The independence referendum deal

The agreement publicly reached between David Cameron and Alex Salmond for the holding of a Scottish referendum on independence in 2014 marks the end of a long, and unduly protracted, process.  (There’s an account of the latter stages of that by Alan Cochrane of the Telegraph here which strikes me as well-informed if incomplete.)  The agreement itself (with the draft section 30 order at the end) is here.  The news story about it from Number 10 is here, and that from the Scottish Government is here.

The deal itself is a good and necessary one, if not particularly surprising in its content given the various leaks and rumours about it over the last few weeks.  It is also one which delivers each government its key requirements, so in that sense it is a good deal for both sides.  And, of course, it confirms that a referendum will indeed happen.

How we got here

It’s worth remembering how we got to this point.  The SNP fought the 2007 election on a manifesto commitment to hold an independence referendum if elected, and to publish a white paper on independence before then.  That commitment meant that a vote for the SNP would not necessarily be a vote for independence as such, which helped boost support for the SNP so it was able narrowly to win a plurality of votes and seats at that poll, because the election turned into one about ‘valence’ and competence not high-level ideology.  In other words, the

The UK reshuffle and the territorial offices

The UK Government’s ministerial reshuffle may lead to further tensions within the Westminster Coalition, but it has been one of pretty limited change, as far as the territorial offices are concerned.  Full details of all the new ministers can be found on the No 10 website, here.

There has been no change at the Scotland Office at all, with Michael Moore and David Mundell remaining in place.  Lord Wallace does so too, as Advocate General for Scotland.  The opportunity of putting a more ‘campaigning’ politician in charge has not been taken, even with the independence referendum looming, and although the heavy legislative work of getting what is now the Scotland Act 2012 drafted and onto the statute book is now done.  The only major item of legislative business on the immediate agenda is the section 30 order regarding the referendum (which Severin Carrell suggests here is close to agreement between the two governments).

The Wales Office has seen the departure of Cheryl Gillan as Secretary of State, and the promotion of David Jones, the former junior minister, to replace her.  That follows a determined lobbying campaign from Welsh Conservative MPs for the new Secretary of State to have a Welsh seat, and suggests minimal change in the UK Government’s approach.  Jones has already emphasised his desire for a ‘very good business-like relationship’ with the Welsh Government.  The interesting shifts of role and personnel are at the junior level.  Stephen Crabb has been promoted within the Whip’s office (though he was never the ‘Welsh whip’), and also made parliamentary under-secretary of state.  Baroness (Jenny) Randerson, former AM and Welsh Lib Dem Minister, has also become an (unpaid) parliamentary under-secretary, for which the Lib Dems are said to have fought hard.  Given her company among colleagues who have been regarded as ‘devo-sceptics’ (though they now emphasise their support for devolution), it’s interesting that she emphasises that she is a ‘committed devolutionist’ in the Welsh Lib Dem press notice announcing her appointment.

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.

‘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.

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.

‘Scotsman’ article on the Commission on the West Lothian question

My article on the UK Government’s announcement on the West Lothian question – formally, the ‘Commission on the consequences of devolution for the House of Commons’ – was published in Wednesday’s Scotsman. The UK Government’s Commons written statement on the Commission can be found here, and my article (slightly edited for publication) is on the Scotsman‘s website here, and the Constitution Unit’s blog here.

There’s been quite strong media interest in the Commission: I’ve been quoted in stories for the Guardian, here, and the Western Mail, here.  I’ve also recorded an interview for this week’s BBC Wales programme Dragon’s Eye about it.

Scottish independence referendum: the UK Government’s démarche

The excitement over the weekend about ‘UK intervention’ in the arguments about a Scottish referendum has now led to some sort of conclusion.  On Tuesday we had a ministerial statement from Michael Moore stipulating how important it is that a referendum be ‘legal, fair and decisive’ (available here).  We also had a consultation paper setting out how the UK Government intends that be achieved (available here).  The consultation exercise closes on 9 March 2012.  The paper includes a sample Section 30 order, which would be the means by which the UK Government would confer power on Holyrood to hold the referendum.  In doing so, it sets out some ground rules.  There’s been a prompt response from the Scottish Government, with threatening noises about their ‘authority’ to call a referendum, a declaration that the referendum will be in autumn 2014, and apparently Scottish Cabinet agreement on a paper to be published probably next week.

