Independence, the Scottish Parliament and the Scottish Government

A number of articles have been placed in the blogosphere or have appeared in the newspapers about whether it is lawful for the Scottish Parliament to pass an Act for the holding of a referendum within Scotland on independence. Some of them have got it right and some of them have got it wrong.

In my view the correct position is that the Scottish Parliament can pass such an Act, but the pertinent point which few seem to have spotted is that the Scottish Government does not for the most part require an Act of the Scottish Parliament in order to hold the referendum, assuming it has got the cash to pay for it within the Scottish Consolidated Fund (a prerequisite whether or not there is an Act of the Scottish Parliament authorising the referendum).

Put more shortly, the holding of a consultative referendum to elicit the views of people in Scotland seems to me to exceed neither the Scottish Government's existing powers, nor the Scottish Parliament's powers to pass a "window-dressing" Act, but the result would only be consultative and the power to sever the union rests solely with the UK Parliament. A consultative referendum is political rather than legal in nature: it exerts political pressure but not legal sanction. (Of course, inaction by the UK Parliament on the matter in the event of a referendum result in favour of independence might lead to a unilateral declaration of independence.)

This article sets out why that is the case.

The Scottish Parliament

Any amendment of the Union with Scotland Act 1706 and the Union with England Act 1707 can only be made by the UK Parliament. By virtue of section 29 of the Scotland Act 1998, the Scottish Parliament may only make laws (that is, pass Acts) within its legislative competence, and:

"(2) A provision is outside that competence so far as any of the following paragraphs apply—

(a) it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland,

(b) it relates to reserved matters,

(c) ..."

An Act amending the Articles of Union would arguably infringe paragraph (a) and certainly infringe paragraph (b), because paragraph 1 of Part 1 of Schedule 5 to the 1998 Act provides:

"1 The following aspects of the constitution are reserved matters, that is—

(a) ...,

(b) the Union of the Kingdoms of Scotland and England,

(c) the Parliament of the United Kingdom,

(d) ..."

At this point it is worth noting that the later provisions of Part 1 of the Schedule set out exceptions to the constitutional reservations (that is sets out constitutional matters which are devolved), one of which is relevant when it comes to looking next at the powers of the Scottish Executive, and is in these terms:

"2 (1) Paragraph 1 does not reserve—

(a) Her Majesty’s prerogative and other executive functions,

(b) functions exercisable by any person acting on behalf of the Crown, or

(c) any office in the Scottish Administration."

The Scottish Executive

The Scottish Executive is established by section 44 of the 1998 Act as follows:

"44 (1) There shall be a Scottish Executive, whose members shall be—

(a) the First Minister,

(b) such Ministers as the First Minister may appoint under section 47, and

(c) the Lord Advocate and the Solicitor General for Scotland.

(2) The members of the Scottish Executive are referred to collectively as the Scottish Ministers."

Since the SNP took power as the party with the most seats in the Scottish Parliament in 1997 the Executive has called itself the Scottish Government.

Sections 53 and 54 made provision for the transfer of ministerial functions from the UK government to the Scottish Government where relating to devolved matters, as follows:

"53 (1) The functions mentioned in subsection (2) shall, so far as they are exercisable within devolved competence, be exercisable by the Scottish Ministers instead of by a Minister of the Crown.

(2) Those functions are—

(a) those of Her Majesty’s prerogative and other executive functions which are exercisable on behalf of Her Majesty by a Minister of the Crown,

(b) other functions conferred on a Minister of the Crown by a prerogative instrument, and

(c) functions conferred on a Minister of the Crown by any pre-commencement enactment, but do not include any retained functions of the Lord Advocate.

54 (1) References in this Act to the exercise of a function being within or outside devolved competence are to be read in accordance with this section.

(2) ...

(3) In the case of any function other than a function of making, confirming or approving subordinate legislation, it is outside devolved competence to exercise the function (or exercise it in any way) so far as a provision of an Act of the Scottish Parliament conferring the function (or, as the case may be, conferring it so as to be exercisable in that way) would be outside the legislative competence of the Parliament."

The two devolved competencies of the Scottish Government (as executive) and the Scottish Parliament (as legislature) are therefore, as one would expect, tied together. The answer to the question "is holding a consultative referendum within devolved competence" is the same when speaking of either the Scottish Government or the Scottish Parliament.

