Is the UK Constitution Worth the Paper It Is Written On?

I believe that the British state is an institution which is deeply flawed and in dire need of major constitutional reforms, but that there is no prospect of such reforms happening in the foreseeable future. There has been, and will continue to be, tinkering with constitutional issues, with the introduction of EVEL and possible changes as a result Tory ire at being (slightly) thwarted by the House of Lords. (My guess is that Cameron will settle for creating as many new Tory peers as he can get away with.) However, there is no sign of any willingness to to tackle the really big problem with the constitution, namely that it could be argued that it does not exist, or at least not in any well-defined form.

It is often said that the UK does not have a written constitution, but this is not completely true. A more precise statement is that the UK does not have a codified constitution; there is no single document which sets out such important matters as how the country is to be governed and the rights of its citizens. In this respect, the UK is very unusual.

A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed… When these principles are written down into a single document or set of legal documents, those documents may be said to embody a written constitution; if they are written down in a single comprehensive document, it is said to embody a codified constitution… By contrast to codified constitutions. uncodified constitutions include written sources: e.g. constitutional statutes enacted by the Parliament and also unwritten sources: constitutional conventions, observation of precedents, royal prerogatives, custom and tradition, such as always holding the General Election on Thursdays; together these constitute the British constitutional law. (

I believe that there are three major problems which arise from the uncodified nature of the UK’s constitution. The first is the inclusion within it of conventions which have somehow developed over the centuries. A convention is like a gentlemen’s agreement, or a voluntary code of conduct; it is useful just as long as everyone involved abides by it, even if they only do so for fear of the damage to their reputation should they not do so.

Constitutional conventions are not, and cannot be, enforced by courts of law. The primary reason for this, according to the Supreme Court of Canada in its 1981 Patriation Reference, is that, “They are generally in conflict with the legal rules which they postulate and the courts are bound to enforce the legal rules.” More precisely, the conventions make certain acts, which would be permissible under a straightforward reading of the law, impermissible in practice. The court ruled that this conflict between convention and law means that no convention, no matter how well-established or universally accepted, can “crystallize” into law, unless the relevant parliament or legislature enacts a law or constitutional amendment codifying the convention. This principle is regarded as authoritative in a number of other jurisdictions, including the UK. (

One significant convention is that the monarch always gives the royal assent to any bill which has been passed by Parliament. The last bill to be refused royal assent was one to arm the Scottish militia, which Queen Anne refused to sign in 1708. Yet legally the Queen could still veto legislation by withholding assent (with the formula “La Reyne s’avisera”). If her successor is faced with a bill which he strongly disagrees with, will he submit to the convention, or will he risk provoking a constitutional crisis by responding “Le Roy s’avisera”?

A second disadvantage of the UK’s uncodified constitution is that it is quite difficult to know exactly what it really is. There are some Acts of Parliament which clearly form part of the constitution, one of the most important being the Bill of Rights 1689.

The Bill of Rights lays down limits on the powers of the monarch and sets out the rights of Parliament, including the requirement for regular parliaments, free elections, and freedom of speech in Parliament. It sets out certain rights of individuals including the prohibition of cruel and unusual punishment… [T]he Bill of Rights is further accompanied by Magna Carta, the Petition of Right, the Habeas Corpus Act 1679 and the Parliament Acts 1911 and 1949 as some of the basic documents of the uncodified British constitution. A separate but similar document, the Claim of Right Act 1689, applies in Scotland. (

Obviously there are other acts which might be considered as part of the constitution, such as the Fixed Term Parliaments Act 2011, the numerous Representation of the People Acts and Reform Acts, and of course the infamous Acts of Union. However, even where an Act of Parliament contains some matters of constitutional importance, it may also contain provisions which are clearly not relevant to the constitution, or have been superceded by later legislation, or simply rendered obsolete by changing circumstances. Add in assorted (unenforceable) conventions, and the result is a constitution whose boundaries are undefined.

The third problem is by far the most serious one.

The presence or lack of entrenchment is a fundamental feature of constitutions. An entrenched constitution cannot be altered in any way by a legislature as part of its normal business concerning ordinary statutory laws, but can only be amended by a different and more onerous procedure… Entrenchment is an inherent feature in most codified constitutions. A codified constitution will incorporate the rules which must be followed for the constitution itself to be changed… [T]he UK constitution is an example of a constitution that is not entrenched (or codified)… In the UK, for example laws which modify written or unwritten provisions of the constitution are passed on a simple majority in Parliament. No special “constitutional amendment” procedure is required… Several rights that in another state might be guaranteed by constitution have indeed been abolished or modified by the British parliament in the early 21st century, including the unconditional right to trial by jury, the right to silence without prejudicial inference, permissible detention before a charge is made extended from 24 hours to 42 days, and the right not to be tried twice for the same offence. (

In the UK, sovereignty is vested in ‘the Crown in Parliament’, which in practice means that Parliament rules supreme, and the people are subjects rather than citizens. What passes for a constitution provides only the flimsiest of protection from any government which chooses to abuse their powers.

