Why won’t the Cabinet Office release the 1997 devolution minutes?

On 14 January 2013, I wrote to the Freedom of Information Team at the Cabinet Office to request the release of the 1997 Cabinet meetings on devolution.

On 6 March 2013, I received a reply in the following terms:

I refer to your request where you asked:

“Under the provisions of the Freedom of Information Act, I am requesting a copy of the minutes of the 1997 Cabinet meetings on devolution. I am also requesting a copy of the Terms of Reference for the cabinet committee headed by Lord Irvine that the minutes relate to, and any legal or departmental advice provided to the cabinet in relation to these meetings. ”

I am writing to advise you that following a search of our paper and electronic records, I have established that the information you requested is held by the Cabinet Office.

Some of the information you have requested is exempt under section 21(1) of the Freedom of Information Act. Section 21 exempts information if this information is reasonably accessible to the applicant by other means. Section 21 is an absolute exemption and the Cabinet Office is not required to consider whether the public interest favours disclosure of this information.

The terms of reference for the Ministerial Committee on Devolution to Scotland and Wales and the English Regions (DSWR) were published in Hansard on 9 June 1997.

I attach a link:

http://www.publications.parliament.uk/pa/cm199798/cmhansrd/vo970609/text/70609w03.htm

The remainder of the information you seek is exempt under section 35(1)(a) and (b) of the Freedom of Information Act. This is a qualified exemption and therefore subject to the public interest test.

The information is exempt under section 35(1)(a) and (b), which relates to the formulation or development of government policy, and Ministerial communications. We accept that there is public interest in improving public understanding of the development of Government policy on devolution and the way Cabinet Government operates more generally. We recognise that the decisions Ministers make have a significant impact on the lives of citizens and there is a public interest in this process being transparent. We also recognise that greater transparency makes government more accountable to the electorate and increases trust.

However, there is a countervailing public interest in protecting the constitutional convention of Cabinet collective decision-making. Ministers will reach collective decisions more effectively if they are able to debate questions of policy freely and in confidence. The maintenance of this convention is fundamental to the continued effectiveness of Cabinet government, and its continued existence is therefore manifestly in the public interest.

In relation to the specific documents you have requested, the policy discussions in this area are ongoing and the adverse effect of disclosing these documents now would not be diminished by the fact that the documents date from 1997. The matters discussed at  Cabinet are not matters of purely historic interest, but are important matters of current discussion and debate.

We therefore conclude that the public interest in withholding the information outweighs the public interest in disclosure.

I have now requested a review of this decision, in the following terms:

I appreciate your explanation about the public interest in maintaining the confidentiality of Cabinet discussions, particularly given the fact that the policy discussions in the area of devolution are ongoing. Equally, however, I would suggest that the very currency of those discussions increases the public interest in disclosing the 1997 minutes of the Ministerial Committee on Devolution.

I would contend that there are at least two, possibly three, current policy discussions that critically need to be informed by an awareness of government thinking and planning at the time:

  1. The debate on Scottish independence leading up to the referendum in September 2014. This is a decision that will be made by the people of Scotland, not Parliament or central government. Therefore, this discussion is no longer the exclusive preserve of government, and the Scottish public is entitled to understand how the Labour government envisaged the devolution settlement at the time it was being developed. Otherwise, how can their decision whether to effectively endorse devolution a second time (by rejecting independence) be adequately informed? Similarly, it would surely not be in the public interest for suspicions to be aroused that the Westminster government is seeking to hide something embarrassing or detrimental to the pro-Union cause. Isn’t it better to have transparency in this matter and not run the risk that the Scottish people vote ‘yes’ to independence based on a false prospectus?
  2. Discussions around UK-wide devolution and constitutional reform. As you are aware, a debate is getting underway regarding options for a new UK-wide constitutional settlement in the wake of a possible ‘no’ vote in the Scottish independence referendum. Only last week, the Select Committee for Political and Constitutional Reform issued a report urging the establishment of a constitutional convention to bring forward these discussions. Such a convention would again not be the exclusive preserve of Parliament or Government but would – following the Select Committee’s recommendations – be drawn from a broad selection of civil society representatives. The convention would discuss an extension of devolution in Scotland, along with devolution of considerable powers to local and regional government in England. Is it not therefore utterly essential that the minutes of the Cabinet Committee discussing devolution to Scotland, Wales and the English regions should be released into the public domain? How could a constitutional convention function adequately without this knowledge? Indeed, it is arguably not possible to reach a reliable decision about whether to have a constitutional convention to deal with these matters in the first place unless we have an understanding how the decisions were reached by Cabinet Government in 1997.
  3. West Lothian Question. Last week, too, the report of the McKay Commission on the so-called West Lothian Question was published. Unlike the debate around Scottish independence and the possibility of a constitutional convention, this matter is one for Parliament to reach a decision about. However, do Parliament’s deliberations not also need to be informed by an awareness of how the West Lothian Question was treated in the Cabinet’s discussions in 1997? For instance, if it was said in the 1997 Ministerial Committee that the way to resolve the West Lothian Question was to offer a limited form of regional devolution to England – and if proposals are now coming back on to the table to introduce local/regional devolution in England – do these matters not need to be treated as an integrated whole, so that proper joined-up debate and policy formation can be arrived at?

I trust that you will consider the merits of the above argument, and that you will reconsider the decision not to release the minutes of the Ministerial Committee on devolution from 1997.

