SELECT COMMITTEE ON THE CONSTITUTION - UK …€¦ · · 2016-05-241 SELECT COMMITTEE ON THE CONSTITUTION The Union and devolution Oral and written evidence Contents A Force for

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SELECT COMMITTEE ON THE CONSTITUTION

The Union and devolution

Oral and written evidence

Contents A Force for GoodWritten evidence (UDE0023) ............................................................................ 6

Tony Armstrong, LocalityOral evidence (QQ 211-218) ............................................................. 16

Professor Arthur Aughey, Ulster UniversityWritten evidence (UDE0003) ........................... 17

Professor Arthur Aughey, University of UlsterOral evidence (QQ 299-304) ....................... 22

Claire Baker MSP, LabourOral evidence (QQ 134-140) ............................................................. 33

Mr John BingleyWritten evidence (UDE0047) ............................................................................... 49

Professor Derek Birrell, Ulster UniversityWritten evidence (UDE0052) ............................... 53

Professor Derek Birrell, University of UlsterOral evidence (QQ 299-304) .......................... 57

Professor Derek Birrell, Ulster UniversitySupplementary written evidence (UDE0071) ... 58

Jessica Blair, Institute of Welsh AffairsOral evidence (QQ 274-280) ...................................... 59

Dr Andrew Blick, Kings College LondonWritten evidence (UDE0029) ................................ 68

Professor Philip Booth, Institute for Economic AffairsOral evidence (QQ 100-104) .......... 75

The British AcademyWritten evidence (UDE0037) ..................................................................... 82

Councillor Robert Brown, Liberal DemocratsOral evidence (QQ 134-140) ........................ 88

Dame Rosemary Butler AM, Welsh AssemblyWritten evidence (UDE0038)........................ 89

Mr Peter John CairnsWritten evidence (UDE0049) .................................................................... 95

Sir Kenneth Calman, former Chairman of the Commission on Scottish DevolutionOral

evidence (QQ 18-31) ............................................................................................................................... 96

Campaign for a Cornish AssemblyOral evidence (QQ 115-122) .......................................... 109

Campaign for a Cornish AssemblySupplementary written evidence (UDE0063) ............... 110

Campaign for an English ParliamentWritten Evidence (UDE0012) ........................................ 113

Campaign for an English ParliamentOral evidence (QQ 115-122) ........................................ 122

Maggie Chapman, Scottish Green PartyOral evidence (QQ 134-140) ................................. 131

Garry Clark, Scottish Chambers of CommerceOral evidence (QQ 168-174) ................... 132

Mr Stewart ConnellWritten evidence (UDE0006) .................................................................... 133

Constitution Reform GroupWritten Evidence (UDE0045)..................................................... 138

Constitution Reform GroupOral evidence (QQ 202-210) ..................................................... 141

Constitution Reform GroupSupplementary written evidence (UDE0072) .......................... 149

The Constitution SocietyWritten evidence (UDE0019) .......................................................... 150

Ben Cottam, Federation of Small Businesses in WalesOral evidence (QQ 281-288) ....... 153

2 of 734

Ed Cox, Institute for Public Policy Research (North)Oral evidence (QQ 105-114) ......... 163

Scilla Cullen, Campaign for an English ParliamentOral evidence (QQ 115-122) ................ 175

Professor John Curtice, University of StrathclydeWritten evidence (UDE0056) .............. 176

Professor John Curtice, University of StrathclydeOral evidence (QQ 57-67) .................... 183

Dr Paolo Dardanelli, University of KentWritten evidence (UDE0035) ................................ 198

Andrew RT Davies AM, ConservativesOral evidence (QQ 255-263) .................................. 203

Professor Russell Deacon, Swansea UniversityWritten evidence (UDE0020) .................... 220

Brendan Donnelly, Federal Trust for Education and ResearchOral evidence

(QQ 68-82) ............................................................................................................................................. 222

Mark Durkan MP, Social Democratic Labour Party-Oral evidence (QQ 305-311) ................ 223

Dr Jan Eichhorn, University of EdinburghWritten evidence (UDE0055).............................. 231

Dr Jan Eichhorn, University of EdinburghOral evidence (QQ 57-67) ................................... 237

Ms Adrianne ElsonWritten evidence (UDE0014) ...................................................................... 238

Sir John Elvidge, former Permanent Secretary to the Scottish GovernmentOral evidence

(QQ 141-148) ......................................................................................................................................... 239

Lord EmpeyOral evidence (QQ 289-298) ................................................................................... 247

Alun Evans, former Director of the Scotland OfficeOral evidence (QQ 93-99) ................ 256

Alun Evans, former Director of the Scotland OfficeSupplementary written evidence

(UDE0062) ............................................................................................................................................... 264

Federal Trust for Education and ResearchWritten evidence (UDE0018) ............................ 266

Federal Trust for Education and ResearchOral evidence (QQ 68-82) ................................. 273

Professor Matthew Flinders, Sheffield UniversityOral evidence (QQ 219-225) ................. 285

Professor Matthew Flinders, University of SheffieldSupplementary written evidence

(UDE0067) ............................................................................................................................................... 295

Professor Jim Gallagher, Nuffield College, University of OxfordOral evidence

(QQ 44-56) ............................................................................................................................................. 297

Julian German, Campaign for a Cornish AssemblyOral evidence (QQ 115-122) .............. 298

Katie Ghose, Electoral Reform SocietyOral evidence (QQ 219-225) .................................. 299

Baroness Goldie MSP, ConservativesOral evidence (QQ 134-140) ..................................... 300

Daniel Greenberg, Constitution Reform GroupOral evidence (QQ 202-210) .................. 301

Lord Hain, Constitution Reform GroupOral evidence (QQ 202-210) ................................ 302

Mr John HartiganWritten evidence (UDE0013) ......................................................................... 303

Professor Colin Harvey, Queens University, BelfastOral evidence (QQ 299-304) .......... 305

Professor Robert Hazell, University College LondonOral evidence (QQ 10-17) .............. 306

Professor Robert Hazell, University College LondonSupplementary written evidence

(UDE0054) ............................................................................................................................................... 314

Professor Ailsa Henderson, University of EdinburghOral evidence (QQ 83-92) ............... 317

Professor Ailsa Henderson, University of EdinburghSupplementary written evidence

(UDE0065) ............................................................................................................................................... 331

3 of 734

Stephen Herring, Institute of DirectorsOral evidence (QQ 180-189) ................................. 341

Mr Ruairi HipkinWritten evidence (UDE0002) .......................................................................... 342

Fiona Hyslop MSP, Cabinet Secretary for Culture, Europe and External Affairs, Scottish

National PartyOral evidence (QQ 123-133) ............................................................................... 352

Institute for GovernmentWritten evidence (UDE0048) .......................................................... 368

Institute for GovernmentOral evidence (QQ 32-43) ............................................................... 373

Institute of DirectorsWritten Evidence (UDE0064) ................................................................. 385

Institute of DirectorsOral evidence (QQ 180-189) .................................................................. 388

Mr James JeavonsWritten evidence (UDE0016) ........................................................................ 400

Professor Charlie Jeffery, University of EdinburghOral evidence (QQ 44-56) ................... 402

Rt Hon Carwyn Jones AM, First Minister of WalesOral evidence (QQ 242-254) ............ 424

Professor Sir Jeffrey Jowell QCWritten evidence (UDE0053) ............................................... 437

Professor Sir Jeffrey Jowell QC, Director of the Bingham Centre on the Rule of Law

Oral evidence (QQ 1-9) .................................................................................................................. 441

Justice for WalesWritten evidence (UDE0025) ......................................................................... 442

Professor Michael Keating, University of AberdeenWritten evidence (UDE0010) ........... 448

Professor Michael Keating, University of AberdeenOral evidence (QQ 149-159) ............ 451

Owen Kelly, Scottish Financial EnterpriseOral evidence (QQ 168-174) ............................. 466

Lord Kerslake, former Head of the Civil ServiceOral evidence (QQ 226-241) ................. 477

Professor Colin Kidd, University of St AndrewsWritten evidence (UDE0007) ................. 478

