Brexit, Democracy and the Rule of Law

The decision of the High Court in London this week was a ruling not on whether Brexit should happen, but on how it can happen lawfully. Some of the press coverage of the decision has been deplorable. There is nothing–nothing at all–in the court’s judgment to block the will of the people, to reverse the result of the referendum, or to get in the way of Brexit. Nor is there anything inappropriate in turning to the courts to determine how Brexit can proceed in accordance with the rule of law. To rule on such matters is emphatically the courts’ job. For 25 years I have been among the first to criticise judicial rulings that trespass into terrain better left to politicians and Parliament. But this is no such case. The court has done nothing improper and those who sit idly by whilst others who should know better castigate the judges for doing their job should be ashamed of themselves. We are a country that abides by the rule of law, and we should act like it.

All of that said, as a lawyer I think the court’s ruling is wrong. What follows is a pretty technical legal analysis of why I think so. This is not a party political intervention, and nor is anything in this post informed by the fact that on 23 June I voted to remain in the EU. I voted remain because I thought that David Cameron’s renegotiation of the UK’s terms of membership was pretty good. I have not changed my mind about that, albeit that I think the UK must now leave the EU because a clear majority of the British people said so in the referendum. There are aspects of the decision made on 23 June that worry me (notably over the economic uncertainty caused by not knowing what our future relationship with the single market is going to be) and other aspects of that decision that I positively celebrate (such as the fact that we will be free of the Court of Justice’s highly problematic case-law, which has often completely failed to adhere to what I would recognise as the rule of law). But all these reflections are completely immaterial to what I think of the High Court’s ruling in the Article 50 case on Thursday.

The issue to be resolved in the case is simple to state. It is whether government ministers have the legal power to trigger Article 50 (the formal mechanism by which a Member State leaves the European Union). This is a question of UK constitutional law. It is not a question of European law. It is a question of UK constitutional law that has a single UK-wide answer. It is not a matter in respect of which English law, Scots law and Northern Irish law have different answers.

If the answer to the question is yes, the power that ministers have to trigger Article 50 would be a prerogative power of the Crown–the prerogative power to make and unmake treaties, and to conduct international relations. If the answer is no, Parliament would have to pass a statute to confer such a power on ministers. So the question is whether ministers can trigger the beginning of the UK’s formal departure from the European Union without further parliamentary enactment. The question is not whether ministers could conclude that process without further parliamentary enactment. (The answer to that question would clearly be no.) In other words, the questions is not “does Parliament have to be involved in the Brexit process”. Of course Parliament has to be involved. The question is a much narrower one: “does Parliament have to be involved before the Brexit process may be formally commenced under Article 50?”.

Now, the first thing to say about ministers triggering Article 50 is that they are not doing it simply because leaving the EU is now government policy. They are doing it because this was the clear instruction of the British people in the referendum on 23 June. There are many things that the referendum did not decide. It did not decide the extent to which the UK will in the future participate in the single market. It did not decide whether the UK should remain within the customs union. It did not decide that there can be no future pooling or sharing of sovereignty over our border controls. It decided none of these things. It decided simply–no more and no less–that the UK should cease to be a Member State of the European Union. It decided nothing about what future relationship with the EU the UK should have (save that it should no longer be a Member State). There is one and only one way in which a Member State may lawfully leave the European Union. That is by that state triggering Article 50. So the result on 23 June was a direct instruction that Article 50 be triggered, because it was a direct instruction that the UK should leave the EU (and it was known when that instruction was issued that the only lawful means of achieving this is under Article 50).

The second thing to say about this is that the British people were able to give ministers this clear instruction because–and only because–Parliament enacted a law that authorised the referendum to be held (the European Union Referendum Act 2015). It wasn’t government ministers that authorised the referendum: it was Parliament.

My first problem with the High Court’s judgment is that it ignores all these facts. Indeed, the fact that ministers wish to trigger Article 50 early in 2017 because and only because they have been instructed to do so by the British people is overlooked in the judgment. This is a stark omission. Ministers’ exercise of the prerogative to trigger Article 50 is no ordinary executive act: it is an act ministers have been told to undertake in a referendum authorised by Act of Parliament.

My second problem with the judgment is that it mischaracterises the European Communities Act 1972 (“ECA”). This is the Act that gives effect in the legal systems of the United Kingdom to the rights and obligations we have under the law of the European Union. Only Parliament could repeal this legislation. Triggering Article 50 would not repeal it. Ministers could not repeal it. The ECA is, without doubt, one of the most significant enactments ever passed by the United Kingdom Parliament.

The legal core of the court’s ruling is that the European Communities Act prevents ministers from triggering Article 50. This is the ruling I consider to be incorrect as a matter of strict legal analysis. The ruling is arrived at via three main steps, as follows: (1) under the ECA, UK citizens enjoy rights and obligations arising under EU law; (2) under our constitutional rules, ministers may not take away our statutory rights unless Parliament has expressly authorised them to do so; (3) under the ECA there is no express provision made about withdrawal from the EU. There is therefore no express provision in the Act about ministers removing from our legal systems rights we enjoy under EU law. It follows, says the court, that the 1972 Parliament must be taken to have intended that the ECA it passed in that year was meant to deny to future ministers the prerogative power to withdraw the UK from the EU.

Each step of this legal reasoning is flawed, in my view. First, the legal basis of the rights and obligations we enjoy under EU law is EU law, not the ECA. The ECA is merely the vehicle by which those rights and obligations are translated into enforceable rights and obligations in the legal systems of England and Wales, Scotland, and Northern Ireland. Those rights and obligations have force in the United Kingdom because and only because Parliament has said so in the ECA (so much was confirmed in the European Union Act 2011, s. 18). But this does not mean that the underlying source of those rights and obligations is the ECA itself–the underlying source is the EU–and the ECA is the legal vehicle by which those rights and obligations are translated into the UK’s legal systems.

Secondly, our constitutional rules about ministers not being able to dilute or diminish statutory rights without express authorisation have no application here. Triggering Article 50 will not dilute or diminish anyone’s statutory rights. It will commence the formal legal process by which the UK leaves the EU, no more and no less. What happens to the rights and obligations we possess in the UK by virtue of our EU membership will be a matter for Parliament to determine in due course. And it is worth noting, of course, that Prime Minister Theresa May has said that she will invite Parliament to legislate to maintain in force in the UK all the substantive rights and obligations we currently enjoy under EU law. It is government policy that workers’ rights will remain as now. Rights to equal pay likewise. Social protections will continue. And so on. But they will continue as UK rights and obligations, not as EU rights and obligations.

Our constitutional rules about ministers not being able to dilute or diminish rights without express statutory authorisation are relatively recent. The key sources of these rules are two House of Lords cases decided in 1998 and 2000 (Pierson and Simms). Herein lies the fatal flaw in the third step of the High Court’s reasoning: how can the 1972 Parliament coherently be said to have intended an outcome that was not established in our constitutional law until nearly thirty years later? A ruling that relies on the proposition that the European Communities Act must be interpreted as if its authors intended their work to prevent ministers from exercising their prerogative powers over the making and unmaking of treaties is one that is inevitably anachronistic. It is therefore an irrational conclusion and, for that reason, there must surely be at least the prospect that the UK Supreme Court will in time overturn this week’s High Court ruling.

Postscript. Anyone with any knowledge of my views of the relationship of prerogative to statutory power will know that I take no pleasure in the conclusion that the High Court is wrong. I am no lover of prerogative power. I would dearly like our constitution to provide that in the exercise of such momentous powers as the triggering of Article 50 UK ministers must first seek and obtain clear parliamentary authorisation (and not merely clear popular authorisation). But, whatever I would like our constitutional law to be is immaterial to what I think our constitutional law is. And, however much I may wish it were otherwise, I am of the view that it would be perfectly lawful for UK ministers to trigger Article 50 under the prerogative and that the High Court was mistaken to rule to the contrary on Thursday.

