Policies, not Powers

It’s been a big few days. Ruth Davidson, the leader of the Scottish Tories, has said that her party was on the wrong side of the argument in seeking to resist devolution in 1997-99 and has joined the Lib Dems and Labour in pledging that devolution will continue to grow and develop — and not stand still — after we vote No in 2014. Margaret Curran, Shadow Secretary of State, has delivered a speech in which she shows how difficult it still is for Labour simultaneously to oppose both the Tories in Westminster and the Nationalists in Holyrood. The McKay Commission has published its answer to the West Lothian Question (I’ve written about that here). Oh, and we’ve now been told the date of the referendum (Thursday 18 September 2014).

Amid the noise a new and welcome theme is emerging, one which I’ve been urging for some time.

I’m a constitutional lawyer. I don’t mind constitutional nerds, and I count several constitutional anoraks among my friends. But I happily recognise that these are minority pursuits. Most politics — quite rightly — is not concerned with constitutional questions, but with matters of tax and spend, social justice, public services, etc. Arguments about what powers should be devolved to Holyrood and what powers reserved to Westminster may keep us small band of constitutionalistas happy and awake into the night, but most folk would much rather hear their politicians talking about something else — anything else — whether it be the NHS, the economy, law and order, or the cost of living.

In this respect, Unionist politicians have a marked advantage over the Nationalists. We all know that the SNP talks endlessly about independence. But one of the things that the SNP does not much want to talk about is what it wants independence for. What do they want to do with it? What sort of Scotland do they want? A centre-right Scotland with low corporation tax and a burgeoning private sector, or a centre-left Scotland with world-class public services and the eye-watering rates of personal taxation that would be required to pay for them? The SNP don’t want to answer this question because they cannot answer it — there is no party line on these matters because there is no agreement within the party about them. John Swinney would go one way, and Nicola Sturgeon would go the other. Thus is independence all things to all people. For folk singer Karine Polwart, writing recently in Scotland on Sunday, as for Alasdair Gray before her, it’s the chance to give birth to a socialist, eco-friendly, nuclear-free, new-age commune. But this is a vision unlikely to be much shared by SNP-funding millionaire businessman, Brian Souter, for example.

(One of the stronger themes of Margaret Curran’s speech this week was to remind us that it’s the left/right divide, not the Scotland/England or north/south divide, that really matters in British politics. What Scottish Labour have not yet understood, however, is that despite this they are going to have to put it to one side for the time being and join with the Tories in working together to defeat the separatists. This is not a case of “my enemy’s enemy is my friend”; it’s a case of recognising that the question on the ballot paper is “in or out” of the UK, not “left or right” for the UK. On the question that is before us, Labour and the Tories are on the same side, whether they like it or not.)

But, to return to the SNP, for the reasons sketched out above, instead of talking about policies, the Nationalists are reduced endlessly to talking about powers, and how they need more of them (rather than what they actually want to do with them).

The danger for the Unionist parties is that they simply follow suit, ape the Nationalists, and talk about all the powers that could be devolved to Scotland as soon as we’ve said No to independence. To some extent, it’s inevitable that the Unionist parties have to say something about this. My preference would be for them to start talking up the powers that are already devolved (see here) and for the future conversation to be a genuinely pan-UK conversation about what the Union state is for, rather than a narrowly bilateral one about Westminster v Holyrood. But it’s a trap for the Unionist parties always to be talking about powers and not to be focusing on policies. It’s a trap because this is the Nationalists’ ground. For sure, we Unionists have interesting and useful things to say about powers but, as with the voters themselves, what we’d rather be talking about are policies.

And, after a year of argument dominated by questions of process and powers, this is at last starting to happen.

The Nationalists’ fixation with powers would be fine if they were just a pressure group. But they’re not. The SNP are in power in Scotland and they have been for six long years. And, as the Government, they should be pursuing policies which they consider to be in the best interests of the Scottish people, not merely bickering about the powers which they do not (yet) have but which they want (or say they want). Two examples have come to the fore.

