SCOTS DEGREES OF SEPARATION

Earlier this year I wrote on this Blog about various aspects of ‘Scotland and the UK’ here, here and here.  Now, the crucial question over the next two years is a superficially simple one: “What does ‘Scotland as an independent country’ mean”?

It should be a truism that voters at an election or referendum should know as much as possible what/who they are being asked to vote for.  This is essential for democratic and legitimacy reasons. Yet, so far, this doesn’t seem to be the case in the 2014 Scottish independence referendum.  It seems that qualifying Scottish voters will be asked simply to agree or disagree with a general, almost abstract, ‘in principle’ proposition, rather than to support or not support a particular constitutional ‘settlement’, as in earlier such referendums in 1975 and 1997.

What would independence mean?

The main – for most potential referendum voters, the only – ‘independence’ on offer is that of the SNP.  Some argue that this form of independence is in reality a strong variant of ‘devo-max’ (‘devo-extramax’? ‘independence-lite’?), because of all the proposed continuing links to UK institutions and policies etc..  Does this matter?

In some sense, all independence in the modern world is relative, especially in practical political, economic and military terms.  The present UK’s sovereignty, practical as well as legal, is less than pure and total, because of membership of bodies such as the EU, NATO and UN, for example.

Again, it can be argued that the SNP’s evolving version of Scottish independence is driven by the realpolitik of winning over voters to the YES camp in 2014, rather than by some theoretical or romantic ideal of independence.  It fits in with the SNP policy of gradualism, presenting post-2014 independence as simply the final, painless step in the devolution journey, completing the process begun in the late 1990s of the creation and development of a Scottish Parliament (and accompanying Government).  In this scenario, many voters may not even realise the political and constitutional significance of the referendum.

Yet, notwithstanding any camouflaging words and policies, at some point there must be a Rubicon to be crossed when Scotland becomes, and is recognised as such, an independent state.  I’m not an international lawyer, but there are at least two relevant aspects of independence here, where Scotland’s status becomes definitively more than devolution, federalism or the like, still ultimately part of a wider independent state, ie the UK:

  • International recognition of independent statehood: it is not just a question of whether Scotland should itself belong to bodies such as the EU, UN or NATO, but whether it can be, is qualified to be, a member of such bodies;
  • Legislative supremacy: the post-independence Scottish Parliament, not the Westminster Parliament, would be the repository of ultimate legislative power, whether or not limited by any ‘higher’ written constitution or by external supranational bodies like the EU.

Pathways to independence

In theory there are various ways in which Scots can have the opportunity of giving ‘informed consent’ to independence.  Whether or not some of these are politically practical or realistic is a different question.

While SNP gradualism implies a degree of ‘independence-by-stealth’ in winning a referendum, there would presumably also need to be some parallel narrative or ‘creation myth’ which is more heroic, resonant and visible, recognising and glorifying that crossing of the independence Rubicon.  This may require, however symbolically if not (in terms of the various relevant jurisdictions) legally, some form of ‘Treaty of Disunion’ as the constitutional bookend to the 1707 Treaty/Acts of Union.

From the UK point of view, Scottish independence would presumably be achieved legally by an Act of the UK Parliament, whether or not accompanied by, or incorporating, any separate ‘treaties’ or other written agreements.  In Scottish domestic symbolic, as well as international law, terms, such a Treaty of Disunion would be made between ‘independent’ states, rather than between a sovereign state and one of its component parts, and it would be this, and any accompanying ‘declaration of independence’ and Constitution, which would be regarded within Scotland as the crossing of the independence Rubicon.

What role, if any, would or should the Scottish people have in any such process?  If there is no pre-referendum detailed elaboration of what ‘independence’ actually means, other than what is said by the various parties and any official umbrella YES/NO groupings, there is a democratic case for a further recourse to the people, by way of a second referendum or otherwise, once a detailed independence deal is finally negotiated, .

