At the time the Edinburgh Agreement was signed, I argued that its most problematic aspect was the exclusion of a second question on further devolution; amongst other reasons, I thought that the question of what alternative constitutional futures for Scotland might be on offer would inevitably form part of the independence debate. So it has come to pass. In recent weeks, we have had the second report from the Liberal Democrats’ Home Rule and Community Rule Commission (Campbell II) and the final report from Scottish Labour’s Devolution Commission, Powers for a Purpose – Strengthening Accountability and Empowering People, with the Scottish Conservatives’ Strathclyde Commission apparently due to report in May. Meanwhile, a range of other groups – including Reform Scotland, Devo Plus, and the Institute for Public Policy Research – have published their own proposals for increased autonomy for Scotland.
It is clear, however, that proponents of further devolution face a serious credibility gap. A poll by ICM Research in this week’s Scotland on Sunday showed that, while 68% of those polled thought that the Scottish Parliament should have responsibility for tax and welfare, fewer than two fifths believed that Scotland will be given more powers if it rejects independence. In this post I will argue that there are three distinct elements to this credibility problem. These relate, first, to trust in the unionist parties to deliver further devolution; second, to the coherence of the proposals on offer by them; and, third, to their ability to deliver aspects of those proposals.
The most serious problem, I would argue, is one of trust: is it credible to believe that any further constitutional reform will take place in the event of a no vote in September? Had there been a second question on the referendum ballot paper, a majority vote in favour of further devolution would have created overwhelming political pressure to deliver more powers to Holyrood. But in the absence of a second question, where will the pressure come from to ensure that a majority in favour of ‘no’ to independence is treated as actually meaning ‘yes’ to further devolution?
The two most obvious answers to that question are to point, first, to the dynamic nature of devolution and, second, to the fact that all three main parties are committed to further devolution. As both the Liberal Democrat and Labour papers emphasise, there have already been significant adjustments to the devolution settlements in Wales (in 2006 and 2011) and Scotland (in 2012) since 1999, and more minor transfers of power to Northern Ireland, with further fiscal powers having already been agreed for Wales and further substantive powers proposed. The implication, therefore, is that there is no reason to doubt the sincerity of the unionist parties’ commitment to greater powers for Scotland. Equally, if all three main Westminster parties are committed to reform, whichever party or combination of parties is in power after May 2015 can be trusted to deliver.
There are, however, problems with both responses.
In the first place, it cannot necessarily be assumed that reform in the past will mean reform in the future. Nor can the dynamism which has characterised devolution in Wales be assumed to apply to Scotland. Wales has essentially been playing a game of catch up with the initially far more generous devolution settlements in Scotland and Northern Ireland. By contrast, the only significant expansion of the Scottish Parliament’s powers – the Calman Commission proposals, as implemented in the Scotland Act 2012 – was clearly a political response to the success of the SNP at the 2007 Holyrood election. Indeed, while the Labour party likes to portray itself as the party of devolution, and devolution as a unionist project, an account of devolution which ignores the nationalist dimension would be seriously misleading. Whatever the position might be in other parts of the United Kingdom, the modern history of devolution in Scotland cannot credibly be understood without reference to the electoral success of the SNP (in the 1960s and 1970s and again after 2007) and the rising self-consciousness of Scotland as a self-determining political unit (affirmed by the Scottish Constitutional Convention in the late 1980s and 1990s, in the 1997 devolution referendum, and again in the independence referendum).
In that context, if the nationalist threat is removed by a ‘no’ vote in the referendum, what reason is there to pander further to Scotland’s desire for autonomy? Admittedly, the electoral threat from the SNP (to Labour in particular) does not look it will go away – the most recent poll puts the SNP comfortably ahead on voting intentions at the next Scottish Parliament election. However, since it is clear that a vote for the SNP at Holyrood does not automatically translate into support for independence, it cannot be assumed that offering greater powers to Scotland will do anything to boost support for the unionist parties. On the contrary, expanding Holyrood's powers may simply serve to strengthen Scotland’s political identity, thereby increasing the likelihood of independence at some point in the future.
Secondly, the fact that the three main unionist parties are all committed to further devolution will also count for less than it might have done because of the lack of any cross-party agreement around any particular set of proposals. Since it does not seem likely that there will be any such agreement in advance of the referendum, voters will be required to make their choice in the referendum with no certainty as to what for further measures of devolution might be implemented in the event of a no vote. Nor, in contrast both to the original devolution proposals and the 2012 Act reforms, which were both forged through genuinely broad-based and consultative processes, will there be the same cross-party pressure to ensure that reform takes place. It is, of course, possible– as the Liberal Democrats propose in Campbell II – that cross-party talks could be convened shortly after the referendum and consensus on reached on a package of reforms. Alternatively, party competition may act to maintain focus on the issue during the 2015 Westminster election. Equally, though, it is conceivable that the impetus for reform could be lost in the wrangling over details. Moreover, further appetite for constitutional reform is hard to square with the impatience with the independence debate frequently expressed by unionist campaigners.
This lack of cross-party agreement exacerbates the second reason why proposals for further devolution lack credibility, which is the coherence of the proposals themselves. The Labour Devolution Commission’s proposals have been heavily criticised by their own supporters as well as, more predictably, by yes campaigners. But the point I’m making about lack of coherence is a broader one than the persuasiveness or otherwise of any particular set of proposals. Rather, I’m questioning whether there is a convincing, principled basis at all on which to draw the line between the powers which should be devolved to Holyrood and those which should be retained by Westminster. To its credit, the Calman Commission attempted to articulate such a principled basis in its 2009 report, yet what it regarded as the maximum possible amount of devolution consistent with maintenance of the union has already been overtaken before its recommendations have fully come into effect.
