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

robert_hazell

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Act of 2011, which stipulated that the next general election would take place on 7 May 2015, would have to be repealed.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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Continuing resentment against ‘establishment’ politicians has brought the right of recall back on to the legislative agenda

Robert Hazell discusses the challenges around developing legislation that will permit MPs to be recalled.

It was not a complete surprise to see the right of recall in the Queen’s Speech. The coalition government had kept open the option of legislating in a series of exchanges with the Political and Constitutional Reform Committee over the last two years.  The proposals stem originally from the MPs’ expenses scandal in 2009, which led all three major parties to include almost identical proposals for a right of recall in their election manifestos in 2010.  The precise commitment of the coalition parties in the May 2010 Programme for Government was framed as follows:

Image credit- UK Parliament

Image credit: UK Parliament

‘We will bring forward early legislation to introduce a power of recall, allowing voters to force a by-election where an MP was found to have engaged in serious wrong doing and having had a petition for a by-election signed by 10 per cent of his or her constituents’.

True to its word, in December 2011 the government published a draft bill and White Paper.  But in 2012 the Commons Political and Constitutional Reform Committee (PCRC) produced a very critical report, which led the government to pause.  The committee feared that the restricted form of recall proposed could reduce public confidence in politics by creating expectations that were not fulfilled.  The government’s long pause suggests that it may have shared the committee’s doubts.  But the rise of UKIP in the 2014 elections and continuing resentment against ‘establishment’ politicians tipped the balance: the government felt obliged to be seen to be doing something.

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Scottish Independence and the UK general election

At Nicola Sturgeon’s lecture on Scottish independence on 13 February, she was asked about the 2015 general election, and how that might affect the timetable for Scottish independence.

If Scotland votes Yes this September, then the timing of the UK general election in May 2015 presents difficulties for the Scottish government and for the UK government.  It presents difficulties for the Scottish government, because they propose an 18 month timetable for the independence negotiations, from September 2014 to March 2016, and the UK general election falls right in the middle of that.  The negotiations will be very intensive, and involve every senior Minister in the UK government, with separate teams leading on finance, defence, energy, transport etc.  If there is a change of government in the UK in 2015 all those ministerial teams would change; and the new Ministers might start to unpick what had been agreed so far.  That could slow down what is already a very tight timetable.

The UK government will also be in difficulty if there is a change in 2015.  It will be in particular difficulty if Scottish MPs hold the balance of power in the new Parliament.  That is most likely to happen if Labour is the largest party in the May 2015 elections, but depends on Scottish MPs to form a government (as happened in 1964 and 1974).  On the SNP timetable, those Scottish MPs would be short lived, and due to leave Westminster in March 2016, when Scotland becomes independent.   If the removal of those MPs meant that the government was unlikely to command the confidence of the House of Commons thereafter, the government would be a lame duck government from the start.

Formally there is an answer to what would happen in March 2016 (if that is Independence Day, and the date when the Scottish MPs depart).  It is provided by the Fixed Term Parliaments Act.  Under that Act, if the government loses a formal no confidence motion, and no alternative government can be formed within 14 days, then fresh elections must be held.  But that formal constitutional answer might not be a sufficient answer to the political difficulties facing the government from the outset.

We could have a ‘temporary’ or ‘transitional’ government for a period of time until Scotland formally leaves the union.  Public sentiment in the rest of Britain is unlikely to be sympathetic to the idea that the Scots who are leaving the Union are ‘imposing’ a government on the rest of the UK (think of the headlines in the Sun and the Mail).  Another twist is that the UK government negotiating the terms of Scottish independence would be responsible to a Westminster Parliament which still contains Scottish MPs.  The UK government should be negotiating on behalf of rUK, the rest of the UK after Scotland has departed.  But if Scottish MPs held the balance of power at Westminster, they might be able to ensure terms which were more favourable to Scotland.

For Ed Miliband being reliant on short lived Scottish MPs to form his first government would be a nightmare scenario.  He will be praying even harder than David Cameron for a No vote in September.

Scottish Independence: the Timetable

Now that the Scottish government has published its independence White Paper, Scotland’s Future, people are beginning to focus not just on the wide range of issues that need to be negotiated, but the relatively short timescale in which to do so.  The timetable set out by the Scottish government is as follows:

September 2014: Referendum

May 2015: UK General Election

March 2016: Independence for Scotland

May 2016: Elections to Scottish Parliament.

