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.


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.


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.]

One Year On (…. Nearly)

This time last year I was terrified that we were about to lose our country. We were a month away from the independence referendum and I could tell that something had changed in the period between the beginning of Glasgow’s Commonwealth Games (in late July) and the beginning of the final run-in to the vote (mid August). In London this change was not apparent until much later – until the famous Sunday Times crossover poll (on 7 September) that put Yes in the lead. But by then I knew that things had stabilised, that we were going to be ok and that while it was going to be closer than the 60/40 victory we wanted, we were nonetheless going to win and to win decisively.

A year on from the worst fortnight of my political life, independence feels further away than ever.

How could I say this, when in the year since the referendum the SNP have enjoyed such extraordinary success, with a surge in their membership and their stupendous result in the May 2015 general election, winning 56 of Scotland’s 59 seats in the House of Commons? Further, all the polls suggest that the party is on course to retain office next May and, indeed, to increase its majority in Holyrood. The SNP’s main rivals (for the time being), the Labour party, may fail to win any constituencies next May, with all their MSPs being elected via the regional lists. This, if it transpires, would be a result as remarkable (and as devastating for Labour) as the general election result was three months ago. The SNP look unstoppable. Surely it is just a matter of time – and not very much time – before their dream is realised?

Well, I don’t think so. Indeed, it is partly because of the rise and rise in the popularity of the SNP that independence is becoming a more distant prospect.

During the referendum campaign we often sought to reduce the broader Yes movement to the SNP. We knew that the SNP and, in particular, its then leader were less popular than the idea of Yes. But it wasn’t always true. Even if the formal links between the SNP and the official Yes Scotland campaign were closer than Yes Scotland wanted to admit, there was a broader campaign that was not so closely allied to the SNP leadership (Women for Independence, Bella Caledonia, National Collective, RIC, Common Weal, the Scottish Greens, etc). But, as part of the post-indyref surge, these groups have either withered, become marginalised, or been effectively folded into the SNP. National Collective is no more. RIC are completely irrelevant. Common weal, in the well-established tradition of the Trots, has fallen out with itself. The Scottish Greens had an entirely anonymous general election campaign. And the main leaders of Women for Indy have become SNP MPs (Natalie McGarry) or are seeking election to Holyrood as SNP MSPs (Jeane Freeman).

In other words, something has happened that the SNP tried for years to avoid happening: the fate of the party and the fate of the broader independence movement have become tied to one another. The problem, for Yessers, with this, is that all parties – even the SNP – fall. Eventually.

Unfashionable as it may be to say so, given their disastrous misreading of British public opinion in May, I think the polls are broadly right about next year’s Holyrood election. The SNP will retain office. Nicola Sturgeon (of whom more below) will not be ousted as First Minister. But this is peak SNP. With 56 MPs and perhaps as many as 70 MSPs, this is as good as it can ever get for them. And after you’ve reached your peak, the only way is down. And what will bring the SNP down is their record in government. By the time of the next-but-one Holyrood election (assuming it takes place in 2021) the SNP will have been in power, continuously, for 14 years. If Scotland’s schools haven’t improved by then it will be no-one but the SNP’s fault (and, so far, Scottish education has got worse, not better, under the SNP). If the Scottish health service is still in the mess in 2021 that it is in now, it will be no-one but the SNP’s fault. Moreover, well before 2021 the new tax and welfare powers agreed by the Smith Commission and currently being legislated for in the Scotland Bill will be fully in force. Mr Swinney made a complete hash of the first tax devolved to him (stamp duty) and, when he takes charge of income tax in Scotland, which he soon will, his job will get a whole lot harder. Especially when he has a Cabinet Secretary for Welfare urging him radically to increase spending on social security provision in Scotland.

All bubbles burst. All tides recede. Eventually. At the moment the SNP is, to many people, more of a cult than a political party. One poll found recently that 62% of Scots plan to vote for them next year despite only 35% of us thinking that they are doing a good job with the powers they have. But this too will pass, as Scots come to understand that the SNP is not just another anti-austerity protest movement but, you know, an actual government with, you know, actual powers and stuff. Reason can be blinded by the passions, but only for so long.

The SNP leadership knows all this. And, given that they know that the longer they remain in office the greater are the chances of their bubble bursting, why would they not be planning on cutting and running as soon as possible, calling indyref2 sooner rather than later? The answer to that is simple: if a second independence referendum were called today it would deliver the same result as the first one gave us last September. Lose twice, and the dream really does die. Nicola Sturgeon does not want that to be her legacy.

The SNP leadership knows why they lost in September. Many of the SNP’s members and supporters have not come to terms with the reasons for their defeat, at least if Twitter is any judge (zoomers gonna zoom and all that), but the leadership is a lot smarter than (much of) the flock.

This time last year, the Yes movement took Scotland to the edge. They should never have been allowed to get anywhere near this point, but that is another story. Scotland peered over the edge and Scotland thought about it. This time last year there was a period of about a fortnight when I genuinely didn’t know what would happen. Having looked over the edge, would Scots say, “fuck it, let’s jump”, or would we say, “oh shit, that’s a long way down”? Reason prevailed. Emotionally, we were ready to go. But doubts crept in. That nagging currency issue. That enduring sense that the Scottish Government had not done their homework, that the sums did not add up, that there was too much bluster not only on the economy, but on EU membership, on the costs of setting up the new state, and on whether independence really could be realised on the fast-track timetable the SNP insisted on. Doubts that this was a leap of faith, that there was turbulence ahead, and that the landing would be bumpy.

In the intervening year, all these doubts have turned out to be entirely justified — and then some. Scots know this, and the SNP leadership knows this too. Look at the oil price. Look at Greece. Look at the impossibility of running a currency union without surrendering fiscal sovereignty. George Osborne and the UK Treasury were right: the SNP’s half-baked plans for a currency union were a non-starter.

Independence won’t happen until reason as well as the passions dictate it. And the reasoned case is even harder to make now than it was in 2013-14. For one thing, no indyref2 is going to be called until and unless the SNP consider that a majority of Scots are ready to give up sterling and contemplate joining the euro.

Thus the fate of independence is trapped. Go for a second referendum too soon and all the SNP do is to hand the unionists another victory, but wait too long and peak SNP is in the past, not the future.

None of this means, however, that the Union is secure. If, emotionally, we were ready to jump into the abyss a year ago, we’re still ready now. But, equally, if passion alone was not enough to realise independence, reason alone will not be enough to save the Union in the longer term. The idea of Union has to find its way back into Scots’ hearts – and that’s going to be a long journey. And there are big risks to be overcome. The spectre of Europe continues to haunt English politics and Scotland could yet find itself caught on the wrong side of a very south British argument about EU membership. Likewise, the spectre of Corbyn haunts the Labour party. What loyalty to the old British state will a party led by a man such as Corbyn have? There is much mischief here for the nationalists to exploit.

So they will keep their options open. My guess is that the SNP will not rule out a second referendum, but neither will they plan on holding one any time soon, unless there is a “material change” in the constitutional landscape. The material change they really need, however, is the one most likely to elude them. Reason prevailed on 18 September 2014 and even in the cultish atmosphere of post-indyref Scottish politics, there is still, beneath the fog and the flag, ample room for reason.

Full Fiscal Detriment

On Monday the committee stage of the Scotland Bill starts in the House of Commons. This stage will run over four days during the coming weeks, giving MPs the chance to scrutinise the Bill line by line, clause by clause. It is the principal “amending stage” of Commons legislative process – last week’s “second reading” debate on the Bill was on its general principles (a Bill cannot be amended at that stage).

Much of Monday’s proceedings will focus on clauses of the Bill that recognise the permanence of the Scottish Parliament and that place the Sewel convention on a statutory footing. These are important matters, but it’s hard to see them making the lead item on the six o’clock news.

More eye-catching, if you know where to look, is amendment 89 on page 17 of the Notices of Amendments. Put down in the names of six SNP MPs, including their leader in the Commons Angus Robertson and the deputy leader of the party Stewart Hosie, the amendment provides that the Scottish Parliament should have the power to modify any UK law relating to: taxes and excise in Scotland; government borrowing and lending in Scotland; and control over public expenditure in Scotland. In other words, the amendment paves the way for Holyrood to deliver the Scottish Government’s consolation policy of full fiscal autonomy.

