What follows the referendum: negotiating Scottish independence, or delivering Devo More

Earlier this year Alan Trench gave a lecture at the University of Ulster’s Belfast campus about what might follow the vote in the Scottish referendum. In this article, he picks out the key points.

The full speech is available on the Social Science Research Network here, or can be downloaded directly here

Perhaps the most important and novel part of the lecture is where I map out what would follow a Yes vote – the sort of steps needed, particularly on the rUK side to tackle the many uncertainties that will follow. This is a separate issue from that of the strengths of each party in the negotiation (discussed here earlier in the week).  This would call for a great deal of imaginative thinking, in the midst of a first-order constitutional crisis. In particular, it seems to me that:

  • The negotiating process needs to move with all due speed, to preserve the democratic legitimacy of both rUK as well as an independent Scotland. There is no good reason for rUK to seek to prolong the process, and plenty of reasons for it not to.
  • The 2015 UK General election presents grave problems for that – the time lost to campaigning in an election and briefing a possible incoming new government means it will be impossible to make a proper start in negotiations before June 2015, since even provisional agreements reached under the present government might lack support from the new one.
  • One option – which appears to be gaining some support, particularly among Conservatives– is to postpone the 2015 election. But the present government has already been in office for 4½ years, and has no mandate to negotiate something so important to rUK as Scottish independence.
  • A better option would therefore be to hold a general election early, before the end of 2014, so there was both certainty about the composition of the UK/rUK Government and that government had a political mandate for independence negotiations. This would need approval by a two-thirds majority in the Commons, under the Fixed-term Parliaments Act 2011.

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The latest Special Advisers reshuffle

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A new book Special Advisers: Who they are, what they do and why they matter by Ben Yong and Robert Hazell is to be launched tonight at the Institute for Government. In this post, Ben Yong draws on the research conducted for the book to analyse the latest Spads reshuffle.

‘Won’t somebody think of the spads?!’ said one wag following the recent reshuffle. We here at the Constitution Unit (and Hull) have been. We’ve just written a book on spads, gloriously entitled Special Advisers: Who they are, what they do and why they matter. We’ve spent 18 months looking at special advisers between 1979 and 2013: all 626 of them. We interviewed over 100 people, including almost 40 spads and 30 ministers (both former and current).

As part of this we’ve been looking at the tenure and distribution of spads over time, both within a government and over successive parliamentary terms. So here we present an interim analysis of the last spads reshuffle.*

The first point is turnover. Of the 63 Spads who began in 2010, only 31 remain. Half have left. The majority of the initial batch who remain are connected to ‘the big beasts’ of the government (David Cameron, George Osborne, Nick Clegg etc)—or at least, those whose ministers have not been reshuffled out.

But this misses the bigger story. The total number of spads employed by the Coalition between 2010 and 2014 is around 175. In fact, the number of spads who leave has been increasing as time goes on. In 2010 five left; in 2013 around 30 did. This makes sense: spads leave because of reshuffles, exhaustion, wanting to do something new—and getting out while the going is still good. But they must be replaced.

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10 things you need to know about what will happen if Scotland votes Yes

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As the Scottish independence referendum draws closer the outcome is hard to predict. Both Westminster politicians and the wider public are asking what – in practical terms – would happen if the Scots were to vote Yes. Robert Hazell offers a 10-point overview of what the road to independence might look like.

 

The timetable

1. Scotland will not immediately become independent. On the SNP’s proposed timetable, it would take 18 months for Scotland to achieve independence, in March 2016, just in time for the next elections to the Scottish Parliament in May 2016. In that 18 month period there will need to be intensive negotiations on all the issues listed in point 5 below, and more.

2. This 18 month timetable ignores two potential difficulties. The first is the UK general election in May 2015. That will require a pause in the negotiations of at least two months while the UK team of negotiators campaign in the Westminster election. A change of government in the UK will result in new negotiating teams, who will need time to get up to speed.

