The Queen’s speech and the UK Government’s legislative programme for 2012-13

The Queen’s speech given today launches a pretty modest UK legislative programme.  Whatever the reasons for that – failure to agree between the Coalition partners (see Patrick Wintour’s view that it’s largely a Lib Dem programme, here) or giving priority to other issues which don’t need legislation – it’s notably limited when it comes to the sort of domestic legislation that tended to throw up devolution issues while Labour were in office.  Nonetheless, more such questions lurk within it than may be obvious at first glance.

The text of the Queen’s speech can be found here.  The Cabinet Office’s remarkably interesting briefing notes on it – which give information about the content of the bills – are here.

Those notes include summaries of territorial extent and implications for devolution, which suggest rather greater consideration has been given to devolution questions than has been the case when many previous legislative programmes were announced.  Indeed, that was conspicuously missing in the Coalition’s first Queen’s speech.  If that was an example of poor practice in that regard, this is an example of pretty good practice.

(However, as an aside, the same cannot be said of the use of the term ‘transferred matters’ in some of those notes to describe whether something is devolved or not.  That term is appropriate for matters devolved on an executive level, but not for legislative devolution – where matters can relate to devolved subjects, in Wales, to non-reserved matters, in Scotland, and to non-reserved and non-excepted matters, in Northern Ireland.  That is a cumbersome way of putting things, but as devolved legislative powers are always legally concurrent, not exclusive, it is emphatically wrong to call them ‘transferred’.)

Of the nineteen bills or draft bills, the following seem likely to raise potential devolution issues, particularly relating to the application of the Sewel convention and whether a bill requires a devolved legislative consent motion (LCM).  The ones that are most likely to raise these issues, or to cause tensions in intergovernmental relations, are the following:

• The draft Care and Support Bill is a proposal for legislation that appears just to recast the current framework for adult care in England, rather than address the wider, long-term issues about funding identified by the Dilnot Commission.  If so, its devolution impact is minimal.  However, legislation on the wider funding issues will have significant implications for movement of people between England and other parts of the UK, if there is to be some sort of contributory or insurance-based element to fund care in England, and may also have effects on devolved funding and Barnett consequentials.
• The Children and Families Bill has a territorially complex mix of provisions, some relating to England only, some to the whole of the UK, some to England and Wales and some in Great Britain.  The area most likely to cause problems is changes to the adoption register, which operates on a UK-wide basis by consent (as this was a devolved matter in Scotland and Northern Ireland when the Adoption and Children Act 2002 was passed, and now is for Wales too).  The Cabinet Office note rather baldly states ‘Adoption provisions will apply to England.  The Government will discuss with the Welsh ministers whether it will be extended to Wales’.  Clearly an LCM will be needed for application in Wales, but this approach suggests a willingness to break up the UK-wide register (and the advantages it offers) without even holding discussions with the Scottish and Northern Ireland administrations.
• The draft Communications Data Bill provides for the UK Government to obtain data about communications.  This appears to fall within the scope of reservations (for Scotland; exceptions for Northern Ireland) relating to national security and terrorism, so would not appear to need devolved legislative consent.
• The Crime and Courts Bill is another territorially complex, portmanteau bill.  The proposal  to create a ‘National Crime Agency’ with competence for serious, complex and organised crime will have significant effects on policing and the criminal law in Scotland and will therefore need an LCM there.
• The Electoral Registration and Administration Bill, providing for individual electoral registration, assumes that there is a single electoral roll.  This is not wholly accurate, as the conditions to vote in local elections (and for devolved legislatures and the European Parliament, which use the same register) are different to those for voting in UK Parliamentary   elections.  As local elections, including electoral registration, are devolved in Scotland, and further devolution is to take place under the Scotland Act 2012, this bill would appear to need a Scottish LCM.  It may also need a Welsh one – ‘electoral arrangements for local authorities’ are devolved, though the local government franchise is excepted from that.
• The Energy Bill relates to reserved/non-devolved matters, though given devolved interest in energy issues, notably over renewables but also nuclear power, one can expect a fair amount of intergovernmental disagreement about it.
• Most of the Enterprise and Regulatory Reform Bill concerns non-devolved/reserved matters, such as employment, competition or company law, but the provisions regarding reduced inspections of business may relate to devolved as well as UK-level functions.  If they do, LCMs will be required.
• The Groceries Code Adjudicator Bill also relates mainly to reserved/non-devolved matters such as competition law, but could require an LCM, if it affects devolved functions such as agriculture and food standards.
• The House of Lords Reform Bill has no direct impact on devolved matters, but the question of how the various parts of the UK should be represented in a reconstituted Upper House can be expected to run and run.
• The Justice and Security Bill will enable the security agencies to use material which will not be made public as evidence in civil cases – in effect, secret evidence.  This is intended to apply across the UK, including Scotland and Northern Ireland where the courts and such matters as the law of evidence are devolved.  There are exceptions and reservations relating to national security, which the UK Government may consider apply and justify not seeking devolved legislative consent.  This would apply to be a very fine judgement, however, and the Scottish Government may well not agree.
• The Pensions Bill aims to reform the state pension and alter savings rules for private pension provision.  It claims to relate only to Great Britain (and to reserved/non-devolved matters), but of course will affect Northern Ireland as well thanks to parity requirements.  It is unclear what sort of consultation with the Northern Ireland Executive has taken place about it.
• The Small Donations Bill appears to contemplate an LCM for Northern Ireland; there would appear to be no reason for one in Scotland or Wales, as this relates to the tax treatment of donations to charities.  Given the difficulties caused by differences in charity law between Scotland and England and Wales, however, this may work less smoothly in practice.
• The Water Bill is designed to implement the white paper Water for Life but despite that is only draft legislation, so we can expect a bill next session not this.  It proposes to allow consumers to choose their water and sewerage suppliers, and also to provide for licensing new entrants into the water market.  This appears to relate mostly to England and Wales, though the possibility of its extension to Scotland to create a ‘single market’ opens the possibility of an LCM there.  The real issue is Wales, where devolved subjects include water supply and sewerage, water industry and water charges, though exclude appointing water undertakers for areas which are mostly in England and the licensing of water suppliers.  The proposed purpose of the bill appears to relate extensively to devolved matters, and given the political sensitivities of water in Wales, this is likely to prove politically complex.