It is hardly a state secret that the Scottish Government has not given up on its long-term goal of securing independence for Scotland. While that ambition was thwarted by the Scottish electorate on 18 September last year the next-best-thing, as far as the Scottish Government is concerned, is “full fiscal autonomy” (FFA). This is defined, in the Scottish Government’s own words, as follows: “the Scottish Parliament should raise all its own revenue and make payment to Westminster for reserved services”. FFA would mean that all taxes and excise duties in Scotland would be raised by and paid to Holyrood, and that all public spending in Scotland would be Holyrood’s responsibility save for spending on defence, intelligence and security, and some aspects of foreign affairs. The United Kingdom would be responsible in Scotland only for these matters, for the currency and for certain aspects of citizenship (but not, apparently, immigration).

FFA was once known as “devo-max” but I’m glad that phrase has fallen out of favour, for FFA is no scheme of devolution at all. It is a form of independence-lite. It would destroy the Union as we know it. It would mean an end to the pooling and sharing of risks and resources upon which the Union is based. And it would mean an effective reversal of last year’s referendum result.

The Scottish Government likes to remind us that, shortly before the referendum, Gordon Brown said that a No vote would deliver “home rule” or something as close to federalism as was possible in the UK. As a matter of fact, in his book published in the summer of 2014 Mr Brown had said that what was on offer from the pro-UK parties was “close to the idea of home rule” but not home rule “in the strictest sense” and, certainly, was no “federal solution”. But never mind.

Of more interest is that FFA goes way beyond federalism. The USA, Canada, Australia, Germany and Switzerland are all federal countries. None operates a system of full fiscal autonomy. Even the world’s oldest and most successful federal countries use systems of fiscal grants to transfer revenues from the centre to the nations/regions/provinces that make up the state. As the experience of these (and numerous other) countries demonstrates, federalism can produce both stable government and prosperous societies. FFA would produce neither. It is a recipe for instability and economic hardship that would bring disaster to Scotland.

I do not believe the Scottish Government are serious in their pursuit of FFA. I believe it is a stunt. Certainly, at the Smith Commission last autumn, Deputy First Minister John Swinney did not push for anything close to full fiscal autonomy. Yes, he wanted more than Smith delivered, but he was as relieved as anyone that he was not about to become responsible for delivering the state pension, for example, to Scotland’s pensioners. (FFA would mean an end to the UK pension: the pension in Scotland would have to be paid for from taxes raised only in Scotland.)

Likewise, I do not believe that the SNPs’ FFA amendment to the Scotland Bill is serious. I believe it is a stunt. Even the Scottish Government’s own policy documents condemn it as irresponsible and unworkable. In their October 2014 submission to the Smith Commission, More Powers for the Scottish Parliament, in which the Scottish Ministers set out their case for FFA, the Scottish Government recognised that even after a policy area has been devolved there remain “common interests” with the rest of the UK, that the Scottish and UK Governments work together “to benefit the people of Scotland and the rest of the UK”, and that new “co-operation agreements” will be needed between the two governments as more powers are devolved. I agree. Yet look in vain for even a hint of any of this in amendment 89.

In More Powers for the Scottish Parliament the Scottish Government recognised that, despite their rhetoric about FFA, some taxes and excise duties could not be devolved to Holyrood compatibly with EU law. VAT cannot be devolved, for example. That’s not because of any rule of UK law, but because of EU law. Yet look in vain for recognition of such truths in amendment 89.

In More Powers for the Scottish Parliament the Scottish Government recognised what it called “the importance of a sustainable overall fiscal position for public finances within Scotland and the UK”. Quite right, but amendment 89 includes no reference to any such thing. There is no reference to the economic well-being of the United Kingdom, no reference to the inter-governmental management of public finances, and no reference to “protecting monetary stability, promoting the single market and safeguarding fiscal sustainability”. Last October these were all matters that the Scottish Government accepted would have to be part of any scheme of full fiscal autonomy; yet each has now vanished.

The FFA amendment to the Scotland Bill is plainly not designed to be taken seriously. This isn’t full fiscal autonomy, but full fiscal irresponsibility. You could even call it full fiscal stupidity, or #FFS. It’s also profoundly undemocratic. Two million Scots voted only nine months ago to preserve our Union and the pooling and sharing of risk and resource upon which it is founded. Yet amendment 89 seeks to undo all this in a single clause – with not so much as the whiff of consulting the public. Isn’t it time for the Scottish Government to stop playing games with devolution, to stop their stunts, and to show some respect to what, after all, is the settled will of the Scottish people?


The Smith Commission Agreement and the Scotland Bill

The publication today of the Scotland Bill is hugely welcome. The Bill legislates for those elements of the Smith Commission Agreement that require primary legislation. Other elements of Smith will be implemented without the need for fresh legislation. Once implemented the Smith Commission Agreement will make the Scottish Parliament one of the most powerful sub-state legislatures anywhere in the world. In terms of the proportion of public spend that Holyrood will be responsible for, and in terms of the proportion of the Scottish Ministers’ budget that Holyrood is responsible for, the Scottish Parliament will indeed be a powerhouse parliament. This is what we were promised in the run-up to last September’s referendum; and this is what David Cameron’s government is on course to deliver (with the active support, I hope, of the Labour and Liberal Democrat parties).

The Smith Commission Agreement is wide-ranging, and today’s Scotland Bill reflects this. Thus, there are provisions on fracking, equalities, tribunals, road traffic, gaming, employment support, broadcasting, HM Coastguard, fuel poverty, energy and competition policy, as well as a host of other subjects. But at the core of the Agreement, and at the core of the Bill, are two matters: tax and welfare.

A highlight of the Smith Commission Agreement was that Scottish Ministers should become responsible for the setting of all rates and bands of income tax for Scottish taxpayers. Income tax on dividends and savings would remain reserved to Westminster, and the UK’s other main tax on income (national insurance) would likewise remain reserved, but thereafter income tax on earnings would be the Scottish Ministers’ responsibility, not the Chancellor of the Exchequer’s. In addition, a number of smaller taxes would be devolved in full and a share of VAT receipts in Scotland would be assigned to the Scottish Ministers (VAT cannot, alas, be devolved for as long as the UK remains a member state of the European Union, as to do so would be contrary to EU law).

Draft clauses designed to convert the Smith Commission’s “heads of agreement” into legislative provisions were published by the Coalition Government in January. Those clauses succeeded in translating Smith’s proposals on tax into statutory language, as was recognised earlier this month in the very fair and balanced report from Holyrood’s all-party Devolution (Further Powers) Committee, chaired by Bruce Crawford MSP, a senior and very widely respected member of the SNP. The same is the case for today’s Bill. Smith’s recommendations on tax are implemented in full.

In contrast, the Devolution Committee’s report was critical of the way in which the draft clauses dealt with the Smith Commission’s recommendations on welfare. The Committee was right to be critical: in the Times on 26 January 2015 (£) I published an article in which I was similarly critical of the ways in which the draft welfare clauses fell short. In order to understand what had gone wrong we need to understand what Smith agreed on welfare.

The Smith Commission Agreement divides welfare spending in Scotland into three areas: the state pension; working-age benefits designed to assist those with very low incomes; and working-age benefits for those with additional needs. It was agreed that the state pension should remain reserved to Westminster. The main benefit in the second category is universal credit (UC). Smith agreed that UC should remain largely reserved, save that Scottish Ministers should have limited flexibilities to vary its delivery and to vary the housing element of UC (so that, for example, the so-called bedroom tax could not be imposed on Scots without the Scottish Ministers’ consent). As regards the final category, Smith agreed that the vast bulk of benefits for those with additional needs should be devolved in full, including carer’s allowance, attendance allowance, disability living allowance, personal independence payments, as well as others (indeed, the only major benefit in this category to remain reserved is child benefit). Smith underscored that the Scottish Parliament will have the power to create new benefits in all these newly devolved areas. In addition (and it was the Scottish Conservatives who brought this idea to the Smith Commission table) it was agreed that the Scottish Parliament should have the power to top-up any reserved benefit. Thus for example, if the UK Government were to cut a UK benefit (such as child benefit or universal credit) the Scottish Parliament would have the power to cancel out that cut in Scotland by topping it up from its own resources. To pay for this, the Scottish Parliament would either have to find savings elsewhere in its budget, or it could increase rates of income tax, or both.