 

 

 

 

 

 

 

On Scotland and Brexit

In the Scottish Parliament and elsewhere this week there has been a great deal of muddy thinking about the EU and Scotland’s relationship with it, so let me try to bring some clarity to the debate. Scotland voted on 23 June that the United Kingdom should remain a member state. Scotland did not vote that it should remain; Scotland is not, and never has been, a member state of the European Union. The vote was a pan-UK referendum. No city, region or nation of the United Kingdom had a veto over its result. The whole of the United Kingdom is going to leave the European Union because the United Kingdom as a whole voted for that.

What Scots now want is for their two Governments to work together to secure the best possible Brexit deal for Scotland and for the United Kingdom. The evidence tells us that Scotland will be able to secure a preferential deal—such as perhaps a “reverse Greenland” model whereby EU law would continue to have greater effect in Scotland than in the rest of the UK—only if it co-operates, and is seen internationally to co-operate, with the United Kingdom Government. Why? Because it is the United Kingdom that is the member state, not Scotland. Scottish ministers have talked about “preserving Scotland’s status” in the European Union but Scotland has no formal legal status in the EU. To quote from a paper by Graham Avery for the European Policy Centre, “In withdrawal negotiations, which are intergovernmental in character, the British government will represent the UK. Scotland will not have a separate voice. That is why EU governments say that only London is competent to conduct the negotiations”.

The Scottish Parliament’s European and External Relations Committee made that point forcefully in its report published earlier this week: “European partners would be open to a distinctive Scottish approach to maintaining our relationships with Europe”, the committee found, only “as long as that approach had been agreed with the UK Government first”. Thus, if Scotland wants a distinctive relationship with the European Union, it must first agree that approach with the UK Government.

The most pressing consideration, therefore, is that the Scottish Government co-operates in good faith with the United Kingdom Government in pursuing the best-possible Brexit deal for Scotland and the United Kingdom. It’s not belligerence from Scottish ministers, but diplomacy, that will secure that; not sabre rattling about independence but collaboration; not renewed threats of another indyref but good faith and sincere co-operation with the UK Government.

There is a fallacy—a false antithesis—that is gaining ground in Scottish public debate and which needs to be arrested. It is the assertion that there is some kind of binary divide between “hard Brexit” and “soft Brexit”. I know the nationalists like to divide everybody into yes camps and no camps—they like binary divides—but Brexit needs to be understood as a spectrum of options, not as a bifurcated matter.

The softest form of Brexit would be EEA membership. EEA membership requires, first, full participation in the single market, including full free movement of workers—so, in other words, not taking back control of our borders. Secondly, it would require substantial financial contributions to the European institutions—so, not taking back control of our national finances. Thirdly, it would require continued subjection to the supranational case law of the European Court of Justice, including its doctrine of supremacy over national legislation—so, not taking back control of our legislation either. The EEA was designed about 20 years or so ago as a way into the European Union, not as a way out of it. It may work as a temporary transition as the United Kingdom negotiates its way out of the European Union, but it is difficult to see in the longer term that Brexit can mean EEA membership.

Equally, however, being completely outside the single market would, in my view, be contrary to the British national interest. Access to the single market means jobs for British workers, investment in the British economy and lower prices for British consumers. The critical question is not whether we are members of the single market, but what kind of access to or participation in the single market we now want and on what terms.

Last week, First Minister Nicola Sturgeon castigated the Prime Minister for refusing to answer the question whether she wanted the UK to be a member of the single market. But that reveals not any ambivalence on Theresa May’s part but the First Minister’s lack of understanding of what is now at stake. There is no such thing as membership of the single market. The EEA and the single market are not the same thing. The question is what kind of access to and participation in the single market we now consider to be in the national interest.

This is not a yes/no question. But it is, I concede, a difficult question. It requires us to confront a number of issues that are new because, until now, we’ve simply let Brussels run them for us. What kind of agricultural policy do we want for twenty-first century Scotland? What kind of economic interventions do we want now that, it seems, we may find ourselves free of EU state aids restrictions? What kind of consumer or sales tax do we want if EU rules on VAT no longer apply to us? And—crucially—what kind of immigration policy do we want to run that meets the needs of British employers and service providers?

Thinking through these questions are just some of the opportunities that Brexit brings. Of course, there are challenges to be overcome and threats to avoid, but Brexit brings opportunities as well as risks. Opportunities for exporters, helped by the lower pound. Opportunities for tourism. Opportunities, as just mentioned, for agriculture. Opportunities to think afresh about areas of taxation and inward investment. Huge opportunities for fisheries: indeed, the Scottish Fishermen’s Federation describes the EU’s hated Common Fisheries Policy as “distant, centralised and monumentally complex”. They regard Brexit as a “once-in-a-lifetime opportunity”, and they are right. The SNP used to agree. Alex Salmond talked in 2004 of “the dead hand of Brussels mismanagement”. Yet now the SNP are entirely unwilling—or unable—to answer the question why they would rather see Scottish fishing run down by Brussels than run properly by Holyrood. For Brexit will not see the repatriation of our farming and fishing to Westminster. North of the border these powers will come to the Scottish Parliament, not to London (although, given the outrageous mess the SNP have made of administering CAP payments this year, perhaps our farmers would rather they did not).

In Holyrood this week, the SNP minister overseeing Scotland’s role in the Brexit negotiations, Mike Russell, rightly described Scotland as a European nation. Of course we are. But our European role and identity was not created by the European Communities Act 1972 and will not come to an end with Brexit. Our universities were not made great by the European Union and should regard themselves as leading players on the global stage, able to compete and to collaborate with the great universities right across the English-speaking world. The higher education sector has benefited significantly from our EU membership, not least as regards student exchanges and research income, but there is no reason why these cannot continue even as we leave the EU. Indeed, Turkish universities participate in these programmes even though Turkey is not and never has been an EU member state.

To be global players rather than merely European players is perhaps the greatest opportunity that Brexit now brings. So let’s seize the opportunities. Let’s make the most of Brexit. Let’s make it work for the United Kingdom. And let’s make it work for Scotland.

 

On Sovereignty

Questions of sovereignty feature in both Scottish and UK politics at the moment. As MSPs were sworn in last week a number declared that their true allegiance was to the sovereignty of the Scottish people, rather than to Her Majesty, her heirs and successors. South of the border, where the EU referendum is a much bigger political story than it is in Scotland, the Vote Leave campaign are trying to move the argument away from the economy and onto questions of sovereignty. “Take control”, their banner implores, a plea that invites us to return sovereignty from the EU to the UK.

Sovereignty is not a difficult concept. A sovereign power is one that knows no superior. A sovereign power is supreme over and within its domain. The Nationalist invocation of the sovereignty of the Scottish people is a claim that Scots have the absolute and unqualified right of self-determination. If they demand statehood they shall have it, no ifs and no buts. The Brexiteers’ demand that we take control is fuelled by a sense that, within the EU, the UK has lost its sovereignty, that it is beholden to a higher power—the power of Brussels—and that the magic of sovereign freedom can return to these shores only if we vote leave.

It strikes me that both the Nationalists’ and the Brexiteers’ claims to sovereignty are misplaced and, moreover, are misplaced for the same basic reason.

It used to be thought that being sovereign is like being pregnant. You either are or you are not: you cannot be partly sovereign, in the same way as you cannot be partly pregnant. But this is an error, and has been for centuries. It was the American founding fathers who showed decisively that the atom of sovereignty could be split. In the Federalist (1787), Madison and Hamilton explained how the “more perfect union” which the various states were proposing to form by becoming the United States would not destroy state sovereignty, but would safeguard it, by making both the national defence and the nation’s economy more secure.

