The make-up of the Commission on the West Lothian Question

The government announced yesterday the composition and terms of reference of the Commission on the West Lothian Question.

When Mark Harper made his statement to the House on 8th September last year in attempting to kill off Harriett Baldwin's Legislation (Territorial Extent) Bill, he explained the Commission's remit in these terms: "The Government are clear that the commission's primary task should be to examine how this House and Parliament as a whole can deal most effectively with business that affects England wholly or primarily, when at the same time similar matters in some or all of Scotland, Wales and Northern Ireland are lawfully and democratically the responsibility of the separate Parliament or Assemblies."

The terms of reference for the Commission announced yesterday are slightly different, namely "To consider how the House of Commons might deal with legislation which affects only part of the United Kingdom, following the devolution of certain legislative powers to the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales." The earlier proposed limitation to "effectiveness" would have made the the Commission's task pointless, because if efficiency were the only criterion, to the exclusion of other things like fairness and basic common sense, things could be left as they are.

The membership of the Commission is quite heartening. It includes both the current but shortly-to-retire First Parliamentary Counsel, Sir Stephen Laws, and his predecessor, Sir Geoffrey Bowman. First Parliamentary Counsel heads the Office of the Parliamentary Counsel, which is the office which drafts public Bills and is composed of clever and able individuals. I have long thought that those who are opposed to solving the West Lothian Question have over-egged the difficulties of establishing a drafting convention for the division of Bills into different Parts for their different territorial extents, and having two former heads of that Office in the Commission will I hope put that to rest at least. It was also good to see that Professor Victor Bogdanor is not a member of the Commission, as one of those prone to such over-egging.

As readers of this blog will also know, I think requiring a double majority at 3rd reading for any Part of a Bill with limited extent, one for all (UK-wide) members and one for those representing the actual extent, is a viable solution to the WLQ, and such a double majority requirement would meet the objection of those who argue that the whole of the UK has an interest in much England-only legislation via the Barnett formula (an argument which I think is anyway greatly overstated by its proponents, for reasons given in other articles in this blog). So far as concerns the argument that governments with slim majorities depending on Scottish members could not govern in England, it would be possible to borrow from practice with respect to the House of Lords, so that the absence of a territorial majority could, say, delay a Bill for a Parliamentary session (a year) but not defeat it: but better still, and as startling an idea as it might be, UK governments could actually try negotiation and compromise on those occasions when they lack a territorial majority.

One problem I foresee is the late reporting time of the Commission, which is to be "next session", that is 2013. Constitutional issues are moving so fast at present, that I would have liked to see it report by the end of this session.

The other problem is the limited nature of the Commission's remit. A double-majority solution of the kind I have outlined seems the most likely outcome, but it is one that will be overtaken by events should Scotland move to "devolution max" following a referendum in 2014. If and when Scotland becomes autonomous on all matters except defence and foreign affairs, and in particular once it can decide its own taxation, it would be unacceptable for Scottish members to decide taxes, such as income tax, in the remainder of the UK to which their constituents could not be subject; and the kind of voting finessing to which I have referred could not adequately deal with this. But I guess one can only deal with the position which pertains at any one time.

Binding referenda

On reviewing coverage of yesterday's announcement by Michael Moore about the the proposed referendum on Scottish independence, there seems to be a view propagating that a referendum carried out in accordance with his proposals, by means of an order under section 30 of the Scotland Act 1998, would be "binding" in a way that a referendum carried out by the Scottish government without such an order would not, so that the section 30 order approach is to be preferred.

In my view that is wrong. Neither approach would be "binding" in any legal sense; and each would be "binding" in the real world of politics.

It is possible to have legally binding referenda. To be legally binding, once the referendum result is known there has to be an answer to the question "What next?" which has ascertainable legal consequences which are capable (if need be) of enforcement in a court of law. Last year's referendum on whether the Welsh Assembly should obtain legislative powers under Part 4 of the Government of Wales Act 2006, similar to those of the Scottish parliament, was binding for example. By contrast the pre-legislative referendum on the Scottish parliament held in 1997 was not. The successful outcome in that referendum placed a political commitment on the incoming Labour government to consult on and prepare legislation for such a parliament, which it duly did in the form of the Scotland Act 1998. It conferred a political mandate, and imposed a political duty, to prepare something (a Bill) which would if and when enacted have a legal effect.

