Can We Afford to Wait?

Nicola Sturgeon has said that “a second independence referendum is now on the table”. I welcome the fact that she has said this so promptly and unequivocally.

We will take all possible steps and explore all options to secure Scotland’s continuing place in the EU and in the single market in particular…When the process for the UK to leave the EU begins in three months time, it is expected to take two years to leave. If the Scottish Parliament decides that a second referendum is the best or only way to protect our place in Europe, it must have the option to hold one within that timescale. (http://www.snp.org/nicola_sturgeon_s_statement_on_the_eu_referendum_what_you_need_to_know?mc_cid=f0ff861029&mc_eid=756ff63535)

The bit about ‘exploring all options’ is necessary diplomacy, but is there any realistic option other than independence or being dragged out of the EU by England? I have seen a suggestion that it might be possible for Scotland to remain in both the UK and the EU, even after Brexit. This is based on the fact that after Greenland was granted limited autonomy as part of the Kingdom of Denmark, it left the EEC in 1985. As a result, part of the current Kingdom of Denmark is in the EU and parts (Greenland and the Faroe Islands) are not. Closer to home, the Isle of Man is neither a member nor an associate member of the EU, although its defence and foreign policy are handled by the UK Parliament. Clearly, the EU has no problem with the government of a member state having some authority over a territory which is not within the EU. However, it seems unlikely that the EU would permit an arrangement whereby a primarily non-EU government (such as Westminster, post-Brexit) has direct authority over a part of the EU. Also, any such arrangement would almost certainly require Scotland to have a much greater level of autonomy than it currently has.

On the question of the timing of an independence referendum, I would argue in favour of it being held as soon as possible, for the following reasons.

  • Cameron’s replacement as Prime Minister may invoke Article 50 of the Lisbon Treaty soon after taking office, possibly in October. Brexit will follow exactly two years later, except by mutual agreement between the UK and the EU; it could therefore take place any time from October 2018 on. If it will take about 18 months from an independence referendum to actual independence (as was estimated at the time of the 2014 referendum), then we must have a referendum not later than April next year to ensure that independence can take place at the same time as Brexit, allowing Scotland to inherit the UK’s membership of the EU, and transition straight from being part of the EU as part of the UK to being a member state.
  • It is expected that many companies, currently based in the UK but trading extensively in Europe, will consider moving to other EU countries. An early referendum in which Scotland chooses to remain in the EU rather than the UK should persuade companies already based in Scotland to stay, and some based elsewhere in the UK to relocate to Scotland. Even the prospect of a referendum which is likely to lead to independence may help to protect the Scottish economy.
  • It will be easier to win an independence referendum before Brexit than afterwards, assuming the criteria for eligibility to vote are the same as those used as in 2014, as citizens of other EU countries who are resident in Scotland will still be entitled to vote. After Brexit, they will be disenfranchised.
  • With an impending Brexit to concentrate voters’ minds, a long referendum campaign should be unnecessary. There could be a risk that some of the people who voted No in 2014 and Remain, and who are saying they would now vote for independence, may become reconciled to the idea of Brexit and revert to opposing independence.
  • There is a very slight possibility that some deal or political upheaval in England might result in Brexit being cancelled before an independence referendum could take place; even if the independence referendum went ahead, it then would be more difficult to win a majority for independence.

Brexit may prove to be an opportunity for Scotland. However, that opportunity must be grasped quickly, lest it slip away.

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What Now?

Leave has won and the pound has dropped in value by more than 10%; I am disappointed, but not surprised. Cameron has announced he will step down by October; I should be happy about that, if it were not that I expect that his successor will be even worse. I should be happy that there is now a possibility of a second independence referendum, but at the moment this is outweighed by my concerns as to what will happen if Scotland remains part of the UK under Tory rule, without even the EU to restrain their apparent determination to justify their characterisation as the nasty party.

The news of an impending Brexit has been welcomed by far right groups across the EU, who are now calling for referenda on EU membership in their own countries. EU leaders are concerned that the UK’s defection will cause the disintegration of the EU; they will want the UK to be seen to be worse off outside the EU to deter other countries from leaving, and so they are unlikely to give any favourable trade deals to the UK. Britain will probably not be allowed access to the European single market, whether this done through an outright refusal to negotiate or by setting an unacceptably high price for such access. Jean-Claude Juncker, the President of the European Commission, recently said that “out is out”, while ruling out any further concessions to the UK.

