Devolution, territorial politics and the general election

This post also appears on the Constitution Unit’s blog, here. Constitution-unit.com has a number of other election-related posts which are well worth reading.

It is hard to think of a general election that has ever been so freighted with questions about the UK’s territorial constitution. It is hardly an overstatement to say that the outcome of the 2015 election, and actions of the government that takes office after it, will either reshape the UK significantly or ease the way to its breakup. This post considers what the manifestos tell us about what the various parties propose to do and how they propose to do it, when it comes to the reshaping of devolution arrangements across the UK, and then discusses some of the issues that will loom larger after 7 May.

The pro-UK parties

The 2015 manifestos contain a welter of devolution-related commitments. Those in the three pro-UK parties (Conservative, Liberal Democrats and Labour) are all strikingly similar, though not identical. For Scotland, all commit to implementing the Smith Commission’s recommendations, and to retaining the Barnett formula. (Interestingly, they do not commit to the UK Government’s white paper Scotland in the United Kingdom: An enduring settlement, raising the possibility they could scrape off some of the barnacles that paper puts on the Smith proposals). Labour want to go further in a ‘Home Rule bill’ in unspecified ways, though it appears that wider scope for the Scottish Parliament to legislate on welfare matters is key to it. These commitments rather resemble those made by the same three parties in 2010 about the implementation of the Calman Commission’s recommendations, though with Labour somewhat breaking ranks with the two governing parties.

There is also similarity when it comes to Northern Ireland: endorsement of the peace process and commitments to support it, along with the economic rebalancing package agreed as part of December’s Stormont House Agreement. For Conservatives and Lib Dems, this includes support for sustainable public finances, welfare reform and corporation tax devolution subject to adequate progress being made on financial matters. Labour’s commitments appear to embrace similar policies, but are confusingly worded. They say they will:

engage proactively with the Northern Ireland Executive to support continued political progress, and deliver on it’s (sic) vision of a shared future. We will ensure the economic pact between the UK Government and Northern Ireland Executive is focused on stimulating jobs and growth which contribute to reducing unemployment and poverty in Northern Ireland. (p. 66)

Things get murkier when it comes to Wales and the proposals for further devolution made through the St David’s Day process. The Conservatives simply commit to that; the Liberal Democrats to both St David’s Day and the Silk Commission recommendations, a number of which were dropped through the St David’s Day process. This means that the Lib Dems have committed themselves to devolution of policing, prisons and probation while the Conservatives have not. Labour revisit, yet again, the Silk/St David’s Day recommendations and support a ‘Barnett floor’ for fair funding and devolution of elections, transport and energy, but not policing and offender management. Instead, they propose an all-Wales policing plan (though how this would work is hard to say, as policing plans are a matter for elected Police and Crime Commissioners – are these to be abolished or superseded?). Labour also say nothing about holding a referendum on income tax devolution as required by the Wales Act 2014, though this was recommended by the Silk and Holtham Commissions.

All three parties are in favour of sub-national devolution in different ways but the greatest variation relates to England, and ‘English votes for English laws’ (EVEL). For the Conservatives at least, the ground is now well-trodden and builds on the McKay Commission proposals: votes on measures affecting England at Westminster would be limited to MPs from English constituencies at Committee and Report stages, with a ‘legislative consent motion’ afterward, before 3rd reading. The Lib Dems say they are in favour of EVEL, but only in the context of proportional representation. Both these positions were set out in the December 2014 Command paper on The Implications of Devolution for England. Labour emphasise devolution within England, to include an English regional cabinet committee, and propose a ‘people-led’ constitutional convention to consider EVEL issues (in which the McKay proposals would only be an option) and an elected ‘senate of the nations and regions’ to replace the Lords.

The nationalist parties

The nationalist parties’ manifestos are more clear-cut. While the Scottish National Party endorse the Smith Commission recommendations and call for them to be implemented ‘in full’ (a further dig at the Scotland in the United Kingdom Command paper), they say these are insufficient and call for extensive further devolution. These demands include what they now call ‘full fiscal responsibility’ (itself to be delivered in stages), regulation of pay-day lenders, the minimum wage, and specifically ‘business taxes’ (the term corporation tax is never used).

