Smith is a major constitutional milestone – but on a road to where?

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Akash Paun considers the potentially transformational constitutional implications of the Smith Commission Report.

The Smith Commission report on further devolution to Scotland sets out a package of further powers that the unionist and nationalist parties have agreed should be transferred to the Scottish Parliament. Inevitably this goes too far for some and not far enough for others. The detail of the package – which includes further tax, welfare and other powers – is being pored over across the media. Less commented upon are the constitutional implications of the proposals in the report, some of which are potentially transformational.

Beyond parliamentary sovereignty?

First is a commitment to make the Scottish Parliament and Government ‘permanent institutions’. At present the devolved bodies are ‘creatures of statute’ that could – according to the convention of parliamentary sovereignty – be abolished by a simple majority at Westminster, as Margaret Thatcher’s government did when it scrapped the Greater London Council in 1986.

So the implication is that the devolved bodies will somehow be protected from normal majoritarian rules. Quite how this will be done is another matter. Simply stating on the face of a bill that something is permanent cannot prevent a future Parliament from repealing or amending the legislation. One option is to include clauses requiring a super-majority in the Commons (and/or Lords) in order to amend the legislation in future. This would be unusual and contentious – though these are unusual times. But in any case, such a clause could itself be removed by a later piece of legislation passed with a simple majority.

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Is a federal Britain now inevitable?

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Federalism has rarely been seen as an attractive option by the British political class. Yet it may be the only solution to the deep imbalances which will come with radical new powers for the Scottish Parliament if the Smith Commission proposals are implemented, writes Stephen Tierney.

The Smith Commission Report issued on Thursday promises a restructuring of the United Kingdom which may prove to be more significant than the devolution settlement of 1997-98 itself; the acquisition of extensive tax and welfare powers would make Scotland one of the most autonomous regions in western Europe.

Notably the UK’s economic and fiscal coherence has hitherto been a key factor in allowing the asymmetrical and ad hoc nature of devolution to embed itself without any great disruption to the constitutional structures of the central state. With the dismantling of this system it seems that a tipping point might well be reached for our lop-sided and messy system of territorial government. The Smith Commission proposals, if implemented, will have knock-on consequences for several fundamental features of the UK constitution: parliamentary supremacy, the idea of the House of Commons as a national chamber for Britain, possibly the nature and composition of the House of Lords, and the relative freedom of the UK Government in its dealings with the devolved executives. It is perhaps ironic therefore, but I believe also inevitable, that a process which was designed studiously to avoid the federal question will now bring federalism to the table as possibly the only medium term solution to the deep imbalances which will come with further, radical powers for the Scottish Parliament.

How does Smith raise the federal question?

Federalism has rarely been seen as an attractive option by the British political class, and its feasibility as a constitutional project for Britain is certainly not beyond question. But some kind of federal solution will surely be needed to deal with two related issues: the extent to which Scotland’s representation within the House of Commons, so far only marginally affected by devolution (reduced from 72 to 59 by way of the Scotland Act 1998 as amended), will appear ever more anomalous as the Scottish Parliament’s powers expand; and the very real risk that as Scotland becomes ever more detached from Westminster, the Union will become largely irrelevant to many Scots. The latter is far more dangerous since it could well mean that Scottish independence is in the longer term now more rather than less likely. If this is true the unionist parties, which make up the majority of the Smith ‘Commission’ (which was in reality an inter-party bargaining group), risk seizing defeat from the jaws of referendum victory.

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Solomon Grundy does constitutional change: The Smith Commission timetable to transform the Scottish Parliament

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Stephen Tierney expresses concerns over the Smith Commission timetable, highlighting that the speed leaves little time for appropriate due diligence and detracts from the democratic credibility of the process. He argues that there is a need for restraint, and a more independent and inclusive review over a longer period.