If that is not feasible, then there is an argument for some form of ‘constitutional convention’ where the people’s representatives can discuss and ‘decide’ on the terms of Scottish independence.  This would be in tune both with recent Scottish constitutional practice, and with more general modern trends towards participative democracy.  This could be held after a YES vote, and any such ‘settlement’ can then form the basis of whatever constitutional mechanisms (treaties, legislation etc) are used to achieve independence.  It could even be held before the 2014 referendum, so that voters can then see, in detail, the independence package they are voting about.  Scotland has some, albeit unofficial, experience of constitutional conventions; the Commons Political & Constitutional Reform Committee under Graham Allen is currently holding an inquiry on this very subject, and the McKay Commission on the West Lothian Question can more usefully spend its valuable time and expert resources in examining how inter-parliamentary relations with the UK can positively contribute to any such convention and independence-pathway process.

The role of general elections?

There is also the fact of upcoming elections, not just the Holyrood elections in May 2016, but the Westminster elections in May 2015.  If there is a YES vote in late 2014, what would be the purpose, even the point, of the UK general election in Scotland mere months later?  Never mind the parliamentary and governmental impact of the departure of all Scottish MPs at some future date during that 2015 Parliament, would these MPs be, and be seen to be, mere lame ducks, or will they be regarded (if only by themselves) as the UK-level supervisors of the independence process?

And what of the 2016 Holyrood election?  Is the idea that it will be somehow transformed into the first elections to a sovereign Parliament of an independent Scotland, or will they be the last elections to a devolved Parliament within the UK, a Parliament largely devoted to negotiating and finalising a independence settlement?

Arguably, either or both these elections could be utilised to contribute to some form of constitutional convention, albeit a post-referendum one.  Either formally or otherwise, the Scots MPs elected in 2015 could form part of such a convention, perhaps with the existing MSPs and, if thought desirable or necessary, other representatives of Scottish civil society.

Time is short

The late 2014 referendum may seem a long way in the future, but, in constitutional terms, time is actually very short, especially when considering such novel, complex and highly sensitive, even incendiary issues such as those discussed in this blogpost.  The Scottish referendum electorate – as well as ‘expatriate’ Scots, and everyone else in the rest of the UK – do not just deserve to hear the views of all interested parties, but should also start making known their own views on their constitutional future NOW.

The McKay ‘West Lothian’ Commission: Two Cheers?

In a post last month on this Blog (here) I looked at the new McKay Commission on the West Lothian Question, and especially at its status and operation, given that it  was set up, and is sponsored, by Government, not Parliament. It argued that, despite this provenance, to have any credibility and utility it needed to demonstrate independence, openness & transparency, and real public and parliamentary engagement. This includes a genuinely open evidence-taking process, and transparency through, for example, a live website and an initial ‘consultation paper’.

The Commission met for the first time in late February, and it seems some of this minimum agenda has been adopted. For example, there is now a website – note the word ‘independent’ in the address, akin to that of the Silk Commission on devolution in Wales, a similar Government established and resourced commission. It is, at this early stage, a bit thin, but potentially it can be used as the engine of its operation in much the same way that the impressive, content-rich Silk Commission site has developed.

The crucial tests are those of openness & transparency and of genuine, evidence-based engagement with public and parliaments. For example, the Cabinet Office press release on 17 January suggested that the Commission “will be expected to call experts to give oral or written evidence.” The website front-page now invites “submissions and enquiries from those with an interest or views on the West Lothian question”, though its 2 March press release (hands up, all those who spotted this!) is a bit more engaging, stating that “the Commission is keen to hear from those with views on the subject of the West Lothian question” and quotes its Chair, Sir William McKay, as saying that “the Commission had a productive first meeting and will be meeting again soon to develop its thinking and initiate arrangements to progress its work.”

