5 September 2012 · 6:20 pm

The UK reshuffle and the territorial offices

The UK Government’s ministerial reshuffle may lead to further tensions within the Westminster Coalition, but it has been one of pretty limited change, as far as the territorial offices are concerned.  Full details of all the new ministers can be found on the No 10 website, here.

There has been no change at the Scotland Office at all, with Michael Moore and David Mundell remaining in place.  Lord Wallace does so too, as Advocate General for Scotland.  The opportunity of putting a more ‘campaigning’ politician in charge has not been taken, even with the independence referendum looming, and although the heavy legislative work of getting what is now the Scotland Act 2012 drafted and onto the statute book is now done.  The only major item of legislative business on the immediate agenda is the section 30 order regarding the referendum (which Severin Carrell suggests here is close to agreement between the two governments).

The Wales Office has seen the departure of Cheryl Gillan as Secretary of State, and the promotion of David Jones, the former junior minister, to replace her.  That follows a determined lobbying campaign from Welsh Conservative MPs for the new Secretary of State to have a Welsh seat, and suggests minimal change in the UK Government’s approach.  Jones has already emphasised his desire for a ‘very good business-like relationship’ with the Welsh Government.  The interesting shifts of role and personnel are at the junior level.  Stephen Crabb has been promoted within the Whip’s office (though he was never the ‘Welsh whip’), and also made parliamentary under-secretary of state.  Baroness (Jenny) Randerson, former AM and Welsh Lib Dem Minister, has also become an (unpaid) parliamentary under-secretary, for which the Lib Dems are said to have fought hard.  Given her company among colleagues who have been regarded as ‘devo-sceptics’ (though they now emphasise their support for devolution), it’s interesting that she emphasises that she is a ‘committed devolutionist’ in the Welsh Lib Dem press notice announcing her appointment.

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Filed under Conservatives, Intergovernmental relations, Legislation, Lib Dems, N Ireland corporation tax devolution, Northern Ireland, Scotland, Wales, Whitehall

11 June 2012 · 9:45 pm

A Welsh legal jurisdiction, and its effects on legislation

I haven’t properly posted about the Welsh Government’s consultation on the idea of establishing a separate Welsh legal jurisdiction.  They launched this in late March and it’s reputedly a concern close to Carwyn Jones’s heart.  Details are here, the consultation paper itself is available here, and the closing date for responses is 19 June.  The consultation paper is open-ended (or open-minded) in the extreme.  In essence, the paper is a set of exam questions about whether there should be a separate legal jurisdiction for Wales and what form it should take.  Examinees, sorry respondents, are required to ‘give reasons’ for all their answers.

One important point about legal jurisdictions is that, in the common-law world, they invariably coincide with the existence of a legislature.  Thus, in Canada, even a tiny province like Prince Edward Island has its own legal jurisdiction – as well as a provincial legislature.  In federal systems, there will also be a legal jurisdiction attached to the federal order/level; so PEI is both a jurisdiction of its own, in relation to exclusively provincial matters, and part of the jurisdiction of Canada in relation to federal ones.  The civil-law world works differently, and can more easily accommodate multiple legislatures passing laws for particular territories within a single legal jurisdiction.  Thus, there is a single German or Swiss jurisdiction, despite the existence of federal and Land or cantonal parliaments that can both pass laws.

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Filed under Courts and legal issues, Events, Wales, Westminster, Whitehall

11 June 2012 · 9:44 pm

New Welsh Devolution Guidance Notes

Through the Cardiff seminar on ‘A separate Welsh Legal jurisdiction’, (see post above) I learned that the Wales Office has now quietly published two new Devolution Guidance Notes concerning the new legislative arrangements.

Devolution Guidance Notes are rather important parts of the knitting that make the devolved UK work. Collectively, they can now be found on the Cabinet Office’s website here.  Although they are only internal guidance to UK Government departments, they lay down important procedures for how Whitehall should in fact deal with the devolved governments and legislatures.  They also result from discussions with the devolved government concerned, so although they should not be regarded as agreed documents, they do take into account some devolved concerns.