It was this top-up power — critical (in my mind) to the success of the Smith package — that was mistranslated in January’s draft clauses. But no longer: today’s Scotland Bill gets it absolutely right (the key provision, if you want to look it up, is clause 21; see para 159 of the Bill’s explanatory notes).

The reason why this matters is simple. If Scottish Ministers do not like the tax and spend decisions taken by the United Kingdom Government in Westminster, the Smith Commission Agreement — and now today’s Bill — gives them the power to do something about it. In short, they will be able to put our money where their mouths are. They can fill what they perceive to be gaps in public spending on welfare and social security. They can create new benefits. They can top-up, for Scots, even those benefits which continue to be reserved to Westminster. And they have the tax powers to pay for it all. This is why the Prime Minister said yesterday that it is finally time for the SNP to put up or shut up. At last, we can move the argument on from nationalists’ bleating that they don’t have sufficient powers to a forensic examination of how they choose to use their powers.

Harry Street Lecture: New Union, New Constitution

I was honoured to deliver the 2015 Harry Street Lecture at the University of Manchester in April. I’m now making available the text of the lecture. Drawing on the work I undertook with colleagues at the Bingham Centre for the Rule of Law, whose report on devolution and the future of the Union was published last week, the lecture:

  • explains a number of the differences between federalism and devolution;
  • argues that a number of principles of Union constitutionalism animate and underpin the UK’s constitution;
  • identifies what these are;
  • suggests that they should be brought together in a new Act of Union;
  • and examines the role, in particular, of England, in the UK’s territorial constitution, considering both “English votes for English laws” and City- and city-region devolution within England, with a focus, given where the lecture was delivered, on Manchester.

The lecture can be read here: HarryStreetLecture

Federalism or Bust? How to Save the Union

The most pressing question of statesmanship in the new Government’s crowded inbox is “How to Save the Union?” Safe it is not. The threat of Scottish nationalism has not gone away. After their deserved defeat in September’s independence referendum the SNP has come back stronger than ever. Under a new and brilliant leader they won 56 of Scotland’s 59 seats in this month’s general election, confining the Tories to their single MP north of the border, reducing the Lib Dems from 11 to 1, and killing the Scottish Labour party stone dead. Don’t expect a resurrection any time soon, friends. But there is also a threat from English nationalism. The election campaign finally woke up the constitutionally sleepy English, as they became conscious of just what economic vandalism the SNP were proposing to inflict on what they hoped would be a weak Miliband-led Government. English public opinion may not be much moved by the minutiae of constitutional reform, but public money is a different matter. As the election approached I was dreading the hysterical over-reaction south of the border should Miliband have been shunted into Downing Street on the back of SNP support. Fortunately, this fate has been avoided. But anyone who thinks the Union has thereby been secured is mistaken.

So — how to secure it from here?

Many of the brightest minds around are of the view that the only means of saving the Union is to adopt a fully federal constitution for the United Kingdom. Some have long held this view; others have come to it more recently. Those who have thought about it for a long time tend to know what they are talking about; some of the arrivistes, whilst well-meaning, don’t. What is fuelling the new-found faith in federalism is a strong sense, which I absolutely share, that our constitutional settlement needs to be fair to all the nations and regions of the United Kingdom. The search for a solution cannot be confined to Scotland alone. We need a settlement that is fair to Wales and Northern Ireland, too, and that is fair to all of England — not only to London, but also to the great cities of the North and to the shires and counties of rural England. This is what the Prime Minister said on the steps of Downing Street at dawn on the day after the referendum, and he was absolutely right. A Unionist must see the constitutional argument as being about the whole of the Union, not only about Scotland.


What is federalism, and what are the differences between federalism and what we have now? Federalism is a theory of shared sovereignty. Many countries around the world adopt it: the USA, Canada, Australia, Germany and Switzerland are all federal countries. But, like France, the United Kingdom is not and never has been a federal country. Federalism challenges fundamentally a number of the ideas and practices most central to the UK constitution. All federal countries have written constitutions (whereas the UK’s is unwritten, meaning uncodified). In a federal system the centre cannot alter the powers of the regions/states/provinces: rather, these are enshrined in the constitution, with any disputes being resolved by a powerful Supreme or Constitutional Court. Thus, disputes between governments are questions of law for resolution in a court, not questions of politics to be addressed by politicians in inter-governmental negotiations. Federalism would mean an end to the sovereignty of the UK Parliament. Instead, the written constitution as interpreted by the Supreme Court would be sovereign. And federalism would also mean an end to the popular sovereignty of the Scottish people, as expressed in the Claim of Right (and in last year’s referendum). Both the US and Canadian Supreme Courts have ruled that the US states and Canadian provinces enjoy no unilateral right of secession. Plainly, Scotland does enjoy such a right. In this sense, therefore, Scotland currently has more constitutional power than she would have under a fully federal constitution. Federalism would mean Scotland giving something up, as well as Westminster giving something up.

Now, were the United Kingdom Parliament and all the constituent nations of the UK to agree to a new federal settlement, the UK could become a federal state. It is not impossible. But it seems hardly likely at the moment either that Westminster would cede its legislative sovereignty to the courts or that the Scots would cede their popular sovereignty to a new British constitution. Full federalism seems a distant prospect.

This is not to say that it should be abandoned: merely that those who advocate it should do so aware of what a seismic change it would be. The first question for our Unionist statesmen and women, then, is “Do we need an Earthquake?” I don’t think we do.

But this is not to say that there is nothing to be learnt from federalism. On the contrary. Federalism is best seen not as a one-size-fits-all off-the-shelf number, that you either take or leave. Rather, federalism is better seen as a spectrum — as a menu of ideas from which one can pick. There are certainly ideas from within federalism that the United Kingdom should now adopt.

A New Act of Union

To start with, we need a clear and authoritative statement of what our Union is and what it is for. We have taken it for granted for far too long but, in the course of the long Scottish independence referendum campaign unionists did start to articulate why they are unionists. Unionism was forced out of its passive, default mode, into something more demonstrative. The Union is about the pooling and sharing of risk and resources. It’s about solidarity. It’s about standing together, collective defence, social security. It’s about having a single economic framework which gives Scots a domestic market ten times the size of Scotland to trade with, to live and work in, and to retire to (should they wish to) with no impediments at all.

We need a new Act of Union that sets all this out, clearly, simply and authoritatively. That Act of Union should also set out the principles that underpin and shape devolution in the United Kingdom. As well as having separate legislation for Scotland, Wales and Northern Ireland, we should have a single, over-arching statute that sets out what devolution is and what it is for.

It has been said many times that “devolution is a process and not an event”. Maybe so. But as a process it has become messy, over-hasty and extremely poorly understood. A clear re-statement of Union would clarify what can and, just as importantly, what cannot be devolved within the Union state. If the Union is about the pooling and sharing or risk and resources, we ought to have clear statutory guidance that policies designed to engineer that pooling and sharing cannot be devolved. This would rule out the devolution of national insurance, for example, and of the state pension. If the Union is about social solidarity across the whole of the United Kingdom, this ought to explain why so few of the UK’s welfare programmes can be devolved. Reluctance to embrace extensive welfare devolution, on this view, is not a matter of unthinking political intransigence, but of deep and perfectly rational unionist principle.

One of the best-known definitions of federalism is that it combines self-rule with shared rule. Devolution in the United Kingdom has delivered the former far more effectively than the latter. In Scotland we have a powerful Parliament, responsible since 1999 for almost two-thirds of public spending in Scotland and soon to be rebooted with broad tax powers that will begin to match its already formidable spending powers. That’s the “self-rule” bit. But the “shared rule” bit has not happened. Everyone who has ever looked at this has said it needs to happen, from parliamentary committees to the Calman, Silk and Smith Commissions, to think tanks such as the Institute for Government and the IPPR. The UK’s inter-governmental machinery is not fit for purpose. It has no legal foundation. It is utterly opaque. Parliaments do not hold ministers to account for what they do (or what they fail to do) in inter-governmental meetings. There is no effective dispute resolution procedure. The UK Treasury and Cabinet Office are far too controlling. And there is no effective means of joint policy-making. All this has to change, and quickly. Effective inter-governmental machinery, including for joint policy-making, should be included in the new Act of Union.

