Tag: the UK constitution

How Better Together has been losing the argument

The latest poll puts support independence, for the first time, above the ‘No’ vote.  I am still sceptical that this will translate into a ‘Yes’ vote overall – the polls have narrowed, but they have not turned.  It does seem clear, though, that Better Together is having the worst of it – and as things are likely to develop in the short time before the referendum, they will make things worse again.  [An example, on 10th September, is former PM John Major’s cringeworthy assertion that Scots ‘haven’t understood’ the objections to independence, after a two-year campaign.]

There are three fundamental problems with the No campaign.  The first, which at this stage they can do nothing about, is that ‘yes’ has been much better organised – mobilising people in local campaigns, getting them to sign pledges, involving them in discussion.  The second is that Better Together has been relentlessly negative; honorable exceptions Gordon Brown, Douglas Alexander and JK Rowling have tried to inject some positive arguments, but the positives have been drowned out in a sea of negativity.  At this late stage, it is still hard to find what anyone, on either side of the border, is gaining from the Union.  The third problem is that bad arguments have drowned out good ones.  There have been so many foolish claims – about Europe, immigration, currency,  defence, and so forth – that it has become hard to pick out the arguments which have any merit. In the table that follows, I’ve sketched out in general terms what I see as the main arguments.  Like the polls, they are finely balanced.

In the next few days, London-based politicians will be falling over themselves to get to Scotland and to offer views and arguments that they think people should be persuaded by.  It won’t work – if anything, it will have the opposite effect.  At this stage, people know many of the arguments.  They’ve heard enough foolishness  to know what not to take seriously  – such as George Osborne’s preposterous assertions about money or  Ed Miliband‘s inane intervention today, suggesting that independence implies a fence on the border.   What they’ve not heard is people saying that it would be good to co-operate or why it might be better to stay.

 

Good arguments for YES

(and what I see as the counter-arguments)

Good arguments for NO

(and what I see as the counter-arguments)
Self determination and accountability.

The Scottish Government wants to continue with a series of unions, e.g. in currency and defence, which will undermine self determination and locate control outwith the country.

 Solidarity and mutual responsibility: the UK founded the welfare state.

The welfare cuts have undermined solidarity; the programme of ‘rolling back the state’ has undermined the welfare state.
Responsiveness to need.

The centralisation of power and functions in Holyrood (e.g. police, fire, council tax and social care) reduces local responsiveness and accountability.

 

 Common physical geography: policies that need to be considered together include maritime policy, transport, energy, communications.

London has ignored issues of remoteness – and most major projects (like HS2) benefit London first.
The failure of UK government to reform and the promise of   participative constitutional development

 No answer – but the last-minute pledge from all parties, a week before the vote, from all parties to an ‘iron timetable’  suggests the force of this argument has belatedly been recognised.

 Pooled resources lead to greater capacity – e.g. the BBC, the NHS (could Scotland support unusual specialisms?), financial control

No answer
Scotland needs a different economic policy from that pursued by all the main parties.

So does England.

 Pooled risks – economic management is better done in a larger unit

 The UK has embraced neo-liberalism and its consequences.

Bad arguments for YES

(with counter-arguments)

Bad arguments for NO

(with counter-arguments)
The White Paper has the answers.

Any settlement must be negotiated and so all answers must be uncertain.

 Uncertainty is scary.

All politics are uncertain – but what we’re sure of to date is bad policy.
The negotiating parties will all agree with the Scottish Government’s assessment of everything.

They won’t.

 Scots won’t be allowed to use rUK facilities – using the pound or watching the BBC.

Special permission to do many things is not needed, and the EU guarantees many basic forms of co-operation.
Institutions like the Bank of England and the BBC are Scotland’s and will be shared.

Institutions won’t be shared, by any precedent in international law. Property assets and financial liabilities should be, but there has been no discussion of property assets.

 If Scotland votes no it will get more powers.

The Treasury will keep a stranglehold – look at the fines imposed on Northern Ireland for not passing the laws that London wants them to have.
 Scots will be £1000 better off.