A government with a majority in both Houses of Parliament can change the constitution by passing legislation or even by amending Parliamentary standing orders. There is no requirement for changes to be approved by the electorate, or even for there to be any meaningful public consultation. The Fixed Term Parliaments Act 2011 was passed quietly, with little attention from the media or public debate that I can recall, and yet it eroded democracy by decreasing the frequency of general elections. (In the period from 1979 to 2010, the average time between general elections was less than 4 1/2 years, while now it is to be 5 years unless a government loses a no confidence vote.)

I believe that, although democracy does not guarantee good government, alternative systems are worse and almost guarantee bad government. It follows that the more democracy we have, the better. In the UK, there is nowhere near as much democracy as there could be – we have the unelected Lords, and we are rarely given the opportunity to participate in an important decision through a referendum. An increase of a few months in the interval between elections may not be a major change, but it is a step in the wrong direction.

A well-chosen codified constitution, which requires approval for any changes through a referendum, puts sovereignty in the hands of the electorate, and lets a country’s citizens put limits on what its government can do. It has the potential to protect democracy, although it is not infallible. The best constitution can be wrecked by a military coup or a government ruthless enough to be undeterrred by the illegality of its actions. Democracy can even betray itself, as it did in Germany in 1933 when Hitler was voted into power. However, lack of a proper codified, entrenched constitution makes it much easier for the government to nibble away at democracy, human rights and the rule of law, if it is acting on behalf of a small number of very rich (and hence very powerful) people such as those at the heart of the British Establishment. I fear that the UK is slowly moving towards corporate fascism. For some time now, democracy in the UK has been ineffectual; the occasional elections have changed little because since the Blairite takeover of the Labour party there has been little to choose beteween the only two parties with any chance of forming a government at Westminster.

Perhaps Jeremy Corbyn will triumph over the Blairites, revive the fortunes of the Labour party in England, and in 2020 lead a genuinely left of centre party to victory. Perhaps the Trident programme will be scrapped, much of the nastier Tory legislation repealed, railways and energy companies taken back into public ownership, privatisation of the NHS in England reversed, the banks regulated to stop them gambling recklessly with other peoples’ money. But if this happens, it will indeed be a miracle; the Establishment will fight tooth and nail to neutralise Corbyn. Even if that miracle happens, there is no reason to think that a proper UK constitution will be one of the consequences. The present constitutional ‘flexibility’ suits the Establishment.

The relative importance of the various reasons why I support Scottish independence have changed over time. Now the main one is that I am deeply pessimistic about the future of the UK; Scotland can and should break free from the dystopian wreck that the UK is becoming, and demostrate to the people of England that there is a better alternative to anything that the Tories or the Blairites can offer.

How EVEL are the Tories?

The short answer to the title is about 50%. What they have imposed on Scotland is bad, but not as bad as it could have been; it is EVEL-lite. Under the new system, when English MPs are fairly evenly divided over proposed legislation for England, Scottish MPs’ ability to tip the balance will be halved. They will not be able to impose new laws on England against the wishes of a small majority of English MPs, but they will still be able to vote down any bill which is backed by only a small majority of English MPs.

It seems to me that this version of EVEL could lead to an unintended consequence. Previously, there was a convention that Scottish MPs would not vote on legislation which did not affect Scotland, although this was unenforceable and was occasionally ignored by Labour back in the days when they had a substantial number of Scottish MPs. Under the new rules, there will be a stage in the passage of any specifically English bill (as certified by the Speaker) in which Scottish MPs will be prohibited from voting. (Scottish MPs will, however, be allowed to speak in the Legislative Grand Committee debates.) It can be argued that the new rules supersede the earlier convention, and that by prohibiting voting by Scottish MPs in one specific part of the legislative process for English bills, it implicitly endorses their voting in other stages.