So does the Scottish Government require new law, namely an Act of the Scottish Parliament, in order to hold the referendum? It seems to me that it does not because as mentioned above Scottish Ministers have acquired from UK ministers all the prerogative and other natural powers of the Crown, as well as statutory powers, with respect to matters within devolved competence. I covered earlier what the natural powers of the Crown comprise, but they would it seems to me include the power to hold a consultative referendum, assuming the money for it is voted in one of the annual Appropriation Acts.

The only legal requirement for obtaining legislative backing that I can forsee would arise if the Scottish Government considers it needs additional powers to compel relevant local authorities to make their premises and staff available for the count and to appoint returning officers. However, that is not to say that an Act of the Scottish Parliament may not be useful as political window dressing: it would show that the proposal has the consent of the majority of elected members as well as of the executive.

After the referendum

As mentioned above, the reason why I conclude that the holding of a consultative referendum is within devolved competence is that it is only consultative and has no direct legal sanction or effect. The wording proposed by the Scottish Government for the consultative referendum puts the question, whether the Scottish Government should negotiate a treaty with the UK government for Scotland to become an independent state.

One question arising from this is whether, after the negotiations which would follow a successful consultative referendum, a further referendum is required within Scotland approving the terms before the union is severed. The answer to this is that legally speaking it is entirely a matter for the UK Parliament when making the legislation repealing the Acts of Union. The Scottish Government says not, but the only influence that it could exercise on this is political and rhetorical. It seems doubtful that it would attempt a unilateral declaration of independence at this point, but that would be its only recourse if the UK government and UK Parliament were to press for a further post-negotiation referendum which the Scottish Government feared it might lose.

Of course, the relationships between England and Scotland may have become so damaged by the time the first referendum has passed and negotiations completed that the union may be beyond repair anyway, so making the question of a second referendum relatively insubstantial; and Alex Salmond would certainly be doing all he could to help the process of disrepair along. We do not yet know how far the patience of people in the remainder of the UK can be tested.

The aftermath

A disappointment over the AV vote to be sure, but still some surprising outcomes from Thursday's elections.

First, the Tories increased the number of their councillors in England and the number of councils which they now control, which given that they are a party in government and already started from quite a high threshold is remarkable.

Even more remarkable is the result in Scotland.

The result in Scotland is principally the fault of the Scottish Labour party. In the last 20 years or so there has been an only partly concealed anti-Englishness about the politics they have espoused, to the point where they became blinded by their own propaganda, and this has now come home to roost. They spent their time running a campaign against "London" and the Tories, and then while busy pulling this straw man apart failed to notice the real enemy at their gates.

This raises a number of strategic dilemmas for the Labour party, both in Scotland and in the UK as a whole. The Tory-English bogeyman may work for Labour in UK elections in Scotland but it plainly doesn't work in Scottish elections, and they are going to have to come up with a new story which is more convincing than "vote SNP and you get independence". As it happens, whilst the odds are against Alex Salmond succeeding at a referendum, he is a very canny operator and success cannot be counted out. It will now be for him to start playing the grievance card in the period leading up to the referendum (which given a majority in the Scottish Parliament he is well placed to do), and hope to do so rather better than the Labour party's pitiful attempts in the past.

The referendum, if and when it comes, in my view will have a significant effect in England as well as in Scotland. It is difficult to predict how people in England will react to the sound and fury of the referendum going on to the north of them given that some of it will be about them. It is difficult to discuss Scotland's role in the Union without also discussing England's role in it, and Labour and the other unionist parties need to give thought to how arguments will play south of the border as well as in Scotland itself. More particularly, the UK Labour party are going to have to provide a new narrative for voters in England if they are going to recover their position there: otherwise those voters may want to remind them that they are no more to be taken for granted than are those in Scotland.

Altogether, we have a very interesting 4 or 5 years ahead of us; and the strategic headaches for Milliband Junior during that period are probably more intractable than the more transient ones at present bearing down on Nick Clegg.

A dismal campaign

I have changed my mind during the run-in to the referendum today on introducing single transferable votes in single vacancy constituencies ("alternative voting"). This was not thanks to any arguments put forward by the Yes and No campaigns, but on my own reading, and some reflection on it.

