The West Lothian Question on steroids
Christopher Hyland, 10 June 2014
With less than 100 days to go until the Scottish independence referendum, much has already been rumoured about the effects of a ‘Yes’ vote on the amount and immediacy of Scottish representation in various international bodies and organisations – most especially, the EU. But less consideration has been given to the unprecedented constitutional anomalies that a ‘Yes’ vote in September would create for the entirety of the UK.
Of course, the secession of Scotland would be the most drastic constitutional rupture within the UK since the secession of the Irish Free State in 1922, involving a host of problems: apportionment of liabilities and overseas land, and, indeed, the proportion of oil revenues with which Alex Salmond will be afforded his Sweden-on-the-Clyde.
But a ‘Yes’ vote would also have very serious political effects for the rest of the UK (rUK) – what Scottish journalist Alex Massie has characterised as “the West Lothian Question on steroids” – most particularly affecting the operation of the House of Commons, and the composition and durability of any government elected in 2015.
The results of the Scottish independence referendum will be known in September 2014. A five-year Parliament will be elected by the entirety of the UK in 2015, regardless of the referendum outcome. This creates a slight problem. Removing the 59 Scottish MPs could quite easily affect the balance of power in the House of Commons, and potentially force a change of government.
Since 1945, there have been two elections in which the largest party in the Commons might have been different were Scottish MPs excluded: 1964 and February 1974 (both Labour majorities reliant on Scottish MPs). More recently, Scottish MPs made the difference in 2010, preventing an outright Conservative majority.
In the event of a ‘Yes’ vote, the 59 Scottish MPs elected in 2015 – mostly Labour and the SNP, to judge by recent history – will be departing in 2017. (This, at least, is the recommendation of the Parliamentary Constitution Committee: in point of law, however, those Scottish MPs would be entitled to serve their full terms). It’s easy to see, therefore, that a government with a slight majority – say, a Labour one – could be elected in 2015, and yet automatically lose its majority after Scottish independence in 2017.
Alternatively, a minority grouping in the Commons could gain a majority after secession. Furthermore, this ‘deadline’ for the term of the government would be known immediately after the 2015 election. It is not unknown for governments to lose the support of the House unexpectedly; but for a government to have been elected from the start for only two years is unheard of in recent times. The effects on the business and conduct of government – either tending to promote a lassitude of the lame-duck variety, or else a frenetic attempt to fulfil five years’ work in two – would be incalculable, but likely at any rate to be deleterious.
The Constitution Committee in Parliament has, in a number of reports, been highlighting these problems to the Government. But rather worryingly,they record Alistair Carmichael MP, the Secretary of State for Scotland, saying that: “Until the people of Scotland decide otherwise, the United Kingdom must act in the interests of all parts of the United Kingdom, including Scotland. That is why the UK Government are not making plans for the implications of a yes vote …” Hope for the best, prepare for the worst is, perhaps, not a maxim currently in favour in Whitehall.
The dangerous absurdity of Scots MPs continuing to sit at Westminster after a Yes vote is not the only unanswered question about the immediate post-Yes vote situation. I wrote this in 2013
The Scottish Independence Referendum – unanswered questions
Posted on November 27, 2013 by Robert Henderson
Robert Henderson
NB UK2 stands for the UK containing England, Wales and Northern Ireland
The vote on Scottish independence is in 2014. The next UK general election is scheduled for 2015. The date for Scotland to leave the Union is 2016. Assuming Scotland votes for independence these unanswered questions need addressing:
1. When will existing MPs sitting in Scottish seats be expelled from the Commons? Will they be allowed to continue sitting in the Commons until the 2015 general election?
2. Will Scottish Westminster seats which fall vacant before the Independence referendum be filled in the normal way with a bye-election?
3. What will happen to Scottish Westminster seats which fall vacant after a vote in 2014 to leave the Union but before the 2016 formal departure date? Will there be a bye-election to fill the seat until the formal departure or will the seat be left vacant?
4. What will happen to peers who have hereditary Scottish titles or are Scottish life peers?
Unless they are excluded from the Lords they would continue to have a say in UK2’s politics after Scottish independence. The cleanest solution would be to insist on peers residing in England, Wales or Northern Ireland and make any peer wishing to sit in the Lords divest themselves of any formal nationality other than British. That would mean peers were in a different position to the rest of the population with regard to legal nationality, including MPs, who can at present hold more than one nationality. The answer would be to make illegal the holding of anything other than British nationality by anyone sitting in the Lords or Commons .
5. What will happen to those holding British passports who find themselves in an independent Scotland or wish to have Scottish nationality whilst living elsewhere? This would be a good time to deny dual nationality to British citizens generally.