In his rather insipid speech to the SNP conference in Inverness the First Minister Alex Salmond undertook that in an independent Scotland the battle to eradicate child poverty would be among his top priorities. Well, that’s great. Except that he’s in power now and he has powers now to do just that, as Margaret Curran pointed out here and as the brilliant Mike Dailly explained here. The question is not what could we do to tackle child poverty after independence, but what is the SNP doing now to use its ample powers now to tackle child poverty in Scotland?

The second example concerns SNP opposition to what has wrongly but inevitably been dubbed the “bedroom tax”. This is not a tax, but a reduction in housing benefit that will apply in certain circumstances where dwellings are “under-occupied”. This policy, brought about by the Coalition UK Government, is fiercely opposed by the Labour party and has been much criticised also by the SNP. Yet what are the SNP doing about it? Housing is devolved in Scotland. There are numerous powers in the Housing (Scotland) Act 2001 which could be amended now to lessen the effect north of the border of the so-called “bedroom tax”, if that is what law-makers in Holyrood want to do. But, instead of using the Scottish Parliament’s legislative powers to address the issue, it suits SNP Ministers not to act but to use the “bedroom tax” as yet another anti-London grievance with which to stoke the flames of nationalism and independence. This is desperate stuff.

The lesson is that the more we talk about what policies we want for Scotland, the tougher it’s going to get for the Nationalists. They’d rather keep policy out of politics, and bicker only ever always about needing more powers. Damn them. Vote No.

Legislating the referendum: preliminaries

The rumour is that, after months of waiting, we are finally about to discover the SNP’s preferred date for the independence referendum. The introduction into the Scottish Parliament of the Referendum Bill is said to be imminent.

Last week saw the publication of the first of the two Bills that will deliver the referendum. This Bill, known as the Franchise Bill, sets out the rules governing who will be able to vote in the referendum.

There are few surprises in that Bill, but there are several pressing questions that are left unresolved, and that the Scottish Parliament must now explore in some detail with Ministers as the Bill goes through.

But why are two Bills necessary? The answer is that the SNP have made matters more complicated than they perhaps needed to be by insisting that the franchise for the referendum be extended to 16- and 17-year olds. Now, there are many folk in many political parties who believe that the voting age should be reduced to 16. And, while it’s not a view I happen to share, I recognise that there are some good arguments in its favour, not least that by the age of 16 boys and girls are able to join HM Armed Forces and are liable to be taxed. If it’s SNP policy for the voting age to be lowered to 16 I have no quibble with them seeking to legislate for this where it is within the competence of the Scottish Parliament to do so.

But, as Scottish Ministers recognise, doing so presents real challenges, and it is to overcome these challenges that has required us to have two Bills and not one.

There are two main challenges. The first is administrative; the second might be something more than that. The first is simply stated: in order to be able to vote in an election or a referendum anywhere in the UK, a voter first needs to be registered. We cannot just vote anywhere: we may vote only where we are registered to vote. We cannot generally choose where we vote: we may vote only where we live. The electoral register, compiled and updated annually by electoral registration officers (EROs), deals with all of this. The problem, of course, is that the register contains the details only of those who are currently entitled to vote: that is to say, those who possess the relevant citizenship and who are 18 years old or who very soon will be. Parents/guardians of persons about to attain the age of 18 may register their teenager as an “attainer”, but SNP policy is not that the franchise should be extended only to registered attainers, but to all 16- and 17-year olds, whether they are currently on the register or not.

Thus, the first challenge is to make sure that come referendum day all 16- and 17-year olds are registered to vote. Getting these boys and girls onto the register will not be particularly difficult — it can be done by canvassing households in the ordinary way — but it will take time. The Referendum Bill will not be enacted by the Scottish Parliament until the end of this year — less than 12 months out from the referendum itself (probably). This is too late for the EROs. Thus the Franchise Bill has been severed from the Referendum Bill proper, in order that it may be pushed through the Scottish Parliament more quickly. It is expected that the Franchise Bill will be enacted before the beginning of Holyrood’s summer recess.