Federalism as in the USA, union as in the UK, and confederal arrangements as in the EU are each designed to pool and share. These are not surrenders of sovereignty to a higher power, but investments in sovereignty in order to protect and enhance it. In Scotland we know the arguments backwards, because we spent two long years thinking of nothing else: of how we are safer, stronger and more prosperous inside the UK than we would be outside it.

Component parts of a greater whole do not lose their distinctive identity by agreeing to pool and share. Texas is still Texas as Québec is still Québec. And agreements to pool and share can always be undone. But, just as union requires two (or more) consenting parties, so does disunion. The UK cannot just walk away from the EU regardless of the rights and interests of the other 27 Member States, just as Québec has no unilateral right to secede from Canada.

That’s why absolutist claims to the sovereignty of the Scottish people are misplaced. Of course Scots may choose whether to stay in the UK or to leave it—18 September 2014 is testament to that. But, at the same time, that choice cannot be exercised regardless of other obligations. Among those obligations are responsibilities Scotland has as a nation within the United Kingdom, not least the obligation to obey the law. The law says that the union is a matter for the United Kingdom Parliament. A lawful secession, therefore, is one that has Westminster’s consent. Absent such consent, purported secession would be unlawful.

In this way, sovereignty is split in the UK. Our constitution recognises the sovereignty of the Scottish people (the 2014 referendum, just like the 1979 and 1997 devolution referendums, was a vote among the people of Scotland alone, not the whole of the UK). But our constitution also provides that such sovereignty is to be exercised within a legal framework, and not lawlessly. One might have hoped that lawmakers would declare allegiance to the constitution and to the rule of law. For myself, whilst of course I recognise the sovereignty of the Scottish people, I would also insist that such sovereignty be exercised subject to—and not despite—the constitutional law of the land.

If sovereignty is shared within the United Kingdom, so too is it shared between the United Kingdom and our international partners, not least the European Union. Of course it is the case that the UK, like all Member States of the EU, must obey (“give effect to” would be more accurate) European law. This is because we voluntarily agreed to do so when we joined the EU in 1972. But it is also that case that we are under legal obligations with regard to EU law because and only because UK law says so (this is clear as a matter of case law and statute alike). Moreover, the European Union is a creature of limited legal competence: it has only those powers the Member States have assigned to it under the Treaties. If it exceeds those powers it is acting unlawfully. If (as we do) we have the right to leave the EU; if (as it does) EU law takes effect in the UK because and only because UK law so provides; and if (as it does) the EU has only those powers assigned to it by the Treaties (amendment of which requires the unanimous agreement of all Member States), then what sovereignty is it we’ve lost and needs returned from Brussels?

Take control, they say. We already have control. We, along with the other Member States, control the powers the EU has. We control the way in which EU law takes effect in the UK. And, if we consider that EU law has been unlawfully adopted, or that the EU has exceeded its powers, we can say so.

Like the Scottish Nationalists, the Brexiteers misunderstand the nature of sovereignty in the modern world. The reality of power is that it is shared. No-one exercises it absolutely. Everyone, even the most powerful, is constrained by law, by the need to seek agreement, by consent.

This would be the case for Scotland even if it left the UK, just as it would be true for the UK even if it leaves the EU. I wrote many times on these pages in 2013-14 that the SNP’s prospectus for Scottish independence would increase, not decrease, Scotland’s dependence on the rest of the UK and would do so at the same time as reducing Scottish influence in London. (Who would have set interest rates in an independent Scotland? The Bank of England. And what influence would Scotland have had over the Bank’s decision-making? None.) The Brexiteers’ case suffers from the same fatal flaw. If the UK wants access to the EU’s single market we’d have to abide by its rules whether we are a Member State or not. Yet, without being a Member State, we’d have no influence at all over what those rules are. We’d still be dependent on Brussels but we’d no longer share power with our partners in Europe. We’d no longer be at the table. We’d no longer be playing our part in shaping and drawing up those rules. Yet we’d not be able to escape them. That’s not control: it’s subjugation.

 

 

 

 

 

Shared Rule

Reform Scotland, Scotland’s leading think-tank, have published my latest paper on Scotland, the United Kingdom and our constitutional future. You can read it here.

The paper is called Shared Rule. Federalism, said Daniel Elazar, is “self-rule plus shared rule”. The United Kingdom is not about to become a fully federal state, but there are a lot of things we in Britain need to learn from experience of federalism overseas. For the last 20 years we’ve thought about our territorial constitution only through the prism of self-rule. Devolution has provided a very substantial degree of self-rule for Scotland, and also, to a lesser degree, for Wales and Northern Ireland. But, I argue in the paper, this is only half the story. For if the United Kingdom is to hold together, to thrive and to prosper in the longer term, we need to think about our territorial constitution also in terms of shared rule.

Despite the advance of devolution since 1997 and despite all the other constitutional tinkering we’ve endured in this period, the UK is only at the beginning of its thinking about how–now we’ve got devolution–we hold the country together. This is not an argument for more devolution: on the contrary, it is an argument that much more than mere devolution alone will be required before the constitutional question is finally settled.

Thus, the paper considers the UK’s inter-governmental machinery–the ways in which, for example, the UK Government and Scottish Ministers interact and do business with one another. It discusses inter-parliamentary relations, and calls on Westminster and Holyrood to work more closely together in a number of ways. It argues that the UK centre–specifically, Whitehall–needs to reform in order to catch up with the magnitude of the change heralded by devolution. In particular, the tiny Scotland and Wales Offices are now too small and too weak, and need to be rebooted. I suggest ways in which this should happen–by rolling them up into a single, powerful, department for the constitution sitting at the heart of Government. Much of this needs to be placed on a formal, statutory (that is, legal) footing. The informality of the UK’s inter-governmental relations has been part of the problem in recent years, and needs to change.

Much of the paper analyses comparative constitutional law in federal countries: the USA and Canada especially. The focus is on how governments at different levels work together, and on how law can help to frame–and also to limit–such co-operation, or sharing of power. This is going to become more and more important in Scotland, as core areas of domestic policy are now shared between Westminster and Holyrood. Tax, welfare and work are three areas of governing which, thanks to the Smith Commission Agreement and the Scotland Act 2016, are now the joint responsibility in Scotland of both levels of government. This is shared rule. It’s here. It’s happening. And, the paper argues, we need to understand its implications and consequences.

It’s a real honour for me to be publishing with Reform Scotland. I’ve admired and I have been learning from their work for years. We disagree on some issues, but their contribution to Scotland’s public policy debate has been unrivalled in the last decade. Hopefully my paper with them can add to the ongoing public conversation about Scotland and our place in the United Kingdom. I hope you enjoy reading it.

 

 

Impeachment Day

In 2004 Alex Salmond, along with other SNP MPs, sought to impeach Tony Blair for taking the United Kingdom into war in Iraq on a false prospectus. The attempt failed, running into the sand when Blair resigned as Prime Minister to make way for Gordon Brown in 2007.

Had Scotland voted Yes to independence in  2014, the same Alex Salmond would surely be facing calls now that he be impeached. Never in our history has there been a dodgier dossier than the Scottish Government’s independence white paper.

It was a grotesque con—a wilful deception—that Scotland could obtain independent statehood cost-free. The Scottish Government misled us about the woeful condition of the nation’s finances, lied to us about our EU membership, and blustered its way through a hopeless policy—if indeed you can call it that—on the currency an independent Scotland would use.

Fortunately, enough of us saw through it, and the SNP’s pet project was defeated.

Alex Bell, the SNP’s former head of policy, has confessed to the truth, even if his former paymasters remain in stubborn denial. “The SNP’s model of independence is broken beyond repair,” he wrote last November. He’s right.

The independence white paper was called Scotland’s Future. It was pointed out at the time that an anagram of Scotland’s Future is “Fraudulent Costs”. Little did we suspect that the fraud was quite so spectacular.

