get involved due to personal inclination and motivation, and not as a result of anything that centralised government might say, do or provide. Many people take pride in their identity, where they live and the spaces in which they spend their daily lives and if they feel that they can make a real difference, contribute something meaningful and work to make local spaces better, then – out of the good of their own hearts – they will do so.

Though Scotland and the referendum on Independence is a totally different issue, I think that there are parallels to be drawn between local empowerment and the high turnout.

The people of Scotland were offered a clear question and were promised that a simple majority of either ‘yes’ or ‘no’ would prevail. It became clear that the outcome and the consequences were in their hands and that they had the opportunity to make a meaningful contribution to the debate surrounding the future of Scotland and the United Kingdom. Voters felt that they were making a real difference and that somebody was listening.

In addition, the question – “should Scotland be an independent country?” – appealed to individuals’ basic identities and did not rest on what X political party was promising or what party Z would do differently. It was not about individuals taking up opportunities provided and set out by centralised authorities on issues that only politicians would continue to discuss, it was about personal identity and motivation to have ‘a say’ in an issue that affected their day-to-day lives.

Though campaigns and the media also played their own, inevitable part in inspiring people to get out and vote, one thing is clear. The question settled at the Scottish referendum was an important one for the people of Scotland and one that they themselves were given the opportunity to resolve. As an issue, it transcended political differences and appealed to instincts and characteristics that are more fundamental. And this, I think, is partly why the turnout was so high yesterday.

At General Elections, there is often much talk of disengagement with the system, disenchantment with the candidates, of votes counting for nothing and of all parties offering the same policies, which will come in regardless of what the public thinks. As a result, turnouts are not high enough. Individuals perhaps feel that they don’t make a difference, that there are few options and that things will go on around them regardless of their input.

Democracy is a wonderful, powerful and essential tool in modern society; absolutely fundamental to any working constitutional system. But it has to be used in a way that gives choice, allows people to make a difference and puts their needs first. We perhaps saw that yesterday for the first time in a long, long time.

 

John Stanton is a lecturer in law at City University, London.

Suggested citation: J. Stanton, ‘Democracy and Scotland: Turning out for something special’ UK Const. L. Blog (19th November 2014) (available at http://ukconstitutionallaw.org).

 

 

2 Comments

Filed under Scotland

Mark Elliott: Scotland has voted “no”. What next for the UK constitution?

MarkAfter a very long — and at times electrifying — campaign, a modest but decisive majority of those who participated in the referendum on Scottish independence have voted “no”. In one sense, this is the end of the process — even if, bearing in mind the main UK parties’ still-to-be-fulfilled promises about further devolution, it is only the beginning of the end. In another sense, however, it might turn out to be only the end of the beginning.

Had Scotland voted “yes”, this would have represented a constitutional shock of seismic proportions, and would quite conceivably have resulted in major constitutional changes in the remainder of the UK. It is less certain that such changes will follow the “no” vote. Nevertheless, it is likely that the “no” vote will leave at least some sort of — and potentially a very significant — constitutional legacy thanks to the conferral upon the Scottish Parliament of the additional powers promised by the main UK parties during the final weeks of the independence campaign.

It is not, however, obvious that the changes provoked by the referendum will — or should — be confined to the beefing up of the existing devolution system. As the debate moves on from the falsely binary form — independence or Union? — it took during the campaign, a more searching and granular debate can and will succeed it. (“Falsely” binary because, as I have argued before, both independence and Union are highly catholic concepts that bear a range of meanings and are capable of shading into one another.) That debate will concern not the apparently extreme options that were on offer to the people of Scotland, but the constitutional smorgasbord of possibilities that arise when we consider what kind of Union should exist, as we move forward, between England, Northern Ireland, Scotland and Wales.

Federalism?

The obvious counterpoint to the present system is a federal one. Some — including Lady Hale JSC — have gone so far as to argue that the UK is already a federal system. This is incorrect as a matter of technical constitutional law, since the principal hallmarks of a federal system are absent from the UK. The system of devolution is asymmetrical, with different parts of the UK having different types and amounts of power (and, in England’s case, none); the relationship between the central government and each of the four home nations is different; and the legal power vested in devolved institutions is insecure in the sense that it flows from UK legislation that remains within the legal control of the Westminster Parliament, as distinct from being enshrined in a written constitution that is immune from unilateral amendment by a single institution.

