The Scottish independence referendum is deeply flawed as a democratic process because (1) the terms of independence have not been agreed before the referendum is held so Scottish voters will be buying a pig in a poke; (2) the people of England, Wales and Northern Ireland have been allowed no say in whether Scotland should be allowed to secede from the union or, if they are to be allowed to leave, the terms on which they may secede and (3) the political circumstances of the UK if Scotland votes NO to independence have gone largely unexamined.
I have dealt with the points (1) and (2) elsewhere and a great deal of public attention is being paid to what will happen if Scotland votes for independence. Consequently, I shall not further labour those matters. But point (3) does require attention because next to no attention is being paid by politicians or the mainstream media to what happens if Scotland votes to remain within the UK. The question has so far engendered little more than vague talk about DevoMax with unspecified additional powers being given to Scotland. As the vote is likely to be NO, this is a matter which needs to be publicly discussed now not after the referendum when Westminster politicians may cook up any deal they want, a deal which is likely to be, as all the other devolution deals have been, to England’s disadvantage.
The complication of the next General Election
There is a very awkward fly in the post referendum ointment: the referendum will be held in 18 September 2014 and a General Election must be held by 7 May 2015 at the latest. That raises the question of who will be making the post referendum decisions at Westminster. With a General Election so close to the referendum it is improbable that any agreement on what will happen after a NO vote could be reached before the election. The parties might produce their devolution agendas for their election manifestoes but that would be about it. Consequently, it is anybody’s guess as to which party or parties in a new coalition would be making the final decision on any further devolution of powers to put before Parliament. Equally important would be our ignorance of the size of the various parties in the Commons after the General Election, for this is an issue which is fundamental enough to make quite a few MPs vote against the party whip. A government with a small majority could easily find itself outvoted. These facts mean that all the variations of probable governments – Labour, Tory or the LibDems in coalition with either major party - and the effects of the size of the majority of the government need to be considered when judging the likely shape of devolution after a NO vote.
The moral balance after a NO Vote
On the face of it, the narrower the margin of rejection of independence the greater will be the moral bargaining power of the SNP to obtain further powers on favourable terms. However that does not automatically mean generous terms would be forthcoming, because once a vote on independence is lost the politics of the Union come into play.
To begin with it is unlikely that another vote on independence would be held for at least ten years and more probably fifteen or twenty years, even if there was growing support for it in Scotland. Westminster politicians are very short-termist and might well think the subject has been kicked into the long grass sufficiently far to forget about it. The fact that none of the major parties have shown themselves willing to take action to redress the imbalance created by the present devolutionary settlement (with England left out of the equation) suggests they may wish to restrict further devolution concessions to minor matters. However, as there is further substantial devolution of powers to Scotland (http://www.bbc.co.uk/news/uk-scotland-11863388) and quite possibly Wales (http://www.heraldscotland.com/politics/referendum-news/wales-in-line-for-extra-powers-after-major-review-of-assembly.1393858063) in the pipeline this may not be a serious bar to additional serious devolution.
Then there is the self-interest of the three major British parties. A strong case can be made for both the Tories and Labour not wanting serious amounts of new power given to Scotland. The Tories have ideological reasons; Labour and the LibDems the reason of crude numbers in the Commons.
The Tories are still at heart a Unionist party and want to retain the Union as a matter of policy. Substantial new powers would weaken the Union and new powers given now would inevitably be deemed insufficient in the future, probably in the near future, because devolution is a form of appeasement and the appeased always come back for more. Moreover, every increase in devolved powers acts in effect as preparation for independence. Eventually Scotland would reach the stage where independence would not seem such a frightening thing simply because they were doing so much themselves.
As for Labour and the LibDems, they have a direct vested interest. Greatly increased powers for Scotland would make it next to impossible to justify the present Scottish representation in the House of Commons. Both Labour and the Liberal Democrats have a substantial reliance on Scottish MPs at Westminster. Thus both parties would have a strong incentive to deny Scotland substantial new powers to ensure that Scottish MPs are not severely reduced.
