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 Independence for Scotland would require the Acts of Union between England and Scotland of 1707 to be repealed, which means the end of the United Kingdom – or technically, the end of the ‘Kingdom of Great Britain’ resulting from the 1707 Acts, and hence the end of the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

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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.

The People’s Pledge: a demand for popular sovereignty

Imagine if May’s referendum on the Alternative Vote were a referendum on the UK’s membership of the EU. The media would be completely filled with the story, and we’d see the claims and counter-claims of the two sides in the argument being fired off in quick succession like a never-ending tennis rally. Compare that to the apathetic drip-drop of coverage the AV referendum has thus far proved capable of generating, and it’s easy to see which is the more important issue.

The EU matters more to people – it raises far more heated emotions – and it’s a more important matter in itself, from a constitutional point of view. Those two statements are intimately connected: the extent of people power – whether and to what degree we have it – matters profoundly to the citizens of a democracy, and it’s also the core constitutional issue. The fact that the EU gets people’s hackles up so much is an indication of the people’s unerring sense of where the real issues affecting their right of self-determination lie. And the fact that a referendum on the system used to elect our hallowed Parliament is being greeted with such indifference is a damning indictment of the increasing irrelevance and illegitimacy of that Parliament and its supposed sovereignty.

The UK parliament has transferred sovereignty – our sovereignty: the people’s sovereignty – in so many areas to the EU, and we the people have not been consulted. In fact, the acronym ‘EU’ has become so familiar that we forget that we’ve never been consulted on our very membership of the EU: the European Union. People who oppose a referendum on our membership of that body point to the fact that ‘we’ were consulted on that topic in 1975. However, apart from the fact that you’d have to be born in or before 1957 to have voted in that referendum, it also wasn’t about membership of the European Union at all but about whether the UK should remain in the European Community (or the European Economic Community (EEC), as it was known then).

This is not an issue of mere nomenclature. The European Union is an entirely different legal entity that didn’t exist until 1993, when the Maastricht Treaty was ratified by all EU member states. It’s this ‘Treaty on European Union’ that gave legal effect to the constitutional provisions and institutions through which most of our laws are now made, with the role of individual national parliaments being merely to incorporate EU Directives into their respective legislation. The Maastricht Treaty was in fact an EU constitution avant la lettre (i.e. before the Lisbon Treaty), both in respect of its legal function and of the fact that it actually constituted (set up) the EU. The Treaty on Union sets out: the legal basis for the EU’s powers; its institutions; the relationship between those institutions and sovereign European member states; the core processes of EU governance; the fundamental objectives of the EU (its ‘mission’, defined in one place as that of “creating an ever closer union among the peoples of Europe”); and the rights of EU ‘citizens’. Because EU citizens is what we are, in law, as a result of Maastricht, whether we knew it or not, and whether we chose it or not.

You’d think, wouldn’t you, that an international treaty making the citizens of the UK also citizens of a proto-European super-state would be submitted to those UK citizens for their approval in a referendum? Well, it wasn’t; but it damn well should have been by rights. The trouble is ‘we the British people’ don’t have a constitutional right to have the final say on laws affecting our constitutional status and provisions because we don’t have a constitution: at least not a single codified document setting out the basic rules for how we are to be governed. Instead, we have the principle of ‘parliamentary sovereignty’.

It’s by reference to this principle that we were denied a referendum on Maastricht and on the Lisbon Treaty (the re-hashed EU Constitution), which consolidates the two founding documents of the EU – the Treaty on Union and the Treaty of Rome – into a single constitutional text while making significant revisions that ‘streamline’ the processes of EU governance and enable the scope of the Treaty’s provisions to be extended without requiring a new treaty. Under the doctrine of parliamentary sovereignty, the UK parliament is said to have the constitutional competence – the right and authority – to take all decisions regarding laws affecting all UK citizens. Therefore, according to this view, there was no real need to hold referendums on Maastricht and Lisbon: Parliament was the legitimate authority in the matter.

