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?

Advertisements

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.

English parliament

More arguments in favour of two referendums for Scottish independence

Further to my previous post setting out why I think there should be two referendums on Scottish independence – one advisory, for the Scottish people alone; and one definitive, for everyone in the UK – here are some more arguments in favour of a double referendum for the Scots (irrespective of the issue of giving the rest of the British people a say in their constitutional future). These arguments are also taken from a comment I made in a continuing debate with Gerry Hassan.  Actually, this is not so much a two-way debate – as I don’t think my arguments are being taken seriously, whether deservedly or not – but more a case of me pursuing dog-in-the-manger-type opposition to the idea of there being only one referendum, which I think would be unfair to the Scottish people, let alone to everyone else. Anyway, here are those arguments:

I wouldn’t write off a second referendum so easily. There is a precedent, which was the second referendum on the Lisbon Treaty in Ireland. You mentioned a referendum for the UK to leave the EU, Gerry. I can’t imagine that only one referendum would be held on this: there’d be one vote on the principle; then, if the people voted to leave the EU, there’d be protracted negotiations on the terms of separation, which would set out the continuing relationship between the UK and the EU, such as free movement of goods and people; residency rights; regulatory and trade relationships; continuing UK participation in security and international-relations aspects of the EU; financial terms, i.e. whether and for how long the UK would continue to contribute to various EU funds, such as those used for bail-outs, agricultural subsidies, social and development funds, etc.

The end result of these negotiations might well be a form of ‘separation lite’, with the UK effectively continuing to enjoy some of the fruits of membership of the EU – and incurring some of the costs – while being politically independent. I can’t imagine that the final deal, which might well not be what the British people thought they’d voted for, would not be put to them in a second referendum. In fact, it would be felt to be downright unfair not to do so.

Very similar arguments apply to Scottish independence. Apart from my arguments above about the right of the English, Welsh and N. Irish people to have a say on whether they wish to belong to the completely new ‘UK’ that would result from Scottish independence, many people in Scotland (even those who’d voted ‘yes’ to independence in the first referendum) would doubtless feel short-changed if the terms of separation were negotiated and weren’t what they expected: either going too far or not far enough. So many things very similar to those involved in a vote for the UK to leave the EU would have to be worked out in the negotiations that it would seem just a matter of basic natural justice to consult the Scottish people whether they agreed with the final deal.

Alternatively, if the SNP is insistent on holding only one referendum, it should set out its bargaining position in full, so that people know exactly what they’re voting for, e.g. how the oil revenues will be dealt with; what portion of the UK’s national debt will be allocated to Scotland; Scotland’s EU membership; citizenship questions; dividing up the UK’s defence forces; etc. Then I would agree that a ‘yes’ vote would deliver a strong mandate for the Scottish government to negotiate those precise terms. If, then, the final deal was rather different in certain key details, then the Scottish government could chose to hold a second referendum, literally on its own terms, if it felt this would secure a nationwide consensus behind independence.

Let’s reverse the argument. If a ‘first’ referendum failed to win a ‘yes’, but only by a narrow margin, would the SNP drop all hope of ever securing independence in another referendum at a future date under revised terms? If the answer is ‘no’, there’s your dismissal of a second referendum blown to smithereens.

Can we expect more progress on the WLQ Commission after the Scottish and Welsh elections?

Doh! It suddenly struck me that that must be the reason – or at least one of the main reasons – why the Con-Dem government has been so cagey about the timing of the promised Commission to look into the West Lothian Question: they don’t want to give Labour and the Nationalists in Scotland and Wales another weapon to use against them in the devolved election campaigns presently taking place in those countries. Labour and the Nationalists would be able to spin any move to prevent Scottish and Welsh MPs from voting on English matters in Parliament as a sign of the Westminster government’s enmity towards Scotland’s and Wales’ present public sector-friendly, social-democratic settlement – with MPs from Scotland and Wales no longer able to influence spending decisions for England that have knock-on effects in those countries via the Barnett Formula.

Does that mean we can expect the WLQ to mysteriously appear on the parliamentary agenda as soon as the Scottish and Welsh elections are put to bed? I suppose that depends in part on the results and on how well (or badly) the Tories and Lib Dems perform, particularly in Scotland. If they do really badly – as the signs are they will – this will make it less likely that they’ll do anything on the WLQ, as they won’t want to undermine their position in Scotland and Wales still further. So while a dramatic SNP victory will put Scottish independence – and, indirectly, the English Question – back on the political agenda, it may delay still further any attempt to resolve the West Lothian Question.