All three major parties have a further reason: if substantial new powers were granted to Scotland it would be next to impossible to deny them to Wales and Northern Ireland and make the denial of an English Parliament ever more outlandish.
If the NO vote was overwhelming, on the face of it there would be no great pressure to devolve substantial new powers. An SNP which had failed to deliver either independence or DevoMax might be seen to have shot its bolt if it cannot deliver on its promises beyond a few superficial changes. At best the SNP would be severely diminished and at worst would so thoroughly discredited that they would be finished as a serious political force, doubtless remaining as an entity but restricted to an ever smaller and shriller cabal of true believers.
But even if the referendum was lost by an overwhelming vote it is unlikely that the demands for further devolved powers would diminish, especially from Scotland. As mentioned above further powers are already on the horizon. Nor would the demands for even more powers than those already proposed necessarily go unsatisfied. Devolution has already created well established regional political establishments and the presence of nationalist MPs in the Commons not only provides a permanent platform for further demands, but the existence of cabinet ministers to represent Scotland, Wales and Northern Ireland and Commons committees to promote their national interests means that there are powerful administrative mechanisms to promote and develop further devolutionary powers. Unionist MPs may also continue the fatal game (from their point of view) of imagining that giving away more and more power is the way to maintain the Union. Nor should the House of Lords be overlooked because it provides a very useful platform for both advocating further devolution and of influencing the Commons through committees of both houses and voting down and amending legislation
There is also the possibility of nationalist MPs wielding disproportionate influence if there is a hung Parliament and their votes are needed to either help form a coalition or to support a minority government on an ad hoc basis.
The alternatives to an English Parliament
But regardless of whether or not a NO vote was won narrowly or by a large majority, the elephant in the room is an English Parliament. It might be thought that if DevoMax becomes a reality, an English Parliament will be seen as a political necessity by all. That is far too sanguine.
There would be politicians who would try to refloat the idea of the Balkanisation of England through regional English assemblies – an attempt to revivify the project was made in 2012 by Labour MPs (http://www.bbc.co.uk/news/uk-england-16932030). But after the Blair government’s attempt to introduce regional assemblies met with a humiliating rejection (78% voted no) in the area deemed to have the strongest regional identity in England, the North East (http://www.theguardian.com/society/2004/nov/05/regionalgovernment.politics), it is an idea unlikely to fly.
There would also be the practical problem of producing regional devolution throughout England. If each region had a referendum to say whether or not they wanted a regional assembly, it is wildly improbable that there would be a vote for assemblies in every referendum. Indeed the referenda might well result in a universal rejection of such representation The only way all of England could be devolved to regional assemblies would be by Parliamentary action to impose it on England. That would be very unlikely to gain the support of a House of Commons, not least because any government likely to propose such devolution – it would have to be a Labour government or a Labour/LibDem coalition - would almost certainly have to rely heavily on MPs from non-English seats to pass such a measure because of the heavy Labour and LibDem reliance on MPs from the Celtic Fringe (it is rare for a Labour government with majority of landslide proportions to even hold a bare majority of English seats). To force such a change on England through the votes of non-English MPs should be politically impossible.
If there was a Tory majority government or a Tory\LibDem coalition , that would make a majority for the imposition of regional assemblies without referenda very unlikely because the Tory Party has officially opposed regional assemblies. In 2004, the Shadow Minister for the Regions Bernard Jenkin pledged that if Labour set up regional assemblies the Tories would ”l end Labour’s phoney regional agenda. Every power that Labour gives to regional assemblies, we’ll give back to local councils.” (http://www.theguardian.com/politics/2004/oct/07/conservatives2004.conservatives2). Perhaps more importantly many Tory MPs are strongly opposed to regional assemblies on principle so even if the Party leadership wanted to change the policy it is unlikely they would be able to do so. It is also worth noting that even in a coalition with the Liberal Democrats the Tories have managed to abolish unelected the Regional Development Agencies which could have been used as the skeleton for elected regional assemblies and the administration arising from them. (http://www.theguardian.com/uk/the-northerner/2012/mar/31/localgovernment-regeneration-gordon-marsden-regional-development-agencies-leps).