By my reckoning, this means that two bills – the Children and Families and draft Water bills – will require legislative consent motions in Wales, and three more – the Electoral Registration and Administration, Enterprise and Regulatory Reform, and Groceries Code Adjudicator bills – may well do, depending on what exactly they contain.  Three bills – the Crime and Courts, Electoral Registration and Administration, and draft Water bills – will need LCMs in Scotland, and four others (the Children and Families, Enterprise and Regulatory Reform, Justice and Security and Groceries Code Adjudicator bills) may do.  Quite apart from their own legislative programmes, devolved legislatures are going to have to spend quite a lot of time on business from Westminster, and several of those bills (the Water bill in Wales, and all the bills in Scotland) are likely to be politically controversial.

The McKay Commission may also be interested to note that, although there is greater clarity in identifying the likely territorial and devolution impact of bills, there are still plenty of areas for debate about what their effects might be.  (My earlier piece on the Commission, and the challenges it faces, is HERE.)  The devolution issues remain far from resolved at this point.  Moreover, the tendency of Whitehall departments to use a legislative slot as an opportunity to legislate on a wide range of issues, without regard to their territorial impact.  Old habits evidently die hard.

London conference on ‘Scottish politics explained’, 3 July

I’m taking part in a conference organised by Holyrood Magazine conferences, taking place in central London on 3 July 2012.  It’s got an impressive line-up of speakers, including Henry McLeish, Jeremy Purvis and Jim Mather, MPs including Stewart Hosie, Margaret Curran and Danny Alexander, as well as a clutch of academics.  The aim of the event is to survey the current shifting ground of Scottish politics, as the independence referendum comes seriously onto the agenda.  I’m taking part in a panel discussion about economic and financial issues, along with Brian Ashcroft of Strathclyde University, Drew Scott of Edinburgh University, and Jeremy Purvis, the former MSP now involved in Reform Scotland’s Devolution Plus initiative.

Details of the event, including booking arrangements, are here.  It should be a good event, though it’s also rather expensive.

‘Scotsman’ article on Devo More and a referendum

Some time ago – before Easter, in fact – I had an article in the Scotsman about how enhanced devolution can be part of the Scottish independence referendum debate, despite the determination of the Unionist parties to have a single Yes/No question in that vote. In essence, that requires the ‘devolution plus’ option to be developed so that it is a clearly framed and worked-through scheme, with broad political support (from the Unionist parties, and more widely), before the referendum. Otherwise, a pro-Union vote will necessarily be a negative one, and that will make the pro-Union case a much harder one to make.

The article can be found here, and a webchat about the article and related issues I did with Scotsman readers can be found here.

The text of the article as I filed it is below.

