Dear Smith Commission,
The problem you face is to meet the expectations of the Scottish people for full fiscal autonomy and the UK Parliament at Westminster is, it can not work without a massive legal and constitutional fudge which will be wide open to legal challenge in both Scotland and England.
Let us say Mr Cameron pushes through a bill for the UK Parliament to have English votes for English Bills.
The first constitutional hurdle is by doing so he will end the 1707 Treaty of Union because all bills which come before the UK Parliament can be voted on by any constituency MP, elected to the UK Parliament. We do not elect MP’s to represent ‘Scotland’- as such, we elect MP’s to represent our constituency within the UK Parliament. Given the UK Parliament conceded in McCormack vs the Lord Advocate in 1953 it has no powers to alter the 1707 Treaty of Union (any such change can only occur within negotiations between the original sovereign signatory parliaments) it appears for Cameron to deliver his stated position will require the recall from its temporary suspension of the English Parliament, elections to this recalled parliament - to give it legal and constitutional legitimacy - and for both sovereign parliaments of Scotland and England to agree these new conditions, repeal the Acts of Union of each parliament of 1707 and then enact new Acts of Union pertinent to the revised Treaty of Union.
I think you would agree a situation which would be unlikely to maintain the UK Parliamentary Union.
Option two is to simultaneously bring forward a bill to set up a devolved English Assembly in line with the rights and privileges given Scotland under the Scotland Act 1998 and the further amendments to this bill. This would deliver English votes for English bills and keep the UK Parliamentary Union intact (in theory) but as an article in the Financial Times makes clear this would create massive tensions between the UK Parliament, the devolved English Assembly and Scotland’s Parliament over fiscal matters. The basic argument will become: why should Scotland or England’s parliament and assembly (respectively) send their taxes to the UK Treasury to be doled back out to them by an Ed Balls or a Gideon Osborne type figure?
The answer is surely clear, given the UK Parliament will only be left with control of Defence and Foreign affairs – in real terms. The two supposed ‘subservient’ houses will quickly decide to contribute to both these areas via a proportional sum to the UK Treasury to cover their running costs, retaining most of their respective tax income ‘in house’ and deal directly with the already autonomous Bank of England in deciding their relevant fiscal policy, deficit, borrowing requirements and repayment provisions in the best interests of maintaining Sterling as an internationally trade-able currency.
In effect, the full fiscal autonomy sought by 70% of the Scottish electorate, as indicated in opinion poll after opinion poll on the issue, ends the UK Parliamentary Union by default. Any failure to deliver on full fiscal autonomy for Scotland will quickly see a referendum on independence in Scotland which will end the UK Parliamentary Union by right. While an English Assembly to deliver English votes for English Bills ends the union by default.
Any attempts to try a constitutional fudge will bring about legal challenge based on the real constitutional issue that any fudge is actually beyond the legitimate constitutional and legal powers of the UK Parliament under the terms of the 1707 Treaty of Union
The problem you face is to meet the expectations of the Scottish people for full fiscal autonomy and the UK Parliament at Westminster is, it can not work without a massive legal and constitutional fudge which will be wide open to legal challenge in both Scotland and England.
Let us say Mr Cameron pushes through a bill for the UK Parliament to have English votes for English Bills.
The first constitutional hurdle is by doing so he will end the 1707 Treaty of Union because all bills which come before the UK Parliament can be voted on by any constituency MP, elected to the UK Parliament. We do not elect MP’s to represent ‘Scotland’- as such, we elect MP’s to represent our constituency within the UK Parliament. Given the UK Parliament conceded in McCormack vs the Lord Advocate in 1953 it has no powers to alter the 1707 Treaty of Union (any such change can only occur within negotiations between the original sovereign signatory parliaments) it appears for Cameron to deliver his stated position will require the recall from its temporary suspension of the English Parliament, elections to this recalled parliament - to give it legal and constitutional legitimacy - and for both sovereign parliaments of Scotland and England to agree these new conditions, repeal the Acts of Union of each parliament of 1707 and then enact new Acts of Union pertinent to the revised Treaty of Union.
I think you would agree a situation which would be unlikely to maintain the UK Parliamentary Union.