Open letter to the BBC, ITV and Sky on the proposed leaders’ debates

Below is the text of a letter I’ll be sending to the BBC, ITV, Sky, and possibly Ofcom, the Electoral Commission, the SNP and Plaid Cymru over the next few days!

Dear Sirs,

I note with some dismay the plans to hold three debates between the leaders of the three largest UK political parties at the forthcoming general election: one each on the BBC, ITV and Sky. My concern is not about the fact that this format could be seen as unduly favouring the main parties, or that it changes the nature of the contest into a battle between presidential-type candidates for the top job. What I am mainly disturbed about is the way these debates are in danger of seriously misrepresenting the key issues at the election and, more particularly, failing to make clear who those issues affect.

These clashes are being billed as ‘UK’ debates: the UK party leaders discussing issues affecting the whole of the UK, for which the new UK government and parliament will be responsible. Reflecting the debates’ supposedly UK-wide character, the participation of the leaders of the Scottish National Party and Plaid Cymru has been excluded; and separate debates have been proposed to focus on the key election issues for each of the devolved nations.

However, this way of dividing up the debate is based on a distortion of the facts. The truth of the matter is that it is not Scotland, Wales and Northern Ireland that should have their own separate debates but England. This is because it is only for England (and occasionally Wales, too) that many of the key election issues are of any relevance at all: education, health, crime and justice (including Wales), planning, housing, the environment and rural affairs, communities and local government, culture and sport, much of transport policy, etc.

Do the BBC, ITV and Sky need reminding that, because of devolution, the UK government’s responsibilities in these areas are limited to England? Given this fact, any debates on these topics should be billed as England-specific and preferably be broadcast only in England. Of what relevance to people in Scotland, Wales and Northern Ireland would a debate on NHS funding and reform be when the NHS in question is the English NHS? The same applies to the other policy areas mentioned above.

Admittedly, the votes of people in Scotland, Wales and Northern Ireland will still have a material effect on the eventual government’s policies for health, education and communities in England, as those votes will determine the colour of the UK government. But that is not what the election should be about in those countries: the voting choices of Scottish, Welsh and Northern Irish people should be determined by what the prospective MPs for those countries are proposing to do for them, not what the UK party leaders are proposing to do for England. If, however, debates purporting to be about UK matters (which are in reality English matters) are broadcast in Scotland, Wales and Northern Ireland – and if the party leaders are allowed to get away with falsely presenting those issues as relating to the whole of the UK – then the broadcasters would be guilty of a serious act of misrepresentation that is almost tantamount to electoral fraud and gerrymandering:

  • presenting a false prospectus to the people of Scotland, Wales and Northern Ireland
  • encouraging them to waste their votes on policies that do not affect them
  • and allowing policies affecting English people only to be in part decided upon by voters living outside England.

The proposal to hold separate debates in Scotland, Wales and Northern Ireland seems in part to be an implicit recognition of the fact that the ‘UK’ debates are in many respects England-only debates. But will they be presented explicitly as such? All the signs are that the debates will indiscriminately mix up genuinely UK-wide matters (reserved responsibilities of the UK government, such as defence, foreign affairs and macro-economics) and English matters (i.e. all those policy areas for which responsibility in the other countries of the UK has been transferred to the devolved administrations). In the news report on the BBC website about the agreement to hold the debates, it was stated that: “The format will be the same for each [debate], although about half of each debate will be themed”. Does this mean that about half of each debate will be devoted to specific topics for which it will be made clear which countries they affect?

This is a really critical question. Given the importance that is being attached to these debates as events that could play a substantial part in deciding the outcome of the election, if a themed debate on health or education is not clearly indicated as relating to England only, then the broadcaster in question will be guilty of grossly misleading the electorate: the election result could end up being shaped by the misapprehension of many Scottish, Welsh and Northern Irish voters that the parties’ policies on those issues actually affect them – which they don’t, at least not in any direct way as would be implied by the misrepresentation. If the themed parts of the debates are accurately characterised in respect of the countries affected by the topics discussed, then there is no reason why these debates should not be broadcast across the UK, even though it would have to be explained that large parts of them were largely irrelevant to viewers outside England.