In the month of November the Smith Commission is set to draw up the most significant programme of constitutional change for the United Kingdom since 1998. Already the period within which citizens could submit their views on this process has passed; the Commission having set a deadline of 5 p.m. on 31 October.

Such a rapid process runs counter to both the due diligence that is surely needed before any decision is taken to restructure the UK tax (and possibly welfare) systems so radically and the due process which ought to accompany such a seminal constitutional development. Unfortunately the principles of deliberative constitutional decision-making and popular democratic engagement which figured strongly in the recent independence referendum are unlikely to gain much traction in the current rush to change.

The referendum campaign was indeed a remarkable period of citizen empowerment. The turnout of 84.7% is only one dimension of this; in a deeper way many citizens were greatly invigorated by the referendum and the role they had in discussing and ultimately in making such a huge decision. The Smith Commission process, by contrast, bears all the hallmarks of a return to elite-led constitutional change; and it is deeply ironic that the impetus for such a rapid and party-led process should be the independence referendum itself. As the 18th of September approached and the polls seemed to tighten, the leaders of the main unionist parties issued ‘The Vow’, promising more powers for the Scottish Parliament and setting out a firm timetable for change.

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Scotland after the Referendum: “It was business as usual that got us into this position in the first place”

October’s seminar at the Constitution Unit entitled The Day After Judgement: Scotland and the UK after the Referendum responded to the vote on independence held in Scotland on 18 September. Professor Jim Gallagher and Professor Iain McLean discussed the future of the UK Union and the devolution of power from Westminster to Holyrood. Julian Payne reports.

At the Scottish independence referendum on 18 September more than 55% of Scots voted in favour of remaining in the United Kingdom. Last week, at the latest Constitution Unit seminar, the repercussions of this decision were discussed by Professor Jim Gallagher and Professor Iain McLean, both distinguished academics with extensive experience in devolution. The speakers emphasised that following the referendum it would be wrong to assume that we can revert to ‘business as usual’. Instead, what is required is a system of devolution for Scotland that is in line with the Union that was defended in the referendum.

The question of a referendum was first raised in 2007 when the Scottish National Party (SNP) formed a minority government in Scotland. Polling data going back to 1999 suggested that an independence referendum was never going to yield a majority yes vote. Why did the SNP say they wanted a referendum when the Scottish Parliament did not have the legal power to hold one and data suggested they were going to lose anyway? According to Prof. McLean, the insistence on a referendum for Scottish independence can be attributed to ‘cheap talk’ – it cost nothing to say and it would be voted down in the Scottish Parliament anyway. However, the election of an SNP majority administration in Edinburgh in 2011 and the promise of a referendum in the SNP manifesto meant that there was no turning back.

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The English Question comprises two broad questions, with half a dozen different answers

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The Constitution Unit conducted a three-year research project into the English Question, with a team of ten people led by Robert Hazell. This blog post summarises their main findings and conclusions.

For a more concise introduction to the English Question and the points discussed here, see Robert Hazell’s “Bluffer’s guide“.

For their book, see Robert Hazell (ed), The English Question (Manchester University Press, 2005).

1              The English Question comprises two broad questions

The English Question is not a single question, but a general heading for a whole series of questions about the government of England. Scotland, Wales and Northern Ireland have a stronger political voice as a result of their elected legislatures, which have all been given greater powers. England and the English regions risk losing out in the distribution of government funds, in competition for inward investment, in making English laws. For the first 15 years of devolution the English did not seem to care. Polls showed they were quite content for the Scots, Welsh and Northern Irish to have devolution, but did not want any for themselves. That has changed following the Scottish independence referendum and the proposal to grant Scotland further powers. Politicians have rekindled the debate about English votes on English laws; but it is not clear whether the English want a stronger political voice, or simply fair treatment on issues like the territorial distribution of funding.