As should a revised, transparent and fair system for funding devolved government. One of the running scandals of UK government is that the system we use for funding devolved government is manifestly inappropriate. Not only is the Barnett formula archaic, inherited as it is from an era when we did not even have devolution, but it is also unfair, certainly to Wales (which is underfunded despite being one of the poorer parts of the UK) and probably also to England (or, at least, to much of England). We can learn a lot from federal countries about how public money should be transferred from the centre to the devolved nations. There always is such a transfer: no federal country anywhere in the world runs along lines of “full fiscal autonomy” or “devo-max” and, were the UK to agree to the SNP’s insane policy on full fiscal autonomy, not only would this be a short-cut to the break-up of Britain, it would also the high road to economic ruin for Scotland. Lest there be any doubt about this, just take a look at Kevin Hague’s detailed, expert and repeated demolitions of the SNP’s position.

A new Act of Union should also set out the constitutional rules for secession referendums. Self-determination should be subject to the rule of law, just like any other process of constitutional governance. They need a clear legal basis and the law should provide for such matters as who may vote and how frequently such referendums may be held. “Once in a generation” should be a matter of law, not a matter for the First Minister or her predecessor randomly to determine.

Smith plus?

It goes without saying that the Smith Commission Agreement should be legislated for, delivered and implemented in full and without delay. David Cameron’s government is rightly committed to doing exactly this. If the Scottish Government (or SNP MPs) wish to add to the Smith Commission Agreement, the Prime Minister has graciously said that his government will consider carefully any sensible suggestions, even though there is unlikely to be anything the SNP suggests now that wasn’t suggested by them when the Smith Commission was meeting. We had good reasons in Smith for rejecting the devolution (for example) of employers’ NI contributions, of the national minimum wage, and of corporation tax. Any of this can be revisited, but the SNP is going to have to make a more compelling case now than it was able to in the autumn of 2014 if they want to convince unionists to overturn decisions all five Scottish parties agreed to last November.

Do I think the Smith package alone will be “enough to save the Union”? Of course I don’t. But surely we have learnt by now that funnelling further powers from Westminster to Holyrood is ineffective as a means of stemming the nationalist tide? It did not work in the 1990s, when George Robertson bragged that devolution would kill nationalism dead. It did not work with the Calman Commission and the Scotland Act 2012. And it won’t work with Smith, either, despite the fact that the SNP was one of the five parties that negotiated and agreed to Smith. The reason for pressing ahead with delivering Smith is not because this is how we’ll defeat the nationalists. It’s because it’s the right thing to do. It’s right as a matter of principle to increase Holyrood’s fiscal powers, so that its responsibilities start to match its spending powers. It’s right as a matter of fairness to meet the concerns of so many of those who voted Yes in 2014 out of fears over welfare and social justice. There are limits as to how much welfare devolution can be contemplated within a Union devoted to the pooling and sharing of risk and resources, but Smith was right to introduce into Scottish devolution an element of welfare spending.

Should we draw the line here, or should we go beyond Smith? It’s a no-brainer. Of course we should go beyond Smith. But “going beyond Smith” does not mean, for me, adding to the already bulging list of powers and responsibilities to be devolved to Holyrood. It means thinking afresh about what, in addition to devolution, we need to do to save and secure the Union in the longer term. Devolution is necessary; but it is hardly sufficient. If devolution is the limit of our unionist thinking, we will fail.

I have already suggested that we need a new Act of Union, to set out what the Union is for, that we need to create new mechanisms of shared rule and joint policy-making, and that we need an open, transparent and manifestly fair funding formula for all of the nations and regions of the UK. But, in addition to all of this, we need to find ways of making the Union really matter to people, of making it come alive, of showing people how it makes a real difference to their lives. In this, we need to be bold and, while action is needed urgently, we need to be patient. Results will not appear overnight.

Every government minister should have on their desk this question: What am I doing today to bring the United Kingdom together? We have huge powers at our disposal to help achieve this. Britain is the soft power super-power of the world. Our cultural capital is second to none. Programmes such as those run by the British Council are global leaders. But the effort is expended overseas, not at home. A comprehensive programme of nation-building is called for (terribly unBritish though it may be). I live in a city (Glasgow) where there are thousands of children who have never been to England, and who regard London as being as much of a foreign capital as Paris or Berlin. Let’s twin every schoolchild in Scotland with one in England, and let’s pay for them to visit each other and learn each other’s ways. We live in a country where high-speed rail is being used to shave a few minutes off the journey time from London to Birmingham. Transport and Treasury ministers should turn the map upside-down and think about joining Glasgow to Manchester or Edinburgh to Leeds. Of course we need HS2 (and more) but we need it in the north of Britain, not in the already over-congested south-east. Let’s build that bridge from Scotland to Northern Ireland. Let’s put right the madness that the only airport in Scotland to be connected by rail is Prestwick. Let’s use the great cultural power of football and have Glasgow’s big clubs competing with those in Manchester and London, rather than playing Motherwell and St Mirren every other week. None of these things on its own will secure the Union. Some will work and others may not. Each will have its opponents and naysayers. But making the Union of our great family of British nations come alive for the people who live here is, in the longer term, likely to be a far greater driver of success than adding a few more tax and welfare powers onto Holyrood’s list of responsibilities.

Securing the Union will be an act of statecraft. It will not be easy. If we are to succeed we will need to employ and harness all the many facets of the state. Politics and constitutional design, of course. And law, too. But at the core of the project will lie the economic, social and cultural powers of the state. If the nationalists were in our shoes, they would have been doing this for years already. Let’s get to it.

A fixed-term hung Parliament?

Originally posted on British Government and the Constitution:

With three days to go the general election the polls haven’t moved in weeks. The major parties are neck and neck on about 33% of the vote each, with the other 33% being shared between the Lib Dems, Ukip, the SNP and the other smaller parties. It’s going to be close and it could go either the Tories’ or Labour’s way. I have no idea who’s going to win, and I make no prediction. But, for the sake of argument, let us suppose that the result is something like this: Conservatives 290 seats; Labour 270; SNP 45; Lib Dem 25; Others 20.

If this were the result, the Conservatives and LDs could between them command 315 seats. Still a handful shy of a working majority. Add the DUP to the mix and you get to about 324: just enough once you discount the Speaker and the Sinn Fein MPs (who…

View original 1,993 more words

Reflections on 2014

I haven’t blogged since before the referendum. Even now it feels a tad early. The referendum campaign ran for more than two and half years and it’s only three months since the vote. There is a lot to learn, and a great deal to recover from. Good friends who were on the other side of the argument from me spent much of the autumn in mourning. This is not an exaggeration. For many Yes campaigners something core to their worldview was lost on 18 September and they are right to grieve its passing. I wrote before the referendum that after September we would need magnanimity from the winners and acceptance from the losers. To my mind there has not yet been enough of the latter. The reconciliation of which the Queen spoke in her Christmas broadcast will not happen until unionists come to terms with the fact that 1.6 million of our fellow citizens were so unhappy with the United Kingdom that they voted to leave and nationalists accept that, despite this, they lost.

But let us be patient. Some wounds take time to heal.

And the referendum campaign was wounding. There is an awful lot of collective self-congratulatory back-slapping about the conduct of the referendum. It was wonderfully inclusive. It displayed unprecedented levels of voter participation, from teenagers to pensioners and from the Borders to the Islands. It was an almost entirely peaceful and exemplary way of conducting constitutional politics. All true. But, equally, this is only one part of the story. For many of us the referendum was horrible – and this needs to be said. As with any binary question it was necessarily polarising, but in communities that did not necessarily want to be polarised. It was divisive. Oftentimes it was bitter. It was hard-fought. I make no complaint. I fought. And I fought hard. But let’s not delude ourselves about it all being rosy and cuddly and lovely and friendly. I never want to have to go through it again.

Why did we win?

We won because we won the argument. There is a view in some nationalist quarters that we won because of the Vow. This is a nonsense. The Vow was a front-page commitment in the Daily Record on 16 September (two days before the referendum) that a No vote would mean more powers for the Scottish Parliament, further devolution, and change. It said precisely nothing that had not already been said many times over by the UK Government, Better Together, and the three unionist parties. For sure, it helped to land and to drive home messages we had previously laboured over, but the Vow was not new.

