What will become of the May 2015 UK Parliament if Scotland votes “Yes” on independence?

Posted on March 23, 2013 by Brian Walker

23rd March 2013

Every so often – but not very often – a major theme enters the national debate which nobody noticed much at first, but when attention is drawn to it, it becomes completely obvious. This topic is one such we are pleased to reprint, on how a referendum vote in favour of Scottish independence in September 2014 could greatly complicate the options for transitional UK government up to the general election in May 2015 and even more, the composition and form of the UK government thereafter. The constitutional and political implications could be as fundamental for the reduced UK as for the departing Scotland. The scenario is laid out in the Ballots and Bullets blog of the School of Politics and International Relations in Nottingham University. The authors are Prof Ron Johnson of Bristol University, a leading authority on constituency boundaries and consultant on the proposed boundary changes in 2010; the electoral geographer Prof Charles Pattie and David Rossiter, both of Sheffield University.
Ron was an expert commentator on the Conservative’s plan – aborted by the Lib Dems – to reduce the number of parliamentary seats by 50 and redraw boundaries to create constituencies of roughly equal size. The same team also warned that this policy would undermine” the underpinning of British representative democracy – that members of Parliament represent places with clear identities.”
The timetable for a Scottish Independence referendum in October 2014 and, if that is successful, implementation of the decision in March 2016 overlaps that of the fixed cycle for elections to the UK Parliament, for which the next general election will be held in May 2015. Governing the UK during that inter-regnum (when there will still be 59 Scottish MPs) will be difficult, as may forming a government after the May election, plus sustaining it after those 59 MPs depart in March 2016. And then there is the House of Lords…

Although opinion polls currently indicate declining support for Scottish independence, 18 months is a very long time in politics. Groups of civil servants are undoubtedly now working in both London and Edinburgh on the myriad issues that would have to be resolved should there be a positive vote in October 2014. Does their agenda include the following scenario?

Scotland votes clearly for independence, to occur – according to the SNP’s current timetable – in March 2016;

In May 2015 there is a UK general election (when Scotland is still a member of the UK). Labour wins 330 seats in the 650-member House of Commons, a majority of 10 over all other parties. Its complement of 330 includes 40 of Scotland’s 59 MPs. Labour forms a government; and then

In March 2016, the break-up of the United Kingdom occurs. The House of Commons is now reduced to 591 MPs, with Labour having 290; it no longer has a majority.

What would happen then?

Labour may go on governing – it would be only just short of a majority and, given that Sinn Féin MPs do not take their seats (and also that there are five of them then, as now), it could well get its business through. Alternatively it may reach an accommodation with one or more other parties – maybe even a LabLib pact (a full coalition is less likely).

If at some stage Labour loses a vote of confidence, however, then the procedures set out in the Fixed Terms Parliament Act, 2011, come into play: there may be a premature general election. And if that happens before late 2018, such an election would be held in the current 591 English, Welsh and Northern Irish constituencies – created using electoral data for 2000; following the Lords’ amendment to the Electoral Registration and Administration Act, 2013, the Boundary Commissions do not have to deliver recommendations for 548 new constituencies in those countries until October 2018.

Having voted for independence, however, the Scottish electorate may decide to send many more SNP MPs to Westminster in May 2015 – why vote for the parties of the now-rejected Union? Indeed, why vote at all? It is doubtful that Labour could win a majority in England and Wales alone so David Cameron’s hopes of a Conservative majority over Labour and the LibDems in 2015 would be enhanced if very few Scottish MPs were elected to represent those two parties.

In addition, 11 of the Liberal Democrats’ current 57 MPs represent Scottish constituencies, so much will depend on how the soon-to-be-independent Scots vote in the 53 seats that currently return a non-SNP MP and how the MPs who replace them vote in the Commons during that inter-regnum (would they join with Labour and the Liberal Democrats in voting against the Queen’s Speech, for example, or just abstain?)

That might be a bit – perhaps very – messy, at a time when continuity and stability will still be preached as necessary conditions for economic recovery. As interesting – and potentially very controversial – will be what happens between October 2014 and March 2016, and especially between May 2015 and the latter date, whichever party (or parties) are in power. The government is already concerned about, and seeking a resolution to, the West Lothian problem: it will be magnified many-fold during that inter-regnum.

Once Scotland has voted for independence, what role should Scottish MPs play at Westminster during the following 18 months? Some might argue they should no longer participate – certainly not in its votes, though, of course, they should continue to represent their constituents’ interests that are covered by the transitional UK government (just as Sinn Féin MPs do now). But Scotland will still be a member of the UK and decisions will be taken during those 18 months on which they should have a say: what if the UK government recommends that the country goes to war somewhere in December 2014?

Would Scottish MPs agree to vote on a restricted range of issues only? Could agreement be reached on what those issues are? If not, would the government legislate to limit Scottish MPs’ roles in the House of Commons – perhaps with opposition support (the Conservatives, Labour and the Liberal Democrats are all opposed to the break-up of the Union)?