Does this mean that it is starting with a genuinely blank sheet of paper, within the terms of its remit, or that it is to be largely expert-driven, with a veneer of public engagement? We must hope the former, ie not just ‘transparency’ (“look, but don’t touch”) but genuine ‘openness’. That requires a more positive and engaging approach than has been suggested thus far – again the Silk Commission (and earlier devolution inquiries like Calman or Richard) can provide a model to learn from. If the Commission is not in a position yet to issue a consultation or ‘issues & questions’ paper, as a focus for its inquiry, it could state that it intends to do so, as a prelude to formal evidence-taking or public/parliamentary consultation.

That the Commission requests submissions by 13 April is potentially concerning, unless this is just intended to be a preliminary phase, prior to a more formal consultation/evidence-gathering process which includes the public. However, the Commission said on 2 March that its next meeting will be in late March and “it is planned that evidence will be heard by the Commission in April, May and June. Dates and locations of forthcoming meetings will be published through the website over the coming weeks in March.”

There remains the thorny issue of the extent of its remit. Even apart from what ministers say is expected to be excluded (especially devolution funding and Commons representation), the Commission needs, initially, to set out very clearly and openly how wide or narrow it sees its terms of reference. Will they include, for example, ‘Sewel Convention’ aspects, or inter-parliamentary relations? Will they take account (and if so, how?) of the three devolution ‘settlements’ as being dynamic processes, as with the current Scotland Bill, the Silk Commission and the looming Scottish Independence Referendum, so that their proposals are adequately flexible and robust to accommodate conceivable developments in the coming years?

So, two cheers for now, and a hope that the third cheer will be soon deserved.

The Wright Way to Infantilise the Commons

The short Commons debate on Monday 12 March on procedural changes to the Backbench Business Committee (BBBC) provided further proof that Government (and front benches generally) has no intention of ceding its dominance over the parliamentary agenda in any fundamental way, and will permit ‘reform’ only on its own terms and in its own good time.

What a pity that the vast legions of the ‘conventional wisdom’ – in academe, media and inside Westminster itself – will no doubt ignore this, as they have all clear signs in the last few years that the alleged empowering of Parliament, through the reforms proposed by the Wright Committee, is being skewed and diluted by ministers and their allies. The Backbench Business Committee is hailed as the battering ram which is breaching Government control of Commons business (what is discussed and when etc.), leading to the ultimate prize of a ‘full’ House Business Committee in the coming year.

I have blogged on all this, both in this Blog and elsewhere (eg here, and here), arguing for genuine Commons control (on behalf of the public they represent) of their own House and its operation, especially in respect of its business.  Monday’s debate is a good example of a government (any government) unilaterally deciding to propose its own changes to a select committee – and the one which is supposed to determine Backbench business! – at a time of its own choosing, and, according the BBBC’s chair and others, not only without consulting that committee in advance but also in the middle of a Procedure Committee review of the BBBC.  Because Ministers control time, all backbenchers can do is complain about it, or try to prevent it through amendments, when surely in any mature parliament worthy of the name, the timing of such a debate and the content of any proposed motions would be a matter for the House itself – through some form of genuine Business Committee.

The standard ministerial excuse is that all Government is doing is ‘providing an opportunity’ for debate and ‘facilitating’ discussion through its agenda-setting.  Note, in passing, that this debate was held alongside ‘sexier’ ones on MPs standards, guaranteed to monolopolise the limited available political and media interest.  Even worse, the minister putting all this through was  David Heath, Deputy Leader of the House (and my local MP) – the same David Heath who, when in opposition, demanded “An Everest of reform … to bring this House and our politics generally up to speed – into the 21st century – and make it fit for purpose” and declared that “It should not be for the Leader of the House – or the shadow Leader of the House, or me – to determine what will happen. It should not be for anyone to dictate to the House how we are to conduct our business.” Oh, I forgot, he’s now only ‘providing opportunities for debate and decision ….