3. The second difficulty is the need for legislation. There might be a need for paving legislation at the start of the negotiations. Legislation will also be needed at the conclusion to grant Scotland independence on the terms which have been agreed. On many issues Alex Salmond wants a partnership or sharing arrangement with the UK (sterling being the most notable example). That will need to be given effect in legislation, along with the division of all the main assets and liabilities of the UK state. The legislation will be big and complex, and some of it will be controversial. There may need to be several bills rather than one omnibus bill. The legislation is likely to take a year or more to be passed by Westminster. For comparison, the Scotland Act 1998 took 11 months to pass, but in very favourable circumstances and with a huge government majority.

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The more things change: analysing the 2014 Thai Interim Constitution

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In August, a new Thai constitution was introduced for the 18th time in 82 years. Jam Kraprayoon assesses the latest incarnation and suggests that although this constitution is similar to its predecessors in many ways it goes much further to secure the power of the new military junta.

Thailand has had twelve coups since the end of absolute monarchy in 1932. While categorised as a constitutional monarchy like Britain, it has been marked by recurring political and constitutional upheaval. Professor Chai-anan Samudavanija labels this continual process the ‘Thai political cycle’. The cycle begins with the suspension of the old constitution through a military coup, often prompted in recent years by a prerogative to reduce corruption, leading to a new constitution being enacted. Elections are held and time passes until a new perceived crisis leads to another military coup and another constitution. This pattern makes distinction between temporary and permanent constitutions largely semantic rather than actual – in Thailand all constitutions are temporary.

Constitutions in Thailand do not normally provide neutral rules to regulate political participation and competition among groups (The 1997 iteration, also known as the ‘People’s Constitution’ proved so far to be an exception rather than the rule). Instead they are tools in maintaining the power of those who write them. The country has had eighteen constitutions in the last eight decades, most promulgated to legitimate the authority exercised by the then-dominant political forces. Accordingly, most post-coup constitutions reflect the interests and intentions of the ruling junta. The 2014 interim constitution drafted by the military junta, the National Council of Peace and Order (NCPO), is no exception.

In many ways the 2014 interim constitution is simply another iteration of what has been witnessed before. This can be seen throughout the constitution; Section 6 which calls for the establishment of the National Legislative Assembly (NLA), a fully appointed legislative body, has precedent in past constitutions including the more recent 2006 and 1991 post-coup charters. Another recurring article, Section 16, restricts votes of no confidence on the junta-occupied cabinet, which from a legal perspective effectively suspends the parliamentary system. Section 48, which gives amnesty to ‘all those associated’ with the May 22 coup, is another frequent feature of post-coup constitutions. These articles echo basic political and legal needs faced by many past coup-makers in the country, specifically, the need to push through legislation and receive impunity from ‘illegal acts committed before, during, or after [the coup]’.

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Scottish Referendum looks close, politicians panic and markets tumble. What if Scotland really does vote Yes?

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Following Alan Renwick’s piece (posted on this blog yesterday) suggesting Scotland could buck the referendum trend and vote Yes, Robert Hazell explores reactions to increasing uncertainty over the outcome and considers the implications of a Yes vote.

The Scottish independence referendum is now two weeks away, on 18 September. With the latest YouGov poll showing the No campaign’s lead narrowing, to just 53% against 47% it suddenly looks as though there is a real possibility that Scotland might vote for independence in two weeks’ time. This has caused panic at Westminster, it has spooked the markets, and it has finally got people south of the border thinking about the consequences, for Scotland and the rest of the UK.

First, the panic at Westminster. On 4 September the Guardian ran the remarkable story ‘PM could face calls to postpone UK election if Scots vote for independence’. The argument being advanced by some Conservatives was that Westminster should postpone the next UK election by 12 months in order to avoid the unstable prospect of a Labour government dependent on Scottish MPs, who would disappear part way through the next Parliament. The Guardian reported that

‘Well placed members of the government have already started to consult the laws on postponing elections. An Act of Parliament would have to be passed, but there are complicating factors. The Fixed Term Parliaments Act of 2011, which stipulated that the next general election would take place on 7 May 2015, would have to be repealed. The House of Lords would also be able to block the legislation … One former law officer said: “Parliament can change elections, it can do what it likes. But it would be difficult.”’

