Tag Archives: Scottish Referendum

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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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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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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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).

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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).

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