SNP, sorry: the referendum result takes Devo Max off the table

The clear and decisive vote in the Scottish independence referendum is a powerful statement in a number of ways. There is clearly a large constitutional and political debate now underway, for the whole of the UK and each of its parts and not just Scotland.

But aspirations that this means ‘devo max’ – the devolution of all functions save defence, foreign affairs, currency and maybe immigration, and including the power to set and collect all taxes in Scotland – are simply wrong.  Devo max in that form is definitely off the cards. It has never been offered or proposed by any of the pro-Union parties. The enhanced-devolution schemes they have, to be brokered now through the process chaired by Lord Smith of Kelvin, are all substantial further devolutions of power, but not ‘devo max’.

In his concession speech, Alex Salmond committed to work with other parties in Scotland, and the rest of the UK, to deliver further powers for the Scottish Parliament. The Scottish Government of course undertook to ‘continue to work together [with the UK Government] constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom’, in the much-discussed Article 30 of the Edinburgh Agreement.  For the Scottish Government to be an active participant in that process, it and its supporters need to acknowledge that devo max is also now off the table. The referendum was a clear signal by the people of Scotland that they wanted to remain part of the United Kingdom. Far-reaching further devolution is perfectly compatible with that, more so with the wide-ranging approach to constitutional reform that the Prime Minister has signalled. But – as I made clear in my evidence to Holyrood’s Finance Committee in June – full fiscal autonomy and devo max are not. It has nothing to offer Wales or Northern Ireland, and would be unworkable for them. More seriously, the extensive, de facto withdrawal from most aspects of a shared economy and shared social citizenship that devo max would imply is not workable for other parts of the UK. Those remain key tangible manifestations of remaining part of the UK. By rejecting full-fat independence, Scotland’s voters also opted to decline its skimmed version that is devo max.

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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.

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. 

Negotiations after a Scottish referendum Yes vote

In just over a week’s time, Scottish voters will choose whether Scotland should become an independent country outside the United Kingdom, or remain a devolved part of the UK. It’s a big decision, but they should not think that the referendum vote is the end of the matter. In reality, it is only the beginning. The pro-union parties have long made it clear that a No vote will start the process of delivering a form of enhanced devolution; a Yes vote will trigger a process leading to independence, about which there are few other certainties.

Much of the campaign in the last few weeks has been about creating a different sort of politics, and a different approach to social policy, within Scotland. But at least as important for Scotland as an independent state is the nature of its relations with the remaining part of the United Kingdom (rUK) – its much larger southerly neighbour, its main economic and trading partner, with which the Scottish Government aspires to share a currency, ‘social union’ and much more. All those plans are predicated on a close and amicable relationship with rUK, with Scotland able to enjoy the continuing benefit of a number of services that the UK presently offers to all its citizens.  The question is: can that vision actually be delivered? Even if that model t is the interests of an independent Scotland, why is it in the interests of rUK, if Scotland chooses a future outside it? If it is not, why should rUK comply with independent Scottish wishes – why is it in rUK’s interests to do so?  And, given the differences in interest in securing that outcome, how might an independent Scotland make it happen?

If there is a Yes vote, there will be a complex and messy set of negotiations between referendum day and independence day. Before those negotiations can start, and certainly before the Scottish Government can talk to any entity outside the United Kingdom, a paving bill permitting it to do so would need to be passed by Westminster. At the end, following those negotiations, both UK and Scottish Parliaments will need to approve the resulting deal. Not all the issues that need to be resolved between rUK and an independent Scotland (iScotland) will be resolved by independence day. Indeed, if the Czech-Slovak parallels are anything to go by (and that was a much simpler case), they will not be fully resolved for at least two decades. That does not mean Scotland cannot become ‘independent’, but that independence will indeed be a process not an event, with many issues falling to be resolved only months or years later. However, for an independent Scotland to start functioning as an independent state, some key top-order issues have to be resolved. Prominent among these are:

• the currency the new state will use, and who bears the risks associated with that
• the borders of the new state – particularly its maritime borders, which will affect oil and gas reserves unless a distinct arrangement is made for these.
• the arrangements for movement of persons between rUK and the new state, both at the border and more generally
• whether, when and on what terms the new state will be or become a member of the European Union
• the division of the UK’s current National Debt
• the division of other UK assets and liabilities – ranging from defence infrastructure to museum and gallery collections
• what happens to the existing UK nuclear bases on the Clyde
• if rUK is to continue to administer welfare and pensions payments in Scotland for some transitional period, the basis on which it will do so
• the means by which outstanding issues are resolved, and what happens if the parties cannot reach agreement by negotiation.

