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.

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!

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.

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.

Comment about John Major’s speech from the IfG blog

Following the censorship of a comment of mine about Englishness on the Labour Hame website, here is another comment that’s been stuck in the limbo of ‘awaiting moderation’ for several days. It refers to an article on the Institute for Government website discussing John Major’s recent contribution to the Scottish devolution max versus independence debate. I expect the comment will be published in due course; but I’ve just got fed up waiting, so I thought I’d put it on the record here.

 

Major’s proposals on extending devolution to Scotland are unworkable on a number of levels, as I argue elsewhere. From the Scottish perspective, this is mainly because Alex Salmond has a mandate to consult the Scottish people on independence and to choose the options that will be on offer, which will probably include devolution max anyway.

Politically, it would be absolutely bonkers for David Cameron to organise a referendum of the sort Major advocates. If he lost, which would be a distinct possibility, he’d throw the UK establishment into an even greater disarray and crisis of legitimacy than it is already having to contend with in the shape of the Hackgate scandal, following on from the expenses furore. And even if he won, this would be a pyrrhic victory, as Salmond would just go ahead with his own referendum anyway, for which he has a democratic mandate, as I’ve said.

And then Major’s solution does absolutely nothing to address the West Lothian and English Questions. If anything, it only aggravates these issues in that the Scots have the maximum degree of self-government without independence while the English have . . . nothing, and continue to be governed as the UK by a parliament in which Scots (albeit fewer in number under Major’s proposals), Welsh and N. Irish MPs are still allowed to vote on England-only matters even though the Barnett Formula would probably have been abolished.

In reality, the full logic of Major’s position points towards federalism. There’d be no justification whatsoever for non-English MPs voting on English matters, and you might as well just make the Commons an English parliament, and grant equal powers and responsibilities to each of the national parliaments / assemblies. All of which would then nullify Major’s suggestion about non-elected MPs, as the Commons would no longer even be a UK parliament – or, putting it another way, this second suggestion of Major’s is predicated on the Commons remaining a UK parliament and the English Question not being addressed.

Major’s suggestion about non-elected parliamentarians does, however, make sense for the Lords, which in the scenario I’ve just mapped out would naturally evolve into the UK-federal parliament, dealing with those matters that remained the responsibility of the government / parliament for the whole UK. Indeed, it’s far more appropriate for non-elected experts to sit in the Upper House, which fits with its natural role as a revising and deliberative chamber.

And the seats for non-elected members (whether Lords or MPs) should be allocated in proportion to vote share, not seat share. It makes much more sense for these non-elected seats to be distributed in accordance with share of the vote (not seats) even if Major’s proposals were to be adopted for the Commons as presently constituted, as this would help rectify the gross distortions of First Past the Post and make the Commons more not less representative of the electorate.

UK-government referendum on Scottish independence: bring it on, Mr Cameron!

Given the almighty mess he is in over the ‘Hackgate’ scandal, and the all-too cosy relationship he has cultivated with Rupert Murdoch and his News International organisation, I can’t think of anything more bonkers that David Cameron could do than force an early referendum on Scottish independence, as he is reported to be considering.

The risks in so doing would be huge, and the chances are that the Scottish people would give Mr Cameron a bloody nose and vote for independence, especially if the referendum were billed as a ‘consultative’ poll: a vote on the principle of separation, with the fine details to be decided in subsequent negotiations between the UK and Scottish governments, while the eventual deal would be submitted for the Scottish people’s endorsement in a second referendum.

Mr Cameron might be tempted to call Mr Salmond’s bluff in this way in order to make a stand for the legitimacy and authority of UK governance at a time when these are being called into question as never before. This is almost a classic case of scapegoating: projecting the threat to the established order onto an easy external target and scoring a quick victory over it, rather than addressing the root causes of the body politic’s internal malaise. If Cameron lost his referendum, then not only the moral authority but the very existence of the present UK system of governance would be in doubt. This is because Scottish independence effectively brings Great Britain (the product of the 1707 Acts of Union) to an end, and opens up the possibility of fundamentally redesigning the UK or scrapping it altogether. Mr Cameron would then have doubly undermined the British establishment’s claims to legitimacy: firstly, by allowing a corrupt, venal and ruthlessly neo-liberal media organisation undue influence over policy and government appointments (a failing his government shares with those of his predecessors); and secondly, by putting the whole UK state on trial in Scotland and being found wanting.