Instead of this, however, one has the distinct impression that the exclusion of the leaders of the SNP and Plaid Cymru is designed to avoid having to make clear to viewers that large parts of the debates relate to England only. This is because if Alex Salmond and Ieuan Wyn Jones took part, they would doubtless refuse to discuss many of the key, England-specific, issues on the basis of the democratic principle that they are elected by the people of Scotland and Wales to make decisions that affect them, not decisions affecting only the people of England. So, rather than allowing the nationalists to shatter the other parties’ deceit that the UK election is about only UK-wide matters, it is deemed more appropriate to suppress the national consciousness of the English people by removing the nationalists from the picture altogether. The ‘nation-specific’ perspectives of Scotland and Wales can then be sidelined in separate broadcasts; whereas, on the contrary, those perspectives in fact provide an absolutely vital input to the UK debates – the true perception that many ‘UK’ issues are also in fact nation-specific: to England, that is.

In reality, the way these debates ought to be structured to take account of the facts of government post-devolution is diametrically opposed to the structure that has been proposed: instead of ‘UK’ debates that are in reality part-UK and part-English being broadcast to the whole of the UK but excluding the SNP and Plaid Cymru, there should be, on the one hand, genuine UK debates (dealing with reserved matters) in which the leaders of the SNP and Plaid should naturally participate and, on the other hand, England-specific debates (broadcast in England only) from which the leaders of the nationalist parties could justifiably be absent, as they’d have nothing to contribute.

If the UK debates genuinely dealt with UK-wide matters only and were broadcast across the UK, then it would be entirely inappropriate to exclude the leaders of governing parties in Scotland and Wales. The Scottish and Welsh perspectives should surely be represented if the UK is a genuine union of democratically, if not demographically, equal nations. The Scottish and Welsh point of view on reserved matters would be useful to voters in England not just because of the corrective it would supply to the established parties’ misrepresentation of English matters as UK-wide matters but because it would make possible a more honest and comprehensive discussion about the facts of public expenditure across the UK, including the Barnett differentials, and the different priorities for spending and cuts in the different countries of the UK.

For example, in the article referred to above, Gordon Brown is quoted as saying, in one breath, that the debates will provide an opportunity to: “discuss the big choices the country [the UK and England] faces. Choices like whether we lock in the recovery or whether we choke it off [UK-wide]; whether we protect the NHS [in England], schools [in England] and police [in England and Wales] or whether we put them at risk to pay for tax cuts for the wealthy few [across the UK]”. The participation of the nationalists would prevent Gordon Brown and the other leaders from getting away with what is a distortion of the facts here: some areas of public expenditure, including England-specific items like the NHS, may be safeguarded; but this will be in the context of overall cuts, which will also result in cuts to the Scottish and Welsh block grants. So the party leaders will try to reassure voters that the NHS is safe in their hands; but spending in Scotland and Wales – including potentially on the NHS in those countries – will have to be reduced.

It is vital that voters in Scotland and Wales are made aware of these facts. And it is equally crucial that voters in England understand that the parties are talking only about England when they refer to spending in devolved areas of government; and that policies and public spending outside of England are subject to different political priorities and fiscal imperatives. Being made aware of the different policies on and funding of the NHS or education in Scotland and Wales would enable English voters to make a more informed choice about health and education in England. There certainly might be more public demand for a needs-based funding system to replace the Barnett Formula, so that the impact of overall UK spending cuts on the poorer parts of England could be mitigated, and the favouritism of the present system towards Scotland could be balanced out. Now that would be a proper UK-wide debate, in which the impact of the UK government’s fiscal and spending policies on each of the countries of the UK could be clearly set out and argued over.

In addition, it is quite possible that the SNP and Plaid Cymru could hold the balance of power in the not unlikely event of a hung parliament after the election. Therefore, it is vitally important to English and non-English voters alike that the leaders of those parties should be interrogated about their willingness to support a minority Tory or Labour government. What concessions for their own countries and parties would they demand as a price of their co-operation? And, more crucially, would the SNP or Plaid support the party of government on English bills as well as UK-wide ones? But of course, this is another dimension the main parties wish to keep under wraps: the fact that they may be reliant on the support of Scottish and Welsh MPs (their own as well as those of the nationalist parties) to pass legislation affecting only or mainly England. Just as the same parties need the support of Scottish and Welsh voters to have a chance of implementing their policies for England only as the party of UK government.