What a dismal campaign it has been, full of half truths and froth. The Yes campaign began with the idea that they were going to win, and thought it only necessary to cement this by buying into the celebrity culture and parading a few half-knowns on their publicity material with platitudes that AV would modernise our politics. The No campaign were considerably more focused at the outset and just fought dirty. I feel a little sorry for the treatment of Nick Clegg in the admittedly well designed material put out recently by the No campaign which did, at last, alight on the main argument against AV, namely that it is more likely to give parties an exit route from their manifesto commitments.

That it should be Chris Huhne who raised this personal attack on Nick Clegg at cabinet on Tuesday adds particularly enjoyable irony, as he has been taking full advantage of Clegg's difficulties by positioning himself to displace him from the leadership of the party and appears already to have acquired and stored away the stiletto which will no doubt in due course be inserted between his colleague's shoulder blades. I have no particular love of the Liberal Party, who seem to me to be often composed of political chancers who are quite happy to hold as many incompatible views concurrently as they feel is necessary to obtain a vote: but nonetheless the way in which Nick Clegg's willingness to go into coalition, as it appears the country wanted after the last election, has been used against him in the campaign does seem somewhat unfair.

Amongst the ludicrous arguments the No campaign have come up with, and some people appear to have been persuaded by, is that AV infringes the principle of one person one vote. This is bogus: instead, AV enables a vote to be transferred from an unsuccessful candidate to one still in the running. It is in effect a more efficient (or at least cheaper) version of a run-off, where voters in an election get a second chance to choose between remaining candidates once the outriders are eliminated. This is indeed the system that the Tory party apply in choosing their leader: if the Tory leadership had been decided on the basis of first preference votes, David Davis would now be Prime Minister - David Cameron only won by picking up second preference votes in the second round. A more plausible argument against AV is that it treats second and third preferences (and so on) as being as valuable as first preferences, but that is true of any run-off system.

If no candidate has an overall majority of first preference votes, it seems to me to be reasonable that the successful candidate should be the least unsatisfactory one, and that is AV's main claim in its favour. It does mean that any MP will be more mindful of the views of all the voters in her constituency and not just concerned with pleasing her core vote as at present.

For election geeks, one last comment: I have read material claiming that AV and single transferable voting are different things. That is not the case. AV is a form of single transferable voting, albeit single transferable voting applied to single vacancy elections rather than multiple vacancy elections - the distinguishing feature of single vacancy STV (that is, AV) is that only the bottom candidates' votes are redistributed on elimination, rather than also those of any initial winning candidates: in single vacancy STV, the count is over once a candidate beats the 50% hurdle. One way of implementing proportional representation (which AV is not) is to apply STV to multi-vacancy constituencies; but there are other well known ways of implementing PR.

Inflation and hypocrisy

In the budget today, the Chancellor announced that inflation this year is expected to be between 4 and 5%, and that it is hoped that it may come down to around 2.5% next year. Even if you believe the Chancellor (and I don't), and the prediction for 2012 is achieved, it is still above the level requiring Mervyn King to report to explain himself.

The Tory party like to portray themselves as the party of those who are self-reliant, who want to contribute to society rather than only take from it, and who want to make the most of themselves. Self-reliance means saving for difficult times. This includes making provision for old age. But the Chancellor's willingness to inflate himself out of the national debt is confiscatory with respect to just those people. Ordinary savings offer rates of interest which are way below the rate of inflation, and what meagre income that is received, even though much below the amount necessary to match inflation, is still taxed. Similarly, capital gains on savings investments are taxed even though, because of inflation, the gains may be entirely illusory: this is because the Chancellor is not prepared to index capital gains against inflation.

The Tories were supposed to raise the inheritance tax threshold. They haven't done it. They were supposed to replace the Barnett formula with a needs based grant distribution system for the UK. They haven't done it. On the last of those, this was also matched a Liberal Democrat manifesto commitment, so there is no excuse.

As it happens, for reasons explained in earlier articles in this blog, I do not support replacing the Barnett formula. The Barnett formula has the great advantage that it operates, so to speak, without human input: find out how much is voted in the annual Appropriation Acts for functions relating to England in any year on matters devolved elsewhere, and you then know exactly how much is to go to Scotland, Wales and Northern Ireland in that year. On the other hand, a needs based formula will be subject to annual arguments about relative assessments of need (which over time is likely to act to the disadvantage of those in England, because if the UK government acts neutrally as it ought to, there is no one to stand up for their interests).