Professor Charles Lees, University of BathWritten evidence (UDE0058) .......................... 482

Sir Richard Leese, Core CitiesOral evidence (QQ 190-201) ................................................. 494

Rt Hon. Oliver Letwin MP, Chancellor of the Duchy of LancasterOral evidence

(QQ 312-327) ......................................................................................................................................... 506

Rt Hon. Oliver Letwin MP, Chancellor of the Duchy of LancasterSupplementary written

evidence (UDE0070) ............................................................................................................................. 525

Mr Christopher LukeWritten evidence (UDE0011) ................................................................. 526

Dr Cormac Mac Amhlaigh, University of EdinburghWritten evidence (UDE0036) ........... 534

Mr Ian MartlewWritten evidence (UDE0040) ............................................................................ 542

Professor Nicola McEwen, University of EdinburghOral evidence (QQ 83-92) ................ 548

Professor Nicola McEwen, University of EdinburghSupplementary written evidence

(UDE0061) ............................................................................................................................................... 549

Martin McTague, Federation of Small BusinessesOral evidence (QQ 180-189) ................. 551

The Mile End Institute, Queen Mary University of LondonWritten evidence

(UDE0042) ............................................................................................................................................... 552

Professor James Mitchell, University of EdinburghOral evidence (QQ 149-159) .............. 556

Dr David S Moon, University of BathOral evidence (QQ 264-273) ..................................... 557

Dame Gillian MorganWritten evidence (UDE0066) ................................................................. 558

4 of 734

Rt Hon. the Lord Morrow MLAWritten evidence (UDE0068) .............................................. 562

Mr Colin Murray, Newcastle Law SchoolWritten evidence (UDE0051) ............................. 568

Mr Bill Noakes Written evidence (UDE0026) ............................................................................ 574

Lord ODonnell, former Head of the Civil ServiceOral evidence (QQ 226-241) ............. 576

Akash Paun, Institute for GovernmentOral evidence (QQ 32-43)........................................ 592

Dr Bettina Petersohn, University of Swansea and Centre on Constitutional Change

Written evidence (UDE0043) ............................................................................................................. 593

Political Studies AssociationWritten evidence (UDE0033) ..................................................... 598

Lord Porter of Spalding, Local Government AssociationOral evidence (QQ 190-201) ... 605

Dr Hugh Rawlings, Constitution Affairs and Inter-Governmental Relations, Welsh

GovernmentOral evidence (QQ 242-254) .................................................................................. 606

Professor Richard Rawlings, University College LondonWritten evidence (UDE0009) ... 607

Professor Richard Rawlings, University College LondonSupplementary written evidence

(UDE0022) ............................................................................................................................................... 610

Professor Richard Rawlings, University College LondonOral evidence (QQ 264-273) ... 612

Dr Carlotta Redi, Centre on Constitutional ChangeWritten evidence (UDE0044) ......... 626

ResPublicaWritten evidence (UDE0039) ..................................................................................... 629

Rt Hon. Peter Riddell CBE, Institute for GovernmentOral evidence (QQ 32-43) ............ 632

Alexandra Runswick, Unlock DemocracyOral evidence (QQ 68-82) .................................. 633

Lord Salisbury, Constitution Reform GroupOral evidence (QQ 202-210) ......................... 634

Scotland in UnionWritten evidence (UDE0017) ........................................................................ 635

Mr Paul Scott, Lecturer in Public Law, University of SouthamptonWritten evidence

(UDE0027) ............................................................................................................................................... 642

Professor Roger Scully, Cardiff UniversityWritten evidence (UDE0069) ............................ 646

Mr Donald ShellWritten evidence (UDE0030) ........................................................................... 649

Sir Paul Silk, former Chairman of the Commission on Devolution in WalesOral evidence

(QQ 18-31) ............................................................................................................................................. 651

Martin Sime, Scottish Council for Voluntary OrganisationsOral evidence

(QQ 175-179) ......................................................................................................................................... 652

Society of Conservative LawyersWritten Evidence (UDE0028) ............................................ 658

Willie Sullivan, Electoral Reform Society (Scotland)Oral evidence (QQ 160-167) ............ 672

Mr David B TaylorWritten evidence (UDE0050) ...................................................................... 678

Professor Robert Thomas, University of ManchesterOral evidence (QQ 264-273) ......... 679

Steve Thomas CBE, Welsh Local Government AssociationOral evidence

(QQ 281-288) ......................................................................................................................................... 680

Ken Thomson, Director-General Strategy and External Affairs, Scottish Government

Oral evidence (QQ 123-133) ......................................................................................................... 681

Professor Adam Tomkins , University of GlasgowWritten evidence (UDE0021) ............. 682

Professor Adam Tomkins, University of GlasgowOral evidence (QQ 1-9) ........................ 689

5 of 734

Professor Adam Tomkins, University of GlasgowSupplementary written evidence

(UDE0057) ............................................................................................................................................... 703

Paul Nowak, Trades Union CongressOral evidence (QQ 211-218) ..................................... 704

Professor Alan Trench, University of UlsterOral evidence (QQ 44-56) ............................. 715

United against SeparationWritten evidence (UDE0046) .......................................................... 716

Professor Neil Walker, University of EdinburghOral evidence (QQ 149-159) .................. 720

Dr Ben Wellings, Monash University, AustraliaWritten evidence (UDE0032) ................... 721

The Welsh GovernmentWritten evidence (UDE0024) ........................................................... 726

Kirsty Williams AM, Liberal DemocratsOral evidence (QQ 255-263) ................................. 732

Dr Victoria Winckler, Bevan FoundationOral evidence (QQ 274-280) ............................... 733

Leanne Wood AM, Plaid CymruOral evidence (QQ 255-263) .............................................. 734

A Force for GoodWritten evidence (UDE0023)

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A Force for GoodWritten evidence (UDE0023) About Us: A Force For Good 'A Force For Good' was launched by Alistair McConnachie on 21 March 2012 in order to campaign for a No vote at the referendum on 18 September 2014. It is both an Online and Physical Project located at aForceForGood.org.uk Alistair McConnachie was the first 'Individual' to register as a 'Permitted Participant' for a 'No'. The Project continued, full-time, after the referendum. It does not support any political party or religious group. He has a degree in Scots Law, and is happy to attend a Public Hearing. A Force For Good 4-Point Statement of Position The Position upon which we stand, and from which we judge the Philosophy, Policy, Projects and Activity which we promote: 1. The United Kingdom of Great Britain and Northern Ireland shall be maintained. 2. The United Kingdom is, and shall remain, primarily a Unitary State and One Nation. 3. Ever Closer Union between all the people and parts of the United Kingdom including but not limited to elements; social, cultural, educational, economic, legal, territorial and political shall be pursued. 4. The House of Windsor shall continue to provide the Head of State for the United Kingdom. Read more> http://www.aforceforgood.org.uk/info/about The following 6 and a half pages address the Key Questions asked at http://www.parliament.uk/business/committees/committees-a-z/lords-select/constitution-committee/news-parliament-2015/devolution-launch KEY QUESTIONS IS THE UK'S CURRENT CONSTITUTIONAL AND LEGAL FRAMEWORK ABLE TO PROVIDE A STABLE FOUNDATION FOR THE DEVOLUTION SETTLEMENT? 1. We do not use the word 'settlement' in relation to devolution since, clearly, nothing is 'settled'. 2. The basic constitutional and legal 'framework' of the UK is sufficient. The real task is educating

our legislators to understand what is the United Kingdom (see para 6 below); to have a 'philosophy of Union' (see para 10 below) and to understand what is devolution (see para 16 below).

3. If these basics are not understood by our legislators then a stable foundation cannot be

provided. 4. Unfortunately, the story of our constitutional and legal framework post-1999 devolution has

been of a political class who don't understand these basics. 5. Consequently, they do not understand how the United Kingdom can be compromised and

threatened by nationalist, separatist and federalist ideology and policy. Nor do they understand how it can be strengthened.

http://www.aforceforgood.org.uk/info/abouthttp://www.parliament.uk/business/committees/committees-a-z/lords-select/constitution-committee/news-parliament-2015/devolution-launchhttp://www.parliament.uk/business/committees/committees-a-z/lords-select/constitution-committee/news-parliament-2015/devolution-launch


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6. What is the United Kingdom? Contrary to the mistaken claim made in the Select Committee's 'Call for Evidence' document, the UK is not just a 'Union State', although it has elements of that nature. It is primarily a Unitary State. From the understanding of the UK as primarily a Unitary State, all else follows.

