The commission on the West Lothian question looms, sort-of

Thursday’s UK Government announcement about the long-proposed ‘commission on the West Lothian question’ is more of a non-announcement.  The Commission was of course promised in the Coalition agreement of May 2010, but precious little has been heard about it since then.  The use of a commission suggested an attempt to kick the issue into touch more than anything, as it’s not a pressing issue once the Conservatives are in office and it’s a bone of contention between the Conservatives and the Lib Dems.  In this, it has clear resemblances to the commission on the UK bill of rights, finally established in March and which produced a rather sketchy issues paper in July.  Mark Harper’s brief statement is available here.  There news reports from the BBC here and the Scotsman here (though they don’t add much to the statement).

Clearly the pressure of Harriet Baldwin’s bill on territorial extent clauses, and the need to throw some red meat to the Conservative back benches, has led to an announcement that … there will be an announcement in due course. A remit will be set out in October.  It’s not clear whether members will be announced then, or later.   This sequence of announcements that don’t have anything new in them is all rather reminiscent of the ongoing process surrounding the ‘Ap Calman’ commission in Wales, of course.

The most interesting point is that the Commission is to be composed of independent academic experts.  Some (notably Robert Hazell) have suggested this would be a task best discharged by a joint committee of both Houses of Parliament, including senior parliamentarians from both Houses (and presumably all parties).  That would have called for very careful management to avoid party differences leading it to a stalemate.  Instead, the choice has been made to try to depoliticise it (though there is to be consultation with the Speaker and input from the parties.   However, as the issue is of its nature highly political, it looks as though the key decisions will fall to be resolved by politicians after the Commission has reported.

(This post also appears on Alan Trench’s blog, Devolution Matters, which can be found here.)

The Welsh referendum result: Wales said Yes

The results from the referendum on the National Assembly’s legislative powers on 3 March produced a very clear mandate for the Assembly to have primary law-making powers: the vote is 517,132 votes in favour, and 297,380 votes against (or 63.5 per cent to 36.5 per cent).  There’s news coverage from the BBC here and the official results from the Electoral Commission are here.  Of the local authority areas used for counting, only Monmouthshire voted No – and that by just 320 votes.  While the Yes vote appears to have been weaker in eastern parts of the country, it varied relatively little across the country (and much less than it did in 1997).  There’s a good discussion by Roger Scully of the result on the BBC News website, available here.

Turn out was 35.2 per cent; not high, but higher than in some other referendums, and higher than some predictions.  Given the limited public visibility of the campaign (compounded by True Wales’s decision not to apply to become a designated campaign organisation), the inherent obscurity of the issue and the confusing nature of the question, that has to be regarded as a comparatively strong showing.  Rachel Banner of True Wales has accepted that it’s a clear mandate for an Assembly with legislative powers.  This result suggests strongly that legislative devolution is indeed the settled will of the people of Wales.  Perhaps the shadows created by the defeat in 1979 and narrowest of victories in 1997 will now pass into history.

Ironically, the result comes just as the Boundary Commission for Wales announces how it plans to review the Westminster constituency boundaries, so as to reduce the number of Welsh MPs from 40 to 30 (the same quota as for England or Scotland).  One of the problems that hobbled No campaigners was the prospect of reduced representation at Westminster whatever happened.  If Wales had voted No, it would have faced the double whammy of that combined with limited devolved legislative powers – a sure way to minimise Wales’s overall influence over government.

The referendum result has triggered a flurry of activity on other fronts.  First, there is the question of bringing the new powers into force.  The First Minister announced on Tuesday that an order regarding that would be laid later in the week for debate on 29 March, and providing for the new powers to come into effect on 5 May (polling day in the Assembly elections, of course).   His statement is here.  That means the new Assembly will have primary law-making powers as soon as it meets.  At the same time, work is underway on formalities like letters patent and a Welsh seal for signifying Royal assent to Assembly Acts.

Second, the debate about the Assembly’s finances has revived.  The referendum put this on hold – Welsh politicians didn’t particularly want to talk about it during the campaign, and the UK Government had signalled that it would only take action if there was a Yes vote.  But now confusion reigns.  Some politicians – including Nick Clegg and Cheryl Gillan, both speaking at their parties’ conferences in Cardiff at the weekend – have stuck to the Coalition’s commitment in the Programme for Government about a further commission to look at the issue, despite the work of the Holtham Commission.  Other UK politicians have moved beyond this and talked about implementing Holtham, though with greater interest in tax powers than a ‘fair’ (needs-related) grant.  Carwyn Jones, on the other hand, is keener on a ‘fair grant’ than tax-varying powers.  There’s also the question of whether a further referendum on that would be needed.

All this makes for exciting times in Wales’s developing constitution, in the short interval between the referendum and the start of the Assembly election campaigns.

Michael Moore, the Scottish Affairs Committee and the Scotland bill

When Michael Moore, the Scottish Secretary, gave evidence to the Commons Scottish Affairs Committee last week, he largely played a straight bat and avoided giving much away.  But late in the session (which is still recycling periodically on the BBC Parliament channel), he made two pretty startling statements.