Mr Heath is learning all the front bench business manager tricks. For example, he said on Monday that “Wright is not holy writ and should not be treated as such, not least because there are internal contradictions in the Wright report, just as there are sometimes in holy writ.”  In other words, we in Government can cherry-pick what we want out of the Wright reform blueprint, and ignore or change what we dont like.

The conventional wisdom seems to be that the best – indeed, only – sensible strategy for acheiving reform is to go along with the Government (as has been done over the Government’s own unilateral e-petitions system being dropped into the BBBC mix) and to try and ‘save’ as much of the Wright blueprint as possible.  We can argue how radical Wright really was, in that glorious window of opportunity provided fleetingly by the expenses scandal of 2009.  What the incrementalists and trimmers have to demonstrate now is that when (perhaps, if) they actually can claim success over a full House Business Committee, it will be one worth having, and that the arrangement of Commons business will have really shifted decisively from the Government (and front benches more generally) to the House collectively on behalf of the people.

Monday’s debate confirms that the omens are not good.  But there may just be time for those who profess to seek genuine radical reform to act before it is too late, and try to overcome the House’s self-defeating acquiescence to government initiative over parliamentary reform.  After all, it was the Wright Committee itself which rightly asserted, in unequivocal terms, that “Time in the House belongs to the House,” and warned that  Government control of parliamentary time “infantilises Members.”  Time to grow up!

The West Lothian Commission: getting it right from the outset

The recently announced McKay Commission on the West Lothian Question has the potential to be a significant factor in the constitutional and political development of the UK.  Whether it makes things better or worse will depend a lot on how it goes about its work.  The initial omens are not good.

The Commission derives from the May 2010 Coalition Government agreement to “establish a commission to consider the ‘West Lothian question’”, itself derived from a similar pledge in the Conservative manifesto, and a more general one in the Liberal Democrat manifesto about the place of England in any new constitutional arrangement.  The Government’s thinking, as it developed, was set out in Parliament by Ministers, culminating in the announcement on 17 January.

I and others have already commented on the narrowness of the Commission’s remit, and its prospects for ‘success’, however that is measured.  These are important issues, because, for example, if its report is seen to be timid because of its inherent restrictions, it could inflame rather than quell the claimed resentments inEnglandabout the current situation.  Not to mention the possibility of it being largely overtaken by any move towards Scottish independence….

The recent announcement said that the Commission will begin its work this month, and it is understand that the members will meet for the first time over the next few weeks.  As far as I can see, no further details have been released.  So, perhaps there is still time for a few suggestions on its structure and operation:

Sponsorship: The Commission is described by Ministers as “independent” and “non-partisan”.  Be that as it may, it is wholly a Government exercise, supported by Cabinet Office staff – albeit with, according to Ministers, some initial consultation with House authorities.  Sadly, but wholly true to form, the idea that such a Commission, solely examining Commons procedure and practice, should actually emanate from Parliament rather than Government is, almost literally, unthinkable to the Westminster/Whitehall political and media classes.  It is probably too late for such a fundamental change, but, at the very least, the sponsorship of the Commission should be shared equally by the House and the Cabinet Office, including resourcing and staffing support (the Cabinet Office probably still has a senior Commons Clerk on secondment to liaise on parliamentary issues).  The Commission should report to both the Speaker and the Deputy Prime Minister.  Its contact details, including website, should reflect its independent status, and not be seen as a Government outpost.

Public Engagement:    The Commission should operate at least as openly and inclusively as we now expect from such an independent, expert public sector inquiry. Westminster, following the lead of Holyrood and the other devolveds, is becoming more ‘publicly engaged’, so any reform inquiry should, at worst, match the openness of a Westminster select committee – a fairly undemanding standard.  The ministerial announcements make no mention of this, so the implication is that it is to be an exclusive, private inquiry, engaging solely with “experts” (as last month’s announcement put it).  What is needed includes an accessible website containing all relevant information and scope for interactivity; the early publication of a consultation paper or ‘issues & questions’ paper on which to invite evidence and comments from the public; public sessions (ideally all around the UK), and interim reports describing the Commission’s thinking.  There may well be scope for ‘private seminars’ and similar standard inquiry devices where discussion can be free and frank, but these should complement, not replace, public evidence-gathering and operation.