Option two is to simultaneously bring forward a bill to set up a devolved English Assembly in line with the rights and privileges given Scotland under the Scotland Act 1998 and the further amendments to this bill. This would deliver English votes for English bills and keep the UK Parliamentary Union intact (in theory) but as an article in the Financial Times makes clear this would create massive tensions between the UK Parliament, the devolved English Assembly and Scotland’s Parliament over fiscal matters. The basic argument will become: why should Scotland or England’s parliament and assembly (respectively) send their taxes to the UK Treasury to be doled back out to them by an Ed Balls or a Gideon Osborne type figure?
The answer is surely clear, given the UK Parliament will only be left with control of Defence and Foreign affairs – in real terms. The two supposed ‘subservient’ houses will quickly decide to contribute to both these areas via a proportional sum to the UK Treasury to cover their running costs, retaining most of their respective tax income ‘in house’ and deal directly with the already autonomous Bank of England in deciding their relevant fiscal policy, deficit, borrowing requirements and repayment provisions in the best interests of maintaining Sterling as an internationally trade-able currency.
In effect, the full fiscal autonomy sought by 70% of the Scottish electorate, as indicated in opinion poll after opinion poll on the issue, ends the UK Parliamentary Union by default. Any failure to deliver on full fiscal autonomy for Scotland will quickly see a referendum on independence in Scotland which will end the UK Parliamentary Union by right. While an English Assembly to deliver English votes for English Bills ends the union by default.
Any attempts to try a constitutional fudge will bring about legal challenge based on the real constitutional issue that any fudge is actually beyond the legitimate constitutional and legal powers of the UK Parliament under the terms of the 1707 Treaty of Union
This raises the questions – just what is the point of your commission
and why are the taxpayers of Scotland paying for this charade of
consultation, as you will not be able to deliver what 70% of the Scottish
Electorate wish – full fiscal autonomy – simply because the vested interests in
the UK Parliament and the City of London (which opposed the Yes vote in the
recent referendum) can not allow this to happen, as which ever route is taken to
deliver full fiscal autonomy to Scotland, ends the UK Parliamentary Union by
direct or indirect means.
I will give a cynical answer to your rhetorical questions in the last paragraph. The purpose of the Smith Commission is to go through the motions of examining the possibility of further devolution with as much delay as possible, in the hope that the pro-independence movement will lose momentum before the Westminster government announces, with 'great regret', that it is just too complicated to give the Scottish Parliament more than a few unimportant or unusable additional powers. The Scottish government has to go along with this charade to avoid giving Westminster any excuse for failing to deliver what has been promised.
ReplyDeleteI fear that any legal niceties about the Treaty of Union may just be ignored. As far as Westminster is concerned, the Crown in Parliament is the supreme authority in the UK, and the law is whatever the Commons and the Lords agree on. If the law gets in the way of what they want, they will change it, retrospectively if necessary. Theoretically, the final arbiter might be the Queen, but David Cameron has made her views clear.
Always worth asking the question Les - the answer or lack of an answer is always very revealing .... I know this is Calman mark 2 and has about as much chance of any of its recommendations seeing the light of day as Calman did .... the problem for Westminster is this one is not going to be able to be swept under the carpet now Cameron's opened the bag of nails around 'English votes for English bills'.
ReplyDeleteI will wait and see if Labour get a cuffing, in Scotland, in May 2015 - if they do the games changes yet again because then Labour will have no benefit from Scottish seats either (just like the Tories) - the irony could be Labour will need the SNP seats gained from Labour and the Libdems in Scotland to form a UK Government ...... we do live in interesting times ... and will Labour blow it this time around ,like they did when the Libdems came knocking on their door?
Gentlemen
ReplyDelete"[I]nteresting times", indeed, and thank you for your thoughts and insights.
I wonder if we are about to witness the "bag of nails" not only "opened" by the current Unionist arch-mouthpiece that is Cameron, but ripped apart and dumped in the gutter when the FM stands down and unshackles himself from the "proprieties" of his office?
Himself - in concert with an independence-minded Scots government, parliament, mass movement refusing to go away, and the fissuring/chauvinistic shambles that is the slow strip-teasing rump of the UK humped by UKIP and the other neo-Mosleyite/spawn of Thatcher elements - might all combine to render the Treaty and Acts of Union de facto defunct?
Personally, I would walk away from - abrogate - these constructs given the multiple violations of them from the get go.
Perhaps, the FM, and his allies, has a similar notion in mind?