But the legitimacy of Parliament is seriously questionable if its elected representatives fail to carry out what they promised to voters: in its 2005 election manifesto, Labour promised a referendum on the EU Constitution but did not deliver it in government on the quite spurious basis that the Lisbon Treaty was not the same thing as the Constitution, and that Parliament was the legitimate forum in which this ‘new’ matter of Lisbon should be debated and resolved. Lisbon may well not be the Constitution but it is undeniably a constitution: saying it isn’t stretches semantics beyond all reasonable bounds. And if a government commanding the majority in parliament fails to keep its promise to consult the people on a matter of such fundamental constitutional importance, then its decision to go ahead with Lisbon regardless lacks any democratic legitimacy even if it can still be argued that it has constitutional validity: Parliament had the power to take us into Lisbon but not the right without asking us first.

So we’re living under the sovereignty of a parliament that has lost touch and broken faith with the consent of the people that is meant to be the democratic foundation and justification for its power. In fact, this divorce between parliamentary sovereignty and popular consent is a product of the fact that Parliament has become subservient to the power of the Executive. In reality, we live, as Jack Straw put it, in an ‘executive democracy’ not a parliamentary or constitutional democracy: the real power is vested in the government, and in almost all matters, Parliament has just become pretty much a rubber stamp for executive decisions, with MPs towing their respective party lines. So it was with Lisbon: the government of Gordon Brown decided it would take the UK into the Treaty, and once that decision had been made, there was no way sufficient Labour MPs were going to defy the authority of the PM and the Party to vote it down, even if they’d wanted to do so.

The problem, essentially, is that under the UK’s unwritten constitution, there is no separation between Parliament and the Executive. The Executive is determined by which party or parties can command a majority in Parliament; and the Executive sits in Parliament, controls its agenda and marshals ‘its’ MPs by means of the whipping system to ensure its laws are voted through. If the Executive decides it’s going to ignore the will of the people, so long as it commands a parliamentary majority, it can pretty much do whatever it wants unless the people rise up in revolt against it.

In other words, Parliament refers upwards to the Executive as the driving force and authority for its decisions, and does not sufficiently refer downwards to the people and consult with the people who are going to be affected by its Laws as to their views in the matter. This is what a ‘referendum’ means: a matter that is to be referred to the people. The other word for ‘referendum’, ‘plebiscite’, reflects this more explicitly, as it derives from the Latin ‘plebs’, meaning ‘common people’. So a referendum is an exercise in popular, rather than parliamentary, sovereignty: it’s a concession that, in this particular matter, the will of the people is pre-eminent. That’s why the UK parliament has been so reluctant to let us have UK-wide referendums on any issue, not just the EU, as it risks undermining the supremacy of Parliament: it risks creating a precedent for saying that it is the people who should be the ultimate power in the land (‘democracy’ meaning literally ‘people power’), and that Parliament’s power ought properly to be merely the expression of people power – the institutional means enabling the will of the people to take effect – and not an instance of power that takes it upon itself to take decisions on behalf of the people without heeding what the people actually want.

It could be argued that the 1975 referendum on the European Community and this year’s referendum on the voting system for UK-parliamentary elections do not radically concede the principle of popular sovereignty. The 1975 referendum asked whether people accepted the terms of the UK’s membership of the EEC as renegotiated by the then Labour government. So it was really asking voters to ratify something Parliament had already decided in principle. Similarly, the AV referendum this year offers a choice between only two possible voting systems that Parliament has decided to put to us, rather than being a genuine response to any sort of popular demand for AV, as there is none: yes, people want voting reform and, more fundamentally, they want radical reform of Parliament; but AV is the most minimal variety of electoral reform that Parliament could possibly have come up with, and it leaves the democratic deficiencies of Parliament as outlined above completely intact.

However, the demand for a referendum on the UK’s membership of the EU made by the People’s Pledge campaign is different. This is a cross-party campaign that asks people to commit to not voting for any parliamentary candidate who is not committed to supporting a binding referendum on the EU. The wording of the Pledge is as follows: “I will only vote at the next election for a candidate who publicly promises to support a binding referendum on our EU membership and to vote for it in the House of Commons”. This is a demand for Parliament to bow to the will of the people and let us have a referendum on a matter that Parliament thinks it has already resolved by virtue of its self-ascribed universal sovereignty.