The new DGNs are Devolution Guidance Note 9, Post Devolution Primary Legislation affecting Wales, and Devolution Guidance Note 17, Modifying the Legislative Competence of the National Assembly for Wales.  DGN 9 has been through repeated editions, following the various legislative dispensations for Wales; the new one replaces one designed for Part 3 of the Government of Wales Act 2006, which was issued in November 2005.  DGN 17 is wholly new, and deals with the possible (indeed, likely) need to amend the legislative powers set out in Schedule 7 to the 2006 Act under section 109 of the Act.  (Unlike legislative competence orders made under section 95, there are no defined procedures for such orders – or any formal way for the National Assembly to seek to obtain one.

It’s not clear when the new DGNs were actually made or published.  There was no announcement of their publication on either the Cabinet Office or Wales Office websites (so one would have to be very vigilant to have spotted their publication), and the new notes bear no date – but they are pretty new.  The new DGN 9 can be found here, and DGN 17 is here.

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Filed under Intergovernmental relations, Legislation, Wales, Whitehall

9 May 2012 · 5:46 pm

The Queen’s speech and the UK Government’s legislative programme for 2012-13

The Queen’s speech given today launches a pretty modest UK legislative programme.  Whatever the reasons for that – failure to agree between the Coalition partners (see Patrick Wintour’s view that it’s largely a Lib Dem programme, here) or giving priority to other issues which don’t need legislation – it’s notably limited when it comes to the sort of domestic legislation that tended to throw up devolution issues while Labour were in office.  Nonetheless, more such questions lurk within it than may be obvious at first glance.

The text of the Queen’s speech can be found here.  The Cabinet Office’s remarkably interesting briefing notes on it – which give information about the content of the bills – are here.

Those notes include summaries of territorial extent and implications for devolution, which suggest rather greater consideration has been given to devolution questions than has been the case when many previous legislative programmes were announced.  Indeed, that was conspicuously missing in the Coalition’s first Queen’s speech.  If that was an example of poor practice in that regard, this is an example of pretty good practice.

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Filed under Conservatives, Courts and legal issues, Intergovernmental relations, Legislation, Lib Dems, Westminster, Whitehall

9 May 2012 · 11:57 am

London conference on ‘Scottish politics explained’, 3 July

I’m taking part in a conference organised by Holyrood Magazine conferences, taking place in central London on 3 July 2012.  It’s got an impressive line-up of speakers, including Henry McLeish, Jeremy Purvis and Jim Mather, MPs including Stewart Hosie, Margaret Curran and Danny Alexander, as well as a clutch of academics.  The aim of the event is to survey the current shifting ground of Scottish politics, as the independence referendum comes seriously onto the agenda.  I’m taking part in a panel discussion about economic and financial issues, along with Brian Ashcroft of Strathclyde University, Drew Scott of Edinburgh University, and Jeremy Purvis, the former MSP now involved in Reform Scotland’s Devolution Plus initiative.

Details of the event, including booking arrangements, are here.  It should be a good event, though it’s also rather expensive.

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Filed under Devolution finance, Events, Implications of Scottish independence, Scotland, Scottish independence, Westminster

9 May 2012 · 11:18 am

‘Scotsman’ article on Devo More and a referendum

Some time ago – before Easter, in fact – I had an article in the Scotsman about how enhanced devolution can be part of the Scottish independence referendum debate, despite the determination of the Unionist parties to have a single Yes/No question in that vote. In essence, that requires the ‘devolution plus’ option to be developed so that it is a clearly framed and worked-through scheme, with broad political support (from the Unionist parties, and more widely), before the referendum. Otherwise, a pro-Union vote will necessarily be a negative one, and that will make the pro-Union case a much harder one to make.

The article can be found here, and a webchat about the article and related issues I did with Scotsman readers can be found here.

The text of the article as I filed it is below.

