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?

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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.

Unionists need to find reasons for England to remain in the Union, as well as Scotland

As it was reported this morning that several leading Scottish-elected Westminster politicians were up in Scotland campaigning in favour of a pro-Union vote in the Scottish referendum on Scottish independence – whenever it happens – the Daily Telegraph reported that a majority of those in England who expressed a preference in a new ICM poll favoured independence for Scotland (43% for, 32% against). By contrast, in Scotland, there was a majority in favour of remaining in the Union; and not only that, the share of those in favour of independence was lower than in England (40% for, 43% against).

While Scottish and English nationalists will doubtless take comfort from these figures – the Scots because the margin between the no’s and the yes’s has narrowed, and the English in particular taking delight at the massive majority in favour of an English parliament (49% for, 16% against) – the fact that support for Scottish independence is greater in England than in Scotland itself should surely make Unionists pause for thought, if not substitute some of their scheduled speaking engagements north of the border with similar events to its south.

Many of the Unionist persuasion may not in fact be terribly surprised at English people’s lack of enthusiasm for the 300-year-old Union. The ICM poll also shows that 61% of people in England think that higher per-capita public spending in Scotland is unjustified, while 53% of Scots believe it is justified. What did Westminster politicians, who’ve continued to justify the Barnett Formula for so long as a bribe to keep the Scots sweet and to provide a spurious justification for MPs elected outside of England to vote on English bills, think that the long-term effect of these injustices would be?

But the bigger point is that it’s the English that most need persuading that the Union is worth preserving. OK, the Scots may vote against independence; although they might just vote for it. But even if they opt to remain in the Union, how sustainable will that Union be if the English no longer believe in it? The English majority can be ignored only for so long.

And that’s the Unionists’ dilemma: they have ignored England for so long that they no longer have a language in which to present a positive case for England to remain in the Union. The phrase ‘for England to remain in the Union’ is itself a revealing paradox. The idea of the Union – any Union – persisting if England decided to leave it is a complete non-sequitur. If such an eventuality arose, all you’d be left with is a set of disparate nations and territories that would have to make their own minds up as to how they wished to govern themselves and relate to one another. However, despite the fact that the Union between Scotland and England is supposed to be a marriage of equals, no one assumes – but perhaps they should – that the consequence of a divorce would be to break the bonds between the UK’s other nations. Using the marriage analogy, if England and Scotland are the parents, why is everyone assuming that, after their divorce, England will automatically gain custody of the kids (Wales and Northern Ireland, and perhaps Cornwall)? Perhaps Scotland should take on some responsibility for them, such as paying them maintenance out of its oil reserves. Or perhaps they’re grown-up enough to take care of themselves.

The absurdity of this analogy shows how invalid the marriage analogy is. The Union is not a marriage, it’s a family of four children, the largest of whom – England – has acted in loco parentis (the parent being called ‘Britain’) for so long that she has invested her emotions and personality wholly into the role, to the extent that she has lost sense of who she is apart from that role. But now her siblings are growing up, they understandably want to manage their own affairs; and England, who has thought of herself as Mother Britannia for so long, has now got to rediscover a new mission in life as a grown-up, independent person – albeit that she might continue to play a key role in the family business going forward.

But this is my point: once England starts to think of herself separately from the Union, then this is as much a consequence of the Union having already begun to break up as it is a precursor and cause of England’s political separation from the Union. The Union is as much in England’s mind as it is a political reality; and for the thought of ‘England remaining in the Union’ to even be possible, that Union must have already have begun to dissolve.

It’s that England that the Unionists must try to convince of the Union’s merits. But the mere fact of that England existing as a distinct entity means the Union as it has existed for 300 years has already begun irrevocably evolving into a different set of relationships between its constituent parts.

English parliament

West Lothian Question: Don’t hold your breath waiting for an answer

We were told this week that the West Lothian Commission would finally begin its work in February 2012 and would report in spring 2013. But I would caution people not to expect any answer to be put into effect until after the next UK general election in 2015 at the earliest.

There are two main reasons for this. Firstly, the options available for addressing the West Lothian Question (WLQ) will be affected by the options that are offered to, and chosen by, the Scottish people in the SNP’s planned independence referendum, in 2014 or 2015. It is, for example, widely expected that three choices will be offered to the Scots: the status quo, devolution max / independence lite (i.e. fiscal autonomy and greater devolved powers but under a continuing UK umbrella) or full independence. The solutions required to adequately deal with the WLQ are different under the status quo than under devo max, let alone Scottish independence.