Answers to the English Question vary because they are responses to different versions of the question. If the aim is to give England a separate political voice, to rebalance the louder political voices now accorded to Scotland, Wales and Northern Ireland, then solutions are English votes on English laws, or an English Parliament. But if the aim is devolution within England, breaking the excessive domination of the central government in London, then the solutions include elected regional assemblies, city regions, stronger local government, elected mayors. Conservatives tend to favour the first set of solutions, and Labour the second (but with exceptions on both sides). If they appear to be talking past each other, it is because they are answering different versions of the question.

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The English Question: A Bluffer’s Guide

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Robert Hazell offers a quick introduction to all the different answers to the English Question. A more detailed explanation of the reasoning behind the answers can be viewed here.

 

  • Devolution to Scotland and Wales and Northern Ireland throws up related questions about the government of England. These fall into two broad kinds: giving England a stronger political voice; and devolving power within England.
  • To rebalance the Union, England could find a stronger political voice through an English Parliament, or English votes on English laws.
  • To devolve power within England, possible solutions include: regional government; city regions; stronger local government; elected mayors.
  • The Conservatives have focused on rebalancing the Union, arguing for English votes on English laws. They are opposed to regional government. Labour when in government focused on devolving power within England, strengthening the regional tier, but failed in their attempt to introduce elected regional assemblies.
  • An English Parliament would create a federation of the four historic nations of the UK. Such a federation could not work because England would be too dominant. An English Parliament would be a rival to Westminster, and could come to be seen as just as remote. Few heavyweight politicians have espoused it, and support for the idea remains flat.

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UK constitutional reform: No means Yes?

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Although a Yes vote would have meant a very obvious change to the existing constitutional structure of the UK, the consequences of the No vote will still be complex and profound. The outcome has already put contentious issues such as the West Lothian question back on the agenda, writes Meg Russell.

This article originally appeared in the Observer. A version is available on the Guardian website.

The constitutional consequences of a Yes vote in Scotland would have been momentous, leading to months – possibly years – of fraught negotiation with uncertain consequences. But the consequences of no for the rest of the UK may, paradoxically, be even more complex and profound.

Since establishment of the Scottish Parliament in 1999 the ‘West Lothian question’ – Scottish MPs voting on legislation not affecting Scotland – and wider ‘English questions’ have rumbled on but rarely reached centre stage. They were temporarily sidelined by announcement of the independence referendum. Had Scotland voted yes, their urgency would have declined. Controversies over Scottish MPs at Westminster would clearly have ended with their departure, however painful that might have been.

A No vote was always going to put these issues back on the agenda, particularly because the status quo ante was not an option. Under the Scotland Act 2012, a No vote was already to hand substantial new powers to the Scottish Parliament, particularly over taxation. During the campaign, political leaders went far further, promising additional devolved powers including on welfare and tax. This has angered Conservative MPs.

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Scotland has voted decisively to stay – now devolution must be delivered

Today’s result came as a relief to many but it is not an excuse for complacency. Jim Gallagher writes that both Westminster and Holyrood must consider the lessons learned from the campaign and start delivering politics for Scotland, not just about Scotland.

Well it’s over. 2 years of campaigning. 5 years of shadowboxing before that. Acres of newsprint, millions of social media posts. TV debates, and family arguments. Street stalls, and chanting mobs outside the national broadcaster. Oh, and truckloads of academic analysis. It’s been a fascinating, exhilarating but also worrying campaign.

But Scotland has finally made a decision. Independence has been rejected, and the UK affirmed. In an extraordinary democratic act, 97% of the population registered to vote and 85% of those voted. The authority that gives the decision is overwhelming. The choice is made.

For many people the overwhelming feeling will be one of relief. They didn’t demand a referendum, and were never part of the Yes project. It was not campaigning that made them worried about the risks. They are Scots who were comfortable in their own constitutional skin, and have now been found to be the majority.

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Will the polls get the Scottish referendum right?

As the Scots goes to the polls Anthony Wells considers to what extent we can expect the outcome to match the predictions.