In other words, if Parliament did give in to the popular demand for a referendum on the EU, it would be radically conceding a principle of popular sovereignty. And that’s not just because Parliament would have to accept that something it believed it had already decided could be reversed by popular demand, but because the very subject matter of the referendum is sovereignty itself: who governs us and by what authority. The sovereign Parliament decided the British people should be governed by the EU in many areas of law and policy; but if the people reverse this decision, that makes the will of the people, not Parliament, sovereign in fundamental matters about how we are governed.

So I’ve decided to sign up to the People’s Pledge online. There’s obviously a debate as to whether or not the issue of Britain’s withdrawal from the EU needs to be dealt with before we resolve the English Question. Those who think the EU issue takes priority argue that English self-determination means nothing if most of our laws continue to be made by Brussels: it would just be transferring the limited remaining powers of the UK parliament to an even lesser body. But I don’t think it makes sense to say one comes before the other. The situation is the same whether you’re talking about a referendum on the EU or a referendum on an English parliament: both involve extracting a fundamental concession to the principle of popular sovereignty on the part of the UK parliament.

In fact, eurosceptic but unionist supporters of a referendum on the UK’s EU membership may not realise the extent to which obtaining and winning such a referendum would undermine the standing and authority of the UK parliament whose sovereignty they would wish to uphold against Brussels. English nationalists should support such a referendum because it will ultimately further the cause of an English parliament, whichever way the people of the UK as a whole voted on the EU question. The UK parliament would have been humiliated into acknowledging that, on constitutional matters (those relating to the fundamental rules about how we are governed), the people’s will is sovereign. And once that genie is out of the bottle, then Parliament would eventually have to give in to the ever louder demands for a vote on English governance.

So we should demand a referendum on the EU as much to establish the general principle that it is we the people who should determine the manner in which we are governed as to wrest back the British-national sovereignty that Parliament first misappropriated to itself and then handed over to the EU.

The Liberal-Democrat Accession and the English Parliament

You should always be careful what you wish for and be wary of the law of unintended consequences. Although I will probably be voting Lib Dem this time round – unless my Tory MP astounds me by previously unsuspected support for an English parliament – a Lib-Dem break-through could have far-reaching ramifications for the prospects and nature of any future English parliament.

For a start, as they made clear yesterday, the Lib Dems will make their support for a minority Labour- or Conservative-led government conditional on introducing proportional representation. One imagines this would involve a referendum on changing to the Single Transferable Vote (STV) system for UK-parliamentary elections.

Many supporters of PR see it as a way to mitigate (i.e. ignore) the West Lothian Question. The logic behind this position is simple, though flawed in my view. For example, under STV, if the actual vote on 6 May exactly followed yesterday’s ICM opinion-poll ratings (Con 33%, Lib Dem 30% and Lab 28%), then the Conservatives would be the largest party both in England and the UK as a whole; and in any coalition of the parties to form a government, the UK majority thus constituted would also be consistent with the parties’ shares of seats in England. Therefore, on one level, it would no longer matter if non-English MPs voted on English laws, as the same laws would be passed if only English MPs voted.

On the other hand, the reverse logic could also apply: if the votes of non-English MPs were no longer needed to pass English bills, why let them vote at all? The only real justification for non-English MPs voting on English legislation presently is when there is a link to spending in Scotland, Wales and Northern Ireland via the Barnett Formula. But presumably, the days of that formula itself might well be numbered under a Con-LibDem coalition, as the Lib Dems favour scrapping it and even the Tories talk in their manifesto of greater fiscal autonomy for Scotland.

Indeed, in a proportionally elected House of Commons, the situation of non-English MPs voting on English laws would come to appear blatantly, if not scandalously, anomalous. Under First Past the Post, by contrast, the fact that Labour’s Scottish MPs have occasionally been required to pass the government’s England-only legislation against the will of a majority of English MPs did not on one level seem that outrageous in that the government majority procured in this way was no more disproportionate than the normal majority of English MPs only it would expect to command, as both majorities were merely the product of the absurd FPTP electoral system rather than of the way English people actually voted at the 2005 general election.