Plaid Cymru call for funding on the Scottish level – in other words, a ‘Barnett bonus’ like Scotland’s – but also a ‘fair funding settlement’ with a ‘funding floor’. They call for ‘the same tax powers as Scotland’ but also devolution of corporation tax, and a higher (but not devolved) minimum wage. They also say

In principle, we support English Votes for English Laws. However, Welsh MPs must be able to vote upon any issue which affects the people of Wales or the Welsh Government’s finances.

It may be slightly odd to describe the Democratic Unionist Party from Northern Ireland as a nationalist party, but in their focus on a particular part of the UK and its specific interests, they function rather like one. They emphasise various forms of privileged treatment for Northern Ireland including favourable financial treatment, both through the block grant and through arrangements for corporation tax devolution, and a Secretary of State for Northern Ireland. At the same time, they want equal status for Northern Ireland, whether that be through support for inward investment, the renaming of the Olympic ‘Team GB’ or UK departments carrying out operations there.

Considering the manifestos

There is one coherent and consistent theme to be found in all these manifestos: a lack of coherence and consistency. For the SNP, this is chiefly in attempts to have their cake and eat it; to have Smith but demand more, and to have full fiscal responsibility (itself a dubious proposition, since it would involve serious cuts of 15-20 per cent in Scottish public spending or tax increases to cover the higher levels of spending there) but ‘in stages’ and while preserving the Barnett bonus. Plaid Cymru have now abandoned ‘fair funding’, but seem both to want what Scotland has, and more. The three pro-UK parties all demonstrate a similar fault as well; they fail to take an overarching view of the implications of their proposals for each part of the UK on the others. Perhaps the Lib Dems come closest to a coherent view of a decentralised, sort-of federal UK, but it remains an incomplete picture assembled of different proposals for each part of the UK.

Of the pro-UK parties, Labour’s proposals are both the most distinctive but also the most unclear. We know they wish to unpick both the Scotland in the United Kingdom paper and the St David’s Day proposals for Wales, as well as have a different approach for Northern Ireland – but have no clear idea what these policies are or what they would mean if implemented, let alone how high a priority they are. Moreover, we do not know how they will interact with the proposed ‘people-led constitutional convention’. The working of other proposals is doubtful in practical terms, such as the idea of an elected senate of the nations and regions. The Conservatives’ advocacy of English votes for English laws introduces a sequence of practical problems and problems that arise from a disproportionate electoral system that advantages winners (but, ironically, may protect the Lib Dems themselves from as large a loss of seats compared to their loss of votes).

Of course, the manifestos all need to be read against the backdrop of possible coalition-building. The Conservatives in particular are fearful of a Labour-SNP alliance, and given the degree of similarity in their manifestos have reason to be. A cynical view would be that the SNP have carefully framed their manifesto both to appeal to traditionally Labour voters and to create scope for – indeed, put pressure on – Labour to come to some arrangement if the parliamentary arithmetic so dictates. There has been some confusion about the price of such support (further devolution ‘concessions’? No Trident replacement? A reversal of ‘austerity economics’?) Equally, Labour have been under a good deal of pressure from the Conservatives about the supposed illegitimacy as well as instability of such an arrangement. But the SNP have weakened their hand by their adamant refusal to support the Conservatives under any circumstances, meaning they only have one choice of potential governing party to support. Conversely, the Conservatives’ attempt to undermine the legitimacy of the SNP as a player at Westminster sits strangely with both the party’s unionism and indeed much that was said during 2014’s Scottish referendum campaign. If Scots and particularly Scottish nationalists want ‘in’, experience overseas suggests it is prudent to ensure they are.

Plaid’s overall left-of-centre profile would seem to rule out any support for a Conservative-led administration, but the lack of clarity about their requirements and impossibility of their likely demands, as well as the limited clout Plaid are likely to have, may diminish their attractiveness to a Labour-led one too.

By contrast, the DUP have played their cards astutely. By indicating they would do a deal with either Labour or Conservatives and setting out a short list of criteria which would seem to inflict roughly equal pain on each of the parties, they have maximised their scope for influence and for being able to claim to have influenced a government.