And what of the House of Lords. What would happen to the Scottish hereditary peers? The 1800 Act of Union allowed the Irish peers to elect 28 members to the Lords. None were elected post-independence, but also none were required to relinquish their seats, with some remaining members of a ‘foreign’ Parliament until their death, which for one Irish peer was as late as 1961. A similar situation occurred after the Act of Union with Scotland in 1707, when the Scottish peers were entitled to elect 16 of their number to sit in the Lords. From then on all new peers were appointed to the Peerage of Great Britain (as were a few peers created after 1922 who took Irish titles). All Scottish peers were entitled to sit in the Lords under the Peerage Act, 1963, and became part of the electorate after most of the hereditaries lost their seats under the House of Lords Act, 1999. There is thus no Scottish hereditary peerage, merely a UK Peerage, and it would presumably be up to those who, post-independence, considered themselves Scottish rather than UK citizens to withdraw from the hereditary electorate.

Of course, all peers are now appointed for life, and many of those currently occupying the House of Lords benches have some Scottish links. But could a separate ‘Scottish Life Peerage’ be defined to identify them? On what criteria – residence (first, or second)? Some may self-identify and withdraw but others, like their Irish predecessors, may decide to stay. How could they be removed? Could a generic Act be conceived, or would there have to be a series of ad hoc pieces of legislation? And when it was all settled – it might take some time – would the Prime Minister then replace them with a new tranche to maintain the currently-desired party balance?

Uncertainties abound, but governing the UK may be very difficult during the transition period, even if there is good will on all sides.

Ron Johnston is Professor of Geography in the School of Geographical Sciences at the University of Bristol, Charles Pattie is Professor of Geography in the Department of Geography at the University of Sheffield, and David Rossiter.

Northern Ireland chief justice to confront critics on bail decisions

Posted on March 12, 2013 by Brian Walker

15th March 2013

The Lord Chief Justice of Northern Ireland Sir Declan Morgan has given a rare TV interview designed to take the heat out of allegations of partiality between unionists and nationalists in granting bail. He is offering to explain the basis of recent decisions to the Justice Committee of the Northern Ireland Assembly and is making himself available to his most prominent critic, the Democratic Unionist First Minister of the powersharing Executive Peter Robinson. The meeting was in fact pre-arranged but will now take on a more urgent character. His private secretary had earlier sent a letter to the Assembly explaining that in bail decisions judges carefully weigh the risks – such as a risk of flight, likelihood of committing further offences, interfering with witnesses and preservation of public order – against the rights of the untried accused.

“It is essential that they are free to do this independently and without being subject to external influence.”

Now the chief justice has widened his response to add the offer of an appearance before Assembly members and a meeting with the First Minister if he still wants one. As a direct response to a running controversy this move is unprecedented and as I’ll argue shortly, carries risks which Morgan himself will be aware of.

Even post- Troubles Northern Ireland politics is still largely a zero sum game. In this case unionists are up in arms at bail being denied to two ring leaders of sporadic protests at the decision of Belfast City Council to reduce the number of days for flying the Union Jack above the City Hall. One of them Willie Frazer attracts both sympathy and hostility. Four family members including his father, all of them members of the security forces, were killed by the IRA over 10 years. He is head of a movement called FAIR, Families Acting for Innocent (unionist) families which campaigns for justice for victims of the Troubles but specialises in provocative demonstrations and comments. He was refused bail on March 1. At another hearing when bail was refused to another alleged loyalist agitator Jamie Bryson, the judge hit out against “ill informed debate” about bail decisions. This attracted the comment of “ judicial arrogance “ from a DUP minister.

Meanwhile, switching sides, two prominent republicans in south Armagh were granted bail in connection with demonstrations eight years ago in favour of the ( not quite disbanded ) IRA which had been held responsible for the notorious murder of a Belfast man Robert McCartney in 2005. Despite a McCartney family campaign which reached Downing St and the Oval Office, IRA omerta has held. The arrests of the two men Padraic Wilson and Sean Hughes were attacked by Sinn Fein politicians as “ political policing” to counter balance the actions against loyalists. Unionists immediately claimed partiality in deciding bail between republican and loyalists.

I accept that there are grounds for interesting speculation about how and why bail has been granted or refused but this has little to do with the judiciary.

Why charge Hughes and Wilson with IRA membership and encouraging a proscribed organisation in a demo that happened eight years ago? Is this a real new lead in the MCartney case? It doesn’t feel like it but who can tell at this stage? If there is no fire behind the smoke this might be seen as an unnecessarily provocative move just as the very moment a dissident republican attack had been foiled.

Why wait so long to lift the loyalists Frazer and Bryson? That one is easier to speculate about – because it’s better to exploit a lull (if that’s what is it is ) in the flags protest. But we’re unlikely to get straight answers to such questions and certainly not from the judiciary. Answers in some form may emerge from the PSNI and the DPP if charges are proceeded with.