The other alternative which might be tried as an excuse to deny England a Parliament would be English votes on English laws. This would be difficult to implement because of the difficulty of deciding what was and was not legislation which affected England only.
It might be possible to do it simply by saying that any policy area devolved to the Scottish Parliament (which has the broadest devolution power) would also be treated as an English-only area of legislation. However, to do that would require the Welsh and Northern Ireland assemblies to have the same powers, because a good deal of the legislation currently passed at Westminster covers Wales and Northern Ireland as well as England. This happens because Wales and Northern Ireland those countries have much less devolved power than Scotland. Whether Wales and Northern Ireland would be competent to receive such extra powers or would want them is debatable at best. It is worth noting that a recent BBC Cymru Wales poll found that 23% of Welsh voters wanted to abolish the Welsh assembly (http://www.bbc.co.uk/news/uk-wales-26378274).
That is the position at present. But if Scotland was to have DEVOMAX the other home countries would have to be given the same enhanced devolved powers otherwise we would be back to a variable geometry devolution. That would greatly increase the importance of the competence and desire questions for Wales and Northern Ireland.
Apart from the difficulty of deciding what was an English-only affecting law, to exclude MPs from non-English seats from participating in English only matters would be to remove them from much of the discussion and decision making of the House of Commons. That would be so even with the current level of devolution enjoyed by Scotland. With DEVOMAX the position could become absurd because MPs for non-English seats could easily end up being restricted to not much more than the classic federal issues of foreign policy, diplomacy, defence and management of the currency. At that point the taxpayer might well ask what are we paying Scottish, Welsh and Northern Irish MPs for?
There would be a further complication with the House of Lords. At the moment England uniquely amongst the four home countries has all its domestic legislation subject to Lords scrutiny and approval. That is bad enough as things stand, but if DEVOMAX was granted to Scotland but not England the problem would be greatly magnified. Conversely, if DEVOMAX was granted to all the home countries, then the Lords would become to a large extent redundant because most of the legislation it now deals with would be removed from it.
All in all it is difficult to see how anyone could seriously put forward English votes for English laws as an answer to the injustice England currently experiences with a substantial part of their laws being decided in part by MPs from outside of England while English MPs have no say about the legislation involved in the areas of devolved powers in Scotland, Wales and Northern Ireland.
If the regional assemblies and English votes for English laws are ruled out then an English Parliament is the only alternative to the increasingly unfair dichotomy between the governance of England and the rest of the UK. The neatest solution would be to go for a true federal solution. Instead of having separate members elected to the Commons and national assemblies, a member should be elected to serve in both the Commons (when non-devolved matters are dealt with) and their national assembly to deal with devolved matters. The Commons should also serve as the English national Parliament with of course only English MPs sitting. This would prevent any great additional expense from either a new English Parliament or additional politicians. Indeed, there would be fewer with the ending of separate members for the Celtic Fringe national assemblies and the House of Commons.
Whether the Lords needs to be retained is debatable. I do not like single chamber parliaments because they have no brake on them, but it is not obvious what function the Lords would have once and English Parliament was up and running. Perhaps the Lords (or some other second chamber) could deal just with non-devolved powers. That would at least place England on an equal basis with the other home countries with all devolved issues being subject to a single chamber national parliament. If the UK had a written constitution, something sorely needed, the Lords could also act as a form of Grand Jury to decide constitutional questions.
The one thing which is absolutely clear is that the practical need and moral justification for an English Parliament, which is already great, would be substantially advanced by a vote against Scottish independence and an increase in devolved power to Scotland.