It was judged necessary because of the way the Yes campaign had conducted itself in the closing weeks of the summer. Yes emptied itself of more or less all content and became a rhetorical vessel into which you could pour all your hopes and fears, all your frustrations and aspirations. No longer a constitutional argument about independence, it became the only way of saving the NHS (despite the fact that the NHS is already fully devolved to the Scottish Parliament), the only way of securing social justice (however defined), the only way of achieving a more equal society, the only way of pushing up wages, etc. Such is the anti-politics, anti-establishment and anti-Westminster mood in parts of Scotland that Yes found an eager audience for their rhetoric, especially in Glasgow, Dundee, Lanarkshire and Clydebank. The opinion polls narrowed and, ten days out from the referendum, Yes finally took the lead.

To meet this challenge, Better Together felt that they too had to say something about change. The “more powers” argument had never gained the traction it deserved, partly because the three unionist parties disagreed with each other about the shape and size of the new powers which should be devolved to Holyrood. But more importantly, the argument was failing because it was dull. Talk about devolution with voters on the doorstep and their eyes glaze over. Arguments about devolution have become technical and nerdy. The contrast with the 1990s could not be greater. At the time of the Scottish Constitutional Convention “home rule”, because it was then an aspiration, was exciting. Now that it’s been delivered it’s a reality: part of ordinary life, not a dream to fall in love with.

So the “more powers” argument needed to morph into a “change” argument. Thus, we heard, a No vote is not a vote for no change. A No vote means safer, faster change than the uncertainty and risk of a Yes vote. Vote No and we’ll safeguard the NHS. Vote No and we’ll confer powers on the Scottish Parliament to address inequality and social injustice. Vote No and you’ll get the change you crave. Our change is better than your change. Etc. You could almost hear the echoes of the Obama presidential campaign: vote No for change you can believe in.

What mattered about the Vow was not its content but where it appeared. The Scots who were driving the change in the opinion polling were Labour voters from Labour heartlands, precisely the people that Nicola Sturgeon’s wing of the SNP have been so successful at peeling away from their long-standing (but default) support for the Labour party. For two long years Better Together had struggled to reach these voters – the ground campaign in places like Glasgow was woeful – but, if they read a paper at all, these voters read the Daily Record. From time to time a tabloid front page is so simple, so graphic, and so brilliantly well timed that it achieves the impossible in journalism. Today’s newspapers are, as we all know, tomorrow’s fish’n’chips wrappers. Even good journalism (of which there was plenty in Scotland’s indyref) is forgotten overnight. Exceptionally, however, a tabloid front page achieves notoriety. The Sun on election day in 1992 (depicting Neil Kinnock, with the headline asking the last person to leave Britain to please turn out the lights) is an example. So too is the Vow.

Brilliant tabloid journalism, yes. But not the reason we won. We won because we won the argument. The case for independence was never made. Most Scots don’t want to break up Britain. They want what’s best for Scotland, for sure, but they understand that Scotland’s future is safer and better secured inside the Union in which Scotland has flourished for 300 years. There has never been a majority of Scots in favour of independence, and it was always the tallest of orders for the Yes campaign to manufacture one. Better Together’s job was to identify the weaknesses in the Yes campaign’s argument and to exploit them. This it did ruthlessly. Scots saw through the bluff and bluster on the other side and understood the SNP’s disastrous currency position, the radical uncertainty about future EU membership, the refusal to come clean about the start-up costs of creating a new Scottish state, their untrustworthiness on the oil price, and the fact that the Union was delivering for Scotland and was not the great enemy of progress of nationalist nightmare.

What Alistair Darling called the quiet majority of Scots was always going to vote No, and for these reasons: not because the Vow promised the faster delivery of more powers for the Scottish Parliament, but because the case for independence was never made. The narrowing of the opinion polls in late August and early September gave us the fright of our lives, and there was no little panic in the heat of the campaign to save the Union, but in the end it was all unnecessary. Alistair Darling was right to remain calm. The pollsters under-estimated the numbers in which No voters would come out to vote. Differential turnout was one of our greatest fears in 2013 but, on the day, the difference was in our favour. The Sunday Times crossover poll ten days out from the referendum, in which YouGov gaveYes a two-point lead, frightened the hell out of the quiet majority, and caused turnout in some of the most pro-Union parts of Scotland to rise above 90%. No-one had predicted that. By contrast, Yes Scotland’s famous ground operation, about which we heard so much noise during the campaign, could deliver only a 75% turnout in Glasgow.

What did we win?

We won the right to set the terms of Scotland’s ongoing constitutional debate. The independence referendum did not end that debate but it did decisively determine its future direction. Instead of negotiating the terms of separation, which would have been awful, we spent the closing months of 2014 negotiating how to build the Scottish Parliament so as to secure Scotland’s ongoing place in the Union. It’s been a wholly positive and forward-looking conversation, unlike so much of the indyref debate. I am and always have been a devolutionist. I have always understood devolution as an avowedly Unionist solution to Scottish government. Like most folk living in Scotland I like devolution and I want more of it. It works because it allows us to take charge of our own domestic policy without tearing up the country and leaving the UK. But it doesn’t work perfectly. In a 307-year Union we’ve had devolution for only 15. We’ve still got a lot to learn about realising its full potential.

Devolution has delivered stable government for Scotland, whether under coalition, minority, or single-party majority rule. Resort to the courts has occurred only rarely and, when there have been legal disputes, they have been brought by insurance and tobacco companies, not by Whitehall. Westminster has left Holyrood to legislate on devolved matters and has not sought to trample on Edinburgh’s patch. The reality of devolution is that Scotland’s two governments routinely co-operate with one another, even though, as is only natural in politics, there are sometimes disagreements between the parties.

But what devolution has failed to deliver is the much needed ending of the grievance culture of Scottish politics (what my friend Toby Fenwick has dubbed on Twitter “grievo-max”). Holyrood takes the credit for what goes well, and Westminster, the English, or the Tories are blamed for what goes wrong. This is partly a function of the SNP’s well-oiled PR machine but it also has deeper roots, in the very nature of the way devolution was established by Labour in the 1990s. The Scottish Parliament is already a very powerful legislature when it comes to spending other peoples’ money: two-thirds of public expenditure in Scotland is under Holyrood’s control, with only one third being under Westminster’s. But the Scottish Parliament is not responsible for raising very much of the money it spends. The Scotland Act 2012 (the result of the Calman Commission) devolves some tax-raising powers to Holyrood, but it has long been clear that, if the goal is to reverse grievo-max, it was never going to be enough. This is why the core of the unionist parties’ plans for further devolution after the independence referendum centred on fiscal devolution: on the devolution to the Scottish Parliament of much more extensive tax-raising powers.

Yet, within a single state, caution has to be exercised. The tax code is already complex enough. Tax collection is already expensive enough. Tax avoidance should be discouraged and penalised, not incentivised. And tax competition within a single state could lead to an unplanned decline in public revenues. For these reasons some taxes are more amenable to devolution than others. Corporation tax, excise duties and taxes on capital are the least suitable for devolution (i.e. capital gains tax and inheritance tax). At the same time, taxes which are closely linked to UK-wide social security such as the state pension should surely remain at UK level and not be devolved (ruling out the devolution of national insurance). Income tax, however, is easy to collect (through PAYE), hard to avoid and, most important of all, very highly visible. Putting politicians in charge of the rates at which we pay income tax is a sure-fire way of making them directly accountable to the voters not only for the money they want to spend, but also for the much more difficult question of from whom and in what quantities they want to raise it. Income tax devolution has two further attractions: it is a high yield tax (so its devolution generates a lot of revenue for the devolved legislature) and it is relatively stable. Tax revenues from North Sea oil and gas, by contrast, are highly volatile. The last thing a unionist should want is to devolve to Holyrood a range of fiscal powers that would make the Scottish public finances more unstable. (One of the interesting things about the Smith Commission is that the SNP did not want to talk about oil at all.)

The Smith Commission was an all-party group of (mainly) politicians tasked with the responsibility of agreeing a package of measures for further devolution to Scotland in the light of September’s No vote. There were two representatives for each of the five parties in the Scottish Parliament – I was one of the nominees for the Scottish Conservatives – and we were chaired by the independent peer, Lord Smith. We met in full plenary session on nine occasions between 22 October and 26 November. Our agreement was published on 27 November. All five parties signed up to it in full: no reservations were entered and there was no dissenting opinion attached to the report. It was, of course, an immense honour to play a role in it.