7. What is the difference? A Union State is 'a Union of 4 Nations'. A Unitary State is 'One Nation of

Unions'. A Union State is 'a Family of Nations'. A Unitary State is 'a Nation of Families'. 8. The UK cannot be held together if the fundamental understanding of it is wrong! Imagining the

UK merely as a 'Union State' is to expose it and make it vulnerable to nationalist, separatist and federalist ideology and policy which, as we can see daily, only compromises its potential for unity and encourages division and dissolution.

9. Understanding the UK as primarily a Unitary State, however, ensures that the ideology and

policy which feed it will tend towards its unity and survival. With this understanding comes the ability to protect the UK from fracture.

WHAT ARE THE KEY PRINCIPLES UNDERLYING THE UNION? 10. We addressed this question in our speech on 18 June 2015 entitled, 'One UK: The British Union

from 30 First Principles' which can be read in full at http://www.aforceforgood.org.uk/strategy/firstprins We identified 8 Broad Areas, and 30 Key Principles which underlie the British Union. In summary these are:

PRINCIPLES OF STATE Principle 1: The United Kingdom is a Unitary State Principle 2: The United Kingdom is One Country and One Nation Principle 3: The United Kingdom is a Family Principle 4: The United Kingdom is an End in itself, and not only a Means to an End PRINCIPLES OF RELATIONSHIP Principle 5: The Nature of a Union is Joint Commitment to a Greater Collective Good Principle 6: It is Wrong to Demand More Powers and Expect to Remain in Union Principle 7: A British Frame of Mind puts First the Interest of all Britain Principle 8: Policy and Implications for all the UK is our Concern, not just for England, Northern Ireland, Scotland or Wales separately PRINCIPLES OF EQUALITY Principle 9: Any Discrimination, including Economic Discrimination, towards a British Citizen based on the Grounds of his or her Place of Residence in the UK shall be Prohibited Principle 10: All British citizens must have Access to the Same Top-Rate Welfare Payments and Benefits PRINCIPLES OF ECONOMY Principle 11: The UK is a Sharing and Redistributive Tax Union Principle 12: Mineral and Energy Resources throughout the UK belong to all British Citizens PRINCIPLE OF IDENTITY

http://www.aforceforgood.org.uk/strategy/firstprins


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Principle 13: The British Identity requires Political Union PRINCIPLES OF CONSTITUTIONAL UNITY Principle 14: Any change to One Part of the United Kingdom has to have Regard to the Whole of the UK and the Whole of the UK has to be Involved Principle 15: It Shall be Difficult to Break-Up the Country Principle 16: All Constitutional Matters Regarding the Union of the United Kingdom must be Made by Primary Legislation PRINCIPLES OF PARLIAMENTARY UNITY Principle 17: Laws are Made by the British Parliament Principle 18: The British Parliament has Complete Authority over all its Subsidiary Bodies Principle 19: The British Parliament has a Responsibility to all the People of Britain to Retain its Complete Authority over all Actions of any Subsidiary Body Principle 20: Every Law Passed in the British Parliament affects Everyone in the UK Principle 21: All British Citizens Must have a Say over Governance in all Parts of the UK Principle 22: Every British MP Represents, and Makes Decisions for, all of Britain Principle 23: Every MP has a Right to Vote on Everything that comes before the British Parliament Principle 24: The Constitutional Model must Allow for an MP from Anywhere in the UK to Become Prime Minister PRINCIPLES OF DEVOLUTION Principle 25: Devolution is British State Power Exercised by a Subsidiary Body Principle 26: Devolution must be Consistent with the Maintenance of the UK as a Unitary State Principle 27: Devolution is a Two-way Process Principle 28: Devolution is Dangerous to a Unitary State in the presence of a Separatist Movement Principle 29: Any Devolved Power can and will be Used by a Separatist Administration for a Divisive Purpose to Further its anti-UK Agenda Principle 30: Scottish Separatism will Never be Appeased ON WHAT PRINCIPLES ARE THE UK'S DEVOLUTION SETTLEMENTS BASED, OR ON WHAT PRINCIPLES SHOULD THEY BE BASED? 11. Again, we do not use the word 'settlements' since the devolution situations are changing all the

time 'Devolution Reactions', or 'Devolution Instabilities' would be more accurate terms. 12. These devolution situations are not based on any firm principles whatsoever. They are reactionary

in nature, thoughtless in character, and heedless of what we term the Big Picture of Britain. 13. That is to say, any proposals for devolution (hitherto, and at present) merely react to the power

of the Nationalists. They seek to give more powers to them without any thought of where, politically, that will place the Nationalists in a few years; and they do so without any heed to how it will affect the Big Picture of the unity of Britain.

14. The Smith Commission proposals, and the content in the current Scotland Bill, are both perfect

examples of this reactionary, thoughtless and heedless approach. 15. Neither Smith nor the Scotland Bill pay any attention to what 'devolution' is even meant to be in

theory.


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16. Our 'Principles of Devolution' (above) identified 6 Principles upon which Devolution should be based, the most basic of which is Principle 25: 'Devolution is British State Power Exercised by a Subsidiary Body'.

17. That is, the political power should remain entirely with the central British State, albeit exercised

at a subsidiary level. That means the British State should retain the power to veto, take back, and even abolish otherwise we do not have devolution.

18. It should retain these powers because devolution is not the casting-off the abandonment of

British state power from the centre, and its establishment in a new sovereign body in a new state. In a case where the central power the British State abandons its law-making power and its position as the supreme arbiter, and where it no longer retains, even in theory, the power to veto, take back devolved powers, or even to abolish, then we do not have devolution. We have the granting of slow independence a completely different policy.

19. Elements in the current Scotland Bill amount to a granting of slow independence. For example,

making the Scottish Parliament 'permanent' in law, and the idea that the British Parliament should not be able to veto policies of the Scottish Parliament.

20. Why are these things wrong to be included in the Bill? The answer is that the British Parliament

must be able to veto devolved policies (and take back powers, and even abolish Holyrood if only in theory) because the British Parliament stands for and represents the entire United Kingdom; and so long as we are in Union then everyone in the UK has a stake in what Holyrood, or any devolved institution may do.

21. For example, if Holyrood does something which prejudices or endangers the rest of the UK,

then the rest of the UK must have a say and an ability to stop it, via the British Parliament. If we don't even believe this, then we may as well just grant independence to Holyrood because we would already be conceding to it a form of 'slow independence'.

22. It is fair to say that the Nationalists at Holyrood have absolutely no respect for this conception

of devolution. But then again, it is not as if any pro-UK politicians are making the case for this either.

WHAT IS THE EFFECT ON THE UNION OF THE ASYMMETRY OF THE DEVOLUTION SETTLEMENT ACROSS THE UK? IS THE IMPACT OF ASYMMETRY AN ISSUE THAT NEEDS TO BE ADDRESSED? IF SO, HOW? 23. Again, we don't use the word 'settlement' and it seems absurd to use such a word given the

obviously unstable, and endlessly destabilising, nature of 'devolution' in the UK. 24. However, to answer the question: It is not the 'asymmetry of the devolution' which is the

primary concern. Rather, it is the context and the content of the devolution which is the primary concern and the resulting attitude of the Nationalists towards the rest of the United Kingdom.

25. Focusing on the 'asymmetry' is missing the fundamental problem, as far as keeping the UK

together is concerned.


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26. After all, it could be possible to imagine an 'asymmetric' devolutionary arrangement which did not damage the integrity of the UK if the context of it was not submission to a Nationalist agenda (para 13 above) and the content of it was respectful of the primacy of the British State (para 16 above), and everyone's attitude was supportive of the UK.