However, recognising that the UK does not conform to the technical paradigm of the federal model gets us only so far — not least because, like independence and Union, federalism is a concept whose elasticity tells against over-emphasis of technicality. Demonstrating an admirable grasp of such matters, former Prime Minister Gordon Brown, in an article in the New Statesman in June 2014, points out that the UK’s constitutional architecture increasingly tends towards, even though it does not fully conform to, a federal model. For example: in theory, the present system depends upon the Westminster Parliament’s ongoing acquiescence in the autonomy of devolved institutions, because, in theory, Westminster could unilaterally override legislation enacted by — or even unilaterally change, diminish or abolish the powers of — such institutions. However, the theoretical position described by the doctrine of the sovereignty of the Westminster Parliament is radically transformed when viewed through the prism of political reality. From this perspective, the true measure of constitutional security enjoyed by devolved institutions in the UK is comparable to that which is enjoyed by their counterparts operating elsewhere under federal arrangements.

Yet for all that the current arrangements may disclose traces of federalism, they also remain clearly distinguishable from that model. Its adoption would entail major constitutional innovation, bearing in mind that the vast majority of the country — i.e. England — is currently exempt entirely from the devolution scheme. A genuinely federal model would involve the creation of exclusively English institutions sitting — alongside their equivalents in the other three home nations — under the umbrella of pan-UK federal institutions. This would represent an enormous constitutional change; and while the scale of that change is not in itself a good reason for rejecting it, such a fundamental alteration to the constitutional fabric ought not to be undertaken lightly.

Whether a federal system in the UK would be appropriate must be considered holistically. It would be blinkered to advocate its adoption merely because it would be in the perceived interests of one or some — as opposed to all — parts of the country. By definition, a federal model would be all-encompassing, and would change the basis of the relationship between all four home nations, as well as the relationship between those nations and central institutions of the UK state. But in spite — or perhaps because — of such radical implications, talk of federalism is on the rise as we emerge, blinking, from the Scottish independence debate.

This is likely so for two reasons. From the perspective of the devolved nations, federalism offers a degree of lock-in to the decentralisation of power which outstrips that which can be supplied by mere devolution. And although, as noted above, the constitutional security enjoyed by devolved institutions is considerable under the current system, a federal model would (among other things) supply greater and more-formal guarantees concerning both the balance of power and (just as importantly) the process by which any further alterations to that balance would fall be negotiated and secured. Meanwhile, from the perspective of England, federalism offers the prospect of a form of “home rule” that would address concerns about the increasingly anomalistic lopsidedness of the existing constitutional architecture. Viewed in this way, a shift to a federal model might facilitate the containment of English nationalist tendencies, which are certain to be awakened in the aftermath of the Scottish independence debate.

England

The position of England cannot be considered in isolation — any change to its position would necessarily have implications for the situation of the other home nations — but it is increasingly obvious that it must be confronted head-on. England has long remained (as Richard Rawlings pithily puts it) “the spectre at the [devolution] feast” because its sheer political, numerical and economic weight has generally been judged to exempt it from the case in favour of devolution. A very large part of that case has always been that Scotland, Wales and Northern Ireland should be afforded an opportunity to move out of the shadow cast by England by virtue of its size, thereby allowing those parts of the country to live out their distinct political, cultural and economic identities. (There are, it goes without saying, other layers of complexity that apply in the particular case of Northern Ireland.)

On this view, to propose the extension of the devolution settlement to England would be nonsensical: it hardly needs to step away from its own shadow. However, the position is surely more complex than this. Even if the initial impetus for devolution is understood in the way sketched above, it does not follow that — now that there is devolution elsewhere — devolution remains inapposite in England. It is one thing to argue that the arguments forming the initial impetus for devolution had particular purchase in relation to the three smaller home nations; it is another thing to argue that the inapplicability of those arguments to England ought permanently to exclude it from any recognition within the devolution settlement. What, then, might be the positive arguments in favour of revisiting England’s position? Two are particularly pertinent.

The first argument concerns fairness; it is an old one, but it is no less compelling for that. The so-called West Lothian problem — which concerns the capacity of Westminster MPs representing non-English constituencies to legislate on matters affecting only England — is an increasingly pressing one. At its heart lies a basic unfairness stemming from an absence of reciprocity: while English MPs have renounced involvement in whole swathes of devolved matters, MPs representing constituencies located in devolved nations remain capable of influencing, sometimes decisively, the passage of legislation affecting only England.

Moreover, the electoral-college function served by the Westminster Parliament — its political composition determines which party or parties form the UK Government — means that the West Lothian problem is capable of distorting the political make-up of what is, for many purposes, the English government. Indeed, in 2010, the Conservative Party could comfortably have formed a single-party majority government had only English constituencies been taken into account.

