21 October 2012 · 9:58 am

A ‘paving bill’ for the Scottish independence referendum?

In his speech to the SNP conference in Perth (available here), Alex Salmond has suggested that there will be a ‘paving bill’ for the independence referendum.  The principal reason for this is the need for a separate electoral registration process to enable 16 and 17 year olds to vote, as they are would not be included in the register produced by the usual electoral registration process.  That bill, the First Minister says, will be introduced ‘in the next few weeks’.  (I pointed out some of the practical problems with producing a register of under-18s so they could vote in the referendum HERE.)

The idea of a paving bill is a shift in the proposed timetable and programme for the referendum, which has only ever talked of a single referendum bill and not a preliminary paving measure.  It’s a practical step, as otherwise work on this difficult area would have to be postponed until the main referendum bill is passed.  As that is planned to be October 2014, only 12 months before the planned referendum date, that is about when the register would need to be compiled.  Similarly, if those aged 16 and over are to be eligible to vote at the referendum, the register will need to include not only those aged 15 at the date it is compiled, but also some 14 year olds in order to catch those who qualify immediately before the day of the vote.  All this is a task of some administrative complexity – and some cost.

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Filed under Referendums, Scotland, Scottish independence, SNP

15 October 2012 · 2:17 pm

The independence referendum deal

The agreement publicly reached between David Cameron and Alex Salmond for the holding of a Scottish referendum on independence in 2014 marks the end of a long, and unduly protracted, process.  (There’s an account of the latter stages of that by Alan Cochrane of the Telegraph here which strikes me as well-informed if incomplete.)  The agreement itself (with the draft section 30 order at the end) is here.  The news story about it from Number 10 is here, and that from the Scottish Government is here.

The deal itself is a good and necessary one, if not particularly surprising in its content given the various leaks and rumours about it over the last few weeks.  It is also one which delivers each government its key requirements, so in that sense it is a good deal for both sides.  And, of course, it confirms that a referendum will indeed happen.

How we got here

It’s worth remembering how we got to this point.  The SNP fought the 2007 election on a manifesto commitment to hold an independence referendum if elected, and to publish a white paper on independence before then.  That commitment meant that a vote for the SNP would not necessarily be a vote for independence as such, which helped boost support for the SNP so it was able narrowly to win a plurality of votes and seats at that poll, because the election turned into one about ‘valence’ and competence not high-level ideology.  In other words, the Continue reading →

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Filed under Conservatives, Intergovernmental relations, Lib Dems, Scotland, Scottish independence, SNP, Westminster, Whitehall

11 October 2012 · 8:49 am

The section 30 order and under-18s voting in a Scottish referendum

There have been indications – leaks, rumours and even official statements – for some time now that agreement on the section 30 order to confer power on Holyrood to call a referendum on independence was near (see BBC News from the last few days here and here, or Severin Carrell in the Guardian in early September here and on Wednesday here).  Indeed, I was on BBC Radio Wales’s phone-in yesterday to talk about the supposed agreement, to find that the latest news was that Alex Salmond was keen to emphasise that a deal had not yet been done, which led to the over-reaction that the deal was off.   In any event, there is to be a meeting between Salmond and David Cameron on Monday, supposedly to sign off the section 30 order.  (The SNP seem to have won a protocol struggle here, with Salmond succeeding in putting himself on the same footing as Cameron, while more junior ministers such as Nicola Sturgeon and Michael Moore do much of the sherpa-ing for the premiers’ summit.)

The order will, apparently, permit a single-question referendum, to be held not later than 2014, and regulated by the Electoral Commission.  The single question and the regulation are points on which the UK Government (and Labour) have been determined since May 2011, and have been conceded by the Scottish Government; the date has been chosen by the SNP, but was initially resisted by the Unionist side.  However, the question of who can vote in the poll has now become an area of controversy, because of the SNP’s desire to ensure that under-18s can vote.  This was a focus of the debate around a private notice question in the Lords on Wednesday, asked by Lord Forsyth of Drumlean (and available here), and again on Radio 4’s ‘Today’ programme on Thursday morning.