‘Devo more’: on the table, even if it’s not on the referendum ballot

The debate about Scotland’s constitutional future will soon come to another punctuation point.  The UK Government’s consultation on an independence referendum will shortly result in the making of a section 30 order (something I outlined in this paper back in June 2011) , and the publication of the UK Government’s summary of responses to its consultation shows pretty clearly that London intends to limit the choice before voters to a single question, not two as sought by the Scottish Government.  The referendum will be a straight choice between the Union and independence, with the possibility of further powers afterward.

This position suits the Unionist parties, if not the SNP.  Quite a number on the Unionist side are opposed to any extension in the scope of devolved powers.  Many others support more devolution, including the Liberal Democrats and many in Labour, but are not clear what that means.  Politically, the Unionist side thinks it has a better chance of winning a Yes or No referendum than one offering several options – what one might call an ‘excluded middle’ strategy.  This is essentially a negative approach, and contrasts with the positive one of the SNP.

Although it would not be particularly easy, a multi-option referendum could be ‘decisive’, as John Curtice has shown.  (It needs a Yes/No question about the Union, and then a second Yes/No question about more devolution.)  However, there is a bigger problem with such a poll.  At this point, no-one knows what the third, ‘enhanced devolution’, option might look like.  There are two alternatives: some form of ‘devolution plus’, involving some extra policy functions and significant but not total fiscal responsibility, and ‘devolution max’ involving devolution of all functions save defence, foreign affairs, monetary policy and perhaps immigration, accompanied by the Scottish Parliament setting and collecting all taxes in Scotland.  The only model for ‘devolution max’ is one set out by the SNP itself.  Four distinct initiatives are currently looking at models of ‘devolution plus’.  There are major questions about the practical workability of many of the ideas for both that are presently in circulation, and a good deal of work needs to be done to make sure they are indeed workable.  Until there is a practicable and agreed scheme, it will be impossible to make plans for a referendum that include that as a choice – but even the SNP concede that those plans need to be made soon.  They cannot wait until the ‘third option’ is finalised.

These practical problems with ‘devo more’ are no reason to be complacent about the effect of leaving it off the ballot.  Even if it is not on the ballot, it needs to be on the table.  That option is clearly much closer to what Scottish voters want than either independence or the status quo. It would also give Scots a positive reason to vote for the Union.  To be taken seriously, though there need to be meaningful guarantees that an adequate scheme will be implemented after a No vote.   The unionist parties and UK institutions will be under much less pressure to deliver a generalised offer of ‘jam tomorrow’ once the referendum is over, while a mandate from the referendum poll would be very hard to resist.

The way forward may be a two-stage process.  One is already underway: formulating and defining a form of ‘enhanced devolution’ that could command broad political and public support, and which is also workable in the real world where public services have to be provided, and bureaucracies have to run those services.  Such a scheme is likely to cause serious problems for many parts of the UK system.  Fiscal devolution will have a consid­erable impact on HM Revenue & Customs, which will almost certainly still be involved in collecting taxes for devolved matters as well as non-devolved ones.  HMRC will need to have real and direct accountability to the Scottish Parliament, and work with the Scottish Government, in ways that the Scotland bill does not adequately address.  If welfare benefits are to be partially devolved (something made much harder by the planned Universal Credit), the Benefits Agency will have to change how it works too.  There will be other changes on the cards for Whitehall and Westminster too.  Whether UK institutions will do that is a major question.  Doing this is part of the price that must be paid, though, to maintain the Union.

The second stage will be to signal to the Scottish people that this scheme can and will be delivered.  A good deal of flesh needs to be put on its bones before a skeletal scheme becomes something voters can believe in.  Those in favour of enhanced devolution – the Lib Dems, Labour and many in the Scottish Conservatives, if not the party leadership, as well as a broad swathe of ‘civil society’ – will need to find a way of agreeing on a package they jointly support.  This may take the form of something like the Scottish Constitutional Convention of the 1990s, or something less formal, but agreement on a common model will be needed.  They need to secure support from the UK level for this as well, and demonstrate to Scottish voters that they have it.  If ‘Devo more’ is not on the statute book before the referendum, it must be in a state that is ready to be included in 2015 UK election manifestos with political support at Westminster and Holyrood behind it, so it can be legislated immediately after the UK election, with a mandate from that election.

A lot of this will strike Unionists as difficult and maybe undesirable.  But they have fenced themselves into a set of difficult positions.  By embarking on a referendum campaign when their constitutional position is further from the Scottish median voter than the SNP’s, they have chosen a high-risk strategy.  A single-question referendum may be justifiable in the name of clarity and practicality, but it cannot be a way of denying Scottish voters the constitutional settlement they want – more devolution within the Union.  Getting ‘Devo more’ agreed and out there before the poll addresses that problem, and would also make a No vote in the referendum a positive one.