For instance, under the status quo, the West Lothian Commission would be likely to propose, if anything, only a modest procedural tweak to parliamentary procedure along the lines of that recommended by the present Justice Secretary Ken Clarke when in opposition. If I remember correctly, this involved only English MPs being allowed to vote at English bills’ report and committee stages in their passage through Parliament, but all UK MPs being allowed to vote at those bills’ other stages – but not being able to reverse the decisions of English MPs made at the report and committee stages. This is such a technical fix that most laypersons would hardly notice the difference; and this still does not address, let alone resolve, the question of non-English-elected ministers, prime ministers and MPs being allowed to bring forward England-only bills and play an active role in seeing them through the legislative process, even if they couldn’t participate directly at every stage of that process.

If, on the other hand, the Scottish people opt for devo max / indy lite, then the demand for a more meaningful answer to the WLQ, including from Tory backbenchers, would probably become irresistible. It would clearly be unjustifiable for Scottish MPs to determine policies and make spending decisions for England that had no impact on their own constituents at all. This is of course the main reason why the unfair Barnett Formula has remained in place for so long: it provides a justification for non-English MPs to vote on English matters because of the consequential impact on spending in their own countries.

Therefore, the solution to the WLQ that is applicable will be dependent on the timing and outcome of the Scottish referendum. This impediment could be alleviated if the government came good on its threat to organise its own Scottish-independence referendum sooner than 2014. However, UK ministers and MPs that have advocated this course of action have insisted that such a referendum should ask a straight in / out (union or independence) question, and not offer the middle way of devo max. Accordingly, even if there were a ‘no’ vote in an in / out referendum, the option of devo max would still be on the cards, as the Scottish government would almost certainly still proceed with its own referendum (for which it justifiably argues it has an electoral mandate) and would undoubtedly offer devo max as an alternative to independence. So one way or another, a durable solution to the WLQ cannot be arrived at until after the Scottish referendum.

The second reason why no workable answer to the WLQ will be implemented until 2015 at the earliest is that some of the potential solutions could fundamentally alter the balance of power within the governing coalition. If, for example, only English MPs were allowed to introduce and vote on England-only legislation, the Conservatives wouldn’t need the support of Lib Dem MPs for those bills, as the Tories enjoy an overall majority in England. Therefore, the Lib Dems are hardly likely to approve any measure that compromises the coalition, which they and the Conservatives have adamantly insisted is set in stone until the next election.

This wouldn’t be an issue if my own particular ‘solution’ to the WLQ were adopted: the ‘English Majority Lock’ (EML). In essence, this rule says that any bill that relates substantively to England only (or to England and Wales only, for example) must be approved by a majority of English MPs only (or English and Welsh MPs only respectively) as well as a majority of all UK MPs. In other words, a majority of all UK MPs cannot trump a majority of English MPs on any England-only matter; but equally, the support of a majority of all UK MPs is still required for any England-only (or England and Wales-only) measure. The EML would not compromise the coalition in any way, because the Lib Dems would still be needed to provide the support of all UK MPs for any Conservative England-only measure – which is pretty much how things have been working out in the coalition in any case!

However, the chances of the EML being adopted are pretty slim, I would say, as it would mean that any workable UK-government majority would in future need to command a majority of English-elected MPs as well as a majority of all UK MPs, which the Labour Party would reject, as it would prevent them from using their Scottish and Welsh MPs to outvote the majority of English MPs as they did most notoriously in the case of Foundation Hospitals and university tuition fees. But maybe if the Conservatives and Lib Dems are smart enough, they could latch on to the EML precisely for this reason. However, even the EML is predicated on the status quo vis-à-vis Scotland, and it’s doubtful how long that will continue; and no one, least of all the establishment, unionist parties seems willing to think beyond the long grass to the obvious long-term ‘solution’: an English parliament within a federal or confederal UK, with or without Scotland.

None of these more fundamental issues are likely to be resolved until after the Scottish referendum and the next UK general election. So my guess is the West Lothian Commission will come up with a series of options that are dependent on a range of eventualities. And the eventual decision will be taken not by the people of England but by the people of Scotland and by the body of UK MPs as a whole, who, like turkeys, are unlikely to vote for Christmas.

Seasonal greetings to you – and them – all!