Equally I do not support raising the inheritance tax threshold: I see no reason why children should expect to inherit their parents' wealth as a matter of right.

The point arising from this is not that the Tories' policies are necessarily wrong (they are on inflation, not on the others), but that the Tories are untrustworthy. They knew the economic condition of the country perfectly well at the time of the last election. If they didn't think something could be afforded then they should not have promised it. The Labour party, if in government, would probably have followed all the same steps on these issues. However, they would not have (and did not) promise anything different.

To make matters worse, some Tory policies seem to me to be bound to fail. The NHS reforms if implemented as intended will lead to unaccountable decision making by people it will be impossible even to identify - but it is doubtful those reforms are implementable. The Big Society as explained so far seems to have turned out to be a means of confiscating dormant bank accounts in England to make up for shortfalls in local government spending. I think that the policy on student fees for higher education is wrong and I think the Tories misunderstand the resentment at grass-roots level about the unfairness caused by only those students living in England having to pay the higher fees. The single policy which may have beneficial impacts and go some way to meeting manifesto commitments is the Localism Bill (in which I think there are some genuinely good things).

If the Tories end up with a reputation of being untrustworthy, as it seems to me they deserve, this will store up trouble for them for the future. The plan may be that as the next election approaches a pre-election budget will issue enough goodies to the Tories' natural supporters as to cause them to overlook their failure to meet their past commitments. That calculation may be wrong. Their natural voting supporters may not be fooled twice, and if AV were to arrive UKIP may well steal part of the Tories' lunch box. (Again, to avoid misunderstanding, readers of this blog will know I am opposed to UKIP policies on the European Union, but they are a threat to the Tories.)

Libya

I have been listening to the debate in Parliament on Libya this afternoon and one could almost have gone back to debates of 150 years ago. There are echoes here of France and Britain's past involvements in Africa. Neither country could it appears resist the opportunity to appear on the world stage one last time. Given that both are now much less important (and capable) militarily than they used to be, it felt quite odd. And given that the need to reduce the deficit has been the reason given for many of David Cameron's government's domestic policies, what exempts this latest appearance on the world stage from the same deficit-led restrictions? No one in the debate in the Commons appears to question the assumption that Britain's tax payers must play a leading role in events in Libya.

At least this venture is probably legal so far (on some reasonable definitions of "legal"), but I have other practical misgivings. These stem first from my gut feeling that no one has a monopoly on morality (why Libya, which at least makes some attempt to promote its own version of equality so far as gender is concerned, and not, say, Saudi Arabia or Bahrain which are just as dictatorial and whose police states are equally without democratic credentials?); secondly, from my suspicion that the UN mandate to protect civilians is bound to lead to "feature creep" and is even now becoming seen as a mandate for regime change; thirdly, from my feeling that transitions to democracy have to come from within rather than from the outside; and fourthly, from doubts that there is a properly formed strategic view about the long term.

On the first and second points, Gadaffi probably is a criminal and probably did authorise implicitly or explicitly the bombing of the aircraft which crashed at Lockerbie. He probably did implicitly or explicitly lay down the ground rules which led later to the death of PC Yvonne Fletcher. He has very probably been responsible for many other deaths. But these are not the bases for the current intervention, and were they to be there would be an even stronger stench of hypocrisy given Tony Blair's and Gordon Brown's subsequent cosying up to him.

So, what is the sub-text to this? Is it to see that the provisional government at Benghazi takes over the mantle of government in Libya, and if so to what place will that lead and by what means have Britain and France acquired the right to decide that (it certainly falls outside the UN mandate)? What if the provisional government does not succeed militarily and the UN mandate to protect civilians just leads to a stalemate and a long drawn out civil war? Are there to be elections, and if so what will secure them and what will follow them? At what point will David Cameron think that the objectives have been achieved, and what will he do if it appears that an Islamist government may succeed Gadaffi: does he think that in that eventuality he has the right to intervene further to prevent that and, if so, does he think he will succeed, and what happens if the UN just cuts him off at the knees at that point?