Yours faithfully,

Etc.

Let’s see if the Cabinet Office re-evaluates its decision. But what is the real reason why it is so wary about releasing this information? This request has been made several times now, by me and others, and it has been refused every time. What are they hiding?

Reply from the West Lothian Commission, and follow-up on the vote on same-sex marriage

On Tuesday 5 February, at around 4.20 pm (two and a half hours before MPs were actually due to vote on the Marriage (Same-Sex Couples) Bill), I received a reply to my email to the McKay Commission (aka the West Lothian Commission) asking them to make a recommendation that MPs from Scottish and Northern Irish seats should not vote on the Bill, which relates to England and Wales only (see previous post).

The reply read as follows:

“Thank you for your interest in the work of The McKay Commission and your email, the contents of which we have noted. The Commission will take into account whatever matters are relevant to inform their considerations and eventual recommendation.”

That’ll be a no, then. Too little too late.

The Bill of course passed its second reading in the Commons by a majority of 400 in favour to 175 against. For the record, 44 Scottish and Northern Irish MPs voted in favour of the Bill, and 15 voted against; five abstained, including – interestingly – Gordon Brown and Charles Kennedy. So, counting only the votes of English and Welsh MPs, the Bill elicited 356 votes in favour and 160 against. The complete list is here.

Adding his name to the roll call of shame of Scottish MPs butting into affairs not concerning their constituents was the sole Conservative MP from north of the border, David Mundell, who supported the Bill. A total of 31 out of Labour’s 40 Scottish MPs also voted in favour, while six opposed the Bill. Nine out of the Liberal Democrats’ 11 Scottish MPs somehow thought it appropriate to support same-sex marriage for England and Wales but not their own voters. The other two abstained. The remaining supporters of the Bill from outside England and Wales included the one SDLP MP and one Alliance MP (from Ulster), and the independent (ex-Labour) MP for Falkirk, Eric Joyce. All of the DUP MPs (Northern Ireland) opposed the measure.

So the Bill would have passed easily had voting been limited to English and Welsh MPs, as it ought to have been in all fairness. Be that as it may, it’s still outrageous that so many Scottish and Northern Irish MPs feel entitled to vote on such a significant matter that doesn’t apply to their constituents. But, as usual, there was utter indifference to this basic democratic injustice on the part of British-national media, which, while they made a better-than-average pass at referring to the Bill as applying to England and Wales only, still did not think fit to point out that, nevertheless, Scottish and Northern Irish MPs were also having a say in the matter.

I have to say that I was, but perhaps should not have been, rather disappointed at the almost total lack of response my various communications on the subject, mostly on Twitter, were met with. For instance, none of the 60 or 70 Conservative MPs on record as opposing the Bill who I contacted to suggest they could object to Scottish and Northern Irish MPs voting on it even bothered to reply. In fact, apart from the belated McKay Commission response (above), I received only two other replies from organisations or individuals involved in campaigning or voting on the Bill.

The first of these responses was from the online campaigning and petitioning website Avaaz. A couple of days before the vote, they started a campaign to urge ‘Britons’ to contact their MPs to vote in favour of the Bill, although the body of their article did make it clear the Bill related to England and Wales only. I objected in the following terms:

“You should not be canvassing the support of all ‘Britons’ on this, as the measure relates only to England and Wales. Indeed, only MPs representing English and Welsh constituencies should really vote, especially as a separate Bill to legalise gay marriage has been introduced to the Scottish Parliament.

“Get it right, Avaaz!”

I received the following somewhat arrogant reply:

“Thanks EnglandUncut. We are aware this measure only affects England and Wales, which is why we have specified “England and Wales” in the article and the petition – and have noted the separate bill for Scotland here: http://en.avaaz.org/1233/uk-ga…. But the reality on Tuesday is that all British MPs will get to vote on this, therefore all Britons do, currently, have a say on this matter. So we are reflecting the reality of how the law works now, not how it might or should work in the future.”

In other words, Avaaz couldn’t give a monkeys about democratic fairness to English and Welsh residents. For them, it was the issue that mattered, and they were willing to exploit an unfair system to get the desired result. Or, as I put it in my reply:

“Yes, but you shouldn’t be encouraging the UK parliament’s infringement of the English and Welsh people’s democratic rights by indirectly encouraging MPs whose constituents will not be affected to influence the result – either way, simply by voting.”

To which I received no further reply. You can read the exchange here.

The second come-back was from the Twitter feed of the pro-same-sex-marriage group of Conservative MPs ‘Freedom To Marry’, who responded to a tweet of mine that was also in response to a tweet from Stephen Fry urging people to ask their MPs to support the Bill – including, you guess it, Scottish and Northern Irish MPs. You can read the exchange here. It is indeed the case, as I put it to Freedom To Marry, that only very minor aspects of the Marriage (Same-Sex Couples) Bill affect the whole UK; whereas the core of the Bill – the actual same-sex marriage bit – is limited to England and Wales.

But from everybody else, nothing. But nothing.

It seems to me that the attitude of mainstream media, Westminster politicians of whatever hue or from whichever country, and liberal campaigners alike towards England is like that of a child to whom one is trying to convey an inconvenient truth: they stick their fingers in their ears and cry ‘La la la, not listening!’