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The nightmare scenario: United Kingdom of Britain and Northern Ireland

In answer to the speculation in my last post about what the new United Kingdom, following Scottish independence, would be called, maybe we’d be looking at the nightmare scenario of a ‘United Kingdom of Britain and Northern Ireland’, instead of a possible ‘United Kingdom of England, Wales and Northern Ireland’.

The Union establishment will do anything in its power – and anything, in fact, exceeding its rightful powers, as I suggested in the previous post – to maintain its pretension to be the heir and continuation of imperial Britain, with all its supposed international prestige and ability to ‘punch above our weight’. As I argued, the new UK could no longer call itself the ‘United Kingdom of Great Britain and Northern Ireland’, as Great Britain would be dissolved by Scottish independence. However, there’s no theoretical reason why ‘Great Britain’ couldn’t be replaced by ‘Britain’ in the official name of the state. After all, Roman ‘Britannia’ comprised basically England and Wales, and referring to all the territories that in fact form part of the pre-Union Kingdom of England as ‘Britain’ at least gets over the clumsiness of an alternative comprehensive designation of the state as ‘the United Kingdom of England, Wales, [Cornwall], Northern Ireland and the Crown Dependencies’. The possibility of that latter title, of course, would result from the awkward question of Cornwall’s status being raised, which can be glossed over if all the British parts of the new state are simply and indiscriminately dubbed ‘Britain’. Plus it would allow ‘Britain’ to continue to exist as a more historically and politically resonant synonym for the state’s legal personality and brand in international affairs and commerce than ‘the UK’.

All the more reason, then, why the English people should demand a say in the new constitutional settlement resulting from Scottish independence. We must be offered the choice as to whether we consent to England continuing to be subsumed within a would-be British nation, and whether we are content for the name of ‘England’ to still be excluded from the name of the state of which we are citizens.

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The constitutional morass of Scottish independence: is there ANY proper way of doing it?

There’s been something of a storm in a teacup brewing over the question of the legality or otherwise of an independence referendum legislated for by the Scottish parliament. For a summary of the legal and constitutional issues, see Alan Trench and Lalland’s Peat Worrier.

From an English perspective, the crux of the matter, for me, is what say, if any, English people get in Scottish independence and the consequential break-up of the Union. I would argue that, at some point in the process, the English (and the Welsh and Northern Irish) people have an absolute right to be consulted. This is because Scottish independence does not just involve the departure of Scotland from a state or country – the UK – that remains intact or retains its existing identity despite that departure. Independence for Scotland would require the Acts of Union between England and Scotland of 1707 to be repealed, which means the end of the United Kingdom – or technically, the end of the ‘Kingdom of Great Britain’ resulting from the 1707 Acts, and hence the end of the ‘United Kingdom of Great Britain and (Northern) Ireland’ of 1800.

No doubt, in the drawing up of the legislation for Scottish independence by the UK parliament, new clauses would be drafted setting out the status and composition of the, or a new, United Kingdom replacing the one dating from 1707 and 1800. And that’s why the people of the new UK state should be consulted: if the very identity and constitutional basis for the country of which you are a citizen is being changed, you have an absolute right to a say on the matter.

So really, I’d now argue we could be looking at three referendums. There are two possible scenarios for this:

  1. The Westminster parliament takes over the process and passes a Bill authorising a Scottish independence referendum in, say, 2012 or 2013. At this point, you could argue that all UK citizens have a right to take part, because the vote involves deciding whether or not to break up the UK. In addition, if you restrict the referendum to Scottish residents, you are already implicitly allowing a large number of non-Scottish people to take part, e.g. the hundreds of thousands of English people who currently live there. By the same token, you are excluding potentially over a million Scots living in other parts of the UK or the wider world. However, if you regard this first referendum as advisory rather than binding, then ‘Scottish residents’ could be a pragmatic approximation to ‘the Scottish people’. Scottish independence may well involve breaking up the UK, but it’s ultimately for the Scots to choose between independence and continuing to be within the Union. But for any subsequent, binding referendum, an attempt should perhaps be made in advance to draw up a more exhaustive list of ‘Scottish nationals’, i.e. those who would become Scottish citizens if independence were carried in a referendum. This is a political hot potato, admittedly, but one that perhaps needs to be grasped: shouldn’t it be only prospective Scottish citizens who should be asked whether they wish to actually become Scottish citizens, which is what Scottish independence would mean for them?