And this is the fundamental injustice that the so-called UK leaders’ debates are in danger of perpetuating: that the governance of England is decided on by all the people of the UK, even those not living in England. Organising and presenting so-called UK debates that fail to differentiate between matters affecting the whole of the UK and those relating to England only is tantamount to conspiring to defraud the English public of a fair and free election: one in which the facts are offered to them without bias or distortion; and in which the choices they, and only they, make determine the government policies that are applied to them alone.

A failure of this magnitude on the part of the broadcasters would, in short, be an infringement of English people’s human rights (including the right to free and fair elections), and a transgression against the Broadcasting Code: the duty to ensure impartial and accurate presentation of the news.

Will the BBC, ITV and Sky carry out their duty to make clear to the different UK nations which of the parties’ policies apply to them and which do not? Or will they conspire with the parties to falsify the true terms of the debate?

The national dimension to constitutional reform

I’m a supporter of the Power 2010 initiative that is attempting to keep radical constitutional and parliamentary reform on the political agenda. However, I have serious qualms about the organisation’s ‘British’ dimensions and the way in which it conceives of constitutional reform, ironically, in rather conservative terms: within the framework of the present United Kingdom state. For example, it has grouped the suggestions for reform of Parliament it has received from the public into categories that leave the current status of Parliament as the combined legislative body for reserved UK matters and all English matters fundamentally unchallenged:

  • Fixed-term parliaments
  • Normal holidays and working hours for MPs
  • Elect the second chamber by “sector”
  • Abolish party whips
  • Charitable representatives in the second chamber
  • A second chamber selected by lot
  • Accommodate MPs in the Olympic village
  • Give backbenchers control of parliamentary business
  • Limit government’s use of whips
  • Reform consultations
  • A class of MPs who won’t serve in government
  • Fully elected House of Lords
  • Local councils to nominate MPs
  • Lords to represent organisations
  • Independent Parliament watchdog
  • MPs accountable to their constituency

How about ‘prevent MPs from non-English constituencies from voting on English bills’, or ‘replace Parliament with a new body responsible only for reserved UK matters’? Indeed.

You won’t see ‘Establish an English parliament’ in this list because it appears under the heading of ‘Devolution and local government’ rather than that of ‘Parliament’. In this list, an EP appears third (although I assume these suggestions are listed ‘in no particular order’, as the reality-TV shows say) after ‘A stronger Parliament for Wales’ and ‘More power to regional government’ [in England, you understand]. The way these things are presented creates the impression of a smorgasbord of tasty options that could be mixed and matched according to individual preference, without thinking through their implications and the cross-overs between them. In particular, what would be the implications for England of a Welsh assembly or parliament with powers to enact primary legislation? And what sort of changes to the constitution and structure of the UK – and to the governance of its other nations – would the creation of an English parliament make necessary; in particular, how would the role and responsibilities of the UK parliament need to be modified?

In part, this pick-and-mix character of Power 2010’s options for reform is the product of the way it has been put together: out of a total of around 4,000 random suggestions from the general public, including mine, which was for an English parliament (surprise, surprise). But what is of concern to me is the UK-level process that Power 2010 is proposing in order to whittle the suggestions down to a short list of the five most urgently needed reforms, which prospective parliamentary candidates will be asked to commit to at the election:

“All of the ideas submitted are being looked at as we speak. They will be fed into a representative assembly of 200 citizens from across the nations and regions of the UK – people of all backgrounds and political persuasions.

“The assembly will meet in London in the new year to distil the ideas into a manageable shortlist for the public to vote on, weeding out irrelevant and weakly supported proposals.

“It’s then up to, you, the British public to choose the 5 reforms our democracy most desperately needs in a nationwide vote”.

I have already commented on the Power 2010 website (under my David Rickard pseudonym) about this use of the odious ‘nations and regions’ phrase and all that it implies. My main issue is that a UK-wide ‘representative assembly’, followed by a UK-wide public vote, is not really qualified to come up with constitutional recommendations for England, such as an English parliament. On the other hand, it is not justified in excluding an EP, either. Basically, it can’t make, pass or reject proposals about the governance of England, because only an English citizens’ convention and referendum is qualified to do that. Anything else is just replicating the West Lothian Question, if anything in an aggravated form: Scottish, Welsh and Northern Irish representatives laying down England’s constitutional future.