We don’t know – but it would still be a bad reason to change the constitution if we did.

 Scotland runs a deficit.

The UK runs a bigger one.
There’ll be no working arrangements for a wide range of policies – currency, immigration, pensions, security, etc.

The UK makes these arrangements now with its neighbours – such as Ireland and the Crown Dependencies. The only reason for not doing so would be revenge.

 

The referendum: the gap is closing

The latest polls show the vote for independence running at 47%, to 53% saying no.  The campaign for the Union has been blighted by a very low standard of argument.  There is a long catalogue of poor arguments listed by Paul Kavanagh at Newsnet Scotland; he lists nearly seventy, most of them without merit.  There are lots of other arguments I could add to that list (including several I’ve noted in this blog, such as the idea that Scotland couldn’t borrow, that it couldn’t support a finance industry, that it would have to import pound coins by the lorry load, that it would be at the back of queue to join the EU  or that immigration rules would have to be policed at border).    To my mind, however, the argument that is weakest – and the one which Better Together has relied on most – is that the future is uncertain, as if we didn’t know that.   Being told that the outcomes are subject to negotiation is not much of a reason to vote “no”; that’s politics.

There are bad arguments for independence, too.   Among them are claims that

  • institutions should be treated as ‘assets’ and divided
  • there will be a long series of continuing unions
  • people will be voting for the agenda of the White Paper
  • the UK government will agree with the Scottish Government’s assessments of what is in their interests
  • policies in a wide range of fields will remain as they are (this is not a commitment that can be guaranteed before independence , or
  • people will be better off in the short term (a very bad reason for changing a constitution).

Whatever the outcome, I think there is one theme that has emerged clearly and strongly from the debate.  It is about the failure of politics as usual in the United Kingdom.  George Monbiot writes in the Guardian:

What would you say about a country … that had no obvious enemies, a basically sound economy and a broadly functional democracy, yet chose to swap it for remote governance by the hereditary elite of another nation, beholden to a corrupt financial centre?  … To vote no is to choose to live under a political system that sustains one of the rich world’s highest levels of inequality and deprivation. This is a system in which all major parties are complicit, which offers no obvious exit from a model that privileges neoloiberal economics over other aspirations.  …  Broken, corrupt, dysfunctional, retentive: you want to be part of this?

The core of the problem rests with the highly centralised control of finance and economic policy from the Treasury.  Devolution cannot work without the devolution of economic power: that implies not just taxation, but policies for wages, benefits, public employment, and independent public borrowing through the issue of bonds.  Edmund Burke, considered by many to be the father of the Conservative party, once wrote:  “A state without the means of change is without the means of its conservation”.  Unionists of all political persuasions need to come to terms with that.

 

 

 

 

Devolved benefits in Northern Ireland

I went today to an illuminating session at the Scottish Federation of Housing Associations, where Dr John McPeake, former Chief Executive of the Northern Ireland Housing Executive, explained about benefits in Northern Ireland.  Unlike the Scottish Parliament, the Northern Ireland Assembly has in principle the power to determine laws and rules on benefits: but they seem reluctant to do anything about it.  The guiding principle is referred to as ‘parity’.  The law says this:

 The Secretary of State and the Northern Ireland Minister having responsibility for social security (“the Northern Ireland Minister”) shall from time to time consult one another with a view to securing that, to the extent agreed between them, the legislation to which this section applies provides single systems of social security, child support and pensions for the United Kingdom.

The Department for Social Development describes it in these terms:

the long standing principle of parity dictates that an individual in Northern Ireland will receive the same benefits, under the same conditions, as an individual elsewhere in the United Kingdom.

Those statements seem to me to say quite different things.  The first says that the two legislatures will consult in order to maintain a common framework.  The second one says that the benefits have to be identical.  If that was the case, it could hardly be called a devolved power.