Although the judges – and of course the police and the DPP – are now being attacked by both sides, this is not a full blown crisis between the politicians and the criminal justice system. It even represents a sort of progress. Republicans now argue for fair treatment from the criminal justice system rather than rejecting it altogether. What is happening is a symptom of the tensions created by an underlying shift in power between unionism and nationalism as a result of growing nationalist numbers and the implementation of the equality provisions of the Good Friday Agreement. From time to time there is controversy over where fairness lies and the criminal justice system is caught in the middle.

In an arid zero sum debate – unionist loss is republican gain or vice versa – the judiciary has boldly moved to assert its good faith and educate the politicians in an impartial justice system which like any other body can make mistakes. The risk the chief justice is taking is that is that he may unwittingly feed an appetite for routine explanations of verdicts and sentences and produce disillusion and even louder complaints when he refuses. This could turn the judiciary into what he and his colleagues greatly fear, a political football. Much hangs on Northern Ireland’s politicians behaving responsibly to prevent the judiciary being sucked into their zero sum game.

Video: What Place for the Referendum in the UK?

Posted on March 11, 2013 by Constitution Unit

11 March 2013

Prof Vernon Bogdanor

Venue: Archaeology Lecture Theatre G6, Gordon House

The referendum is an instrument of popular sovereignty, an institutional expression of the doctrine that political sovereignty derives from the people. In Britain, it has been used on a small range of issues, primarily to secure legitimacy. Some matters, especially those which involve a transfer of sovereignty, are so fundamental that the public may not accept a decision made by parliament alone as legitimate. In the 1970s, it has been suggested, Edward Heath took the British establishment into Europe, but it was left to Harold Wilson to bring the British people into Europe. Today, the establishment continues to favour membership, the people do not. That is the basic case for an `in-out’ referendum.

One difficulty with the referendum is that the question is decided by the politicians, not by the voters. The questionthat the voters wish to answer may not be on the ballot paper. In 2011, survey evidence indicated that the favoured option for most electoral reformers was proportional representation, not the alternative vote. Yet that option was not on the ballot paper. In Scotland, survey evidence indicates that further devolution is the favoured option rather than the status quo or independence. Yet that option is not to be on the ballot paper. On Europe. David Cameron proposes a referendum on renegotiated terms of membership, but survey evidence indicates that people favour an in/out referendum. Some means, therefore, should be found for taking the referendum out of the hands of the politicians.

Prof Vernon Bogdanor CBE will is Professor of Government at the Institute of Contemporary History, King’s College, London. He was formerly for many years Professor of Government at Oxford University. He is a Fellow of the British Academy, Honorary Fellow of the Institute for Advanced Legal Studies, and a Fellow of the Academy of the Social Sciences.

Find out more about the Constitution Unit’s seminar series or the SPP seminars

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SUCCESSION TO THE CROWN BILL

Posted on March 7, 2013 by Bob Morris

7th March 2013

LORDS COMMITTEE STAGE 28 FEBRUARY 2013

The power of the well-phrased question

Bob Morris

There is nothing in Parliamentary debate quite like the well-phrased question for cutting to the heart of things. An issue is encapsulated and the minister has to respond. Unlike podium assemblies where speakers may hector without interruption, the UK Parliament can suddenly be made alive by a pithy intrusion.

Under examination was the clause that would abolish the rule dating from 1689 that no-one married to a Catholic may succeed to the throne. Discussion turned to an amendment (subsequently withdrawn) which would have permitted the sovereign to be a Catholic but made arrangements during the reign for the Supreme Governorship to be shouldered by an Anglican qualified under the Regency Acts. As noted previously – including by the Commons Political and Constitutional Reform Select Committee (PCRSC) in December 2011 (HC 1615) – removal of the Catholic marriage disqualification leaves intact the absolute ban on Catholics and anyone else not in communion with the Church of England from succeeding. The latter would, of course, disqualify Catholics (and most non-Anglicans) from succeeding even if the explicit ban on Catholics were removed.

Lord Forsyth (a Scottish episcopalian, former cabinet minister and Scottish Secretary) asked what was it that the government were trying to achieve with the provision:

‘Are they trying to end discrimination against Roman Catholics or are they just trying to enable the heir to the Throne to marry a Roman Catholic?’ (Hansard, Lords, 28 February 2013, col. 1230)

He added that he would be horrified if it were the latter. Whilst it was a good thing that people who wanted to marry should be able to do so, he had thought that the provision ‘was part of a wider agenda of ending discrimination against Catholics. We need to understand why the Bill has not provided for that…’ Lord Stevenson then intervened to point out that the amendments tabled on the point went ‘to the heart of whether the present Anglican establishment in England can or even should remain in its present form’ and suggested that it was time for further Parliamentary consideration in some appropriate committee. This suggestion gained some support though not from the minister who sheltered behind the fiction that such matters were for Parliament alone itself to decide.

None of this will stop the Bill. Parliament knows when it is being bounced and in any case the things in the Bill are not in themselves bad things that should be stopped. On the other hand, what their Lordships pointed out was that, in the words of a PCRSC witness, ‘one cannot half open a can of worms, because all the worms will come out’.

Has the time come for Parliament to take a closer look? We shall see. What is certain is that the Forsyth question will not go away.