Privatising ‘the nation’s’ roads

The UK Government’s planned announcement regarding road privatisation and tolling in England is a puzzling move (see trails from the Independent here, Guardian here, and BBC News here).  It controls, of course, only roads in England; the building, maintenance and operation of roads in Scotland, Wales and Northern Ireland is devolved.  So this policy is not just limited in scope, but over-hyped in its rhetoric; ‘the nation’s roads’ are only roads of one part of it.

The second element is the planned funding through hypothecating a proportion of vehicle excise duty (road tax).  As a solution, it will be attractive to potential operators of privatised roads as it will be a guaranteed revenue stream.  But if that’s to be done, Scotland, Wales and Northern Ireland’s devolved governments should get their share too.  (Should that share be calculated on the proportion of road miles in those parts of the UK, or population?  That’s a technical question that matters, given the large areas of sparse population in all three parts of the UK, with a lot of not-very-heavily used roads as a result.)

The announcement to be made today is only for feasibility studies to be carried out, and actual privatisation may never happen.  But the way it has been publicised suggests that no-one has aired these issues before the announcement was planned, which itself may suggest something about the role of spin and side-lining of normal policy-making under the Coalition at Westminster.  Moreover, it shows a failure to think carefully about what ‘the nation’ is (England or UK?) at a time when that issue has a particular sensitivity.  It’s almost as though Number 10 has bought into SNP rhetoric without noticing.

Edinburgh seminar on intergovernmental relations and Scotland’s Constitutional Future

I took part in a private seminar on ‘Scotland’s Constitutional Future’ in Edinburgh on Friday, organised by Stephen Tierney from Edinburgh Law School and Tom Mullen from Glasgow Law School.  I’m happy to out myself as taking part, as I thought my presentation might be of interest to a wider group than those who were present in the splendid setting of the University’s Playfair Library.  It can be found HERE.

In my presentation, I start by sketching four reasonably plausible outcomes from the Scottish debates: the status quo, including implementation of the Scotland bill still before Parliament; ‘Devolution Plus’ (whatever that is); ‘Devolution Max’; and Scottish independence.  I then outline some of the key effects of those for intergovernmental relations.  Each, I argue, creates a significant and increasing amount of need for governments to co-ordinate their policies with each other, and to create adequate and effective machinery to do so.  That is as much the case to make the Scotland bill arrangements work as for more extended forms of devolution, and also remains true for independence.  For forms of ‘Devolution Plus’, involving (as I see it) signficant fiscal devolution and at least a measure of devolution of welfare benefits, that would raise major questions about how tax collection and administration of ‘Scottish’ benefits might work, which would imply very extensive changes for HM Revenue & Customs and the Benefits Agency.  Devolution Max would imply major changes relating to macroeconomic and monetary policy, and to European Union matters.

One big question here is whether the UK Government has the will and capability to embark on such large changes, given its reluctance to make even minor ones in the wake of devolution so far.

Scottish independence referendum: response to the two consultations

I have now submitted a response to the dual consultations on a Scottish independence referendum – both the UK Government one, initiated by the white paper Scotland’s Constitutional Future Cm 8203, which closed on 9 March, and the Scottish Government’s one Your Scotland, Your Referendum which closes on 11 May.

In the submission I address three key issues: the timing of a referendum, the number of questions, and the regulation of the referendum, and relate my views to the key criteria for the referendum, set out by David Cameron but also agreed by the Scottish Government: that it must be ‘legal’, ‘clear’ and ‘decisive’.  To these, ‘fairness’ has been added.  There are particular problems with a decisive referendum, held before any independence negotiations have been held and when it is unclear what sort of a state an independent Scotland would be.

As regards timing, I argue that it would be appropriate to hold the referendum in the autumn of 2014, and that the key point in eliminating uncertainty is to establish the referendum date.

Regarding the number of questions, I note the divided nature of the constitutional debate since 2007, and the absence of any consensus on what ‘Devolution Plus’ or ‘Devolution Max’ would be, or any significant campaign for them.  In the absence of such a clear position or campaign, I cannot see how a multi-choice referendum might be run – even if some form of enhanced devolution is what appears to have the support of a plurality if not majority of Scottish voters.  (See my presentation from today’s Constitution Unit seminar, HERE, for more detail.)

When it comes to the regulation of the referendum, I argue that this role – including advice about the intelligibility of the question – needs to be undertaken by the Electoral Commission.  This is necessary to ensure that the referendum is seen to be ‘fair’ more than anything.