The Northern Ireland Assembly are heavily constrained by Treasury rules, and I understand that they don’t want to incur hefty bills or fines for wandering from the True Path as defined by London.  At the same time, there are possibilities open to them – things they could do without committing themselves to  major expense or upsetting  the applecart.  Let me suggest a small measure.  A goodly proportion of the claimants of ESA are older workers who have effectively retired through disability.    If they were classified in those terms – the equivalent  of a førtidspension – there wouldn’t be a question of work-related activity or reassessment.  This is completely compatible with the existing system, and the cost of introducing it, in marginal terms, would be negligible – it might even save administrative costs.  Northern Ireland has the legal authority to do this; Scotland doesn’t.

 

The independence referendum: into the final straight

We have just over a month to go before the referendum, and the standard of debate continues to be dismally low.  The much-heralded televised debate went over old ground without telling us much.  On the ‘Yes’ side, the central weakness has been a refusal to acknowledge that many issues are subject to negotiation, so they cannot possibly be sealed up in advance.  All Alex Salmond had to say was: “We will have to negotiate terms; I will try to do the best I can for Scotland, but I can’t promise that we’ll get the best outcome on every issue.”  He wouldn’t go that far.  On the ‘No’ side, there has been a salvo of thoroughly silly arguments about why Scotland can’t be independent.  The central question, as Alastair Darling acknowledged quite clearly before he lost his rag, is not whether Scotland can be independent, but whether it should be.

Last year, I tried to sketch out the fields in which independence might make a difference.  Here’s the table again.

Areas where the Scottish Parliament already has authority to act Currently reserved areas where independence would give the Scottish Parliament the authority to act Currently reserved areas where the primary competence would remain with the EU
  • Health
  • Social care
  • Housing (subject to limitations on finance)
  • Planning
  • Environment
  • Education
  • Policing
  • Emergency services
  • Criminal justice
  • Civil law
  • Family law
  • Local government (subject to limitations on finance and competence)
  • Culture and heritage
  • The constitution
  • Economic policy
    • Taxation and fiscal policy
    • Monetary policy
  • Public expenditure
    • Aspects of local government and housing finance*
  • Benefits*
  • International relations
    • Foreign policy
    • Defence
    • Overseas aid
  • Immigration and nationality
  • Access to information
  • Business
    •   Insolvency
    •    Employee protection
    •    Minimum wages
  • Consumer protection
    •    Gambling
  • Energy
  • Transport*
  • Broadcasting

* – devolved in Northern Ireland but not in Scotland
  • Trade
  • Financial services and markets
  • Fisheries
  • Competition law
  • Intellectual property

The White Paper on Scotland’s Future, itself a PR mistake – why was it not presented as a consultation document, and opened to discussion? – touches on a couple of issues, but it can’t give firm answers.  In the last year, we’ve heard a little about the constitution, a lot about monetary policy, something about defence, and occasional snippets about benefits.  The areas which are currently devolved in Northern Ireland (benefits, transport and residual aspects of local government) are prime candidates for further devolution; but it does seem puzzling that Scotland, which has its own legal system and agencies for enforcement, should not have its own rules for employment and consumer protection.   On most of the issues in the central column, however, I’m still completely in the dark.

Nationalism versus metropolitanism: do we want Scottish government to be more like Glasgow?

At the Scottish Urban Regeneration Forum conference, I heard an interesting argument from Gordon Mathieson, the leader of Glasgow Council, who was speaking for ‘Better Together’.  He argued that the Nationalist government, in pursing their project of nation-building, had introduced measures to centralise powers on the Scottish Parliament.  I think that’s right – they have centralised police and fire services,  finance and audit, and are in the process of centralising social care.   What he hoped to see, instead, was ‘metropolitanism’ – focusing on the city-regions (such as Glasgow) rather than Scotland as a whole.  He saw Glasgow as having more in common with Manchester than with Moray.  This, he claimed, was a different, alternative approach from independence.  There, too, he is right: it is a genuinely different position.  I don’t however think  that it’s a particularly persuasive model.  Local authorities in Scotland are big and remote from the people they serve.  At the same time, they find it challenging to organise local services under national constraints.

