The referendum: “the weapon of entrenchment” can be a two edged sword
March 2, 2013 2 Comments
2nd March 2013 Read more of this post
Judicial Independence in Northern Ireland
November 26, 2012 Leave a comment
On 6 November the Judicial Independence Project held the sixth in our series of practitioner seminars on ‘Judicial Independence in Northern Ireland’. The series is run under Chatham House Rule but we have prepared a short note which is available on our website. Read it here.
A strong theme that emerged from the seminar was that the current system for administering the court system in Northern Ireland is an interim one – a step on the road to something more permanent – although one that has fortuitously turned out to work quite well. Most participants felt that something like the Irish or Scottish models for court administration, in which the court system is run by judges with a high degree of independence from the legislature and executive, should be the ultimate destination. However, there are practical problems with this because the judiciary in Northern Ireland is so small and it may be difficult for them to devote greater time to administration.
The appointment of judges is also a key issue in Northern Ireland. At present the Northern Ireland Judicial Appointments Commission (NIJAC) is judge-led, in large part because the main political parties did not trust each other with the appointment of judges. Some participants felt that this created an accountability problem for NIJAC and that there should be moves towards greater political oversight, although there was strong disagreement on this point.
The size of a Scot-Free House of Commons
February 2, 2012 1 Comment
The effect of Scottish independence on the United Kingdom is being discussed in all sorts of contexts, such as division of energy reserves, military resources, national debt (and probably even the Royal Yacht Britannia at Leith!). One interesting effect will be the size of the House of Commons when there are no Scottish MPs.
The present boundary reviews, giving effect to the new legislation reducing the overall size of the Commons, will see 52 Scottish seats out of a total of 600 after the next election, set for 2015. So, if and when Scotland departs the Union – whether this is before or after the next general election - there will be just 548 MPs. This will be, I think, the smallest number since the Union of 1707.
Will this be viewed as an added free bonus for those seeking significant cuts in the number of MPs, or an opportunity for restoring any dilution of representation caused by the current cut of 43 MPs in the remaining UK? Has this even been discussed seriously amidst all the constitutional debates and legislation of the last 2 years, or is this another example of ‘non-joined-up’ constitutional reformism?
How will the relatively few MPs from outwith England feel in a Union Parliament even more dominated by English MPs? Will it be an English Parliament in all but name? Might this new scenario arguably justify some greater degree of compensating ’over-representation’ for Wales and NI? As noted in my previous post (here), is any of this within the narrow remit of the McKay Commission on the ‘West Lothian Question’, and, even if so, would it want to look at just the Welsh and Northern Irish aspects? And wait until someone raises the ‘Lords WLQ’, ie ‘Scottish’ peers – however defined! – continuing to sit, and to speak and vote on all UK matters….
Thinking about a post-Scotland Union
January 26, 2012 1 Comment
In a recent post (here), I looked at the future of the Union in the context of the proposed referendum on Scottish independence. This new post does not examine those aspects which are being well-aired by others, such as the mechanics of a referendum (timing, question, franchise, legal basis etc) and implementation of its result (either way) or the economic or political viability of an independent Scotland. What I want to develop briefly from the issues raised in the previous post is the nature of the Union, if Scotland should become ‘independent’ of the UK as presently constituted.
The last few weeks of the constitutional issue being at the forefront of media and political debate have exemplified all the problems and potentialities that have been raised over the years. The debate has ranged all the way from mature, technical examination of the constitutional legalities to what may be characterised as little better than latent prejudice (especially in some reaction ‘south of the border’). But the core contradiction remains, and is being peddled as furiously as ever. That is, the parallel arguments that Scottish independence would ‘destroy’ the Union and that the Union would continue even if Scotland was no longer a part of it. This is muddled by the constant confusion/conflation of ‘England’ and the ‘UK’, and the related problem of the Union question too-often being ‘simplified’, or, more accurately, wrongly described, as a Scotland-England issue. All these unfortunately cloud the serious constitutional debate, both in theory and in practice, eg who should be able to vote in a referendum on Scottish independence, and examination of the various aspects of the ‘West Lothian Question’.
For all in the current Union, especially those outside Scotland, the nature of this Union now, and what it may or may not be after Scottish independence, is a vital issue in informing the current debate. Will it be – as seems to be generally assumed almost by default – a Union of England, Wales and Northern Ireland, carrying on ‘as normal’ save for the absence of Scotland (much as happened re Southern Ireland in last century)? Will the Union break up completely into four separate, independent countries, and if so, how is that achieved – somehow legally automatically as a consequence of Scottish independence (extremely unlikely), or as a result of further constitutional change, such as further referendums in some or all of the remaining parts of the UK? Will there be a constitutional and political redefinition of a post-Scotland Union, perhaps in some form of regional/federal direction, to take account of the even-greater asymmetry that would result (in all sorts of West Lothian, Barnett and other contexts)?