In theory, Brexit is not inevitable as the referendum is not legally binding, and Cameron is apparently going to leave it to his successor to start the two year countdown to Brexit by invoking Article 50 of the Lisbon Treaty. (Once this happens there will be no going back except with the unanimous agreement of all EU members.) A likely successor is Boris Johnson, who may have backed Leave more as a way to challenge Cameron than because of genuine Euro-scepticism. Perhaps he might, as Prime Minister, seek to avoid a Brexit. However, with Juncker ruling out any concessions to the the UK, it would very difficult for Johnson to justify not invoking Article 50 even if he wanted to.

There is another possible way in which Brexit might yet be avoided, if the divisions within the Tory party run deep enough. If, for example, a significant of pro-EU Tory MPs were to defect to the LibDems, the Tories could lose their majority in the Commons, which in turn might provoke a General Election. If Jeremy Corbyn were to become Prime Minister, he could argue that the election of a pro-EU government cancels out the referendum result. Unfortunately, the Tories are likely to patch up their internal feuds enough to hold onto power.

It has been suggested that Article 50 may not be invoked for perhaps a couple of years, to allow more time for negotiations between the UK and the EU prior to Brexit. This appears to be based on the assumption that the EU would be prepared to negotiate a series of trade deals, perhaps similar to those between Switzerland and the EU, to allow the UK continued access to the single market. If what Junckers has said is anything to go by, it is more likely that the EU will give the UK a simple choice – either stay (with no new concessions) or leave completely. Indeed, it has been suggested that if the UK delays the formal invocation of Article 50 too long, while still maintaining its intention to leave the EU, the EU will move to end the uncertainty by expelling the UK or at least putting pressure on the UK to go.

The assumption now must be that Brexit will happen towards the end of 2018. Fortunately, a clear majority of voters in Scotland voted Remain, and so there is a strong moral case for a second independence referendum. With one of Project Fear’s main arguments against independence turned on its head, there is a very good chance of getting the correct result this time. I sincerely hope that Scotland can get out of Westminster’s grip before we suffer too much damage from the impending Brexit and continuing Tory misrule.

The Wrong Referendum?

Although I have serious reservations about the EU, I will vote Remain in the forthcoming referendum. I detest Cameron, Osborne and their cronies, but Johnson, IDS, Gove and Farage are at least as bad in my view. I cannot think of any prominent member of the Leave campaign for whom I have any respect; all the political leaders I respect are in the Remain camp.

I believe that, while some of the scare stories emanating from the Tory Remain campaign are greatly exaggerated, they are not entirely false, and that the UK economy will suffer following a Brexit. If the Tories remain in power they will use any economic downturn as an excuse to impose even more of their austerity, which always seems to make the richest people even richer. I also believe that Scotland will be more badly affected than England, partly because Scotland does better in terms of EU funding. It is likely that, without the EU to restrain them, a Tory government will repeal the Human Rights Act, and will reduce workers’ rights still further.

I have found the Leave campaign to be deeply distasteful because of its emphasis on immigration; if it wins, it will be because it has successfully appealed to the xenophobia and downright racism which underlies much of the British and English versions of nationalism. It may even have contributed, albeit unintentionally, to the brutal murder of Jo Cox. The fact that far right organisations such as Britain First support Leave is in itself a good reason for voting Remain.

As far as Scotland is concerned, I believe that the best possible outcome of the referendum would be a Leave vote which leads to a second independence referendum and Scottish independence, while the the worst possible outcome would be a Leave vote which does not lead to Scottish independence. I will not vote Leave in the hope of a second independence referendum being triggered for two reasons. Firstly, to argue for another referendum, we need not only a UK vote for Leave but also a clear majority in Scotland for Remain. Secondly, I think it it is possible that the UK government will either block an independence referendum, arguing that constitutional matters are reserved to Westminster, or refuse to recognise the result if it is not to their liking.

I am convinced that Cameron blundered with the Scottish referendum, in that he only signed the Edinburgh Agreement because he was confident that Scotland would vote to remain in the UK by such a margin that the independence movement and the SNP would suffer a setback that they would take many years to recover from. Arguably he has blundered again, by the allowing the EU referendum to take place to try to settle differences within the Tory party and see off competition from UKIP, but perhaps he felt that he had no alternative. However, I believe that he made a serious tactical error (unless he secretly wants a Brexit) in not insisting on a second question on membership of the European Economic Area (EEA) following a Brexit. This has allowed a thoroughly dishonest Leave campaign which means that those who vote Leave will have voted for a proverbial pig in a poke, because there has not been nearly enough discussion of what will really happen after a Brexit. A question on the ballot paper on EEA membership would forced that discussion.

