Category Archives: Referendums

Devolved elections and the timing of the EU referendum

All three devolved first ministers have now written to the Prime Minister seeking to ensure that the referendum on the UK’s EU membership is not held in June. The current thinking suggests that 23 June may be in David Cameron’s mind, assuming all goes well in reaching a final agreement with the other member states in the renegotiation. The First Ministers’ concern is proximity to devolved elections, and they are right to be concerned; the surprise is that their concern is not shared by Conservatives, or Labour, at Westminster.

The timetable for the EU referendum is not clear, but there are two fixed dates running up to the process. The first is the deadline for publication by the UK Government of

a report which contains … information about rights, and obligations, that arise … as a result of the United Kingdom’s membership of the European Union, and … examples of countries that do not have membership of the European Union but do have other arrangements with the European Union (describing, in the case of each country given as an example, those arrangements).

This is required by section 7 of the European Union Referendum Act 2015, and must take place not less than 10 weeks before the referendum date.

The second is the formal referendum campaign period, during which the two designated In and Out campaigns will have referendum election broadcasts, rights to public funding, and be required to keep detailed accounts. All that is complicated and requires effort and engagement from those involved in campaigning (and can easily be got wrong).  It also means engaging the public with issues about the UK’s future relationship with Europe rather than parties’ plans for taxation, housing policy or the health service.  That period starts 10 weeks before referendum polling day.

Thursday 23 June falls seven weeks after polling day for the devolved elections, 5 May. If 23 June is referendum day, the information report will have to be circulated at least three weeks before the devolved legislatures’ polling day – so, quite probably, in the middle of the devolved election campaigns. Referendum activities, broadcasts and expenditures will be starting three weeks before election day. And the activists who can be expected to be campaigning for both Leave and Remain votes will probably also be campaigning, or wanting to campaign, in the elections.

Moreover, at least three of the major parties have clear internal divisions about the EU. While the SNP, Plaid Cymru, the Lib Dems and the DUP may be clearly on one or other side, there are significant divisions among supporters of Labour, the Conservatives and (perhaps surprisingly) UKIP about the EU. At least for the Conservatives and Labour, those divisions are mirrored among their leadership and elected representatives.  If the two campaigns coincide, party activists will be torn between working on one of two different campaigns, which is bad enough. But worse, in one of those they may be allied with people from other parties – and in the other they will be publicly and conspicuously disagreeing with their party colleagues. What is a list Conservative candidate in Cardiff or Glasgow meant to do if they are pro EU but the person above or below them on the list, or running for the constituency seat, is an Out-er? Labour will have the same problem, and so might UKIP (which has serious prospects in the Assembly elections in Wales). These questions will be asked on the doorstep and by TV, radio and press interviewers.  They cannot be avoided. News coverage will be full of ‘party splits’, which will do no-one any good – whether in the devolved elections or in the EU referendum.

As the most divided party the Conservatives will be most hit by this clash of campaigns.  It will undermine their electoral prospects in both Scotland and Wales, where they have well-founded hopes of gaining votes and seats.

There are of course other arguments why polls should not coincide.  The Electoral Commission emphasises organisational readiness on the part of those who will deliver the referendum and whether voters might be confused by two simultaneous or near-simultaneous campaigns in arguing for separation of the timing of polls.  The devolved first ministers have emphasised ‘due respect’ for elections to their institutions. Each of those concerns overlooks the practical difficulties which face parties and campaigners and which are even further-reaching than those issues of principle.

This is not, in fact, a new issue. Exactly the same question cropped up regarding timing of the referendum in Wales on the National Assembly’s law-making powers, which was eventually held on 3 March 2011 and followed by Assembly elections on 5 May. That was a separation of 10 weeks between polls. The Welsh situation was easier for several reasons.  The referendum came first, so politicians from across the party spectrum could campaign together in that and then disagree in the election campaign – easier than doing it the other way round. Three parties officially supported a Yes vote (Labour, Plaid Cymru and the Lib Dems), and the bulk of Conservatives did so too though the party stayed neutral.  Ironically, the failure to have designated Yes and No organisations may have helped too, since that meant limited media coverage and so reduced the public emphasis on party division or unity in the run-up to elections. It is doubtful those factors will apply in the EU poll.  The Welsh situation still made for an exhausting five months for those involved in the two campaigns.

What to do about this? There are compelling domestic reasons why Cameron would be well advised to want a referendum to be held sooner than later, and at all costs to avoid 2017 (let alone the later autumn). Moreover, apart from those domestic concerns, elections loom in Germany and France, Schengen countries are deeply concerned by the migration crisis, and much work remains to be done about the nature of the Eurozone. None of this directly concerns the UK, but it concerns key participants in the negotiations and everyone will want to know where the UK stands. A referendum date in early or mid-summer presents serious problems, though. Holding the EU referendum 10 weeks after the devolved elections would mean holding it on 14 July; well into the Scottish holiday season, when school holidays are just starting or are about to start in England and Wales, and in the middle of the marching season in Northern Ireland. Going any later into July is impractical because of the holiday seasons. So that makes the first part of September look much better. That is far from problem-free – party conference season looms, in particular –  but it avoids the problems of trying to hold a referendum so close to the devolved elections and lets campaigns for devolved elections dissolve before referendum campaigns start in earnest.