And what happens if the UK's current floating military capability of one and a half aircraft carriers, two months' supply of paper darts and a few assorted support warships isn't enough to deal with the problem?

If one is optimistic, maybe the provisional government in Benghazi might quickly succeed in conquering Gadaffi's forces and Libya might end with a national government that is uncorrupt, respects the human rights of its citizens and makes some moves to democracy. A successful operation by Britain and France together may lead to the emergence of workable foreign policy structures within the European Union and the emergence of a military establishment to serve it. Any of those optimistic hopes for the Libyan situation could fail to eventuate, which could in turn derail such optimistic hopes for the European Union.

Census forms

Like many others I have just received my census form to complete, or rather to keep until I know my circumstances on 27 March. It is a while since I last filled in one of these, and maybe my memory of the last occasion is clouded, but it seems quite intrusive.

What to make of the ethnicity questions? If you think of yourself as "White" you have four options (if you are in England at any rate, I have no idea what happens in other parts of the UK). These are (1) "English/Welsh/Scottish/Northern Irish/British", (2) "Irish", (3) "Gypsy or Irish Traveller" and (4) "Any other ...".

Leaving aside the point that as I last understood it England, Wales and Scotland are all in Great Britain (Northern Ireland technically is not) so the juxtaposition between the two seems somewhat odd, what are these descriptions supposed to mean in terms of ethnicity? These are after all ethnicity-specific questions, as there is a separate question about how you would describe your "national identity" which includes similar choices.

The easy option, the first one, seems a bit of a cop out and lacking in romance. Family folklore has it that as well as coming from the then indigenous population in Sussex, we have Huguenot input (from which the family name derived) and also some North African (Berber) pirates who happened to land and settle in the south-west of the country after one raid too many. It is said that everyone has an Irish great grandmother and that is probably also the case of me, and it is certainly true of my children via my wife.

Like 90% of the rest of the population, to fulfil my duty to truth and completeness to Her Majesty's Government I will probably have to put an entry under "Any other" as "Mongrel". Faced with these intrusive questions, I encourage others to do the same.

Come to think of it, a new "English Mongrel Party" sounds quite attractive, as a kind of ethnically inclusive party that most other UK parties seem to lack, with their post-imperial echoes. We could have St George as our patron saint, one of legends surrounding which is that he came from North Africa and therefore might be a distant relative, although if he existed at all I accept that it is more likely that he came from Palestine but, hey, there is probably some of that in me and most others as well. St George is suitably ambiguous on ethnicity.

At any rate, Archbishop Sentamu has been banging on about it again and he has always seemed quite a cool dude to me, and refreshingly unpredictable.

Law making for Wales

So people in Wales have voted for the Welsh Assembly to have law making powers under Part 4 of the Government of Wales Act 2006 similar to those of the Scottish Parliament, and the UK follows its rudderless voyage to ever greater fragmentation.

With Wales, Scotland and Northern Ireland now with their own parliaments, it probably makes it impossible for there to be another Welsh or Scottish Prime Minister until the position of England is dealt with (there has never been a Prime Minister from Northern Ireland): although how much of that is the lingering memories of Gordon Brown, which will fade over time, or a permanent feature, could possibly be argued about (I suspect it is a permanent feature). It also makes it inevitable that the UK Parliament will become ever more England-centric, given that that is now the geographical unit with which the large majority of its business will be concerned, and their is little point in some of the politicians in the devolved nations making the snide remarks about that which have been emanating from those such as Carwyn Jones, who is unfortunately not a Welsh leader in the same league as Rhodri Morgan. The people in each of those devolved nations have after all voted for the arrangements now in place.

It also throws into focus the self-serving arguments of the Labour Party last month, that people in Wales should have greater representation in the UK Parliament per head than people in England, notwithstanding that around 80% of the legislation in Parliament will in the future relate to England only.

As a unionist I have to say I fear for the future of the United Kingdom. We have a ramshackle constitution, one of the main foundations of which now appears to be the maintenance of structures which will enable those in the current main UK parties to hang on to power in England, even if they have now lost power on domestic matters elsewhere. There seems to be no blueprint for the future, no plan as to where this is all leading us. Devolution may be a process and not an event, but there needs to be some common understanding amongst those in the UK about where it is taking us.