Even if Cameron won his referendum, this would be only a pyrrhic victory because Alex Salmond would still go ahead and hold his own referendum asking a question or questions of his own choosing, and at a time that suited him. Salmond would quite justifiably be able to claim that the SNP had been elected into government in Scotland on the promise that it, not the UK government, would organise a referendum towards the end of the Scottish government’s present term in office. If, for example, Cameron’s referendum offered a choice between full independence – however defined – and the moderately beefed-up form of devolution that is presently going through Parliament in the guise of the Scotland Bill (i.e. essentially the proposals of the Calman Commission), Salmond could design his referendum around a more subtle, fine-grained set of options, ranging from Calman (i.e. the status quo) via devolution max to independence lite (full sovereignty for Scotland while retaining a social and economic union with the rest of the UK).

Hence, by organising his own referendum, Cameron would also be calling the UK government into disrepute, potentially heaping even further humiliation on itself. The referendum would be a redundant, vacuous exercise that would only have to be re-done further down the line, making the government itself look undignified and desperate – which I suppose it is.

Cameron’s premature referendum would therefore solve none of the present crisis of legitimacy at Westminster while potentially making it a whole lot worse. On top of which, News International’s final act of revenge against the British establishment it despises could be to use the Scottish Sun newspaper to whip up resentment in Scotland towards the arrogance expressed in Cameron’s referendum. After all, the Murdoch paper has already supported the SNP in last May’s elections to the Scottish parliament.

So I would just like to say one last thing with regard to Cameron’s bluff and bluster about an independence referendum. I’d like to throw back in Cameron’s face the words with which he taunted the new prime minister Gordon Brown at the Conservative Party conference in 2007 and dared him to hold a general election: ‘bring it on!’. Or is he going to bottle it, as did Brown?

So yes, bring it on, Mr Cameron!

John Major’s devolution endgame points towards full federalism

Former prime minister Sir John Major has made a suggestion about how to mitigate the risk of Scottish independence. This is basically that Scotland should be granted ‘devolution max’: the maximum degree of devolution that stops short of actual independence. In practice, this would mean devolving responsibility for everything except “foreign policy, defence and management of the economy”. In addition, the Scottish block grant would be abolished and would be replaced by fiscal autonomy: the Scottish government would have to raise in taxes and borrowing everything it required to cover its expenses. And the number of Scottish MPs at Westminster would also be reduced.

The rationale for this suggestion is that the ‘separatist’ case in Scotland “thrives on discontent with the status quo”, and that ‘devo max’ would remove that discontent because it would provide substantially all of the advantages of independence without any of the potential disadvantages, such as “the loss of funding and potential knock-on effect on free prescriptions and university tuition”. There’s a bit of an inconsistency here, surely: if the block grant were withdrawn and Scotland had to fund its generous public spending from its own taxes, as would happen under devo max, there’d be just as much of a risk that free prescriptions and university tuition for all would have to end.

However, ultimately, Major’s position is that if devolution is applied to its full extent, the Scots will finally be satisfied and content to remain in the Union. But we’ve heard that argument before: it was exactly what was said by the proponents of devolution back in 1998, who said that devolution would see off the Scottish-nationalist ‘threat’ once and for all. Even assuming that the Scottish people endorsed devo max in a referendum, what’s to say that independence wouldn’t be back on the table in ten years’ time, and the same arguments in favour of it that are made now would be made then: that devo max had proven a success and given the Scots confidence that they could run their own affairs, and that independence was just the next logical step forward?

In any case, the Scots probably will be offered the choice of devo max as a / the alternative to independence in the referendum that the SNP government plans to hold towards the end of its term in office, probably in 2015. So in a sense, Major’s contribution adds nothing, other than reinforcing the impression that the unionist establishment is in denial about the full extent of the Scottish people’s aspirations towards self-rule and continues to think that so long as they’re offered the carrot of ever greater devolution, they won’t want to take it to its logical conclusion: independence.