Post-election negotiations to form a government are likely to be protracted, even tortuous.  They are also likely to be less heated than much of the campaign rhetoric has been, and that will be no bad thing.  This is a delicate constitutional dance, and cool heads and a willingness to compromise will be at a premium.

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Minority nationalist parties and their leverage in a national parliament: Canada and Spain

With all the speculation about what impact a large contingent of SNP MPs (or other regionally-based minor parties like the DUP) might have at Westminster after 7 May, it is worth looking at experience in some other countries. This situation may not be something the UK is used to, though it was key to how British politics worked in the late nineteenth and early twentieth century once the Parnell/Redmond Irish Party became the dominant electoral party in Ireland. There are more recent parallels from two other parliamentary systems with minority nationalities: Canada (and the Bloc Québecois), and Spain, particularly with Convergència i Unió but also other parties from Catalonia, and indeed the Basque Country and Galicia.

Canada
To make sense of what has happened in Canada, it’s necessary to know a bit how Canadian politics works. Federal and provincial party organisations are quite separate there, except for the New Democrats. The main party of Quebec ‘sovereignism’*, the Parti Québecois, has limited itself to Quebec provincial elections (as has the federalist Parti Libéral du Québec). Its counterpart for federal elections, the Bloc Québecois, was established in 1991, between the 1980 and 1995 referendums and after the failure of the Meech Lake process that was expected in Quebec to lead to a renewed form of federalism including a special status for Quebec. Its first leader, Lucien Bouchard, had been a minister in Brian Mulroney’s cabinet and an advocate for the Meech Lake deal. The Bloc was highly successful in its first election in 1993, winning 54 of 75 Quebec seats, and with the implosion of the Progressive Conservative Party it found itself forming the official opposition to the Liberals in the 1993-97 Parliament. It remained the dominant player in Quebec federal politics until 2011, winning over 40 seats in each election (and usually over 50) except for 2000, when it won 38.

In reality, though, the Bloc’s influence on federal politics has been limited.  Although established to provide a ‘voice for Quebec’ in the federal Parliament, it was unable to hinder the passage of the Clarity Act on the terms of a future independence referendum in 2000-2001, the most important constitutional issue since it was established.  Nor has it been able to enter government, or even influence the composition of a federal government. Perhaps the high point of its potential influence indicated those limits; the suggestion in 2008 of assembling an anti-Conservative government involving the Liberals, the New Democratic Party (NDP) and the Bloc to oust the minority Conservative government failed, with a strong hostile reaction to the Bloc’s involvement in particular. (A timely prorogation of Parliament enabled the Prime Minister to avoid an immediate crisis but has remained controversial ever since.) The line taken will be familiar to those who have seen the Conservatives in Britain seek to stigmatise the SNP: ‘how can you let a party that wants to break up the country govern it?’ Even at the high point of its numerical influence in Parliament, and despite its popularity in Quebec the Bloc’s reputation meant it could not take an active part in Canadian federal politics.  To a large degree, that simply cut Quebec out of federal electoral politics.
This political isolation may help explain that the Bloc’s dramatic fall in the 2011 election, which meant it even lost recognition as an official party group in Parliament. Most of the Bloc’s vote appears to have gone to the NDP, which shares the Bloc’s left-of-centre policy agenda but is traditionally an advocate of a strong federal government rather than provincial autonomy. The NDP polled strongly elsewhere as well, but 59 of its 103 seats are from Quebec. It has been the official opposition since 2011. Moreover, the Parti Québécois did very badly in provincial elections in 2014, leading many to conclude that Quebec sovereignism is in terminal decline.
(* Calling someone ‘nationalist’ in Quebec is not very helpful; practically all Francophones are nationalists to some degree.  The key distinction is between ‘sovereignists’, who seek a separate state for Quebec, and ‘federalists’ who include those  who think that Quebec’s interests can be best served as part of Canada, perhaps with special status and wider powers than other provinces.)
Spain
In Spain, several governments have depended on the support of the minority nationalist parties to form a majority. These include Felipe Gonzalez’s fourth Socialist (PSOE) government elected in 1993, the conservative Partido Popular (PP) government of José Maria Aznar between 1996 and 2000, and José Zapatero’s two PSOE governments between 2004-08 and 2008-11. It has been a regular feature of Spanish politics to have a minority central government relying on minority nationalist parties for support.
Aznar had a relatively straightforward relationship with Convergència i Unió (CiU), the largest of the Catalan nationalist parties and a party of the moderate right. CiU supported the Aznar government in return for a number of concessions: the devolution of policing and prisons, some rationalisation of the financial framework, and influence with respect to a number of central state bodies, including financial regulators and the Constitutional Court to which a Catalan judge was nominated for the first time.
Things got more complex under Zapatero . His governments relied on the support of other left-wing parties, including the secessionist-nationalist Catalan party Esquerra Republicana de Catalunya (ERC) (but not CiU) for its initial approval in a confidence vote. After that, it had to assemble majorities measure by measure. In 2005, the Catalan socialist government sought a new Statute of Autonomy, extending the powers of the Catalan parliament and government yet further. Despite clear support in the Catalan parliament, getting this through the Spanish Parliament was more complex and the Catalan and Spanish socialists did not have enough votes. So the statute’s terms were renegotiated, between Zapatero as the Spanish prime minister and Artur Mas, leader of CiU and of the opposition in Catalonia. Although the Catalan government had initiated the process, it was taken over by the central state, and driven through by an accord between a seeker of greater autonomy for Catalonia who had the votes the central government needed in the Congress of Deputies, bypassing the Catalan government and its premier, who was also the prime minister’s regional political ally.
In the Congress of Deputies (the lower house of the Spanish Parliament), the new statute passed with opposition only from the PP and ERC; it picked up ERC support in the Senate and was passed in May 2006 and subsequently endorsed by a strong (nearly 3:1) majority in a Catalan referendum. But then it went wrong; the revised Statute of Autonomy was referred to the Constitutional Court, which finally in 2010 ruled that most of the revised Statute was contrary to the Spanish Constitution – a rejection which has led to the current debates about a referendum or other process leading to Catalan secession from Spain, and the transformation of CiU from being an autonomy-seeking party to one seeking independence.