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.

 

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.

 

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

Nicola Sturgeon at UCL: the positive, England-friendly case for independence, and laying down a challenge on Devo More

Nicola Sturgeon’s lecture for the Constitution Unit on Thursday evening, 13 February, was a rare opportunity for her to speak to a London audience, and for a London audience to see her.  What they heard was a very slick presentation of the SNP’s case for ‘soft independence’, carefully tailored for the audience, and predicated on advancing Scottish self-government rather than breaking up the UK.  Her key arguments were that Scotland could be independent, and was well-prepared for that because of the development of devolution; that Scotland could and should become independent, because Westminster’s politics and policies were at odds with those of Scotland; and that independence would be a firm basis for good relations with all the nations of the British isles.  She emphasised that Scottish independence was ‘emphatically not separatist or insular … [n]or … driven by antipathy towards or resentment of our neighbours in the rest of the UK.’  Indeed, she said she was sure independence could be achieved without any lingering sense of resentment in the rest of the UK. She added that the debate was not about ‘identity’ and that the SNP were not asking people to choose their identity as part of the process which may come as a surprise to some observers).  Rather, it was about the best form of self-government for Scotland.

Much of this was familiar to those who have heard the SNP in recent years, and much could be strongly contested.  The line that Scotland’s politics were different to those of England was undermined by arguing that Scottish independence would not doom the rest of the UK to unending Conservative governments, for example.  Sturgeon made a good deal of how important it was for Scotland to have control of such issues as economic management, defence and foreign affairs from Westminster – even though an independent Scotland’s room for manoeuvre under its white paper blueprint would be limited, and even though there is little sign from polling that these issues are key in voters’ minds.

Scottish independence: does taking a sterling currency union off the table change the game?

The heavy trailing of an announcement by the Chancellor of the Exchequer (and Danny Alexander and Ed Balls) that the UK Government is not prepared to establish a currency union with Scotland for use of the pound in the event of Scottish independence (see also BBC News coverage here) is a serious blow to aspirations of the SNP for a form of ‘independence lite’.  The logic of this was that it would avoid disrupting many key symbolic and economic ties between an independent Scotland (iScotland) and the remainder of the UK (rUK), so comforting swing voters about the limited scale of the risks of independence.  Those risks are real; think of how attractive Scottish investment trusts and insurance companies look if the complexities and exchange-rate risks of using a different currency are introduced into the equation, for example.  But this shift in the ground also emphasises a number of key issues about the implications of a Yes vote, and what would happen after it.

The first problem – which is particularly the case with the idea of a currency union, but applies to many other important issues – is the asymmetry of interest.  A currency union is central to the way the SNP has formulated its model for independence.  (That view can be contested, of course – whether by the likes of Jim Sillars on, essentially, autonomy grounds, or by Angus Armstrong and Monique Ebell on economic ones, relating to the flexibility of economic policy instruments and the implications of a debt burden.)  But it is of marginal interest or benefit to rUK at best, poses a serious risk at worst, and concluding that the risks of it from an rUK point of view exceed the benefits is a reasonable judgement to come to.  This isn’t the only issue where iScotland has a strong interest in something of limited concern to rUK, either.  In bargaining situations, iScotland has got to have something convincing to offer to rUK – and other than staying in the UK, or the Clyde nuclear bases, it’s hard to see what that might be.

‘The Staggers’ post on income tax devolution and Scottish Labour

Guy Lodge and I had a post in the New Statesman’s politics blog, The Staggers, on Friday about income tax devolution in Scotland. 

Since this went up, there has been further coverage of the story.  John McTernan came up with a rather doubtful proposal in Friday’s Scotsman – calling for substantial welfare devolution (including key UK-wide redistributive benefits like Job Seeker’s Allowance), but no fiscal devolution.  Saturday’s Guardian leader highlighted the importance of a ‘proposition that goes beyond the status quo’ from the unionist parties as part of their campaign in the Scottish independence referendum.   Scotland on Sunday’s coverage includes the front-page lead, a detailed analysis piece, and a leader.  Unsurprisingly, Alex Salmond is making the most of Labour’s disarray. 

The Staggers post can be found here, and the text is also below. 

Labour must not retreat from further devolution to Scotland

Those concerned about the survival of the Union would do well to turn their attention away from David Cameron’s “seven months to save the UK” speech and look instead at developments taking place in the Scottish Labour Party. Worryingly, just at the moment when the Yes camp appear to be gaining some momentum in the polls, Scottish Labour appears to be retreating from providing Scottish voters with a clear alternative to independence in the form of additional powers for the Scottish Parliament.