Major’s point of view is also blind to English dissatisfaction with the Union and with the present arrangements for England’s governance. For Major, English discontent comes down to exasperation with “Scottish ambition [that] is fraying English tolerance. This is a tie that will snap – unless the issue is resolved”. To be honest, irritation of this sort might be the mood in the English High Tory circles in which Major moves; but as far as a significant and growing minority of English people are concerned (36% according to the BBC poll published last week), they would be all-too happy for Scotland, and indeed England, to be independent of each other.

Major’s devolution endgame might well – temporarily – appease Scottish ambitions for independence, but what about English aspirations towards self-government? What is Major in fact proposing for England? The answer is nothing, at least not directly, and in this he is at least being consistent with devolution as it has been asymmetrically applied to date – but just how this would remedy what Major calls “the present quasi-federalist settlement with Scotland [which] is unsustainable”, I don’t know.

In fact, Major’s proposals are completely untenable with regard to England. What would they involve? Abolition of the Scottish block grant, which would presumably mean replacing the Barnett Formula with a needs-based solution for England, Wales and Northern Ireland. And yet, Scottish MPs (though fewer in number) would still be able to sit in the House of Commons and, presumably, vote on English legislation, as would their Welsh and Northern Irish counterparts. Why? What possible justification could there be for that in the absence of Barnett, which is the only factor that makes those MPs’ present participation in decisions on English matters in any way legitimate, because of the knock-on consequences for expenditure in their own countries?

In reality, once you take away the Barnett Formula, and even more so when you grant fiscal autonomy to Scotland, you might as well just have done with it and make the House of Commons an English parliament, and grant fiscal autonomy to the Welsh and Northern Irish to boot. Otherwise, the participation of non-English MPs in English matters hangs on the slenderest thread of the indirect consequences that English bills might have for the UK’s other countries, and of setting the needs-based funding formula for Wales and Northern Ireland. So slender would that thread be, in fact, that this smacks of desperately coming up with false pretexts for preserving the Commons as the / a UK parliament come what may.

If, on the other hand, you draw the logical conclusion from devo max and extend it all the UK’s nations, then the House of Commons becomes an English parliament without any further ado, thereby alleviating much, if not substantially all, of English people’s dissatisfaction with the present devolution settlement, and making that settlement genuinely sustainable and federalist, rather than quasi-federalist and unsustainable as Major himself calls it.

This is the logical conclusion to be drawn from Sir John’s premises. Asymmetrical, incomplete devolution is not capable of satisfying the aspirations towards self-government of either the Scots or the English. Completing the devolution process for the Scots only would be even less so. But if devo max is extended to the whole UK, making it a genuinely federal state, then this might, just might, save the Union – although, as I argued in my last post, I think we may already have passed the federal moment, and only full independence with or without confederalism will now work.

But will Major and unionist establishmentarians like him perceive the federalist logic of their own position in time for it to be of any practical consequence?

Is now the confederal moment?

In my previous post, I commented on the finding in this week’s ComRes opinion poll of 864 English adults that 36% of them felt that: “Irrespective of the outcome of the Scottish referendum . . . England should become a fully independent country with its own government, separate from the rest of the United Kingdom”. I observed that there appeared to be a close correlation between this 36% and the 36% of respondents who said they supported independence for Scotland; i.e. that people felt that Scottish independence would result in English independence. I went on to argue that this view was mistaken and that it was by no means certain that the people of England would be offered any sort of choice about how they wish to be governed in the wake of Scottish independence, but that England would probably just be incorporated into a new United Kingdom (of England, Wales and Northern Ireland) that would inherit the constitutional status and legal personality of the existing UK.

Although it might be mistaken in terms of political realities, I think this popular equation of Scottish independence with English independence does reveal a hidden, subconscious truth: that the Union at its core is the union between Scotland and England – the Union of 1707. English people feel this in their gut: if Scotland breaks away from the Union, this means that England’s situation reverts to what it was prior to the 1707 Union. In other words, England would again stand alone to govern its own affairs and the Westminster parliament would become an English parliament once more.