When asked by the media to comment, I said last year that the timetable was tight but realistic.  Not everything would be settled in 18 months, but the big issues could be, and a lot of the lesser matters left to be sorted out later.  The Czech-Slovak divorce took just six months after the decision to separate, and was given effect through 31 Treaties and some 12,000 legal agreements, many negotiated subsequently (see chapter 4 of our book Scottish Independence: A Practical Guide, by Jo Murkens, Peter Jones and Michael Keating).  So 18 months seemed not unreasonable, if both parties negotiated in good faith and with a sense of urgency.  To allow the negotiations to drag on for years would be debilitating for both countries, creating uncertainty for business, the markets and the economy, as well as for citizens and for our international partners.

Alex Salmond mentioned my support for the Scottish government’s timetable at the launch of their White Paper.  But I have since had to cause to recant.  What I had overlooked was the time required for legislation at Westminster and the Scottish Parliament to give effect to independence.  The negotiations on all major matters will need to be concluded before the legislation can be introduced.  Westminster will not tolerate a framework bill allowing the two governments to fill in the details.  Nor will Westminster tolerate an urgent bill being rushed through under a guillotine.  As a first class constitutional measure, it would have to take its committee stage on the floor of the House.  Even if the government did manage to impose a guillotine in the Commons, it has no control over the timetable in the Lords, who will want to allow plenty of time for a bill of such importance.

How long might the legislation take?  The closest analogy is perhaps the Scotland Act 1998, whose passage took 11 months.  It did so under favourable circumstances, in the first session of a new government elected with a landslide majority of 179.  The difficulty for the independence negotiations, as Nick Barber has pointed out [http://ukconstitutionallaw.org/2014/01/14/nick-barber-after-the-vote/], is that there may be a change of government in the UK at the half way mark, in May 2015.  A new government may not feel ready to introduce legislation immediately to give effect to negotiations conducted by its predecessor.  It may want to re-negotiate certain aspects.  The earliest possible date for introducing a Scotland Independence Bill is likely to be autumn 2015.  Given the opposition there is likely to be in both Houses at Westminster to Scottish independence, which will be expressed as hostility to the terms of independence, it will not have an easy passage.  It would be a miracle if the bill was passed in six months, in time for Salmond’s target date of March 2016.

Will Ministers want an EMO?

Whitehall has a new acronym – the EMO.  Not some exotic bird, but Extended Ministerial Offices, first announced by Francis Maude in July.  Last week Cabinet Office published guidelines fleshing out the details: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/261358/November_-_EMO_Guidance_to_Departments.pdf

EMOs will have three categories of staff: civil servants in the traditional Private Office role, Special Advisers, and external appointees.  The main expansion is likely to be in the third category, and the Civil Service Commission have created a new exception to allow recruitment without competition of chosen individuals as temporary civil servants for up to five years.  The previous maximum was two years: the new exception will allow outsiders to be recruited for the whole of a Parliament.

Ministers who want an EMO will need first to agree the mix of staff and the budget with their Permanent Secretary, before seeking the approval of the Prime Minister.  The budget must come within the department’s overall allocation.  The main quality control will come from Cabinet Office and the PM’s Chief of Staff in scrutinising EMO proposals: the PM is unlikely to give this his personal attention.  A few Ministers may go up from two Special Advisers to three.  But the main test will lie with the external appointees: will they be additional cheerleaders, or serious policy experts?  No 10 will be alert to negative headlines (eg The Times 19 November) and may be tight in what they allow through.

There are two twists in the tail for Ministers who want an EMO.  The first is that at least one member of the EMO must focus on implementation, reporting to the Head of the Cabinet Office Implementation Unit. So there is a direct line reporting line from the EMO to the centre on whether the department is meeting its targets.  The second is that requests must include ‘specific proposals for strengthening the offices of junior Ministers … of a different party’.  Where no EMO is planned, junior ministers can put forward their own proposals.  This is primarily to strengthen the support for the dozen Lib Dem junior ministers scattered round Whitehall, who feel isolated and outgunned. But it will require courage for them to go it alone: they must discuss their proposals first with their Secretary of State, who may not want to give the Lib Dems additional firepower.