The most important thing about the Smith Commission is not what we agreed – although that is important! – but that all five parties were sitting, talking and working together to reach an agreement. This is the first time in Scottish political history that both unionists and nationalists co-operated in this way. The Scottish Constitutional Convention in the 1990s was boycotted by the SNP and, for different reasons, by the Tories. More recently the SNP had their “national conversation” while the unionist parties had their Calman Commission. But in Smith we all sat down. Together. And we all stayed, right through until the end.

Personally, it was not remotely difficult to stay. I wanted to talk to the other side. I wanted them not to be the other side any more. This was the magnanimity I wanted to see from the indyref’s winning side. I wanted a constitutional politics that was no longer polarising and divisive, but accommodating and inclusive. This is how it would have been had we lost the referendum: as the then First Minister said, if he’d won he would have put together an all-party Team Scotland to undertake the hugely complex and fraught task of unravelling the Union and building the new state. I had indicated to my friends in the SNP that I would have agreed to join Team Scotland, should I have been asked to. Had we lost the referendum I would not have sat on my hands, written endless “I told you so” blogs, and plotted to have the result reversed the next time. There would have been no next time. And if there would have been no next time had Yes won, why should anyone think there should be a next time now?

Did we win?

The post-referendum period of Scottish politics has been very different from how we had thought it would be. We had rather fondly imagined that losing the referendum would be traumatic for the SNP and that they would struggle in its aftermath. But this has not happened. The SNP’s membership has surged, from something like 25,000 members to approaching 100,000 members. This is phenomenal. At the same time, they have enjoyed a more or less seamless leadership transition. Nicola Sturgeon was one of the indyref’s outstanding performers and it took her no time at all to find her feet as Scotland’s new First Minister. I disagree profoundly with much of her politics, but she is truly impressive. I have great respect for her – and that is something I could never have written about her predecessor.

The Scottish Labour party also has an impressive new leadership team, although it is always harder for the opposition than it is for the government to set the agenda, or event to set the pace, doubly so when your new leader is not (yet) a Member of the Scottish Parliament. But Jim Murphy is talented enough to know how to turn that to his advantage. His eyes will be firmly fixed on the 2016 prize and he will not be overly distracted by the 2015 general election.

The UK political scene in the first half of 2015, however,  will be dominated by that election. The Better Together alliance is no more. The election is a straight fight between the two major Better Together parties: come May either the leader of the Conservatives or the leader of the Labour party will be Prime Minister, although the unpopularity of both main parties is such that either is likely to require the support of one (or more) of the smaller parties to form a government. Current opinion polling suggests that the SNP will eat substantially into Scottish Labour seats – it was the Labour heartlands of West Central Scotland that voted Yes, after all. If Labour lose large numbers of their 41 seats in Scotland it will be far harder for Ed Miliband to find his way to Downing Street. This, no doubt, is why the nationalists fill their speeches with so much anti-Tory rhetoric. These (ex-)Labour voters won’t vote for the SNP if they think the nationalists will prop up a Cameron-led government.

In this environment, is the Union safe? It does not always feel like it. But, in Scotland at least, it should. If the economic case for independence was not made during the referendum campaign it would be even harder to make it now. The SNP’s modelling of an independent Scotland’s economy was based on what we now know were ludicrously optimistic forecasts as to the oil price. Whereas the SNP forecast an oil price of $113 per barrel, since September the price has crashed to barely $60 per barrel. Alex Salmond’s Team Scotland would be leading Scotland to disaster right now had 200,000 No voters switched to voting Yes. We came perilously close to economic ruin, and I hope there is a full parliamentary inquiry into whether the Scottish Government acted responsibly in preparing the economic arguments about an independent Scottish economy. Optimism is not a constitutional wrong: but recklessness is.

The real danger to the Union now is coming not from Scotland but from south of the border. When I moved from England to Scotland in 2003 I remember saying that the Union would be robust enough to withstand the challenge of Scottish nationalism. Apart from a ten-day wobble when I could feel the ground moving in late August and early September I have always held firm to that view. But the Union may not be strong enough to constrain the forces of English nationalism, should they ever be unleashed. My fear for the Union is that they are. England has not kept pace with the devolutionary changes from which Scotland, Wales and Northern Ireland have benefited and the English are more than beginning to notice. It is no doubt to foment English disquiet that Mr Salmond has decided to seek a return to Westminster.

The solution to the English question lies not in the creation of another tier of unwanted government there – few mourn the passing of John Prescott’s regional development agencies – but in having the courage to face up to the consequences of devolution, consequences which have been ignored for too long. These consequences are two-fold, and they go to the core of the constitution. The first concerns representation and the second money. Westminster is England’s Parliament as well as the UK’s and a way urgently needs to be found to ensure that the laws it makes are determined by the appropriate body of MPs. UK laws should be made by MPs from across the UK. But laws which affect only England should be determined – at least in their detail – by MPs representing seats in England (“English votes for English laws”, as it is sometimes called). As for money, the financing of devolution has been via the block grant, which is calculated according to the Barnett formula. This is complex, wholly lacking in transparency and, as a result, badly misunderstood. Urgently in need of reform, the Barnett formula is unfair in different ways both to England and to Wales. The good news is that, as we move towards fiscal devolution, Barnett becomes less important (because the Scottish Parliament will raise more of its budget directly through taxation, the size of the block grant decreasing as this happens).

In Scotland we unionists have been forced by the challenge of nationalism to look deeply into our unionism. We understand it much better now. For decades it was passive, default and unexamined. No longer. The independence referendum forced us to articulate what our unionism is for. For the Labour party the core of the case for the Union is about the pooling and sharing of risks and resources. For Conservatives it boils down to two words: trade and security. The UK is a genuinely single market (giving Scots fully ten times bigger a domestic market than we’d have under independence) and, like all states, the UK’s most vital role is to protect internally and externally the security of its citizens. That doesn’t just mean defence and international relations; it means the state pension and our economic security as well.

Once you have understood what the Union is for, the task of distinguishing between powers that should be devolved and those that cannot becomes easy. For a Conservative, powers can be devolved unless they start to cut into or undermine the UK’s single market or collective security. Thus, universal credit cannot be devolved (because it relates directly to the labour market, welfare reform being designed to smooth the path from welfare to work). Likewise the state pension. But other aspects of welfare can be devolved. Hence the agreement reached in the Smith Commission to reserve the state pension and universal credit but to devolve much of the remainder of the welfare budget.

English unionists, by contrast, have not had to think through, articulate and defend their unionism as we have had to do in Scotland. North of the border we have come to understand that in order to safeguard what we cherish we have had to allow it room to adapt and change. We have learnt that a looser Union is a stronger Union, that enhanced devolution is not a consolation prize to nationalists for coming second in the indyref, but the means whereby we ensure that the Union endures and flourishes. Little of this is comprehended in England. While all five Scottish parties were sitting around the Smith Commission table, Labour refused point blank to engage with the coalition in their attempts to solve the “English votes for English laws” puzzle. One nation’s constitutional politics is mature; the other’s is juvenile. In one nation the parties rose above partisan interest to seek common constitutional ground; in the other the public interest continues to be reduced to mere party advantage.

That said, perhaps the contrast is not so great. Whereas the SNP participated fully (and constructively) in the Smith Commission deliberations, the moment Smith reported they sought to rubbish its achievements. This was a rare mis-step by the SNP and impressed nobody. Of course Smith does not go as far as the SNP want – what they want was rejected by the Scottish people in September – but to deny that the agreement constitutes a significant devolution of extensive further powers is just daft. Once Smith is delivered, in a Scotland Act to be enacted after the general election, Holyrood will be one of the most powerful sub-state legislatures anywhere in the world. Scotland will be more powerful in the UK than the states are in the US, more powerful in the UK than are the Australian states, and more powerful in the UK than are the Länder in Germany.

Scottish politics in 2014 has been all about the constitutional question. In 2015 we need to refocus to concentrate not on the question of “what powers do we want” but on that of “how is the SNP government exercising the formidable powers it already has”. But constitutional politics is not going away any time soon. Scotland’s constitutional future was won by the unionists in September, but the Union we fought so hard to maintain will not thrive in the longer term if England’s needs are not addressed. Perhaps I should start a new blog for 2015: Notes from South Britain.