Letter to the West Lothian Commission on Same-Sex Marriage

I have today emailed the following letter to the McKay Commission, known ‘popularly’ as the ‘West Lothian Commission':

Dear Sirs,

Would the Commission consider examining the Marriage Same-Sex Couples Bill, published today, as a transparent example of how it can be inappropriate for Scottish and Northern Irish MPs to vote on legislation affecting only England and Wales?

In this instance, there is no ambiguity about the fact that the whole Bill relates only to England and Wales. In addition, the Scottish Parliament has produced its own draft bill on this subject, and the government there intends to pass it into law. It would therefore be wholly illegitimate for Scottish and Northern Irish MPs to vote on this matter when English, Welsh and Northern Irish MPs are denied a say on same-sex marriage in Scotland.

Would the Commission be prepared to issue a strongly-worded recommendation that the House of Commons Business Committee or the Speaker make a recommendation on this matter? If not, why not?

Yours faithfully,

Let’s see what response we get!

A triple-option EU referendum is the most logical, though unlikely, solution

David Cameron is due to make his long-awaited speech on the future of the UK’s relationship with the EU later today. This was of course expected to be given last Friday but was cancelled owing to the hostage crisis in Algeria.

There are four main approaches the prime minister could in theory adopt, whose respective advantages and disadvantages I discuss below:

  1. Judging from the numerous pre-speech hints and briefings both last week and this, the option Cameron appears to be going for is to use the fiscal union of the eurozone countries, which will possibly require amendments to the Lisbon Treaty, as an opportunity to renegotiate Britain’s relationship with the EU following a Conservative victory in the 2015 general election. The negotiation will aim to achieve the repatriation of certain powers, and the deal will be put to the electorate in what is being billed as an in / out referendum some time around, say, 2018. In other words, if the new relationship with the EU is rejected by voters, the UK will leave the EU.

Cameron’s intention here is clearly to transform the EU from an issue that could damage him and the Conservatives in the 2015 general election to one that could help him: ‘vote Conservative and you’ll get an in / out referendum’. In particular, he will argue there is no need for disaffected Tories to vote UKIP, as he has responded to their concerns by agreeing to renegotiate some of the key terms of the UK’s EU membership; and if they don’t like what’s on offer after the negotiations, they can vote to leave the EU in the referendum. Equally, Cameron hopes this will put an end to the squabbling in his own party on the issue so that it does not harm the party in 2015.

If, however, it is Labour that forms the next government – whether on its own or in coalition with the Lib Dems – they will almost certainly offer neither negotiations on a new deal nor an in / out referendum. This would let Mr Cameron off the hook, in fact, as he may in reality not be too keen on making significant changes to the UK’s relationship with the EU. If, on the other hand, Cameron does win a majority in 2015, he will then be in position to come up with only a relatively minor readjustment of the UK’s terms of EU membership and would probably succeed in obtaining the electorate’s consent for it in a referendum.

The problem with this strategy, if I’ve read it right, is that it makes Mr Cameron a hostage to fortune while also running the risk that the Europe issue will rumble on unresolved for years to come. For a start, it’s far from obvious that a commitment to renegotiate if the Conservatives are voted in to power in 2015 would neutralise the UKIP threat or satisfy the Tory eurosceptics. Recent polling, for example, suggests that the EU is only the fifth-most important issue for potential UKIP voters, behind the economy, immigration, unemployment and crime. Many Tory backbenchers and activists are also likely to be unhappy with what they would see as merely a vague promise to renegotiate the UK’s position.

And that is always supposing that the EU and its member states would be willing to enter negotiations on a looser relationship with the UK in the first place. This is far from clear. After all, they’ve got a eurozone crisis and fiscal union to be getting on with; and just because the UK doesn’t want to press ahead with ever closer union, that doesn’t mean the rest of Europe should entertain the UK’s demands to re-write Lisbon and loosen its ties with the EU. On top of which, there is in fact no provision within the Treaty of European Union for renegotiating a state’s membership of it. On the contrary, a state has to declare an intention to leave the EU altogether before negotiations can begin on what the new relationship between that state and the EU might be. As Article 50 of the Treaty – as consolidated within the Lisbon Treaty – states:

“A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.”

Indeed, at the time that the Lisbon Treaty was signed by the UK, in 2010, the fact that there is no agreed mechanism for an individual country to renegotiate its terms was given by the Conservative and Liberal Democratic Parties as a reason why they would not be offering a referendum on it at the 2010 election. And this is also why both parties said they would offer a referendum on the EU only when further powers were transferred from the UK to the EU (i.e. not the case with the fiscal union), and duly passed such a provision into UK law. So to argue now that a renegotiation is possible without a prior intention to leave the EU having been expressed by the UK government is at best inconsistent, at worst disingenuous.

In other words, this option is all about politics: Cameron aims to paint himself as the champion of renegotiation, and if the other EU member states are unwilling to enter into negotiations, he can make out that the lack of progress is down to their intransigeance rather than his own unreasonableness. Cameron can always threaten the UK’s EU partners that snubbing the UK on renegotiation will only intensify demands for the UK to quit the EU altogether. But to be honest, our EU partners are more likely to call Cameron’s bluff – supposing he’s still in power at that point, that is. With Prime Minister Miliband in No. 10, there’ll be no bluff to call.

So this whole scenario has huge potential to unravel horribly: if it doesn’t satisfy potential UKIP voters or Tory eurosceptics; if the Tories lose the next election; and if the EU is unwilling to play ball.

