The sub-title of HMG’s Cm 8990, “Scotland and the United Kingdom” is “An Enduring Settlement”. Is it? No. What does the title “An Enduring Settlement” mean?
Even Alistair Carmichael MP does not seem to understand what it means; for he offers us an enduring settlement that even in his own bland, vapid Foreword to Cm. 8990, is described somewhat inconsistently as “another significant milestone in Scotland’s devolution journey within the UK”; a journey to where, we may now slightly bemusedly wonder, since we are told that we are enduringly settled here? Perhaps Carmichael should here be reminded of the words of Jo Grimond (who was an authentic Liberal) on the subject of Home Rule; as quoted by David Steel in a speech given in Orkney in 2013:
“I do not like the word devolution as it has come to be called. It implies that power rests at Westminster, from which centre some may be graciously devolved. I would rather begin by assuming that power should rest with the people who entrust it to their representatives to discharge the essential tasks of government. Once we accept that the Scots and the Welsh are nations, then we must accord them parliaments which have all the normal powers of government, except for those that they delegate to the United Kingdom government or the EEC. I find it difficult to see how, if the case for Scottish and Welsh self-government is accepted at all, any powers can be reserved to the UK government except foreign affairs, defence, and the wider issues of economic policy linked to a common currency and common trade policies. So when we consider Parliament we must think of three Parliaments and of a much restricted Westminster Parliament” (Jo Grimond, ‘a Personal Manifesto’; 1983).
I think we can take it that for any genuine liberals (small or large ‘L’) out there, this is not Home Rule. Ben Thomson (Campaign for Scottish Home Rule) focuses on the paper’s “lack of purpose”, cogently identifying the hollowness at the heart of both the Smith Commission and Cm. 8990: neither are constructed from the first principles of Home Rule. This concern with underpinning ‘principles’ we may fairly state, is quite fundamental to any genuine intention to achieve a meaningful constitutional settlement. We may thus surmise that both Smth and Cm.8990 offer nothing more than mere lists, front-window a la carte menus, randomly chosen for the delectation of casual passers-by. For example, it is striking that so much is made of the devolution of income-tax rates: this is deliberate; but be in no doubt, the headline rate is of little substantive economic significance, and that is why it has been devolved. It is devolved because it is unlikely that any Scottish Government will ever risk using it; and if it does resort to raising or lowering the rate of income-tax in isolation (for it does not have power over thresholds, or over other taxes, or sufficient economic tools to frame a functioning policy), this will produce little economic benefit, but bring maximum political grief to the party involved; and that is its sole purpose from a Wesminster prespective.
Furthermore, for those who believe Cm. paper 8990 provides an answer, the first thing to observe is that it is a piece of paper; and stands as no more than any other Westminster Parliamentary, pre-election piece-of-paper; it is a hostage to fortune, to desuetude, and to bad faith; all features that have noticably afflicted Westminster, once too often in recent years. The only feature of Cm. 8990 that ensures anything at all being achieved after the General Election is the fear in Westminster that the ‘elephent in the room’; the 1.6m people who voted ‘Yes’ in September are not going away; and that the long-term political momentum is with them.
It should be fairly obvious, even in Westminster that the defence of the Union and the status-quo ante has now fallen – it must be said principally through the profound, practical inadequacy of Unionism per se – to the quite noticeably tawdry, third-rate, meretricious remnants of the Labour Party in Scotland which are still standing after the referendum, in something now approaching incoherent, rage-consumed disarray; to plead a peculiarly shabby, cynical spin-doctored case for Westminster to a sceptical public.
It is striking that one of the first matters Cm 8990 asserts in detail, is to reserve the provisions of the Equality Act 2010 (Executive Summary). This sets the precedent for the general approach; reserve first, devolve what is left. It then asserts with some pride that the capacity of the Scottish Parliament to function is through Westminster’s use of the Sewel Convention (a ‘self-denying’ ordinance with no status, save use and custom; see Section 1.1.2); a “convention” that is in the circumstances a mere rerminder that Cm 8990 fails to achieve the purpose of creating Home Rule (still less Federalism) in this over-centralised, non-federal, apparatchik-driven, so-called ‘family of nations’. The Sewel Convention is going to be placed “on a statutory footing”; but the future content of that new statue remains to be seen, and statutes can be changed or even repealed, for that is the power on which Westminster has chosen to rest its absolute authority; for this ‘convention’ to ensure permanence it requires to be part of a new British Constitution; a written constitution. Indeed, lest anyone should doubt that this is all merely deriviative, subordinate, limited piecemeal devolution, in 1.4.6 of Cm.8990 it is made clear that “the UK consitution remains reserved”. Indeed we may add to “reserved”, it remains wholly unchanged.
Much has been made of the ‘consultation’ process inscribed within Cm. 8990; it requires consultation by a Scottish Government with Westminster , but not a veto? Of course it is a liberum veto, and not to admit this is merely disingenuous. It is not a veto only so long as Westminster chooses not to exercise it; another hostage to fortune.
Far more time has been spent in writing this Cm paper to ensure the security of Westminster over the matters that are reserved, than the matters that are actually devolved. It betrays the cloth-eared but cynical mindset of Kafka’s Castle. And these remarks are merly be way of introduction to the failure of Cm.8990 …