Parliamentary engagement:  There needs to be formal engagement, in an open and transparent manner, with the House of Commons at all levels.  Quiet words with selected officials, committee chairs, whips and the like through the ‘usual channels’ may still be seen as acceptable parliamentary practice at Westminster even today, but it is not good enough for such an important inquiry. Even the narrow remit of the Committee engages the interests of the House authorities, its various committees, party groups, individual Members and others.    Similar engagement should take place with the UK Government, and the devolved parliaments/assemblies and administrations, which all have genuine interests in the Commission’s work. The thorny issue of the Sewel Convention – a relevant parallel to the West Lothian Question, from a legislative procedural perspective – was eventually dealt with reasonably clearly some years ago, when parliamentary committees north and south of the border finally cooperated openly to tackle it.

Whether the Coalition Government’s aim in setting up this Commission is to ‘solve’ the West Lothian Question or to kill it off as a running sore, the more legitimate the Commission is seen to be by the public and politicians alike, in terms of its structure and operation, the better chance, however slim, of some sort of positive and productive outcome.

The size of a Scot-Free House of Commons

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

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?

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.

IPSA, parliamentary reform and constitutional watchdogs

In a blog entry in October, I discussed the review by the HC Members Expenses Committee (MEC) of the Parliamentary Standards Act 2009 and the operation of IPSA, concentrating in part on the complex issues of independence and accountability of public bodies such as IPSA, who have some form of a constitutional (especially parliamentary) watchdog role.  This is a subject the Constitution Unit has studied for a number of years, and the creation of IPSA has ignited a fascinating debate between IPSA on the one hand and the Committee on Standards in Public Life (CSPL) and elements of the House of Commons on the other over the legal and constitutional duties  and functions of such a watchdog.  My concern was that the MEC inquiry was too limited and ‘exclusive’ to examine these fundamental issues sufficiently thoroughly.

The MEC has now reported (to a deafening silence, the political classes and media being almost exclusively focused on the PM’s Commons statement on the Eurozone summit/’veto’), and it does address these issues among the more substantive (and probably more newsworthy) issues of the nuts and bolts of MPs expenses.  Not surprisingly, it comes down in favour of the view that, in effect, that IPSA’s statutory duty merely to have regard to ‘supporting MPs efficiently, cost-effectively and transparently in carrying out their parliamentary functions’ should be upgraded from one to which it merely has to “have regard” into becoming its ”prime directive’.  IPSA’s claim that, as a self-proclaimed regulator, its primary duty is to “the public interest” has, rightly, been given short shrift.  This emphasises the importance of efficient delivery of functions – even where its purposes are, as the Committee criticises here, not made explicit in the founding statute because of legislation in haste – over a more lofty claim by a watchdog of being custodians of the public interest to which all else must be subservient.  What will Parliament (and the courts?) make of all this, both in any amendment of the IPSA legislation and in the establishment or reform of constitutional watchdogs generally?

On the specific problem of institutional design of a Members resourcing system that is both effective and maintains public confidence, the Committee has tried to steer a careful, apparently logical if (intentionally?) opaque line, proposing reforms designed to appear sensible and practical, without provoking a media and public backlash that politicians are grabbing back the control they were forced to cede in the 2009 crisis.  Its proposed structure supports retention of independent determination and regulation of the payments system for MPs’ costs, but suggests that “IPSA’s current administrative role should be carried out by a separate body, so that IPSA is not regulating itself, and the Act should be amended to permit this,” and that this separate administrative body “be within the House of Commons Service.”

