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 section 30 order and under-18s voting in a Scottish referendum

There have been indications – leaks, rumours and even official statements – for some time now that agreement on the section 30 order to confer power on Holyrood to call a referendum on independence was near (see BBC News from the last few days here and here, or Severin Carrell in the Guardian in early September here and on Wednesday here).  Indeed, I was on BBC Radio Wales’s phone-in yesterday to talk about the supposed agreement, to find that the latest news was that Alex Salmond was keen to emphasise that a deal had not yet been done, which led to the over-reaction that the deal was off.   In any event, there is to be a meeting between Salmond and David Cameron on Monday, supposedly to sign off the section 30 order.  (The SNP seem to have won a protocol struggle here, with Salmond succeeding in putting himself on the same footing as Cameron, while more junior ministers such as Nicola Sturgeon and Michael Moore do much of the sherpa-ing for the premiers’ summit.)

The order will, apparently, permit a single-question referendum, to be held not later than 2014, and regulated by the Electoral Commission.  The single question and the regulation are points on which the UK Government (and Labour) have been determined since May 2011, and have been conceded by the Scottish Government; the date has been chosen by the SNP, but was initially resisted by the Unionist side.  However, the question of who can vote in the poll has now become an area of controversy, because of the SNP’s desire to ensure that under-18s can vote.  This was a focus of the debate around a private notice question in the Lords on Wednesday, asked by Lord Forsyth of Drumlean (and available here), and again on Radio 4’s ‘Today’ programme on Thursday morning.

A Welsh legal jurisdiction, and its effects on legislation

I haven’t properly posted about the Welsh Government’s consultation on the idea of establishing a separate Welsh legal jurisdiction.  They launched this in late March and it’s reputedly a concern close to Carwyn Jones’s heart.  Details are here, the consultation paper itself is available here, and the closing date for responses is 19 June.  The consultation paper is open-ended (or open-minded) in the extreme.  In essence, the paper is a set of exam questions about whether there should be a separate legal jurisdiction for Wales and what form it should take.  Examinees, sorry respondents, are required to ‘give reasons’ for all their answers.

One important point about legal jurisdictions is that, in the common-law world, they invariably coincide with the existence of a legislature.  Thus, in Canada, even a tiny province like Prince Edward Island has its own legal jurisdiction – as well as a provincial legislature.  In federal systems, there will also be a legal jurisdiction attached to the federal order/level; so PEI is both a jurisdiction of its own, in relation to exclusively provincial matters, and part of the jurisdiction of Canada in relation to federal ones.  The civil-law world works differently, and can more easily accommodate multiple legislatures passing laws for particular territories within a single legal jurisdiction.  Thus, there is a single German or Swiss jurisdiction, despite the existence of federal and Land or cantonal parliaments that can both pass laws.

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.

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.

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.

The Wales Office’s assessment of the Government of Wales Act 2006

The Wales Office published a curious document in January: a ‘Post–Legislative Assessment of the Government of Wales Act 2006′, in the form of a memorandum to the Commons Welsh Affairs Committee.  It can be found here, though curiously it’s not on the Wales Office’s own website.

This process of post-legislative assessment comes about because of a reform initiated by Harriet Harman when she was Leader of the Commons, in a 2008 white paper called Post-legislative Scrutiny – the Government’s Approach Cm 7320 (available here).  That recommended that UK Government departments responsible for a bill should publish a memorandum about it three to five years after it was passed.  It would then be for parliamentary committees to decide whether and how to respond.  It’s not for me to comment at this stage on what action the Welsh Affairs Committee might take in response, but the memorandum is certainly worth a look.

The Wales Office paper on the Government of Wales Act shows what many would regard as a high degree of satisfaction, even complacency, about the Act.  Two examples will have to suffice:

• Regarding criticism of the working of Part 3 of the Act and the LCO system: ‘… much of this criticism centred on the non-statutory aspects of the process, and not the provisions specified in section 95 of the Act.  We believe that these provisions were fit for purpose, providing a means of enhancing the Assembly legislative competence incrementally and in so doing enabling the Assembly to legislate to fulfill the Welsh Assembly Government’s public commitments’ (paragraph 68)
• The Act ‘established a governance structure for the devolved institutions in Wales has proved to be effective and durable.  In particular, it effected a separation between the legislature … and the executive …  The parliamentary model has proved to be an appropriate one for devolved governance in Wales, affording a more appropriate separation between legislative, executive and scrutiny functions at national level than the local authority model which preceded it’ (paragraph 90).

A grand constitutional convention for the United Kingdom?

Carwyn Jones’s intervention in the constitutional debates has been to decry the extent to which they have focussed on Scotland, and to suggest a grand ‘constitutional convention’ to agree a future for the United Kingdom.  This is an idea that has been around in Welsh, particularly Welsh Labour, circles for some time (see, for example, this piece on WalesHome by Mick Antoniw AM).