Soon after the last election, proposed legislation, to allow people in England to once again enjoy the sight of a fox being ripped to pieces by a pack of hounds, posed an ethical dilemma for Scottish MPs. Should they vote against such barbarity, or should they let themselves be bound by convention and abstain? If this matter raises its ugly head once more, then I would argue that Scottish MPs can, and should,  take the opportunity to speak and vote against any such legislation with clear consciences, thanks to EVEL. If challenged on this, they could always point to the way in which every SNP amendment to the current Scotland bill was voted down by English MPs, very few of whom had even bothered to be present when the amendments were debated.

Of course, if Scottish MPs do succeed in blocking some English legislation, the Tory response might be to go to EVEL-max, and prohibit Scottish MPs from any participation in the debates and voting for English bills, even when these have consequences for Scotland, for example through the Barnett formula. The present version of EVEL has been described as another nail in the coffin of the Union, but it is probably quite a small nail; EVEL-max could be a much bigger nail. Personally, I see nothing wrong with the supporters of independence making the coffin nails and handing them to the unionists for them to hammer in.

EVEL may cause significant problems in the future, as explained in the following quote from an article on the Constitution Unit website (

Another major area of concern … relates to the ill-conceived decision to apply the procedure to Finance Bills, which legislate for taxation such as income tax (on which certain new decisions are expected to be devolved to Scotland)… [B]ecause (unlike most legislation) income tax must be regularly re-approved by parliament in order to remain in force, the provision of a veto to a subset of MPs could potentially allow them to hold the UK government to ransom. Such a scenario is most likely in the event that a UK government lacked a majority in England.

From the same article, another hint of the way EVEL could develop.

Already it has been suggested that Whitehall departments that deal almost exclusively with English policy matters (for example health and education) be labelled more explicitly and accurately as English-focused departments, and this could also be reflected in non-legislative aspects of the Westminster parliament’s work. There are different ways in which the logic of EVEL might in future be applied to other facets of Westminster, including that government ministers appointed to such departments might require the ‘consent’ of MPs representing English constituencies, or that select committees scrutinising such departments be composed only of English MPs.

Perhaps claims that EVEL will make it impossible for for a Scottish MP to become Prime Minister, or be appointed to any major Cabinet position are exaggerated, but it does seem that it will become at least slightly more difficult for Scottish MPs to reach high office, and that this difficulty might well increase in future. If Scottish MPs are not yet second class MPs, the first steps towards that have been taken.

EVEL in its present form is truly a mess – perhaps if the BBC were to make a programme about it they might call it the Great British Mess. The only form of EVEL which might not be a mess would involve the creation of an English Assembly or Parliament – in other words, a federal system for the UK. However, the probability that the UK will develop a proper federal system, with a constitution which is not subject to the whims of whichever government is in power, is vanishingly small. There is only one good way out of the EVEL swamp, and that is Scottish independence – a cure for all EVEL.

PS My apologies to any Welsh people who read this; I have ignored Wales to keep things simple. Sometimes Wales will be included with England, sometimes it will be excluded. Perhaps we should be talking about EVEL/EWVEWL!

PPS If the second word of the title had been evil, my answer to the question would have been higher than 50%.

One Year Later

I was not intending to comment on the anniversary of the referendum, but there is one aspect of it which I feel should not be forgotten.

Opinion polling immediately before the referendum showed that there was a reasonable chance of Yes winning, albeit by a narrow margin. There are three possible explanations for the difference between the polls and the referendum result; perhaps all three are valid to some degree. The first is that the opinion polls were overestimating the Yes vote. I suspect this is what the Unionists would argue – in this scenario, the Vow was, with hindsight, unnecessary and this somehow diminishes, in their eyes, the need to honour it. The second explanation, which some independence supporters seem to accept, is that significant numbers of people who had intended to vote Yes succumbed at the last minute to the threats of Project Fear. The third is that the Vow tipped the balance in favour of No by seducing many of those whose first preference would have been Devo Max, but would have preferred independence to the status quo.

If I remember correctly, in a poll carried out for Lord Ashcroft immediately after the referendum, 26% of No voters (about 14% of all those who voted) gave the prospect of additional powers being granted to the Scottish Parliament following a No vote as a reason for their choice. Before the infamous Vow, just days before the referendum, there was little if any reason to believe that Westminster would reward Scotland for a No vote with significant additional powers for the Scottish Parliament. It therefore appears that about a quarter of No voters may have been influenced significantly by the Vow; if even two fifths of these people would have voted Yes had there been no Vow, then Yes would have won.