All of this said, there are several details of the registration process that, if it is doing its job properly, the Scottish Parliament will want to scrutinise carefully as the Franchise Bill goes through. Earlier this year the UK Parliament passed the Electoral Registration and Administration Act 2013. This new law changes the way in which EROs will gather the information that goes onto the electoral register. Since the nineteenth century we’ve done this in Britain household by household. The head of the household is responsible for registering everyone living in that house who is eligible to vote. The 2013 Act reforms this, such that from now on, each individual and not each household, will be responsible for registering him- or herself. The hope is that this will lead to a more accurate register, although the fear is that, at least in the first instance, it will also lead to a much more incomplete register. Not everyone will realise that they now have to register themselves — EROs and others will do their best to inform the public, but it seems inevitable that some voters will fall off the register. When individual electoral registration replaced household registration in Northern Ireland a decade ago about 10% of voters dropped off the register. Clearly, this has the potential to have grave consequences for the legitimacy not only of the independence referendum but also of the Westminster and Holyrood elections that will follow.

So much for the administrative process. The second challenge that must be faced by the extension of the franchise to minors concerns data protection. The electoral register is a public document. It is made available (for a fee) to commercial and charitable organisations who wish to undertake large-scale mailshots, for example. Adding the names and addresses of children to the register opens up issues of data protection. Ministers will want very carefully to guard against the possibility that the names and addresses of young girls and boys, collected on an electoral register, could fall into the wrong hands. Remember: it is not only 16- and 17- years who will be registered: it is all those children who will attain their 16th birthday by the date of the referendum. This inevitably includes some children who are only 14 years old at the moment.

Very sensibly, Scottish Ministers have proposed in the Franchise Bill that instead of adding the names and addresses of minors to the current electoral register, they will instead be compiled on a new, separate Register of Young Voters (RYV). Unlike the current electoral register, the RYV will not be publicly available.

That is all well and good, but details matter — especially in an area as precious as child protection — and, critically, there are questions of detail that are left wholly unanswered by the Franchise Bill. Clearly, the two main campaign groups in the referendum (Better Together and Yes Scotland) will want access to all voters eligible to vote in the referendum, whether they are on the RYV or the current electoral register. How is that process going to be managed compatibly with issues of child and data protection? Likewise, will the political parties be granted such access? The Franchise Bill is disturbingly cryptic about this: section 9(2) of the Bill merely states as follows: the Register of Young Voters, “or an entry in it, may be disclosed to a person for the purposes of an independence referendum, but only in accordance with provision made by or under” the forthcoming Referendum Act.

This provision shows how closely tied the Franchise Bill is to the eventual Referendum Bill. It will be in the Referendum Bill — or, quite possibly, in regulations to be made at some future point under the terms of that Bill — where the details will be found as to how sensitive data about Scotland’s 14-, 15- and 16-year olds will be made available to Better Together, to Yes Scotland and, possibly, to others involved in the referendum campaign. Given the critical importance of child protection it would be quite improper for the Scottish Parliament to pass section 9(2) into law without first having studied these details extremely closely.

Constitutionally speaking the Franchise Bill and the eventual Referendum Bill will be the most important Acts passed by the Scottish Parliament since its creation in 1999. I only hope that MSPs are up to the job of scrutinising it properly.

As it stands the Franchise Bill leaves a series of open questions which the Scottish Parliament must now take up. At the top of the list are the following:

  1. What will the extension of the franchise to 16- and 17-year olds cost? Scottish Ministers have estimated that it will cost £360,000. Is this figure realistic? Is it accurate? Is this good value for money?
  2. How will electoral registration officers cope with having to make two significant changes at once: namely, moving from household to individual electoral administration AND extending the franchise to 16- and 17-year olds? What additional resource will they need? Who will supply this, and when?
  3. And what provisions are required in order to allow simultaneously for the sharing of electoral data and the protection of children? How will the circle be squared between the twin imperatives of a fair and well-run referendum, on the one hand, and the essential public good of child protection, on the other?

The SNP and devolution

In my last post I wrote that the SNP opposed moves both in the 1990s and in 2009-12 to establish, and then to enhance, devolution in Scotland.

This comment has attracted vehement denials from a small number of folk, so I thought I’d explain more fully what I meant and justify the comment, lest there be any lingering doubt about the matter.

A later post (not too much later, I hope) will deal in detail with the various u-turns of the SNP over the Bill that became the Scotland Act 2012.