A propos of which, where is Nick Clegg's commission on the West Lothian Question, which was originally intended to be established last autumn? Well, at least the commission, if it is set up, will now have a position with respect to Wales to work on.

Localism

The government's Localism Bill was introduced earlier this week and is to receive its Second Reading in the House of Commons shortly after the Christmas recess on 17 January. It is a big Bill and this article is not going to deal with all of it (in particular it is not going to deal with most planning issues). Instead it just gives an impression or overview.

Although showing signs of having been put together at speed (the explanatory notes only became available yesterday) Eric Pickles clearly has retained clout within the cabinet, as he has resisted the pressure that would have arisen within his department for them to be watered down. Some of the provisions are pleasingly radical, and others less so. This is the kind of Bill that can only be introduced comfortably in the first year or two of office.

Powers of local authorities

In my article on the Royal Prerogative I explored the difference between the powers of a natural person on the one hand, which includes the Crown, which in summary allow an ordinary person or the government to do anything not explicitly or impliedly prohibited by the common law or statutory provision, and the powers of a creature of statute such as local authorities on the other hand, which are limited to doing the things which statutory provision has authorised them to do (whether explicitly or implicitly).

Under the Bill, local authorities will be given power "to do anything that individuals generally may do": they would therefore acquire at law similar powers to those of the Crown.

This is subject to certain caveats, including one relating to "overlapping" powers. If the local authority has power to do something apart from these new powers, the exercise of which is subject to conditions, then the new power cannot be exercised except in accordance with those conditions. In that respect, it is a re-enactment of the rule applying to the exercise of the natural powers of the Crown set out in Attorney General v De Keyser's Royal Hotel [1920] AC 508 and explored in Shrewsbury and Atcham Borough Council and Others) v Secretary of State for Communities and Local Government [2008] EWCA Civ 148.

This is a very substantial new power for local authorities. It makes them first-rank public authorities on a par constitutionally with government departments.

However, just as the broad powers of the Crown are in practice limited by the requirement that government departments may only spend what is appropriated to them from the consolidated fund by an Appropriation Act or some other consolidated fund Act, so local authorities can only spend what they are given or can raise, and this brings us to referenda.

Referenda

Local authorities, and their cousins the police and fire authorities, will still be subject to government control of expenditure, but in a marginally more hands-off way than in the past. Governments may still set council tax ceilings, but these can be exceeded by the local authority on a referendum of all registered voters in the authority's area.

The key issue here is the extent to which the government will set unnaturally low ceilings with a view to driving down local authority spending through local voter reluctance. The fact that, under the Bill, expenditure which exceeds the ceiling is described as "excessive" expenditure rather than a more neutral expression such as "locally determined" expenditure (or even "supplementary" expenditure) perhaps gives the game away here: that the driver is expenditure reduction rather than an interesting experiment in practical local democracy.

Referenda also feature in another proposal. Any local elector can petition the local authority for a local referendum to be held on anything relevant to its functions, provided that it is signed by 5% of the local electorate (or a higher precentage stipulated by the Secretary of State) or submitted by a councillor. If the local authority then decides that the referendum should be held, it must take place between two and twelve months after the receipt of the petition. The local authority does not have to implement the result of the referendum (it is not binding), but it must consider it and give its reasons for the decision it makes in response to the referendum.

There is a further referendum-based idea, under which development to be carried out for, say, rural housing and community facilities can be carried out, without planning permission from the local authority, if it is mandated by a vote of more than 50% of the local residents on a referendum.

Abolition of the Infrastructure Planning Commission

I was never a great fan of the Infrastructure Planning Commission. From time to time the issue is raised by those lawyers who are not strong on the need for democratic accountability in decision making within a law-based society, whether the pre-IPC regime was consistent with article 6 of the European Convention on Human Rights. Article 6 provides that "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

When the ECHR was drawn up, the original drafters would I suspect have been surprised at the idea that this applied to planning decisions, but the jurisprudence of the European Court has held that the right to develop land as an attribute of the ownership of that land falls within the category of a civil right. Lawyers being lawyers, English jurisprudence has also managed to persuade itself that because Secretaries of State set national planning policy, they cannot of themselves be an "independent and impartial tribunal" in determining how their policy applies to particular cases. (That is in my view a serious logical error, but that issue is now beyond recall.)