This is not just about oil, although its plunging price is part of the story. It’s really about one hard economic fact: you cannot spend and save the same money at the same time. Scotland spends more than it earns in tax receipts. Upon independence, therefore, Scotland would have no choice but to cut spending, raise taxes or borrow more and, as a new, untested, state, the cost of its borrowing would have been eye-watering.

Now, there is a noble case to be made for independence. It’s a case that admits all of this, accepts that it’s all true, and says that we should vote for it anyway. Of course freedom has its price, a Nationalist could say, but it is a price we should be prepared to pay. Personally, I’d never sign up to this—I think it’s mad—but it is at least honest. Unlike the case for independence that Mr Salmond sought to make in 2014.

The last person to be impeached in the United Kingdom was a Scot, Henry Dundas, in 1806. The charge against him was misappropriation of public money. He was acquitted, but he never again held office. What a state Scotland would be if one of its first acts upon independence was the impeachment of its First Minister Alex Salmond. He, like all of us, is fortunate indeed that his dream died on 18 September 2014.

A Tale of Two Unions

I don’t feel the same way about the EU referendum as I did about the Scottish independence referendum. I shall vote to remain in the EU. But, whereas I would have been heart-broken had Scotland decided to break up the United Kingdom on 18 September 2014, the prospect of leaving the European Union does not fill me with dread. I do think, however, that it is in our national interests to remain. Let me explain why.

Part I – A Conservative case for Remain

I have no love for the European Union. For me – unlike the indyref – this decision is one purely for the head. It’s a cost/benefit analysis, not a matter of visceral belonging or identity. There are things, many things, about the European Union that I dislike; and some that I detest. Its lack of democratic accountability. That it takes on far too much. That it has ventured altogether too far away from its core mission – of economic integration, trespassing into political matters that should have been left to Member States. The Court of Justice of the European Union, hundreds of whose cases I have read, written about, and taught during the course of my academic career, is capable of making the most outrageous decisions.

So the European Union has its problems. But their solution lies not in leaving the EU, but in reforming it. And that process of reform starts with the United Kingdom re-setting its own relationship with the European Union.

I confess, I would have found it more difficult to know what to do in the EU referendum had David Cameron failed in his negotiations in Brussels last month. When I read the Prime Minister’s list of demands, I thought “if they don’t give us this, it’s going to be extremely difficult to see how the EU will ever concede that it needs to change”. That would have made the case for remain harder to sustain. But don’t believe what the Prime Minister’s critics tell you. Contrary to their attempts to belittle him, the Prime Minister achieved a very great deal in Brussels last month. He went in with four sets of demands; and he walked out with four sets of demands met.

He has secured for us that neither the United Kingdom nor the City of London will be disadvantaged by the UK not using the euro as our currency. Whatever banking union the eurozone countries agree to, it will bind only them and not us.

He has ensured that competitiveness and deregulation will lie at the very heart of the single market. These are core Conservative values – access to the single market is the reason why a Conservative government took us into what was then the EEC in the 1970s, and it is the prime reason why we should remain now. We all know the facts. Half of all British trade is with our EU partners. We trade as much with the EU as we do with the whole of the rest of the world. The single market means jobs for British workers, investment for the British economy and lower prices for British consumers. As a result of David Cameron’s renegotiation last month we will see a better regulated single market, fewer administrative burdens, lower compliance costs, and unnecessary European legislation repealed.

Thirdly, the Prime Minister has ensured that the United Kingdom can more robustly and more effectively protect itself and, in particular, can protect its generous welfare system, from exploitation by mass European immigration. For the first time we will be able to take direct action to limit the flow of EU immigration, where we consider it necessary to do so to protect our social security. Of course this does not mean a complete repatriation of immigration policy. Whether we were in or out of the European Union, a complete repatriation of our immigration policy would be impossible if we wished to retain access to the single market – just ask Norway or Switzerland. Moreover, in the inter-connected world of the early twenty-first century, even leaving the EU and withdrawing from the single market could not insulate us from the reality of modern migration patterns. Imagining that withdrawal from the EU would be like flicking a switch that automatically returns to us complete control of our borders is a fantasy.

Immigration is a fact of modern life and, moreover, it’s a fact of modern life we should welcome. We need an immigrant workforce. We need it at the bottom end of the labour market, and we need it at the top end, too. And what we need in order to manage this are effective and carefully targeted immigration controls, and David Cameron’s renegotiation in Brussels last month shows that this is perfectly possible to achieve within the EU. The European Council accepted that the free movement of workers in the EU single market – no matter how fundamental a value that is in European law – cannot be permitted to undermine a Member State’s social security system. The European Council said this: “Member States [and not the EU] have the right to define the fundamental principles of their social security systems … including setting the conditions for access to welfare benefits”.

Fourthly, and to anyone who knows European law, most remarkably, the Prime Minister has secured for the United Kingdom unanimous recognition that “ever closer union” no longer applies to the UK. In his famous Bloomberg Speech in 2013 David Cameron described this idea as a “heretical proposition”. But 2013’s heresy has become 2016’s orthodoxy. Those words “ever closer union” have featured in the European treaties ever since the European Economic Community came into being in 1957. For nearly 60 years they have been Europe’s very raison d’etre: legal recognition, front and centre of EU law, that the European Union is an engine of ever greater integration among the peoples of Europe. But no more – at least, not as far as the United Kingdom is concerned. In the words of the European Council itself, “the United Kingdom, in light of the specific situation it has under the Treaties, is not committed to further political integration into the European Union”. Hurrah for that. This far and no further. If other Member States wish to pursue closer political union, or fiscal union, or military union or whatever, so be it. But that will be for them and not for us and, moreover, we cannot be discriminated against or disadvantaged just because we want to pause here.

Thus, we will not join the euro. We will keep the pound. We will not participate in the Schengen free movement area. We will continue to exercise passport controls at our borders, whether you are entering the UK from another EU Member State or not. In the area of freedom, security and justice we will choose which measures to participate in. We adopt the European Arrest Warrant, for example, because we choose to, and not because it is imposed upon us contrary to our will.

The formal, treaty-based recognition that “ever closer union” does not apply to the United Kingdom is the belated recognition in European law of that which has been plain as a fact of European life for some time. The European Union of the twenty-first century is a multi-speed Europe, not a one-size-fits-all Europe. The European Union of the twenty-first century is a flexible Europe, a pic’n’mix Europe, from which the United Kingdom can and will choose what suits Britain, leaving for others what may suit them but is not in our national interests.

This, in the twenty-first century, is what sovereignty means. Not for a second do I believe that it is in the United Kingdom’s interests, any more than it would be consistent with our traditions, to turn our back on the world and embrace a lonely isolationism. If that is what you understand by sovereignty, your model is North Korea. For a trading nation, for an international leader such as the UK, for a permanent member of the United Nations Security Council, for a lead member of NATO and of the G20, what sovereignty means for us the ability to choose. That is what we have been doing with regard to the European Union for years, and formal, binding, Treaty recognition of this, is much more than a symbolic constitutional change – although, in matters constitutional, one should never overlook the importance of symbols.

Our exclusion from “ever closer union” will make real and practical changes to the ways in which the European Court of Justice is able to enforce EU law against us. At the moment we have a legal duty under EU law known as “sincere cooperation”. This duty means that we, like all other Member States, must take “any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties”. The Court of Justice is fond of using this duty as a big stick to hit Member States with. But in the UK’s case, the Court’s ability to do this will be much reduced by virtue of the fact that it will no longer be one of the UK’s Treaty obligations to embrace “ever closer union”. Signing up to “ever closer union” meant that the UK has never been quite sure of just how much of its sovereignty it has agreed to pool, or share, with the EU’s other Member States. Freeing ourselves from the bind of “ever closer union” means that we now do know. We agree that the EU’s institutions will have only those powers that we confer upon them under the Treaties. This far, yes, but no further. We’ve never been able to hold that line before. But now we can and, in the world in which we live, that’s what sovereignty is.