I suspect that there are very few people in Scotland, other than dyed-in-the-wool Unionists, who believe that the Vow has been, or will be, honoured. With the Vow, the Unionists offered a deal to the Scottish electorate, Devo Max or something close to it in return for a No vote. However, as soon as they got the result they wanted – quite possibly only because of the Vow – they reneged on it. In my view, that is sufficient reason to regard the No vote as invalid and to demand a new referendum – sooner rather than later.

After a Long Break…

Search in Wikipedia for “political compass” and you will find the following: “The political compass is a multi-axis political model, used by the website of the same name, to label or organise political thought on two dimensions… [It] uses responses to a set of 61 propositions to rate political ideology on two axes: Economic (Left–Right) and Social (Authoritarian–Libertarian).”

These two axes are not the only ones which might be used to classify political parties. One could attempt to rate parties on the basis of their honesty. In government, do they implement their pre-election pledges, or at least attempt to do so? Do they act on behalf of the electorate as a whole, as they would claim, or for a small part of it? Can their policies be influenced by MP’s own financial interests or by money, whether as political donations, lucrative directorships and consultancies, or outright bribes?

As a second axis for a graph, one could use Idealism–Opportunism. I will discuss this by describing the hypothetical end members of this scale; any real party will show some mixture of idealism and opportunism.

An entirely idealistic party would have a definite vision of the society it wished to create, and all its policies would be geared towards achieving that society. If those policies were not popular with the electorate, it would not abandon them, but would seek to persuade voters of their merits. An idealistic party might be good or bad, depending on its goals; the Nazis had their ideals but, tragically, those ideals were evil.

An idealistic party, like a religion, can inspire zeal and even fanaticism amongst its followers. While this may be a source of strength for a party, it can also prove a fatal weakness, for with fanaticism can come an obsession with details of the doctrine, and an uncompromising conviction that there is only one true path from which no deviation is acceptable. This is probably why Wikipedia lists six current UK political parties with the word “Communist” as part of their title; what might have been one minor party is fragmented into complete insignificance.

A purely opportunistic party would have only one ideal, namely that it should form the government whenever possible, so that its leading MPs might have the chance to enjoy the prestige, perks and privileges (legitimate or otherwise) of ministerial office. Its policies would be chosen entirely on the basis of their likely popularity with the electorate. Blatantly obvious opportunism is unlikely to appeal to voters, or to inspire ordinary party members to go out and campaign for the party; it would have to be disguised (perhaps as populism), and hence an opportunistic party would also be a significantly dishonest one.

In opposition, an opportunistic party may well decide that their failure to win the most recent election proves that the winning party had the most attractive policies. (This, however, ignores the possibility that other policies, not espoused by any major party, might have been more attractive to the electorate as a whole, including those who were not persuaded to vote by what was on offer.) They will then be tempted to adopt policies as close as possible to those of the government. If they do so, they cannot mount any effective opposition to the government’s policies without being seen to be hypocritical; all they can do is indulge in empty rhetoric and argue over minor details. Voters will assume that a party which has been an ineffective, lacklustre opposition is unlikely to provide a competent government.

It is tempting to say that Labour is an opportunistic party, but that would be too simplistic. New Labour is certainly much more opportunistic than idealistic, but Corbyn’s election shows that the Labour party contains another strand, which I will call Real Labour. Real Labour largely retains the ideals of the original Labour party, of Keir Hardie and Clement Attlee. In any case, what does one mean by the Labour party? On the one hand, there are what I think of as the apparatchiks, the MEPs, MPs, MSPs, AMs, councillors and paid officials; on the other, there are all the ordinary party members and supporters. Amongst the apparatchiks, New Labour has been dominant since Blair became the party’s leader more than twenty years ago, but the scale of Corbyn’s victory shows substantial support for Real Labour amongst its ordinary members and supporters.

If Corbyn retains control of the Labour party, it is likely that there will be a substantial shift, not just to the left but also towards a less opportunistic choice of policies. However, New Labour has embraced neo-liberalism, and poses no threat to the interests of the Establishment and the mega-rich; the inequality between rich and poor increased as rapidly under Blair as under Thatcher and Cameron. Real Labour could be very different, and so the Establishment, with its control of the media, will do its utmost to discredit Corbyn and his supporters, while disgruntled Blairites will seek to undermine him at every opportunity. The fight for the soul of the Labour party is far from over. It is likely that, regardless of the eventual outcome, the Labour party will be so divided for the next few years that it will continue to have little prospect of winning in 2020 or even in 2025.

One question is how Corbyn’s win will affect the SNP and the prospect of Scottish independence. Of course, any move back to its roots, and to its principles, by Labour will tempt some of those who have changed their allegiance from Labour to the SNP to switch back, but my guess is that that this will not make a significant difference, partly because Corbyn will be felt to be less relevant to Scottish Labour than to Labour in England and Wales, and partly because of the likely internal divisions within Labour.