David Cameron should make his decision very soon, though, and let the public know. That needs to be before the scheduled European Council meeting on 18-19 February (let alone the March follow-up).  The date of the 2011 Welsh referendum was known more than eight months before the poll. For the 2014 Scottish independence referendum, it was eighteen months. Each of those may have been flawed, but were better than what we have: serious confusion about the date of a referendum which could be held in as little as four and a half months, with the alternative being seven months. Neither such confusion nor potentially short notice is good for democracy.

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Filed under Conservatives, Elections, EU issues, Northern Ireland, Referendums, Scotland, Wales

‘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.

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Devo Max and Devo More

There are two myths going around about what happens following a No vote in the Scottish referendum.

First, it’s said that plans for ‘more devolution’ are unclear. They are not. The three pro-UK parties have different schemes for them, it’s true, but there is a substantial degree of common ground between them. All involve devolution of most or all of personal income tax to the Scottish Parliament. Labour and Conservatives both support forms of welfare devolution, which – among other things – would have enabled Scotland to opt out of the Housing Benefit change that led to the ‘bedroom tax’. The differences do need to be resolved, but there is also a clear route for that, endorsed by the UK Prime Minister in his Aberdeen speech as well as other party leaders: an early process of cross-party negotiations, leading to a white paper by November 2014, publication of draft legislation in early 2015, followed by incorporation into manifestoes for the May 2015 general election, which will give the mandate for delivery of them.  That level of political commitment is not easily ducked – and ironically it is perhaps the Conservatives who have the greatest short-term political interest in securing their delivery.

It’s also untrue that these are last-minute proposals All these schemes have drawn on the work I have done with IPPR, and particularly Guy Lodge, through the Devo More project since late 2012. They reflect many months of work and careful analysis of the implications of further devolution, not just for Scotland but for other parts of the UK as well – they haven’t been suddenly ‘pulled out of a hat’.

Details of the key publications from Devo More can be found here, here and here (and there are posts about the financing paper here, the welfare one here and how the programme fits various political traditions here).

Second, it’s suggested that these proposals amount to ‘Devo max’. They don’t. This is usually a rather lazy shorthand from journalists or politicians who haven’t understood what is actually on the table. The extra-devolution schemes, or scheme, will substantially enhance the autonomy of a devolved Scotland within the UK. But the Scottish Parliament is already responsible for about 70 per cent of all public spending in Scotland. The Devo More proposals will take Scotland as close to home rule as is possible in a single state.  They will deliver what Scots had clearly shown they’ve wanted for a decade or more – greater self-government in the Union – in a way that works with the interests of people in other parts of the UK, rather than against them.

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Filed under Devolution finance, Publications and projects, Referendums, Scotland, Scottish independence, Westminster

What follows the referendum: the process of negotiating Scottish independence, or of delivering Devo More

Back in May, I gave a lecture at the University of Ulster’s Belfast campus about what might follow the vote in the Scottish referendum. I’m afraid I’ve only now had the chance to tidy that up for wider reading. It’s available on the Social Science Research Network here, or can be downloaded directly HERE. The lecture as a whole is somewhat lengthy (around 10,000 words), so this post picks out the key points.

Perhaps the most important and novel part of the lecture is the second one, where I map out what would follow a Yes vote – the sort of steps needed, particularly on the rUK side to tackle the many uncertainties that will follow. This is a separate issue from that of the strengths of each party in the negotiation, discussed HERE earlier in the week.  This would call for a great deal of imaginative thinking, in the midst of a first-order constitutional crisis. In particular, it seems to me that:

  • The negotiating process needs to move with all due speed, to preserve the democratic legitimacy of both rUK as well as an independent Scotland. There is no good reason for rUK to seek to prolong the process, and plenty of reasons for it not to.
  • The 2015 UK General election presents grave problems for that – the time lost to campaigning in an election and briefing a possible incoming new government means it will be impossible to make a proper start in negotiations before June 2015, since even provisional agreements reached under the present government might lack support from the new one.
  • One option – which appears to be gaining some support, particularly among Conservatives – is to postpone the 2015 election. But the present government has already been in office for 4½ years, and has no mandate to negotiate something so important to rUK as Scottish independence.
  • A better option would therefore be to hold a general election early, before the end of 2014, so there was both certainty about the composition of the UK/rUK Government and that government had a political mandate for independence negotiations. This would need approval by a two-thirds majority in the Commons, under the Fixed-term Parliaments Act 2011.
  • Those negotiations will not be quick or straightforward – not just because of the difficulty or complexity of the issues to be considered, or how trade-offs might be made between issues, but because they are a matter for parliaments as well as governments. Parliaments will need to approve legislation giving effect to the final outcome, and in Westminster’s case also to authorise much of the necessary preparation on the Scottish side. There will need to be close co-operation between governments and their parliaments, both to ensure proper democratic control and accountability in the process and to simplify the process of approving the agreement at the end of it.
  • A special UK Parliamentary committee, probably mostly meeting in private to preserve the confidentiality of proceedings and negotiating positions, would be an important way of helping to accomplish that.
  • There would also be problems about the involvement of Scottish MPs and ministers in the independence process on the UK/rUK side. It would be contrary to the interests of the people of rUK for MPs sitting for Scottish seats to be involved in that process; as those negotiations affect first and foremost the people of England, Wales and Northern Ireland, only their representatives should be involved – whether in negotiating teams, Cabinet or Cabinet committees when considering independence-related matters, or when those are considered in Parliament. This is the West Lothian question on steroids.
  • The need to ensure a broad consensus of support within rUK for the agreement also means that the Opposition – whoever it may be at the time – will need to be involved in the process. In particular, figures from the Opposition should be included in the rUK negotiating team, and party leaderships kept abreast of all issues under consideration. Again, while this complicates the process of the negotiations, it will simplify the process of approving and implementing an independence agreement.