Such a proposal is rather a doubtful one, particularly at this time.  A convention would run huge risks of running into the ground, and might well undermine the very goal Jones is trying to achieve.

There are three specific problems with it.  The first is the question of who would take part in such a convention.  Would it be the devolved and UK Governments?  What about AMs, MLAs, MSPs and MPs?  How would delegations from the various institutions be chosen?  Who would speak for England, as a whole or its various parts?  It’s far from clear how one would constitute such a convention, and what their mandates might be.   And, if the purpose of a convention is to keep the UK together (or even widen the debate beyond a bilateral Scottish-UK) one, how is the  SNP to be included in that process?  It’s impossible to see how it could or why it should do so in the run-up to an independence referendum, especially if the remit of the convention is to continue to secure the integrity of the UK.  It was wording of precisely this kind that excluded the SNP from the Calman Commission, after all.  Political nationalism in Scotland, Wales and Northern Ireland is as valid a current of politics as any other, and must be included in the process, however uncomfortable that might be for unionist politicians, and however much it complicates already-difficult processes.

The second problem is that it’s premature at this stage to try to address these issues.  What are the interests of Wales here?  Jones may have a clear sense of the interests of Welsh Labour here (though others in the party may not necessarily share his view).  But there’s more to Wales’s interests than those of one party.  If there is to be some sort of grand convention, there needs to be much greater, cross-party consensus about what these might be, so that they can be taken into that convention.  That of course is a complex matter – there are great differences between the parties (and other actors with an interest) in these questions.  Until there’s some clear position, it’s hard to see how any convention can be established.

If those questions are problematic for Scotland or Wales, they’re much more difficult in England.  How can one identify the various units to be involved, and the relationship between them?  One of the several problems with England is precisely the lack of certainty about that.  Again, many currents of opinion within England need to be included, and many of those remain inchoate or developing.

The third problem follows from the second.  It’s pretty evident that what might be appropriate for Scotland is not for Wales, and the same for each other part of the UK. That is a long-standing problem, faced very notably by the Kilbrandon Commission in the late 1960s and early 1970s, which in effect came up with three positions on each major issue (the majority position, the minority position, and the Crowther-Hunt/Peacock dissent).  (See Wikipedia here for more details).

In reality, however, the problem now is even greater.  So far as the Union in the twenty-first century constitutes a bargain between its various parts, the bargain is different in each case.  What is vital for Wales is of much less importance in eastern England.  To the extent there is a ‘Scottish’, ‘Welsh’ or ‘north-east English’ interest in the Union, each of these is different.  Trying to set up a convention to resolve these issues without being clear about what the interests of the various groups are, and how they relate to each other, will be impossible.  The asymmetric nature of that bargain means that the first step in any process of trying to refound the Union has to be work out the interests of the various parts, in the hope that these can be reconciled.

Jones’s proposal resembles David Cameron’s moves regarding a Scottish independence referendum in one major respect.  It’s an attempt to abbreviate a process, and move straight from one of the first moves in the sequence to one of the last.  Constitutional politics becomes very dysfunctional if one does that.   The process is an important part of the substance; it becomes the means by which areas of agreement and disagreement are identified and resolved.  A big-bang approach cannot resolve such complex questions in any sort of stable or lasting way.

If the goal is to ‘refound the Union for the twenty-first century’, a better approach would be to start by staging that wider-ranging assessment of Wales’s interests for the foreseeable future, and see where consensus across Wales’s parties, civil society and public at large lies.  That would be far from easy, but it’s the unavoidable first step on the path Jones seems keen to tread.  That would, however, face two major problems of process.  One is the overlap with the work of the Silk Commission, which perhaps could have been the forum for this had the Welsh Government not tried to limit what it can and cannot look at through the terms of reference.  The other is the fact that the agenda for that assessment would need to be very open, in contrast to all the reviews that have taken place since devolution.  The terms of reference for the Richard Commission, the All Wales Convention and now the Silk Commission were all tightly constrained.  Those were not strictly observed in practice by either the Richard Commission or the AWC, but the restrictions showed an intention and still had some effect.  (It’s less clear if the Silk Commission feels similarly constrained; Paul Silk said they did not when he gave evidence to the Commons Welsh Affairs Committee last Tuesday).  If the goal Jones has set out were to be achieved, there could be no similar limit on a later Welsh commission – problematic though that might be.

The alternative approach – for politicians at UK level, rather than in other places – is to start to emphasise the many dimensions of the UK and its multi-national character.  It has so far suited the SNP to depict the relationship as purely a two-way affair, and unionist politicians in Scotland and at Westminster has gone along with that.   The lead in that has to come from the UK level, not Wales or Northern Ireland.  The Coalition has not been keen to articulate its overall vision for the UK, however.