If the Blairites succeed in replacing Corbyn, or manage to thoroughly divide the Labour party (no doubt blaming Corbyn for the consequences of their own disloyalty), then some Scottish voters who still believe that Labour will return to power and save Britain from its current drift towards a corporate fascist police state will give up that hope and start supporting independence. The other extreme is that Corbyn transforms Labour, persuades many of those who did not vote in May that Labour is worth voting for, and the UK becomes a more tolerable country to live in under a future Real Labour government. If that happens, the case for independence will be weakened. The worst outcome would be one in the middle, where Corbyn is successful enough to let people hope for a Labour victory in 2020, but not enough to achieve one.

Should those of us who support independence therefore hope that Corbyn and Real Labour do not win? I would say no for three reasons. The first is that it would be selfish; there are millions of people in England who do not support the Tories and do not deserve to suffer the consequences of Tory (or even New Labour) government. The second reason is that I suspect that the prospects of actually achieving independence, once there is a clear majority in favour of it, may be better with a Real Labour government at Westminster.

What I believe is as follows. Cameron only signed the Edinburgh Agreement because he was certain that Scotland would vote to stay in the Union, and that this would badly damage the SNP and rule out Scottish independence for decades – after all, it took 18 years for Scotland to get a second referendum on devolution, even though a majority voted for devolution in the first one. It is very unlikely that Cameron or any other Tory Prime Minister will sign any similar agreement, knowing that this time a Yes vote is probable – if it is not probable, the Scottish Government is unlikely to want a referendum. Either the Scottish Government will be prevented from holding a new referendum, or Westminster will not recognise a Yes vote as valid. The only way we will get a negotiated independence deal from a Tory government is if support for independence reaches such a level that they they feel that they have no choice, because the alternative will be a Unilateral Declaration of Independence which will have the backing of a majority of the people in Scotland. A UDI would be a scary prospect for many people, and support for one, as a last resort, is only likely to go above 50% if there is truly massive support for independence, and a great deal of anger directed at Westminster.

My guess is that, since Labour can no longer rely on Scotland returning mostly Labour MPs, a Real Labour government would be easier to deal with. Real Labour would not renew Trident, and would not have the same need to keep hold of Faslane. Real Labour is less likely to look back on the British Empire with nostalgia, and to treat Scotland as the last remnant of that Empire, as England’s last colony.

The third reason to hope for a revival of Real Labour south of the border is that, should Scotland become independent, England would be a better neighbour under Real Labour than under any neo-liberal regime. It will be easier for the Scottish Government to implement socially just policies if England is doing something similar. For example, if the top rate of income tax and benefits were both significantly higher in Scotland than in England, there might be an exodus of rich people from Scotland (for tax purposes at any rate) and an influx of unemployed and disabled people.

I am glad that Jeremy Corbyn is the new Labour leader; I see it as an encouraging sign that the neo-liberal tide might perhaps be about to ebb. What it will mean for Scotland, and the cause of Scottish independence, I do not know, but I am cautiously optimistic that it might open up new opportunities, especially if the Tories start quarrelling amongst themselves over EU membership.

More Constitutional Thoughts

In a recent radio programme, it was suggested that in the nineteenth century, while many other countries were adopting formal constitutions, people in England were so proud of Magna Carta as a sort of proto-constitution that they thought that Britain did not need anything else.

The speculation prior to the election about what might have happened if the result had been a hung parliament highlights the unsatisfactory nature of the UK’s uncodified constitution, key parts of which are are mere conventions. What happens if there is disagreement over conventions which have somehow developed over the years? How long does does it take for ‘what usually happens’ to mutate into a definite convention? How can a convention be enforced, if those in power choose to ignore it?

One can turn to the Cabinet Manual for guidance and a review of existing practice, but that is all; it does not necessarily provide hard and fast rules. For example, the final sentence of section 2.10 is “It remains to be seen whether or not these examples will be regarded in future as having established a constitutional convention.” At the end of section 2.19 it states “The Prime Minister is expected to resign where it is clear that he or she does not have the confidence of the House of Commons and that an alternative government does have the confidence.” Note the use of ‘expected’ rather than ‘required’.