The options’ or ‘solutions’ cannot really be considered in any informed way without considering the nature of the current Union, in ways including those raised in my previous post, such as whether the 1707 Union may arguably be so much the defining and necessary component of the Union such that its severing must lead to the dissolution of the Union and negate the option of a continuing Union of the three remaining countries. In that sense, it is very different consitutionally from the relationship of Wales to the Union, and of Northern Ireland to the Union (the latter even having existing statutory arrangements for leaving the Union).
For example, others have commented on the narrowness of the remit of the new McKay Commission on the ‘West Lothian Question’. On the face of it, it will not be able to contemplate the possibility of Scottish independence and its impact on the Union and the Union Parliament. While this may seem constitutionally ‘proper’ from a ‘Centre’ perspective, is it politically wise, especially now that we are entering a period where we are, or should be, openly ‘thinking the unthinkable’? For this high-powered Commission to spend its valuable time devising schemes – after, apparently, only consulting ‘experts’, rather than having a full, online public consultation – that may prove redundant, or in need of fundamental reframing, because of any external change such as Scottish independence, is wasteful and short-sighted. Much will depend on whether the Commission looks at each country’s relationship with the Westminster Parliament discretely, or on the basis of a common system with necessary adaptations for each case (much like the 1990s issue of whether we were creating one devolution with three variations, or three individual devolution schemes). Even if Scotland remains in the Union, there may be a situation of , say, ‘devo-max’ – will the Commission be able to create arrangements that can encompass not only variable devolution across the nations, but also potentially different degrees of devolution within each nation?
Similar considerations apply to other aspects of the Union, such as financing/Barnett. Will analysis on the basis of a three-nation Union be different from that of a four-nation one?
So let us get on with some real discussion within and between all parts of the Union, such as what Wales or Northern Ireland think of what their positions in a smaller Union or post-Scotland arrangement might be, or what England (and its various sub-divisions) thinks in so far as that is different from what the present Union ‘Centre’ thinks. We need to hear from the political parties both at UK and national level, for example. The issue is greater than ‘saving the Union’ or ‘losing Scotland’ or whatever. A Scottish independence referendum should not be treated by the political classes as a one-off event, to be dealt with and then to move on, with any ad hoc responses as may be seen to be required, if any (much like the 1975 EC or recent AV referendums). The opportunity should be grasped for a ‘no holds barred’ examination of the whole constitutional system in these isles.
For Unionists, this could mean not merely a Union saved, but a better, more acceptable and viable Union, with some of the anomalies and frictions – West Lothian, Barnett etc – diminished or removed. For others, it may mean an amicable departure of one consituent component of the current Union, or even dissolution of the current Union. At the very least, a full and frank, informed debate could ‘clear the air’ of much of the tensions and confusions that have grown up over decades and especially since the late 1990s, making any future constitutional development, in whatever direction(s), more not less practicable.
But what Union?
January 11, 2012 6 Comments
Amid all the renewed discussion of ‘Scotland & the Union’ – inc referendums and West Lothian Commission – one core issue still remains almost unasked, never mind unanswered. What is this Union that is being fought over?
Put aside all the current legal/political/constitutional arguments, such as the confusion/conflation (whether by deliberate policy or ignorance) about whether an independence referendum would be ‘legal’ and/or ‘binding’. What it all boils down to is a relatively simple matter – should what we know as ‘the Union’ (calling it the ‘United Kingdom’ adds an extra and unnecessarily complicating layer of argument) continue as it is, and as it has been developing for 300 years, or should it be significantly altered or even dissolved, primarily because of a decision over Scotland’s place within it?
From a realpolitik perspective, this has always been overshadowed by the one, determining geo-political fact of England’s huge dominance within this Union of 4 nations/territories. To much of the outside world, the UK is ‘England with some other bits added on’, ie a kind of (if it can be so described neutrally) ‘Greater England’, or even to many, ‘England’. More importantly, this is how the Union is also perceived by many internally – whether by nationalists as an argument for ‘independence’, or negligently by the dominant English. Hence, much talk in political and media circles of ‘losing’ Scotland, in much the same way as Southern Ireland was ‘lost’ last century.
These confusions breed the contradictions that bedevil this whole question, politically and constitutionally. It allows, for example, claims that the Union is little more than England’s last, domestic Empire. Is there a distinction between ‘Britain/Britishness’ and ‘England/Englishness’. The feeble and unsuccessful attempts over recent years to identify and define ‘Britishness’ as something distinct from ‘Englishness’ suggest not. England’s dominating place, due to population etc, makes it difficult for institutions to be established that reflect and represent it alone. Most such institutions – from the Parliament at Westminster to the BBC’s ‘National’ services – tend to have to double-run as UK and English (or sometime English/Welsh) bodies. Devolution (especially since the late 1990s) has made this much more complex, whether for good or ill. The Westminster Parliament and Whitehall Government have to act for the UK, GB, England/Wales/NI, England & Wales and England in various guises – not in itself an insuperable task, but one which doesn’t lend itself easily to public understanding., especially when the Union itself is the issue.