This is not a logical thing; nor, as I say, are English people’s expectations that they should be allowed to actually choose whether to be independent or remain in some sort of continuing union with Wales and Northern Ireland likely to be fulfilled. But it’s the truth, and one that the British establishment is going to do its utmost to prevent from emerging from the collective English subconscious into national self-awareness. The establishment’s game plan will be to present Scottish independence as something that would seriously weaken the UK (loss of international prestige, including perhaps the UK’s seat in the UN Security Council; ‘stronger together’; blah blah) but not something that would bring the UK’s existence as such to an end. Scottish independence would constitute ‘secession’ from a UK that would essentially continue unchanged – albeit damaged – once Scotland leaves.

But this strategy on the part of the unionists could prove futile if the emerging English-national consciousness becomes strong enough and the English people en masse demand the right to choose their constitutional and national future. As nationalists, we should do all we can to encourage the development of this national self-awareness, and try to translate what the ComRes poll canvassed as support for a “referendum [to] be held in the rest of the United Kingdom before Scotland is allowed to become an independent country” (45% in favour) into the insistence that the English have a referendum on their own governance – whether that means being part of a new UK, an English parliament within a federal state or full independence. So, for example, whenever the subject of Scottish independence comes up in conversation, we should say we think England should also have a referendum on her independence or at least her own parliament. This way, up and down the land, more and more people will be discussing as a realistic and reasonable option what until recently would have seemed outlandish to most people: that England could be an independent country.

But what would become of Wales and Northern Ireland if Scotland opted for independence and then the English people ratified in a referendum the independence for their own country that this implied? Well, just as England has the right to choose between independence or some sort of continuing union with Wales and Northern Ireland, so do those two countries. In Northern Ireland, of course, an independence referendum might include the option of a united Ireland, which would probably be rejected. But is full independence really a practical or desirable option for either Wales or Northern Ireland?

This is where I think confederalism comes in as a fourth option alongside a new UK without Scotland, a federal UK (with or without Scotland) or independence for all of the UK’s nations. The difference between confederalism and federalism is that, in the former, each nation involved is fully sovereign and independent but chooses to transfer responsibility in certain areas such as defence and macro-economics to a common confederal government. The commitment to participating in shared governance in those areas could be withdrawn at any time, as each nation is fully independent and could choose to go it alone. By contrast, in a federal UK (with or without Scotland), it is the UK parliament and government that would retain ultimate sovereignty, even if the powers of each constituent nation in policy areas of the sort that are presently devolved to Scotland, Wales and Northern Ireland were protected by a written constitution. I.e. federalism would differ from the present devolution settlement in that the UK government couldn’t arbitrarily claw back the devolved powers if it saw fit (e.g. in some sort of ‘national emergency’) and, more importantly, self-government would be extended to England.

Subject to this caveat, the present devolution settlement is in effect a form of asymmetric federalism: semi-autonomy and semi-separation of Scotland, Wales and Northern Ireland from the British centre, but none for England, which continues to be governed as the UK. It looks likely that the choice that will actually be offered to the Scots in their independence referendum will be between an extension of devolution (‘devo max’) and a form of independence in which certain links and areas of common governance with the residual UK would be retained (‘independence lite’). These continuing links with the remaining UK are rather like those of independent states within a confederation, except they would apply only to Scotland: a joint ‘head of state’ (the Queen); common defence and security; shared foreign embassies; macro-economics (i.e. the same currency, with policy in areas such as interest rates continuing to be set by the Bank of England); and social union, i.e. common employment, benefit and residency rights.

The distinction between devo max and independence lite is ultimately about national sovereignty: the actual degree of autonomy for Scotland would be similar under both options, but with independence lite, Scotland would have sovereignty rather than the UK state as under devo max. So the confederal option I’m proposing is essentially independence lite for all the UK’s nations, with a confederal government to look after areas of shared interest rather than the present sovereign UK state. This way, the right of the English people to choose independence if they wish could be fulfilled, while the interests of Wales and Northern Ireland would be protected in that they could also be independent but as part of a continuing, confederal, social / economic / defence union with the other countries of the former UK.

I think we should seriously start pushing for the confederal option now. My feeling is that the Scots simply aren’t interested in being bound into some sort of permanent constitutional, federal union with England, Wales and Northern Ireland, which would fail to satisfy their aspirations to full popular sovereignty and self-rule. It’s already too late to ‘save’ the UK – if indeed it’s worth saving – via the federal route, and the smug British establishment has already missed that boat. Will it have the wit and imagination to put the confederal option on the table – perhaps in a second referendum to ratify Scottish independence, but one in which all the UK’s nations could choose independence lite, not just Scotland?