27. It is not possible to imagine it at present, though, because devolution has still to be properly

understood by our politicians as British State Power Exercised by a Subsidiary Body (para 16 above), rather than as simply a convenient short-term way of appeasing Nationalists by granting them 'slow independence'.

28. How would we address the 'asymmetry' or rather what would we do to address the

fundamental problem with its context and the content in which it is located? 29. The first and best way of dealing with this 'asymmetry' is not to make it worse! 30. More legislative 'devolution' (slow independence) via the present Scotland Bill, will continue to

undermine the unionist case for the UK, which depends upon shared political institutions and laws, and the blurring not highlighting of difference. It will continue to make some people in England upset about 'asymmetry', possibly leading to potential crisis.

31. Secondly, we addressed the matter of 'How to Do Devolution Properly' in our article of that

name at: http://www.aforceforgood.org.uk/devo/admin 32. We made 4 Recommendations, which we repeat here and which help to address the

'asymmetry' but which is really the fundamental problem regarding the context and content, and attitude towards the devolution situation:

Recommendation 1: Do Not Devolve on the Basis of Identity 33. If legislative powers are devolved on the basis of presumed 'local', 'regional' or 'national'

identity, then this can encourage factionalism. It can lay the ground for potential future regionalist or nationalist platforms, and consequently, the break-up of the wider British State.

34. Some people say they want to respect local differences. That seems fair enough. But there is a

big difference between respecting local, regional or national social and cultural differences, and highlighting and amplifying those differences. The first can help people to get along, while the second can lead to division.

35. This is especially so when Nationalists are in the ascendant. The separatists will use any powers

which they acquire in order to accentuate differences, and make it impossible for them to be reconciled; in order to promote their long term goal of division. There is no power available which they cannot exploit for this end.

Recommendation 2: Devolve Across Local, Regional and National 'Borders' 36. Following from Recommendation 1 that devolution should not be on the basis solely of

identity we should therefore always involve a 'cross-border' element which seeks to bind everyone in common cause.

http://www.aforceforgood.org.uk/devo/admin


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37. For example, it might involve say, 'the western islands of Scotland and parts of the west coast of Scotland' or 'the southern counties of Scotland and the northern counties of England' ('the Middleland' as it has been called by Rory Stewart MP), or various cities and localities working in partnership throughout the UK. In the latter regard, the British Government's 'City Deal' programme is on the right lines.

Recommendation 3: Relate Everything Back to the Overall Context of 'One UK' 38. We need to keep reminding ourselves of the bigger picture of unity. If devolution is not to

degenerate into 'slow independence' and parochial forms of factionalism and nationalism which are destructive to the cohesion of the wider society, then the Big Picture of Britain, and its Unitary (not 'Union') characteristics, must be kept centre stage.

Recommendation 4: Concentrate on Administrative Devolution: Scottish Office to Local Councils (Bypassing Holyrood) 39. Put the emphasis on Administrative Devolution, rather than Legislative Devolution. The former

does not threaten the authority of the Unitary State. The latter is a playground for nationalism, separatism and federalism.

40. For example, devolution of powers to Local Councils should be (and always should have been

from the start) directly from the British centre. That is, the Scottish Office (representing the British Parliament in Scotland) should have the control and should devolve powers, administratively not legislatively, directly to the Local Councils. This leaves the British Parliament representative of all the British people in ultimate control.

41. However, any kind of Legislative Devolution of local powers from the British Parliament, to

Holyrood, and then from Holyrood to Local Councils, simply empowers Holyrood which is to say, the SNP for the foreseeable future.

42. Of course, the Nationalists will howl blue murder at such a recommendation, because it

frustrates their total grip on power, but those of us who believe in the UK should be very clear about the democratic reasons for such an arrangement, as well as the constitutional reasons for such a balance.

43. As we said in more detail in our article, 'How to Do Devolution Properly' (para 31 above), this

would also have the advantage of building up the Scottish Office again. It would help to put the British Parliament back at the heart of Scottish political life and local affairs. It would help to re-establish the centrality of the wider British Context (para 26 above); and to make relevant once more the rest of the UK, and all its people, to Scotland.

44. In this regard, we used the example of how the devolution of Crown Estate powers which is

proposed in the current Scotland Bill should instead be devolved administratively to Local Councils, instead of legislatively to Holyrood.

WHAT MIGHT BE THE EFFECT OF DEVOLVING POWERS OVER TAXATION AND WELFARE ON THE ECONOMIC AND SOCIAL UNION WITHIN THE UK? ARE THERE MEASURES THAT SHOULD BE ADOPTED TO ADDRESS THE EFFECTS OF THE DEVOLUTION OF TAX AND WELFARE POWERS? 45. We are wholly opposed to the devolution of taxation and welfare powers, on principle.


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46. However, if this is to go ahead, then we believe that there is a way to mitigate the inequality,

and potential tax and welfare-envy, which will arise UK-wide as a result. 47. We believe that it could be mitigated by the establishment in UK law of our Principle 9 above:

'Any Discrimination, including Economic Discrimination, towards a British Citizen based on the Grounds of his or her Place of Residence in the UK shall be Prohibited'.

48. We call this the British Equality Principle, or the Non-Discrimination Clause. 49. This Principle means that every British citizen must be treated the same; and regardless of

where they move to, or where their main residence is found to be located, should not be disadvantaged economically, or advantaged economically, under any form of state-related payment such as, but not limited to, welfare and benefit payments, student-related payments, or pension payments; and regardless of from whom, or where, the taxes for such payments are raised.

50. Prior to devolution, this Principle used to exist in the UK without it having to be said! Since

devolution, it has become compromised. 51. If Holyrood is to get powers over tax and welfare, then this British Equality Principle will be

further compromised. 52. It seems wrong that while Britain will abide by the EU rules on such equality matters, it is

prepared to compromise this important general principle in relation to its own citizens, and put at risk our shared sense of social solidarity.

53. So if these substantial tax powers are going to be devolved throughout the UK and we don't

want them to be but if they are then one way of mitigating the potential dangers of them, and redeeming, to an extent, their negative consequences upon our social union, would be for the British Government to state that this principle of Non-Discrimination must govern the spending behaviours of the devolved parliaments and assemblies on the matter.

54. We explain our ideas further under Principle 9 at

http://www.aforceforgood.org.uk/strategy/firstprins 55. Following from Principle 9, our Principle 10 above states: 'All British citizens must have Access to

the Same Top-Rate Welfare Payments and Benefits'. 56. It is not enough to have access to the same basic welfare payments; not if some parts of the

United Kingdom can top-up the basic rate to a much higher level! For the principle of non-discrimination to exist, every British citizen has to have access not to the lowest level, but to the highest level of any particular welfare payment, regardless of where in the UK they are resident, or where the higher level is located. Otherwise, this is a form of economic discrimination based on residence, which again is contrary to the British Equality Principle.

57. The establishment of a British Equality Principle would go some way to mitigating the negative

effects of such devolved measures, as well as reasserting the importance of the shared British identity at the heart of our tax and welfare system.

http://www.aforceforgood.org.uk/strategy/firstprins


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58. And as per our Principle 11, above: 'The UK is a Sharing and Redistributive Tax Union'. This was one of our key arguments for the Union at the time of the referendum. For this now to be compromised means that we will struggle to make this argument again, if there were ever another referendum.

59. In addition, the establishment of a separate Scottish tax collecting organisation paid for on the

back of the British taxpayer also means that "Her Majesty's Revenue and Customs" risks being downgraded, replaced and ultimately driven out; thereby reducing and removing yet another British institution in Scotland.

60. We argued effectively against the huge set-up costs of such an unnecessary organisation during

the referendum. Now we find that this expenditure is going to be made, after all, and paid for by all the British taxpayers instead not just the ones in Scotland, as would have been the case under independence. This also removes another argument against separation if there were to be another referendum.