It was always only matter of time before this issue is transformed from one that concerns constitutional anoraks into one that impinges significantly upon popular consciousness and stokes resentment. And that time has very likely now arrived. As the competence of devolved institutions expands — resulting in commensurate diminishment of Westminster’s involvement in matters affecting the devolved nations — so the anomalistic nature of the involvement of MPs from outside England in purely English affairs becomes more glaring. Indeed, it is highly unlikely that promises of further powers for Edinburgh will be politically deliverable unless accompanied by a resolution of the West Lothian problem.

The second argument concerns identity. One of the purposes of devolution is to acknowledge and to give institutional life to differential national identities within the UK. Do existing arrangements adequately accommodate this need as it pertains to England? One response to this question is (as mentioned above) to argue that English national identity receives adequate expression thanks to the size of England coupled with its (ambivalent) representation within the pan-UK Parliament and Government. However, whether this is so depends, at least in part, on how well UK institutions are able to perform their secondary function as English institutions (a question that takes us back, at least in part, to the West Lothian problem). A further issue, however, is whether the focus of this debate should be an undifferentiated English identity or multiple English identities — and this, in turn, invites questions about the extent to which we should be concerned with England’s place in the Union, and the extent to which we should instead be concerned with the place of English regions within England.  A complex set of issues — encompassing not only devolution to but also devolution within England — therefore arises.

Big-bang constitutionalism — or a typically British response?

Where, then, does this leave us? A dramatic response would be a form of “big-bang constitutionalism” involving a fundamental rethink about how the constitution works, how the four home nations relate to one another, how they relate to the UK tier of government, and where and how more-local levels of government should fit in.

The upshot might be a genuinely federal model involving the creation of an English Parliament and an English Government invested with powers similar to those wielded in Edinburgh, coupled with confining the Westminster Parliament and the UK Government to matters that need to be dealt with on a pan-UK basis. The adoption of such a system would necessarily entail the enactment of a written constitution enjoying a hierarchically superior legal status, so as to render the balance of power between the different tiers of authority constitutionally secure and impervious to unilateral disturbance — the absence of such characteristics being incompatible with a federal model. But while a “federal” system is increasingly in the contemplation of those arguing the case for Scotland to remain a UK with a reimagined constitution, it is not at all clear that the language of federalism is being used in a technical sense as opposed to being a rhetorical flourish. It is also widely argued that a truly, technically federal system in the UK would be highly problematic given that one of the four sub-federal units, i.e. England, would be so large and dominant, accounting for around 85% of the population. As Professor Vernon Bogdanor recently pointed out in The Times (£):

there is no federal system in the world in which one unit represents more than 80 per cent of the population. The nearest equivalent is Canada, where 35 per cent of the population live in Ontario. Federations in which the largest unit dominated, such as the USSR, Czechoslovakia and Yugoslavia, have not been successful.

A second possibility would be to roll out devolution to England, too. This would stop short of a federal model, since the new English (like the existing devolved) institutions would be creatures of the Westminster Parliament, lacking the constitutional security inherent in federalism. Such a system would also remain distinguishable from federalism because the devolved institutions in each part of the country would continue to wield different types and amounts of authority. As such, a system encompassing devolution in England would — by definition — not amount to full-blooded adoption of a federal system.

It would, however, represent a major constitutional change — and, as such, it would run up against much the same problem as the one cited by Bogdanor above: namely, England would acquire a distinctive institutional machinery that would (on the argument adopted by Bogdanor and others) risk destablishing the Union thanks to England’s relative size. We should not, however, adopt this argument unthinkingly, given the position at which we have arrived today. In its present condition, the Union is hardly in a particularly stable condition. It is therefore at least worth balancing any risk of destablisation against the possibility that creating English institutions might in fact exert a stablising influence, by enabling English nationalist impulses — which, as surely as night follows day, will be ignited by perceptions that Scotland is being accorded preferential treatment through the devolution of additional powers — to be accommodated within the Union.

A third possibility — and by far the most likely one, bearing in mind the Prime Minister’s statement of this morning — is an incremental, as distinct from a big-bang, approach. Such an approach would be of a piece with the incrementalist, pragmatic tradition that is arguably the defining characteristic of British constitutionalism. This tradition treats constitutional reform as an ongoing process — one that addresses challenges as they arise, rather than undertaking holistic reimaginings of the system. If this tradition prevails, then a Scottish “no” vote — and the associated conferral upon Scotland of additional powers — will likely trigger a series of consequences.