By contrast, I feel sure that Power 2010’s proposed 200-strong citizens’ assembly will not take it upon itself to make recommendations about the ongoing process of transferring ever greater powers and sovereignty to the devolved administrations of Scotland and Wales. Indeed, on Monday (St. Andrew’s Day), to coincide with the SNP’s launch of its ‘Your Scotland, Your Voice’ white paper on the options for the governance of Scotland to be included in a possible referendum, the same Power 2010 website published a contribution from Canon Kenyon Wright – one of the leading architects of the 1989 Scottish Claim of Right – outlining the ongoing work in Scotland to establish a written constitution for Scotland and the UK, and to reform the Scottish parliament. This work is going on entirely independently, as it were, of Power 2010; and there’s no suggestion from the Power 2010 team that it should be integrated with the broader UK-wide movement for constitutional reform that it is trying to steer. Nevertheless, Canon Wright himself is of the opinion that the work of the Constitutional Commission in Scotland, of which he is the honorary chair, can help to inform and drive the process of overhauling the decaying and defunct UK constitution and political system.

My question is this: if the ongoing progress towards full Scottish self-government, founded on the sovereignty of the Scottish people, is truly consistent with the aim of arriving at a “written constitution which creates a truly constitutional monarchy, and sets standards and principles which are above the common law, and redefine the sharing of power [and which] would be the basis for a very different and radically reformed Union” (in Kenyon Wright’s words), then why does the Scottish Constitutional Commission not make common cause with Power 2010 and other movements that are campaigning for radical UK constitutional reform?

The answer, I believe, is that Canon Wright’s movement is not primarily concerned with UK-constitutional reform at all: it is a Scottish-driven, Scotland-centred process focused on the Scottish national interest, which – in addition to the principle of popular sovereignty – was the other key pledge that the signatories of the Scottish Claim of Right committed themselves to: “We, gathered as the Scottish Constitutional Convention, do hereby acknowledge the sovereign right of the Scottish people to determine the form of Government best suited to their needs, and do hereby declare and pledge that in all our actions and deliberations their interests shall be paramount”.

Now, there’s nothing wrong with a movement for Scottish self-rule putting the Scottish national interest first: that’s only what you’d expect. However, what I object to is the pretence that this is consistent with a joined-up approach to comprehensive reform of the UK constitution carried out in the interests of all its nations and not just one of them. The Scottish Constitutional Commission is basically out to procure a form of government that is both genuinely autonomous and in the Scottish interest, something which Canon Wright elsewhere terms ‘Secure Autonomy’ – a position similar to the third of four possible options presented in the SNP-government’s white paper: a sort of independence within the Union, with Scotland managing virtually all of its own affairs (including taxation) apart from things like defence and foreign affairs. In other words, this is having the cake of independence and eating the cake of security within the Union. Quite what the impact of these new constitutional arrangements would be on the remainder of the Union – if, indeed, anything remained of the Union at this point – is not spelt out by the Canon:

  • “The powers of the autonomous Scotland would certainly include constitutional matters, and full fiscal autonomy, though much more work needs to be done both on powers and on the implications for the Union.
  • “Links with a reformed Union, probably of a neo-federal nature, would be retained”.

Well, yes, a lot more work does need to be done on the implications for the Union. But that’s not Canon Wright’s concern. Scotland will get it wants, and the rest of the Union will just have to accommodate itself to Scotland’s wishes. As the Canon puts it: “Much can and must be negotiated, but sovereignty is non-negotiable”.

That’s all well and good; but this is not constitutional reform carried out in a way that shows much care either for the complex fabric and history of the UK’s unwritten constitution, nor much concern about the damaging impact on other parts of the Union of piecemeal reform to individual pieces of the jigsaw, motivated by partisan interests, that then loses sight of the bigger picture. This exemplifies the cavalier and short-sighted approach to constitutional reform that has characterised New Labour, and in particular the asymmetric devolution settlement designed to see off the nationalist threat in Labour’s Celtic heartlands without any thought for its impact on England. And I see a danger of more of the same being perpetrated through the Power 2010 initiative: the UK-wide representative assembly and vote will not impinge on the evolving devolution / independence processes in Scotland and Wales; but it will make decisions that affect every aspect of English governance by virtue of the fact that the UK parliament has the ultimate sovereignty over all English affairs. Will UK-parliamentary sovereignty simply be replaced by the sovereignty of the British, not English, people in matters of English governance?