61. In effect, this amounts to the British Government enlisting all the British taxpayers to help build

the institutions of a new and potentially separate Scottish state. How the SNP must be laughing! WHAT PRACTICAL STEPS, BOTH LEGISLATIVE AND NON-LEGISLATIVE, CAN BE TAKEN TO STABILISE OR REINFORCE THE UNION? HOW SHOULD THESE BE IMPLEMENTED? 62. The aim of a Union, legislatively, socially and culturally, is to blur differences, not to highlight them

in sharp relief. 63. At present because legislators are conceiving of the UK as a 'Union State' rather than the

Unitary State which it is all the legislative direction is towards separation. Yet, there is an alternative way. As each day passes, we should be bringing everyone in Scotland, and throughout the UK, closer together. As each day passes, we should not be finding ways to drive ourselves apart, or to accentuate our differences, or create division where none existed before, but we should be finding ways to bind all the British people together in common understanding and cause.

64. What to do? The first requirement is 'Don't Make Matters Worse'. Unfortunately, the present

Scotland Bill is an example of something which could not be better designed to make matters worse.

65. While it is not possible to imagine it being ditched even though the Government has the

majority to do that there are Clauses which could and should easily be dropped, and which would help protect the pro-UK majority.

66. For example, drop the devolution of the British Transport Police. As soon as the Nationalists

acquire this power they will abolish 'the British' bit, leading to the death of another British institution in Scotland. They do this as part of their agenda to make the social and cultural struggle harder for pro-UK people in Scotland.

67. Drop any requirement for the British Broadcasting Corporation to answer to Holyrood via

Ofcom. It is the long-term aim of the Nationalists to subvert and convert the BBC, through pressure, into a 'Scottish Broadcasting Corporation' answerable to them. Any subservience of


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the BBC to the Scottish Nationalists would further damage the social and cultural identity of pro-UK people in Scotland.

68. Drop the devolution of road signs. Road signs are widespread, hugely visible potential political

banners. This is why the SNP wants control over them. If it controls this competency, it could make all signs dual-language; brand all signs with 'Scottish Government' logos; invent new road symbols just to be different from English roads; change everything to metres, and possibly kilometres and even though 'Measurements' are a reserved matter, it will argue (correctly) that it is doing it within a competence which is devolved. This could lead to a separate Highway Code for Scotland; which would lead to a separate Driving Licence for Scotland.

69. We do not exaggerate. We know this because this is what the SNP does! It creates difference for the sake of it in order to create division for its own political ends. Our politicians need to be alert to the cultural danger of the Road Sign Clauses and drop them forthwith. We wrote more on this: http://www.aforceforgood.org.uk/devo/unionvid2

70. Do not make Holyrood 'permanent' in law. As above (paras 19-21 above), that would

compromise the idea that the British Parliament is the supreme governing body. 71. Ensure the British Parliament is able to veto Holyrood decisions. This ensures that in theory, at

least, the British Parliament remains the governing body and that 'Devolution is British State Power Exercised by a Subsidiary Body'.

72. We've already mentioned the importance of strengthening the Scottish Office by switching

some of the legislative devolution in the Scotland Bill, to administrative devolution (paras 39-44 above).

73. The second requirement is to ensure 'ever closer union' legislatively. 74. Just as the EU frames its laws to encourage 'ever closer union' within the EU, it should be a

principle and an aim of the British Government at all times, and the administration at Holyrood when it is under unionist control to ensure 'ever closer union' within the UK.

75. In this regard, we should establish in law our Principle 27 above that: 'Devolution is a Two-Way

Process'. This means it should be considered natural for devolved powers to be moderated, adjusted, rescinded or returned to the British centre, where appropriate. This is in keeping with the idea of the UK as a Unitary State.

76. After all, if we accept that the Union must be maintained, and that the Scottish Parliament is

intended to 'strengthen the Union', and if we believe in the principle of 'ever closer union' for the UK, then there should be no reluctance in principle to moderate, adjust, rescind or return a devolved competence if that competence is being used in a way which is damaging to our Union. There should be an assumption that it is possible. There should be nothing controversial about that assumption. It should be written into law, and all legislation related to devolution, including the current Scotland Bill, should state this assumption.

77. Other ideas: Establish a UK Constitutional Veto: Safeguard against Future Rogue Laws by an

additional Paragraph in the Scotland Act 1998: For example, in order to safeguard against future devolved rogue laws which damage the Union, a further paragraph 'c' should be added to

http://www.aforceforgood.org.uk/devo/unionvid2


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Section 35 (1) of the Scotland Act 1998 (Power to intervene in certain cases) which should state something along the lines of: "If a Bill contains provisions which the Secretary of State has reasonable grounds to believe would be incompatible with the principle of ever closer union for the United Kingdom, or contrary to the principle that devolution must strengthen the Union, or incompatible with the principles of equality of opportunity and non-discrimination throughout the United Kingdom, he may make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent."

78. Establish a Ministry, and Minister of State, for the Union: To bring everything together we

need the British Parliament to set up a specific Ministry, and a UK Minister, for the Union. Its task would be to promote the social and cultural value of the United Kingdom, and to spot and prevent and defeat legislative threats to the Union.

79. The third requirement is to understand the importance of the social and cultural element of

politics. 80. Some of the Clauses we have highlighted above in the current Scotland Bill (for example, paras

66-72) indicate clearly that the British Government, 'unionist' MPs (and civil servants who come up with this stuff) have absolutely no clue about this vital element of politics. What else explains their willingness to offer up the BBC to SNP oversight, or endanger the British Transport Police (both a form of cultural sacrifice), or the complete absence of any Clause in the Bill which might strengthen the bonds of unity in the UK?

81. Socially and culturally, we made several suggestions in our speech of 18 June 2013, entitled,

'Ever Closer Union: Over 50 Suggestions to Promote the Social Union and the Cultural Value of the United Kingdom'. It can be read here: http://www.aforceforgood.org.uk/vision/uk12

30 September 2015

http://www.aforceforgood.org.uk/vision/uk12

Tony Armstrong, LocalityOral evidence (QQ 211-218)

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Tony Armstrong, LocalityOral evidence (QQ 211-218)

Transcript to be found under Paul Nowak, Trades Union Congress

Professor Arthur Aughey, Ulster UniversityWritten evidence (UDE0003)

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Professor Arthur Aughey, Ulster UniversityWritten evidence (UDE0003) This submission is made on an individual basis I welcome this opportunity to make this written submission to the House of Lords Constitution Committee. I share its concern about the lack of a coherent vision for the Union. My remarks are mainly addressed to the first theme of the Committees inquiry: identifying the principles that should underlie the existence and governance of the Union and the exercise of power, both centrally and by the devolved nations. Other scholars have made already important proposals on the second theme, specifying practical steps could be taken to stabilise and strengthen the Union. I only touch briefly on the second theme at the end of this submission consistent with the principles identified. 1 The Union 1.1 How to describe the United Kingdom (UK) has exercised the definitional ingenuity of academics. The term unitary state is no longer fashionable, long since replaced by the more appropriate term, union state. James Mitchells imaginative state of unions has found favour recently, a definition which captures the institutional and legal variations in the UK as a consequence of devolution.1 My preference remains the term multinational state. 1.2 One of the clearest, if venerable, expressions of this multinational Union was by Sir Ernest Barker who, for much of the 20th century, was the official philosopher of the UK. UK multiculturalism for Barker meant a common political identity as well as an acknowledgement of national difference. Multi-national democracies will collapse, Barker thought, unless: 'as we have somehow managed in our island, such a State can be both multinational and a single nation.2 Barker identified the efficient, if paradoxical, secret of multinationalism: On the one hand, political representation at Westminster secured the common interest of its component nations. On the other hand, it was through the accommodation of diverse and distinctive institutions, practices and cultures that national identities were sustained. This is what Barker called the distinctive British mixture of unity and diversity, one in which each individual nation contributed to collective strength and each nation got more by being included in the wider scope of the United Kingdom than by being separate.3 1.3 The UKs capacity to act as a single state despite its multinational composition distinguished it internationally (and this distinctiveness was to become even clearer with the break-up of former communist states, like Yugoslavia or Czechoslovakia, in the 1990s). Nevertheless, describing the UK as a multinational state calls attention to those things which differentiate the parts and this always risks undermining the UKs capacity to see itself as a whole, something which scholars spotted early.4 Devolution, of course, has institutionalised and politicised that differentiation of parts. In principle, greater autonomy for the parts need not affect the integrity of the whole. But the politics of national identity can foster multinational fragmentation by promoting only the one narrative of differentiation unless, that is, a countervailing narrative of commonality can establish a renewed post-devolutionary balance. The Committee is correct to be concerned that there is a present popular sense of differentiation rather than commonality. It is this balance which this Committee is considering, defined as a more stable settlement that will preserve and strengthen the Union as a whole. It correctly identifies the need to give meaning and coherence to the Union.


