A ‘reserved powers’ model of devolution for Wales: what should be ‘reserved’?

This post also appears on ClickonWales, the Institute for Welsh Affairs’ blog, here.

Since at least 2004, when the Richard Commission proposed one, there has been significant support in Wales for adoption of a ‘reserved powers’ model – as Scotland and (in a different way) Northern Ireland have.  The call was strongly endorsed by the Silk Commission in its Part 2 report and became UK Government policy with support from all four main parties following the St David’s Day process.  There seems to be an assumption now that a reserved powers model is essentially a technical matter and that the Scottish model can and will be taken off the shelf and applied, with appropriate modifications, to Wales.  That might not be a bad way forward – there’s a good deal to be said for the Scottish legislation, though it’s not a magical way to solve all problems.  But real devils also lurk in the detail of what ‘appropriate modifications’ might be.

What appears to be underway is a process by which Whitehall departments are consulted about what functions they want to see retained, and what they are happy to let go.  The Welsh Government is a marginal player in this process, if it is a player at all, and the Wales Office does not appear to have a strategy to go with its consultation list.  The first fruit of that trawl appeared in the Powers for a Purpose Command paper published in February at the end of the St David’s Day process, as Annex B.

As part of a joint Wales Governance Centre and UCL Constitution Unit research project on a reserved powers model for Wales, we decided to look at what Annex B proposes, and how that relates to functions that are reserved in Scotland, or reserved or excepted in Northern Ireland.  (Northern Ireland has two categories of powers; excepted powers, on which the Assembly can’t legislate at all, and reserved powers on which it can legislate if the Secretary of State consents.)   A table showing our analysis can be downloaded here.  It shows whether there are precedents for proposed Welsh reservations from Scotland or Northern Ireland, and what the nature of those reservations is.  A second table (available here) is a summary of the first, limited to those matters which are not reserved for Scotland or Northern Ireland.

 Those reservations can be put into three categories.  One is matters where there are clear reasons why the UK, as a state, needs to retain control of particular matters.  These are matters that are reserved for Scotland and also retained (usually as excepted matters) for Northern Ireland – matters like the constitution, foreign affairs, the currency.  There are also matters that are related to the social union (like old age pensions and national insurance) or the economic union, like competition law or consumer credit.

A second category is matters that relate to functions that there was no agreement about reserving – notably policing, offender management, and civil and criminal justice.  Some of these reservations may create serious difficulties for other aspects of devolution; this is notably the case for the proposed reservations of civil and criminal law.  If policing and criminal justice are not to be devolved matters, there is a logic in retaining such matters as control of criminal records, firearms or riot damages at UK level.  That case is more tenuous when it comes to such matters as regulating the private security industry, the use of CCTV or anti-social behaviour, but there is still a logic to it given that initial decision not to devolve criminal justice.  By the same token, retaining civil law makes reserving such matters as legal aid or claims management logical.  Retaining such functions as land charges, land registration or inter-country adoption is less so; again, these merit a substantive policy discussion.

The third category is proposed reservations which have little or no relation to other functions that are being reserved, and are not reserved for Scotland or Northern Ireland.  This is a baffling mixed bag of a list.  It includes teachers’ pay, student loans, non-energy minerals, licensing the sale and supply of alcohol, licensing entertainment and late-night licensing, the safety of sports grounds and the control of dangerous dogs and hunting with dogs.  In each case, it is hard to see the rationale for retaining these; there is no vital UK interest at stake, there is no obvious connection to other reserved functions, and there is no sign of any serious political or policy discussion about retaining them.

The UK Government may well change its proposed reservations as discussion between the Wales Office and Whitehall departments progress.  This is simply based on an analysis of what it proposed in February.   If it publishes a revised list of reservations, it may well be worthwhile to repeat this exercise for that list.

A ‘reserved powers’ model is not something that can simply be pulled off the shelf to solve some ‘technical’ legal problems.  It raises a set of major questions about the division of powers between the UK and devolved Welsh tiers of government – which government should be responsible for what.  That calls for a carefully-thought through approach by the UK Government followed by an open public debate, engaging the Welsh Government, the political parties and Welsh civil society.  It mustn’t go by the board.

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English votes for English laws: a brief comment

Given Tuesday’s Commons debate and vote against the Government (also reported in a Guardian liveblog here), I thought it was worth reposting here an amended version of a short piece which appeared earlier on the Democratic Audit blog

Chris Grayling’s proposals for English votes for English laws (EVEL) should not be much of a surprise.  They are very largely a straightforward implementation of ‘option 3’ set out by the party in the December 2014 Command paper, endorsed in a speech by William Hague in February 2015 and set out in the party’s election manifesto.  The Conservatives will claim credit for having done what they said they would.

