Category Archives: Westminster

Guardian ‘Comment is Free’ piece on ‘What happens after a Scottish independence Yes vote?’

Drawing on my Belfast lecture, I’ve a piece in the Guardian‘s ‘Comment is Free’ section on what would happen following a Yes vote in September’s Scottish independence referendum.  I argue that the difficulties with a long transition are very great indeed, and that there are compelling reasons to ensure Scotland becomes independent by the time of the May 2015 UK general election if there is a Yes vote.  That  would be formidably difficult – not only are there are tough and complicated issues to be negotiated and resolved  between the governments, but also legislation needs to be passed by both Scottish and UK Parliaments (and the UK Government would need to pass a paving bill too).  But the problems caused by a longer transition are even more formidable, in my view.

The CiF piece can be found here.

 

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Filed under Implications of Scottish independence, Publications and projects, Referendums, Scotland, Scottish independence, Westminster, Whitehall

The Silk Commission’s Part 2 report

If ever a report deserved careful consideration rather than an immediate response, it’s the Silk Commission’s Part 2 report.  The product of more than 15 months’ evidence-taking and deliberation, it is a carefully framed, principles-based blueprint for the next step for Welsh devolution.  The full report is available here, and the executive summary (which I must admit to having relied on for this post) is here.  There’s BBC News coverage here, here and here, and from Wales Online here.

The key recommendations are:

  1. devolution of policing to the National Assembly
  2. devolution of responsibility for youth justice, but not the courts or the legal system generally
  3. devolution of planning powers to approve energy projects of up to 350 megawatts, of powers relating to sewerage and the regulation of some aspects of water supply within Wales, and for there to be a Welsh Crown Estate Commissioner.
  4. some further devolution of powers in relation to rail franchising, bus and taxi regulation, and speed limits and drink-driving
  5. appointment of a Welsh member of the BBC Trust (something already in place for Scotland), and control for the Assembly over public funding for S4C
  6. an increase in the size of the National Assembly, noting many calls for 80 members but leaving the issue for further consideration
  7. an enhanced approach to the conduct of intergovernmental relations and the machinery for that. The Secretary of State for Wales would also lose his seat in the National Assembly, his right to receive its papers and obligation to present the UK Government’s legislative programme each Parliamentary session.
  8. perhaps most importantly, a move to a ‘reserved powers’ model for the National Assembly’s legislative powers, away from the current ‘conferred powers’ one, along with a removal of the current and problematic protection of pre-devolution powers of UK ministers.

There are also calls for further study of a number of matters – not just the size of the Assembly and the number of AMs, but also the possible devolution of prisons and the court system.  It sees no need for a further referendum on any of these proposals.

What is notable about this is how cautious it is.  The recommendations eschew a number of more radical calls – for the establishment of a separate legal jurisdiction, or for devolution of the civil or criminal courts, the civil or criminal law, or of welfare.  I argued in my own submission that it would be very hard to establish a ‘reserved powers’ model without establishing a separate legal jurisdiction, and that this could be done without losing many of the advantages of the current shared arrangement.  (See also THIS EARLIER POST on the relationship between a legal jurisdiction and legislative powers.)   I suggested as well that the Welsh Government’s proposals for a reserved powers model would imply a devolved power to legislate for areas like land or contract law (these are omitted from the Welsh Government’s proposed list of reserved matters).  This would achieve the substantive outcome of a separate legal jurisdiction without formally calling it such –which may be the worst of all worlds.

Welfare devolution is another area which would create a number of administrative problems but offers scope for major gains for both governments and for citizens – as we’ll be arguing shortly through the Devo More project.

The Silk proposals are, in essence, an attempt to make sure the division of powers between Welsh and UK institution catches up with reality.  They’re not actually very radical; they don’t take account, for example, of the impact of the September referendum on Scottish independence (whether there’s a Yes vote leading to Scottish independence and a restructuring of the remainder of the United Kingdom, or a No vote resulting in further devolution for Scotland).  Rather like Holtham before it, this is an exercise in bringing Welsh devolution up to date not making far-reaching plans for the future.