In other words, in a situation in which voting majorities in the Commons bear little relation to the way the public actually voted at the election, the misuse of non-English MPs to inflate those majorities even further does not stand out too obviously. By contrast, in a proportionally elected House where the parties’ shares of the seats are meant to reflect the way people voted, and where MPs are meant to be more accountable to their electorates, distorting those shares by allowing MPs not accountable to the people affected by bills to vote on them would be completely inconsistent and unacceptable.

Accordingly, I tend to think that, rather than mitigating the WLQ, PR would render it inoperable. But then if you do not allow non-English MPs to make England’s laws, what arrangements would be made for that little matter of how to govern England? Do you go down the route of an English Grand Committee: English laws debated and voted on by separate sessions of English MPs only? Do you draw the logical conclusion and say that Parliament needs to evolve into an English parliament to deal with English matters, with a separate set of representatives elected from across the UK to deal with reserved matters? Or do you just try to ignore the problem by pretending that England does not exist and that the West Lothian Question simply does not arise, let alone require a solution – the Labour government’s approach?

In this way, by insisting on introducing PR before dealing with the English Question, the Lib Dems might find that question comes and bites them in the bum: they could create a constitutional mess in which the very legitimacy and function of the parliament for which they had finally secured PR was called into question – a British parliament without a valid democratic role and status in most of what it did, i.e. in English matters.

To be fair to the Lib Dems, their manifesto does state that they want to hold a citizens’ convention to help draw up a written constitution, and the English Question would be dealt with as part of this process. But the Lib Dems are not going to be in a position to carry out this commitment in full as part of a coalition government. All they’ve actually said is that they’d make electoral reform a minimal precondition of any deal to support a minority government, not the whole constitutional-reform programme; and neither Labour nor the Tories have any appetite to address the English Question. But as I say, the English Question may impose itself as unavoidable if the Lib Dems do succeed in introducing STV.

There are two possible scenarios that follow on logically from this. Firstly, if the Lib Dems do secure STV (and if, as I argue, this would lead to an urgent need to address the English Question because of the crisis of governance it would bring about), then any English parliament would also be based on STV. Having gone to the trouble and expense of introducing STV, which would require the re-drawing of constituency boundaries and the amalgamation of constituencies into multi-member seats, there is no way the English parliament could then revert to the pre-STV single member-constituency system. Having finally achieved their goal of a proper proportional system, the Lib Dems would never accept an inferior system for England; nor – I think – would the English people.

However – scenario two – what if the British public did not endorse STV in the initial referendum required to adopt it as the system for UK elections? For instance, Gordon Brown favours the Alternative Vote (AV) single-member system, and if the Lib Dems’ referendum were held under a putative Lab-LibDem coalition, it could be a multi-option referendum with AV as one of the systems on offer. Labour could be expected to argue strongly for AV, which is in reality merely a mitigated form of FPTP and would preserve the unfair advantage the present system gives to the party. Who knows, voters might prefer to retain single-member constituencies and the winner-takes-all aspect of the present system, albeit in a slightly fairer form. Under this second scenario, the West Lothian Question could remain in place for much longer, as AV would perpetuate the disproportionality of the present system from which the very ability of Labour to form any kind of government depends and which also disguises the outrageously unfair extra advantage Labour obtains from the WLQ.

In this context, the Lib Dems could find themselves in the unenviable position of propping up an unfairly elected Labour government that exploits its stronger base of support in Scotland and Wales to secure its power in England. Would it not then be both more effective tactically, and give greater moral credibility to their demands for constitutional reform, if the Lib Dems declared now – ahead of 6 May – that they would not exploit the West Lothian Question in the new parliament, even if to do so were the only way in which a coalition of which they were a part could actually form a working majority?