Lessons for the UK ?
It’s not easy to draw direct lessons from experiences in Canada or Spain, but a few do emerge. First, if parties want to exercise influence at the centre, they need to be able to show that they are committed to the state as a whole. Otherwise, they risk simply being excluded from all key decisions and processes. The Bloc Québecois’s influence in Canada was always very limited, and it could never exercise much sway on key decisions that mattered to it. By contrast, CiU was effective in Spain because it was happy to commit itself to Catalan autonomy within Spain; its position has been much more marginal since it shifted to embrace independence, and the same applies to ERC.
Second, despite that, it is in the interest of the state as whole, and state-wide parties, to find ways to engage with minority nationalist parties. Their voters are as entitled to representation in a state-wide parliament as anyone.  The price of support for the Bloc among Quebec voters was that they were disengaged from federal politics, and the only real focus for Quebec politics was what happened in Quebec city (and dealings between the Quebec and federal governments). That has had a detrimental effect on Canadian democracy in general, and how Quebec relates to the rest of Canada more generally. It’s yet to be seen whether the NDP’s emergence instead changes that, but it is worth emphasising how long that disengagement had lasted – by 2011, not only was the Quebec sovereignist movement in serious trouble, but it was clear that 20 years of the Bloc had produced no tangible gains. In Spain, parliamentary arithmetic made the Catalan parties and particularly CiU key players. They were willing and able to engage with the central state, and succeeded until an external actor (the Constitutional Court) made that engagement irrelevant. A further conclusion follows: vetoing an agreement that commands broad support in a sub-state nation is a highly perilous course for any actor at central level to take.
Third, this is a complicated and sophisticated sort of politics. It does not work well if parties resort to simplistic sloganising and posturing or seeking short-term partisan advantage, particularly if their objective is to maintain the integrity of the state. Cool and wise heads will be at premium if, as is likely, 7 May produces a messy outcome.