    So let’s say a majority voted in favour of the principle of Scottish independence in this Westminster-enacted referendum. There would follow a complicated process of negotiations and discussions leading up to Westminster legislation enacting Scottish independence. As I’ve been saying, there are two parts to this: what kind of independence ‘deal’ is on offer for Scotland; and what new constitutional arrangements are in place for the / a residual UK. (I’ll return to this question below.) These two questions demand two further referendums: one asking the Scottish people to endorse the independence deal; and one for non-Scottish UK citizens to approve or disapprove the new constitutional arrangements for their citizenship and governance. Incidentally, this is another reason why it might be necessary to draw up a more robust list of prospective Scottish citizens, because just as only Scots should resolve the question of Scottish independence, only the prospective citizens of a UK without Scotland should decide whether to create such a new UK.

    What would happen, in these binding referendums, if the results were contradictory: if the Scots voted for independence, but the other British people rejected the new UK settlement; or the Scots rejected independence, but the rest of the UK supported the new UK state? In the first instance, logically, Scottish independence goes ahead, and it’s back to the constitutional drawing board for the residual UK. In the second instance, the legislation would have to be drawn up in such a way that the structure, governance and constitution of the new UK would be unaffected by whether Scotland were part of it or not. See further below.

  2. The other scenario is that the Scottish government is allowed to go ahead with its own plans for a referendum some time in 2014 or 2015. In this instance, clearly, it is just for the ‘Scottish people’ to take part – as the referendum is purely advisory and seeks a mandate from the Scots for independence negotiations with the UK government – notwithstanding the caveat expressed above that the term ‘Scottish people’ is only an approximation in this instance. Following a vote in favour of independence, then I would argue that the same process as outlined above should take place: negotiations and legislation towards Scottish independence followed by two referendums – one of the Scottish people only (about independence), and one of non-Scottish UK citizens only (about the constitution and composition of the new UK).

    What about the issue of the SNP’s plans to ask two questions in its referendum: 1) whether people want Scotland to be an independent country; and 2) if they do not want independence, whether they want so-called ‘devo max’ or ‘independence lite’: fiscal, and virtually total political, autonomy under the UK defence and macro-economic umbrella? In a sense, if the SNP-organised referendum is purely advisory, I don’t think this matters, as whatever the outcome, there would still need to be negotiations with, and legislation by, Westminster to enact whatever was decided; and, I would argue, there would need to be a second binding referendum in Scotland even for devo max. In fact, it might even be more convenient for Westminster if the Scots opted for devo max, as the UK government could probably get away with not consulting non-Scottish UK citizens about it on the basis that the existing Union remained ‘unaffected’.

Somehow, I don’t think the process in reality will work in such a neat, logical and fair way, because it raises too many intractable questions that neither the Westminster nor Holyrood governments, in their different ways, wish to bottom out. A non-exhaustive list of these questions is as follows:

  1. Who would be eligible to vote in a binding Scottish-independence referendum, and how would a list of eligible persons be drawn up? My contention, as above, is that only prospective citizens of an independent Scotland should vote, including those resident outside Scotland. But how do you determine what constitutes ‘Scottish nationality’?

     

  2. What is the constitutional justification, and what are the constitutional implications, of these referendums, potentially three in number? The UK government might wish to restrict a binding referendum to Scottish nationals / residents on the independence question, in order not to stir up the issue of popular sovereignty for the residual UK: if the UK government’s legislation on Scottish independence and a new settlement for the remaining UK is dependent on the approval of the people in a referendum, then this involves conceding that, in this instance at least, the people are sovereign, which therefore challenges the whole doctrine of parliamentary sovereignty on which the established system of governance in the UK depends.

     

  3. The English Question: a referendum on the new UK, minus Scotland, would involve consulting the English people for the very first time regarding the arrangements for their governance, just as the people of the UK’s other nations have already been consulted about devolution, and the Scots would be being consulted about independence. This potentially establishes a legal precedent that there is such a thing as ‘the English people’ who might have the human and legal right to self-determination. In practical terms, any public debate and referendum on the constitution and governance of the residual UK would inevitably force the Union establishment to engage with the English Question in some form or other, even if only because the option of an English parliament would inevitably come up for discussion.

    In addition, if the establishment tried to reaffirm the existing constitutional and governance arrangements unchanged – apart from the absence of Scotland – there could be a real possibility that the new UK settlement would be rejected by the English people in a referendum. For instance, if the new UK involved no recognition for a distinct English nation, no English parliament and even no attempt to prevent non-English-elected MPs from voting on English legislation, it is quite likely, in my view, that it would not pass. Maybe even the Welsh and Northern Irish would vote in favour of the new UK while the English rejected it. What then? Better to keep the English Question in the bag by not asking it.