The Scottish polls at the end of last week and the weekend were broadly clustered around a small No lead. Perhaps a more likely route to a YES victory is if the polls are underestimating the level of YES support for some reason. Over the last couple of days I’ve seen several blogs or articles pondering whether the polls could be wrong, could they be underestimating YES or NO?

It would be hubris to suggest the polls couldn’t be wrong. Obviously they can. At most elections there are polls that perform better or worse than their peers, some of that is better methodology. When the polls are close most is probably just normal sample variation. That’s a matter for another time though, here I’m pondering more about the possibly that all the polls are wrong, the potential for a systemic bias with everyone a bit too yes or a bit too no. This is possible too – think of the way all polls overestimated Lib Dem support in 2010, or most famously how all the polls overestimated Labour support in 1992. How likely is that?

The Scottish referendum is a bigger challenge for pollsters than an election would be because it’s a one-off. In designing methodology for voting intention the experience of what worked or didn’t work at previous elections weighs heavy, and most companies’ weighting schemes rely heavily upon the previous election – if not directly through weighting by recalled vote, in using the data from the previous election in designing and testing other weighting targets. For a referendum you can’t take that direct approach, pollsters needed to rely more on modelling what they think is an accurate picture of the Scottish electorate and hoping it reflects the Scottish people well enough that it will also reflect their referendum voting intentions – it’s complicated because Scotland has a complicated electorate. Scottish voters have two Holyrood votes and a Westminster vote, and they use them all in different ways with different political loyalties. Within the space of a year Scotland managed to be a Labour stronghold at Westminster and to produce a SNP landside at Holyrood – using either election alone for weighting gives a rather different picture of what the Scottish electorate are like, even though you are trying to model the same population. Different companies have arrived at different methods of political weighting to deal with the issue – Survation, ICM and TNS weight by Holyrood recalled voted alone, YouGov weight by Holyrood recalled vote with a nod towards 2011 Holyrood voters who backed Labour in 2010, Opinium weight by Holyrood and Westminster recalled vote, Panelbase weight by Holyrood and European recalled vote, Ipsos MORI don’t use political weighting at all. Despite the variance they have all converged to produce the same sort of result, and that gives me some confidence – if there was a particular skew from being online or from using Holyrood recalled vote we would expect to see different results.

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What follows the referendum: negotiating Scottish independence, or delivering Devo More

Earlier this year Alan Trench gave a lecture at the University of Ulster’s Belfast campus about what might follow the vote in the Scottish referendum. In this article, he picks out the key points.

The full speech is available on the Social Science Research Network here, or can be downloaded directly here

Perhaps the most important and novel part of the lecture is where I map out what would follow a Yes vote – the sort of steps needed, particularly on the rUK side to tackle the many uncertainties that will follow. This is a separate issue from that of the strengths of each party in the negotiation (discussed here earlier in the week).  This would call for a great deal of imaginative thinking, in the midst of a first-order constitutional crisis. In particular, it seems to me that:

  • The negotiating process needs to move with all due speed, to preserve the democratic legitimacy of both rUK as well as an independent Scotland. There is no good reason for rUK to seek to prolong the process, and plenty of reasons for it not to.
  • The 2015 UK General election presents grave problems for that – the time lost to campaigning in an election and briefing a possible incoming new government means it will be impossible to make a proper start in negotiations before June 2015, since even provisional agreements reached under the present government might lack support from the new one.
  • One option – which appears to be gaining some support, particularly among Conservatives– is to postpone the 2015 election. But the present government has already been in office for 4½ years, and has no mandate to negotiate something so important to rUK as Scottish independence.
  • A better option would therefore be to hold a general election early, before the end of 2014, so there was both certainty about the composition of the UK/rUK Government and that government had a political mandate for independence negotiations. This would need approval by a two-thirds majority in the Commons, under the Fixed-term Parliaments Act 2011.

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