The next PM’s territorial challenges

jack_sheldon.1The next stages of Brexit are now set to happen under a new Prime Minister. The chosen candidate will have to work with governments in Wales and Scotland that are openly critical. Northern Ireland may be without a government and the English regions may lack a unified voice, but neither can be taken for granted, especially as the new PM will rely on the DUP for confidence and supply. Leaving the European Union therefore cannot be separated from the challenges of maintaining the domestic union, as Jack Sheldon explains.

Following the announcement of Theresa May’s imminent resignation, the long-anticipated contest within the Conservative Party to succeed her has begun.

The campaign will inevitably be dominated by Brexit. But events over the past three years have shown that the future of relations with the EU cannot easily be separated from the future of the domestic Union. The candidates will thus need to give careful thought to how they will approach the major statecraft challenges presented by territorial politics across the UK if they become Prime Minister.

Renegotiating the Northern Ireland backstop will be popular with Conservative MPs – but a new Prime Minister might soon face the same dilemma as Theresa May

The Northern Ireland ‘backstop’ has been the main driver of opposition to the Withdrawal Agreement within the parliamentary Conservative Party and their confidence-and-supply partners the DUP. Consequently, there are strong short-term incentives for leadership contenders to commit to renegotiating it, in the hope that it might yet be possible to get a deal that doesn’t cut across Brexiteer red lines on the Single Market and customs union through the House of Commons. Pledges to this effect have already been made by Jeremy HuntBoris JohnsonEsther McVey and Dominic Raab.

In reality, substantive changes to the backstop will be extremely difficult to deliver. It remains the position of the EU27 and the Irish government that the Withdrawal Agreement will not be reopened.  Keeping an open Irish border has become highly salient in Ireland and the EU, and the new Prime Minister will need to appreciate that this means there is next to no chance that they will be open to trading the guarantees provided by the backstop for the loosely-defined ‘alternative arrangements’ envisaged by many Conservative MPs. The same dilemma Theresa May faced might thus soon confront her successor – whether, as an avowed unionist, to recoil from a no-deal scenario that would undoubtedly have disruptive effects at the Irish border and strengthen the case for an Irish border poll, or whether the delivery of Brexit trumps everything else.

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The government must fundamentally reassess its approach to devolution to safeguard the integrity of the Union

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Last week the House of Lords Constitution Committee published a major report on ‘The Union and devolution’. Mark Elliott and Stephen Tierney summarise the report, in which it is suggested that the government should fundamentally reassess its approach to devolution and that, in future, any new proposals for devolution ‘should be considered within an appropriate framework of constitutional principles that safeguard the integrity of the Union’.

The House of Lords Constitution Committee’s report on ‘The Union and devolution’, published last week, declares the Union to be ‘under threat’, and recommends that the United Kingdom government ‘needs fundamentally to reassess how it approaches issues relating to devolution.’ The report is the culmination of a major inquiry which began taking evidence in October last year. The committee heard from 66 witnesses including academics, think tanks, the chairs of commissions on devolution, the UK and devolved governments, as well as party representatives from across the UK and a wide range of civil society groups. The committee also held evidence sessions in Cardiff and Edinburgh.

In its 142 page report the committee takes stock of the United Kingdom’s territorial constitution. Its assessment of the lack of vision with which devolution has been allowed to develop is particularly hard-hitting:

‘Power has been devolved to Scotland, Wales and Northern Ireland in an ad hoc, piecemeal fashion. Successive Governments have taken the Union for granted. Proper consideration of the cumulative impact of devolution on the integrity of the Union itself has been lacking.’

Nor does the committee see any convincing evidence that the UK government has now come to appreciate the difficulties inherent in this casual approach to constitutional design. It concludes that Oliver Letwin, the minister responsible for constitutional reform, ‘does not recognise the concerns expressed by this Committee and many others at the pressures being placed on the UK constitution by the manner in which the devolution of powers has taken place’. The committee is clear that this approach must end:

‘An inattentive approach to the integrity of the Union cannot continue. Following the significant changes that the territorial constitution has undergone in recent years, the time has come to reflect and take stock. While the constitution should reflect the wishes and interests of the nations and regions, that must not be at the expense of the stability, coherence and viability of the Union as a whole. Should any proposals for further devolution arise in the future, they should be considered within an appropriate framework of constitutional principles that safeguard the integrity of the Union.’