‘Devo more’: on the table, even if it’s not on the referendum ballot

The debate about Scotland’s constitutional future will soon come to another punctuation point.  The UK Government’s consultation on an independence referendum will shortly result in the making of a section 30 order (something I outlined in this paper back in June 2011) , and the publication of the UK Government’s summary of responses to its consultation shows pretty clearly that London intends to limit the choice before voters to a single question, not two as sought by the Scottish Government.  The referendum will be a straight choice between the Union and independence, with the possibility of further powers afterward.

This position suits the Unionist parties, if not the SNP.  Quite a number on the Unionist side are opposed to any extension in the scope of devolved powers.  Many others support more devolution, including the Liberal Democrats and many in Labour, but are not clear what that means.  Politically, the Unionist side thinks it has a better chance of winning a Yes or No referendum than one offering several options – what one might call an ‘excluded middle’ strategy.  This is essentially a negative approach, and contrasts with the positive one of the SNP.

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Filed under Conservatives, Devolution finance, Labour, Lib Dems, Referendums, Scotland, Scottish independence, SNP, Westminster

19 March 2012 · 9:25 am

Privatising ‘the nation’s’ roads

The UK Government’s planned announcement regarding road privatisation and tolling in England is a puzzling move (see trails from the Independent here, Guardian here, and BBC News here).  It controls, of course, only roads in England; the building, maintenance and operation of roads in Scotland, Wales and Northern Ireland is devolved.  So this policy is not just limited in scope, but over-hyped in its rhetoric; ‘the nation’s roads’ are only roads of one part of it.

The second element is the planned funding through hypothecating a proportion of vehicle excise duty (road tax).  As a solution, it will be attractive to potential operators of privatised roads as it will be a guaranteed revenue stream.  But if that’s to be done, Scotland, Wales and Northern Ireland’s devolved governments should get their share too.  (Should that share be calculated on the proportion of road miles in those parts of the UK, or population?  That’s a technical question that matters, given the large areas of sparse population in all three parts of the UK, with a lot of not-very-heavily used roads as a result.)

The announcement to be made today is only for feasibility studies to be carried out, and actual privatisation may never happen.  But the way it has been publicised suggests that no-one has aired these issues before the announcement was planned, which itself may suggest something about the role of spin and side-lining of normal policy-making under the Coalition at Westminster.  Moreover, it shows a failure to think carefully about what ‘the nation’ is (England or UK?) at a time when that issue has a particular sensitivity.  It’s almost as though Number 10 has bought into SNP rhetoric without noticing.

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Filed under Conservatives, Intergovernmental relations, Lib Dems, Northern Ireland, Policy issues, Scotland, Wales

18 March 2012 · 11:46 am

Edinburgh seminar on intergovernmental relations and Scotland’s Constitutional Future

I took part in a private seminar on ‘Scotland’s Constitutional Future’ in Edinburgh on Friday, organised by Stephen Tierney from Edinburgh Law School and Tom Mullen from Glasgow Law School.  I’m happy to out myself as taking part, as I thought my presentation might be of interest to a wider group than those who were present in the splendid setting of the University’s Playfair Library.  It can be found HERE.

In my presentation, I start by sketching four reasonably plausible outcomes from the Scottish debates: the status quo, including implementation of the Scotland bill still before Parliament; ‘Devolution Plus’ (whatever that is); ‘Devolution Max’; and Scottish independence.  I then outline some of the key effects of those for intergovernmental relations.  Each, I argue, creates a significant and increasing amount of need for governments to co-ordinate their policies with each other, and to create adequate and effective machinery to do so.  That is as much the case to make the Scotland bill arrangements work as for more extended forms of devolution, and also remains true for independence.  For forms of ‘Devolution Plus’, involving (as I see it) signficant fiscal devolution and at least a measure of devolution of welfare benefits, that would raise major questions about how tax collection and administration of ‘Scottish’ benefits might work, which would imply very extensive changes for HM Revenue & Customs and the Benefits Agency.  Devolution Max would imply major changes relating to macroeconomic and monetary policy, and to European Union matters.

One big question here is whether the UK Government has the will and capability to embark on such large changes, given its reluctance to make even minor ones in the wake of devolution so far.