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Filed under Intergovernmental relations, Referendums, Scottish independence, SNP, Westminster

2 October 2012 · 1:16 pm

The Welsh Byelaws bill and the UK Government: an update

The Welsh Government has released a good deal of correspondence regarding the progress of the Byelaws bill and the legal problem that has led to it being referred to the UK Supreme Court, which I discussed earlier HERE.  It is interesting that they have chosen to do this (and it is a choice), as section 28 of the Freedom of Information Act 2000 provides a broad exception to the Act if ‘disclosure under this Act would, or would be likely to, prejudice relations between any administration in the United Kingdom and any other such administration.’  Clearly the Welsh Government do not think it would, and it is encouraging that the Welsh Government has been willing to put this material in the public domain, although it has used the public interest exemptions in section 36 to exclude some internal notes and material.  (Just in case anyone was wondering, I was not involved in the FoI application.)  The hearing before the UK Supreme Court is due to begin next Tuesday, 9 October.

The letter explaining the disclosure can be found here, and the documents disclosed are at the bottom of that page.  They include the formal reference by the Attorney General to the Supreme Court, setting out the detailed legal grounds for the reference and drafted for him by Counsel, which is also here.

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Filed under Courts and legal issues, Intergovernmental relations, Legislation, Wales, Whitehall

25 September 2012 · 12:06 pm

Scotsman article on borrowing powers and not learning the wrong lessons from Club Med

Guy Lodge of IPPR and I have an article in today’s Scotsman, about the right lessons to learn for devolution finance from the problems of sub-state borrowing in southern Europe.  The article can be found here.  Below is the original copy we filed, with some hyperlinks added. 

DEBT AND FISCAL DEVOLUTION: LEARNING FROM CLUB MED

It was inevitable that the eurozone crisis would cast a shadow over the debates about Scotland’s constitutional future.  The SNP have already been forced to rethink their commitment to take an independent Scotland into the euro, opting instead to stick with sterling for the foreseeable future.  Developments in Italy and Spain mean the spotlight has now turned on those who support further enhancing the powers of the Scottish Parliament instead of independence.  For many the case for handing Scotland greater tax and borrowing powers has been badly damaged by the sight of Valencia, Catalonia and most lately Andalucia – Spain’s indebted autonomous communities – queuing up for bail-outs from the Spanish government.  Does the UK really want to replicate the situation in Italy where the central government has been forced to take over the finances of a fiscally autonomous but bankrupt Sicily?

The Treasury – which has just ended a consultation on Scottish borrowing – is clearly looking hard at Club Med’s problems.  It no doubt thinks the UK has dodged a bullet by ensuring that devolved governments cannot run up similar debts.   But that would be to draw the wrong lesson, getting both the politics and the economics wrong.

In fact, there are two lessons that can be better learned from southern Europe’s current travails.  The first is that hard budget constraints – that devolved budgets cannot be open to politically convenient top-ups from central government – are vital.  The problem with the Spanish regime for financing the autonomous communities is that regional and central state finances are hopelessly entangled, which means that bailouts are regarded as being on offer, and (outside the Basque Country) powers to set tax rates have never been used to depart from the rates set years ago before the taxes were devolved.  Spanish fiscal devolution has involved a slow, incremental deconcentration of tax powers, without ever fully separating the finances or tax powers of each government.  Worse, overlaps in functions and political choices by the central government may have driven up borrowing.  Catalonia regularly complains that the central state has deliberately under-invested in central government infrastructure functions in Catalonia, using the money saved (much of it generated by Catalan taxpayers) to spend elsewhere. Consequently some Catalan regional spending is needed to fill that gap (it is therefore over-simplistic to regard the problem as ‘regional overspending’ – the central state is also partly responsible for the perilous state of the autonomous communities’ finances).