  4. What would the composition of the new UK be, anyway, and what would its constitutional status be? The new UK could no longer formally call itself the ‘United Kingdom of Great Britain and Northern Ireland’, because Great Britain (the product of the 1707 Acts of Union) would be dissolved by Scotland’s departure. But could the new UK even call itself the ‘United Kingdom of England, Wales and Northern Ireland’? I ask this because, at the time of the Acts of Union of 1707, ‘Wales’ didn’t exist as a distinct, separately named kingdom or part of the Kingdom of England: it was fully subsumed into the Kingdom of England, and the Acts of Union involved a union between the two kingdoms of England (including Wales) and Scotland. So if the Acts of Union are annulled, does not ‘Great Britain’ just revert to the two former kingdoms? Where is ‘Wales’ in the equation? Would a new Act have to be legislated actually creating or re-creating Wales as a distinct kingdom? Or would it be a case of ‘re-naming’ the re-emergent, post-Acts-of-Union Kingdom of England the ‘Kingdom of England and Wales’? And how would the English and Welsh people feel about being merged into a single nation and / or kingdom thus named?

    And then what would the status of the union with Northern Ireland be? Wouldn’t the 1800 Acts of Union between Great Britain and Ireland also be nullified by any repeal of the Acts of Union between England and Scotland? That’s because the ‘Great Britain’ that was united with Ireland via the 1800 Acts would no longer exist. So would you need a new Act creating Northern Ireland as a kingdom and / or merging it into a single ‘Kingdom of England, Wales and Northern Ireland’? And how would that affect the delicate sectarian balance in the Province?

  5. And then there’s the question of the broader constitutional ramifications of repealing the Acts of Union. These are an integral part of a whole host of foundational acts of parliament that make up the delicate constitutional fabric of the United Kingdom, including, among others, the Act of Settlement of 1701, the Bill of Rights of 1689 and, of course, the Acts of Union of 1800. If you repeal one such act, you might have to repeal or fundamentally amend all the others, so you could easily end up needing to produce a completely new written constitution for the new UK-minus-Scotland. That might not be a bad thing in itself, and it could allow for a more flexible, federal constitutional structure in which the UK state is not completely dissolved or fundamentally altered by one part of it deciding to leave or re-join. This flexibility could enable the Scottish people to have a real choice in their binding referendum between independence and being part of a new UK constitutional settlement that would remain in place without them (thus solving the problem discussed above of what to do if the Scots rejected independence but the remaining UK supported the new constitution that was put in place as a consequence of the Scots voting for independence in the first, advisory referendum).

    I feel that, because of the intricacy and potentially unforeseen consequences of repealing any of the parts of this delicate constitutional tissue, this may be considered far too important and technical a matter to be entrusted merely to the people. It could be left to the lawyers, politicians and constitutional experts to resolve. But the net effect could be that profound decisions affecting the nature of our nationhood and our rights as citizens could be decided as it were behind closed doors, and by a sovereign UK parliament that is unwilling to let go of any of its powers even if the original constitutional foundations and justifications for those powers no longer apply.

    But the politicians should be extremely wary of tinkering with elements of the UK constitution whose interdependencies and effects even they do not understand – or they could find that their very authority to make such changes is challenged as never before since the English Civil War. For example, the English Act of Union with Scotland explicitly states: “the two Kingdoms of England and Scotland shall . . . for
    ever after be united into one Kingdom by the name of Great Britain” [my emphasis]. This Act and the corresponding Scottish Act of Union with England also incorporate the Act of Settlement of 1701. This is the Act that specifies that the king or queen of England, and thereafter Great Britain, cannot be or be married to a Roman Catholic, and states that if this provision is ever broken, “the People of these Realms shall be and are thereby absolved of their Allegiance”. In other words, if today’s parliament takes it upon itself to dissolve the Kingdom of Great Britain that was originally instituted as a permanent settlement (lasting ‘for ever’); and if, in so doing, they repeal the Act of Settlement (which David Cameron has recently talked of doing independently of its impact on the Acts of Union, if such were possible), then it is possible they are guilty of high treason and that the people of England are absolved of any allegiance to the new state, whatever it is called, and to its king or queen.