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2 Principles 2.1 What, then, are the key principles of the Union? In my view a paradoxical term best captures its character. That term is elective affinity, one familiar to students of the German sociologist Max Weber: elective suggests agency and deliberate choice; affinity implies that individuals and nations are related by something other than choice. In short, the component nationalities of the UK elect to stay in constitutional relationship with one another and this relationship exhibits affinities which give continued substance to the term British. Elective affinity captures well the intersection of self-understanding and self-interest in the history of the Union. It takes the form of shared institutions, formal and informal arrangements, similar policy objectives and common commitments, all of which involve not only self-conscious election or democratic choice but also sentimental or emotional identification. 2.2 I would argue that the recent Scottish referendum was actually a demonstration of elective affinity in practice. The majority who voted no to independence elected to remain part of the UK and those who voted yes accepted the outcome (at least for the moment). And that choice implies an attendant affinity for the Union. Indeed, I suggest that in this regard the referendum is a good example of UK principles in practice. Its process was agreed formally between the British and Scottish governments; it was legislated for by the Scottish Parliament; and it resulted in an unprecedented high turnout. The outcome on 19th September 2014 represents a positive expression of Scotlands place in United Kingdom, something unparalleled since 1707 (and never in the era of democratic politics). 2.3 Consent, as Lord Bew remarked recently, was once the territorial principle that dared not speak its name but is now the acknowledged rule of British constitutional procedure.5 That subsequent events may not have unfolded as supporters of the Union would have expected (or desired) does not deny the operative principle. However, this active consent triggers a new dynamic for change. Negatively, this can be interpreted as the rise and rise of the Scottish National Party (SNP) intent on undoing the Union. Positively, this can be understood as an opportunity to make the Union relevant again to all its citizens. 2.4 The multinational Union can be sustained only on the principle of consent, and that is the best and most durable way of doing so. However, this consent does not entail any fixed notion of what institutions should do or what the relationship between them should be. Doing justice to what is distinctive to and what is common in the UK has always been a delicate enterprise. The historical objective of central government, or Westminster, has been to secure common rights of citizenship within the shared space of the UK, where expressions of national difference need not conflict with the achievement of multinational purpose. The term which emerged during the Scottish referendum to describe this common good was solidarity. And that solidarity involves the very real and immediate issues of politics: who gets what, where, when and how. Devolution, I suggest, is a modification of that fact and not its undoing, despite the rise in support for the SNP. 2.5 To summarise: in 2008, the Prime Minister used the analogy of the UK Chief Rabbi to describe what the UK is not but which it could become if a clear idea of the Union is not articulated and institutionalised. The analogy is with a hotel in which the guests live in different rooms, rarely interact and the hotel administration is merely a useful service provider. That is where nationalist thinking also takes us and invites check out. What the Prime Minister proposed as an alternative is the idea of the UK as a home with common foundations in which distinctive national identities are


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not at odds with but complement a common political allegiance.6 This means citizenship of a country and not a reservation in a merely temporary political space. The political debate remains between nationalists and those with dual loyalties to both their nation and to the UK. 3 Devolution 3.1 Devolution of power to the Scottish Parliament and to the Welsh and Northern Ireland Assemblies has altered the framework for the negotiation of who gets what, where, when and how. Achieving that purpose now requires more open political debate about the relation between multinational and national priorities. It makes the constitutional process more transparent. Devolved institutions also provide new but not exclusive locations for the expression of citizenship: participation in elections, lobbying representatives and identification with new public symbolism. So the political bargaining between devolved institutions and Westminster is much more politicised. Multinational solidarity is qualified by another term: multinational contract. The contractual nature of the UK involves distinctive claims for money and resources by its nations and regions. This can be turned easily into the politics of national and regional grievance, for example over the Barnett Formula and it is this politics of grievance which often hits the headlines. So the UK exhibits, post devolution, a principled political debate between the claims of contract and solidarity.7 3.2 Political research has identified another paradox: the devolution paradox. The paradox is that while citizens in Scotland, Wales and, with qualifications, Northern Ireland appreciate the ability of devolved institutions to deliver policy diversity there is also a wish for common standards of public service throughout the UK.8 If this appears contradictory it provides further social science confirmation of elective affinity in action. Citizens choose difference in particular but claim affinity in general. The Scottish vote last year confirms that paradox, even when pushed to the political limit. 3.3 Devolution in general - and the Scottish Referendum debate in particular raises another question. What is the relationship between instrumental support for the Union (implying choice, or contract) and allegiant support for the Union (implying affinity, or solidarity)? Some scholars have asked a fundamental question: what is the UK for in the 21st century? For nationalists, of course, the answer is that it serves no purpose. Of course, this question has its flip side: what is national independence for in the 21st century? This question tends not to make the headlines. It is more fundamental. 3.4 Thus, while electing to end political Union, those advocating yes in the Scottish Referendum also proposed to maintain other unions which actually assumed cultural affinity throughout the UK. Two of these were given prominence. The first is social union, encompassing what was described in the Referendum campaign as all the distinct national and regional communities in the British Isles based on close social, economic and cultural links and symbolised by Scotland retaining the monarchy. The second is monetary union which is nothing other than the financial cornerstone of UK solidarity (as we can understand better now in the light of Greeces recent experience of the Euro). The proposed continuity of these unions poses one difficult question for nationalists: If you want unions, why secede from the Union? I suggest this is a more difficult question to answer than the question what is the UK for? That fact should also inform the Committees deliberations.


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3.5 It is worth emphasising that point. Robert Hazell has argued consistently that confidence should be one of the principles of the new constitutional order meaning that the Union rests on much broader and firmer foundations than its critics realise.9 I think he is right. 4 Changing politics 4.1 Until quite recently (at least until the late 1980s), political scientists wrote confidently about Westminsters unique authority and status. Parliamentary representation at the centre, it was argued, integrated the four nations of the United Kingdom institutionally into the British fifth nation.10 In politics textbooks that fifth nation normally eclipsed all the others, even England - or to put that otherwise, the politics of England and the politics of fifth nation were often confused. This was the result of UK party competition and common policy programmes. Rose argued persuasively that policy unites what territory divides, a view we cannot accept so easily today. 4.2 Recently, opinion polls reveal popular disenchantment with processes of decision-making at Westminster which can appear sometimes immune to public influence (for example, talk about the Westminster bubble or the Westminster elite). Support for the traditional UK political parties has also declined along with some of the old certainties which sustained them. It is these changes, as well as the SNPs success in Scotland, which challenge the integrity of the old fifth nation. 4.3 Vernon Bogdanor captures this new reality well when he argues that the constitutional measures enacted since 1997 have transformed the UK such that the sovereignty of Parliament is slowly being replaced by the sovereignty of a constitution.11 That indefinite article is quite explicit because its shape is still uncertain. The future of the UK (as it was once said of the European Common Market) is an unknown destination. This is the changed context in which the Committees deliberations take place. 5 Practical steps to strengthen the Union 5.1 Embedding devolution into the UKs constitution has convinced many constitutional scholars and politicians that the time has come for a constitutional convention in order to formalise relationships. Recently, for example, an important report has favoured a written constitution in order to provide clear ground-rules to serve as a framework for our territorial arrangements and to secure their permanence. As a first step, it also proposed a Charter of Union to lay down the underlying principles of the UKs territorial constitution.12 5.2 Lord Norton made a similar point recently, arguing for a constitutional convocation as a first step. This would be a taking stock mechanism for looking at our constitution in the roundwhere we are now, how the different elements fit together, and the constitutional principles that underpin those arrangements. This convocation would encompass inter-institutional relationships within the United Kingdom, the role of Parliament, the relations between the two Chambers and between Parliament and other organs of the state as well as relationships with the European Union. 13 This would also need to consider the English Question but in the context of wider relationships. 5.3 I am persuaded of the value of that approach. Macaulays idea of British constitutionalism - nothing of symmetry and much of convenience, never removing an anomaly merely because it was an anomaly which has served so well in the past, no longer seems fit for purpose.