The office of Prime Minister was not originally defined by any law; indeed, no decision was ever taken that the UK should have such a creature. At the start of the 18th century the monarch, as the head of the government, appointed a number of Cabinet ministers, who were answerable to the monarch, not to one of their own number. When George I became king, he initially attended Cabinet meetings but stopped, largely because he could not speak English. In 1721, following his successful handling of the crisis caused by the collapse of the South Sea Company, Sir Robert Walpole was appointed as First Lord of the Treasury, Chancellor of the Exchequer, and Leader of the House of Commons, and became, in retrospect, Britain’s first Prime Minister. However, the term ‘Prime Minister’ was initially used only unofficially and in a rather sarcastic way, and Walpole and other 18th century Prime Ministers rejected it. The first official use of the term was in 1878 when Disraeli signed a treaty as Prime Minister. Eventually the Ministers of the Crown Act 1937 gave legal recognition to the position of Prime Minister, as opposed to the office of First Lord of the Treasury, with which it has always been linked.

Initially it was the monarch who chose the Prime Minister, but a convention developed that the Prime Minister should be someone who can command the support of a majority in the House of Commons, and thus usually the leader of the largest party in the Commons. As the role of the Prime Minister developed, power gradually transferred from the monarch to the Prime Minister. The royal prerogatives, defined in the constitutional settlement that followed the Glorious Revolution of 1688 and still mostly formally vested in the monarch, are in reality exercised by the Prime Minister; theoretically, the Prime Minister advises the monarch and the monarch, according to yet another convention, always accepts that advice.

Given the extent of the powers which have become attached to the position of Prime Minister, can it be right that the question of who becomes Prime Minister in the event of a hung parliament can be decided on the basis of mere conventions? Is it reasonable to allow the party of government to change its leader, and thus the Prime Minister, in the middle of a Parliament without the approval of the electorate as a whole? Should some alternative arrangement be devised, whereby the electorate as a whole can decide specifically who should become Prime Minister, or perhaps President? At present, one vote every five years is all the ordinary voter gets with which to indicate their choice of MP for their constituency, party of government (with all its policies) and Prime Minister, as a package deal.

The Tories are proposing to repeal the Human Rights Act. The fact that they may well be able to do so, in spite of having been elected by not a lot more than a third of those who voted, and by less than a quarter of the electorate, points to another major flaw in the UK’s uncodified constitution. Although some Acts of Parliament, such as the Human Rights Act, may be considered as parts of the constitution, they have no special status, and can be amended or repealed like any other pieces of legislation, by simple majority votes in both Houses of Parliament.

With a good codified constitution, it should not be possible for Parliament to modify any part of the constitution. That privilege should be reserved to the electorate as a whole, who should be able to ratify or reject any proposed changes to the constitution in a referendum. While there have been occasional referendums in the UK, the cynical view might be that these are only held when the UK Government is hoping that the proposed change will be rejected (e.g. reform of the electoral system and Scottish independence); the Fixed Term Parliaments Act (2011) is clearly of constitutional importance but there was no question of a referendum being held to approve that, or to ask whether the interval between elections should be reduced to 4 years, or even to 3 years as in Australia.

The UK is in dire need of a complete constitutional overhaul. Changes are needed to the electoral system, to end the unjust ‘first past the post’ system which tends to freeze out smaller parties and to make the votes of those who live in ‘safe’ constituencies worthless. The House of Lords needs to reformed or abolished, perhaps along with the monarchy. Some kind of federal system is needed to accommodate increased devolution. In short, the UK desperately needs a coherent written constitution. However, I do not believe for one moment that this will happen. England is too (small ‘c’) conservative and too fond of archaic traditions and rituals. Above all, the present system suits the Establishment. For example, it is very unlikely that a government which has achieved an overall majority with just under 37% of the vote will want to change the voting system. All we can expect is some tinkering here and there, which may may make an already messy system even messier (e.g. devolution of powers in England to some cities, rather than all regions) or replace existing problems with new ones (e.g. EVEL ).

The only realistic way in which the people of Scotland can gain the benefits of a coherent, well designed constitution, which will promote such ideals as democracy and human rights, is through independence.

(My first ‘Constitutional Thoughts’ were posted on this site on the 7th of April last year.)

Cause for Rejoicing?

I do not normally use this blog to respond immediately to recent events, but rather to look at other issues which I have been thinking about for some time. However, I feel I have to say a few things about the election results.

I do not feel elated by the unprecedented landslide in Scotland, because I had been expecting it for quite a while. All the polls had been showing the SNP well ahead of Labour, and this was consistent with the surge in SNP membership since the referendum. Yet there was always the nagging thought that perhaps it was just too good to be true, and therefore I felt a certain amount of relief, mixed with a slight regret that it was not a clean sweep, when I saw the results.