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In order to sustain itself, the UK must become a new and different Union

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Jim Gallagher reflects on what the Scotland Bill tells us about the Scotland-UK relationship and devolution more broadly. He argues that the Bill presents a challenge to the unwritten constitution, and that now is the time to clarify and codify the territorial aspects to make a statement about how and why the Union hangs together.

The Scotland Bill calls to mind, irresistibly, the aphorism of Lampedusa: if things are to stay the same, they’ve got to change. If it is to sustain itself as a Union, the UK must become a new and different one. The Scotland Bill should be the catalyst for change, but this isn’t only about Scotland.  It is about how the UK understands itself as a territorial state. Like Scotland, Wales and Northern Ireland understand the UK as a voluntary association bound together by common interests and shared experience, in many ways like a federal country. But too many at the centre of the UK see a unitary state with some untidy territorial edges. In essence this understanding is based on a half-baked notion of parliamentary sovereignty. If the UK wants to stay together, this has to change.

The Scotland Bill makes the nature of Scotland-UK relationship more explicit, and implies similar things about Wales and Northern Ireland too. The UK is a multinational state, an association whose membership is voluntary, and that is now very explicit for both Northern Ireland and Scotland. Scotland has always had its own institutions, separate from the UK’s. For first three centuries after the union, these were Scottish, but undemocratic. For the last 15 years, Scottish institutions have been accountable through the Scottish Parliament. The Scotland Bill puts it beyond doubt that this is irreversible. Devolution is permanent, and the Scottish Parliament is master in its own house: its power is paramount in devolved matters, and it controls its own composition. That is the point of the constitutional provisions of the Bill: statements of the obvious if you like, but that will be true of many constitutions–if you know how the institutions work in practice, you will find the constitutional legislation almost banal.

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The Scotland Bill so far: Major constitutional legislation proceeding at the speed of an express train

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Plans for expanding the powers of the Scottish Parliament have developed rapidly since the Scottish referendum. Jim Gallagher takes advantage of the pause afforded by Parliament’s summer recess to take stock of the Scotland Bill’s progress, and consider the stability of increased decentralisation in the longer term.

Parliament’s summer recess is a good time to catch breath and reflect on the breakneck process of the Scotland Bill. This is constitutional legislation, but proceeding at the speed of an express train.

Express delivery of new powers for the Scottish Parliament was promised during the referendum campaign. The pro-union parties promised – in what was to become the Smith commission – to agree plans in very short order; then they made ‘The Vow’ about what those plans would contain (in, of all places, the Daily Record). The timetable demanded draft legislation before the general election, and a bill introduced immediately thereafter. All of this has duly happened.

The Scotland Bill is very similar to the pre-election draft, with changes to address points of criticism. It is faithful to the Smith recommendations: Virtually complete devolution of income tax – Check. Assignment of half of VAT – Check. Declaration of constitutional permanence for the Scottish Parliament, and legislative basis for (what we must still call) the Sewel Convention – Check. Devolving £2.5 billion of benefits – Check. So from any perspective this is major stuff.

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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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Can Scotland trust Westminster to transfer enough powers to seal it for a No result?

Brian Walker explores whether the pro-Union parties can offer enough devolution to persuade voters Scotland will be given priority if they vote No.

On September 18 voters in Scotland will take a momentous decision based on two sets of uncertainty: on independence which is on the ballot paper and on more devolution which is not. A recent survey by the British Election Study suggests 74% of voters want some or a lot more devolution. Only 35% of them are Yes supporters.  57% of No voters actually want more devolution and 50% of all voters believe it will happen if No wins. This is a rising tide the pro-Union parties are desperate to harness.

And so to counter the clearer appeal of independence, the leaders of Scotland’s pro-union parties gathered on Calton Hill in Edinburgh on 16 June to deliver a joint promise of more devolution in the event of a No vote. David Cameron declared:

All the mainstream pro-UK parties believe in further devolution, so whilst we would want to build consensus for a set of measures and legislation, there is no reason why these changes shouldn’t happen early in the next Parliament.

Lib Dem peer Lord Jeremy Purvis, leader of the cross-party Devo Plus group, enthused that all of the major parties were now ‘clearly and unequivocally supporting a stronger Scotland.’

In early July Purvis joined representatives of the other two parties, Anas Sarwar MP, Deputy Leader of Scottish Labour and member of the party’s Devolution Commission and Peter Duncan, a communications consultant and former Scottish Conservative MP,  for an Institute for Government debate:  Scotland in a changing UK: Unionist visions for further devolution after the referendum. Is  the impression of chiming pro-union agreement justified?

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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….