The early Labour government was rather more sound about this than its successors, and they stood their ground in a series of cases comprised in R v Secretary of State for the Environment, Transport and the Regions ex p Holding & Barnes plc [2001] UKHL 23 and the other conjoined appeals known collectively as "the Alconbury appeals". Their Lordships came to the rescue against the legal technocrats, drawing on other jurisprudence of the European Court to the effect that in determining whether the requirements of article 6 of the Convention are met it is necessary to look at the whole of the process, and that it is not necessary that a court or some other independent body should be available to consider the matter afresh by way of a rehearing on an appeal on the merits. It was held that the then current principles of judicial review, coupled with the rules of natural justice as applying to the fact-finding processes of public inquiry, were sufficient to meet the requirements of the Convention.

Some of the gut thinking behind this view is illustrated in the words of Lord Nolan who said -

"In the relatively small and populous island which we occupy, the decisions made by the Secretary of State will often have acute social, economic and environmental implications. A degree of central control is essential to the orderly use and development of town and country planning ... to substitute for the Secretary of State an independent and impartial body with no central electoral accountability would not only be a recipe for chaos: it would be profoundly undemocratic".

Similarly, Lord Clyde said –

"One possible solution which is proposed is that in the cases where at present the Secretary of State is himself the decision maker, the cases for the most part which are likely to give rise to issues of widespread or even national concern, which may well have a wide impact on the lives of many and involve major issues of policy, the decision should be removed from the Minister, who is answerable to Parliament, to an independent body, answerable to no-one. That would be a somewhat startling proposition and it would be surprising if the convention which is rooted in the ideas of democracy and the rule of law should lead to such a result".

I was therefore somewhat surprised and disappointed when the later Gordon Brown administration set up just such a body to determine major infrastructure projects in England.

I am glad to say that the Tory government is of the Nolan/Clyde persuasion. Where you have a decision for, say, the major redevelopment of a town centre which will impact the lives of its inhabitants for the next 30 or 40 years, or a major new high speed railway line likely to be used for many years ahead, in my view it is quite wrong that such decisions should be taken under some dry forensic process by a body of people not answerable to the voter, or to anyone else for that matter. So full marks to Pickles on this one.

Other matters

There are numerous other provisions in the Bill, including some dealing with the right of local groups to take over defunct community assets, the security of tenure of public sector tenants, the abolition of regional housing targets and the abolition of home information packs (HIPs) on house sales. One remaining initiative which may have a beneficial impact is the proposal for the introduction of executive mayors, on the Mayor of London model (albeit with less powers), for the cities of Birmingham, Bradford, Bristol, Coventry, Leeds, Leicester, Liverpool, Manchester, Newcastle upon Tyne, Nottingham, Sheffield and Wakefield. There would be referenda on this in each of the cities concerned in 2012.

I hope these executive mayor referenda succeed. Such a collection of "English Barons" may have a moderating effect on subsequent attempts to claw back some of this local divesting of power.

As to what I would like to see in the future? As mentioned above, I would like to see local council tax accountability used not just as a means of driving down expenditure, with pejorative references to excessive expenditure measured against government targets, but have this transmuted into a form of local tax devolution. I would also like to see the powers of the new directly-elected mayors extended so as to be comparable to, and indeed go beyond, those currently held by the Mayor of London. However, that may be for the reforming zeal of a different government before the deadening hand of a number of years in office has taken its hold. The problem with this hopeful thinking is that such devolution in England is likely to be beyond the stomach of any incoming Labour government, so I am likely to be disappointed.

The separate government proposals for elected Police Commissioners (not in the Bill) contains within it a similar idea: bringing local accountability to decision making affecting areas of life in a community not at present adequately subject to such accountability. (The proposition put forward by some present and former chief constables, that the way law breaking is dealt with in a local community is a special operational matter that only a trained chief constable acting in accordance with his professional training can decide, is in my view wrong.)

Student debt

It is sad when the only way it is possible to get politicians to respond to the concerns of ordinary people is to have a good rampage; but sadly, that is how disconnected we and they are. Our Labour politicians would no doubt have done roughly the same if they had managed to keep in power: they set up the Browne committee review in the first place, and a graduate tax is the same beast wearing different clothing.