First, the possibility of conferring further powers upon devolved institutions elsewhere in the UK will arise. If Scotland is given additional powers in the aftermath of the “no” vote, it is inevitable that Northern Ireland and Wales will agitate for equivalent treatment.

Second, the West Lothian problem will be confronted, whether in the way proposed by the McKay Commission or otherwise, whilst stopping short of the more-radical option of creating wholly distinct (either federal or devolved) English institutions. Of course, as those who have wrestled with the West Lothian problem well know, there are no easy answers to it. Even curtailing the capacity of non-English MPs to influence English law is not a magic bullet, not least because this creates a further problem known as the “shifting majority”, the difficulty being that an administration formed from a party with a pan-UK majority would be unable to secure its English legislative programme if it were to lack a majority of English MPs. Indeed, the shifting-majority problem is a good illustration of the problems invited by piecemeal, as opposed to holistic, constitutional reform: pull at one loose thread, and a wider unravelling may follow.

Once — as, at some point, there inevitably will be — a UK government that commands a majority in the House of Commons thanks only to the ballast accorded by MPs from outside England, this problem will become all to apparent. It will strike at the heart of the Westminster model, according to which the government of the day commands — and must command — a majority in the House. In contrast, once the West Lothian Question is resolved, the possibility arises of a UK  government being incapable of securing a majority in the House of Commons on the vast majority of the — English — legislative business transacted there. While, therefore, the notion of “English votes for English laws” may sound as modest as it is sensible, it opens up a new can of worms that may be hard to contain. In particular, if the resolution of the West Lothian Question results in a de facto English Parliament within the Westminster Parliament, it will be hard to resist some degree of reform on the executive plane. The logic of an (effectively) English Parliament may, in other words, dictate the establishment of (in some form) an English government. A real possibility, therefore, is that tackling the West Lothian Question will — unintentionally — turn out to be the mere precursor to more far-reaching institutional reform, the logical endpoint of which is something more closely akin to English devolution of full federalism.

Third, even if reticence around pan-England institutions closes off discussion about devolution to England, it is likely that greater attention will be given to devolution within England: that is, devolution not to all-England institutions but to regional English institutions. Indeed, Nick Clegg and David Miliband have already said as much. Such proposals fell spectacularly flat when proposed in north-east England a decade ago, but that is not to say that different proposals would also fail. However, whether devolution within (rather than to) England is a fitting response to the challenges arising from the Scottish referendum is another question. The answer to it turns on (among other things) the prevailing sense (or senses) of belonging that operate in England: do those living in England identify with — and wish to be represented by — institutions that reflect an undifferentiated notion of Englishness, or would they identify more readily  with institutions standing for particular sub-strands of English identity?

Fourth, the constitutional position of devolved institutions in Scotland, Wales and Northern Ireland will become increasingly entrenched — not by dint of legal security wrought through the adoption of a technically federal model and the disavowal of Westminster’s sovereignty which that would entail — but thanks to the ongoing solidification of constitutional conventions that render unilateral interference by London in devolved affairs every bit as inconceivable as central incursions into local matters within a federal system.

These incremental steps would not amount to wholesale constitutional reform, but they form part of a narrative that it has been possible to discern for some time: of a system that is moving irrevocably away from the centralist model that was once said to characterise the UK constitution, and towards a system that, while not federal in the classical sense, is manifestly not unitary in nature.

Just as it does not now, so the UK constitution would not, were these things to come to pass, conform to any particular, identifiable model. It would not, for instance, be neatly characterisable as a federal system; nor could it be described as a unitary state. Rather, the constitution would remain — as it has been for centuries — messy and incomparable. But these characteristics are not necessarily negative ones. Untidiness is a price that is arguably worth paying for a system that exhibits a degree of flexibility, albeit that the practically irreversible dispersal of power that devolution is accomplishing inserts brakes upon that flexibility which are novel in this country. Nor is uniqueness necessarily something to be disparaged. That the UK constitution compares to no other should not inevitably be taken to mean that there is something defective about it. Rather, it is testament to the uniqueness of our epic constitutional story. The “no” vote in Scotland means that — at least for the foreseeable future — that story will endure. Nevertheless, it is hard to deny that — in ways that are, in the immediate aftermath of the referendum, difficult to forecast with absolute certainty — the “no” vote will be shown by history to have marked a profound turning-point in that story.

Mark Elliott is a Reader in Public Law at the University of Cambridge. This post was first published on his blog, Public Law for Everyone. Mark can be found on Twitter as @DrMarkElliott.

3 Comments

Filed under Constitutional reform, Devolution, England, Scotland, UK Parliament