One possibility might be for the UK to rejoin the European Free Trade Association (EFTA), and to follow the Norwegian model. (Given the UK’s record within the EU, and the fact that the UK’s population is well over four times that of all four current EFTA members combined, it is far from certain that EFTA would allow the UK to join and dominate it.) Along with fellow EFTA members Iceland and Lichtenstein, Norway has access to the European single market through the EEA, but in return it has to pay nearly as much to the EU as it would as a full member of the EU, without receiving anything back in the form of CAP payments or EU grants. Norway has to abide by many of the EU’s laws and regulations, but has little say in setting these. Most crucially in view of the Leave campaign’s emphasis on immigration, Norway is bound to allow free movement of workers within the EEA; it cannot restrict immigration from EU member states.

A second possibility would be to copy Switzerland, which is a member of EFTA but not of the EEA; instead, it has negotiated access to the single market through a series of bilateral agreements. Perhaps this is what the Leave campaign has in mind when they recently announced that they were confident that the UK could negotiate trade deals with Europe by 2020; EFTA membership would presumably not be essential for this. However, there is no reason to expect that the EU will offer the UK acceptable terms. There is concern among EU leaders that a ‘successful’ Brexit could lead to other EU member states following suit, and possibly even to the disintegration of the EU. Whether or not these concerns are justified, it would appear to be in the EU’s interest either to deny the UK any privileged access to the European single market, or to extract such a price for it that other EU countries will not be encouraged to follow the UK’s example.

I suspect that many who vote Leave will do so under a vague impression that a post-Brexit UK will be able to have its cake and eat it, by not having to make payments to the EU or obey EU law, but somehow still retaining access to the single market or else avoiding the damage to the economy that would result from being excluded from it. Had they been forced, by a second question on the ballot paper, to consider more fully the question of EEA membership, they might have been less inclined to vote Leave.

This referendum is not the end of the story. If Remain wins (as, on balance, I hope it does), it will only be by a narrow margin. (If the Scottish vote tips the balance in favour of Remain, I shall relish the frustration of the English nationalist component of the support for Brexit.) The Euro-sceptics amongst the Tories will not accept the verdict, but will continue attacking Cameron. With luck, the Tory party will split, or suffer enough defections to UKIP to destroy its majority in the Commons. Perhaps, one way or another, there will be a General Election. If Leave wins, the fighting within the Tory party may well continue, with the pro-European Tories arguing for EEA membership and the Euro-sceptics wanting as little to do with Europe as possible.

The sad thing about all this is that if fewer people had let themselves be intimidated by Project Fear or duped by Brown’s infamous Vow, we in Scotland would have been largely unaffected by all this. I would argue that, in the event of the UK voting for a Brexit, all supporters of Scottish independence should campaign for another independence referendum. It is likely that the EU will want to retain Scotland as part of the EU to limit the adverse consequences of a Brexit, by giving the message that if a country leaves the UK that it might just break up. In any case, an expansionist organisation such as the EU will want to give up as little territory as possible. The UK will be trying to negotiate the best possible deal with the EU, and the EU could use this to put pressure on the UK government to allow an independence referendum, while promising that an independent Scotland could inherit the UK’s unwanted EU membership. This could be our best chance, and I would suggest that even those who would like to see Scotland as an independent country outside the EU should consider voting Remain. After all, an EU member state does not need permission from the EU to hold a referendum on EU membership, and member states have a right to leave the EU by giving two years’ notice. It would be much easier for an independent Scotland to leave the EU than it is for Scotland to leave the UK.

Bad Tactics?

Some months ago, I considered writing about the pros and cons of tactical voting by independence supporters on the list vote, but then the subject was dealt with by others with strong opinions and I decided not to get involved in a potentially acrimonious debate.

First it is worth trying to estimate the possible scale of tactical voting, specifically the case of SNP supporters voting for the Greens on the list vote. Across the whole of Scotland, the SNP won 1,059,897 constituency votes and 953,587 list votes, a difference of 106,310. The Greens gained 150,246 list votes and 13,172 votes in the three constituencies where they fielded candidates. A very simplistic extrapolation of the Green constituency votes is that if they had contested all 73 constituencies they might have won 73*13172/3 or more than 320,000 votes. Given that the Greens will have contested constituencies where support for the Greens was relatively high, one might guess that the true figure would less than half of this. This is still consistent with the hypothesis that there was no significant tactical voting, and that almost all the Green list votes were cast by people who either voted Green with their constituency vote, or else would have done so, had there been a Green candidate for their constituency, but mostly voted SNP instead.

