The First Minister of Scotland has been pressing for a further independence referendum, and the UK government seems determined to refuse the request. I am not sure that either party means what it says. If the polls are to be believed, there is a narrow majority against independence; and in a time of great insecurity, with the difficulties of leaving another union all too apparent, many voters will be apprehensive about what a vote for independence might mean in practice. The longer the process, the more likely the movement for independence is to gain in credibility and support. If the UK government genuinely wishes to maintain the Union – which is uncertain – a proposal for independence is far more likely to be defeated if it takes place very soon.
On the other side, one has to ask whether the Scottish Government really is prepared for a referendum campaign that will avoid the traps that the last one fell into. During the long campaign before the 2014 referendum, the Scottish Government presented a ‘White Paper‘ with specific plans for action. Alex Salmond told the electorate that this is what they would be voting for. That was a miscalculation: it meant that every detail that people disagreed with became a reason to vote against the deal. The debate about currency was an illustration: units of exchange are not decided exclusively by governments, there was no need to commit to any specific plan, Scotland could use multiple currencies (it already trades oil in dollars) and in practice no-one can stop people accepting trades in foreign currency. Committing the country to a specific single policy outcome was unnecessary and destructive.
Similarly, the draft Independence Bill went off-track when it started to legislate for future policies, such as sustainability or the possession of nuclear weapons, which serve no useful purpose in a constitutional document. None of the constitutional issues that have to be nailed down was clearly settled. The draft Bill left gaps in terms of rules of recognition (such as delegation of authority to ministers or to local government), change (such as how to amend the constitution) and adjudication (such as the power of the courts). It assumed that there would be only one legislative chamber, which could not possibly have the capacity to deal with national legislation; it proposed no constitutional limitations on the power of government. I argued at the time that Scotland’s great strength was in participative public engagement, and that what Scotland needed to have was an extended period of discussion about constitutional arrangements. That discussion has not happened yet.
An early referendum would require the Scottish Government to go into the campaign either with another White Paper – a settled prospectus – or with a promise to have a discussion in time to come, something that would depend largely on on trust. Neither or those is a winning proposition.
Nicola Sturgeon has announced that there will be a further referendum on Scottish independence. I thought the arguments were finely balanced in 2014, and I did not vote in favour. The main positive arguments for independence seemed to me to be about
- responsiveness to need
- self-determination, and
The main positive arguments for the union were
- social protection and security,
- the increased capacity to act with common resources and
The last of those arguments has been exploded by recent events: sticking with the UK while it prepares to jump off a cliff is hardly a pragmatic choice. The other arguments for the union are still valid, though the first has been undermined to some extent by the erosion of public services and social protection under the mantle of ‘austerity’; and all of the arguments for union are as much arguments for union with Europe as they are for union with the UK. The scales have tipped, and as they stand now I will vote in favour this time.
If Scotland is going to be serious about independence, however, some of the holes in the Scottish Government’s proposals have to be filled. Their initial attempts to outline a constitutional settlement were led astray by the inclusion of specific policies (such as policies on defence) rather than constitutional powers. I hope we won’t have a repetition of the disastrous White Paper, which presented a policy manifesto instead of an agenda for independence. We do need to embark on a constitutional debate.
The Brexit process has been marked throughout by a thoroughgoing disregard for democratic principles and political legitimacy.
First, the referendum vote excluded more than a million British citizens with a direct interest in the issue. That decision was upheld in court, which meant that it was legal, but it meant at the outset that the process was neither democratic nor legitimate.
Second, the process to date has overridden the rights of the minority. James Madison argued, in the Federalist Papers, that every majority had to be understood as a coalition of minorities, and the convention of majority rule was based on respect for the rights of the minorities that remained. That principle is fundamental to liberal democracy. The government has a duty to find a resolution of the vote that will maintain the fundamental rights of the citizens who it is bound by law to protect. However, nothing in the debates, and nothing in the government’s current plans, has given any attention to the issue.
Third, the government is proceeding without respecting its previous undertakings to consult directly with devolved governments. This, again, is not about the legal point; it’s about legitimacy. Ms May’s administration has been messing around for six months, and now they have the gall to claim that there isn’t time. A decision to consult is not a commitment to agree. It is disturbing that the consultation has not taken place.
Fourth, the government has proceeded in a way which is inimical to democratic conventions. It is disgraceful that they should have tried to go ahead without parliamentary debate, and no less disgraceful that it should have taken a citizens’ challenge to establish the obvious principle that they do not have the power to wipe out existing laws or citizens’ rights by fiat. The most surprising thing about the Supreme Court’s decision in Miller is that it should have to be said at all.
The New Years Honours lists threatens, as usual, to be controversial. I always read the lists, because usually someone from the Social Policy community will have a gong dropped on them, and in most cases the award of titles offers everyone a source of innocent amusement. But there’s also a serious side, because for one group in particular – the House of Lords – a title is also an appointment to the legislature. Recent appointments have been open to three criticisms. There are too many Lords (822 at the last count); there’s a continuing political imbalance in the Lords; and there’s no effective way to get rid of them.