After all, how can the English people believe in the Lib Dems’ advocacy of greater democratic fairness and proportional representation if they are in theory willing to exploit one of the most egregiously unfair and disproportional aspects of the present system simply to have a share in government? If they want England to back them on 6 May and support STV in a referendum, then surely they should back ‘building a fairer Britain’ in the forthcoming parliament, too – including fairness for England.

The article ConservativeHome rejected: To be a party of the Union, the Conservatives must also be a party for England

On the day after the Conservatives published a draft manifesto for the English NHS that failed to mention ‘England’ a single time, I thought it would be fitting to publish an article of mine that was originally accepted for inclusion in the ‘Platform’ section of the ConservativeHome blog back in November of last year. However, they subsequently got cold feet and decided not to publish.

The rejection of the article, coupled with the Conservatives’ refusal to accurately present their English-NHS policies as limited to England, doesn’t make me optimistic that the election campaign will be marked by honesty over English matters. Here’s the article:

It has been said by some – and I would tend to agree – that the biggest threat to the continuation of the Union is likely to come from England, not Scotland. There is a groundswell of feeling and opinion throughout England that our present constitutional and political arrangements have left England in both a democratic and financial deficit; and it is arguable that the wave of disaffection with Parliament and our political system that broke in May and June of this year was primarily an expression of English alienation and disenchantment with the status quo. At the very least, the UK-wide eruption of disgust at MPs’ perceived corruption was more acute in England, which does not have a parliament of its own, thereby exacerbating the feeling that the political class has become unaccountable to the public.

There are now many people in England who secretly or not so secretly wish that the Scots will get their independence referendum and will vote to leave the UK. Indeed, if the English were offered a referendum on independence for England, it would not be surprising if the percentage in favour exceeded the 29% of Scots who reportedly back independence for Scotland at present. Arguably, in any case, all UK citizens should be allowed to participate in any definitive independence referendum for Scotland, as opposed to the SNP’s proposed consultative referendum asking for a mandate for the Scottish government to negotiate an independence settlement with the UK government. This is because Scotland cannot technically vote to ‘leave’ the Union. The effect of a vote in favour of Scottish independence would actually be to dissolve the Union: Great Britain would cease to exist, as this entity is the product of a union between two nations (Wales being subsumed within England at the time); and if one of those nations decides to go, that breaks up the union. In other words, Great Britain is the name of a marriage; and when a divorce arises, there is no more Great Britain – just separate entities known as England (and Wales) and Scotland.

So part of any deal for Scottish independence would have to be a new constitutional settlement for the residual nations of the UK to form, for instance, a new ‘United Kingdom of England, Wales and Northern Ireland’. And it would only be right and proper that the prospective citizens of the new state should be asked whether they wanted to be part of it. So perhaps you’d need two referendums, in fact: one for the Scots about their national future; and one for the rest of the UK.

This is, of course, a scenario that traditional unionist Conservatives would like to avoid at all costs. But you can’t deal with English disaffection with asymmetric devolution and with the lack of a representative parliament for England by denying English-national feeling and identity, as the Labour government has tried to do. New Labour has tried to manipulate English people’s traditional patriotic identification of England with Great Britain – the two often being interchangeable in English people’s hearts and minds – to engineer a ‘New Britain’ that denies the existence of a distinct English nation altogether: a Britain / UK that no longer comprises England, Scotland, Wales and Northern Ireland but is viewed as Britain + the devolved nations – Gordon Brown’s ‘Britain of nations and regions [formerly known as England]’.

Whilst this new British-nation building has arguably mediated a profound Anglophobia at the heart of the liberal establishment, it has also been a reaction by the Westminster establishment as a whole to the traumatic shock to the 300-year-old Union that was delivered by an ill-thought-through devolution settlement. The fear was that a new English nationalism would build up in parallel to the growing national consciousness and self-confidence of the Scots and the Welsh; and that the English would start to demand their own parliament and national institutions that could rip open the Union from within. But instead of acknowledging that it was an inevitable consequence of devolution that the English would start to become more aware of themselves as a distinct nation, and would consequently start to demand English civic institutions like those of the other British nations, the approach has been virtually to deny that England even exists, which – politically and constitutionally speaking – it in fact doesn’t. In this way, the Union parliament can be presented as a perfectly adequate representative democratic body for England because there is no England, only the UK. As Tony Blair’s first Lord Chancellor Derry Irvine memorably put it, “The way to deal with the West Lothian Question is not to ask it”.