For all these reasons, I consider that David Cameron’s renegotiation of Britain’s place in the European Union has been a triumph. In the words of European Council President, Donald Tusk, Britain has secured for herself a “special status” in the European Union, one that fits our needs and interests, one that, you may say, is long overdue, but one which we should none the less welcome, and that has the unanimous backing of all 28 Member States. I believe also that the deal struck in Brussels last month is not the end of a process, but that it will herald the beginning of a new era in Europe. The era of reform in Europe, not ever more integration. The era of a Europe that does less, and does it better. The era of a more flexible Europe, of a more competitive Europe, of a more dynamic Europe. The era, in short, of a more Conservative Europe. A Europe we should remain in.

Part II – Brexit and Indyref2

No Unionist can afford to think about the UK’s future in or out of the European Union without taking into account the threat that continues to hang over Scotland’s place in the UK.

The question is this: would a vote to leave the UK trigger the end of the Union? The answer is that it might well do so, although it’s not inevitable. Certainly it’s a big enough risk that all Unionists should think very carefully before advocating Brexit.

The SNP leadership knows why Yes lost in 2014. It had nothing to do with the Vow or with the promise of further powers. It had everything to do with the fact that those advocating independence failed to make their economic case. In particular, they failed to make a convincing argument about the currency that an independent Scotland would use, and they failed to prove their assertions that an independent Scotland would enjoy an easy transition to becoming a Member State of the European Union and would somehow manage this without having to sign up to the euro.

Since September 2014 no public work has been done to deal with either of these fatal flaws. No case has been developed on the currency, and no work has been done on EU membership, either. The vision of independence preferred by the current SNP leadership is premised on both Scotland and the rest of the United Kingdom being Member States of the European Union. If the UK were to leave the EU, an altogether different prospectus for Scottish independence would have to be developed. In a rational world, that prospectus would be even harder to sell to the Scottish people than the failed vision of September 2014. Both the currency issue and the EU membership issue would remain as awkward as they have always been for the SNP. But, in addition to these unsolved problems, there would be another in the mix: the border with England. The SNP’s 2014 prospectus was based on an understanding (largely shared with the UK Government) that an independent Scotland would seek to remain in the Common Travel Area between the UK and Ireland. This, it was assumed, would keep Scotland out of Schengen and would thereby allow the border between Scotland and the rest of the UK to remain fully open, with no passport checks or security controls. It would be much harder for Scotland to maintain this position in the event that the rUK leaves the EU – indeed, the future of the Common Travel Area must be in doubt were there to be a vote for Brexit on 23 June – could it survive if one of its states (Ireland) was in the EU and the other (the UK) out? Scare stories about the Sangatte refugee camp moving to Gretna are, for the time being, just that – scare stories – but on this scenario they might just come true.

In a rational world, therefore, the case for Scottish independence would be even harder to make in the event of Brexit than it was in 2014. But this is not a rational world. If Scotland is “dragged out of Europe” contrary to her will because voters in England have elected to leave, the First Minister is surely right that demands for a second independence referendum will be deafening. Scottish sentiment will be so whipped up, so frenzied, that it may be next to impossible for rational economic arguments to cut through. Mighty obstacles still lie in indyref2’s path, not least that the United Kingdom government would surely not grant a fresh section 3o order to give a second independence referendum legal authority. But, again, the mood of the nation might be that such legal niceties, compelling in calmer times, are swept away in a tide of realpolitik. It will be chaos. And in the constitutional crisis that would engulf us there will be ample opportunity for Nationalist mischief-making. Independence in these circumstances would be economic disaster for Scotland, but that might be our future, regardless.

Perhaps I am being too pessimistic. But these remarks are not intended to frighten anyone. They are intended simply to illustrate that the consequences of a vote to the leave the EU, if voters in Scotland opt to remain, might be dire indeed for Scottish Unionists. In my view there is a good, Conservative case to be made for remaining in the EU even without taking these considerations into view. But once you add them to the mix that case becomes overwhelming.

 

(Part I of this blog post is based on a speech delivered to the Daily Telegraph fringe at the Scottish Conservative party conference in Edinburgh on 4 March 2016.) 

 

Education Education Education

Opening the first debate of the year in the Scottish Parliament, the First Minister said yesterday that she wanted “a great, ambitious and thriving debate in Scotland about how we build” and how we “realise the full potential of our nation”. I agree with her. In her speech Nicola Sturgeon boasted of having “helped to create a flourishing of democratic debate and … renewed national confidence” in Scotland. I hope she is right about that, too. I hope that, in the four months between now and the Scottish Parliamentary election on 5 May, we do indeed have the “national confidence” to say that, while twenty-first century Scotland is a wonderful place to live and work, as a nation we are getting some things very wrong indeed. Top of that list is education.

It’s easy to play the blame game, and too many MSPs taking part in yesterday’s new year debate did just that. Labour’s Kezia Dugdale and Iain Gray focused, as they almost always do, on the SNP’s failings: that instead of cutting class sizes the SNP have cut teacher numbers; that college places have been slashed by 140,000; that student debt has doubled; and that standards in literacy and numeracy in Scotland’s classrooms are falling. All true. All familiar. And altogether not good enough.

But schools in Glasgow are not run by the SNP. They are run by a City Council that has been dominated by the Scottish Labour party for decade upon decade. And, with painfully few exceptions, they are simply not good enough. This is not the fault of the teachers and headteachers who work in them. If you want to play the blame game, responsibility rests with what the First Minister would call the nation. That is to say, it lies with us, with Scotland, with the way we run and manage our schools.

Education is in my blood. My parents were schoolteachers who devoted their careers to state primary and secondary education. For the past 25 years I’ve been employed in higher education. And my four children are at the beginning of their own education: two in nursery and two in primary school (all of them in the state sector.) Yesterday, the Scottish Conservatives published a short paper setting out three “stepping stones” to improved education in Scotland — three steps that could be taken right now. The first, and by far the most important, is to empower schools: to give them greater autonomy over budgets and recruitment, to give them choices over which examination systems to use, and to give them more freedom over the day-to-day management of the school. This is desperately needed, not only in Glasgow but across Scotland.

It’s been happening south of the border, and it’s having great results. Started by New Labour and accelerated by Conservative education secretaries Michael Gove and Nicky Morgan, “academy schools” are being given autonomy from the local education authorities that previously held them back and mismanaged them. Ofsted and other independent evidence shows how this is driving up standards and — crucially — also helping to close the attainment gap between richer and poorer families.

It is a core belief of modern Toryism that power should be driven down to communities, not hoarded at the top. We see this in action in the creation of the “Northern powerhouse” in Greater Manchester and we see it in action, too, in academy schools. Who knows best what a school needs? The school itself knows best: the headteacher who runs it, the teachers who work in it, and the parents whose children the school is for. Government does not know best, neither Scottish Government in Holyrood nor the local authority in City Chambers. Schools that are freed and given autonomy from government are schools that are empowered to develop for themselves paths to success. Not for their own sake, but for the sake of the children.

There is a simple way of testing the success of a nation’s schooling: no family in Scotland should feel compelled to shell out for a private education or for a more expensive house in a different catchment area in order to find a great school for their children. Scotland fails that test miserably.

I’m sure the First Minister knows this and I’ve little doubt that she’s as unhappy about it as I am. But, for her, it’s decision time. In her speech yesterday in the Scottish Parliament she said that in Scotland “we have the potential to become a world leader in education”. Again, I agree: clearly, we do. But we will not come close to realising that potential for as long as we continue to allow our schools to be held back by under-performing local authorities. It is time to set schools free. On its own this will not be sufficient to secure a world-class education for all our children, but it is a necessary first step. Will the SNP join the Conservatives in taking it?