Most of the attempts to reform the Lords have foundered, and I doubt it’s worth aiming for root and branch reform. There are however some very simple, marginal changes that could transform the House.
First, distinguish the award of a peerage from the process of appointment to the Lords. As things stand we have people who could be distinguished legislators who won’t accept a peerage – not to mention a leading party that won’t nominate appointees. There are other peers who have no interest in taking part in the functions of the House. The separation of functions should not be problematic; we have already broken the link between titles and attendance by excluding most hereditary peers. All the honours system has to do is to attach an invitation to join the second house in cases where it is appropriate, and not to attach such an invitation automatically.
Second, offer appointment to the House of Lords for a fixed period of time – for example, seven years, renewable once. That removes the problem of organising retirement, and the invidious implication that age in itself should set the bar. If we begin now, after deaths and departures there would still be up to 600 of the existing 822 peers remaining after seven years (and probably less), but none after the end of the second term.
Third, cap the number of appointments that are possible. If we want eventually to have a revising chamber of 400, a fourteen-year limit implies a replenishment rate of about 30 new members a year, or 150 in a Parliamentary term. This would limit the excessive numbers over time. Because it would also depend on a regulated flow of new entries, it should be possible to address the problems of political balance as well as affording an opportunity to deal with the imblance of gender.
Fourth, bar all persons from participation in the House of Lords who have made any substantial political donation in the preceding five years. Places in the legislature should not be for sale.
Immediately after the referendum on independence, David Cameron announced that he was gong to take action to bar Scottish MPs from voting on English laws. The issue he’s working on, English Votes for English Laws, sounds initially plausible if you’re not a Unionist. The problem has been framed as the West Lothian question: that people who have the exclusive power to vote on issues affecting themselves shouldn’t be able to vote on the same issues as they affect others. There are three things wrong with that way of thinking about it.
First, the UK parliament is sovereign: devolution, and the position of the three national parliaments within the structure, is based on delegated authority. The power to vote on Scottish laws isn’t exclusive: the UK Parliament has retained authority to legislate for Scotland, and it uses that authority frequently, often through the use of a “Sewel motion”. If the representatives of one nation can’t vote on matters affecting another, then English MPs should not be able to vote on Sewel motions or indeed on any legislation with effect in Wales, Northern Ireland or Scotland. That would have to include all previously reserved matters. Denying MPs a role in the legislature implies either that the sovereignty of parliament must be divided or that those MPs are not full members of the sovereign body. Dividing the sovereignty of Parliament is not compatible with Unionism; denying the right to participate in the sovereign parliament is not compatible with democracy.
Second, votes in one part of the UK affect what happens in other parts. The Northern Ireland Assembly have fully devolved power over their own social security system – but it’s been made abundantly clear that what happens in UK social security affects what happens in Northern Ireland’s independent system, and the fines being levied on Northern Ireland currently relate to the specific rules introduced for Employment and Support Allowance and Personal Independence Payment.
Third, devolution is not a good reason to reduce the authority of regional representatives within Parliament. The government has promised further devolution to English regions, for example enabling a new Manchester-centred authority to act on policing and transport. Should that mean that Manchester MPs shouldn’t vote on transport and policing issues in Parliament? If we follow the principle to a rational conclusion, it should mean that there should be no representation at national level whenever any region, city or community is empowered to make a local decision in relation to the same issue. That would be consistent with some types of federal government, but it really doesn’t relate to the UK model.
I’ve argued in previous posts for a different type of approach to the UK constitution. The UK suffers badly from obsessive centralisation, a lack of constitutional safeguards and an imbalance of power that allows central government to impose uniform policies on all the other actors. The English regions need to have the Treasury’s foot taken off their necks as much as the nations of the Union do. (The power to issue municipal bonds might be a good place to start.) There may well be a case for an English parliament or parliaments, but that has to be developed through devolution or delegation of authority to appropriate representative bodies.
Scotland on Sunday reports that David Mundell, the Secretary of State for Scotland, has “challenged” Nicola Sturgeon to specify how new powers will be used. According to the report, “the UK government will not meet the SNP’s drive for more powers unless Sturgeon’s party produces ‘detailed proposals’ to demonstrate the benefits of further devolution.”
It’s been deeply embarrassing at times to see how little is understood in Westminster about what has been happening in Scottish politics, and this is another prime example. The first problem is practical. Mundell’s ‘challenge’ amounts to a requirement to produce a full legislative programme which cannot legally be enacted in its own terms. Why would any responsible government do that? The second problem lies in the legislative process. Nicola Sturgeon is the First Minister of Scotland, and that is not much like being the governor of a province of the Roman empire, or for that matter a directly elected Mayor. She does not speak for, and cannot bind, the Scottish Parliament. All a government can do is to propose legislation, and use their best endeavours to deliver it – and in Scotland, where the parliament has fallen inexplicably into the habit of listening to reasoned evidence from people who disagree, that does not mean that it will be done. (Look at what happened to the review of criminal evidence.)