However, the proposals do represent a clear consensus across the Welsh political parties about what should happen next.  I’ll shortly be putting up a post about the problems arising from the way the UK Government approached Silk Part 1, and its profound misreading of the political and economic situation in Wales compared with Scotland.  The gravest mistake the UK Government could make would be to cherry-pick these proposals.  The second gravest would be to take a year to decide what to do, especially given that it has a legislative slot in the next Parliamentary session and not using that would mean a significant wait for any action – even though, from his initial reaction (saying a response would be for the next UK Parliament not the current one), that’s just what the Secretary of State seems to intend.

UPDATE, 4 March: Carwyn Jones’s response to the Silk Part 2 report, here, is interesting.  Although Jones calls for a substantial expansion of the powers of the National Assembly and Welsh Government, he appears unwilling to accept the logical implication that greater self-government means no longer being in a privileged position when it comes to UK-wide institutions.  He seeks to maintain the office of the Secretary of State (despite his well-publicised difficulties with both Conservative holders of that post), and the present number of Welsh MPs.  Both cases are poor. For a discussion of the Secretary of State, see HERE.  The latter case is if anything weaker.  Wales is presently over-represented at Westminster; if MPs were allocated to Wales on a similar basis to England, it would have around 32, not its present 40.  Scotland was similarly over-represented in the Commons before devolution, and the creation of the Scottish Parliament saw the number of Scottish MPs reduced to the English ‘quota’.  That meant a reduction from 72 to 59.  This was provided for in the Scotland Act 1998, and (to avoid  a reduction in the size of the Scottish Parliament as well) required further legislation to ‘decouple’ the number of MSPs from the number of MPs.  (Decoupling has already happened for Wales, as part of the abortive plans to reduce the size of the Commons.)

Wales cannot expect to maintain a privileged position at UK level if devolved powers are to be extended.  Carwyn Jones is trying to have his cake and east it.

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After a Scottish independence referendum Yes vote

There has been remarkably little public discussion of what would happen if there were a Yes vote in the Scottish independence referendum.  The widespread assumption seems to be that negotiations would be swift and straightforward, and Scotland would readily become an independent state.  The Scottish Government’s position (previously set out in the February 2013 paper Scotland’s Future: from the Referendum to Independence and a Written Constitution, but repeated in the independence white paper) remains that May 2016 would be when Scotland would become independent.  That is a very simplistic approach; negotiations would be complex, possibly protracted, and gravely complicated by the May 2015 UK general election.  Considerations about timing, and the impact of the referendum vote would affect the strength of the various negotiating positions, as well.

Nick Barber of Oxford University has now written an exceptionally good post about the implications of Yes vote.  I don’t wholly agree with it, but it should be read by anyone thinking seriously about these issues.  It can be found on the UK Constitutional Law Association’s blog, here.

In a separate but related development, the Lords Constitution Committee at Westminster has announced an inquiry into the implications of a Yes vote.  There’s news coverage from the BBC here, and details of the inquiry and its call for evidence here.  The closing date for submissions is 28 February 2014.

UPDATE, 27 January: There’s also a Lords debate on Thursday about ‘The implications for the UK of the forthcoming Scottish independence referendum’.  Details are here.

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Implementing Silk in Wales: an update

The UK Government has now published its proposals for the implementation of the Silk Commission’s Part 1 report, following its announcement at the beginning of November (and so managed to get its response in just before the anniversary of the publication of the Commission’s report).  The Wales Office’s news release is here and the paper itself, Empowerment and responsibility: devolving financial powers to Wales, is here. (Note for government documentation trainspotters: this isn’t a Command paper to be formally laid before Parliament, and certainly not a white paper or even green paper.  This contrasts with both Labour and Coalition responses to Calman, and again suggests either that the UK is not taking Wales as seriously as it did Scotland, or that this is a response framed in some haste.)

Unsurprisingly, the paper largely confirms the key elements of the deal announced by the UK Prime Minister and Deputy Prime Minister, previously discussed HERE: devolution of two small land taxes, devolution of 10 points of income tax, but only after a referendum.  It confirms that, as for Scotland, aggregates levy may be devolved, but only once outstanding EU state aids issues are resolved, and that air passenger duty will not be. Continue reading

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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 Continue reading

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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.

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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.

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Filed under Courts and legal issues, Events, Wales, Westminster, Whitehall

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.

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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.

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‘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.

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