Will many Ministers want an EMO?  In the remainder of this Parliament that seems unlikely.  Maude will have to have one, to set an example; but only a handful of colleagues may follow.  Energetic Ministers like Gove have already found ways of recruiting additional advisers, and may not want to seek approval from the centre.  And outsiders may be reluctant to sign up for an 18 month passage when the ship is beginning to run out of steam and they may be paid off in 2015.  So the real test will be in the next Parliament.  In an interview with Civil Service World Labour’s shadow Cabinet Office  spokesman Jon Trickett said that he supported the government’s plans for EMOs [link - http://www.civilserviceworld.com/trickett-civil-service-reforms-ad-hoc-with-hectoring-tone/].  But that was off the cuff, in the margins of the Labour party conference; we don’t know Miliband’s views.   If we have another hung Parliament, the future of EMOs might depend not on Francis Maude, but on the Lib Dems carrying his idea into the next government if they hold the balance of power.

The Royal baby, the Rules of Succession, and the Realms

15th July 2013

In anticipation of the birth of the Royal baby, Parliament passed the Succession to the Crown Act in April 2013.  It provides that in future the eldest child will be next in line of succession, whether it is a girl or a boy.  The law will not come into force in time for the Royal birth, but the new baby when born will be next in line.  This Blog post explains the background, and the difficulties involved in changing the rules of succession.

Why have the rules of succession been changed?

Over the last 20 years a series of Private Member’s bills have been introduced into both Houses of Parliament to provide for gender equality in the rules of succession to the Crown.  The Labour government did not resist the principle of the change; but it explained that such a change could be initiated only by the government, because of the need to engage with the 15 other countries of which the Queen is head of state (the Realms).  The government supported the change because of the equalities legislation it had itself introduced.  Another motivating factor was that the other European monarchies were all amending their laws to introduce equal primogeniture.  Sweden was the first to change, in 1980, followed by the Netherlands in 1983, Norway in 1990, Belgium in 1991, Denmark in 2009, and Luxembourg in 2011.  Spain has said it will switch to equal primogeniture, but the Spanish constitution has not yet been amended.

Although supportive of the change, the Labour government ultimately failed to act because it was daunted by the size of the task involved in engaging with the Realms; by further complications, such as whether to address the discrimination against Catholics which is also built into the rules of succession; and because there was no immediate reason to do so.

Why now?

The marriage of Prince William and Kate Middleton in April 2011 provided a spur to action.  What had been a hypothetical problem became a real possibility.  Having written to them beforehand, in October 2011 David Cameron used the Commonwealth Heads of Government meeting in Perth, Australia, to engage with those Commonwealth countries that are also Realms and seek their agreement to change their own laws.  The UK government has said that it will not bring the new law into force until all the Realms have made the change.  When the change is made, it will be backdated to 28 October 2011, the date of the agreement announced in Perth.

Why has changing the law taken so long?  The Realms

Changing the rules of succession for the UK is complicated because the British monarch is head of state of 15 other countries, known as the Realms.  These include large countries such as Australia, Canada, Jamaica, New Zealand; and small countries such as St Vincent, Tuvalu and the Solomon Islands.  (The full list is Australia, New Zealand, Canada, Jamaica, Antigua and Barbuda, Belize, Papua New Guinea, St Christopher and Nevis, St Vincent and the Grenadines, Tuvalu, Barbados, Grenada, Solomon Islands, St Lucia and The Bahamas).

The UK government and Buckingham Palace want any change in the rules of succession to be introduced throughout the Realms (if there were different rules, that could lead in time to different members of the Royal family succeeding in different countries).  Under the Perth agreement all the Realms agreed to make the necessary changes to their own laws.  The nature of the change required varies roughly in proportion to the size of the country: the smallest countries may simply pass a Cabinet resolution, others will legislate in parliament, while the largest countries may need to amend their constitutions.

Australia and Canada face particular difficulties because they are federations, where the consent of the states (in Australia) or the provinces (in Canada) is required for any constitutional amendment.  In Australia a compromise has been agreed that the State Parliaments will request the federal Parliament to change the law.  In Canada a minimalist law passed by the federal Parliament has since been challenged on the ground that changing the office of the Crown properly requires amendment of the Canadian constitution.

Will the Royal baby be next in line?