2.    So what if, as some have suggested, the UK holds a referendum to obtain a mandate for renegotiation before kicking off the negotiations? This option involves two referendums: one at the beginning of the process and one at the end to ratify the deal.

The most obvious problem with this suggestion is that you might not actually get a mandate via the initial referendum, i.e. the renegotiation option would be rejected by the electorate. In addition, the ‘no’ verdict would be ambiguous, in that ‘no’ voters would be made up of both supporters of the status quo and supporters of the UK’s exit from the EU. In addition, even if the ‘yes’ side did win the mandate referendum, this solution would be subject to the same uncertainties and ambiguities of option 1 discussed above: would it satisfy potential UKIP voters and Tory eurosceptics? Would the EU play along and agree to negotiate? Would an incoming Labour government reduce the scope of any renegotiation? And would the British people endorse any agreement that was reached in a second referendum?

There are too many uncertainties with this option; and whether renegotiation was approved or rejected in a mandate referendum, nothing would be settled for several years to come on the big question of whether the UK should remain a member of the EU or not.

3.    So why not just get this question settled once and for all via an in / out referendum held as soon as possible, preferably ahead of the next general election? This might at least provide the UK government with the real mandate it requires to go to the EU and begin negotiations, as set out in the Treaty of European Union, discussed above.

A straightforward in / out referendum is the preferred option of those opposed to the UK’s EU membership, including UKIP. Many of them are clearly confident the ‘No2EU’ cause would win out in such a referendum, but I’m not so sure. As YouGov’s Peter Kellner pointed out last week, precedent would tend to suggest that the status quo would in fact win, even if the ‘no’ camp were ahead in the polls at the start of the campaign. And if a majority did vote for the UK to remain in the EU, that wouldn’t really settle the matter either, because there would be a sizeable section of the population that still wanted the UK to negotiate a looser relationship with the EU while remaining a member state.

If, on the other hand, the ‘out’ camp did win an in / out referendum, then negotiations for the ‘Brexit’ (British exit) could begin. What would probably happen then, in my view, is that the European Commission and our fellow-EU member states would scurry around in a state of panic, and would offer a series of substantive concessions allowing the UK government to achieve most of its policy objectives while remaining within the EU. This could include withdrawal from the Social Chapter and the repatriation of powers relating to freedom of movement (i.e. the ability to restrict immigration from EU countries), justice and policing, employment law, welfare benefits, and a host of economic, regulatory and environmental legislation.

Even if the eventual deal did involve a Brexit, the form this would take would probably not be very different from a package allowing the UK to remain in the EU but with more independence in the areas I have just referred to. In essence, both would be a form of associate membership or affiliation, allowing the UK to access the Single Market but without entering into the full political project of the EU, which is viewed by many as tending towards establishing a federal European super-state. Whatever deal was reached through negotiation, this would be put to the British people in a referendum.

This is not a bad outcome; but, as I say, it is dependent on the anti-EU side of the argument winning an in / out referendum, which is far from certain. In addition, if Labour did win the 2015 election, an incoming Labour government would almost certainly wish to negotiate a less radical separation from the EU, which would probably involve remaining in the EU and retaining the Social Chapter along with many other elements of the status quo. A Labour government would be honour-bound to offer a second referendum on whatever deal emerged, and it would probably win such a referendum, for the reasons discussed above: when push comes to shove, the British people are more likely to back the status quo, especially if some concessions have been made and a limited number of powers have been repatriated.

So even an in / out referendum now probably wouldn’t settle matters. And there’s another, unspoken, reason why the British government is reluctant to offer the public an in / out referendum now: its possible impact on the Scottish-independence referendum in 2014. First, there’s the obvious point that if the Scottish people were to vote for independence, it would no longer be the UK government that would be negotiating on its terms of EU membership but the governments of two ‘new’ states. The rump-UK state (rUK) would doubtless lay claim to being the continuity-UK and the inheritor of the present UK’s legal personality and international agreements, including membership of the EU. But regardless whether this blithe assumption is founded or not, an impending break-up of the UK would make the need for negotiations on rUK’s and Scotland’s EU status unavoidable, especially as it is generally accepted that the English are more inclined towards looser ties with the continent than the Scots.

This variation in attitudes towards the EU north and south of the Anglo-Scottish border is another reason why an in / out referendum now would be potential dynamite. Imagine a situation in which the Scots – and maybe the Welsh and Northern Irish, too – voted to remain in the EU but the English voted to leave, swinging the overall vote in favour of the Brexit! That would really add fuel to the fire of the Scottish-independence cause, just ahead of the crucial independence referendum. The SNP would be able to tell Scottish voters that if Scotland remained part of the UK, the English would take the UK out of the EU, notwithstanding Scottish opinion in the matter.

By contrast, imagine if the margin of victory for the pro-EU cause in Scotland, Wales and Northern Ireland were large enough to tip the balance in favour of the UK remaining in the EU, against the will of the majority of English-resident voters! That would be a ‘West Lothian referendum’, in which the UK voted to remain an EU member while England voted to quit! Now wouldn’t that wake up the sleeping lion of English nationalism! Clearly, the UK government is just not going to go there, and so an in / out referendum before the Scottish referendum is a non-starter; and there is too little time between the Scottish vote (probably in November 2014) and the next UK general election, in May 2015, to hold an in / out EU referendum.