6. What will be the position of Scotland and the rest of the UK (UK2) respectively with regard to the EU? There is no precedent for an EU member splitting into separate sovereign states and the component parts of the original EU state being taking back into the EU. Both logically and legally it is difficult to see how the EU could allow either or both of Scotland and UK2 back in without a further Treaty agreed by the other 27 states. Several of those states would require referenda before such a Treaty could be approved.
7. What if Scotland or UK2 were refused admission to the EU or decided they did not want to join the EU? If one country was outside the EU it would have to apply the barriers to trade that the EU states apply generally to those outside the European Economic Area (EEA)
8. What would happen to immigration between UK2 and Scotland? The danger is of Scotland allowing large numbers of people to enter Scotland knowing that these people would almost all head straight for England. Whether or not Scotland was a member of the EU, there would have to be strict immigration controls on those coming from outside the EEA and if either Scotland or UK2 was outside the EU, there would be a strong case for imposing border controls.
9.What currency will Scotland use? The position with the Pound Sterling is beautifully simple: Scotland was allowed to use the English currency after they signed the Treaty of Union in 1707, having discarded their Scottish Pound, which was only worth a few English shillings. If they leave the Union they break the Treaty of Union and consequently no longer have any legal right to use the Pound. It would be a disaster for England if Scotland was allowed to use the Pound because in practice England would be the lender of last resort for Scottish financial institutions through the Bank of England and even without a financial catastrophe Scottish fiscal recklessness could generally weaken the Pound. Scotland should have to choose between the Euro or a new Scottish currency. If Scotland has to reapply for EU membership she would probably be forced to take the Euro as all new state are obligated to do so.
10. How will the oil and gas revenues be divided? Even if this was left simply to a matter of what is in whose territorial waters Scotland could get much less than they estimate (around 90%+) if the territorial waters are determined by lines drawn at the angle of the coast at the English/Scottish border. Moreover, a good deal of the oil is around the Scottish islands, who have been making noises about not wishing to be part of an independent Scotland. Shale oil and gas also comes into the picture. Most of the likely UK shale deposits are in England. It would be a grand irony if Scotland cut herself off from a share of the revenues from these by opting for independence.
11. From what date will Scotland’s proportionate share of the UK national debt be calculated? It would be significantly lower if calculated at the time of the 2014 referendum rather than the formal date of leaving in 2016.
12. How will Scotland finance the servicing of her proportionate share of the UK national debt?
If she retains the Pound this could be done simply by paying to the British Treasury the sum needed to service it. Scotland would be able to reduce the servicing charge by making payments to the British Treasury to reduce the debt.
If Scotland does not retain the Pound she would either have to join the Euro or establish a new Scottish currency. Either could be a very dodgy proposition. To safeguard UK2’s interests, Scotland should be forced to raise the money, if she can, through issuing her own bonds, converting these into a safe currency and then passing the money to UK2. Alternatively she could buy safe currency and pass that to UK2.
13. Since the Union in 1707, Scotland has taken far more from the Westminster Treasury than she has raised in tax. What payment is Scotland to make to the rest of the UK to repay this subsidy from the rest of the UK (in effect from England)?
14. What will happen to the state holdings in the banks RBS and Lloyds? At the moment these are both net liabilities not assets because the share value of both means the £45 billion put into them by the UK taxpayer could not be recouped if the shares were sold.
15. How are the assets of the UK to be divided between Scotland and UK2? For the material assets which are physically fixed the only practical way would be for Scotland to retain what is in Scotland and UK2 to retain what is in UK2. The moveable assets such as military ones could be divided, but there would be little point in giving Scotland equipment they could not afford to use, for example, the larger surface ships or submarines. The Trident deterrent must be removed to an English base together with any other ships allocated to UK2 which are currently based in Scotland and warship building retained in Portsmouth. The only substantial overseas assets would be the diplomatic operations in embassies and consulates. However, these have been scaled back over the past thirty years. An agreement would probably have to be made whereby the UK2 kept the properties and offset some of the Scottish share of the UK national debt against their notional share.
I6. If an independent Scotland cannot or will not maintain armed forces equivalent to those now stationed in Scotland, what will happen to the men and equipment? Will the British Army absorb them?
17. There are many public sector jobs in Scotland which service the rest of the UK (http://www.theguardian.com/public-leaders-network/blog/2012/aug/14/unified-scottish-civil-service-not-that-simple). How long after the vote for independence will they be removed to the part of the UK which they actually serve?