Here I deal with the 1990s. Let us start with the SNP’s manifesto for the 1997 general election. This was the election, you will recall, won by a landslide by Tony Blair’s New Labour, after 18 years of Conservative rule. It was the incoming Blair Government, with Donald Dewar as Secretary of State for Scotland and Lord Irvine of Lairg as Lord Chancellor, that delivered the constitutional reform package of devolution on the one hand and human rights legislation on the other.

Did the SNP’s 1997 manifesto endorse or welcome or approve of devolution? No it did not. Did it condemn Labour’s plans for devolution? Yes it did. These are the SNP’s words, taken from page 9 of that manifesto:

New Labour’s scheme for a Scottish Assembly [sic] is fatally flawed, and will deliver no real power.

Not just flawed, you’ll note; fatally flawed. If that isn’t opposition to devolution, I don’t know what is.

And now let us look at what had happened in Scotland in the run-up to the famous 1997 election. What had happened was the establishment of the Scottish Constitutional Convention. This was supposed to be an all-party affair, involving not only professional politicians but also a broad range of Scottish civil society. It undertook a great deal of truly remarkable work, paving the way for the smooth delivery of devolution at the end of the decade. And what was the SNP’s contribution to the Scottish Constitutional Convention? Zero. They walked out of it in a great huff, displeased that what the people wanted (devolution) was on the menu but that what the people didn’t want (independence) was not. Great democrats, these Nationalists …

In 1998 I published an obscure book called Devolution and the British Constitution, long since out-of-print, a collection of essays that I edited. One of the essays was written by the late Professor Neil MacCormick, later an SNP Member of the European Parliament, and a lifelong Scottish Nationalist. MacCormick wrote in his essay in my volume that the SNP decided to boycott the Scottish Constitutional Convention “by a substantial majority”. Again, is this evidence of the SNP supporting devolution? Of course it isn’t. It’s evidence of the opposite and of the truth of the position, which is that the SNP resisted moves to build a system of devolution for Scotland within the United Kingdom. (I do not know, because I never asked him, but I always suspected that MacCormick himself thought this a mistake on the SNP’s part.)

As MacCormick goes on to explain in the same essay, the work of the Scottish Constitutional Convention (“SCC”) proved to be authoritative in shaping significant aspects of the devolution settlement for Scotland. It was the SCC that insisted that the Scottish Parliament should have powers over the public revenue (powers which it has today). It was the SCC that conceived of the voting system that is used for elections to the Scottish Parliament. And it was the SCC, later supported by the Constitution Unit think-tank, that led the way in designing the technical but vital matter of how legislative powers should be devolved in Scotland.

These contributions were — and remain — invaluable. And they were contributions made by a body that was boycotted by the SNP.

What a NO vote is a vote FOR

What will happen if Scotland votes NO to independence in the 2014 referendum?

Those who support independence often assert that the referendum is a choice between “change” and “the status quo”, implying that a NO vote means that there will be no change. Thus, if you don’t like what you’ve got now, your only option is to vote YES. But this is seriously to misrepresent the true position.

The true position is that there is no such thing as the status quo in Scottish politics. There is no such option. No-one is offering it. All the parties who are striving for a NO vote in the referendum are signed up to deliver change. Even the Conservatives’ policy is not to conserve Scotland’s constitutional position of today, but to facilitate its further development and growth.

Not that the Conservatives — or the Labour or Lib Dem parties — have been remotely successful in getting this message across! So let me try to explain.

The SNP first assumed office following the Scottish parliamentary election in 2007. Alex Salmond became First Minister as leader of the largest single party in Holyrood. The SNP did not in those days have the overall majority of seats in Holyrood that they have enjoyed since 2011 but they were, by a solitary seat, the largest single party. They ruled for four years as a minority administration.

Alarmed at the advent of Nationalist rule, the three Unionist parties in the Scottish Parliament established an all-party commission to review Scottish devolution and to make recommendations as to its further development. This review, known as the Calman Commission, reported in 2009. The thrust of its recommendations was accepted by the then Labour Government in Westminster, and when Labour lost power in 2010 their broad acceptance of Calman was not reversed by the incoming Coalition. On the contrary, Calman was embraced by the Coalition as it had been by Labour. The result was fresh legislation in Westminster to augment the powers of the Scottish Government, to enlarge the powers of the Scottish Parliament, and generally to reboot Scottish devolution. That legislation was passed last year and is called the Scotland Act 2012.