There is another alternative.  Robin McAlpine, for the Common Weal, argued at the same conference for smaller, participative local authorities on the model of Norway.  That’s an attractive option.  We need to think in terms of  multi-level governance, where a range of different authorities are empowered to meet needs at different levels.  I’m not sure, unfortunately, that a vote either for ‘yes’ or for ‘no’ will do much to bring this about.

Parking: another fine mess about devolution

In a federal system of government, residual powers are generally defined as belonging to authorities that are smaller than the federal government – such as the States in the USA or the Länder in Germany.  The UK has the opposite arrangement – all powers are assumed to reside in Parliament unless there has been a specific delegation to the contrary.

The Scotsman has twice this weekend reported on problems facing a proposal  to stop cars parking on pavements.  The Responsible Parking Bill has taken more than two years to wend its way through the Scottish Parliament, but despite widespread support  it seems to have stalled.  There were initial objections raised about whether the Scottish Parliament had the power to act about parking, but it has passed other legislation on disabled person’s badges, and on that basis it could reasonably be argued that there isn’t really a problem about legislative competence.  The subsequent discussions have focused on other issues – the cost of enforcement, the dissolution of Scotland’s traffic warden service by Police Scotland, and the burden on local authorities.

Except, it seems, that there is a problem.  The Scotland Act 1998 reserves a range of powers, and among the powers it reserves is the scope of the 1988 Road Traffic Act.  When that Act was originally passed, it made parking on pavements illegal.  The provision (section 19A) lasted three years, before the government of the day gave it up: too difficult, too expensive.  So what are the powers that are reserved to Westminster?  The common-sense view ought to be that the powers that were reserved were the powers in force at the time of the Scotland Act, not powers that were previously defined and repealed  – in which case there is really no problem of legislative competence. If the reports are correct, however, that does not seem to be how the Scottish Parliament’s lawyers see it.  They have apparently argued that as the Scottish Parliament doesn’t have delegated powers related to parking, but local authorities do, the bill could only proceed by instructing local authorities to use the powers they have, which are derived from Westminster legislation.

English local authorities have a general power to promote welfare.  Scottish local authorities don’t, because their power derives from the Scottish Parliament, which is subject to reserved powers.  We seem to be again in the situation where the Scottish Parliament has been accorded fewer powers than an English local authority.

Further thoughts on a Scottish Constitution

The Scottish Government has produced a consultative document on a  constitution for an independent Scotland.  I’ll be responding to the consultation in due course, but there are some issues that stand out  on a first reading.

A constitution is not just a matter of identifying institutions.  There need to be rules about how things are done:  in Hart’s terms, rules of recognition, change and adjudication.  In relation to recognition, although the constitution refers to the ‘sovereign will of the people’, it only identifies one route by which laws are made, and that is the Scottish Parliament.  It doesn’t state that the Scottish Parliament is able to delegate any part of that authority.  The need for delegation is unavoidable – for example, in the issuing of statutory regulations, or the passing of by-laws by local government or statutory agencies.

On change, there is something missing.  This may be an interim constitution, but there is no provision for it to be changed except by its complete replacement.  Provision for amendment is basic.

On adjudication, the bill tells us that there will be a court, but not what the powers of the courts will be.  There are ‘civil’ and ‘criminal’ branches, but not a constitutional branch.  Can the courts adjudicate on the constitution, or will they be overruled by government?  Can there even be judicial review of government action, short of breaches of human rights?  What will happen if the courts and the Parliament disagree?

Those are the fundamental issues, but there are other significant questions besides.  The powers of local government, as described here, are very limited indeed.  Local government is there ‘to represent and promote the interests of the people living within the local area’.  That is, more or less, the current role of a parish council, and it falls a long way short of the powers local governments need to provide public services or to undertake public projects.  Local government in Scotland has rather more powers now (even if they’re less than the powers permitted to councils in England); they need the power to act on behalf of a local population to increase welfare and to serve their population.