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5.4 Consent for the Union is contingent, not certain. The contingency of that consent impresses many commentators today.14 In particular, it is important to find some way for everyone in the UK to consent to a possible Charter of Union. The old medieval principle what touches all must be approved by all is a good one and sorely missing in recent and partial referenda. A UK-wide vote on a Charter of Union might reverse the present popular mood that every moment of the devolutionary process is eroding rather than strengthening the Union. 6 Conclusion 6.1 The debate between those who wish to end the Union and those who wish to maintain it comes down to this: between those who believe that national identity and political allegiance should be one and the same and those who believe that distinctive national identities complement a common political allegiance. Recently nationalists have come to believe that the future belongs to them. Perhaps we should heed General de Gaulles remark: The future lasts a long time. Times do change (think of the oil price) and there is no reason why the Union should not remain our common future. References 1 James Mitchell, Devolution in the UK, Manchester 2009. 2 Ernest Barker, National Character and the Factors in its Formation, London 1927. 3 Ernest Barker, Britain and the British People, Oxford 1942. 4 Peter Madwick and Richard Rose, Introduction, in Peter Madgwick and Richard Rose (eds) The Territorial Dimension in United Kingdom Politics, London, 1982. 5 Paul Bew, Britishness and the Irish Question in in Matthew dAncona (ed) Being British, Edinburgh, 2009. 6 David Cameron, Extremism, individual rights and the rule of law in Britain, speech February 26, 2008 7 Arthur Aughey, Nationalism, Devolution and the Challenge to the United Kingdom State London 2001 8 Charlie Jeffery, Guy Lodge and Katie Schmuecker, The devolution paradox in Guy Lodge and Katie Schmuecker with Adam Coutts (eds) Devolution in Practice 2010: Public policy differences in the UK, IPPR 2010. 9 Robert Hazell, Britishness and the Future of the Union in Andrew Gamble and Tony Wright (eds) Britishness: Perspectives on the British Question, Oxford 2009 10 Richard Rose, Understanding the United Kingdom: The Territorial Dimension in Government, London 1982. 11 Vernon Bogdanor, The New British Constitution, Oxford, 2009 12 Bingham Centre for the Rule of Law, A Constitutional Crossroads: Ways Forward for the United Kingdom, May 2015 13 Lord Norton of Louth http://www.publications.parliament.uk/pa/ld201516/ldhansrd/text/150601-0002.htm#15060118000066 cols 232-233 14 Linda Colley, Acts of Union and Disunion: What has held the UK together and what is dividing it? London, 2014. 7 August 2015

http://www.publications.parliament.uk/pa/ld201516/ldhansrd/text/150601-0002.htm#15060118000066http://www.publications.parliament.uk/pa/ld201516/ldhansrd/text/150601-0002.htm#15060118000066

Professor Arthur Aughey, University of UlsterOral evidence (QQ 299-304)

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Evidence Session No. 23 Heard in Public Questions 299 - 304

WEDNESDAY 27 JANUARY 2016

Members present

Lord Lang of Monkton (Chairman) Lord Brennan Lord Hunt of Wirral Lord Judge Lord Lester of Herne Hill Lord MacGregor of Pulham Market Lord Maclennan of Rogart Lord Morgan Lord Norton of Louth Baroness Taylor of Bolton

________________

Examination of Witnesses

Professor Arthur Aughey, University of Ulster, Professor Derek Birrell, University of Ulster, and Professor Colin Harvey, Queens University, Belfast

Q299 The Chairman: I do not know what the collective noun is for professors; perhaps it is an enlightenment of professors. We are delighted that you have agreed to come to talk to us today. We are engaged in what we acknowledge is a difficult and extensive inquiry into the union and devolution. We are very keen to include all parts of it, and we are grateful to you for coming from Belfast. As I explained outside, the other two sessions are with witnesses who are here anyway, which is the only reason we have not travelled to Belfast. We are very grateful.

You have seen the sort of areas we want to cover in our questions so I will dive straight in. We may change the order of the questions, but please do not be thrown by that. As I said to our last witness, the concept of union is something that resonates for different reasons and in different ways more strongly in Northern Ireland than it probably does in other parts of the United Kingdom. Can you tell me how you see a state of unions as being different in Northern Ireland from the rest of the country? Perhaps you would like to start, Professor Aughey.

Professor Arthur Aughey: Certainly. There is a historical aspect that is rather distinctive from the other nations and regions of the UK. What distinguishes the Northern Ireland case is a question of legitimacy. The legitimacy of Northern Ireland as a part of the union has been challenged at three distinct but interrelated levels: first, politically; secondly, constitutionally; and, thirdly, as we have experienced over the last quarter of a century, violently.

The question of political legitimacy meant that nationalists in Northern Ireland felt excluded from the political institutions, such that we now have in Northern Ireland an attempt to bring those communities together in a form of power-sharing or compulsory coalition that is very distinctive from the system in Scotland, in Wales and certainly in the UK Parliament here. Constitutionally, of


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course, Northern Ireland was challenged by the Irish state. Under Articles 2 and 3 of the old 1937 constitution, the Irish state made a territorial claim on the six counties of the north. That has been resolved under the Belfast Agreement; those two articles are now aspirational rather than territorial. What distinguishes Northern Ireland again is that it has not only a bi-communal form of political institutions within, but a bi-national relationship on the island of Ireland. Ever since the Anglo-Irish agreement of November 1985 the Irish Government have had a role to play, at least consultatively, in the politics of Northern Ireland, and that continues today, institutionalised in cross-border co-operation and in the North/South Ministerial Council.

What also distinguishes Northern Ireland in the policies that are pursued there is the legacy of violence and the terrorist campaign. We have had reform of the police and we have had change to the legal system, but we have issues outstanding. A treaty has just been laid before the HouseI think it was this weeksetting out a way of resolving the legacy issues of violence and historical crimes. That is what distinguishes Northern Ireland itself as an entity within the union, but it is very clear that Westminster remains the sovereign authority and Northern Ireland remains a part of the United Kingdom, albeit a part of the United Kingdom on the basis of consent.

Professor Derek Birrell: I would add to that historical viewpoint that the contemporary viewpoint is that the future of the union for Northern Ireland very much rests with the electoral wishes of the people of Northern Ireland, which is in the Good Friday agreement, but that is no different from Scotland. Since the Scottish referendum you could say that the future of the union for Scotland rests with the vote of the Scottish people. Wales is a bit different, of course, where it is not such an issue.

The other point I would make is that, rather than studying the state of the union, I have found it quite helpful to look at Northern Ireland and its Government and governance as part of a system of multilevel governance. There are a number of different levels, including the Irish Republic and the EU dimension, which are important. There are even some external influences from the United States, apart from UK involvement and other internal aspects of governance. I would add those two points.

Professor Colin Harvey: I underline the distinctiveness of the arrangements in Northern Ireland. I would be cautious and sceptical about seeing them exclusively through a devolution lens. There is something else going on, and that is important to note for the conversation today. Obviously there is the history and politics of Northern Ireland, as has been mentioned. There is also the legacy of violent conflict, and it is still working its way out of that conflictit is still a society that is emerging from conflict.

It is important to note that the Belfast/Good Friday Agreement of 1998 and other agreements are not merely internal settlements for Northern Ireland. One of the fascinating dimensions of the Belfast/Good Friday Agreement is the three-stranded approach adopted therethe Northern Ireland internal dimension, the north-south relations and, perhaps interestingly for the conversation today, the British-Irish intergovernmental relationship and the connections between all the democratic entities on these islands.

