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

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

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

I refer to your request where you asked:

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

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

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

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

I attach a link:

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

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

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

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

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

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

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

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

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

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

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

Yours faithfully,

Etc.

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

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

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

The reply read as follows:

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

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

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

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

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

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

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

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

“Get it right, Avaaz!”

I received the following somewhat arrogant reply:

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

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

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

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

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

But from everybody else, nothing. But nothing.

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

Letter to the West Lothian Commission on Same-Sex Marriage

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

Dear Sirs,

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

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

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

Yours faithfully,

Let’s see what response we get!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

English parliament

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!

English parliament

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