Of course, another reason why Cameron is unwilling to stick his neck out and offer an in / out referendum now is that he probably wouldn’t win support for it in Parliament. This is because neither Labour nor Cameron’s Lib Dem coalition partners would vote for it. Indeed, sizeable numbers of europhile Tory MPs would also reject the idea. In other words, this could easily lead to the break-up of the coalition and even the end of the present government if Cameron chose to make it an issue of confidence and was still outvoted. So if Cameron offered to hold an in / out referendum now, he could find himself having to go to the country in a general election in 2013 and asking the public to approve an in / out referendum that had been rejected by Parliament. So, rather than jeopardise his premiership now, he will instead offer the same choice at the scheduled election time instead. This means, of course, that the issue will not go away, at least until 2015. But it will probably rumble on for some time afterwards, given how un-straightforward the renegotiation in fact is, as discussed in relation to options 1 and 2 above.

4.    This leaves alternative No. 4: a three-option referendum, to be held as soon as possible. As the name suggests, this would canvass the public’s opinion on all three options: the status quo, renegotiation / looser relationship, or quitting. On the ballot paper, the question could be posed as follows:

With which of these statements do you agree the most:

a)        The United Kingdom should remain a member of the European Union, with the same balance of powers between the United Kingdom and the European Union as exists at present ;

b)        The United Kingdom should remain a member of the European Union, but should negotiate with the European Union to repatriate certain powers that have previously been passed from the United Kingdom to the European Union;

c)        The United Kingdom should leave the European Union altogether.

Clearly, one problem with a multi-option referendum is that you can fail to obtain a majority mandate for any of the options. However, in this instance, this can be overcome very simply by requiring voters to indicate a second preference. In the event that none of the options on the ballot paper wins a majority of first-preference votes, the second-preference totals for all of the options are added to the first preferences. This is different from the Supplementary Vote (SV) system, which is presently used for London mayor elections, and where only the top-two candidates go into the second round of voting, and only second-preference votes for either of these two remaining candidates are added to their first-preference totals.

The pitfall with using SV for the multi-option referendum is that it’s quite possible that option b above (renegotiation) would gain the lowest total of first preferences but the highest total of first and second preferences combined, as supporters of the status quo and the UK’s exit from the EU would mostly pick renegotiation as their second choice. For this reason, using this system, it’s almost inevitable that the consensus choice – renegotiation – would win comfortably in the second round.

It is of course an outside possibility that the status quo or the Brexit would win an outright majority in the first round of voting, in which case the mandate is clear: winning an overall majority when there are three options on the table is a far more convincing victory than when there are only two choices. On the other hand, it is distinctly possible that the option of quitting the EU would win the plurality - the largest number of votes but not a majority – in the first round. This, too, would send a very clear message to the EU and would put the UK in a strong position to negotiate a favourable deal: it would demonstrate that more people favoured leaving the EU altogether than any other course of action. Similarly, as the totals for all three options would add up to effectively 200% if the referendum went into a second round, it is quite likely that, even if it did not win, the Brexit would be supported to some degree – either as their first or second choice – by a majority of voters. This would orchestrate the UK’s clear message to the EU even further.

Of course, if the voting system I propose is used, it’s entirely possible that all three options would obtain the support of a majority of voters on first- and second-preference votes combined. However, for the reasons given above, it is likely that renegotiation would get near to 100%, so long as it is mandatory to indicate a second preference on the ballot paper (which is the only way to ensure that at least one option does win a majority). Another way of putting this is that renegotiation would be unacceptable to only a very small percentage of voters (100% minus the share of first and second preferences won by the renegotiation option); whereas the status quo or the Brexit would be unacceptable to considerably more people. And as a very high percentage of voters would have supported renegotiation to some degree, this is something the country could unite around.

Incidentally, this way of conducting a three-option referendum makes it very unlikely that England would vote differently from the UK’s other nations: the consensus option would almost certainly win through consistently across the whole UK. It’s possible that leaving the EU would gain the plurality in the first round in England but not in the UK’s other nations; but then renegotiation would win comfortably in England, too, in the second round. This makes a three-option referendum viable ahead of the Scottish-independence referendum.

When it came to ratifying the eventual deal reached in any negotiations, there would be a need only for a two-option question: ‘do you agree to the new terms of the United Kingdom’s membership of the European Union that have been negotiated by the United Kingdom government?’. Answer: yes or no. If the country has indeed got behind the negotiations, thanks in part to the three-option referendum showing this course of action commands the strongest support of any of the alternatives available, then it is unlikely the deal reached would be rejected in the second referendum.

The three-option referendum would, then, be the most logical and the least divisive course of action. However, it would also rely on Mr Cameron being able to pass the measure in Parliament. The saying ‘where there’s a will there’s a way’ could perhaps apply here: this much more reasonable, balanced approach could obtain the support of the Lib Dems, so long as Cameron was prepared to make concessions to the Lib Dems in other areas, e.g. resurrecting Lords reform.

But probably Cameron is ultimately not really interested in bringing about any radical changes to the UK’s relationship with the EU, still less in risking the UK’s departure from the EU. So he will undoubtedly go down the ‘political’ road of option 1, if the pre-speech briefings are to be believed. In other words: ‘vote Conservative if you want the chance to moderate or terminate the UK’s membership of the EU’. But if the Tories do win an outright majority in 2015, don’t expect or fear anything too radical.