Much of this sits oddly with usual British constitutional practice. But a Yes vote would trigger extraordinary times, and a need for extraordinary measures to cope with an unprecedented and very difficult situation. (Observant readers may note the considerable overlap between these recommendations and those of the Lords Constitution Committee’s report on Scottish independence: constitutional implications of the referendum – which was published after I gave the lecture.  I do differ with the committee’s conclusions about the compostion of hte UK negotiating team and timing of the 2016 election, however.)
As far as a No vote is concerned, the lecture maps out the programme that was clearly being advanced by the Unionist parties in May, and advanced by the IPPR’s Devo More project: separate party policies, cross-party agreement on the key elements of that, early consideration of them following the referendum and implementation through endorsement in the 2015 election manifestoes. That process would clearly need to include the SNP as well as the pro-union parties, unless the SNP chose not to take part. Since I gave the lecture, the Scottish Conservatives have published their proposals in the form of the Strathclyde Commission report (and I have amended the text to reflect that). Subsequent developments have hardened the commitment of the parties both to the need for joint action and a clear timetable, as well as a Scottish-focussed process to agree the main features of ‘enhanced devolution’.
None of this is about simply ‘giving Scotland more powers’. It is about getting devolution right, so that it enables Scottish voters to have what they have wanted for more than a decade: extensive self-government within the Union. That will benefit other parts of the UK too, and not just by achieving a greater degree of constitutional stability. It will ensure that if Scottish taxpayers choose to spend more on devolved Scottish services, they bear the fiscal consequences of that; this would not be at the expense of taxpayers outwith Scotland.
There is, however, a clear need for that to be followed by a wider process covering the whole UK, and the best way to achieve that would be through a conference of members of the UK’s parliaments and legislatures; MPs, MSPs, AMs and MLAs. This is the idea underpinning the Strathclyde Commission’s recommendation for a ‘committee of the parliaments and assemblies’ . Through their election, these figures all clearly have a mandate and authority that other methods of selection would not give them.
Whatever happens on 18 September takes the UK into new and uncharted constitutional waters. It is important that everyone understands what is likely to follow, and what the world is likely to look like in a few months’ time.

This post also appears on the UK Constitutional Law Association blog, here

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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

Lecture in Belfast on what happens after the Scottish referendum

I’m giving a public lecture at the University of Ulster’s Belfast campus on 15 May, on what happens following September’s Scottish referendum.  It will take place in the Conor Lecture Theatre at 5 pm.  The poster, with more details, can be downloaded here.  Please email Zoë Lennon on z.lennon@ulster.ac.uk to confirm your attendance if you’d like to come.

 

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The UK Government’s increasingly clear referendum position

The UK Government has now taken to using publicly a clear line about the independence referendum.  A Yes vote, and Scottish independence, will lead to Scotland leaving the United Kingdom (despite semantic objections from the Yes side).  That means an independent Scotland will also cease to be part of UK institutions.  It can’t expect to be able to maintain participation in such bodies as the Bank of England (as emphasised by the row over currency union), the BBC (illustrated by Maria Miller’s comments in Oxford), and others. The European Union is another of these.  Lord Wallace’s impending speech makes the point vividly clear.  Expect to see the research councils added to the list over the coming weeks, as another body where an ‘independent’ Scotland would seek to share arrangements with rUK.  There may be some hard choices to be made about a common travel area and its security implications.  The ground for both of those has already been laid in the Scotland Analysis papers.  And expect arguments about such detailed matters as the organ transplant ‘pool’, which currently operates on a UK-wide basis.

None of this should be a surprise.  It’s been implicit in the UK Government’s position since the beginning of the Scotland Analysis programme.  Remember that that kicked off with an analysis of the international legal issues, concluding that (r)UK would be the successor state in international law and Scotland would be a new state.  The line of argument now emerging is simply the logical fulfilment of that.

This is also perfectly consistent with the strategy of the Unionist side in another respect.  Since the May 2011 Scottish election result, and David Cameron’s prompt acceptance of the need for referendum and stipulation that it be ‘legal, clear and decisive’, the UK Government has pursued an excluded-middle Continue reading

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