Closing yesterday’s Holyrood debate the Deputy First Minister John Swinney took a swipe at the Labour MSPs who could think of nothing more to say than that the SNP are a shower whose record on education is but a catalogue of broken promises. “Muckle guid” does that style of Opposition do. It’s easy to play the blame game, but it’s not what Scotland needs. What Scotland needs is the self-confidence to admit that as a nation we’ve got some things wrong and that radical solutions are needed to put them right. Muckle guid will it do Scotland’s schoolchildren if we fail to learn that lesson now.

 

Human Rights Reform

Two tensions lie at the heart of disagreements about the constitution in the United Kingdom. The first is the relation of the state to the nations that comprise it — the territorial constitution, the Union and devolution. The second is the relationship between the courts and what Americans would call the “political branches” — government and Parliament. I can think of no constitutional lawyer who would contest the proposition that the courts in the United Kingdom have become significantly stronger and more powerful than they were — say — twenty-five years ago. It is not only a perfectly reasonable question but, I would argue, it has now become a clearly required question to ask: have they become too powerful and, if so, what should be done about that.

The government’s favourite think-tank, Policy Exchange, is — typically — in the vanguard. It has launched a “Judicial Power Project“, which has already published two full papers and a series of responses. More — much more — is to come. This is a website that all those interested in the British constitution should watch closely. The great Australian expert on the sovereignty of Parliament, Jeffrey Goldsworthy, launched the project in March in a lecture in which he set out both how and why judicial power is on the increase, not only in the UK but across the common law world. Last month, Oxford’s John Finnis carried the work forward in a quite brilliant lecture in which he set out five positive arguments and five negative arguments about judicial power. Since then, Mark Elliott and Gregoire Webber have posted valuable critical responses to Professor Finnis’ thesis.

The Judicial Power Project builds, it seems to me, on the sorts of interventions that judges such as Lord Hoffmann and Lord Sumption have made about the proper constitutional role of the judiciary, of the Supreme Court’s proper constitutional relationship with government and Parliament, and of the UK courts’ proper constitutional relationship with the two European courts (of Human Rights, in Strasbourg; and the European Court of Justice in Luxembourg). Among Lord Sumption’s contributions, see here and here; for Lord Hoffmann, see here. The “judicial power” argument runs both more broadly and deeper than debates on whether and how the Human Rights Act 1998 should be reformed, but the future of the HRA is set to feature prominently in this argument for some time to come.

All of these contributions are contested — neither Goldsworthy nor Finnis nor Hoffmann nor Sumption are making claims that all lawyers or all constitutionalists would agree with. But, whether you agree or disagree with the positions staked out by these authors, you surely cannot argue with the proposition that their positions are reasoned, set out with authority, with care and attention to detail, and with respect for those whose views are different.

Sadly, this is not always reciprocated by those on the other side of the argument. There is a shrillness in the voice of much of London’s human rights lobby, and an unwillingness to engage in civil argument, forged in my view out of a mistaken zealousness that the Human Rights Act 1998 is legislative perfection and that those who dare to question it (as Goldsworthy, Finnis, Hoffmann and Sumption do) are somehow warriors on a crusade to destroy our basic freedoms and end the rule of law. Recent tweets asserting that Professor Finnis wishes to “return us to the 1930s” and that he would prefer there to be “no international law” at all are but the latest manifestations of self-proclaimed human rights activists preferring insult to engagement.

I fear that we will hear much more of this in the weeks to come. It is unlikely to be long before the Government publishes its consultation paper on reform of the Human Rights Act. Too many of the leading lights in the human rights lobby have already decided — before any of them knows what the Government is actually going to suggest — that the HRA must be backed at all costs. By all means oppose government policy once you know what it is, but pre-determining the issue and deciding in advance that the government must be stopped is just silly, unless of course your goal is simply to make a lot of noise, draw attention to yourself, and pass up the opportunity actually to take part in shaping policy about how we get the balance right between judicial power in the constitution and the power of government and Parliament.

Getting this right will be every bit as important to the future stability of the United Kingdom as is getting the territorial constitution right. It will need constructive debate and argument — from all sides — rather than idle point-scoring. If that is what Policy Exchange’s judicial power project can provide, we’ll all be in its debt, whatever we think of the Human Rights Act.

I am seeking election to the Scottish Parliament: here’s why

I hope the polls are wrong, but I suspect – this time – they may not be. They tell us that the SNP will win the May 2016 Holyrood election and will continue in office as the Scottish Government. Naturally, I want Ruth Davidson to be First Minister, not Nicola Sturgeon, but if the SNP leader pips Ruth to the post, the Scottish Conservatives are, at the least, extremely well placed to form the most robust, principled and effective Opposition that any SNP administration has yet faced.

This is why I am seeking election to the Scottish Parliament.

The SNP may be flying high – but they do not deserve to be. At its core their success has but one source. They have succeeded in making the key question of Scottish politics “who best represents Scotland”. That’s a nationalist’s question and it’s not surprising that Scotland’s nationalist party has managed to persuade many Scots – far too many – that “the SNP” is the answer to that question.

The SNP will be brought down not by unionists trying to out-nationalist the nationalists. That’s a mug’s game. Rather, they will be brought down by the opposition focusing relentlessly on the SNP’s record in office and by demonstrating to Scots that our solutions to Scotland’s problems are better than the SNP’s, even if we don’t tattoo the Saltire on every press release and policy announcement.

Failure to Govern

The SNP do as if they are a protest movement – the victims of, not those wielding, power. Yet they have been in government since 2007. If they win another five-year term in May that will give them an unbroken 14-year period in office. That’s longer than Mrs Thatcher was prime minister for, and it’s longer than New Labour’s ascendency lasted, too. The SNP thrive on the politics of grievance, but the truth is it is already the case that there is no-one to blame but the SNP for the ongoing failures of Scottish education, of the Scottish health service, and of policing and the criminal justice system in Scotland.

The SNP’s record in office is dismal. In large part this is because, in the interests of pursuing their constitutional obsession, they would rather bleat about the powers they don’t have than get on and use they powers they do have. Devolution, as I have written on these pages before, is avowedly a unionist invention. Designed to give Scots the home rule we crave without having to break up the state and start over, devolution’s popularity is a major reason why Scots voted No to independence last year. The SNP know this and, for this reason, they are deeply reluctant to make a success of devolution. Far better, for them, to do devolution down, as if it is not worth the paper it’s written on, as if we can really do nothing at all unless we have “all the powers that independence would bring”. This is why Scottish education is crumbling. This is why the Scottish health service is struggling. Because the SNP sits idly on its hands, declining to govern, waiting for independence.

While the SNP have been keen to be seen as competent ministers, Nicola Sturgeon’s administration is following resolutely in the footsteps of Alex Salmond’s in trying to do as little as possible with its devolved powers. The UK Supreme Court has accurately described the powers of the Scottish Parliament as “ample” and “generous”. Holyrood has complete control over the NHS in Scotland, as it does over the whole of Scottish education, from nurseries to schools and colleges. Yet in the eight long years in which the SNP have been in power, next to nothing has been done to reform the health service in Scotland, save that SNP ministers’ controls over Scotland’s fourteen health boards have been tightened. Has this led to improved service? Of course not: latest figures show waiting times rising alarmingly. When the SNP came to power Scotland spent a higher share of its budget on health than England but under the nationalists this has been reversed.

The same is true in education. Scottish schools and colleges are going from mediocre to worse, with plummeting numeracy scores, 140,000 college places cut, colleges merged and campuses closed down. These are calamitous policies to have pursued in an economy crying out for a more highly skilled and better trained workforce. The SNP’s famed ban on university tuition fees has resulted in a lower percentage of undergraduates from a poorer background attending university in Scotland than is the case in England and has been paid for in part by cutting government grants for poorer students.

Illiberal and Centralising

When the SNP does act to make reforms in Scotland, two tendencies in its policy-making are striking. The SNP’s illiberalism should not, perhaps, surprise us, nationalism in Europe all too often having sacrificed individual freedoms on the altar of national self-determination. The party’s centralising tendencies, however, are remarkable given the SNP’s vocal opposition to rule from London.