Given the Conservative Party’s profound attachment to the Union, it would be understandable if a Tory government were to continue along this path of denying any distinctly English dimension to national politics and constitutional affairs. Clearly, this is the case not only because of the perceived threat of a growing English nationalism but because the Conservatives are desperate, for electoral purposes, not to be perceived by Scots as an English party – which they mainly in fact are. But to replicate New Labour’s actions and attitudes in relation to England would not only be unjust but would also be alien to Conservative tradition and counter-productive to the aim of preserving the Union. Traditionally, that is, the Conservatives have been adept at balancing the competing English and British identities and patriotisms of the English people: channelling English national pride into a One Nation Britishness that yet did not deny Englishness. If, on the other hand, the response of a forthcoming Conservative government to the contrary challenges of English and Scottish nationalism is, like New Labour, to make it unacceptable to publicly articulate pride in Englishness, then this will in turn be unacceptable to the English public in the long run. The Union cannot be sustainable if its largest constituent part has to deny its own identity and democratic aspirations indefinitely while allowing its other parts to affirm their own – indeed, in order to allow the other nations to affirm their distinct identities, requiring England in a sense to become the Union by itself: the place of Britishness from which only the other nations are allowed to differentiate themselves; whereas if England becomes merely England, not Britain, then there is no more Union, just four distinct nations.

So what are the alternatives? Well, Ken Clarke’s answer to the West Lothian Question, which has been dubbed ‘English pauses for English clauses’, manages to avoid really asking the question, too. While it makes it possible for English MPs to amend England-only clauses of bills at the committee stage, Clarke’s recommendation still leaves the structural West Lothian anomaly in place: bills affecting England only or mainly can still be put forward by an executive comprising MPs from across the UK’s nations, and still need to be passed by a parliamentary majority made up of MPs from all four countries. In any case, such a procedural titivation is hardly likely to stem the growing tide of public dissatisfaction with the workings and representative character of Parliament in general, let alone the aspirations towards English self-government.

It seems to me, then, that if the Conservative Party genuinely seeks to preserve the Union as a true, undivided Union of equal nations, then it will have to seek a way to allow a distinct and healthy English-national politics and civic life to develop and prosper, even if this is within the broad confines of the existing Union structures. This may in fact be a last-ditch chance to save the Union as we know it from the alternatives of a federal UK of four nations or a total break-up of the UK into its component parts. Quite what shape the new English politics would take once the English genius is let out of the asphyxiating British lamp is not something that can easily be foreseen. But it seems to me that the Conservative Party is the natural party to guide and steer this process, precisely because of its deep roots in English society and traditions, and the naturally conservative (small ‘c’) character of the English people.

To begin with, the Party could start honestly referring to its England-specific policies and, in government, laws as English, rather than maintaining the present pretence that its policies in areas such as education, health or policing relate to the whole of the UK. In their manifesto at the general election, the Conservatives should reserve a dedicated section to their policies for England, which in fact will make up the majority of their legislative activity in government, given the very many policy areas in which UK governments now have competency for England only. This would be a hugely refreshing change and would demonstrate to people in England, including those that might otherwise be tempted to vote for more nationalist alternatives, that the Conservative Party is mindful of the specific social and economic concerns and needs of English people alongside its responsibilities to the whole of the UK in areas such as the economy or national security.