In doing so, they have not addressed some key problems.  First, they have abandoned the McKay Commission’s test of provisions having a ‘separate and distinct’ effect for England.  That had the merit of principle.  Instead, the test is whether a provision ‘relates exclusively’ to England.  But, second, that test is mis-applied; provisions may relate to England in a legal sense but have a major effect on devolved governments, whether through the Barnett formula and consequential changes in funding, or their effects across a border (a major issue for Wales if not Scotland).  This means, third, that the problems arising from a piecemeal approach to constitutional change have been maintained and aggravated, not resolved.

There are ways of implementing EVEL that would give England the distinct voice in the Union that it badly needs.  That needs a much further-reaching reconstruction of how legislation works, and perhaps the machinery of government too.   We canvassed these issues in the recent Bingham Centre devolution review, and set out a path to achieve it.  (The report can be downloaded here.)  Instead, the Conservatives have ticked a box on their to-do list, but stored up yet further constitutional problems for the future.  To work properly, EVEL needs to form part of a much broader programme of reform in Westminster and Whitehall, not be a one-off revision to Commons procedures.

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The Bingham Centre devolution review: the UK at a constitutional crossroads

This post also appears as a guest post on the Centre on Constitutional Change blog here, the LSE’s British Politics and Policy blog here, and the Institute of Welsh Affairs blog ClickonWales here.

The impact of the Scottish independence referendum has been wide-ranging. It raises a number of questions about how the UK works as a whole and its territorial constitution, as well as ones about Scotland.  But for all the importance and urgency of these issues, they have not yet been subject to any wide-ranging or sustained scrutiny.  A new report from the Bingham Centre for the Rule of Law, available here, seeks to change that and look at what issues the UK as a whole will need to address in the coming months and years.  The review commission has been chaired by Sir Jeffrey Jowell QC, and its membership is here and remit is set out here.

The Commission’s starting point was to consider the implications of the piecemeal, ad hoc approach to devolution taken so far.  Its view is that this has reached the end of its road.  The knock-on effects of the Smith Commission proposals for Scotland mean that this now creates serious constitutional difficulties beyond Scotland.  A more systematic view, considering the UK as a whole, is badly needed.

The first big recommendation to address that is a Charter of the Union, to be passed as a Westminster statute with consent from the devolved legislatures, and setting out key principles for the working of a devolved union.  These draw on what already applies – they include such principles as respect for democracy, the rule of law, autonomy of each government and comity and respect for each other in their dealings with each other.  Subsidiarity and social solidarity are also key principles for the Charter of the Union.

The Charter would accompany the specific devolution statutes for Scotland, Wales and Northern Ireland, so they would need to be construed in accordance with it and its principles would govern further considerations of devolution – and indeed changes at UK level.  It would therefore set out a clearer constitutional framework for the UK as a whole, rather than the current ad hoc approach to three distinct arrangements plus an evolving pattern for England.  This might be a staging-post to a written constitution, but it would certainly put the UK’s territorial constitution at the forefront of its constitutional debates over the coming years.

The second major recommendation relates to funding arrangements.  The review is clear that the Barnett formula has had its day.  It does not deliver equity between the various parts of the UK.  It does result in a number of unintended policy spillovers between England and the devolved tier of government, and it gives the Treasury a huge degree of control and scope to make subjective judgements about how the UK’s finances as a whole work.  These are incompatible with the sort of devolved Union that the UK has become, and will only become worse.  The block grant will become increasingly subjective as adjustments are made to allow for devolved tax capacity, to pay for devolved welfare functions in Scotland, and by application of the ‘no detriment’ rule intended to help separate tax policy decisions by both devolved and UK governments (both the subject of forthright criticism by the Scottish Parliament’s Devolution (Further Powers) Committee).  This ‘multiple black box’ approach will become a source of nothing but disagreement and intergovernmental tension.

The Commission’s proposals entail reform of the UK’s devolution finance arrangements, of the easy parts as soon as practicable and of the more difficult ones over time.  The machinery needs an independent, impartial body to advise on financial matters and calculations.  There also needs to be an effective way of resolving disagreements and disputes when they arise, rather than ones that leave the initiative in the hands of the UK Government as at present.  And the block grant arrangements need to be put on a statutory basis rather than resting on a Treasury ‘Statement of Funding Policy’, and be subject to external scrutiny and audit

Linked to this is the need for a wider debate about welfare and the Union; how much the Union is responsible for delivering social solidarity and how, and the ways this relates to the arrangements for funding devolution.  This political choice has such wide-reaching effects it needs to be explicitly debated, not implied by other decisions.