I also raise the question of what, in the event of a Yes vote in a referendum, the position of the Scottish Government would be.  Logically, the Scottish Government should be the party to negotiate terms of independence for Scotland after such a vote, and to make the necessary preparations for independence.  However, it has no legal powers to do so under the Scotland Act 1998, nor does the Scottish Parliament have power to enable it to do so.  Further powers would need to be conferred on the Scottish Government (and perhaps also the Parliament) to enable that to happen.

My submission can be found HERE.

Powers to legislate for a Scottish independence referendum

I spent Thursday morning at a conference in Edinburgh organised by The Scotsman about a Scottish independence referendum.   There’s a report of the event from Eddie Barnes here.  As I noted earlier, the star turns were Michael Moore MP, Secretary of State for Scotland, and Bruce Crawford MSP, Cabinet Secretary for Parliamentary Business and Government Strategy, though unsurprisingly, there wasn’t much agreement between the two politicians.  Moore emphasised the need for clarity in the referendum proposition and the question; Crawford pointed out the array of commissions and groups looking at ‘more powers’, and questioned how Scottish voters could take seriously such an offer when it was so unclear.  One of the few points on which they did agree was to applaud the choice of Edinburgh as home for the new ‘Green Investment Bank’ (and see the discussions by David Maddox here and here of the politics behind that decision).There were, however, two points on which Crawford seemed to make significant statements.

The first concerned regulation of the referendum. The Scottish Government now appears to accept that the Electoral Commission should not just regulate the conduct of the referendum campaign including donations (which it accepts in its referendum consultation), but also discharge its usual function of advising on the ‘intelligibility’ of the question – which involves extensive testing of its wording with focus groups to eliminate possible sources of misunderstanding.  When it published its consultation paper  it limited this part of the Commission’s role, saying that its proposed ballot paper had been designed to comply with Electoral Commission guidelines, and that it would take advice from the Commission (and others) about the question – but did not embrace the statutory role in this that the Commission would have under the Political Parties, Elections and Referendums Act 2000. It’s not clear to me if the Scottish Government have agreed that they will be bound by the Commission’s advice, but agreement on the Commission undertaking question-testing addresses many concerns from opponents of independence about the ‘fairness’ of a referendum.

The other point emerged when Crawford repeated a long-standing SNP/Scottish Government claim, that ‘many legal authorities’ agree that the Scottish Parliament has power to call a referendum, even without a section 30 order.  When I challenged him on this, he could cite two.  One was the textbook by Chris Himsworth and Christine O’Neill Scotland’s Constitution: Law and Practice, first published in 2003 (details from the publisher here and Amazon here).  The other was a post on the UK Constitutional Law Group blog.  Neither of these sources is particularly useful in supporting this proposition.

Himsworth and O’Neill say

Because [a referendum bill’s] purpose could be interpreted as the testing of opinion rather than the amendment of the constitution, such a Bill would almost certainly be within the Parliament’s powers.

A statement that ‘because X could be regarded … it would almost certainly be’ is hardly unequivocal.  Moreover, Himsworth and O’Neill appear to accept that a good deal depends on the wording of the question that might be asked – that would affect whether a bill ‘could be interpreted as the testing of opinion’.

The UK Constitutional Law blog post referred to by Crawford would seem to be the one by Gavin Anderson et al, which appeared on 31 January 2012, and available here.  It was published long after SNP ministers referred to a weight of independent legal opinion as supporting their position.  (I presume they’re not referring to Adam Tomkins’s earlier post on the same blog, as that argues forcefully that Holyrood has no such power.)  Again, the position is hardly unequivocal; Anderson et al say:

we believe that the legality of a referendum Bill passed under the Scotland Act as it currently stands is a more open question than has been generally acknowledged.  In other words, we believe that a plausible case can be made that such a Bill would be lawful, and believe it is important that these arguments are clearly set out.

They add:

The risk to the authority of the courts … therefore suggests that the UK and Scottish Governments would indeed be wiser to agree on an express transfer of powers.

It’s hard to avoid concluding from this that the Scottish Government are well aware of how shaky the legal foundations are for their position that an independence referendum would be within devolved legislative competence, The most that their chosen authors claim is a plausible case for their equivocal position, far from the ringing endorsement one might have expected.  Indeed, Crawford acknowledge this; he said that the Scottish Government ‘doesn’t object’ to the making the section 30 order, ‘to put the power beyond doubt’.

The UK Government consultation on the referendum bill ends on Friday, though the Scottish Government’s has another two months to run – and has apparently attracted over 4000 responses so far.