My main feeling was a mixture of disappointment and anger, because I was definitely not expecting the Tories to win an overall majority. I consider that some of the policies pursued by the Tories over the past five years can reasonably be described as evil, and now those policies will be continued and perhaps extended, without whatever slight restaining effect the LibDems might have had. Perhaps the Tory win brings Scottish independence closer, but the price for that will be high.

I will shed no tears over the disintegration of the LibDems. Once they were a party I would certainly have voted for if the only alternatives had been the Tories or Blairite Labour, but then (like many others) I did not realise until after the last election just how far to the right they had moved under the leadership of crypto-Tory Clegg and his Orange Book cronies. What will become of them now, I neither know nor care. Perhaps they will manage to reform under new leadership and become something more like the old Liberal party, or else they may just fade away into irrelevance. Possibly the most appropriate outcome would be for the remnants of the LibDems to merge with the Tories.

I think few people will now consider Miliband to have been a good leader for the Labour party. Perhaps he got a raw deal, being attacked by the right-wing press and having to cope with Blairite members of his own party. I think that he might have made a half-decent Prime Minister, given the chance, except that,  when it counted most, he was too weak. When Cameron attacked Labour’s right to enter any kind of alliance with the SNP, he capitulated. If he had fought back against Cameron (and doubtless certain elements within his own party, such as Jim Murphy), and defended both Labour’s right to choose its own allies and the SNP’s right to be part of such an alliance, he might have been more convincing as a potential Prime Minister. The suggestion that, in a hung Parliament, Miliband might have chosen to let Cameron stay on as Prime Minister rather than accept support from the SNP must have cost Labour votes in Scotland. Even in England it may have signalled to some voters on the left that it was not worth voting for Labour.

Now Labour has to find a new leader. My suspicion is that whoever is chosen will argue that Labour lost because they were perceived by voters in England as being too left wing, and Labour will take another lurch to the right. From a Scottish and SNP point of view, the Labour party is very nearly as right wing as the Tories, but some people in England still appear to think that Labour are dangerous, left-wing radicals. However, being very similar to the Tories is probably not going to be a winning strategy for the next election either. If people think that Tory policies are good, then are they not more likely to vote for the real Tories rather than a Labour imitation?

One can argue that Labour lost the election because they were weak in opposition. They never really challenged the arguments used by the Tories to justify their policies. For example, they accepted the idea that it is essential to reduce the deficit by drastic austerity, and merely quibbled about the rate at which it should be done. There is a strong argument that drastic cuts in public spending damage the economy, and have slowed economic recovery while causing a great deal of hardship. Yet Ed Balls said there was nothing in the most recent budget which he would have changed. (For a good discussion of this by someone who clearly knows more about economics than I do, see and other articles on the same site.)

A strong opposition party would have been prepared to put forward its own distinctive policies, and would have strived to persuade the electorate that its policies were better than those of the government. Labour consistently failed to do this over the last five years, and through that failure they have done a grave disservice to the English electorate by denying them any distinctive and credible alternative to the current neo-liberal consensus. I doubt whether they will perform their duty as the official opposition any better between now and the next election. On the contrary, I expect they will decide that Miliband’s tentative efforts to move slightly towards the left were in the wrong direction, rather than too little and too late.

For the SNP, a hung parliament in which they supported and tried to influence (perhaps with limited success) a Labour minority government could have provided them with some oppportunities but also many dilemmas; the relationship between the SNP and Labour would have been a difficult one, with many possible pitfalls. However, not supporting a Labour government, if one had been possible, would not have been a viable policy. A Tory majority provides a more straightforward situation; unless Cameron offers significantly greater powers for the Scottish Parliament than the surviving Smith Commission proposals, there will be little or nothing in the Tory agenda that the SNP can agree with, and a great deal which it will oppose as strongly as possible. It will be important for the SNP’s contingent at Westminster to be conscientious in voting against Tory measures whenever it is appropriate, even when there is no hope of actually winning the vote. The SNP are now the third largest party at Westminster, and will have the right to regularly ask questions at Prime Minister’s Questions; they must try to exploit this as effectively as possible.

What all this means for Scottish independence is hard to predict, although my guess is that it makes independence within the next few years somewhat more likely than it would have been with a Labour government. So much depends on how Cameron behaves towards Scotland and the SNP. Will he be more conciliatory, or will he continue to talk of the SNP as though they do not deserve to participate in the governance of the Union? Will he deliver more than the Smith Commission proposals, or less? How far will he go with ‘English Votes for English Laws’? Will he be willing to examine the options for genuine constitutional reform, such as a federal system for the UK?