I have been advocating a Section 30 order for some time, so am glad to see that this has now been adopted.  It has, of course, been under discussion for a while, though within each government rather than between them.  It is the best way to put the power to hold a referendum in the hands of the Parliament with a mandate to hold one.  It addresses a fundamental problem about a referendum – that the Parliament with a mandate to hold one doesn’t, in fact, have the powers to do.  The Scottish Parliament simply can’t, lawfully, call the referendum the SNP (and many in UK Government, including David Cameron) want.

A Section 30 order needs approval from both Houses of the UK Parliament as well as the Scottish Parliament, but like all secondary legislation can’t be amended once it is tabled.  It must simply be approved, or not.  Because it needs Holyrood’s consent, an unfair attempt to ‘interfere’ in a Scottish referendum is simply impossible.  If the Scottish Parliament wishes to reject such an interference, it can do so – though the SNP will then have to deal with the consequences of that rejection for the referendum they have committed to hold.

It would be possible to frame a Section 30 order so that it would materially affect how the Scottish Government proceeds.  It’s hard to see how what’s now proposed does so.  It would give Holyrood clear powers to hold a single-option, single-question referendum, held by a date to be stipulated but not yet decided, regulated by the Electoral Commission, and using the ordinary electoral roll for Holyrood elections.   This does not accord with what the Scottish Government has suggested, but one has to ask how fundamental the differences are.  Does the SNP think that it’s fundamental to such a referendum that it alone be able to frame the question, or that 16- and 17-year olds be able to vote?   The issue of date has been a major point of friction, but Alex Salmond’s announcement on Tuesday that it would be in the autumn of 2014 is at least a step toward resolves that issue.  Similarly, the Scottish Government has now agreed on their being only one question, not two. As important as the date itself is knowing the date – that way, the campaign starts to have a shape, and it becomes clear when the ‘uncertainty’ caused by a looming referendum will end.  This whole palaver would probably not have arisen, and certainly would have had much less steam, if the Scottish Government had made the statements about date and a single question sooner.

The discussions about a referendum date, the number of options or questions, or who would be eligible to vote have all served to keep debate running, but could have been disposed of much more easily had the Scottish Government wished.

The story of how this situation developed deserves to be written up more fully.  The whole thing first emerged in public on Sunday evening in a rather confusing and garbled report from Patrick Wintour of the Guardian (now in a less garbled form here).  The story of subsequent events is partly told in Guardian articles by Nicholas Watt (here) and Severin Carrell (here); my information is that this is only part of the story.  There appears to have been a deliberate attempt by David Mundell, Scotland Office junior minister, to set up the aggressive use of a Section 30 order to control the terms of a referendum. This involved direct engagement with a number of Labour MPs as well as Conservatives, but by-passing his Coalition colleagues.  George Osborne’s role has emerged later, but he has been expressing concern about the effect of ‘constitutional uncertainty’ on the Scottish economy for some time.  The Lib Dems were largely marginalised in this process – and the Labour front bench was blindsided.  The idea of an 18-month ‘sunset’ clause (more accurately, window during which the referendum could be held) appears to have been a Conservative idea not supported by the Lib Dems, hence its being kicked out during the finalising of the consultation paper.  It’s one of several points in which the order could have been used to set out terms of the referendum that few in Scotland would think fair.

The difficult point for the UK Government has always been that a section 30 order needs to be attractive enough to ensure it has SNP support at Holyrood, but nonetheless does not simply let the SNP shape the whole referendum to suit itself.  The Lib Dems seem to have understood that an order needed to be essentially fair to secure that approval – the Conservatives (and some in Labour) to have believed it could be used as a nat-bashing exercise. In reality, the latter approach would not only ensure that the order did not pass, but also would give the SNP the opportunity to blame the UK Government for its failure.  The only way for an order to get through would be by enabling the SNP to have more or less the referendum it wants.  This round of the game can be won – and can only be won – by playing it straight.

