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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