Scotland and the EU

Would an independent Scotland remain in the EU? The SNP have a terrible record of making-it-up-as-they-go-along on this question. Even now they are still at it.

In December 2007 Deputy First Minister Nicola Sturgeon told the Scottish Parliament that an independent Scotland would “automatically” become a member state of the European Union, that there would be no need for an independent Scotland to renegotiate EU membership and that this position was supported by both political and legal opinion. Utter fantasy.

In 2013 First Minister Alex Salmond spent £20,000 of taxpayers’ money on legal fees, seeking to keep secret phantom legal advice supporting this position which, it transpired, did not exist.

Not only have the SNP now dropped their absurd line about “automatic” EU membership, they have tried to bury it. In November 2013 the Scottish Ministers published a document, Scotland in the EU, in which it was claimed that “the Scottish Government has always recognised that the terms of Scotland’s independent membership of the EU will be subject to negotiations with other member states”. This is just one of many untruths uttered by the SNP in the long independence referendum campaign.

Even the heavily revised position adopted by the Scottish Government since 2013 rests on misconception and misrepresentation: the Cabinet Secretary for Culture and External Affairs, Fiona Hyslop MSP, told the Scottish Parliament in April 2014 that “Scotland has been a member of the EU for 40 years” and that “We are very much part of the fixture and fittings of the EU”. The truth is that Scotland is not a “member” of the EU. The United Kingdom is a member state of the EU and Scotland is part of the United Kingdom but, as I have explained on these pages before, if Scotland votes Yes on 18 September, what that would mean in legal terms is that Scotland leaves the UK to become a new state. The rest of the UK will continue to be a member state of the EU, as the rUK will in legal terms be the “continuator” state. It will be the rUK that inherits the legal rights and obligations of the United Kingdom, not Scotland, because Scotland will have voted to leave the UK. Scotland is not part of the “fixture and fittings of the EU”. Each member state has a representative at the Council of Ministers: Scotland does not. Each member state nominates a member of the European Commission: Scotland does not.

Outrageously, Scottish Ministers still like to pretend that the legal consequences of a Yes vote would somehow be different. Fiona Hyslop, in the same evidence from which I just quoted, told the Scottish Parliament that both Scotland and the rest of the UK would be “successor” states to the UK – that a Yes vote would not mean that Scotland is a new state. This position was authoritatively dismantled by two of the world’s leading international lawyers in a fully reasoned legal opinion that was published by the UK Government as long ago as February 2013. Yet still the SNP refuse to admit the truth and reside instead somewhere on Planet Fantasy.

The good news, however, is that you no longer need to take my word for it. Last month Lawyers for Yes published the following on their website, authored by a member of their steering group, no less: “The politico-legal reality is that rUK will be accepted as the continuing state by the international community”. At last, admission by Yes supporters that we have been right all along and that the SNP are making it up as they go.

Accession countries to the EU must show, before they can become members, that they are able and willing to comply with all 35 chapters of something known as the acquis communautaire. The acquis is the full range of the EU’s laws and principles, whether derived from the treaties, from legislation such as regulations and directives, or from case law. It is sometimes said that because Scotland has been within the territory of the EU since the UK’s accession in 1972, Scotland is already fully compliant with the acquis and that, therefore, her accession to the EU as an independent member state would be much more straightforward than a membership application from a country external to the EU. But it is not as simple as that. Of course Scotland is compliant with those parts of EU law that affect it now. But not all of the acquis does affect Scotland at the moment, because Scotland is not a state. There are some parts of the acquis with which Scotland is compliant only because there is a UK institution that covers Scotland. Were Scotland to leave the UK, such institutions would no longer act for Scotland (they would act only for the rest of the UK). Scotland lacks a number of the institutional and administrative structures normally expected of accession countries – including a regulatory framework for public broadcasting, enforcement and administrative capacities for taxation, a competition authority, and a central bank.

Scotland will find it difficult to accede to the EU without first convincing the EU institutions and member states that its broadcasting, tax, competition and banking institutions meet EU criteria. As the Commission’s website makes plain, compliance with the 35 chapters of the acquis is “not negotiable”. Candidate countries must “agree on how and when to implement them”, such agreement being monitored by the European Commission as the candidate country progresses towards accession.

The path to EU membership

On BBC television Jose Manuel Barroso, then President of the European Commission, opined in February 2014 that it would be “extremely difficult … if not impossible” for an independent Scotland to become a member state of the EU. In my view, Barroso’s intervention was ill-judged. There ought to be no doubt that an independent Scotland would become a member state of the European Union, eventually. However, there is very considerable doubt about how this would happen, about how quickly it could happen, and about the terms on which it would happen.

The EU treaties do not provide for a procedure by which part of the territory of a member state, having determined lawfully to secede from that member state, then seeks EU membership in its own right. Article 49 TEU governs the accession of new member states, but it is framed in terms of a state seeking accession from outside the EU. Seeking accession to the EU from outside, as Article 49 TEU envisages, is incompatible with the SNP’s vision of a “seamless transition” to independence. Thus, as an alternative, the Scottish Ministers have proposed that Article 48 TEU be used instead: the treaty revision process. The Scottish Government’s hope is that the treaties could be amended under Article 48 to allow for Scotland to become a member state. It is far from clear whether this route is a legally viable means of acceding to EU membership, however. Jean-Claude Piris, former legal counsel of the European Council, has argued that “it would not be legally correct to try and use Article 48”. His view is shared by a range of the UK’s foremost experts on the matter, including Professor Kenneth Armstrong (of the University of Cambridge), Lord Kerr (former UK ambassador to the EU) and Patrick Layden QC, one of Scotland’s most experienced government legal advisers. It is notable that not a single member state of the EU has endorsed the Scottish Government’s view that Article 48 could be used for this purpose.

Even if it were legally possible to use Article 48 there would still be numerous practical problems: Scottish accession to the EU could not be commenced until Scotland’s independence negotiations with the rest of the UK had resolved certain key issues (such as whether Scotland would have a central bank); the Article 48 procedure may be triggered only by a member state or by an EU institution – Scotland would not be able to initiate it; nor is there a means under Article 48 for Scotland to be represented in treaty amendment negotiations (whereas Scotland would be represented were Article 49 to be used); under Article 48 agreement is reached by common accord, not by majority, giving each member state a veto; and the Article 48 process requires (a) agreement to be reached in the Council and (b) that the agreement is then ratified by each member state government or parliament before it may take legal effect. The process would not be swift and, indeed, would be liable to grave delays. Legal doubts about the validity of the process would render it liable to legal challenge. Moreover, Article 48 is a provision allowing for general treaty revision. Were the process to be triggered there is nothing to stop member states adding any number of other proposed treaty revisions to the agenda, even if those proposals had nothing to do with Scottish accession. We know that several member states (not least the United Kingdom) are keen to see a variety of treaty reforms, many of which are likely to be resisted by other member states or by the Commission. So, more delays. An Article 48 process could not be confined to the single subject-matter of Scottish accession (whereas an Article 49 process would be so confined).

The Scottish Government has said that it would wish Scotland to become an independent state in March 2016, only eighteen months after the referendum. Given the vagaries of the process and the range of substantive matters needing to be negotiated, it is highly ambitious to suppose that agreement over Scotland’s EU accession could be reached within that timeframe. But to imagine that such an agreement could be both reached and ratified within an eighteen-month window is hopelessly unrealistic. This means that the new Scottish state would start its life outside the EU, at least for an interim period. Would that matter? Well, it would matter to Scottish farmers, who would lose EU CAP receipts of up to €600 million annually: another of the many hidden costs of independence about which the SNP have been remarkably quiet.