Though presumably intended to be much narrower in function and responsibility – but what is IPSA’s purely ‘administrative’ role that can be severed safely? – will this new body not risk being regarded publicly as the return of the Fees Office, and, by implication, of the ‘bad old days’ pre-2009?  The Committee appears to have recognised the warnings given to it and CSPL about inappropriate mixing of regulatory and other other related functions, and their impact on independence and accountability, and it believes that its new ‘semi in-House’ system will be better than the pre-IPSA one because “independent regulation by IPSA and transparency would ensure that it did not replicate the deficiencies of the old expenses system.”  Really?

The Committee has recognised what some of us said to CSPL in 2009 about the loss of necessary expertise and understanding of the unique, ‘politicised’ world of parliamentary resourcing implicit in the creation of an ‘independent’ extra-parliamentary body like IPSA, and its proposal is presumably designed to remedy this, and thereby remove the running sore between Members and IPSA.  But structure isn’t everything – in such an environment, culture and ethos are as, if not more, important for the proper operation of parliamentary resourcing that does not become more in the interests of MPs as individuals rather than as the public’s elected representatives.

The fatal flaw of the ‘bad old days’ was not self-regulation per se, but the corrosive, exclusive and self-interested culture nurtured by decades, even centuries, of an irresponsible absence of effective accountability.  The Committee were clearly not keen on my submission that what was required was “”a system of modern parliamentary self-regulation, buttressed by an independent element to ensure that it was being operated transparently and responsibly and was not being abused”, describing it as going further than the views of its other witnesses (para 74).  However, the Committee does not seem to regard self-regulation in the area of parliamentary resourcing as inherently wrong, merely, presumably, undeliverable in the post-2009 climate.  In the same paragraph, it cites with implicit approval CSPL’s view that enhanced self-regulation could be retained at Holyrood and Cardiff Bay because “neither … has suffered a crisis of trust remotely comparable to that which has affected Westminster.”

This is a rather sad, defeatist attitude on whether and how Parliament can fundamentally reform itself, and in ways beyond questions of resourcing.  Without a fundamental culture change, the Committee’s proposed semi self-regulation ‘solution’ will be hard to make work both effectively and in a way that gains and retains public trust.  In fact it risks making things worse by reigniting public fury without ‘solving’ MPs’ discontent with IPSA, or, more fundamentally, without achieving its stated aim of providing an effective Members’ resourcing system (quoting with apparent approval my submission that ““the proper resourcing of the people’s elected representatives is a necessary precondition for a modern representative parliamentary democracy” (para 8)).

So, two cheers to the Committee for seeing the problems and sensing what the direction of reform should be.  But the third cheer must be withheld because of its failure to propose more fundamental cultural reform that would enable its proposals to succeed.  But this is typical of how parliamentary reform is done (or not) in Westminster – and Whitehall.

MPs’ Expenses, IPSA and Constitutional Watchdogs: A Parliamentary Committee Inquiry-Lite?

Did you know that a House of Commons Committee is currently holding an inquiry into the Parliamentary Standards Act 2009? No? Thought not.

The Act is the centrepiece of the Government-inspired response to the Members’ expenses scandal, and which created IPSA (Independent Parliamentary Standards Authority).  Given the media and public firestorm over expenses in 2009, and the continuing bad press – especially the patent lack of sympathy with Members’ criticisms of the new system – it is a pity, if not really surprising, that the current Inquiry, by the aptly-named Members Expenses Committee, is proceeding almost unnoticed.

The Inquiry was ordered by the House in mid-May, but was not actually announced until mid-July, after a protracted delay in establishing the Committee’s membership, when it was given until the end of this year to report.  Its remit was relatively broad, perhaps to reflect the range of Members’ concerns about the operation of the IPSA-run system:

“to review the operation of the Parliamentary Standards Act 2009 and make recommendations, giving due consideration to ensuring:
(a) value for money for taxpayers;

(b) accountability;

(c) public confidence in Parliament;

(d) the ability of Members to fulfil their duties effectively;

(e) fairness for less well-off Members and those with families; and

(f) that Members are not deterred from submitting legitimate claims.”