The provision on nuclear weapons will be controversial, but regardless of the merits of the principle, this is very badly expressed.  A constitutional principle should be general, enduring, and relate to the powers of the government; this doesn’t meet any of those criteria.  Government is supposed to negotiate about disarmament – what, even after the negotiations have been concluded?  Why just nuclear weapons?  What about WMD, chemical weapons, biological – or even conventional arms?  A constitution is supposed to provide for the use of legitimate force and the establishment of armed services – this one doesn’t.

The other point I’d raise at this stage is one that isn’t here, or in the US constitution, or indeed anywhere else – a definition of the powers of government in relation to foreign citizens.  Can our government declare war?  Kill foreigners?  Spy on them? Arrest them?  Deport them?  (If  they are “in Scotland” they are “entitled to its protection and benefit”.)   We’ve seen in recent years that international law doesn’t act effectively to constrain most government action; a constitution has to.

Is independence a threat to pensions?

I was asked by the BBC to comment on a poster produced for the independence debate, which suggests that pensions may be under threat.  My contribution is on the BBC website, here.  Basically, there are three types of provision for pensioners to consider – the state pension, occupational pensions, and further benefits, many of which are under threat anyway. Reorganising occupational pensions might be a nuisance (they’d probably have to be split into English and Scottish schemes to comply with European regulations) but I don’t think there’s a serious risk in any of these categories.

The constraints of the article meant that an interesting aside had to be dropped, but having a blog allows me the indulgence of dropping it in here anyway.  This is the question of what happens to upratings for people who get a pension from the UK but later go to live in Scotland.   The UK government has long refused to uprate benefits for pensioners who live in some other countries, including Australia, New Zealand, Canada, South Africa and some others such as Nigeria or Yemen; there’s a detailed report here.  They argue that the UK does not have a legal agreement to pay upratings in these countries. However, they do pay upratings in the European Union, Turkey and the USA.  Steve Webb, the Pensions Minister, has told a Holyrood committee that there shouldn’t be a problem – and it would be astonishing if the UK government imposed rules for Scotland that treated English pensioners in Scotland worse than Turkey or Israel.

The Expert Working Group on Welfare reports

The Expert Working Group on Welfare was set up by the Scottish Government to examine the future of benefits in an indepndent Scotland.  Independence, the group comments, “provides Scotland with the opportunity to design a social security system afresh”. In that light, their report Rethinking welfare, published today, is disappointing; like many documents considering the prospects for independence, it tries hard not to startle the horses.   The approach they argue for is well-meaning – they want a kinder, gentler system.  However, it is very similar to the pattern of welfare reform  to date:  emphasising the role of benefits in supporting people into work,  treating welfare as a ‘safety net’ and a ‘springboard’ rather than a right of citizenship.  When it comes to details, a lot of the emphasis falls on putting back the clock a few months – stopping sanctions, abolishing the bedroom tax, replacing PIP with another disability benefit.  In the longer term, they suggest movement towards a  single working age benefit, to be called Social Security Allowance.  This is  a rather bad idea: if it’s simple, it will be crude and unfair, and if it’s sensitive to different needs, it will be just as messy and difficult as the present system.

Senior Conservatives try to outdo each other in making trouble for Scotland

The other week it was George Osborne, claiming that Scots would need to smuggle pounds into the country, as if money could only exist if it’s printed or minted.  In March Theresa May was suggesting that if Scotland has a different immigration policy from England they will have to show their passports at the border, a position that muddles border control with immigration control.   Yesterday David Cameron suggested that it Scotland wanted to join the EU it would have to join a queue behind Serbia and Montenegro, misunderstanding why the entry of those countries has been delayed – Scotland, unlike other candidate countries, already has laws and procedures that are fully in conformity with the acquis communautaire.  We might explain this flurry of daft comments as evidence of animosity towards Scotland.  Possibly the ministers are playing the sort of game that politicians enjoy, seeing who can slip in a previously agreed phrase  and win the cabinet sweepstake.    The content might be taken to indicate that our senior politicians don’t much know what they’re talking about.   But I suspect the hand of campaign adviser Lynton Crosby, who thinks the way to win politically is by keeping up a constant barrage, regardless of the merits of the arguments.