I think many in Scotland would welcome confederation, because it means full independence but continuing close links with England and the UK’s other nations out of friendship and mutual interest. If unionists want to save some sort of continuing union, this is their most realistic hope. But never mind the unionists: if Scotland has a right to independence lite, so has England – and we should demand it!

36% of English people support independence – for England

A ComRes opinion poll commissioned by BBC Radio 4, published yesterday, found that 36% of the English-only people questioned felt that “England should become a fully independent country with its own government, separate from the rest of the United Kingdom”. By any account, this is an extraordinary finding. However, if all you had heard about the poll was what was said about it on last night’s Newsnight programme dedicated to discussing Scottish independence, and its impact on England and Britishness, you wouldn’t know about this particular finding, as it was not referred to.

This appears to be another, all-too typical, instance of the establishment suppressing discussion of the English Question: the question of how England should be governed. For all that the programme represented a refreshing attempt to deal with the impact Scottish independence might have on the rest of the Union, and to consider an emerging sense of Englishness and English nationalism, it glossed over what for me is the most important issue: England’s democratic deficit and how this should be remedied, irrespective of Scotland gaining independence or not. The programme did not dwell on this issue or treat it with any degree of seriousness, nor did it link it to the issue of an emerging English consciousness, to which it is central: one of the main purposes of an English parliament or English independence being that they would give England a national voice and institutions, around which a confident English identity could coalesce.

How significant is the 36% support for English independence, though? Another finding of the ComRes poll that was reported is that 36% of English people favour independence for Scotland (versus 48% who oppose it). This is also, incidentally, a striking finding. The programme did acknowledge that this represented a significant increase on the last time support for Scottish independence in England was canvassed, when it stood at 16%. However, one suspects that there is a close correlation between the 36% of English people who favour English independence and the 36% that support Scottish independence. In other words, people must be assuming that English independence would result from Scottish independence; and in that, I can’t help feeling that they’re sadly mistaken.

This was another thing that the programme didn’t explore (well, I guess you can’t cover every aspect of the question): what sort of residual United Kingdom, if any, would be the by-product of Scottish independence? My own feeling is that if the Scots voted for independence in a referendum, the inhabitants of the rest of the UK would not be given the opportunity to decide in a referendum how they wish to be governed (although 45% said people in the rest of the UK should have a say in whether Scotland became independent, while 47% thought they shouldn’t).

Specifically, I think the English people would not be given the chance to choose whether to have a parliament of their own, still less independence. Instead, the UK Parliament, which is presently sovereign in such matters, would simply decide what sort of state the residual United Kingdom would be. Overriding any consideration of whether the United Kingdom as such should be considered dissolved as a consequence of Scotland separating from the Union (because this breaks up ‘Great Britain’, and hence dissolves the union of Great Britain with Northern Ireland, which is what the UK is), Parliament would simply decree that a new United Kingdom (e.g. a ‘United Kingdom of England, Wales and Northern Ireland’) should inherit the legal personality and constitution of the old UK. And Parliament would then carry on governing England as the UK, as if nothing had changed – except it would be less likely, but still not impossible, for a UK government to be formed based on a majority of UK MPs without enjoying a majority of English MPs.

The programme did not nail down this issue, which is central to the whole debate: would Scottish independence be a separation from a United Kingdom that would carry on pretty much unchanged as a consequence (in which case, it could be considered to be a purely Scottish matter, although the Welsh and Northern Irish might wish to dissent from that view if it meant they were dragged into what they perceived as an even more England-dominated UK); or would it involve breaking up the UK altogether by virtue of dissolving the Union of 1707 – in which case the other party to that Union (England) should have a say in its own constitutional and political future.

These are two quite distinct questions, and the ambiguity in the Newsnight discussions in part resulted from a failure to make a distinction between them. And that further reflects the establishment’s reluctance to explore any avenue that might lead to something such as a distinct English nation deciding how it wishes to govern itself. Because, surely, that’s the logical outcome from the Scots opting for independence: that each of the UK’s remaining nations should then be allowed to choose whether the UK itself remains, or whether they follow Scotland’s example and decide for independence.

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.