As the eldest child, the Royal baby will be next in line of succession after Prince William, whether it is a girl or a boy.  It does not matter that the new law has not been brought into force providing for equal primogeniture: so long as there is only one child, it is next in line.  The new law would only be needed if the eldest child is a girl, and a second child is subsequently born which is a boy.  The UK government hopes and expects that all the Realms will have come into line in the next 6-12 months, so the new law should have come into force by the time of the birth of any second child.

What other changes were made to the rules of succession?

Two other changes were made.  The Royal Marriages Act 1772 was repealed, and in future only the first six persons in line to the throne will require the Sovereign’s approval to marry.  Second, marrying a Roman Catholic will no longer disqualify a person from being in the line of succession.  But the prohibitions on the Monarch being a Roman Catholic remain: the Sovereign continues to be Supreme Governor of the Church of England, and must be in communion with the Church of England.

What does this change tell us about the British constitution?

Being unwritten, the British constitution is very easy to amend. Big changes, such as devolution to Scotland and Wales, reforming the House of Lords, or the Human Rights Act can be introduced by simple Act of Parliament.  What this episode shows is that changes to the succession to the Crown are much more difficult, because the change needs to involve not just the UK but the 15 other Realms.

It will have taken two to three years to effect this small change.  The difficulties in the Realms are multiple and varied.  Some saw this as a project of the UK government, and little to do with them.  Some struggled to realise what was required.  Some did not wish to provoke a wider debate about the monarchy.  At the other end of the scale, the two largest countries, Australia and Canada, have constitutions which are notoriously difficult to change.  So if any future change requires a constitutional amendment in either of those countries, the difficulties are further compounded.

It is too early to tell whether this small change has further consequences for the Realms themselves.  They are a widely scattered group of countries, most of whom have little in common.  It is possible that this exercise will have brought them a little closer together; it is also possible that it prompts some to question the link with the monarchy of a country so far away.

Mrs Thatcher and State Funerals

12th April 2013

So, what is the difference between Mrs Thatcher’s and a state funeral?  Doing media interviews this week, I have confidently stated that a state funeral involves:

  • A vote in Parliament
  • The coffin lying in state in Westminster Hall
  • The gun carriage bearing the coffin being drawn by sailors rather than horses.

My reliable source?  An unusually authoritative and detailed entry in Wikipedia, titled State Funerals in the UK.

But now I am not so sure.  If the purpose of the vote in Parliament is to authorise the spending of public money on the funeral, how is it that Mrs Thatcher’s funeral will be largely funded by the state, but without any parliamentary authorisation?  (Someone from the Treasury please answer).  And can Parliament authorise expenditure by simple resolution, based on a humble Address?  Here is the text of the parliamentary approval for Sir Winston Churchill’s funeral:

‘That a humble Address be presented to her Majesty, humbly to thank her Majesty for having given directions for the body of the Right Honourable Sir Winston Churchill, Knight of the Garter, to lie in state in Westminster Hall and for the funeral service to be held in the Cathedral Church of St Paul and assuring her Majesty of our cordial aid and concurrence in these measures …’  (Hansard 25 Jan 1965).

The second element, lying in state, is clearly not a defining element of state funerals, since the Queen Mother had a lying in state in Westminster Hall in 2002, as part of her ceremonial funeral.

That leaves us with the third element, the gun carriage being drawn by sailors.  Wiki explains that the tradition dates back to the funeral of Queen Victoria, when ‘the horses drawing the gun carriage bolted, and so ratings from the Royal Navy hauled it to the Chapel at Windsor’.  That sounds alarming: a gun carriage careering out of control, the coffin sliding off …  The reality was less dramatic: the horses seemed restive, and so the sailors were substituted to be on the safe side.  The Buckingham Palace website records:  ‘The horses that were supposed to pull the gun-carriage became restless standing in the cold and were behaving in a dangerous manner, so  a team of sailors took over the task of pulling the gun carriage to St George’s Chapel’.

So, what is a state funeral?  I now think that it is a funeral for a head of state, a state occasion attended by other heads of state.

And who apart from the Sovereign has been accorded a state funeral?  Wikipedia gives a full list: remember these for your next Constitution Unit quiz.  It includes:

  • Four Prime Ministers (Wellington, Palmerston, Gladstone, Churchill)
  • Three Field Marshals (Napier, Roberts and Haig)
  • Two Admirals (Blake and Nelson)
  • Plus Sir Philip Sidney (1586), Sir Isaac Newton (1727), and that old rogue Lord Carson (1935).