I don’t see anybody in the Power 2010 movement rushing to acknowledge the principle of English popular sovereignty, in parallel to the principle of Scottish popular sovereignty of which Canon Wright is such an eloquent exponent. The reason why they do not embrace such a principle is that it would undermine the Power 2010 movement’s assumption that it can serve as the unified vehicle for a ‘national-British’ popular sovereignty and an integrated reform of the whole UK political system – or, as it puts it, “you, the British public [choosing] the 5 reforms our democracy most desperately needs in a nationwide vote”. So it’s not ‘we the English people’ deciding on the forms of governance best suited to our needs, but ‘we the British public’ once again making decisions on England’s behalf. The choice of the word ‘public’ here makes me think that my earlier comparison of Power 2010’s approach with the process of picking TV talent-show winners through a ‘public vote’ was not altogether misplaced. This is like a talent show of original reform ideas, in which the winners are those that are most ‘popular’ with the British public. But this sort of popularity does not necessarily correspond to a genuine exercise of popular sovereignty by and on behalf of the people (the English) who will be most affected by the decisions; nor does it automatically equate to real merit, as we know only too well from the mediocrity of so many talent-show winners.

So what I fear we will get from Power 2010 is a campaign for UK-wide constitutional reform that is meant to be adequate for England and yet will foster a piecemeal approach that allows Scotland and Wales to continue on their own paths to greater autonomy without considering the coherence of the Union as a whole or the rights of the English people to also exercise their sovereignty. Instead of rushing to come up with five glittering, vote-winning competition ‘finalists’ ahead of the general election, what is needed is a much more joined-up, deliberative approach that genuinely seeks to reconcile the currently opposing national interests and aspirations that otherwise risk breaking the Union apart altogether. If the English, Scots, Welsh and Northern Irish people that aspire both to greater national autonomy, and to a continuing and revitalised Union inspired by common principles of democracy, solidarity and liberty, are unable to bring together their different national projects and perspectives, then there is no hope for the Union. A sustainable United Kingdom cannot be based on a multi-track, multi-system set-up where the different nations have different degrees of independence from the centre; and where England is governed as the UK, in the interests of the other UK nations, by UK-wide structures that ignore the will of the English people.

For these same reasons, there’s simply no point coming up with a list of the top-five options for constitutional reform if these are not linked in a logical way that sets out a coherent path towards real change. Certain pre-conditions need to be laid out and satisfied in order for the reform process to be genuine and to stand a chance of long-term success. In brief, here is what I would have as such a list of the five most important principles and objectives, without which the whole exercise lacks coherence:

  1. Formal recognition of the fundamental human right of national communities to determine their own form of government (popular sovereignty), and to decide whether they wish to constitute a national community or not
  2. On this basis, a formal process to determine which actually are the national communities of the United Kingdom, including, for instance, a referendum in Cornwall to decide whether Cornwall should be considered as a nation or not; and an even more contentious process for the Northern Irish to decide whether they regard the Province as a nation in its own right. If the people of Ulster chose not to become a nation, the Province could probably be considered as a self-governing British region, which would not be very different in practical terms from being a self-governing British nation
  3. Following this, referendums in each of the UK’s nations about membership of the EU. Based on the possibly divergent results (e.g. England voting ‘no’ and the other nations voting to remain in the EU), recognition that the UK’s nations may need to have separate responsibility for their international relations. The EU question needs to be resolved first, as it sets the parameters for the amount of genuine sovereignty each nation can have over its own affairs
  4. A genuinely multi-nation, cross-UK consultative and deliberative process to establish the core principles of a new written constitution for a new UK state. Creating written constitutions tends to arise when new nations and states are being established; and the process of constitutional reform in the UK should be no different: any written constitution for the UK must set out details regarding the relationships between the UK’s autonomous nations, and between each nation and the UK state
  5. A series of referendums in each of the UK’s nations to decide on the answer to two questions: a) Do you accept the core principles of the proposed new constitution?, and b) Do you wish those principles to apply to a new (con)federal UK or separately to your own nation as an independent state? Such a combination of options allows for a unified constitutional-reform process for all the UK’s nations as well as keeping open the possibility that some or all of them may seek to go their own way, albeit on the basis of common principles worked out in collaboration with their fellow-British nations.