The other big question for the whole of the UK is whether there will be a referendum on EU membership, with the possibility that Scotland might vote to stay in the EU while the rest of the UK votes to leave. Could we even see Scotland becoming independent following an agreement between Westminster and Brussels that Scotland should be treated as the sole continuator state for the purpose of EU membership? (Will those wanting a UK exit be accused of wanting to ‘destroy’ and ‘break up’ the EU by removing 12.7% of its population?)

Now the countdown starts to the Scottish election next year. It should be an interesting year for Scottish politics.

Does Cameron Expect Miliband to Commit Political Suicide?

It is reported that David Cameron is urging Ed Miliband to rule out any possible co-operation between Labour and the SNP. Of course, this is merely an attempt at gaining a few more votes in the forthcoming election. Miliband would have to be extremely stupid or barking mad to do as Cameron demands, and I do not believe for one moment that Miliband is either of those. (Neither do I think that Cameron is stupid or mad, but I do not think much of his trustworthiness.)

Let us assume that the election produces the result that the polls are indicating as likely, with Labour and the Tories winning roughly the same number of seats, the LibDems losing most of their current total and the SNP winning most of the Scottish seats, and that between them Labour and the SNP have a small majority. What will be the possible outcomes in this situation, if the SNP say to Miliband that, if no deal is reached between Labour and the SNP, the SNP will adopt a policy of abstaining on any confidence votes? (I am not saying that the SNP leadership would, or should, take that stance, but it can be argued that Nicola Sturgeon’s assertions that the SNP will not support the Tories leave open the possibilty of the SNP supporting neither of the two main parties, and instead remaining neutral.)

Firstly, the Tories and Labour could agree to hold a new election, but since the Labour party is apparently in a much weaker financial position than the Tories, I suspect that they would be reluctant to face the expense of another election campaign, unless they expected to fare better in a second election, in which case the Tories would probably not want one. (Under the terms of the Fixed Term Parliaments Act, a Commons motion to hold an early election requires at least 434 votes in favour of it to pass, and so either of the two main parties would be able to block one.)

Secondly, Labour and the Tories could form a coalition, but Miliband need only think of how much damage has been done to the LibDems by their partnership with the Tories. Clegg may well go down in political history as a leader who destroyed his own party; would Miliband wish to copy him? Also, Miliband is not very popular within the Labour party, and an alliance with the Tories would surely be very unpopular with many within the Labour party. Miliband might be quickly replaced as leader by someone who would break with the Tories. From a Unionist point of view, there would be a danger that a Tory/Labour partnership would be perceived in Scotland as anti-Scottish and push support for the SNP to new heights.

Thirdly, one of the two main parties may put together the best alliance it can without including the SNP, and form a minority government. Assuming that the LibDems are willing to work with either the Tories or Labour (or with neither), then it will almost certainly be the party which wins the most seats which forms the government in this situation. If this is Labour, then in theory they can spurn the SNP’s advances, but their government will be a weak one which could struggle to pass new legislation without support from the Tories. Neither being an ineffectual government nor relying on Tory support will do anything to improve Labour’s prospects at the following general election.

The real dilemma for Miliband arises if the Tories win a few more seats than Labour, and are therefore better placed to form a government if the SNP takes a neutral stance. Polling has shown that an overwhelming majority of Labour voters in England back a deal with the SNP if the alternative is a Tory government. There would also be a number of Labour MPs who would be angry at being denied the possibility of a ministerial position, salary and perks. Therefore, if Miliband were to continue to refuse a deal with the SNP and let Cameron form a government, his position as Labour leader would be untenable and almost certainly he would quickly be replaced by someone who would be willing to enter an alliance with the SNP. One no confidence vote with the SNP voting in favour would see Cameron deposed as PM and the new Labour leader being invited to form a government. (In any case, it seems to me unlikely that Miliband will survive for long as leader of the Labour party unless he becomes Prime Minister.)

Finally, Miliband can do the sensible thing and strike a deal with the SNP to ensure that, as a minimum, they will back him in any confidence vote. That way, he can probably look forward to at least one term as Prime Minister and the opportunity to make his mark on history, for better of for worse.

In short, a deal with the SNP may be the only way in which Miliband can prevent his leadership of the Labour party, and with it his political career, coming to an inglorious end. If you were in Miliband’s position, would you give your main political rival an assurance that, unless your party wins more seats than his, you will commit political suicide?