Neat, rational attempts to ‘solve’ these issues – by English regionalism or by some more formal form of federalism – have either failed or not been attempted, because they do not solve the basic asymmetry of the Union – that, in a Union of 4 nations, one is overwhelmingly large and dominant, which has either to be accepted as such (even if creating parallel institutions for it may seem both financially and practically wasteful) or ignored. So, we have the problem or conundrum of what the Unit calls ‘the English Question’ – how to recognise and represent England within this asymmetrical Union.
Another conundrum or paradox is how to treat the 3 ‘smaller’ parts of the Union. This seems to be through a Centre policy of keeping them sweet, so that they remain part of the Union, especially through perceived financial advantages (Barnett etc) and ‘disproprotionate’ political means (devolution, Commons ‘over-representation’ etc). This sends the message that the Union is not one of genuine voluntary members and partners, but rather one where one or more of them have to be ‘kept in’, lest they want to leave the club. This both undermines the Unionist message of a mutually advantageous and supported Union, and breeds resentment within England of favourable treatment of the ungrateful periphery, raising the more fundamental question within England of whether the price of Union is one worth paying – and, if so, why?
That the Union is one of ‘nations/countries’ rather than of regions is clear, otherwise economic and related questions would apply as much to the disdavantaged areas of England (and their own asymmetry vis-a-vis London and the South-East of England) as they do to Scotland, Wales or NI. So any constitutional issues appear to be soluble only at the nation/country level, unless some more compelling arguments are made for a viable form of regionalism or regionalised federalism. The idea of a pan-European solution somehow making the problem go away in some form of ‘Europe of the Regions’ or otherwise – much like the fantasy talk some decades ago about ‘solving’ the Irish Question througfh the virtual withering-away of the Irish border within a developing Europe – seems off the table for now at least. Ideas of a wider ‘These Isles’ solution that somehow combines the present UK and Ireland in some post-modern not-quite-confederation seem to have receded too, if they were ever really considered.
So, the current real debates on the Union, largely driven by the Scottish aspects, need to focus on what the Union is, and what is wanted from it or from a reshaped version of it, or even from its dissolution. The contradictions – deliberate or otherwise – in the current debate need to be addressed. For example, will Scottish independence ‘break up the Union’ or will it mean that a ‘smaller UK’ carries on regardless much as it did after most of the island of Ireland left it? The immaturity of the current debate, sadly, is such that both arguments can be propounded by the same people at the same time.
Suppose Scotland did ‘leave’ the current Union, is what remains really the Union, however diminished? The difference between Scotland and Ireland is both historical and constitutional, in terms of the nature of the pre-existing ‘partnership’, with the Scottish Union with England supposedly (depending on your view of history) a far more genuine and voluntary one than was Ireland’s conjunction with the rest of the British Isles. In that sense the 1707 merger is what fundamentally defines the Union, and so its dissolution must be more than a mere diminishing, but logically must be a dissolution. Yet, in the absence of any genuine debate of a post-Scotland Union, the conventional assumption seems to be that a Union of England, Wales and NI carries on, with the focus not on it but on the constitutional implications for an independent Scotland, esp in relation to this continuing Union and to the EU and other international/supranational bodies.
And what is the Welsh and Northern Irish perspective on all this? Have they been surveyed on their views of a future post-Scotland Union? This argument, if discussed at all, seems to be stuck at the level of UK-wide referendums on Scottish independence, which is really another way of saying ‘England should decide’. That doesn’t really assist anyone. Would a Scottish departure prompt some rethink within this Union-Lite for further constitutional realignments, both internally and re Scotland, Ireland, Europe etc? Would it really be a continuing Union or a dissolved Union that somehow nevertheless carries on without Scotland? Does anyone really think that ‘losing’ Scotland solves all the constitutional anomalies within the current Union, rather than making them worse, by making English dominance over the Union-Lite, and especially its remaining two other members, even greater?
Lots of questions. Time for some of them to be asked and seriously discussed.
The Scotland Bill and new taxation powers: sensible step by step or a botch?
January 27, 2011 2 Comments
A major but arguably flawed stage in the development of devolution has comea step nearer as the Commons debated the Scotland Bill today, giving the Scottish Parliament the right to levy up to 10% income tax and some lesser measures. BBC Scotland’s political editor gives the immediate background.
Our colleague in Edinburgh Alan Trench powerfully critiques the Bill in his must-read blog Devolution Matters.