Consulting the English (and Welsh and Northern Irish) people on what would effectively be a completely new constitution – whether a single written document or a series of fundamental amendments to existing constitutional Acts – could be a way to avoid potentially years of contestation and even violent resistance to a new settlement that contravened ancient, hallowed constitutional provisions setting out the rights and responsibilities of the rulers and the ruled. But precisely because it would stir up such intractable issues affecting the constitution and the composition of the UK, and the status and interrelationships of its different national parts, the establishment is likely to seek to gloss over these complexities, and will try to retain the constitutional status quo without consulting the people of the residual UK. So Scottish independence is unlikely to be done properly, and it could be a messy, protracted and painful process for the residual UK: a far more complex process in fact than Scottish independence would be for Scotland itself.

There could be a more rational alternative: a constitutional convention for the whole of the existing UK to work out and through a set of alternatives for the future constitution and governance of the UK, as such, and its constituent parts, which could include a form of independence and confederation for each of its nations. But politics doesn’t work in such a rational manner, at least not nationalist and unionist politics, which can contemplate only their all-or-nothing objectives, and not a happier, clearer and more constructive means to work out how the people of these isles can live and work together in an uncertain future.

What would it take for such a constitutional convention to become a possibility? An overture from the Westminster government to the SNP administration? A willingness on the part of the SNP to engage in such a process so long as full independence was a serious option on the table from day one? Recognition on the part of the Union establishment that England is a nation and should also be represented as such in the discussions?

It’s an exciting vision, but I can’t see it happening. But the alternative could be much, much worse in so many ways.

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To negotiate with the EU first and then have a referendum makes no sense

The idea that the UK government could negotiate with the EU on repatriating certain powers back to the UK first, and then hold a referendum to endorse the deal, makes no sense. And I mean that logically as much as politically or tactically.

Imagine the following scenario. The coalition government does seize the opportunity presented by the Eurozone countries seeking greater fiscal integration to negotiate a repatriation of powers, a scenario described by the Tory MP Peter Lilley on Radio Four this morning. This is in itself an unlikely scenario, as the Lib Dems and Labour would probably be opposed to it, and how bothered are the Eurozone countries going to be to engage in complicated negotiations with a UK whose ambivalence towards European integration they are fed up with, at the very point when they themselves are trying to work out how to integrate even more?

But setting realism aside, let’s just suppose the government come back from Brussels with a deal, and they present it to the UK electorate in a referendum. What will inevitably happen is that many of those who are in favour of the UK withdrawing from the EU altogether will oppose the deal, because it doesn’t go far enough; and many of those who support greater European integration will also oppose it, because it goes too far, particularly if it involves exempting the UK from some of the EU regulations relating to worker’s rights and employment conditions. So the deal could well be rejected by the voters. Is the government seriously going to conduct difficult negotiations of this sort, at the risk of worsening the UK’s relationships with its key European partners, only for it to be rejected by the UK people? Even supposing the government did carry out these negotiations, the most likely scenario would then be that it would not offer the UK people a referendum on it, arguing that this policy was in the Tories’ manifesto in any case.

So a no vote in a referendum on a renegotiated relationship with the EU would be deeply humiliating and damaging to the government; and as it had been brought about by an unholy alliance of eurosceptics and europhiles, there would then have to be an in / out referendum to settle the matter altogether. But equally, a yes vote in such a referendum would also not resolve the question of whether we stay in or out of the EU, as some in the eurosceptic camp would argue the renegotiated relationship had only been supported because it was the least EU-friendly deal on offer, while some europhiles might also support it as a means to preserve the UK’s membership of the EU, fearing that a no vote would trigger the in / out referendum they have tried to avoid.

So let’s sum up:

  1. First, it’s highly unlikely that the government would succeed in negotiating a repatriation of powers given the constraints of the coalition and the priorities of the Eurozone countries
  2. Second, it’s extremely unlikely that the government would run the risk of a deal being rejected by the UK public in a referendum
  3. Any result in such a referendum would be inconclusive, as the repatriation of powers could be both supported and opposed by eurosceptics and europhiles alike.

It makes far more sense – politically, tactically and logically – to offer the people of the UK a referendum such as the one that will be proposed in the House of Commons on Monday, containing three options: the UK leaves the EU altogether; repatriation of some powers; sticking to the present arrangements. Such a referendum would give the government a clear mandate, and ought to settle the matter once and for all.

What happens if there is not a straight majority in favour of any of these options? Well, perhaps the referendum could use the Alternative Vote system, with it being mandatory for voters to list a preference from 1 to 3 for all three options. I’m sure people would find this was a far more satisfactory way of doing things than First Past the Post, in this instance at least!

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