I have created a spreadsheet into which I can put the election results for a region (constituency seats won by each party and list votes). I can then transfer list votes from the SNP to the Greens and vice versa, keeping everything else unchanged, and see how this would have affected the allocation of list seats. Unfortunately, the most detailed listing of the results that I have found is on Wikipedia (https://en.wikipedia.org/wiki/Scottish_Parliament_election,_2016), and even that is not complete.

Central Scotland
The SNP would have needed another 16258 votes to win a list seat; the Green list vote was only 12722 and hence if every Green voter had switched to the SNP it would not have been enough to give the SNP a list seat. However, if 1813 (just over 1.4%) of the SNP voters had voted Green instead, the Greens would have won a list seat at the expense of the Tories.

Glasgow
If 11171 (nearly 48%) of the Green voters had voted SNP instead, the SNP would have won a list seat at the expense of the Greens; if 6136 (5.3%) of the SNP voters had voted Green instead, the Greens would have won a second list seat, at the expense of the Tories.

Highlands and Islands
If between 3608 and 7786 (24.4% to 52.7%) of the Green voters had voted SNP instead, the seat that the Greens won would have gone to the Tories instead; only if more than 7786 had switched would the final list seat have gone to the SNP rather than the Tories. If between 3388 and 7566 (4.15% to 9.3%) of the SNP voters had voted Green, the list seat that the SNP did win would have gone to the Tories instead; only if more than 7566 had switched would the SNP have gained a second seat.

Lothian
Wikipedia does not give the list vote for the SNP. At least 21678 SNP voters would have had to vote Green instead to have given the Greens a third list seat at the expense of the Tories.

Mid Scotland and Fife
If at least 736 (4.1%) of the Green voters had voted SNP instead, the seat that the Greens won would have gone to Labour. Even if every Green voter had switched to the SNP it would not have been enough to give the SNP another seat. 18787 (15.6%) of the SNP voters would have had to vote Green instead to give the Greens another seat at the expense of the Tories.

North East Scotland
Wikipedia does not give the list vote for the Greens. However, the SNP would have required nearly 35000 more votes to win a list seat.

South Scotland
Wikipedia does not give the list vote for the Greens. However, the SNP would have required 14120 more votes to win a third list seat at the expense of the Tories.

West Scotland
If 1914 (11.1%) of the Green voters had voted SNP instead, the SNP would have won a list seat at the expense of the Greens; if at least 18547 of the SNP voters (13.7%) had voted Green instead, the Greens would have won a second list seat, at the expense of the Tories.

Could tactical voting, in the form of SNP supporters voting for the Greens on the list, have cost the SNP any list seats? In three regions (Central Scotland, Mid Scotland and Fife, North East Scotland) it is impossible; in three more (Glasgow, Highlands and Islands, South Scotland) it is highly improbable; in West Scotland it is just possible, but the seat did go to the Greens.

Could more tactical voting have increased the number of pro-independence MSPs? Yes, in Central Scotland, possibly in Glasgow, perhaps even in West Scotland and Mid Scotland and Fife, all regions where the SNP did not win any list seats. On the other hand, in the Highlands and Islands more tactical voting could have caused the SNP to lose a list seat to Labour.

Overall, I think that any tactical voting by SNP supporters on the list was limited and probably had no impact on the outcome of the election in terms of numbers of seats; any attempt to blame, even partially, the failure of the SNP to win another outright majority on tactical voting would be wrong. The real worry is that not enough people voted for pro-independence parties, 47.08% on the constituency vote and 49.42% on the list vote, including RISE and Solidarity. The increase in the Conservative vote is also worrying, even if some of it is due to desertions from Labour and tactical voting on the Unionist side. I wonder if this is a consequence of the Scottish election being overshadowed by the possibility of a Brexit.

One hypothetical scenario intrigues me, although I would not advocate it as I think it would be both unethical and risky. What would have happened if the SNP and the Greens had agreed that the SNP should ask their supporters to give their list votes to the Greens, while the Greens had not contested any constituencies but asked their supporters to give their constituency votes to the SNP? Is there anything, other than public opinion, to stop two parties trying to game the Scottish electoral system in this way, to get around the fact that any party which does well on the constituency vote will suffer for it when it comes to the allocation of regional seats?

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. (en.wikipedia.org/wiki/Constitution)

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. (en.wikipedia.org/wiki/Constitutional_convention_%28political_custom%29)

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. (en.wikipedia.org/wiki/Bill_of_Rights_1689)

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. (en.wikipedia.org/wiki/Constitution#Entrenchment)

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 (constitution-unit.com/2015/10/23/the-triumph-of-evel-what-next-for-the-english-question/#more-4264).

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.