Fame at last (for five minutes)! Recognition for my design talents . . .

I’ve always been c*** at drawing and design. So imagine my surprise when my semi-spoof design for the flag for a new ‘United Kingdom of England, Wales and N. Ireland’ (which I came up with in May last year following the SNP’s victory in the Scottish-parliamentary election) was included in a blog by Dan Hannan MEP in yesterday’s Telegraph.

I should add that Hannan dismissed my design as “not quite the same, is it?”, which I suppose I should take as a nationalist badge of honour!

I would also like to put on record that I don’t believe the identity of the new state of which England will be a part after Scottish independence would or should automatically be the United Kingdom of England, Wales and Northern Ireland. And, as a matter of fact, I’ve come up with an alternative Union Jack design (which I should perhaps dub the ‘Union Black’, since it has a black background instead of the present blue) incorporating the flags of Saints David and Piran (Cornwall), which I may inflict upon a suspecting world at some future juncture.

Well, at least it got the Unionists rattled!

English parliament

Advertisements

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

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

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

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

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

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

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

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

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

English parliament

If Cameron doesn’t want to be “Prime Minister of England”, he should resign as PM for the UK

In his ‘playing hardball on Scottish independence interview’ with the Sunday Telegraph yesterday, David Cameron repeated his oft-quoted, infamous remark: “I don’t want to be Prime Minister of England, I want to be Prime Minister of the whole United Kingdom”.

Of course, what Cameron is alluding to is a scenario for when Scotland has gained its independence; and it’s interesting in itself that he thinks his post as UK PM would then evolve into one of “Prime Minister for England” (as opposed to, say, Prime Minister for the ‘United Kingdom of England, Wales and Northern Ireland’).

But that aside, should we be surprised that Cameron is displaying such unashamed contempt for the idea of being an English prime minister for England? Not only contempt, but ignorance of his present role, because he already is effectively a prime minister for England in all the devolved policy areas: those mere bagatelles of education, health, social care, communities and local government, planning, housing, transport, the environment, etc., etc.

The question is, does Mr Cameron want to be a prime minister, or should we say ‘First Minister’, for England in all these policy areas? If not, he should resign as UK PM, because that post involves a dual responsibility: for reserved, UK matters and devolved, English matters. If he doesn’t want to provide national leadership, vision and responsibility (his favourite word) for England in these areas, he quite simply isn’t fit for purpose in his present job.

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

If Welsh Labour wants a two-member-constituency voting system, this is the one they should adopt

In the recent row over possible changes to the voting system used for elections to the Welsh Assembly, one of the alternatives proposed by the Labour Party was a system of two-member-constituency First Past the Post (see the Devolution Matters blog for an overview of the row). In other words, to expand the number of Assembly Members (AMs) to 80 from the present total of 60 (made up of 40 constituency AMs and 20 top-up regional AMs under the proportional AMS voting system), Labour was proposing having two AMs per constituency and using FPTP to elect them.

Presumably, the model of FPTP they had in mind was that voters would get two votes each, thereby ensuring that where Labour was the most popular party, it would be guaranteed to win both seats even if it were not the choice of a majority of voters. Labour is not known for its enthusiastic backing for fair voting systems, after all. FPTP wouldn’t be so bad if people had only one vote, so that the Labour vote would be split between both candidates, giving other parties more of a chance, especially if they fielded only a single candidate in constituencies where they knew they had no hope of winning both seats.

However, a fairer, more rational and more proportional electoral system for two-member constituencies would be the following, which I’m calling ‘TMPR2’: Two-Member Proportional Represenation (version two). This is a simpler and more practical version of the TMPR system I have previously discussed. TMPR2 works as follows:

  • There are two representatives (AMs, MPs, etc.) per constituency
  • Each voter has two votes. Voters are not obliged to use both votes: they can vote for just one candidate if they wish
  • The individual candidate obtaining the most votes automatically wins one of the seats
  • The individual winner may be either the representative of a party or an independent
  • In addition, if any independent candidate wins the second-highest total of individual votes, that independent candidate is elected
  • However, assuming the second-highest total of votes is not won by an independent, the winner of the second seat is decided on the basis of the share of the vote won by each party:
    • If any party wins over 50% of all votes (that is, the number of actual votes cast, which is higher than the number of voters, as people can vote for two candidates), then both of their candidates are elected (unless one of the candidates obtaining the highest or second-highest total of votes is an independent, in which case the party obtaining over 50% of the vote wins only one seat)
    • In the instance where one of the seats is in fact won by an independent, the party candidate elected is the one that has obtained more votes than the running mate from their own party
    • If, however, no party wins more than 50% of the vote, then the two parties obtaining the highest shares of the vote win one seat each (except in the case where one or more independent candidate are elected, whereby only the top-ranked party or no party respectively wins a seat)
    • In the case that two parties win one seat each, the successful candidates are those who obtained more individual votes than the running mates from their own parties

Advantages of TMPR

  • This is a reasonably proportional system
  • It encourages trans-party voting: voters could and would vote for candidates from different parties. This would equalise the parties’ share of the vote, with the established parties’ share coming down and the smaller parties’ share rising. For instance, quite a lot of right-of-centre voters, if the system were applied in England, would vote for one Conservative and one UKIP candidate; whereas many left-of-centre voters would vote for a Green candidate alongside a Labour or Lib Dem candidate. This means that the vote share parties need to win in order to be elected could be considerably lower than under FPTP. In fact, there is no lower percentage limit on eligibility for a seat. And TMPR2 encourages this pluralism by allowing voters to divide their loyalty between more than one party
  • It incorporates some of the best features of established, familiar voting systems:
    • Like FPTP, the candidate obtaining the largest number of individual votes automatically wins a seat
    • Like AV, if any party wins over 50% of the vote, it takes the whole constituency (i.e. both seats), unless an independent candidate has won either the highest or second-highest individual vote
    • It’s a crude form of PR, similar to STV in the sense that a party, as opposed to an individual candidate, needs to win more than a ‘quota’ of 50% of the vote to win both seats
  • It encourages voting for individuals – and hence, for independents – alongside parties: as voters have two votes each, they will be freer to choose candidates on their individual merits alongside their membership of a particular political party. There would be more of an incentive for independent candidates to run, such as high-profile, respected local figures taking a stand on important issues for the local community
  • It’s easy to understand and operate: there are no complicated voting or counting mechanisms involved, and the result is a clear and direct expression of voters’ preferences. There are no unexpected consequences and fewer tactical-voting constraints for voters. Voters would know that the way they voted would have a direct impact on the result: each of their two votes increases the chances of that individual candidate or party; and if voters are torn between the party / candidate they genuinely prefer and the party they feel they need to vote for in order to ensure that another party does not win (tactical voting), they can hedge their bets and vote both ways.

Disadvantage of TMPR2

TMPR is probably not as proportional as the existing system – AMS – used for elections to the Welsh Assembly and Scottish Parliament. In fact, in an Electoral Reform Society analysis of the 2011 Welsh Assembly election had it been conducted using AMS with 30 constituency seats and 30 regional top-up seats (instead of the present 40/20 ratio) compared with an 80-seat Assembly elected using STV, AMS emerges as the more proportional system. It would be interesting to see the outcome if they ran the same analysis on TMPR2.

However, pure proportionality is not everything; and TMPR does preserve the close links between individual AMs / MPs and relatively small constituencies. By comparison, AMS gives more power to the parties, as top-up AMs / MPs are predominantly elected because of their party affiliation rather than their individual merit or on the basis of local issues. In addition, TMPR is much simpler to understand and operate than either STV or AMS.

Real-world prospects for TMPR2

In reality, TMPR2 has very little chance of ever being implemented, at least not for the Welsh Assembly. As the ‘inventor’ of TMPR2, I don’t exactly have a lot of influence. But as the possibility of two-seat constituencies was being mooted, it seemed timely to bring forward TMPR2 as another alternative: as a possible compromise between FPTP and proportionality. The Labour Party wouldn’t like it, because it’s too fair and proportional. The experts at the Electoral Reform Society probably wouldn’t like it because it’s not proportional enough. But maybe the people would like it if they were offered the choice, precisely because it is fairer than FPTP but less complex and fussy than STV and AMS, with a more transparent link between how people vote in each constituency and the winners.

Anyway, I’m just throwing it out there to see if there are any takers.

English parliament

The nightmare scenario: United Kingdom of Britain and Northern Ireland

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

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

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

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