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Bingham Centre review of devolution in the UK

For the last few months, I’ve been working with the Bingham Centre for the Rule of Law on a major inquiry into devolution and how it should develop, from the point of the UK as a whole. The starting point has been constitutional: what sort of constitutional system has emerged given the fragmented nature of the process of devolution in Scotland, Wales, Northern Ireland and across England. Our committee has been chaired by Professor Sir Jeffrey Jowell QC, Director of the Bingham Centre, and includes such figures as Professor Linda Colley, Gerald Holtham, Sir Maurice Kay, John Kay and Philip Stephens of the FT. (Full details of the committee are here.) Adam Tomkins and I have acted as advisers to the committee.
We’ll be publishing the report on 20 May, with a launch at Middle Temple Hall, and have a number of important recommendations for how the UK should work which we hope will shape the actions of the incoming UK Government, whatever political complexion it may have. Key to these is the need now to think about devolution as affecting the UK as a whole, and what the nature of that Union is – not unitary, but not federal either. No new government can afford to ignore these issues, or fail to try to tackle them.

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An ‘English rate of income tax’: six questions in search of an answer

In a speech on Friday launching the Conservative Party’s ‘English manifesto’, David Cameron apparently proposed an ‘English rate of income tax’, on which voting in Parliament would be limited to English (or non-Scottish) MPs.  (There’s also Telegraph coverage here and BBC News coverage here.)  There’s not much detail about this – Cameron’s speech isn’t available on the Conservative Party website, nor is the ‘English’ manifesto.   But from what we can tell of it, this proposal raises a lot of questions.

The first question is whether this is a move beyond the Conservatives’ manifesto commitment for a veto for English MPs (or English, Welsh and Northern Ireland) MPs on non-Scottish income tax decisions, after the Smith Commission proposals are enacted.  This proposal caused quite a stir  when it was first announced, back in December 2014, and raises the hackles of Labour and other parties (and see also here), but it’s not actually new.  This may just be a rhetorical shift, using heightened language to get news coverage for an old story, but if so it has been publicised in remarkably insensitive terms: what the Conservatives are proposing is not an ‘English rate of income tax’, but relates to Wales and Northern Ireland as well. This may be an attempt to curry favour with English voters, but England is not the only part of the UK it affects.

The second question is what this proposal relates to: the Scottish rate of income tax which is due to come into effect in April 2016, and on which a decision will need to be taken this autumn, or the Smith Commission proposals? The latter probably won’t come into effect until April 2018 at the earliest, so this will not be something that could be put in place for England very quickly, or would need to be.  If the former, it implies very quick action indeed – and it’s hard to see a rationale for excluding Scottish MPs from voting when only the Scotland Act 2012 powers are in effect.

The third question is how to resolve the difficulties an ‘English rate of income tax’ shares with any move toward ‘English votes for English laws’ at Westminster to address the West Lothian question. These can be summarised as

• Serious practical difficulties in identifying ‘English laws’
• Operational problems in limiting those and ensuring only qualified MPs voted on them in divisions
• The potential governability issue, if a UK Government with the support of a majority in Parliament as a whole did not have majority support from English MPs, and could not get its business relating to England through Parliament.

On top of these, it would probably intensify (and not redress or remove) the problem of the connection between decisions about funding for services in England, and the block grants for devolved governments calculated using the Barnett formula. It would risk intensifying those problems because the ‘no detriment’ principle which is adopted for tax devolution is meant to protect each government from the effects of tax decisions taken by the other tier of government. An ‘English-only’ tax decision would risk creating all sorts of spill-overs which would trigger that principle.  So this is a recipe for greater complexity, not simplicity or ‘fairness’.

The operational problems of identifying what measures Scottish MPs could vote on and which they could not would be considerable. Collection and enforcement of income tax, even after Smith is implemented, will be for HM Revenue & Customs – so Scottish MPs should be able to vote on all matters relating to that. So would the definition of income, and exceptions, exemptions and reliefs. Also allowances – the personal allowance, married couples’ allowance, and so forth. And as income tax on savings and dividend income is not devolved, decisions about that would also need to include Scottish MPs. No wonder the Smith Commission noted that ‘Income Tax will remain a shared tax and both the UK and Scottish Parliaments will share control of Income Tax. MPs representing constituencies across the whole of the UK will continue to decide the UK’s Budget, including Income Tax’ (paragraph 75). There may be a logic in stopping Scottish MPs voting on the devolved matters, but those are rates, bands and the thresholds between bands – a very significant measure of fiscal devolution, but not the sort of complete devolution that an ‘English rate of income tax’ would imply. Making that actually work, vote by vote, will involve a veritable Parliamentary hokey-cokey.  The Smith recommendation not to limit MPs’ voting rights on tax matters will be very much easier to make work.