These are the type of fundamental question that any meaningful process of constitutional reform for the UK must deal with if it is to do justice to the divergent and competing interests of the UK’s nations. The alternative is simply to carry on with the same fundamental identity and structure of the British state as it is now, requiring any idea of English popular sovereignty to be suppressed. But this is neither just nor sustainable in the long run, particularly if the other UK nations are allowed to pursue their own destinies and preserve their influence over England via the Union out of increasingly self-interested motives.

Salmond’s insistence on participating in a leaders’ debate throws the nationalist cat amongst the British pigeons

A truly comical row has broken out over SNP leader Alex Salmond’s insistence that he should participate in any debate between the party leaders broadcast in Scotland ahead of the next general election. The three main parties are insisting that as Salmond isn’t even standing for parliament – and therefore, by definition, is not a candidate for PM – he has no business taking part in the debate. By contrast, the SNP argues that it is entitled by law to equal air time to the other parties and that, as the party leading the opinion polls and the government in Scotland, the SNP should be represented by its leader in the broadcasts. Otherwise, according to SNP Finance Minister John Swinney, “it deprives the voters in Scotland of hearing the breadth of political choice that quite clearly exists here in Scotland about the input of Scotland into the UK General Election”.

On the one hand, the national-UK parties are right – but not in the way intended – when they say, as did Shadow Scottish Secretary David Mundell quoted in the BBC article linked above, that it is “not appropriate for Mr Salmond to take part in a debate about who should be the prime minister of Britain”. But this is only true in the case of one of the three main meanings of the word ‘Britain’ in contemporary political discourse: when it means ‘England’. It would indeed be entirely inappropriate for Alex Salmond to debate matters such as education, health, justice, communities, housing, planning, the environment, etc. The other parties want to con English voters into thinking that their policies in such areas relate to an entity known as ‘Britain’, whereas in fact they relate almost exclusively to England alone. If Salmond took part, he would continually be pointing out that he had nothing to say on these matters, as they had nothing to do with Scotland. And the parties want to prevent the electorate from being aware of this fact as much as possible. So yes, ‘it is not appropriate for Mr Salmond to take part in a debate about who should be the prime minister of England‘.

With respect to the two other meanings of ‘Britain’, however, it is entirely appropriate for Salmond to take part. Indeed, John Swinney’s argument is quite compelling: Scottish people need to be informed about the specifics of their input into the election. In other words, they need to be aware that they should not base their votes on the parties’ spuriously ‘British’ policies on devolved matters but only on UK-wide matters that do genuinely affect them, such as defence, foreign policy, the EU, taxation and the amount of money that the Scottish government will have to spend on devolved services. This is ‘Britain’ in the sense of reserved UK-government matters, and ‘Britain’ in the sense of the devolved nations as affected by UK-government policies. In these senses, David Mundell’s statement, referred to above, is quite preposterous: of course, it is appropriate for Mr Salmond to take part in a debate about who should be prime minister of Britain. That is if the meaning of ‘Britain’ is correctly applied to mean both a state of which Scotland is a part, and the devolved-governmental parts of a territory named Britain of which Scotland is one.

What this argument neatly illustrates is the absurdities occasioned by the UK-national parties’ pretence that the UK government, the general election and their policies are a completely unitary affair: one set of policies applying in a homogeneous manner across the whole of Britain. What’s inappropriate isn’t so much Salmond participating in these debates as the very fact that the general election is two elections rolled into one: one for England and one for the UK. What’s inappropriate is the fact that voters in Scotland, Wales and Northern Ireland can determine the composition of a parliament that makes laws for England only. And what’s inappropriate is the fact that the parties actually seek to make electoral gain from that fact by encouraging voters in the devolved nations to vote on English policies by calling them ‘British’. And that they seek to keep English voters in a state of ignorance about which policies apply to the whole of the UK and which policies are meant for England only.

Clearly, the only way to structure these debates fairly would be to have one or more debates devoted to UK-wide policies, in which – at the very least – the leaders of all parties with representation at Westminster would be invited to take part. And then you could have one or more additional debates devoted purely to English matters, in which only the three main party leaders would participate.

As the leader of a party in the UK parliament, it is of course right that Alex Salmond should contribute to a debate on who should be the next UK prime minister. But it is not right that he takes part in a debate on English matters.