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Filed under Comparisons from abroad, Devolution finance, Publications and projects, Scotland, Whitehall

17 September 2012 · 1:49 pm

Welsh byelaws and the UK Supreme Court

This post also appears on the UK Constitutional Law Group blog, here. 

At the end of July, we learned that the UK Attorney-General has referred the first Act of the National Assembly passed since the March 2011 referendum to the UK Supreme Court.  There’s news coverage of this from the BBC here, and a good analysis from Toby Mason of BBC Wales here.  This is the first time that any devolved legislation has been referred to the Supreme Court before receiving royal assent; it is the first time the UK Government’s law officers have challenged the legal competence of devolved legislation; and it is the first time that legal challenges involving Welsh legislation have been brought.  Any one of those would make it a noteworthy event indeed.  To find all three of them in one place – coupled with a significant legal issue – makes it a case of rare interest.  The latest information is that there will be a hearing in early October.

This post will discuss what the case is about, how it comes before the court and what the constitutional political issues at stake are, as well as the black-letter legal ones.  It is a case of interest that goes far beyond Wales, because although there are significant differences between the Welsh arrangements and those for Scotland or Northern Ireland, the case also raises some rather broader questions about the legal working of devolution.

This is not the first time Wales has broken new ground in challenging how devolution works, of course.  Most notably, Wales was the first jurisdiction to refuse consent to Westminster legislation affecting a devolved function under the Sewel convention – aspects of the Police Reform and Social Responsibility Act 2011.  Perhaps the more provisional, evolutionary nature of the Welsh arrangements mean that it is more prone to test the legal aspects of its devolution arrangements than Scotland or Northern Ireland, where they are more clearly established.

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Filed under Courts and legal issues, Intergovernmental relations, Legislation, Wales, Whitehall

16 September 2012 · 10:02 am

Enhancing devolution: presentation at PSA Territorial Politics conference in Brussels

On Friday 14 September, I gave a presentation at the conference of the Territorial Politics working group of the Political Studies Association.  This is a biennial event, and this time it was held in Brussels.

I presented a version of the work I’ve been doing on how a more decentralised approach to devolution finance might work, and also discussed how that relates to wider ideas about ‘enhanced devolution’ particularly but not only for Scotland.  I gave it the snappy and glamorous title ‘Devo more, devo plus and so on: extending devolution in the UK, and financing it.’  At least it’s accurate.

Fiscal devolution is the starting point here, but the problem is that it’s hard to design a funding system when you don’t know the nature and costs of the functions devolved.  This means that outlining models for ‘fiscal devolution’ at the start of working on schemes of enhanced devolution rather than the end of them is like putting the cart before the horse.  The deeply-established fiscal centralisation of the United Kingdom – which goes back at least to the Middle Ages, and which in both Tudor times and the late seventeenth century was key to the power of the English state – is a major factor here.  Under the existing model of devolution, health, education and local government services are the most costly functions in devolved hands.  For this, I think it’s possible to create something workable through devolving (all) personal income tax, assigning a large proportion of VAT to devolved governments, and devolving the various land taxes and alcohol and tobacco duties (though that will require quite a major restructuring of how those work).  That needs to be accompanied by an equalisation grant, and there are some big questions about how that works.

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Filed under Devolution finance, Events, Policy issues, Publications and projects

14 September 2012 · 11:47 am

‘Comment is Free’ piece on an independent Scotland’s membership of the EU

I was asked by the Guardian’s Scotland correspondent, Severin Carrell, to write something about José Manuel Barroso’s remarks about ‘seceding’ states becoming members of the European Union, which suggested that the EU would not automatically accept Scotland as an EU member as a ‘successor state’ to the current United Kingdom.  A statement by the Commission President is clearly not determinative of what might hypothetically happen in a few years’ time, let alone what view other EU institutions might take – membership issues will fall ultimately to the European Council to decide.   However, Barroso’s statement raises the stakes, raising legal issues (as the ‘state succession’ issue is only part of the legal argument about Scottish EU membership, the other part arising from EU citizenship), as well as political ones.  In it, I try to explain the two lines of legal argument, how Barroso’s statement is unhelpful to the SNP’s referendum strategy, and how it seems to reflect a rather narrow view by the Commission of what the EU is about that would seem to be at variance with other activities of the Commission.