Press suggestions that the SNP may now refuse to endorse the Section 30 order are intriguing.  The problem the SNP have to grapple with is the limited powers of the Scottish Parliament.  The UK Government’s legal advice is that Holyrood has no power to legislate for a referendum touching on independence.  I don’t agree with that view (I think a referendum authorising the Scottish Government to enter into independence negotiations would be within Holyrood’s competence – but not one purporting to give a mandate for independence).  Legal opinions, of course, vary; some, such as Adam Tomkins, think there’s no power at all.  The Scottish Government’s view appears to be that the Parliament’s powers in relation to itself are such that it could have a referendum about extending those powers – that’s why it framed the question it proposed in February 2010 in the way it did.  They’ve also used a good deal of bullying rhetoric to claim powers that few lawyers (even ones of nationalist inclination) outside the Scottish Government believe they have. Even then, the best the Scottish Government could do resulted in a convoluted question which was hard to understand, and which would be unlikely to survive scrutiny by the Electoral Commission. (That’s why the paper also proposed using an ad hoc commission, not the Electoral Commission, to regulate it.)  All this would at best be right at the margin of devolved powers.  It would almost inevitably be subject to challenge in the courts (by a private party if not the UK Government), and would very probably be held ultra vires.

That would not, politically, be entirely a disaster for the SNP.  They would be able to say they had delivered on their manifesto commitment, which was to introduce a referendum bill – not to get it passed, or actually to hold a referendum.  They would also be able to blame the UK Government and the UK Supreme Court for this failure; they’d emphasise both Scottish difference from the UK, and the refusal of the UK to allow something for which there was a clear public mandate.  It’s doubtful whether that would satisfy their members, or convince the wider electorate that the SNP kept their promises, though.

If the SNP actually want a referendum as a means to secure independence, though, the considerations are rather different.  In that case, the need is to have a referendum, and that means passing a legally competent referendum bill. The Scottish Government know how strong (and how weak) their legal position is.  Even Alex Salmond acknowledges this; on BBC Radio 4′s ‘Today’ programme on Wednesday morning, he said there was ‘no problem’ about a Section 30 order.  A Section 30 order, with some strings, offers them as legally certain a route to a referendum as there can be.  Trying to block the order really means taking a punt either on winning a political battle as they lose a legal one, or counting on the Parliament’s existing legal powers as adequate for a referendum bill.  This is, in a way, a Clint Eastwood moment.  The lawyers advising the Scottish Government know just how empty their legal armoury is, so just how lucky does the SNP feel?

The political dilemma the SNP face would be greater if the UK Government had handled the issue of a Section 30 order with greater competence.  As it is, the initial reports and presentation have left a clear impression that this is an exercise designed to undermine Scottish control of a referendum.  That impression may not be justified, but the failure to understand how difficult the politics of this were in Scotland is a major failing by the UK Government.  The Liberal Democrats seem to have done as good a job as possible in recovering the situation, but the best that can be said is that they’ve turned a disaster into a mere cock-up.  (Politics being the rough game it is, an achievement like that seldom gets much notice let alone reward.)  On top of that, there is also the huge gap that clearly now exists between the three unionist parties.  A cross-party effort will needed to run a pro-union referendum campaign, but this doesn’t augur well for assembling that sort of coalition.  Labour’s apparent determination to avoid talking about forms of enhanced devolution, while forcing a choice between ‘separation’ and the Union’, makes that all the harder.  (I’ll return to this issue in due course.)

On balance, this is both a necessary and a fair step in the constitutional debates.  A Section 30 order is the right way to put the powers to hold a referendum in the place where they should be.  Salmond has said that he wants a referendum ‘built in Scotland, which is made in Scotland and goes through the Scottish parliament’.   The order is a means of achieving that – and probably the only way of doing so lawfully.  It may not be quite what the SNP would choose in an ideal world, but it’s very largely what they want, in a workable way.  The key difference is over date, and that looks like a difference of nine months – a pretty paltry issue over which to have a first-rank crisis, especially as the UK now has a proposed referendum date from the Scottish Government.  Beyond that, there’s a difference about ‘authority’ to call a referendum, but that’s largely bluster.  The legal position is reasonably clear; the moral position is much clearer.  The idea that the Scottish Parliament has the power to cal the sort of referendum the  SNP want can be no more than a mirage.   Privately, the Scottish Government appear to realise how limited their legal powers are.  The UK Government (and the Labour Party) have now conceded Holyrood’s moral or political authority to call a poll.  The differences are really rather slight.  Rejecting the order would be a very risky step indeed for the SNP, and it’s hard to see how they really gain from prolonging an argument over something that’s very close to what they want.