One was to announce that the UK Government wouldn’t necessarily respect the Sewel Convention if the Scottish Parliament requested ‘fundamental’ changes to the Scotland bill – say, increasing the devolved income tax power from 10 points to 15 – which the UK Government didn’t wish to make.  Rather, it would push the bill through regardless.

This is startling because the Sewel Convention is the foundation on which devolution rests.  The Convention provides that the UK Parliament will not legislate for devolved matters without the consent of the devolved legislature involved.  While there’s an ambiguity about how it affects the UK Parliament, the UK Government has clearly committed itself to the Convention in the Memorandum of Understanding.   The Convention is a powerful and ingenious constitutional tool, which squares the circle between a division of power set out in a written constitution and then set in stone, as in most federal systems, and the principle of the sovereign UK parliament conferring legislative powers on other legislatures.  It rebuts Enoch Powell’s claim that ‘power devolved is power retained’, and makes devolution a viable alternative for a country with an unwritten constitution.   The saving clause in it (it talks of the UK Government ‘normally’ complying with devolved wishes should only be used in the direst of emergencies – not a case where there’s a serious constitutional disagreement between the Scottish Parliament and UK Government over the nature of devolved powers.

Moore’s other statement relates to clause 23 of the Scotland bill, a curious provision that enables UK Ministers to act regarding devolved matters if that is to fulfil a UK international obligation.  The Command paper explaining the bill offered no clear rationale for this.  The trigger turns out to be two cases where the Scottish Government took a year longer than the UK Government to implement agreements concerning two minor organisations ancillary to the European Union.  But the Memorandum of Understanding protects the UK Government from any financial liability (it’s passed on to the devolved administrations), and the UK already has power to implement EU obligations anyway.  It’s now clear that this clause is much wider than is needed to deal with any harm the UK can suffer.

I’ve written more detailed posts about both these issues on Devolution Matters; that on the Sewel Convention is available here, and that on clause 23 is here.

Legislative consent from Wales, or not: blocking Police and Crime Panels

There was an interesting development in Wales last week, when the National Assembly voted against giving its legislative consent under the Sewel convention to the Westminster legislation creating Police and Crime Panels.  These are part of the proposals for elected police commissioners that are the centrepiece of the Coalition government’s Police Reform and Social Responsibility bill.

This is the first time a Westminster bill has been denied legislative consent under the Sewel convention – this has never happened to any bill affecting Scotland.  The reason is partly to do with party politics – while Conservative and Lib Dem AMs supported the UK bill, it was opposed by Labour and Plaid Cymru.  It’s also to do with what looks like legislative laziness, as the Police and Crime Panels are constituted as local authority committees (the bulk of their members will be councillors, but they’re not constitutionally part of any local authority).

Having got into this jam, the initial indications are that Home Office intends simply to insist that Westminster, as the sovereign parliament, has power to enact the legislation despite the National Assembly’s views.  As I’ve explained in a detailed post on Devolution Matters available HERE, that would be a grave mistake.  It would seriously upset the constitutional relationship between the devolved legislatures and UK Parliament, and risk a very messy legislative situation.  Moreover, with the Scotland bill under consideration at both Westminster and Holyrood, it would raise the stakes relating to that as well.

The Scottish Government lifts the veil on intergovernmental relations

This post also appears on Alan Trench’s blog, Devolution Matters, where it can be found here.

The Scottish Government has clearly, in its last few weeks, decided to stop playing nicely when it comes to intergovernmental relations. Hitherto, it’s scrupulously observed the convention that relations are, for the most part, to be conducted behind closed doors. After taking considerable amounts of criticism, it’s decided to place large quantities of correspondence and other records of its dealings with the UK Government (and other parties) into the public domain.

The documents they’ve released relate to two controversial issues. One is the debate about devolution finance: the UK Government’s proposals to implement the Calman recommendations, and its alternative of full fiscal autonomy. These cover the period from May 2010 to January this year.  The other is the release of Abdelbaset Ali Al-Megrahi, the Lockerbie bomber, following the publication of Sir Gus O’Donnell’s review of the papers. These cover the period from August 2009 to October 2010, though some relate to earlier events.  These records are going to be a treasure trove for researchers and others interested in how intergovernmental relations in the UK work, especially as they’re exempt from disclosure under the Freedom of Information Act 2000; our own version of the Wikileaks disclosures of US diplomatic cables, perhaps.

The finance papers can be found here.  The Lockerbie papers are here.

In releasing these papers, the Scottish Government appears to be sending two clear warnings to the UK Government. First, that the UK Government should assume that everything said or done in the course of those relations may be put into the public domain, so it shouldn’t assume that it can pursue one line in public and another in private. Second, the UK Government shouldn’t seek to use selective disclosure of documents and questionable précis of them as a way of trying to win the public end of that debate.  The use of that tactic by UK Government, for example over the Scottish variable rate, has significantly undermined the sort of co-operation and mutual respect for confidentiality that are much emphasised in the Memorandum of Understanding and have been regarded as underpinning intergovernmental relations up to now.  It would be an exaggeration to call this a ‘crisis’ in intergovernmental relations, but it is a serious blow to the established way of doing things, based on the UK’s assumption that there’s a broad consensus behind what it does and if not that it can out-muscle devolved governments.  It strongly suggests that the UK Government will need to take a much more coherent and strategic approach to intergovernmental relations than it has done, particularly recently.