The piece has appeared on the Guardian’s ‘Comment is Free’ site, and can be found HERE.  To judge from the volume of comments, it has excited a good deal of interest.

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Filed under EU issues, Publications and projects, Scottish independence, SNP

7 September 2012 · 2:15 am

The rentrée in Scotland

Autumn started with a bang in Scotland: a Programme for Government and plans for new legislation, including a referendum bill; a government reshuffle, and a host of policy initiatives.

First, Alex Salmond’s reshuffle of the Scottish ministerial team.  The official press statement is here.  Key moves are Nicola Sturgeon’s move to Infrastructure, Investment and Cities, along with a constitutional brief; Alex Neil’s swap with her, from Infrastructure to Health; the departure from government of Bruce Crawford and Brian Adam; and the appointment of Humza Yousaf as Minister for External Affairs and International Development.  There has been something of a structural rejig.  The Minister for Transport and Veterans (Keith Brown) and a new post of Minister for Housing and Welfare (Margaret Burgess) are to report to Sturgeon as Infrastructure Secretary.  That may give Sturgeon more time for her constitutional brief.  Yousaf reports to Fiona Hyslop as Cabinet Secretary for Culture and External Affairs.  The new Minister for Parliamentary Business is Joe Fitzpatrick, and is both whip and government business manager, but not a Cabinet Secretary.  Burgess, Yousaf and Paul Wheelhouse (new Minister for Environment and Climate Change) all come from the 2011 intake of MSPs.

In contrast to the rather sprawling nature of the UK Coalition Cabinet (23 full members, its statutory limit, but 32 attendees – and there are also quite a few unpaid junior ministers to deal with the overall limit on the size of the government payroll), the Scottish Government are eager to point out that there are still only eight Cabinet members, and (by my reckoning) 10 non-Cabinet Ministers.  Having a single-party government helps a lot, of course, and the Scottish Government’s responsibilities are much narrower, but even so the difference is telling.

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Filed under Legislation, Referendums, Scotland, Scottish independence, SNP

6 September 2012 · 2:37 pm

The Welsh legislative programme for 2012-13

With rather curious timing, the Welsh Government announced its legislative programme for the coming year just before the summer recess.  The news release is here, and there’s news coverage from the Western Mail here.  This announcement follows one last year, laying out a legislative programme for the whole of the Assembly’s term.

There are eight bills for 2012-13.  Several of these are likely to test the limits of the National Assembly’s law-making powers, either because of the scope of Schedule 7 as it is drafted, or because of their effects on the remaining powers of UK ministers.  The latter is particularly like to be a problem with the Human Transplantation bill, creating an opt-out rather than opt-in regime for organ donations.  (The organ transplantation system is presently run on a UK-wide basis by NHS Blood & Transplant, for which the UK Secretary of State for Health is responsible, and regulated by another UK body, the Human Tissue Authority, although that is slated to have its functions changed under the Public Bodies Act 2011.  See HERE for further discussion of the legal problems it faces.)  Similar issues may arise with the Education, Local Democracy and perhaps Social Services bills, depending on how those are framed.  That means that issues of amending Schedule 7 (for which new procedures were set out in the early summer), or obtaining the Secretary of State’s consent where there is an effect on a UK ministers’ functions, will be needed.

One thing is very clear about legislating in Cardiff Bay; the new arrangements under Part 4 of the Government of Wales Act 2006 replaced one set of difficulties with another.  The National Assembly simply does not have an untrammelled power to legislate for ‘health’ or ‘education’, even if the general public has the impression that it should.

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Filed under Labour, Legislation, Wales