Let’s pause here to notice one thing. If you like devolution (and, indeed, if you’d like to see more of it), note who has delivered it. Labour created it in 1997-98 (with the original Scotland Act 1998) and the Tory / Lib Dem Coalition, with Labour’s support, delivered round two in 2012. The Scotland Act 2012 is not the promise of future powers. It has been enacted. It has been passed. It is the law of the land. It has been delivered. The Unionist parties — all three of them — have delivered what they promised. We have grown so used to politicians failing to deliver on their promises that it is just worth noting that this failure has not been repeated in the case of Scottish devolution.

And, now, note this. The SNP opposed both the moves to create devolution in 1997-98 and the moves to enhance it in 2009-12.

So, what does the Scotland Act 2012 do? I’ve said that it augments the powers of the Scottish Government and that it enlarges the powers of the Scottish Parliament. And so it does. Some of the changes are relatively small beer — tidying-up exercises that are important enough in their own right but will hardly set the heather alight. But some of the changes are massive. Huge new borrowing powers are conferred on Scottish Ministers, for example, in order to assist them with the planning and delivery of Scottish public policy. And unprecedented tax powers are conferred on the Scottish Parliament, representing the biggest internal shift of fiscal power away from Westminster since the Acts of Union, no less. Again, it is important to reiterate that these are not idle promises of what might be done in the future (“vote NO and then we’ll see”). All of this has already been delivered (“vote NO to preserve what’s already done”).

The new powers will significantly alter the nature of the powers which MSPs have. Thus far, their fiscal powers have been sharply focused on deciding how to spend public money, and a number of the achievements of Scottish devolution have been decisions to spend public money differently from how it is spent by Ministers in London. But, thanks to the Scotland Act 2012, MSPs will now also have powers to decide how to raise public money: that is to say, decisions over taxation. Decisions about tax are among the most sensitive that politicians have to make. The aim of the Scotland Act 2012 is that, by handing these powers to MSPs in Holyrood, the Scottish people will think ever more carefully about the sorts of folk they want to elect to the Scottish Parliament (“with power comes responsibility” and all that).

Now, the scheme of the 2012 Act is that the handing over of tax powers from MPs in Westminster to MSPs in Holyrood will be staggered. It’s not all going to happen at once in a rash fit of fiscal irresponsibility. To start with, the focus will be on income tax, as well as on one or two more minor duties such as stamp duty and landfill tax.

But — and here is the beauty of the Scotland Act 2012 — the Act provides that new taxes may be devolved to the Scottish Parliament without the need for any fresh Westminster legislation. We know, for example, that Scottish Ministers have said that they wish to be able to set their own rates of corporation tax. A lower rate (such as Ireland’s) might attract additional international investment into the Scottish economy, the SNP have argued. The SNP may or may not be right about that, but let us assume that they are correct. The Scotland Act 2012 contains the trigger that can enable the power to set rates of corporation tax to be devolved from London to Edinburgh without any further parliamentary time having to be taken up. All that needs to happen is for the Scottish Ministers to make a case to the UK Government that this needs to happen in the Scottish national interest and, as long as the UK Government is persuaded, the power can be devolved without further ado.

This is why I say that there is no such thing as the status quo in Scottish politics. Responsibility for income tax in Scotland is set to become shared for the first time between Scotland’s two governments (in Edinburgh and London). Responsibility for new and further taxes can and will be devolved to Scottish Ministers as soon as the Scottish Ministers make the case that this should be done. Devolution has always been a fluid and flexible regime. The Scotland Act 2012 makes it even more fluid and flexible.

The choice that confronts us on referendum day is a choice not between “change” and “no change” but between the SNP’s vision for change and everybody else’s. A NO vote is a vote FOR the ongoing fluidity and flexibility, development and growth of devolution. The only party that opposes this vision is the SNP.