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Filed under Devolution finance, Implications of Scottish independence, Intergovernmental relations, Scotland, Scottish independence, Westminster, Whitehall

12 March 2012 · 8:37 pm

Scottish independence referendum: response to the two consultations

I have now submitted a response to the dual consultations on a Scottish independence referendum – both the UK Government one, initiated by the white paper Scotland’s Constitutional Future Cm 8203, which closed on 9 March, and the Scottish Government’s one Your Scotland, Your Referendum which closes on 11 May.

In the submission I address three key issues: the timing of a referendum, the number of questions, and the regulation of the referendum, and relate my views to the key criteria for the referendum, set out by David Cameron but also agreed by the Scottish Government: that it must be ‘legal’, ‘clear’ and ‘decisive’.  To these, ‘fairness’ has been added.  There are particular problems with a decisive referendum, held before any independence negotiations have been held and when it is unclear what sort of a state an independent Scotland would be.

As regards timing, I argue that it would be appropriate to hold the referendum in the autumn of 2014, and that the key point in eliminating uncertainty is to establish the referendum date.

Regarding the number of questions, I note the divided nature of the constitutional debate since 2007, and the absence of any consensus on what ‘Devolution Plus’ or ‘Devolution Max’ would be, or any significant campaign for them.  In the absence of such a clear position or campaign, I cannot see how a multi-choice referendum might be run – even if some form of enhanced devolution is what appears to have the support of a plurality if not majority of Scottish voters.  (See my presentation from today’s Constitution Unit seminar, HERE, for more detail.)

When it comes to the regulation of the referendum, I argue that this role – including advice about the intelligibility of the question – needs to be undertaken by the Electoral Commission.  This is necessary to ensure that the referendum is seen to be ‘fair’ more than anything.

I also raise the question of what, in the event of a Yes vote in a referendum, the position of the Scottish Government would be.  Logically, the Scottish Government should be the party to negotiate terms of independence for Scotland after such a vote, and to make the necessary preparations for independence.  However, it has no legal powers to do so under the Scotland Act 1998, nor does the Scottish Parliament have power to enable it to do so.  Further powers would need to be conferred on the Scottish Government (and perhaps also the Parliament) to enable that to happen.

My submission can be found HERE.

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Filed under Referendums, Scotland, Scottish independence, Westminster

8 March 2012 · 10:19 pm

Powers to legislate for a Scottish independence referendum

I spent Thursday morning at a conference in Edinburgh organised by The Scotsman about a Scottish independence referendum.  There’s a report of the event from Eddie Barnes here.  As I noted earlier, the star turns were Michael Moore MP, Secretary of State for Scotland, and Bruce Crawford MSP, Cabinet Secretary for Parliamentary Business and Government Strategy, though unsurprisingly, there wasn’t much agreement between the two politicians.  Moore emphasised the need for clarity in the referendum proposition and the question; Crawford pointed out the array of commissions and groups looking at ‘more powers’, and questioned how Scottish voters could take seriously such an offer when it was so unclear.  One of the few points on which they did agree was to applaud the choice of Edinburgh as home for the new ‘Green Investment Bank’ (and see the discussions by David Maddox here and here of the politics behind that decision).There were, however, two points on which Crawford seemed to make significant statements.

The first concerned regulation of the referendum. The Scottish Government now appears to accept that the Electoral Commission should not just regulate the conduct of the referendum campaign including donations (which it accepts in its referendum consultation), but also discharge its usual function of advising on the ‘intelligibility’ of the question – which involves extensive testing of its wording with focus groups to eliminate possible sources of misunderstanding.  When it published its consultation paper  it limited this part of the Commission’s role, saying that its proposed ballot paper had been designed to comply with Electoral Commission guidelines, and that it would take advice from the Commission (and others) about the question – but did not embrace the statutory role in this that the Commission would have under the Political Parties, Elections and Referendums Act 2000. It’s not clear to me if the Scottish Government have agreed that they will be bound by the Commission’s advice, but agreement on the Commission undertaking question-testing addresses many concerns from opponents of independence about the ‘fairness’ of a referendum.

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Filed under Referendums, Scotland, Scottish independence, SNP