The likelihood has to be that after a modest amount of pushing and shoving the Section 30 order will be made.  Either the ‘constitutional crisis’ is bluster, or the SNP are more interested in prolonging a constitutional debate (or a debate about the debate), rather than holding the referendum they have said they want.  But the UK Government’s collective approach to constitutional politics has done their position a serious disservice, for which they may pay a high price.

Scotsman ‘Analysis’ piece on a Scottish independence referendum

I’ve a short ‘analysis’ piece in Tuesday’s Scotsman about the constitutional implications of the UK Government’s proposal for a section 30 order empowering Holyrood to call an independence referendum.  It’s available here.

My earlier piece about a section 30 order can be found HERE, and there’s a discussion about Canadian parallels of the ‘clarity’ issue HERE.

Holyrood and the Scotland bill: the crunch looms

Robbie Dinwoodie reported in Friday’s Herald (here) that it was likely the Scotland Bill Committee at Holyrood would recommend that the Parliament withhold legislative consent unless joint commencement arrangements for the income tax provisions were agreed.  It’s odd that this particular issue should seemingly be the decisive one, though less so if one looks at the conduct of the various parties.

The unease of the Holyrood committee about the bill is no wonder.  The committee has an SNP majority, including three ex-ministers.  The UK Government has declined to amend the bill as requested by the predecessor committee, let alone in accordance with the changes sought by the SNP Scottish Government.   The bill already failed to incorporate some recommendations made by the Calman Commission (notably devolving a share of income tax arising from interest and dividend payments, air passenger duty and the aggregates levy), but included a UK Government wish-list of powers over matters like referrals to the UK Supreme Court and international relations that would increase UK power to control the use of devolved powers.  None of that is conducive to helping gain support for the bill at Holyrood.  There’s a long list of concerns about the bill, including those set out in my own evidence, and the evidence of Michael Moore and David Mundell last week may have been emollient but it was also unyielding.

The Scottish Lib Dems’ ‘home rule commission’

Sir Menzies Campbell has been announced as the chair of the Scottish Liberal Democrats’ home rule commission, first announced by Willie Rennie in September at the UK Lib Dem conference in Birmingham.  There still aren’t many details about the commission, particularly its terms of reference or composition (other than Sir Ming).  About all we know is that Rennie says it is to ‘set out our vision for a strong Scotland within the UK and for strong, powerful communities in every part of Scotland’.  That suggests it will be concerned not just with Scotland-UK issues, but also local government ones.

There’s coverage from BBC News here and the Scotsman here. The Scottish Lib Dems’ own news release is here.

This is hardly unexplored ground for the Lib Dems.  Indeed, that’s both part of the problem for this commission, and part of the reason for it.  Back in 2006, the Lib Dems were the only one of the unionist parties in Scotland willing to think about constitutional matters.  The Steel Commission  came up with a blueprint for extremely far-reaching devolution, so much so that it was used by the SNP as the basis for the ‘full devolution’ model sketched in the November 2009 white paper Your Scotland, Your Voice.  In effect, the Lib Dems wrote the SNP’s version of Devolution Max.  That in turn has made it very hard for the Lib Dems to challenge the SNP on constitutional matters, as every time they do they have their earlier position thrown back at them. That knot has been compounded by the insistence of Lib Dems in the UK Coalition as being effectively unchangeable.  I’ve heard quite senior Lib Dem figures confirm with equal vigour and in the space of five minutes that the party is committed to the Steel Commission, to the Calman recommendations/Scotland bill in its current form, and to a federal United Kingdom.  They showed no awareness of how contradictory these positions were.

The new commission has got to avoid making the mistake the Steel Commission did.  That was to come up with a scheme for very extensive devolution within the Union, without having any good rationale for why there should be a Union or what it should do.  The UK level, in the Steel Commission’s schema, was largely a residuum of things that either couldn’t be devolved without clearly breaking up the Union (such as defence or foreign affairs), or which it just considered were too cumbersome to handle.  To be convincing, any unionist argument has got to include a positive rationale for the continuation of the Union, not just convenience.

UPDATE: I shall be talking about this on The Politics Show Scotland on Sunday 6 November: 12 noon, BBC 1 Scotland (though I think the ‘Scottish’ bit starts at 12.45), 3 pm on the BBC Parliament channel, or via the iPlayer.