Author Archives: Alan Trench

About Alan Trench

Academic, non-practising solicitor, close watcher of devolution in the United Kingdom and similar systems around the world

Stevenson Lecture in Glasgow, 11 November

I shall be giving a lecture in Glasgow at 6pm on Tuesday 11 November, in the series of Stevenson Trust Lectures on ‘Scotland’s Citizens: The Referendum and Beyond’.  My lecture will be on ‘Devo More not Devo Max: The realistic possibilities’, and I’ll be explaining the issues relating to further devolution, what might be practicable and what isn’t, and why.  There should be plenty of time for questions afterward, both in the lecture hall and informally over drinks.

The lecture takes place in the Sir Charles Wilson Building on Glasgow University’s main (Gilmorehill) campus.  Further information is available from the organiser, Kevin Francis, at kevin.francis@glasgow.ac.uk, or stevensontrust@gla.ac.uk.

UPDATE, 12 November: The slides from my lecture can be found here.

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‘Scotland on Sunday’ piece on the Smith Commission and delivering further devolution

I’ve an article in today’s Scotland on Sunday about how the referendum result defines the scope of the work of the Smith Commission, and what it can and cannot deliver.  I argue that the referendum choice excludes some options, because they are incompatible with the Union that Scots voted to remain part of on 18 September, and that attempts to widen the process will be obvious as attempts to frustrate it.  It can be found here.

UPDATE: The text of the article as originally filed is now pasted below.

The Smith Commission starts its work with two great advantages over predecessors like the Calman Commission, the National Conversation, or even the Scottish Constitutional Convention. First, it has all the major parties involved. Second, its remit is clear: it is not just to consider Scotland’s constitutional future, but to do that in the context of Scotland remaining part of the United Kingdom. For the first time, all the actors are involved, and the purpose is clear: to work out a sensible model for further devolution for Scotland, recognising that Scotland’s future lies in the United Kingdom not outside it, and that this must be decided soon.

The determination that Scotland’s future is within the UK is fundamental to what ‘more devolution’ looks like. Any solution must be compatible with remaining part of the UK, not an opt-out from it. ‘Devo max’ – devolution of all ‘domestic’ functions, and tax setting and collecting powers – is just such an opt-out. You cannot be part of a country while simply choosing not to participate in its financial arrangements, welfare system or most of its economic structure, which devo max would mean. You cannot be part of a country when you claim the right to undermine your fellow-citizens whenever it suits you, as devo max would imply. The referendum decision took that off the table, just as it took independence. Any attempt to reinstate that option is not only a waste of time, but has to be regarded as a deliberate attempt to unpick the referendum decision and reverse its ‘decisive’ character.

To be compatible with remaining part of the UK, ‘more devolution’ also has to work for other parts of the country – not just England, but Wales and Northern Ireland too. This cannot be a case of Scotland simply grabbing what extra powers or advantages it can, whatever the consequences for the rest of the UK. It is about how Scottish self-rule can be effectively combined with shared rule for the UK as a whole, and the interests of the rest of the UK. Through the referendum, Scotland has chosen to ‘opt in’, and that implies a very different sort of constitutional debate to the one there has been up to now.

The Smith Commission has one other constraint, which is a source of strength as well as a challenge; the limited time for its work. It is due to reach agreement by the end of November, following publication of a UK Command paper setting out issues by the end of October and leading to draft legislation by Burns Night 2015. That is tight. There is no time for the introduction of new and extraneous issues. The three pro-UK party commissions, the Devo Plus group, and the IPPR’s Devo More project have all canvassed models for further devolution with clarity. The Scottish Government has devoted much less work to options for further devolution, the best being the elaboration of ‘full devolution’ (a.k.a. devo max) in the 2009 white paper Your Scotland Your Choice. With that option now off the table, there is little clarity about what the SNP might propose, though Fergus Ewing has already suggested underground fracking for oil and gas. SNP contributions must be constructive, given the remit of the commission. Raising complex new issues with little preparation would be a transparent attempt to frustrate the process, and stop the devolution of Scottish voters gaining control of further functions as was promised to them.

At long last – after multiple commissions, debates and a bruising if invigorating referendum campaign – Scotland’s constitutional debate has at last reached the point of all the parties discussing the same subject in the same room. Let’s hope they can now deliver.

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Filed under Publications and projects, Referendums, Scotland, Westminster

New ‘page’ on the West Lothian question

I’ve just added a page explaining the West Lothian question to those on the blog.  It can be accessed through the links at the top of the page, or HERE.

One point often overlooked, which I discuss there, is the extent to which the anomaly of the West Lothian question is made worse by problems of mis-representation, which are fuelled by using the First-past-the-post electoral system.  The result is that Labour is disproportionately strong (compared to its share of the vote) in Scotland and Wales, as are both Conservatives and (somewhat less so) Labour in England.  The Lib Dems in England, the SNP and Conservatives in Scotland, and Plaid Cymru and the Lib Dems in Wales are the main losers.

There are arguments on both sides of the question of proportional representation, but its absence creates these anomalies that mean Labour has far more Scottish and Welsh MPs than its share of the vote justifies, and the Conservatives more English MPs.  A more equitable electoral system would reduce that disparity, and the degree to which the West Lothian question is played up or down for party advantage.