The difficulty here is threefold. The first concerns the basis on which to decide how powers should be allocated. Calman identified three principles of union – political, economic and social – which formed the basis for its detailed proposals. Of these, it arguably regarded maintenance of the economic union as the most significant constraint on the ability to devolve powers further. Labour’s Devolution Commission report also refers to the political, economic and social unions, but adds its own gloss in the form of the ‘sharing union’. For Labour, the pooling and sharing of resources in support not only of equal civil and political rights, but also the same basic social and economic rights, is the key moral purpose of the union, and it militates against any significant transfer of welfare powers. In Campbell II, there are no fewer than nine separate unions which inform its view of the appropriate allocation of powers. Each of these visions of the ‘purposes’ of the union is, of course, ahistorical (as the Labour party report admits). However, in the absence of any clear historical (or constitutional) anchor, identification of the purposes of union can be nothing more than a matter of political preference. That being so, despite calls from both Labour and the Liberal Democrats for an explicit statement of the purposes of the union as part of a post-referendum process of constitutional reform, it seems inherently unlikely that that all parties will agree as to what those purposes should be. Nor have the negative terms in which the anti-independence campaign has been conducted done anything to promote a consensus view.
The second problem is that, even if there were such a consensus over the purposes of the union, there would still be scope for disagreement about whether particular devolution proposals were compatible or incompatible with them. For instance, Labour’s proposals for devolution of income tax were substantially watered down as between its interim report (now disappeared from its website) and its final report, reportedly due to opposition from Westminster MPs. Similarly, the Calman Commission rejected any further devolution of energy policy to Scotland, arguing that a UK-wide approach was ‘essential for ensuring a continuing national supply, that international targets and obligations are met and that consumers have access to a competitive and modern energy market.’ (para 5.105) Yet this ignored the fact that energy powers are already almost entirely devolved in Northern Ireland, which in fact maintains a successful cross-border electricity market with the Republic of Ireland.
This points to the third problem with any attempt to build a principled basis for the division of powers, which is the asymmetric nature of devolution. It is simply not credible to suggest that there is a principled and coherent basis for the divergent constitutional settlements in Scotland, Wales and Northern Ireland, let alone for the lack of any meaningful devolution in England. These different constitutional settlements can only be understood as pragmatic responses to varying political circumstances, and it is disingenuous to suggest that proposals for further devolution to Scotland are any different. In these circumstances, the best that can be hoped for is cross-party agreement, so as to shut down awkward questions about lack of coherence.
Ability to Deliver
The final credibility problem relates to the ability of the unionist parties to deliver on proposals for further constitutional reform. Both the Liberal Democrats and Labour are promising not only further powers for the Scottish Parliament, but also an enhanced constitutional status. In particular, both argue that its existence should be legally, and not merely politically, entrenched.
The difficulty here is that any entrenchment of the powers of the Scottish Parliament – and a corresponding diminution of the UK Parliament’s legislative sovereignty – would be a very big constitutional change indeed. The question, then, is how is such a change to be secured?
For the Liberal Democrats, the ultimate aim is a fully federal United Kingdom, with an accompanying written constitution, but they recognise that this is not likely to occur for some time. In the meantime, however, they suggest that a federal relationship between Scotland and the UK could be secured by a resolution in the UK Parliament formally committing it not to legislate in areas of Scottish Parliament competence without the latter’s consent - in effect embodying the principles of the Sewel convention. But of course, such a resolution would have no legal effect; at best it would only serve to reinforce the political entrenchment of the Scottish Parliament, something which they claim is already largely secured by the Sewel convention.
The Labour Party proposals are equally problematic. In their case, there is no explicit commitment to a written constitution. However, they do go further than the Liberal Democrats in proposing to amend section 28(7) of the Scotland Act 1998 (which declares that the legislative competence of the Scottish Parliament ‘does not affect the power of the Parliament of the United Kingdom to make laws for Scotland’) to give statutory effect to the Sewel convention. Again, however, this does not amount to a legal entrenchment of the powers of the Scottish Parliament. The orthodox doctrine of Parliamentary sovereignty would suggest that such a provision could be repealed or simply ignored by a later Parliament.
This is not to say that it would be impossible to entrench the powers of the Scottish Parliament short of a wholesale adoption of a written constitution. On the contrary, there are plenty of hints from judges, both on and off the bench, that Parliamentary sovereignty may no longer be absolute. The Supreme Court has already held (in BH v Lord Advocate  1 AC 413) that the Scotland Act 1998 cannot be impliedly repealed, and it is not entirely unthinkable that it might be prepared to enforce the Sewel convention, particularly if section 28(7) were to be amended. Nevertheless, such an outcome could clearly not be guaranteed by the unionist parties on their proposals as they currently stand. Nor does there seem to be much realistic prospect of broader constitutional reform process in which the powers of the Scottish Parliament might be more effectively secured.
The key tactic employed by the unionist parties in their attack on independence has been the demand for certainty – a demand which the yes campaign can never hope fully to satisfy. However, the inevitably unsuccessful attempt to reduce to the referendum debate to a binary choice – yes or no to independence – has left the no campaign unnecessarily vulnerable to the same line of attack. Unless there is some dramatic development between now and September, voting ‘no’ in the hope of enhanced devolution requires almost as much of a leap of faith as a vote in favour of independence.