Such a degree of honesty about England-specific policies need not provoke a cry of indignation from the nationalists and Labour alike that the Conservatives are putting the needs and priorities of English people above those of Scotland and Wales. On the contrary, many people in those countries would also find it refreshing that national-UK politicians were finally accepting the post-devolution realities and not talking about England-specific matters as if they were relevant to them, too. This sort of honesty would be in stark contrast to the behaviour of Labour, in particular, which is clearly seeking to bolster its traditional support in Scotland and Wales based on an appeal to its traditional policies on the NHS and education for which Westminster governments are no longer responsible in those countries. The Tory response to Labour’s gerrymandering manipulation of the West Lothian Question should not be to deny the validity of the question but to show up Labour’s deceit for what it is. The Conservatives can present themselves as a government for Scotland and Wales; but they can’t do so by denying that, in many ways, Westminster administrations are now governments for England alone. There are English matters and there are UK matters, and the way to restore the trust of the public is to recognise the difference and present strong policies in both departments.

The Union is presently under a greater threat than at any previous time in its history, other than in times of war. But the way to respond to this threat is not to deny the identity and democratic aspirations of the largest nation within the Union. New Labour has tried to craft a soulless Britain without England. The challenge for the incoming Conservative government will be to shape a great Britain that still has England at, and in, its heart.

A nice constitutional crisis: Labour win on a smaller share of the vote than the Tories

Imagine this election scenario: the Tories win the largest share of the vote across the UK, but Labour are returned to office with a small majority. It could happen: the Conservatives actually have to win by a margin of around 9% to secure an overall majority, owing to the absurdities of the First Past the Post voting system and Labour’s gerrymandering of constituency boundaries. Admittedly, the ComRes opinion poll last week gave the Tories a 17% lead over Labour; but the most recent ICM poll, also last week, gave them only a 9% lead. (See the BBC’s excellent poll tracker charting the trends shown by different opinion polls over the past few years.)

Obviously, a hung parliament with the Tories having the largest share of seats is a more likely result than a Labour majority despite the Tories gaining the largest share of the votes. Or we could of course have a situation where Labour wins more seats overall, but not enough to form a majority, even though the Tories poll more votes. In all of these cases, the West Lothian Question would really come to the fore, in that it would be Labour’s disproportionate return of Scottish and Welsh MPs that would prevent the Tories from winning a majority or allow Labour to secure one. In all of these scenarios, the Tories would probably win a majority of English MPs.

How aware or concerned would people in England be about the national dimension to this situation of political stalemate or worse (a deeply unpopular Labour government) caused by an election result that failed to reflect the popular will to an even greater extent than normal, in that not even the largest party, in electoral terms, was in a position to form a government? Doubtless the media would conspire with the establishment parties to suppress the uncomfortable fact that the UK result was the consequence of Labour’s relative strength in Scotland and Wales (coupled with the voting system) overriding the will of the English people – although the Tories themselves are highly unlikely to command the support of the majority of voters even in England. But it could become embarrassingly obvious, even to the politically indifferent, that a minority or majority Labour government was totally reliant for its survival on its Scottish and Welsh phalanxes, and that Labour was happy to disregard the way the English had voted so long as the West Lothian Question allowed it to cling on to power.

What would happen in the case of a Labour majority or plurality based on a smaller share of the vote than the Conservatives? Precedent from the last hung parliament, in 1974, would indicate that the Queen would ask the leader of the largest party in parliamentary terms, i.e. Labour, to form a government. Under such circumstances, a man with the genuine leadership qualities that Brown sadly lacks might try to form a unity government: a coalition with the Tories and perhaps the Lib Dems, too, although not with the Lib Dems alone, as that would be correctly interpreted as simply a tactic to shut the Conservatives out of power and to retain a supposedly centre-left government. The more likely outcome would be that a Brown minority or majority government would attempt to soldier on despite its lack of a mandate – at least in England – and would try to morally blackmail the other parties into allowing it to function, on the basis that the economic crisis made political stability imperative. A minority Conservative administration would, I’m sure, behave in like manner: the Conservatives want to hold the reins of power on their own, regardless of the actual will of the electorate. So they’d probably set their stall out with an emergency budget and painful cuts in English public services (bearing in mind their direct spending in most areas relates to English (and occasionally Welsh) services only) and would then go to the polls for a second time to try to win a ‘mandate’ – defined as a parliamentary majority, not a majority of votes across England, let alone the UK.