I’ll be saying something further about the possible solutions to the West Lothian question in the next few days.

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Filed under English questions, Scotland, UK elections, Wales, Westminster

‘Constitutional Futures’ workshop at Queen’s University Belfast, 10 October

Along with James Mitchell from Edinburgh and Aileen McHarg from Strathclyde, I’ll be taking part in a workshop on ‘The Direction(s) of Devolution’ in the law school at Queen’s University Belfast on Friday 10 October.  There is more information here, or the flyer can be downloaded here.  Capacity is limited; please email law-enquiries@qub.ac.uk if you’d like to attend.

 

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Filed under Events, Northern Ireland, Scotland, Wales, Westminster, Whitehall

SNP, sorry: the referendum result takes Devo Max off the table

The clear and decisive vote in the Scottish independence referendum is a powerful statement in a number of ways. There is clearly a large constitutional and political debate now underway, for the whole of the UK and each of its parts and not just Scotland.

But aspirations that this means ‘devo max’ – the devolution of all functions save defence, foreign affairs, currency and maybe immigration, and including the power to set and collect all taxes in Scotland – are simply wrong.  Devo max in that form is definitely off the cards. It has never been offered or proposed by any of the pro-Union parties. The enhanced-devolution schemes they have, to be brokered now through the process chaired by Lord Smith of Kelvin, are all substantial further devolutions of power, but not ‘devo max’.

In his concession speech, Alex Salmond committed to work with other parties in Scotland, and the rest of the UK, to deliver further powers for the Scottish Parliament. The Scottish Government of course undertook to ‘continue to work together [with the UK Government] constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom’, in the much-discussed Article 30 of the Edinburgh Agreement.  For the Scottish Government to be an active participant in that process, it and its supporters need to acknowledge that devo max is also now off the table. The referendum was a clear signal by the people of Scotland that they wanted to remain part of the United Kingdom. Far-reaching further devolution is perfectly compatible with that, more so with the wide-ranging approach to constitutional reform that the Prime Minister has signalled. But – as I made clear in my evidence to Holyrood’s Finance Committee in June – full fiscal autonomy and devo max are not. It has nothing to offer Wales or Northern Ireland, and would be unworkable for them. More seriously, the extensive, de facto withdrawal from most aspects of a shared economy and shared social citizenship that devo max would imply is not workable for other parts of the UK. Those remain key tangible manifestations of remaining part of the UK. By rejecting full-fat independence, Scotland’s voters also opted to decline its skimmed version that is devo max.

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Filed under Scotland, Scottish independence, SNP

Devo Max and Devo More

There are two myths going around about what happens following a No vote in the Scottish referendum.

First, it’s said that plans for ‘more devolution’ are unclear. They are not. The three pro-UK parties have different schemes for them, it’s true, but there is a substantial degree of common ground between them. All involve devolution of most or all of personal income tax to the Scottish Parliament. Labour and Conservatives both support forms of welfare devolution, which – among other things – would have enabled Scotland to opt out of the Housing Benefit change that led to the ‘bedroom tax’. The differences do need to be resolved, but there is also a clear route for that, endorsed by the UK Prime Minister in his Aberdeen speech as well as other party leaders: an early process of cross-party negotiations, leading to a white paper by November 2014, publication of draft legislation in early 2015, followed by incorporation into manifestoes for the May 2015 general election, which will give the mandate for delivery of them.  That level of political commitment is not easily ducked – and ironically it is perhaps the Conservatives who have the greatest short-term political interest in securing their delivery.

It’s also untrue that these are last-minute proposals All these schemes have drawn on the work I have done with IPPR, and particularly Guy Lodge, through the Devo More project since late 2012. They reflect many months of work and careful analysis of the implications of further devolution, not just for Scotland but for other parts of the UK as well – they haven’t been suddenly ‘pulled out of a hat’.

Details of the key publications from Devo More can be found here, here and here (and there are posts about the financing paper here, the welfare one here and how the programme fits various political traditions here).

Second, it’s suggested that these proposals amount to ‘Devo max’. They don’t. This is usually a rather lazy shorthand from journalists or politicians who haven’t understood what is actually on the table. The extra-devolution schemes, or scheme, will substantially enhance the autonomy of a devolved Scotland within the UK. But the Scottish Parliament is already responsible for about 70 per cent of all public spending in Scotland. The Devo More proposals will take Scotland as close to home rule as is possible in a single state.  They will deliver what Scots had clearly shown they’ve wanted for a decade or more – greater self-government in the Union – in a way that works with the interests of people in other parts of the UK, rather than against them.

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Filed under Devolution finance, Publications and projects, Referendums, Scotland, Scottish independence, Westminster

What follows the referendum: the process of negotiating Scottish independence, or of delivering Devo More

Back in May, I gave a lecture at the University of Ulster’s Belfast campus about what might follow the vote in the Scottish referendum. I’m afraid I’ve only now had the chance to tidy that up for wider reading. It’s available on the Social Science Research Network here, or can be downloaded directly HERE. The lecture as a whole is somewhat lengthy (around 10,000 words), so this post picks out the key points.