A dispassionate view of the law, then, leads ineluctably to the conclusion that were Scotland to become an independent state in March 2016 it would not be starting its new life as a full member state of the European Union. Some legal commentaries on this matter have reached a different conclusion. My friend and former colleague Professor Sionaidh Douglas-Scott of the University of Oxford, for example, has written in defence of the view that Scotland’s transition to full EU membership ought to be “relatively smooth and straightforward”. Much of her argument is based on the notion that “rebuffing or alienating a country such as Scotland, that wants to maintain EU membership … will hardly do much for the EU’s image”. She writes of the alternative view being that “Scotland would be immediately ejected from the EU” and talks of Scotland’s “exodus” and of being “cast into the wilderness”. I find all this very odd. First, Scotland would not be “maintaining EU membership”: she would be acquiring new EU membership. Secondly, no-one would be “rebuffing or alienating” Scotland: on the contrary, EU institutions and member states would be recognising and giving due weight to the fact that Scots would just have voted to leave a member state. EU institutions and other member states would surely welcome the fact that Scotland wished to join the EU in her own right, but would note at the same time that Scotland would wish to approach her accession with the EU’s fundamental values in mind. Under Article 2 TEU those values include the rule of law. A lawful means of acceding to the EU must be found, not only for the sake of the EU’s “image”, but also for Scotland’s sake as a new state committed (one would hope!) to the rule of law. Thirdly, the rather inflammatory language of “ejection” and automatic “exodus” into the “wilderness” is misplaced. No one is talking of throwing Scotland out of the EU – not even Barroso. What is being talked about is recognising the legal consequences of the decision that Scots will have made were any of this to arise (i.e. that Scotland will have voted Yes to leaving the United Kingdom and becoming a new state in international law).

More balanced than Sionaidh Douglas-Scott’s paper is one published this month by Professor Stephen Tierney and Dr Katie Boyle of the University of Edinburgh. In their view, while Article 48 is a “feasible” route for the realisation of Scotland’s EU membership, it is “more likely that Scotland will require to make an application … by way of Article 49”. This, they say, is the “more plausible route”. They note, as I have done, that the timetable of achieving all this by the SNP’s projected independence day of March 2016 is “ambitious”, not least because, in their words, “it is not possible to predict with certainty how long the ratification process in each member state might take”.

The terms of EU membership

Next, let us consider the terms of EU membership which the Scottish Government is proposing. It wants (1) to continue the UK’s opt-out from the euro, (2) to continue the UK’s opt-out from the Schengen free movement area, (3) to continue to benefit from the UK’s budget rebate and (4) to continue to benefit from the exemptions from the EU’s VAT directive which the UK negotiated for itself. These terms of membership are extraordinary: none of the EU’s recent accession countries have joined the EU on terms such as these.

The EU institutions and member states, looking at the terms of membership proposed by the Scottish Government, will simply reply “what are you offering us in return for these extraordinary terms?”. Negotiations involve give and take: if these are the terms which Scotland wishes to take from the EU, what is it proposing to give in return? Why should a country such as Ireland, or Portugal, or Greece, which has spent years struggling with the consequences of its membership of the Eurozone, agree that Scotland should be entitled as of right to stay out of the Eurozone? Similarly, Scotland wishes to remain in the Common Travel Area with Ireland and the rest of the United Kingdom. But the CTA is loathed by many in Europe, who see it (quite rightly) as a special British-and-Irish exception to the EU’s Schengen free movement area. Why should EU member states allow Scotland, uniquely among all accession countries, to opt out of Schengen so that she may continue her participation in an alternative free movement scheme? Now, to be clear, I am not saying that Scotland could not negotiate her way out of the Eurozone or Schengen. But I am saying that the negotiations would not be straightforward; they would not be swift; and they would not go Scotland’s way without Edinburgh having to make concessions elsewhere – concessions about which we have heard nothing at all from the Nationalists.

As for the other aspects of the UK’s special deal which the SNP would like to keep, I would say there is no chance at all. Far from continuing to benefit from the UK’s rebate, Scotland as a new accession state would be expected to contribute to it, as the House of Commons Scottish Affairs Committee have pointed out. Likewise, it is impossible to see how an independent Scotland could continue to enjoy the UK’s exemptions from the EU’s VAT legislation. Under these exemptions 54 items in the UK are free of VAT, including food, children’s clothes, books and newspapers. If we vote for independence, expect the price of all these items to go up in Scotland: yet another of the SNP’s carefully hidden costs of independence.

Another aspect of the SNP’s proposed policies for an independent Scotland is incompatible with EU membership. At the moment, Scottish students do not pay tuition fees to read an undergraduate degree at a Scottish university, but students from elsewhere in the UK are charged a fee to do so. The Scottish Government’s independence white paper proposes that this discrimination be continued in the event of independence. But this would be unlawful if both Scotland and the rest of the UK were EU member states, for it is contrary to EU law for a member state to discriminate in this manner against the citizens of another member state (the policy is not contrary to EU law at the moment because the discrimination is within one member state – the UK – not between nationals of different member states). Were Scotland to become independent, rUK students would have to be treated in Scottish universities in the same way as Scottish students. Either that would mean Scotland’s universities being flooded with rUK students in search of a free education, or it would mean Scotland having to charge Scottish students a fee equivalent to that already charged to rUK students in the rest of the UK. So here is another reason to Vote No: it’s the best way of ensuring that Scottish students will not have to pay tuition fees to study at Scottish universities.

Two objections

Two very different sorts of objections are sometimes raised in response to the above analysis. The first relies on the doctrine of EU citizenship. Since the Maastricht treaty twenty years ago nationals of member states have been EU citizens, as well as citizens of their respective state(s). As EU citizens we have certain rights under EU law. It has been suggested that these rights would ensure continuity of Scotland’s EU membership, on the basis that it would not be appropriate for Scots to be stripped of their EU citizenship. The argument is unpersuasive, however. First, it must be borne in mind that EU citizenship is strictly secondary: it is a status conferred by EU law upon those who are already nationals of a member state. Secondly, citizenship has been used as a juridical device by the Court of Justice to prevent member states from discriminating against the nationals of other member states. Its value lies in the way it has augmented the EU’s ability to control (or limit) action undertaken by the member states. Were an independent Scotland to find it more difficult than the SNP have conceded to join the EU as a new member state, it would not be because of coercive state action taken against Scots, but because of Scots’ collective decision to leave an EU member state. EU citizenship may be a shield protecting individuals against coercive state action, but it has yet to become an effective sword by which the EU itself can be forced to act in a certain way. On this matter I note that Professor Douglas-Scott states that, despite the citizenship argument being in her view “a strong one”, it “cannot by itself engender automatic membership of the EU for an independent Scotland”.

The second objection sometimes made is that, such is the euroscepticism of the English, the only way of guaranteeing that Scotland remains in the EU is to vote Yes. It is true that England has a problem with euroscepticism. But so does Scotland: Ukip have more MEPs in Scotland than they have MPs in England, let us not forget (unless Douglas Carswell is successful in his bid to turn Clacton from Tory to Ukip, in which case the score will be 1-1). The Conservatives have promised that if they win the 2015 general election they will hold an in/out referendum on the UK’s EU membership in 2017. Now, in my view this is likely to happen only if the Conservatives win an overall majority in 2015 – and precious few psephologists are predicting that – and, even if it does happen, an “In” vote is much more likely than an “Out” vote. All three main UK parties (plus the SNP) will campaign for an “In” vote, even if a minority of Tory hardliners break ranks to campaign with Nigel Farage’s Ukip for “Brexit”. The issue is a dangerous one for the Tory party, whose divisions over the EU have been apparent since the days of the Maastricht rebels twenty years ago. But there is little real danger of the UK leaving the EU. Any Yes campaigner arguing in 2014 that the only way of securing Scotland’s membership of the EU is to vote Yes is scaremongering, plain and simple.


What the Scottish Government has had to say about Scotland’s EU membership is triply odd: the route by which an independent Scotland could lawfully become a member state is obscure and liable to attract delay; the timetable proposed by the Scottish Government is optimistic to the point of being preposterous; and, on top of all of this, under the SNP’s plans an independent Scotland would be seeking membership of the EU on extraordinary terms afforded to no other accession country.

I have no doubt that, were there to be a Yes vote in next month’s referendum, an independent Scotland would accede to membership of the EU. Eventually. But how this would be done, how quickly it could be done, and on what terms it should be done are three of the “known unknowns” of the independence debate. To pretend otherwise – by insisting that there would be a straightforward, smooth and seamless transition – lacks all credibility.

What is clear, however, is that were we to vote Yes, we’d inevitably not be a full member state of the European Union by the SNP’s projected independence day in March 2016. An independent Scotland would start her life outside the EU; even thereafter Scotland would enjoy EU membership on terms far less beneficial and generous than those enjoyed now by the UK.