The third major recommendation relates to ‘English votes for English laws’.  The report supports the principle that bills or provisions which satisfy the McKay Commission’s test of having a ‘separate and distinct effect’ for England should be subject to consideration by English MPs alone, within the House of Commons.  The problem will come with identifying what these bills are.  The government of the day may have a view about this, but ultimately deciding this will have to be a job for someone with authority and expertise or access to it, so probably the Commons Speaker.  It will need to take into account not only the policy implications of a decision about health, education or policing, but also the financial implications.  This will be tricky, and is an argument for both disentangling devolved and non-devolved finances and for separating the way finances and policy are considered within Parliament.

The fourth major set of recommendations relate to the UK Government, and particularly Whitehall. Whitehall needs to pay much more attention to devolution concerns; it needs to ensure that the machinery of intergovernmental co-ordination actually works; and it needs to reinforce ministerial capacity.  The last is a strong reason for a single Secretary of State for the Nations and Regions, or for the Union.  The absence of an effective overview at ministerial level has made the disjointed structure of the UK much worse.  Without much greater care about what devolution means, and the relationship between devolved and non-devolved functions, it will be impossible to distinguish between devolved and non-devolved financial matters or between legislation that has a ‘separate and distinct’ effect for England and that which does not.  Treating devolution as some sort of add-on or variation from an English ‘norm’ has also had its day.

In September 2014, Scottish voters chose to stay in a reformed Union rather than leave it.  There is strong public support for greater self-government in Wales and England as well.  Northern Ireland, as part of the Union, needs and deserves a system that works effectively.  The Commission’s proposals are designed to lay the groundwork for a union that delivers on those demands.




Filed under Conservatives, Devolution finance, English questions, Northern Ireland, Publications and projects, Scotland, Wales, Westminster

How Labour messed up 1998-model devolution

It’s intriguing to see various senior figures from the New Labour era call for a return to something much more like new Labour to revive the Labour Party. Those figures seem to overlook how responsible New Labour’s politics and legacy are for the mess Labour now finds itself in. (On the nature of that mess, I agree with quite a lot of what Paul Mason says here; it is very clearly a structural problem caused by the collapse of an electoral coalition, not just a question of policy detail or leadership.)
New Labour helped create the mess, at least in its territorial dimension, in two particular ways. First, its political economy depended on getting London to generate large tax revenues to pay for redistributive benefits and much of public services in the rest of the UK, and satisfying those already owning property in London through a property boom. This has left a lasting and damaging legacy by creating or at least magnifying huge inequalities and resentments arising from different regional economies and levels of prosperity.  (In technical terms, it sought to use a huge vertical fiscal imbalance to redress horizontal inequalities.  What actually happened was that those horizontal inequalities increased.)
Second, new Labour treated devolution as an event not a process. What was done in 1998-9 for Scotland, Wales and Northern Ireland was itself always unstable, a reform half-completed.  For it to work as a durable constitutional settlement, it needed to form the first step in a wider programme, addressing regional issues for England, the West Lothian question, the working of the Barnett formula and the inequities in spending on public services that generated, and issues of tax devolution to complement that of service delivery.  But Labour largely stopped there.  Leaving these matters un-addressed generated or fuelled tensions between different parts of the UK. Moreover, to maintain its position in Scotland and Wales, it needed to understand the new political dynamics that arose once there were devolved electoral arenas that were also sub-state nations, but did so very poorly (although Welsh Labour appears to have learned that lesson rather better than Scottish Labour).
In office in Westminster, Labour not only failed to act on these issues. It positively sought to squelch any serious discussion of them (note the utter silence on the question of the Barnett formula after 1999 until 2008 and the establishment of the Holtham Commission in Wales, itself at Plaid Cymru’s insistence).   Labour could have addressed them during the decade after devolution, from 1999 to 2010, while it was in government in Westminster.  If it had done so, it would have been able to do so on comparatively favourable terms and with less serious consequences than now. It positively refused, despite repeated private urgings (to some of which I was party). It failed to change anything for fear it might lose something – and now it has suffered a grave electoral defeat and lost any meaningful influence over events, particularly in its former powerbase in Scotland. These are bitter lessons for Labour, but it has only itself to blame for learning them now and not addressing them sooner.

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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.

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.)
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.


Filed under Comparisons from abroad, Elections, UK elections, Westminster

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.

UPDATE: Anyone wanting to come to the launch should email Sandra Homewood on s.homewood[at]binghamcentre.biicl.org to confirm their attendance. 

UPDATE, 21 May:  The report, A Constitutional Crossroads: Ways forward for the United Kingdom, can now be downloaded here as a PDF file.

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