The Bill would make the Scottish Parliament responsible for generating about a third of its own spending from tax revenues. But it does so very largely from income tax; the parliament will also have control over some minor land-based taxes, including stamp duty land tax, but by far the bulk of its revenues will be from income tax. It therefore has a narrow tax base, made narrower by the Bill — the Calman Commission proposed assigning Holyrood a proportion of income tax from savings and share dividends, but this has been dropped.
Then there’s the question of the block grant to Scotland. This will be reduced by an ‘appropriate’ amount, to allow for the new tax-raising powers. But the Command paper Strengthening Scotland’s Future doesn’t say how that will be done — what the ‘appropriate’ amount might be or how it would be calculated. The UK Government had the Calman report for 18 months before publishing the Bill, and in that time the Holtham Commission’s report ( on Wales) set out four methods of doing so. All the Command paper says about this is that ‘the circumstances make a definitive statement on the correct reduction to the block grant inappropriate at this time’. The lack of clarity on this key issue is deeply worrying
Alan goes on to lament the whole approach of successive UK governments to GB devolution since 1999.
The arrangements put in place in 1998-9 were limited, even for Scotland, and were inevitably going to need to develop. Ron Davies famously said ‘devolution is a process, not an event’ – a phrase almost as true for Scotland as it was for Wales. Instead, the UK Government treated devolution as an event, not a process. Once done, it was quickly forgotten
The worst casualty of this way of approaching the debate was the Scottish people. Deserving a serious debate in which the various options for their future were laid out and could be set against each other, what they got was two parallel discussions which have never really engaged with each other. The National Conversation treated the sort of autonomy that comes with independence as its reference point; the Calman process failed to engage with arguments for substantially enhanced Scottish autonomy within the union, and came up with a constitutionally conservative report, adding a measure of ‘fiscal accountability’ to the 1998 settlement.
Holyrood’s Scotland Bill Committee – which has decided to look at fiscal autonomy as well as what the Scotland bill actually contains – is the first time since 2007 that these two debates have been publicly joined up. But it’s happening late, in circumstances that mean the outcome of the debate is pretty clear, and with little time for their consideration. It’s a pretty flawed way of putting these options alongside each other.
What we’ve had, instead, is a debate characterised by a high degree of political partisanship and animosity.
On the Today programme this morning SNP Culture minister Fiona Hyslop put the case for increasing the Scottish Parliament powers to 85% of revenue raised in Scotland, including the right to vary business taxes. Presenter Evan Davis put it to her :
Smaller jurisdictions like Ireland undercut other countries and take a disproportionate share of global investment. It would be stupid for the UK government to encourage tax competition within the UK at the expense of the population as a whole, wouldn’t it ?
Ms Hyslop replied :
“I leave it to you to explain to UK ministers why they’re stupid, as they are have having this conversation with the Northern Irish at this moment in relation to corporation tax.”
Scottish Secretary Michael Moore said the Bill allowed for a further expansion of Scottish taxation powers but the government wished to maintain the tax integrity and single market of the UK.
More later, on reaction to the Bill and the debate.
The Northern Ireland Experience of Conflict and Agreement: A Model for Export?
January 12, 2011 2 Comments
New book by Robin Wilson
The water crisis in Northern Ireland before Christmas, which saw queues of citizens plaintively bringing plastic containers to standpipes, presented the region to the world’s media as akin to a third-world country. It brought home starkly how the restoration of devolution in May 2007 does not mean it is finally a ‘done deal’ which can now (conveniently) be neglected once more in London. The trouble is partly that the governance arrangements, an impenetrable palimpsest of endless successive behind-closed-doors negotiations, are simply dysfunctional–no opposition in the assembly, no collective responsibility in government and a system of mutual vetoes which brings only inertia. And it is partly that power was consciously to be transferred (even in advance of elections to that effect) to two parties identified in a recent , authoritative text as within, and marginally outside, the family of the populist radical right—whose affiliates are elsewhere deemed governmental pariahs.
Yet, ironically, Northern Ireland has, at least until recently, been presented as a political model for export to other ethnic troublespots: Barack Obama appointed George Mitchell to his ill-fated middle-eastern mission in the belief that the former Stormont talks chair could work the same magic with Israelis and Palestinians. So why the region’s ‘peace process’ has not realised expectations—paramilitary violence too has been on the rise again—is of wider public interest. I’ve tried to offer an explanation in The Northern Ireland Experience of Conflict and Agreement: A Model for Export?, based on archive research in London and Dublin on the early 1970s power-sharing experiment, interviews with senior officials associated with the Belfast agreement of 1998 and a comparative look at power-sharing in Macedonia and Bosnia. And I try to chart a political route out of the morass in which Northern Ireland remains—fundamentally from a society where it is assumed superficially that ‘ancient hatreds’ remain in play and that therefore communalism is the only realistic politics to an evidence-based alternative recognising that the (diverse) individual citizen is the only unit of a democratic society.