Plus ça change, as they might say in certain parts of the continent!

PS. Cameron duly gave his EU speech, starting just after 8 am this morning (Wednesday 23 January 2013): a lot earlier than I expected.

He did indeed set out the much-briefed option 1: taking victory in the 2015 general election as conferring a mandate to re-negotiate the UK’s position in the EU, including possibly via a new treaty relating to all 28 members (including Croatia, who will have joined by then); and then offering a straight in / out choice between accepting the new deal or exiting the EU.

My first reaction is that using the general election as a mandate referendum is entirely illegitimate. For a start, even if the Conservatives do succeed in winning an overall parliamentary majority, this will be on no more than around 40% of the popular vote. By contrast, Labour and the Lib Dems – neither of which are likely to include a referendum in their manifestos – will almost certainly win a larger combined share of the popular vote than the Conservatives, as they have done in every election since the Lib Dems’ formation and even earlier, in the days of the Lib-SDP Alliance. Therefore, using the election as a mandate referendum is a way to circumvent the requirement to gain the support of a majority of voters for re-negotiation, and robs the process of the democratic legitimacy that the contrary process – greater EU integration – has suffered from over so many decades.

In addition, presenting the public with only two choices after the negotiations have been completed – assuming negotiations will even take place – is also unfair. The British people will be forced to choose between staying in the EU on the terms that a Conservative government has negotiated or leaving altogether; but we won’t be offered the choice of remaining in the EU on the existing terms. Therefore, pro-EU voters will be forced to accept the new parameters of Britain’s relationship with the EU, based largely on neo-liberal economic principles: the Single Market at the centre of the whole EU exercise, but with the UK free to determine its own industrial, labour and welfare regulations, with fewer protections for British workers than are enjoyed by workers throughout the rest of the EU. (Never mind the paradox that this freedom of British industry to be more ‘competitive’, as Cameron would say, actually undermines the Single Market, because the Single Market is based on everyone playing by the same rules.)

In other words, the whole process would be skewed in favour of a Conservative ideological agenda, and the British people will not in fact have the choice they deserve, which is between three options: the status quo, and potentially the UK participating in even greater EU integration at some future point; a looser relationship, based mainly on economic competitiveness and free trade, as set out by David Cameron this morning; or a UK exit. Only a triple-option referendum, such as I set out above, can deliver that full choice.

Different and better, or same old New Labour

The Labour List blog is currently running a series of articles, produced by party worthies, on the ‘One Nation Labour’ theme recently introduced by Ed Miliband. I submitted a comment on one of the articles yesterday, but it was not published, probably because it rubbished the whole One Nation concept, albeit in – for me – relatively moderate terms, I thought.

The article, by Labour ideologue Lord Glasman, was entitled, ‘Different and Better: How One Nation can work for Labour‘. I reproduce it in full below for convenience, along with my moderate and moderated-out comment:

In order to generate energy and to succeed in opposition it is necessary to have a narrative, a strategy and an organising concept that can give plausibility and coherence to the swelter of initiatives, policies and programmes that swirl around the Westminster Village.

The narrative must tell a story of how we, as a nation got into this mess and how we as a party are an important part of how we will get out of it.

The strategy, both electoral and governmental, concerns the coalition of interests that can champion the change that is required and generate value, the people and the things that will make things different and better.  A plan of action that can grow in time to deliver electoral success and a compelling programme of government.

The organising concept is the idea that selects and shapes the policy and turns it into politics.  An idea that applies to all areas of policy and defines the identity of the party and of the offer they make to the electorate.  This is what Ed Miliband achieved at the last Party Conference with One Nation Labour.

In comparison, the idea of productive and predatory capital is an excellent and a true analytical distinction but it could not organise policy across the range, it gave no guidance concerning welfare reform, or education, constitutional reform or defence policy.  There was a real danger that we would get trapped in the dominant framework inherited from New Labour and intensified by the Coalition Government and engage in an endless and antagonistic exchange concerning faster or slower, higher or lower, more or less, without disputing the direction of travel.

With the emergence of One Nation however, the organising concept has been established.  It commits Labour to a politics of the Common Good.  In all areas of policy, estranged and divided part of our Nation: capital and labour, north and south, immigrants and locals, men and women, secular and religious need to be brought together in order to generate greater value.  It is different from what went before because no one interest dominates civic, political or economic life but all of these require people to come together and make things better.

Labour was founded in order to demand recognition by those who worked, as part of one nation.  There was no wish to dominate but to remind the rich and the powerful that workers were part of the nation, that they had interests and considered themselves a necessary part of the common good.  That argument needs to be made again for one of the things that is different about the One Nation position is its recognition of labour as a source of value, the Labour theory of value.  Innovation is generated by people with experience and expertise who understand the new technology and can work within it.

This in itself is a radical breakthrough because now we need to have a real conversation with the Unions not about what the Party can do for them, or even what they can do for the party, but what they can do to make things better.  How are Unions to be partners in generating value, honouring good work, defending labour as a necessary partner to capital and technology in the production process?  Do they champion changes in corporate governance so that the workforce is represented on boards?  That should be an important part of One Nation agenda, and one that Disraeli and Burke could not ever accept.  Anyone and anything other than Labour constituted the diverse ecology of the Nation.  We are here to correct that mistake and One Nation Labour does that.