18. Who will be responsible for paying the pensions of civil servants working in Scotland but servicing another part of the UK?
19. What proportion of the overall UK public sector pension entitlement at the time of independence will Scotland be responsible for? This pension entitlement will include those paid to the armed forces, British Eurocrats and the diplomatic service.
20. At what date will the accumulated public sector pensions of the UK be calculated? Immediately after the vote for independence, the date of formal independence or what? The later the date the larger the Scottish liability.
21. Will those with Scottish nationality have to have work permits to work in UK2?
22. What will happen to the BBC? At the moment Scotland gets a very good deal because she pays in proportion to her population, but gets the benefit of the entire BBC output, the vast majority of which is paid for by English TV licence payers. There is no reason why an independent Scotland should continue to do so. They should form their own public service broadcaster (if that is what they want) and purchase BBC programmes on the same basis as any other foreign country.
The terms on which Scotland could secede from the Union should be agreed before any Scottish vote on independence. Agreement to the terms should be through a referendum of voters in England, Wales and Northern Ireland. Only if accepted by those voters should the independence question be put to the Scottish electorate. That question should be Do you wish to have independence on the terms offered by the rest of UK?
The position is aggravated by the Edinburgh Agreement signed between Cameron and Salmond where Cameron sold the rest of the UK down the river, viz:
http://englandcalling.wordpress.com/2014/03/15/scottish-independence-how-cameron-sold-england-down-the-river-with-the-edinburgh-agreement/
Scottish Independence – How Cameron sold England down the river with the Edinburgh Agreement
Posted on March 15, 2014 by Robert Henderson
Robert Henderson
The Edinburgh Agreement was signed By David Cameron and Alex Salmon in Edinburgh on 15 October 2012.
(http://www.scotland.gov.uk/About/Government/concordats/Referendum-on-independence#MemorandumofUnderstanding ).
It established the legal basis for the Scottish independence referendum.
The first point to note is that Cameron went to Edinburgh. As Scotland are a supplicant which wishes to leave the Union, Cameron should have insisted that Salmond came to Westminster. By going to Edinburgh it at best created a spurious equality between UK national government and the devolved Scottish one and at worst that Salmond was controlling the negotiations. .
The gratuitous pandering to Salmond went far beyond the place of negotiation and signing. The clauses in the agreement which pander to the SNP are these:
4. The Order enables the Scottish Parliament to legislate for a referendum that takes place at any point before the end of 2014. The date of the poll will be for the Scottish Parliament to determine and will be set out in the Referendum Bill to be introduced by the Scottish Government. The Order requires the poll for this referendum to be held on a day with no other poll provided for by legislation of the Scottish Parliament.
6. The Order enables the Scottish Parliament to legislate for a referendum with one question on independence. The wording of the question will be for the Scottish Parliament to determine and will be set out in the Referendum Bill to be introduced by the Scottish Government, subject to the Electoral Commission’s review process, as set out in the paragraphs which follow.
9. The Referendum Bill introduced by the Scottish Government will create a franchise for the referendum. Both governments agree that all those entitled to vote in Scottish Parliamentary and local government elections should be able to vote in the referendum.
10. The Scottish Government’s consultation on the referendum also set out a proposal for extending the franchise to allow 16 and 17 year-olds to vote in the referendum. It will be for the Scottish Government to decide whether to propose extending the franchise for this referendum and how that should be done. It will be for the Scottish Parliament to approve the referendum franchise, as it would be for any referendum on devolved matters.
11. The Scottish Government’s decision on what to propose to the Scottish Parliament will be informed by the analysis of responses to its consultation exercise and by practical considerations. The Order does not restrict the extension of the franchise in the case of this referendum.
25. The Referendum Bill to be introduced by the Scottish Government will provide for the spending limits in the regulated period for the independence referendum. Both governments agree that the rules and standards set out in PPERA provide the basis for setting the limits.
Cameron gave away any say in the following matters by leaving it to the Scottish parliament to decide what should be done:
1. The general referendum legislation
2. The date of the referendum
3. The referendum question
4. The franchise
5. The referendum expenditure rules
There is also a clause which may well cause difficulty should there be a vote for Scottish independence, viz:
30. The United Kingdom and Scottish Governments are committed, through the Memorandum of Understanding 4between them and others, to working together on matters of mutual interest and to the principles of good communication and mutual respect. The two governments have reached this agreement in that spirit. They look forward to a referendum that is legal and fair producing a decisive and respected outcome. The two governments are committed to continue to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom.
The final sentence is the fly in the ointment. Although it is vaguely worded it could give Salmond a platform to argue for things such as a currency union.