Whichever party forms the next government is in a strong position to work this two-election poll vault into power, as Labour in fact did in 1974: carry out some emergency measures, and then seek a mandate and win a majority in a second election. The real political-credit crunch would come if a Labour government with an unrepresentative small majority tried to carry on for a full term, or if a second election produced an equally unsatisfactory result. Then, and probably only then, a constitutional crisis might occur that could lead to some fundamental reforms being made.

For example, a Labour government (after the first election) would probably try to force through legislation on electoral reform, including the proposed referendum on the Alternative Vote (AV) system. Any second election might well be conducted using AV, if a majority of voters backed it. This change would probably be decried by the Tories as an attempt by Labour to keep them permanently out of power, as AV – which is not a proportional system – would be likely to favour the centre-left majority in England and would bolster the leading unionist party (i.e. Labour) in Scotland and Wales. (You wouldn’t expect the Gerrymander Party to support a voting system that was not biased in its favour, would you?) In fact, based on the very same national electoral logic outlined above, AV might well return another majority Labour government based on a smaller share of first-choice votes than the Tories. However – and here’s the clever part – Labour would try to make out that this was a more genuine mandate as AV allegedly ensures that each MP enjoys the support of the ‘majority’ of their constituents. In fact, it does no such thing, as the 50%+ support each elected MP has to obtain through AV is merely an artifice of the voting system itself: in theory, you could carry on eliminating all of the last-placed candidates in an AV-based vote until only the last man, or woman, was left standing, and they could then be said to command the support of 100% of voters. But that figure is no more real than the 50%+ share proponents of AV say it engenders.

Imagine the Tories’ fury if they were frustrated in their lust for power by a change in electoral system for a second election in 2010 producing a majority Labour government from a smaller share of first-choice votes than the Conservatives! Not only would they be furious but so, this time, would many people in England, as, once again, the Labour majority would be dependent on the West Lothian Question.

The alternative scenario – a minority Conservative government seeking but failing to obtain a majority in a second election – would also be likely to add momentum to calls for fundamental reform. Under such circumstances, the Conservatives would have to rely on support from the Lib Dems in order to govern, perhaps in a coalition. The Lib Dems might then find themselves in a position to demand some meaningful reform measures, such as a move to a genuinely proportional voting system and a constitutional convention. Knowing the Conservatives, they would probably insist on ‘postponing’ such measures till later in the parliamentary term, or to a subsequent term, in the hope – no doubt – that they could put them off indefinitely.

For those, like me, that support the goal of an English parliament, what would the most favourable scenario be? The ‘best’ options would be the small-majority Labour government based on the West Lothian anomaly or a strong Conservative majority with very little representation in Scotland, as these are likely to get up the hackles of the English- and Scottish-nationalist constituencies respectively. On the other hand, a minority Labour or Conservative government, having to rely on the support of the other parties in order to govern, would be the least desirable outcome, as they would be able to appeal to the need to preserve ‘national unity’ and political stability to steer the UK out of its economic and fiscal crisis.

So as a supporter of an English parliament and of fundamental constitutional reform, one is in the invidious position of wishing for the election to bring about a constitutional crisis. But such a crisis would arise only because the established parties are determined to continue exploiting the unrepresentative character of the present system for their own advantage rather than realigning politics so that government is genuinely accountable to the people it affects. The refusal to remedy the West Lothian Question and address the more fundamental question of the governance of England are just part of a general unwillingness to reform a system that gives the main parties such unaccountable power: Labour needs its disproportionate representation from Scotland and Wales to govern England, and the Tories need their disproportionate representation from England to govern the UK. It may perhaps require a situation in which the UK becomes ungovernable – i.e. unworkable minority governments, a Labour government hated in England, or a Tory government hated in Scotland and Wales – to force the hand of the political elite and to bring about a situation in which all the nations of the UK can genuinely elect the government of their choice.

So we should perhaps wish for the Tories to win the election (on votes) but for Labour to return to power (on seats). Such a nice constitutional crisis may bring about political and economic turmoil in the short term; but in the long term, it may be the route to restoring English democracy.

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.