Under the SNP Scotland’s eight regional police constabularies were merged into a single force. At the same time as Theresa May was creating locally elected Police and Crime Commissioners in England and Wales, increasing the accountability of the police to local voters, the Scottish Government was doing precisely the opposite. The Chief Constable of Police Scotland is accountable to a single police authority whose members are appointed by Scottish Ministers. The one force now polices both the UK’s third largest city and the UK’s most remote communities, notwithstanding the obvious and huge diversity of policing needs. Happily, recorded crime is falling in Scotland but, despite having fewer offences to investigate, Police Scotland are managing to clear up 50,000 fewer crimes each year than the eight constabularies managed a decade ago.

Policing is just one example of over-centralisation. Another is the reform of local government. Contrast Greater Manchester’s city deal with Glasgow’s and one can see in an instant that there is nothing in Scotland to compare with the northern powerhouse George Osborne is building in the north-west of England. One can see why: a Mayor of Greater Glasgow would be an instant rival to the First Minister’s power base. Or, again, in the university sector, the recently published Higher Education Governance (Scotland) Bill contains deeply worrying provisions seeking to extend Scottish Ministers’ control over the way Scotland’s universities are run. Given the fears about academic freedom voiced during the course of the independence referendum campaign, these moves deserve far more scrutiny than they have yet received.

Amongst the very worst of the SNP’s reforms is the “named persons” legislation. Under this new law it will be a requirement in Scotland that every child under the age of 18 has a “named person” (code for “State guardian”) who will have the power to discuss or raise a matter about that child with any “relevant authority”. Families may neither opt into nor out of this scheme. It is compulsory. There is no threshold condition, for example that such a draconian step is necessary in order to protect a vulnerable child from harm: it will apply to all. It is an indiscriminate measure of unprecedented interference with family life. It has been challenged in the courts but, thus far, without success. Opposition to the named person legislation has been led, of course, by the Scottish Conservatives.

The named person will, in the Scottish Government’s chilling words, “monitor what children and young people need”. No matter that parents, families, doctors and teachers do this already. The state must do it too. Badged under the acronym GIRFEC (getting it right for every child) the named person scheme does precisely the opposite. Of course governments must ensure that effective and swift interventions are made when children are at risk. But most never are. For most children the named person will be not only an unwelcome but also a wholly unnecessary intrusion because, for most children, parents and families and doctors and teachers already know and supply exactly what children need.

Not content with resting there the named person law goes further. It takes to the statute book to tell us what children need: they need “wellbeing”. And it tells us that a child’s wellbeing is to be “assessed” (yes, assessed) by reference to the extent to which the child is “safe, healthy, achieving, nurtured, active, respected, responsible and included”. Thus, named persons will not be focusing only on harm, or risk, or even neglect, but on the entire human condition. So if my child is assessed to be under-achieving, inactive or somehow lacking in respect or responsibility, the named person can discuss this as he or she considers appropriate not only with the NHS, with a social worker, or with the police, but with a whole range of bodies including the Scottish Sports Council and something called Skills Development Scotland Co Ltd.

The illiberal and centralising control-freakery of this measure might have attracted more attention had it been unusual. But it is typical of the Scottish National Party in power. From policing to higher education, indeed across the whole spectrum of devolved responsibilities, the SNP are archetypes of the top-down, authoritarian, one-size-fits-all school of government. It has been a disaster for Scotland.

This is why I am seeking election as a Scottish Conservative.

I have not always been a Tory, but I have always been a unionist. I moved from England to Glasgow in 2003, and I have lived and worked in Glasgow ever since. I am a constitutional lawyer. Most of the law I teach, and most of the law I write about in my academic publications, is reserved to the UK (or, indeed, is European law, rather than Scots law). For this reason I did not pay a great deal of professional attention to devolved Scottish politics. Until, that is, the independence referendum came along. As soon as the SNP secured their majority in the 2011 Holyrood election it was clear to me that a referendum was coming and that we unionists had to get ready. I went to see Liberal Democrat ministers in David Cameron’s coalition government. I went to see the leaders of the UK and Scottish Labour party. And I went to see the newly elected leader of the Scottish Conservatives, Ruth Davidson. In those days I was a member of no political party. I offered to work with – and for – them all. I worked for the Advocate General, the Liberal Democrat peer Lord Wallace. I worked for the Scottish Conservatives (with the party’s Strathclyde Commission, examining the operation and reform of devolution). But with Labour nothing happened – they kept asking me who I voted for, not what I could offer in Scotland’s constitutional moment of need. They are the most tribal politicians I have ever encountered.

The more I worked with the Conservatives, the more I came to realise that they really got it. They understood what the Union was for and both why, as well as how, it should be defended and celebrated. But they also got what devolution was for and why, as well as how, it should be deepened. At the same time, at the UK level, David Cameron’s government was doing outstanding things that had lain dormant under New Labour’s long neglect. Michael Gove’s education reforms, freeing schools from the shackles of outdated local authority control and empowering parents and the communities schools serve. Iain Duncan Smith’s welfare reforms, ensuring that work always pays and moving people from the immiseration of benefit dependency to the liberation and dignity that comes with work. The record job creation: more than two million jobs created in five years. Theresa May’s liberalising reforms to policing and her determination to outlaw modern slavery. The fact that under the Tories England was leading allegedly left-leaning social democratic Scotland on the big liberal issues of the day (marriage equality being the stand-out example).

This is the kind of Tory I am: liberal, modern, reformist. Committed to the Union, of course, but also to renewing and breathing fresh life into it through devolution and decentralisation, driving power down not hoarding it at the top. This is what I want to argue for in politics, and this is why I am announcing today that I am seeking election to the Scottish Parliament.

English Votes for English Laws

MPs return to Westminster in a couple of weeks. Among the constitutional matters competing for their attention will be “English votes for English laws”. This has been a contested and troublesome area of constitutional reform for the Government. Here are my thoughts on the way forward.

Background

The Government are right to recognise that the United Kingdom’s asymmetrical devolution arrangements for Scotland, Wales and Northern Ireland have opened up an English question which requires to be answered. Academic research such as the annual Future of England Surveys have amply illustrated this. These have found – over several years – that there is dissatisfaction with the way England is governed, that there is a perception in England that devolution in the UK has conferred advantages on Scotland, Wales and Northern Ireland that are unfair to England, and that people in England see a democratic deficit.

The Government are also right – as was the McKay Commission in 2013 – that the answer to the English question lies in making it more transparent that the Westminster Parliament is both England’s legislature and the legislature for the whole of the United Kingdom. Neither the creation of a new English Parliament nor the division of England into regions, each with a directly elected assembly, is an apt answer to the English question at the moment or for the foreseeable future. Devolution in the United Kingdom has been and should continue to be “on demand” rather than imposed “top down”. There is no widespread demand in England either for a new Parliament or for regional assemblies.

The Government’s proposals as to English votes for English laws (“EVEL”) are an attempt at doing what requires to be done: namely, making it more transparent that the Westminster Parliament is both England’s legislature and the legislature for the whole of the UK. This attempt should be welcomed.

The McKay Commission (an independent commission that examined these issues in 2012-13) identified the following as a constitutional principle on which its recommendations and options were based: “decisions at the United Kingdom level having a separate and distinct effect for a component part of the United Kingdom should normally be taken only with the consent of a majority of the elected representatives for that part of the United Kingdom”. Building avowedly on the well-established Sewel convention, this principle makes for an excellent basis from which to proceed.

Applied to England-only laws made by the United Kingdom Parliament it would suggest that such a law should normally be passed only with the consent a majority of Members of Parliament representing constituencies in England.