A Committee press release of 20 July sought written evidence by 3 October.  This evidence has now been placed on the Committee’s website, including a submission by me. To date, there have been 4 oral evidence sessions since mid-September.

It is a pity that there has not been more interest in this Inquiry. Apart from the detailed issues of the structure and operation of the new expenses system (as an aside, the Committee is chaired by Adam Afriyie, who publicly supported in 2009 the replacement of the current salary and expenses with a single ‘consideration’ based on the initial 1911 figure of £400pa, as up-rated by reference to average earnings), it is proving to be a forum for more fundamental questions of constitutional interest, including the nature and purpose of ‘constitutional watchdogs’, especially those which have a close connection with Parliament.  This is an issue which has long interested the Constitution Unit, being the subject of two Reports and one book chapter published by it (I declare an interest as a co-author of these).

A fascinating debate, within and outwith the Inquiry, has been raging on what sort of body IPSA actually is, and what its primary function should be.  While MPs and the Committee on Standards in Public Life see IPSA mainly as a body to administer schemes of financial support for MPs in carrying out their parliamentary duties, IPSA sees itself primarily as an independent regulator, and as such, its fundamental purpose is “to serve the public interest”.

At heart, as with any such ‘watchdog’, is the interrelationship between the two principles of independence and accountability, one which is especially difficult and complex when what is being ‘regulated’ is Parliament itself, the ultimate constitutional watchdog.  With the principle of independence entrenched in the scheme establishing IPSA – as rushed through Parliament by ministers in the 2009 Act, and revised by legislation last year – MPs are focussed on IPSA’s accountability, by which they mainly mean, answerability to the Commons (through mechanisms such as the Speaker’s Committee for IPSA).  On the other side, IPSA’s maximalist view of its regulatory rather than mere payroll/administration role, emphasises its independence, especially from the very people and bodies which it is ‘regulating’.

Unfortunately, the Inquiry doesn’t seem so far to be addressing these complex questions in any evidence-based way, such as by research into, or much direct interest in, how other parliaments, including the 3 UK devolved institutions, address these problems. This absence of comparative perspective is regrettable.  For example, the Scottish and Welsh systems are of direct relevance, and the present Chair of the Welsh Assembly’s Remuneration Board, George Reid, would be a useful witness, being a former MP and Holyrood Presiding Officer.

With such a short timescale and methodology, this Inquiry cannot hope to do all its terms of reference justice.  All it can do is address, and maybe assuage, some of the main grievances voiced by Members since 2009, which was probably the main reason for this Inquiry in the first place.

What would be of value – apart from any tinkering with the detail of the IPSA-run system – would be for the Committee to recommend strongly in its report to the House that a dedicated committee of inquiry of some sort should be established to address the fundamental questions of IPSA’s relationship with Parliament and how the twin pillars of its independence and accountability can be reconciled positively for the benefit of the public, both as taxpayers and as constituents of adequately-resourced MPs.  The Public Administration Committee began the process in the last Parliament of examining these tricky issues where there are constitutional watchdogs.  That would provide a useful starting point for any future inquiry.

What Sir George Young will not say to the Constitution Unit on Wednesday

“This talk is entitled ‘Parliamentary Reform: Year One Report.’  I hope you will find what I have to say a little less dry than that may imply.

I am pleased to announce that the Government has been persuaded by those within and beyond Parliament that there is an urgent need for a fundamental reshaping of the relationship between Parliament and the Executive.  There can be no more appropriate proponent of this than my own Deputy, David Heath, who, until the last election led him into Government, consistently argued for such reform.