But it is not limited to corporate governance reform on the private sector.  The same applies to the public sector.  How is the workforce, along with funders and users going to make the way we care and look after each other better.  It suggests a move from the contractual to the Covenantal.  We trust each other with the care of our children and our parents and we need to honour those who do that well, but we also need a way of dealing with those that don’t.  One Nation is a demanding category.  Vocational renewal is a double edged sword, it requires quality and equality and we need to be resolute in the pursuit of both.

It goes into making capital available to regions and to break the grip on internal investment by the same failed banking institutions.  Regional banks which serve local markets and businesses draw attention to our reliance on the financial sector and the need for an economy that works on dry land.  The lack of private sector growth in the regional economies outside finance and property is a great concern and One Nation makes the people of those regions part of the nation once more.

It enables us to talk about Land Reform and Community Land Trusts as a way of including people in the property owning democracy by transferring the freehold asset to communities.  In housing that means that the price is halved and there can be a genuine and affordable house building programme.  It is also applicable to Dover Port for example and offers an alternative to privatisation and nationalisation that works in the interests of all the people of Dover and brings capital, labour and the town together in a common concern for its flourishing.

One Nation is both a radical and a conservative idea and that is why it works.  It retrieves a tradition from within our nation history and through it generate greater solidarity and inclusion. Labour, in recent years, has shown a tremendous respect for diversity and pluralism.  This is greatly to our benefit and it was right to do so.  What was missing was a balance, an account of how that diversity can generate better forms of the common life, of how it could nourish and sustain the common good.  One Nation Labour corrects that imbalance.

Ed Miliband has retrieved, from what his Dad might have called the ‘dustbin of history’ a great gift to his party.  In order to live and grow it must be supported and cared for by many hands.  It offers the possibility of great years ahead.

And my comment:

‘One Nation’ will be an incoherent and useless slogan for Labour so long as the party fails to develop a narrative of that nation’s identity. Britain is increasingly not one nation, but three nations (Scotland, Wales and Northern Ireland) plus another nation (England) that the party and the political establishment in general refuse to acknowledge: England.

‘One Nation’ Labour, and indeed Britain, will be deliverable and feasible only if Labour does articulate a narrative for the whole of the UK: what is the relationship between the devolved nations and England; what can Labour do for and in each; what is the relationship between reserved and devolved – and hence English – policy areas? Can Labour bring itself to articulate a vision for England? If not, what will reform of health, education, housing and social-care policy actually mean, as a Labour UK government’s powers in these areas will in fact be restricted to England, even if Labour refuses to acknowledge and articulate that fact.

One Nation is meaningless so long as the one nation to which it applies in full – England – is the one nation Labour cannot bring itself to value and envision. Simply balkanising England into a series of economic-development regions, as Lord Glasman is proposing here, will not do it.

Fair comment, I thought. The One Nation concept is completely bonkers as applied to the UK as a whole, because no UK government of any hue can any longer develop a fully joined-up agenda for the whole UK that unites social and economic policy, as social policy has been devolved whereas economic and fiscal policy, in the main, remains reserved. In fact, the only nation for which Labour or any party could develop an all-embracing policy vision is England, because it’s only for England that the UK government has maintained control over all of the policy levers.

In essence, the One Nation concept involves an outmoded idea of Britain as a unified nation and polity that Labour itself gave away via the Scottish and Welsh devolution settlements in 1998. But Labour won’t acknowledge that reality, and they steadfastly refuse to acknowledge England as the only nation they could now fully mould in Labour’s image if they were minded to do so. There are many reasons for this, such as political expediency and left-wing anglophobia. But the consequence of this wilful blindness on Labour’s part is that their concept of One Nation is ultimately a sheer fantasy Britain that has absolutely no credibility whatsoever as a vision for the ‘nation’ because it doesn’t even correctly articulate and take account of the actual identity of the nation – England – for which it could be implemented.

Ultimately, One Nation Labour, just like New Labour before it, washes its hands of the social realities of the only nation, England, to which the One Nation vision could ever apply. It’s a mere blueprint for a more economically vibrant and prosperous ‘Britain’, which involves balkanising England into unwanted British economic-development regions, and refuses to articulate any coherent, comprehensive model for a new English civic society: for the way in which we in England can best organise ourselves to deliver the best education, health care, public services and environment for our country that we can. Labour can’t answer those questions, because it’s not even asking them in realistic terms that can be engaged with. In the end, One Nation Britain is meaningless as a vision for England because nothing valuable can ever be done for England by a party that doesn’t love England, and doesn’t value her and her people in themselves. The one nation that has no place in One Nation Labour Britain is England.

Those who can’t break the law shouldn’t make the law

So it looks as though some form of lifting of the ban on UK prisoners voting in elections will effectively be imposed on the UK by the European Court of Justice. However, what I’m wondering is whether any eventual legislation allowing this would create a legal precedent for banning non-English-elected MPs from voting on English laws.

The principle behind not allowing prisoners to vote is often expressed in the phrase: ‘Those who break the law shouldn’t make the law’. I.e. prisoners, by virtue of having the vote, are effectively cast in the role of lawmakers. On this logic, Scottish, Welsh and Northern Irish residents are effectively makers of English law, as they elect MPs who legislate for England. But isn’t the logic of allowing everyone within a given jurisdiction, even those who’ve broken its rules, to contribute towards making those rules that those who don’t come under that jurisdiction should have no say whatsoever in making those rules? In other words: ‘Those who can’t break the law (because they don’t live under it) shouldn’t make the law’.