The fifth question is whether, if this really is about an ‘English’ (or English/Welsh/Northern Ireland) rate of tax, it can actually work at all.  It almost certainly can’t.  Tax devolution for Scotland (both under the Scotland Act 2012 and the Smith Commission proposals), Wales and Northern Ireland works by making a reduction from the block grant to allow for devolved tax capacity. There are many issues about how that will function in practice, but the principle is a viable one – because there is a distinct and identifiable grant to fund each devolved government.  That is not the case for England. Funding for English services is simply funding for UK Government functions that happen to be located in England. To have a separate English rate of income tax means identifying what those services are and having a separate and identifiable pot of funding for them, to which the English rate of income tax flows. That would be a huge upheaval for the administrative machinery of government, which certainly goes beyond the commitment in the Conservatives’ UK manifesto for a veto for English MPs on income tax decisions.  It would amount to putting in place a federal fiscal structure for the UK.  That certainly hasn’t been discussed by any political party to date.

The sixth question is whether this is meant to apply just to the Scottish proposals for income tax, or more widely.  With devolution of stamp duty land tax and landfill tax to Scotland and (in due course) Wales, shouldn’t it logically apply to those too?  What about issues regarding the new Northern Ireland rate of corporation tax?  What about air passenger duty or the aggregates levy when those are devolved?  The fact these are small taxes doesn’t alter the principle that appears to underlie Cameron’s proposal.

So, if this is something new, it may well be unworkable. But it’s probably the case that this is just eye-catching rhetoric to reheat an old promise, which is causing much more heat than light.  But who would report an announcement about ‘English, Welsh and Northern Ireland votes on English, Welsh and Northern Ireland income tax rates and thresholds between rates on non-savings non-dividend income’?

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Improving intergovernmental co-ordination: better intergovernmental relations and better devolution

I’ve a report out today on the procedural aspects of intergovernmental relations.  This was commissioned by the UK Changing Union project through the Wales Governance Centre at Cardiff University, and can be found on their website here. Today was also the day when the plenary Joint Ministerial Committee met; it agreed, among other things, a full-scale rewrite of the Memorandum of Understanding.  As this post argues, such a rewrite is overdue. 

Intergovernmental relations are key to making devolution work effectively. The Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly all operate in a wider context of governance across the UK, and how their functions overlap with those of the UK Government (and other governments) is vital for all four governments and all UK citizens. The Smith Commission’s recent report pays a good deal of attention to the need to ‘scale up’ intergovernmental co-ordination as part of the package of further devolution.

The UK Government is not very interested in managing intergovernmental relations, however. It put in place an attenuated under-institutionalised set of mechanisms in 1999, and has allowed that to weaken or fall further into disuse since then. The key institution is the Joint Ministerial Committee. Plenary meetings of that ceased altogether between 2002 and 2008; they have been more or less annual since then, but are characterised by grandstanding rather than productive work. The JMC’s ‘Domestic’ format has nearly ceased to function, as so few policy issues concern more than one devolved government. The only established format of the JMC which does meet regularly, and does more or less what it was expected to, is the EU format which helps formulate the UK ‘line’ for major EU Council meetings, though there are problems even there. In reality, most intergovernmental issues are bilateral, but with few exceptions they are dealt with in an ad hoc, casual way, out of sight of public or legislatures, and many important issues slip through the net.

The argument for a more systematic approach to intergovernmental relations is unanswerable. Such conduct is simply not consistent with ensuring that devolved governments are treated fairly, feel they have been treated fairly, and citizens from across the UK can see they have been treated fairly. The UK Government needs to recognise that such procedures are not appropriate for the changed constitutional landscape following the Scottish referendum – if they ever were appropriate at all. But different approaches have been repeatedly urged on the UK Government, through Parliamentary committee such as those in 2002 by the Lords Constitution Committee, in 2009 by the Commons Justice Committee or in 2010 by the Commons Welsh Affairs Committee. No change has resulted despite such repeated urging from across Parliament, and despite the potential advantages for the UK Government – whether better policy co-ordination, an indirect way of achieving its policy goals, or simply symbolically showing the UK’s ability to incorporate its various parts into a single multinational union.