Just last year, in evidence to, and debates on, the Wright Committee, David described how ‘Executive control over the procedure of the House holds up the proper scrutiny and proper initiation of business’; that ‘Reform ought to be a tide coming in. …Reform of the House is necessary and urgent’ and ‘An Everest of reform is necessary if we are to bring this House and our politics generally up to speed – into the 21st century – and make it fit for purpose.’

More particularly, he argued that ‘It should not be for the Leader of the House – or the shadow Leader of the House, or me – to determine what will happen. It should not be for anyone to dictate to the House how we are to conduct our business’, and ’Standing Order 14 is the obstacle to this House behaving like a responsible, sensible, modern House of Commons… It has got to go. Until it goes, we will not be able to make the progress that I think the House wants.’

I, and the Government, now agree with this analysis, and we will do all we properly can to remedy this situation. Those steps which are in the Government’s own hands will be taken promptly, and for those which are properly matters for the House itself to decide, we will do all necessary to facilitate them (as where legislation or motions are required), and pledge not to use our inbuilt numerical or procedural control to impede or frustrate such discussion and decisions the House as a whole wishes to make.  My focus is the House of Commons, but I assume that change will impact directly or otherwise on the Upper House, and our new approach will apply to its different internal circumstances, and to relations between the two Houses.

1.         The House’s agenda and sittings will no longer be determined almost exclusively by the Government.  As the Wright Committee rightly said, the current system ‘infantilises Members and demonises Government.’  S.O. No. 14, and all other procedural rules and practices which entrench Executive control of the Commons calendar and agenda, need to be replaced at once. Some form of comprehensive Business Committee is required, and we now accept that there is no reason for this change not to be implemented, albeit on an interim basis, for the return of the House in January 2012 after the Christmas recess.

2.         The archaic and presumptuous title of ‘Leader of the House’ will be replaced by the more appropriate ‘Minister for Parliamentary Business’, where I and my Deputy will focus on the job of supporting the Government’s proper role within the House.

3.         The House of Commons Commission, which runs the institutional side of the House, should be reformed (a) to remove the front benches from membership, to ensure that it properly and effectively represents the whole House collectively, and not particular political parties or Governments or Oppositions, and (b) to enable it to manage the House, supported by a ‘fit-for-purpose’ staff organisation.  In a modern accountable democracy, we believe that that the public should have a direct role in the running of its own representative assembly, whether by direct membership or otherwise.

4.         We will support reforms to particular structures and procedures of the House that the House collectively wishes, including the extension of those which has evolved in specific areas over recent years, such as parity of membership between Government and Opposition in all committees; extension of the power beyond Ministers to initiate and pilot legislation; development of more effective methods of scrutiny of government and its policies, activities and conduct; inclusion of lay membership on appropriate internal House management and oversight bodies, and much wider public engagement in Parliament generally.

We are not laying down any details of particular reforms to structures, organisation, procedures or practice.  That is for the House to decide, and we hope that the Speaker, the Commission and relevant committees and staff will urgently discuss how to establish promptly that process.  We hope that this will be a fully open, transparent and evidence-based public process, with appropriate direct public engagement.  Its activities should not preclude immediate changes, such as those I have announced here, even those of an interim nature.  The Government, as a major participant in the operation and business of the House, will present its own proposals as appropriate, to be considered alongside those that emanate from all other sources within and beyond the House.

Parliament is the ultimate constitutional watchdog, because it scrutinises the Government of the country on behalf of the people.  It is wholly illogical, inefficient and constitutionally improper for the very body being scrutinised to have the dominant say in how its watchdog is structured and operates.  A more appropriate relationship between Parliament and Government – which also recognises the appropriate roles of Members individually and collectively, within political parties, House committees and otherwise – and, just as important, a more dynamic and meaningful relationship between these two institutions and the public they represent and serve, will be to the benefit of all.  Not least, it will provide the environment for a more mature, accountable and responsible Parliament, which can earn the trust and confidence of the public.

I commend this approach to Parliament and the public, and hope the Constitution Unit will play its full part in the process.  Thank you.”

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