Author Archives: Robert Hazell

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

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Following Alan Renwick’s piece (posted on this blog yesterday) suggesting Scotland could buck the referendum trend and vote Yes, Robert Hazell explores reactions to increasing uncertainty over the outcome and considers the implications of a Yes vote.

The Scottish independence referendum is now two weeks away, on 18 September. With the latest YouGov poll showing the No campaign’s lead narrowing, to just 53% against 47% it suddenly looks as though there is a real possibility that Scotland might vote for independence in two weeks’ time. This has caused panic at Westminster, it has spooked the markets, and it has finally got people south of the border thinking about the consequences, for Scotland and the rest of the UK.

First, the panic at Westminster. On 4 September the Guardian ran the remarkable story ‘PM could face calls to postpone UK election if Scots vote for independence’. The argument being advanced by some Conservatives was that Westminster should postpone the next UK election by 12 months in order to avoid the unstable prospect of a Labour government dependent on Scottish MPs, who would disappear part way through the next Parliament. The Guardian reported that

‘Well placed members of the government have already started to consult the laws on postponing elections. An Act of Parliament would have to be passed, but there are complicating factors. The Fixed Term Parliaments Act of 2011, which stipulated that the next general election would take place on 7 May 2015, would have to be repealed. The House of Lords would also be able to block the legislation … One former law officer said: “Parliament can change elections, it can do what it likes. But it would be difficult.”’

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Continuing resentment against ‘establishment’ politicians has brought the right of recall back on to the legislative agenda

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

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

Image credit- UK Parliament

Image credit: UK Parliament

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

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

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Scottish Independence and the UK general election

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

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

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

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

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

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

Scottish Independence: the Timetable

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

September 2014: Referendum

May 2015: UK General Election

March 2016: Independence for Scotland

May 2016: Elections to Scottish Parliament.

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

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

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

Will Ministers want an EMO?

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

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

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

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

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