Seriously, I think there might be a legal case to answer. If you allow criminals to make the law that they’ve broken, it’s wrong to allow people who could neither keep nor break the law to make it: only those affected by a law should input into its creation.

Now that would make an interesting human rights case before the European Court of Justice!

It’s time to address the Westminster Question, not the West Lothian one

The extremely modest terms of the West Lothian Commission were announced yesterday:

“To consider how the House of Commons might deal with legislation which affects only part of the United Kingdom, following the devolution of certain legislative powers to the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales.”

Well, I’d like to make a comment on the ‘terms’ in which this announcement was made and, indeed, on the term ‘West Lothian Question’ itself. You might have noticed that the word ‘England’ is absent from this announcement, despite the fact that the term ‘West Lothian Question’ in common usage relates primarily or even exclusively to House of Commons voting on legislation which affects England, not just “part of the UK”. And what on earth is “part of the UK” supposed to mean, anyway? It’s obviously another rhetorical device to refer to England without actually saying ‘England’, because if what you wanted to say is ‘one or more parts [i.e. countries] of the UK’, you’d say ‘parts of the UK’ (plural). So England, in the very terms of reference of the West Lothian Question, has been reduced to an amorphous, anonymous ‘part of the UK’. Very promising.

And it’s not only in these explicit terms of reference for the commission that the very concept of England has been evaded. The West Lothian Question itself, in its original form as posed by West Lothian MP Tam Dalyell in 1977, explicitly focused on England:

“For how long will English constituencies and English Honourable Members tolerate . . . at least 119 Honourable Members from Scotland, Wales and Northern Ireland exercising an important, and probably often decisive, effect on English politics while they themselves have no say in the same matters in Scotland, Wales and Northern Ireland?”

So I’d like to suggest to the West Lothian Commission that they need to revise their terms of reference. Whatever they’re getting together to discuss, it isn’t the West Lothian Question if it doesn’t include an explicit consideration of how England should be governed, and whether the House of Commons as a whole is fit for that purpose.

And that’s the problem, really. The Commission will focus merely on parliamentary procedure, i.e. on the second part of Tam Dalyell’s question: “How long will . . . English Honourable Members tolerate . . .?” The answer in practice has been, in fact, that English MPs in the main have tolerated the West Lothian anomaly remarkably well, for reasons of political convenience. The WLQ artificially bolstered Labour’s parliamentary majority between 1997 and 2010, including in certain decisive votes (such as those on university tuition fees and Foundation Hospitals) in which Tam Dalyell’s words were proved prophetic: “Members from Scotland, Wales and Northern Ireland exercising an important, and probably often decisive, effect on English politics”. And now, the addition of the Lib Dems’ cohort of Scottish MPs to the governing coalition provides a spurious veneer that it constitutes a genuine UK-wide government, which it would not have if it were a minority Conservative administration – the Tories having only one MP north of the border.

From the parliamentary perspective that is that of the Commission, the problem, it seems, is more how ‘Honourable Members’ from Scotland, Wales and Northern Ireland would tolerate being excluded from having a decisive impact on English politics if the answer to the West Lothian Question was to exclude them, rather than how English members get on with not having a say in corresponding matters in Scotland, Wales and Northern Ireland, which they don’t seem to mind at all! Perhaps that’s why the story was covered on the BBC’s Scottish politics page yesterday, rather than its ‘English politics’ page, as Tam Dalyell might put it. Or perhaps the BBC had no other place to run it, as it doesn’t even have an ‘English politics’ page but only a heading on the general politics page reading ‘Around England’, containing separate links to stories from ‘around England’, i.e. from the (English) regions.

So the answer to ‘the part’, to coin a phrase, of the original West Lothian Question that deals with parliamentary protocol can be reasonably accurately predicted from the terms of reference adopted: it will try to find a mechanism that preserves a role for non-English-elected MPs in debating and scrutinising English bills, without allowing them to have a decisive impact on that legislation in terms of their actual voting – although they will still be able to have a decisive impact overall, in that Scottish- and Welsh-elected MPs would still be able to become prime ministers or ministers with English portfolios; so they would still be involved in drafting English legislation as well as in ensuring its passage through the parliamentary process as a whole.

But, as I say, this is only one part of the West Lothian Question – the other part being: “How long will English constituencies . . . tolerate . . .?”. For ‘English constituencies’, substitute ‘English voters’ or the ‘English people’. While English-elected MPs may have accepted the West Lothian anomaly tolerably well since 1999, English voters are increasingly furious about it, a recently publicised IPPR poll finding, for instance, that 79% of English people want Scottish MPs barred from voting on English bills. A minor tweak to parliamentary procedure, in which non-English-elected MPs will still be able to direct and shape English legislation, even if they are not able to override the voting decisions of their English-elected colleagues, will do nothing to appease this anger or mitigate this injustice.

I think we may have to re-name this part of the West Lothian Question the ‘Westminster Question’. A contemporary re-phrasing of it might read as follows:

For how long will English voters tolerate non-English-elected Westminster MPs making their laws?

Simple question. But the mis-named West Lothian Commission isn’t even addressing the limited parliamentary aspect of the question properly (because it won’t acknowledge that it centres on England) let alone the Westminster Question. But the looming importance of the Westminster Question makes their deliberations virtually null and void before they’ve even started.

English parliament

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