The third problem is an issue of principle. Time and again, devolution has been seen as a process where the UK Parliament permits local authorities to administer central policies through delegated authority. Mundell’s ‘challenge’ asks for the Scottish Government to come up with detailed proposals that he will then review, one by one, to determine whether or not they can be permitted to go forward for consideration. Scotland has spent more than two years considered an argument for something different – the power to make its own decisions in defined areas. The ‘vow’ said that this was going to happen; the Smith Commission said that it would happen; and the latest draft legislation bends over backwards to make sure it won’t happen.
It will take a while for the implications of the Conservative victory to come to fruition, but some things are already clear. The new government is set to introduce three policies which have major implications for the constitution of the United Kingdom:
- withdrawal from the European Convention of Human Rights
- a referendum to leave the European Union, and
- a determination to withdraw the right to vote in Parliament from one of the constituent nations of the United Kingdom (and as a special bonus, denying the third largest party in the commons the power to vote against the government).
Any one of these policies has the potential to go horribly wrong. Taking all three together looks like a sort of military adventure, where every step is designed to ensure pandemonium in case one of the other explosions fails to go off.
We have just been given an illustration of how a devolved social security system might work. Northern Ireland has had the competence to alter social security benefits, on and off, for much of the last century. The Northern Ireland Assembly’s current offence is that it’s failed to pass a Welfare Reform Bill, intended to implement a series of measures imposed by the coalition government in London. The measures include
- introduction of Universal Credit
- introduction of Personal Independence Payment
- changes to Housing Benefit
- introduction of a Benefit Cap
- end of the current Social Fund scheme which will be replaced by a new service called Discretionary Support
- changes to Employment and Support Allowance
- introduction of new Fraud and Error powers
- introduction of further sanctions and hardship measures.
There’s actually rather more in the Bill, including a clause restricting the access to Jobcentres of the sex industry and a reduced fee for the dog licences which the rest of the UK doesn’t have, but leave that aside. Most of the bullet list has been implemented in Great Britain, but three have had very little main effect on finances to date. Universal Credit hasn’t really happened, and will cost money when it does; PIP is grinding out exceedingly slowly, and in any case the new rules do very little directly to affect the roots of increasing costs; and the benefit cap is a token measure which affects very few people nationally, and fewer still outside London. Of the others, the Social Fund is capped anyway, the bedroom tax has all but collapsed because of the need for exceptions, and new measures for fraud can’t be expected to do anything that thirty years of crackdowns haven’t done, so the bulk of the prospective savings come down to two measures – reassessment of ESA entitlement and sanctions.
At present the Northern Ireland government is accused of overspending on its total budget by over £100m. Given a budget of roughly £10bn, Northern Ireland’s deficit is hardly profligate – and it’s important to recognise that the province took a hammering in the financial crisis, and is still in the grip of a major slump. Nearly as much money again, however, will be added to to the deficit as the result of £90m fines being imposed on Northern Ireland for failing to comply with Westminster’s diktat. I’m not going to suggest that Nick Clegg’s comments are patronising, because patronising is such a long word and it will only confuse people. But when he explains that the Assembly has to accept “financial realities”, it seems that financial reality consists of the lesser orders doing what they’re told to do.
Despite the solemn ‘vow’ to devolve further powers, David Cameron has argued that the issue of greater powers for Scotland has to be taken together with the devolution of power in the rest of the UK. That might sound plausible initially, but the problems aren’t capable of being resolved in those terms. By any test, devolution in the UK is going to be imbalanced, or ‘assymetric’. The crux of the problem is that Scotland has an entirely distinct system of law, Northern Ireland has legislative authority, and Wales does not. If England is legislated for as a unit, there will be a permanent imbalance of power, status and responsibility. If power is devolved to the English regions, they will still not have the same range of powers that Scotland does.
This is not about federalism. Federalism reserves power to the states. Devolution distributes power from the centre. What we’re talking about currently is devolution, and that in limited terms. The current discussion seems to be focusing on the devolution of powers relating to income tax (not to tax overall), ‘welfare’ (by which the government seems to mean Housing Benefit, but not JSA or ESA) and some economic development. It doesn’t seem to include other vitally important issues, such as public spending, issuing bonds and job creation. It doesn’t seem even to extend to transport: the Scottish Government can’t change the air passenger duty or stop people parking on pavements. London really must relax its grip.
With the loss of the referendum, it’s likely that the Scottish Government will now abandon the consultation on the development of a Scottish constitution. They don’t need to do that. Constitutions are not only needed for independent countries. Any corporate organisation which wishes to specify its governance and source of authority can benefit from a constitution: charities, religious bodies and voluntary organisations commonly have one. The primary purpose of a constitution is to identify the principles according to which an organisation or authority is to be governed, the institutions through which it will be done and the rules through which governance will take place. Those issues are all relevant to the governance of Scotland, whether or not it is an independent country.
With that in mind, I’ve made a submission to the consultation, which is still open until 20th October. Here’s my submission.