The same is true of the proposed referendum on independence. If successful it would impose a political but not legal commitment on the UK government to negotiate terms for independence with the Scottish government. The terms, once negotiated, would require a further enactment by the UK parliament dissolving the union in accordance with the agreed terms. The sanction, were the UK government to fail to enter into such negotiations, would be for the Scottish government to make a unilateral declaration of independence.

A section 30 order does not therefore make the referendum any more or less binding. What an order would do is remove any doubt about whether the Scottish parliament and government are within their powers to hold this (politically but not legally binding) referendum.

Michael Moore's statement

Michael Moore made his statement to the House of Commons today. He stated that the coalition government thinks that the holding of a consultative referendum on independence is outside the powers of the Scottish government and parliament. The UK government proposes to make it within those powers by means of an order under section 30 of the Scotland Act 1998, but on its (the coalition government's) own terms. These terms relate both to the question to be put (and it would be a single Yes or No question not encompassing "devolution max" and avoiding ambiguous wording on the Quebec model), and also timing ("sooner rather than later").

It appears that the phony war is now over, but I do not intend in this article to deal other than in passing with the wisdom or otherwise of the course the UK government has adopted. On the plus side, with radio silence from the Labour party who hold the key to all this, something is being done at last by those who don't, namely the Tories. Ed Milliband has let the country down, with an absence of any leadership, and indeed of any signs of life at all. It was disappointing also that Margaret Curran, Shadow Secretary of State for Scotland, used the statement in the House as an opportunity for points scoring, but that probably reflects Ed Milliband's lack of any discernible control of events. On the minus side is the extent to which this will feed those north of the border who gravitate to feelings of grievance. However, Cameron has now committed to playing out his hand for better or for worse and it may well turn out for the better. Does this mark Salmond's Stalingrad, or a bright new dawn? Voters in Scotland will in due course pronounce.

I covered the legal issue in Independence, the Scottish Parliament and the Scottish Government. The UK government's statement comes down to the question of whether legislation by the Scottish parliament concerning a consultative referendum can be said to "relate to reserved matters". My view is that the words "relate to" are to be looked at in terms of legal agency. Since a consultative referendum has no legal effect - it merely obtains the views of the people in Scotland - in my view it does not. The UK government's legal advisers think otherwise.

In my view the UK government's view leads to absurdities. The powers of the Scottish parliament are congruent with those of the Scottish government. Everything that a Scottish or UK government does has to be permitted by law. It so happens that a very large proportion of the things either government does is not based on statutory powers but on the powers of the Crown as a natural person or under its prerogative, which as I explained in my article are transferred to Scottish Ministers in relation to devolved matters. If we take the view that consultative referenda on independence by the Scottish government are unlawful, then so must be consultative exercises on devolution itself, which is equally a reserved matter in the sense that the Scottish parliament has no power to pass an enactment transferring new powers, as presently reserved, from the UK parliament to itself. In theory at least, using Scottish civil servants' time to respond to the proposals of the Calman Commission (rather than using the Scottish parliament's constituent parties' own resources) was also unlawful. It would, in theory at least, be improper for the Scottish parliament to debate devolution and Scotland's position within the UK at all. Legal propositions of the government's kind are best tested against the light cast by these stress cases.

It is however equally absurd for the Scottish government to claim as they do that they have a "mandate" from the electorate in Scotland which the UK government cannot oppose, unless the government of an independent Scotland intends to operate above the law (that is, in a way otherwise known as tyranny). Either the SNP believes in constitutional government or it believes in revolutionary imperatives which put it outside bourgeouis considerations such as legal process. The proper course now is for the Scottish government to explain why the UK government have got the law wrong. They could apply to court for a declaratory judgement, but it seems highly unlikely they will do so.