Two points. First, after extensive research in pubs of my acquaintance I have yet to find anyone who thinks it is a good idea to saddle graduating students with between £30,000 and £50,000 of debt, before they have even got their foot on the first rung of the ladder. Camilla may not like paint being thrown at her car; but most families don't like their young adults being treated this way either. And this is before they have to battle with trying to buy their first house when they do find a job.

Secondly, compare the wall-to-wall coverage on BBC news of the demonstrations with the amount of coverage given to the issues at stake.

Anyway, here is some music for the moment .

The West Lothian question rumbles on

I watched Question Time last night. It was the usual mix of politicians following their party lines (including Nadine Dorries tying herself up in knots) and John Sargeant arguing an implausible apologia for the BBC, to the effect that it would have been improper to delay the showing of the Panorama programme about FIFA until after the decision on the venue for the 2018 World Cup. Possibly one or two people might believe that.

The thing which drew my attention was the extent to which people are obviously getting concerned about increased higher education fees for students coming from England. John Sargeant was good on this (he said what he thought when not having to stand up for his former employer), pointing out that having a well educated citizenry is the key to future success, and that this country has managed to afford to educate its young people in the past when it was poorer and there seems no reason why it should not do so in the future. It is just a matter of priorities.

What interested me is the wedge this seems to be beginning to drive between people in England and Scotland. Outwardly it is unconscionable that students in England should pay large sums of money for their higher education when those in Scotland will not. A Scot and a person from England with similar qualifications may sit in adjacent desks at the same place of work in future, doing the same work at the same rates of pay, with one having to pay deductions against her income once she finds employment for as much as 20 years into the future, and one not. The Liberal Democrat proposals for a graduate tax do not seem any improvement on that: it is the same inequality in a different form, and indeed would be a form of double or super-regressive taxation - if it is true that graduates in general earn more, they pay more anyway through the existing income tax system

However this difference between England and Scotland, and now Wales also, is what devolved decision making is about. The overarching point on this is that every pound the Scottish government pays for higher education is a pound less that it can spend on something else within its devolved competence. There seems no reason, applying devolution logic, why this should cause friction within the UK, but the practical workings of devolution in this case, no doubt aided by the rantings of the Daily Mail, is doing so because the differential policy-making on higher education is, at the end of it all, simply unfair. And unfairness breeds resentment. The SNP must be loving it.

During the Question Time programme, Ken Livingston brought up the West Lothian question on this. Like it or not, it is a fact that student fees in England were only introduced in 2004 on the votes of Labour MPs for Scottish constituencies (and even worse, on a vote taken after the Scottish Labour party had decided against higher education fees for students in Scotland). Tom Harris MP, member for Glasgow South, has apparently taken exception to this, describing it as "anti-Scottish". Perhaps he has a guilty conscience as one of those responsible in 2004, but if not he should have. He has gone on to say that the West Lothian question has no answer and the Labour party should not get involved in considering it.

If it is really the case that there is no answer to the West Lothian question, then the Labour party in general and Tom Harris in particular should never have proceeded with devolution in the first place. If that is really the case, it is only a matter of time before the the current constitutional arrangements collapse. Let us image that Labour had managed to stitch together a deal with the Liberal Democrats, SNP and Plaid Cymru to form a government after the last election: it would have been wholly reliant on its Scottish and Welsh members to enact its legislation affecting England only on matters devolved elsewhere, such as education. The current angst over fees for English students would surely be dangerously magnified if the current proposed disparities for students from England were to have been imposed by MPs for Scottish and Welsh constituencies not subject to the additional fees. Arguments that there are knock-on effects on Scotland and Wales via the Barnett formula, while that formula lasts (it is due for replacement), would have cut little ice.

There are answers to the West Lothian Question, some of which I explore here, here, here and here . The Tory pledge to deal with it was, as part of the Coalition agreement, shunted to a Commission to be set up by the Deputy Prime Minister, Nick Clegg. He was supposed to have set one up during the Autumn, but will now apparently publish proposals for one "by Christmas". It would be foolish for the Labour party to follow Tom Harris's advice and fail to engage, if and when Nick Clegg can manage to muster the energy to proceed with it. They created the current devolution arrangements, and they must help to resolve the problems it has created.