Perhaps the most important and novel part of the lecture is the second one, where I map out what would follow a Yes vote – the sort of steps needed, particularly on the rUK side to tackle the many uncertainties that will follow. This is a separate issue from that of the strengths of each party in the negotiation, discussed HERE earlier in the week.  This would call for a great deal of imaginative thinking, in the midst of a first-order constitutional crisis. In particular, it seems to me that:

  • The negotiating process needs to move with all due speed, to preserve the democratic legitimacy of both rUK as well as an independent Scotland. There is no good reason for rUK to seek to prolong the process, and plenty of reasons for it not to.
  • The 2015 UK General election presents grave problems for that – the time lost to campaigning in an election and briefing a possible incoming new government means it will be impossible to make a proper start in negotiations before June 2015, since even provisional agreements reached under the present government might lack support from the new one.
  • One option – which appears to be gaining some support, particularly among Conservatives – is to postpone the 2015 election. But the present government has already been in office for 4½ years, and has no mandate to negotiate something so important to rUK as Scottish independence.
  • A better option would therefore be to hold a general election early, before the end of 2014, so there was both certainty about the composition of the UK/rUK Government and that government had a political mandate for independence negotiations. This would need approval by a two-thirds majority in the Commons, under the Fixed-term Parliaments Act 2011.
  • Those negotiations will not be quick or straightforward – not just because of the difficulty or complexity of the issues to be considered, or how trade-offs might be made between issues, but because they are a matter for parliaments as well as governments. Parliaments will need to approve legislation giving effect to the final outcome, and in Westminster’s case also to authorise much of the necessary preparation on the Scottish side. There will need to be close co-operation between governments and their parliaments, both to ensure proper democratic control and accountability in the process and to simplify the process of approving the agreement at the end of it.
  • A special UK Parliamentary committee, probably mostly meeting in private to preserve the confidentiality of proceedings and negotiating positions, would be an important way of helping to accomplish that.
  • There would also be problems about the involvement of Scottish MPs and ministers in the independence process on the UK/rUK side. It would be contrary to the interests of the people of rUK for MPs sitting for Scottish seats to be involved in that process; as those negotiations affect first and foremost the people of England, Wales and Northern Ireland, only their representatives should be involved – whether in negotiating teams, Cabinet or Cabinet committees when considering independence-related matters, or when those are considered in Parliament. This is the West Lothian question on steroids.
  • The need to ensure a broad consensus of support within rUK for the agreement also means that the Opposition – whoever it may be at the time – will need to be involved in the process. In particular, figures from the Opposition should be included in the rUK negotiating team, and party leaderships kept abreast of all issues under consideration. Again, while this complicates the process of the negotiations, it will simplify the process of approving and implementing an independence agreement.

Much of this sits oddly with usual British constitutional practice. But a Yes vote would trigger extraordinary times, and a need for extraordinary measures to cope with an unprecedented and very difficult situation. (Observant readers may note the considerable overlap between these recommendations and those of the Lords Constitution Committee’s report on Scottish independence: constitutional implications of the referendum - which was published after I gave the lecture.  I do differ with the committee’s conclusions about the compostion of hte UK negotiating team and timing of the 2016 election, however.)
As far as a No vote is concerned, the lecture maps out the programme that was clearly being advanced by the Unionist parties in May, and advanced by the IPPR’s Devo More project: separate party policies, cross-party agreement on the key elements of that, early consideration of them following the referendum and implementation through endorsement in the 2015 election manifestoes. That process would clearly need to include the SNP as well as the pro-union parties, unless the SNP chose not to take part. Since I gave the lecture, the Scottish Conservatives have published their proposals in the form of the Strathclyde Commission report (and I have amended the text to reflect that). Subsequent developments have hardened the commitment of the parties both to the need for joint action and a clear timetable, as well as a Scottish-focussed process to agree the main features of ‘enhanced devolution’.
None of this is about simply ‘giving Scotland more powers’. It is about getting devolution right, so that it enables Scottish voters to have what they have wanted for more than a decade: extensive self-government within the Union. That will benefit other parts of the UK too, and not just by achieving a greater degree of constitutional stability. It will ensure that if Scottish taxpayers choose to spend more on devolved Scottish services, they bear the fiscal consequences of that; this would not be at the expense of taxpayers outwith Scotland.
There is, however, a clear need for that to be followed by a wider process covering the whole UK, and the best way to achieve that would be through a conference of members of the UK’s parliaments and legislatures; MPs, MSPs, AMs and MLAs. This is the idea underpinning the Strathclyde Commission’s recommendation for a ‘committee of the parliaments and assemblies’ . Through their election, these figures all clearly have a mandate and authority that other methods of selection would not give them.
Whatever happens on 18 September takes the UK into new and uncharted constitutional waters. It is important that everyone understands what is likely to follow, and what the world is likely to look like in a few months’ time.

This post also appears on the UK Constitutional Law Association blog, here

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Filed under Referendums, Scotland, Scottish independence, Westminster, Whitehall