The difficult question is what to do, given where we are now. Is it still appropriate to call for the sort of regular, multilateral meetings that are used in more symmetrical systems? Multi-lateral intergovernmental co-ordination has had little impact because it does not relate to the practical nature of government in a profoundly asymmetric UK where most issues are bilateral not multilateral. The plenary JMC is dominated by high politics driven by party concerns –a theatrical exercise which contributes little to efficient government, though it cannot be regarded as dignified given the degree of masochism it requires from the UK Prime Minister.

The JMC (Domestic) was meant to be a way of dealing with practical policy issues, but it has proved to be of limited and declining value. In practice, lower-level co-ordination relating to specific policy issues is done bilaterally, but it works inconsistently, and out of sight of the public and beyond legislative scrutiny. That makes for bad governance. It also creates a process from which Wales, structurally and regularly, is the loser, lacking the political clout and outside interest that shape how Scotland and Northern Ireland play the game.

So perhaps the way forward would be to stop talking of multilateral ministerial committees, and instead embrace the logic of bilateral relations in more co-ordinated way. The Part 2 report of the Silk Commission suggested a ‘Welsh Intergovernmental Committee to manage this, a recommendation supported by the Welsh Government in its response to Silk. Whether the UK Government would be willing to commit the senior ministerial time this would need is doubtful. A more appropriate way of working, building on existing arrangements and enhancing them, would be for the Secretary of State for Wales or the junior Wales Office Minister to take on an active role here. The Wales Office would take on the task of assessing the impact of UK Government business on devolved Welsh functions, and Welsh policy on non-devolved ones, on the basis of each respecting the other’s role, so that both governments are able to take an overview of the welter of business of each government that affects the other.

The second area that calls for change is how disputes and disagreements between governments are handled. When these are legal in character, they go to the UK Supreme Court, via various ‘leapfrog’ procedures. But when the issue is not whether a government or legislature has the power to act, but whether they behaved properly toward each other when they did, the situation is quite different. Since 2010, there has been an agreed ‘disputes avoidance and resolution mechanism’ in the Memorandum of Understanding, but it has proved to be particularly flawed in both its design and working. It has only met once, to consider the row arising from the way the UK Government stopped devolved governments from receiving consequential payments under the Barnett formula for the regeneration spending on the area around Olympic Park in Stratford, before the 2012 London Olympics. On that occasion, an hour-long meeting was shoe-horned into Francis Maude’s diary at 8.30 in the morning. Maude was involved as a UK Government minister who had not been involved in the matter previously – but putting another UK minister in charge of the process, one bound by collective responsibility to one side of the dispute but not the other, is a potent source of apparent if not actual bias.

Possible bias is only one problem. The other major problem is that the disputes resolution ‘panel’ has no power to do anything other than mediate the dispute – to seek to find an agreement between the UK department and devolved governments involves. If they cannot agree, there will be no resolution, but the absence of any resolution is going to favour the UK department in almost all possible cases. The fact that a ‘do-nothing’ outcome will always advantage the UK Government is a grave problem. And in issues about the working of the Barnett formula, there will be a third: the control the Treasury has over the Statement of Funding Policy. In this case, the Treasury was not merely judge in its own cause, with a jury from its side of the fence, but it wrote the rules as well!

Such an approach fails to meet even the most basic idea of fairness. At the very least, there needs to be an impartial mediator, perhaps a panel not an individual, and the possibility of causing some embarrassment for a recalcitrant government that refuses to give ground – at least by a public finding against it. This will fall some way short of the Smith Commission’s recommendation of ‘well functioning arbitration processes’, but again is more likely to be workable in practice.
Leaving matters to be handled in ad hoc, reactive, unstructured way is no longer an option for the UK Government. The question is how it wants to shape the way forward.

This post also appears on Click on Wales, here, and the ‘Future of Scotland and the UK’ programme blog, here

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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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