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Could Scotland buck the trend and vote Yes?

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The polls have been narrowing in Scotland’s independence referendum debate. Reading’s referendums expert Alan Renwick reflects here on whether the Yes campaign really could pull off an unexpected victory.

I wrote a piece for the Telegraph a couple of weeks ago pointing out that, if Scotland’s voters follow the patterns seen in most referendums around the world, they will vote No to independence on 18th September. The polls have consistently shown a lead for No. And opinion generally shifts in the direction of the status quo in the final stage of a referendum campaign.

Since then, however, the polls seem to have shown the reverse pattern: opinion seems to be shifting towards Yes, not No. So what is going on? Could Scotland really buck the trend?

The short answer to that is, yes, of course Scotland could buck the trend – it’s only a trend. While opinion generally shifts towards the status quo in the weeks before polling day, there are also exceptions. The evidence that we have so far certainly doesn’t show that Scotland definitely will buck the trend – the polls could easily shift again. Indeed, headlines about a narrowing of their lead are exactly what No campaigners need to mobilise their supporters and remind voters that this is not a game.

But what are the mechanisms at play here? Are there plausible mechanisms that could generate a shift towards Yes in these final weeks and an unexpected win for supporters of independence? Ever since I first wrote on this subject back in January, I have argued that there are two key mechanisms to consider: reversion point reversal and the anti-establishment bandwagon.

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“The precious centre of our Parliamentary democracy”: Commons governance after the Clerk appointment affair

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Barry K Winetrobe examines the current controversy over the appointment of a new Clerk of the House of Commons, and the lessons it has for the better management and governance of the House.

It is exactly a year since I posted a piece on this blog on how the Commons could use the Government defeat on the 29 August 2013 Syria vote as a catalyst for greater Commons institutional autonomy and procedural reform, driven by itself rather than by the Executive.  This was to be led by the Speaker.  Given the current controversy over the appointment of a new Clerk of the House, the Speaker may not now be seen by everyone in such a role.  However, this sorry episode does raise important questions about the governance of what the outgoing Clerk, Sir Robert Rogers, rightly described in his farewell letter as the ‘central institution in our democracy’ and ‘the precious centre of our Parliamentary democracy’.

By the time this piece is posted, the immediate crisis may be in the early stages of resolution, with time-honoured Westminster ad hoc compromises, promises of root and branch governance reviews etc..  However, that the process of appointing the most senior House official has been, for whatever reasons, so controversial is seriously damaging to the House’s reputation. We know from the House Service’s own Strategy for 2013-17 that its vision is that the House be seen as ‘a model of good practice and innovation’ and that ‘the House Service will have the respect of Members of Parliament and of the public for our independence, integrity and professionalism… We will be seen as efficient, responsive, diverse and inclusive.

Of course, this affair is as much a proxy war about the performance of the present Speaker as it is about getting the best Clerk/Chief Executive or deciding what the proper role and functions of the Head of the House Service should be.  In this long recess period, where the usual dearth of official in-House response and rebuttal is even more acute, the anti-Bercow forces have been able to make the running in attacking the Speaker for his handling of the recruitment process and for his apparent favoured candidate.  Their views are set out in their memorandum, which was leaked on the Guido Fawkes blog a few days ago. This document, which is riddled with factual errors and patronising and one-sided arguments, can be basically summed up as:

the top job in the House Service of Clerk/Chief Executive can only be filled, as now, by a ‘real’ Clerk, because the proceduralist side of the role is more extensive and more important than the relatively mundane ‘chief executive’ side, which the Clerk can also do as he/she has been trained to do it on the job.

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