This, I would submit, is the right constitutional principle on which proposals for EVEL are and should be based. The Government have tweaked the principle in their proposals – but they have done so in the interests of clarity. (The main clarification in the Government’s tweaking is that “separate and distinct effect” has been defined as “relating exclusively to England” and falling “within devolved legislative competence”.) It is clear that the Government’s proposals are based on this “McKay principle”. This, too, I welcome.

The Government’s Proposals

EVEL is not a mere tidying-up measure. It is, on the contrary, likely to have profound constitutional consequences. Whilst the Government’s proposals are confined to law-making, if the principle of EVEL takes root, it could in due course lead to a desire for other aspects of parliamentary business with a separate and distinct effect in England becoming subject to the need for explicit English consent. There are Departments of State, for example, whose business directly affects only or mainly England (or England and Wales) (the Departments of Education, Communities and Local Government, and Health are examples). Should the Secretary of State (and Ministers of State?) of these departments be required to represent English constituencies? Or, as a lesser measure, should their appointments be subject to the consent of a majority of MPs representing seats in England? Should the select committees that scrutinise these departments be composed only of MPs representing constituencies in England (or England and Wales)?

I am not advocating these reforms: I use them merely as illustrations of where the constitutional logic of EVEL may lead. Scottish, Welsh and Northern Irish devolution have each grown and developed since the Acts of 1998: there is no reason to think that the demand for aspects of English self-rule will necessarily and for the long term be satisfied by the Government’s current proposals.

More immediately, for EVEL to work effectively will require changes in the way legislation is drafted and changes in the way the House of Commons makes decisions. Legislation will have to be drafted not only with its territorial extent in mind (this already happens) but also with the question in mind of whether the legislation “relates exclusively” to England (or England and Wales) and whether it falls within “devolved competence” (as defined). The former test asks whether the legislation “applies only” to England (or England and Wales). Clearly, the application of legislation is not the same as its territorial extent (e.g. the territorial extent of the Wales Act 2014 is the whole of the United Kingdom, but its main effects will be felt in Wales only). Whether application and effects are the same as one another may be an open question.

In the devolution legislation the legislative competence of the devolved legislatures is limited by provisions that use the language of “relating to”. For example, section 29 of the Scotland Act 1998 provides that a provision of an Act of the Scottish Parliament is outside competence if it “relates to reserved matters”. Section 29(3) provides that this is to be determined “by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances”. Similar language may be found in section 108 of the Government of Wales Act 2006.

As is entirely to be expected these tests have not always been easy to apply in practice. This is no error on the draftsman’s part: it is inevitable that there will be “border disputes” at the boundaries of legislative competence (as there are in any federal country). There is now a growing body of UK Supreme Court case law on the meaning and application of section 29 SA and section 108 GOWA. The case law is not always easy to follow, and the matter has divided the Supreme Court in at least two of the leading cases. The point here is this: determining what legislation “relates exclusively” to England may not always be straightforward and may on occasion be contested and open to different reasonable interpretations.

That “minor or consequential effects” are to be disregarded when considering whether a measure relates exclusively to England (or England and Wales) serves only to amplify the point. Adjudicating on these matters will require fine judgement and may on occasion be controversial.

The “consequences” of legislation may include consequences as to public spending, sometimes referred to as “Barnett consequentials”. The Barnett formula is, of course, the formula used to determine the size of the block grant from the Treasury to the devolved administrations. It pre-dates devolution and is regarded by very few independent commentators as fit for purpose. None the less, for political reasons we are stuck with it for the time being and, if EVEL is to work, it needs to be made to work in the light of, and taking into account the operation of, the Barnett formula.

In short, the Scottish block grant is calculated by reference to certain departmental spending in England. If such spending is cut in England, so too is the block grant. Now, legislation itself does not change departments’ budget provision. The House of Commons votes on this as part of the estimates process, not as part of the ordinary business of debates on legislation. This has been forcefully pointed out by Professor Jim Gallagher and was carefully explained by the Leader of the House on 15 July (HC Deb, 15 July 2015, col 942). The Leader of the House revised the Government’s EVEL proposals in July to make them explicit in providing that all Members of Parliament will continue to be able to vote on all aspects of the Supply process. This is welcome but, of itself, may not go far enough.

The Supply process is not well understood, attracts very little public attention, and is largely formal (rather than substantive). Its operation empowers neither Parliament nor the public, but the Treasury. As the Treasury explains in its document, Supply Estimates: A Guidance Manual (2011), “the Standing Orders of the House of Commons place limitations on the timing and extent of debate over the Estimates and provide for the proceedings on the related legislation to be progressed formally and without further debate”. Scrutiny of individual departmental Estimates is mainly undertaken by select committees rather than by the House as a whole, with the Liaison Committee normally selecting only one or two departments’ Estimates to be debated in the House. Further, when the Estimates are approved by resolution, Members of Parliament may table amendments to reduce supply but not to increase it.

Whether these procedures give MPs the means fully to scrutinise any “Barnett consequentials” of England-only (or England and Wales only) legislation may be doubted. If they prove to be inadequate, it may be that one (unintended?) consequence of EVEL will be to reform the House of Commons’ Supply process. From the perspective of parliamentary openness and effective parliamentary scrutiny, that would be no bad thing. The Treasury, however, may take a different view.

Conclusions

On one level the Government are right that their proposed Standing Orders are “a relatively modest step”, as the Leader of the House has put it. All MPs will continue to be able to vote on all Bills. All that is being done is to ensure that England-only measures (or England-and-Wales only measures) proceed only with the consent of a majority of MPs representing seats in England (or England and Wales). But even relatively modest steps can have profound consequences – the ripple effect of these proposed Standing Orders may be significant, and may not yet be fully understood.

Proceeding by means of changing the House’s Standing Orders (rather than by enacting primary legislation) is the correct route, constitutionally. It is ever more difficult for legislation effectively to exclude the possibility of judicial review. Even where statute evinces a clear parliamentary intention that judicial review should be excluded, the courts are apt to set this aside and to adjudicate regardless: the recent UK Supreme Court ruling (in R (Evans) v Attorney General [2015] UKSC 21) on section 53 of the Freedom of Information Act 2000 is a potent illustration of this.

I am less confident, however, that the certification process as provided for in the Government’s proposals is fit for purpose. It risks politicising the office of Speaker. It requires the Speaker to have very full legal advice about matters the like of which have repeatedly divided the Supreme Court (in its devolution case law). And, most worryingly of all perhaps, the Speaker will be prevented from giving reasons for his decisions. This is in marked contrast to the position under the devolution statutes, where sometimes very detailed reasons may be given both by ministers and, of course, by the courts in any subsequent case law, explaining their views as to why a measure is within or outwith devolved competence. The constitutional value of transparency and openness in decision-making is hardly enhanced if Parliament and the public are prevented from seeing and understanding the reasons for decisions.

Finally, it needs to be said that the process of constitutional change is often as important as its substance. Given that the Government have a majority of English (and English-and-Welsh) seats, as well as an overall majority in the House of Commons, EVEL is a matter in respect of which there is currently no need to rush. Perhaps the Government would be wise to follow the advice of the House of Lords Constitution Committee which, in its 2011 report on The Process of Constitutional Change recommended that constitutional change be accompanied by careful consideration of: the impact of the proposals on existing constitutional arrangements; the importance of seeking consensus; the importance of public engagement and consultation; the importance of robust, internal scrutiny through the Cabinet Committee system; whether a Green Paper should precede the setting of Government policy; and whether a White Paper should precede the enactment of constitutional change.

If the Government want their “relatively modest proposal” to stand the test of time, they would be well advised to proceed with less haste and more care. I welcome the idea of English votes for English laws. I would welcome it more enthusiastically if I thought that its consequences and constitutional importance had been fully thought through.

 

[This blog post is based on written evidence submitted to the House of Commons Procedure Committee, which is undertaking an inquiry into the Government’s EVEL proposals.]