Obviously the internal Northern Ireland arrangements are distinctive: the power-sharing model; the sense in which, through the Belfast/Good Friday Agreement, the whole arrangement is underpinned by the notion of consent; the self-determination principle that has been mentioned; and the fact that Northern Ireland, historically and now, has to deal with the fact that political unionism is just one particular political position in the context of Northern Ireland. Constitutional arrangements had to be designed in such a way that whatever choice the people make as to their


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future, whether they wish to reunite with Ireland or remain within the UK, they have certain rights, and the Government with authority there will act with impartiality.

We have had to face that issuea strong focus on people and the relationship between peoples across these islands. That is something that could usefully feed into this conversation. I would go even further. Looking again at some of the language in the Belfast/Good Friday Agreement 1998 about relationships across these islands, there are lessons for this conversation today, and in any discussion where we are thinking about negotiating the future of the UK.

I hope I have made it clear that the Irish Government has an important role in relation to the conversation about Northern Ireland, and there is the fact that the British and Irish Governments are co-guarantors for the 1998 Agreement. That brings the Irish Government into the conversation about anything that will impact on what is happening in Northern Ireland, potentially. We have seen that in the last number of years around the debate on the Human Rights Act, for example, and the various participants who have involved themselves in that conversation.

There are two more things. One is the legacy of the conflict, which, as we know, is still a work in progress. There are still mechanisms to be put in place to begin to address that effectively. I end by underlining, in this first response, the fundamental underpinning of human rights and equality throughout the Agreement, as well as the centrality of the European Convention on Human Rights and the Human Rights Act to what has followed in Northern Ireland from 1998.

The Chairman: Thank you very much. That has been a very useful scene-setter. I would like to come back to the union a little later in our discussion, to the extent that there is time to do so. I will move on to one or two of the devolution issues that interest us, and bring in Professor Morgan.

Q300 Lord Morgan: You refer to me as a professor. I was once a principal and the collective term that was commonly used was a lack of principals. You have all emphasised, obviously correctly, the historical differences that mark out Northern Ireland in so many fundamental ways. It has emerged throughout our discussions that the starting points for Wales, Scotland, Northern Ireland and indeed, potentially, England are all quite different when we consider this question. However, it has been suggested by many sources, including this Committee, that there should be an attempt to articulate a coherent vision and structure where Northern Ireland would be brought in with the other nations and peoples of these islands. Do you feel it would be possible to give a coherent settlement, or do the historical and other differences within Northern Ireland make that not feasible?

Professor Arthur Aughey: It is perfectly possible and very valuable. I would make the distinction between the notion of a statement of union or a charter of the union. There is a distinction between a question of identity and a question of procedure. If it were the case, as Professor Harvey intimated, that one consequence of such a charter or statute of the union would involve you signing up to be a unionist and that was a denial of your identity, it would not work. For many nationalists the 1973 border poll seemed to be a question of, Are you going to vote to be British or not? and the consequence was a boycott of that poll. As has been made very clear since 1998, Northern Ireland, like Scotland and Wales potentially, and even England, are part of the union on the basis of consent. I would see that statement of the principles of the union not being about identity, because under the Belfast or Good Friday agreement of 1998 we can be British or we can be Irish, and some of us may feel British and Irish when the mood suits us. I do not see it as a question of identity but as a question of procedure.

Northern Ireland devolution is enmeshed into the process of governing the UK. I would see some sort of statement, charter or declaration of the union as a way not of establishing administrative


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details or identity but of indicating the values of that unionits democratic values and human rights values. It would be about procedures, not identity, such that relationships between the various parts of the union would be conducted on the basis of mutual respect and dignity for those institutions. That would reflect or incorporate some of the language that we find in the Belfast/Good Friday agreement, and in other distinct declarations such as the Edinburgh declaration between the Scottish Government and the UK Government, about mutual respect, open communication and institutional dignity. I would see that declaration or statement of the principles of the union as procedural, not, This is a statement of our British identity, and if you dont feel part of it, sorry.

Professor Derek Birrell: It would have to be handled sensitively and politically. The danger is that it would be seen as strengthening the union and weakening the Irish dimension, so it is a political issue. For the reasons Arthur has given, you would need to avoid a kind of straitjacket. It might cause problems. When dealing with Northern Ireland, you need flexibility to deal with legacy issues that come up: for example, the Stormont agreement and negotiations and so on.

It might be useful with particular reference to intergovernmental relations, which are not really laid down in any kind of statement and have been developing on a bit of an ad hoc basis. Even the formal bodies are not very well codified, like the joint ministerial council or the British-Irish Council. It might also give a clear meaning to devolution. We now have a situation where people are starting to talk about whether city devolution for Manchester and so on is really devolution. It is worth getting devolution down in some sort of statute or statutory guidance.

Professor Colin Harvey: I have three points. First, I preface everything I say by noting the continuing importance of stabilising the distinctive power-sharing arrangements in Northern Ireland. We should frame the conversation in that way. It remains work in progress, as we have seen in the last few years.

The second point is to note that there is a changed constitutional context in the UK, and that changed constitutional context should not necessarily be seen as a threat but perhaps as an opportunity for rethinking, in a more pluralistic way, the nature of constitutionalism in the UK, and therefore the opportunities that might open up for different types of constitutional conversations in the future. My concern would be how something with the title Charter of the Union might play out in the distinctive Northern Ireland context I mentioned. There is also the concern that it might be an attempt to revive, or bring about a resurgence of, a very traditional understanding of the unitary state in the UK when real opportunities are emerging for a more pluralistic and different type of constitutional conversation in the UK that we should take the opportunity to pick up on. I have expressed some scepticism about that title, and the concerns that it might raise, in that it might be a step backwards rather than a step forwards.

The third point is around process, and it touches on other questions that you may have. Should we begin to think about constitutional conversations in the UK as intergovernmental discussions, the outcomes of which are not predetermined? In other words, we begin a different type of conversation in the UK, and even around these islands. I am not saying that we are going to draft a charter of the union, but what do we have in common, for example, in relation to issues of human rights and equality? What are the things that we share and can agree on as common principles or common statements? We can then think about what we might want to call it. The new constitutional context in the UK presents opportunities. Yes, there are challenges, but it raises profound questions about processes that are likely to lead to meaningful outcomes in the longer term, processes that stabilise rather than destabilise.


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Q301 Lord Lester of Herne Hill: I declare an interest because I have a house in west Cork. I love Northern Ireland. I was an unpaid adjunct professor at University College Cork, so I am quite close to Northern Ireland events.

I am going to be a bit crude, I am afraid. Listening to all three of you, I am interested in getting you to talk about the real contextwhat you call the Northern Ireland contextand looking at it from the point of view of the people. From the point of view of the people of Northern Ireland, we have a polarised political situation at the moment in which the Government are paralysed by extremism. From the point of view of the citizen, if you are gay and you want to have a marriage in Northern Ireland, you cannot have one; if you are a pregnant woman and want a safe abortion in Northern Ireland, you cannot have one; and if you want the same free speech in Northern Ireland as in England, you do not have it.

There seem to be real problems about identity in Northern Ireland even now, all these years after the Troubles. To avoid complacency when we come to think about the constitutional framework, should we try to think of ways, from the point of view of the people, of producing a better system than we have now?

Professor Derek Birrell: Part of the polarisation is the conflict in identity, which of course is closely related to religious identity. Some of the more conservative attitudes that politicians tend to follow come from basic religious beliefs and religious differences that are seen as important in Northern Ireland. The polarisation appears worse when it is translated into the operations of the devolved Assembly because of the system of vetoes that exists, which means that there are a number of obstacles to a clear vote. There was actually a majority vote in favour of gay marriage, but it was vetoed because of the mechanism that can be used. It was originally built in to give protection to both communities, particularly the minority community. It was originally intended to cover constitutional issues or major political issues, but that was never clarified, so it can be used on any measure that comes before the Stormont Assembly.

It is quite difficult to make progress on that in Northern Ireland. It may be that eventually public opinion will change and therefore the politicians will follow public opinion, but on conservative attitudes on issues such as gay marriage and abortion, and on poor community relations despite many attempts to improve them, it is a slow business. There is no easy answer. It is very difficult to see any major change in the political configuration of the parties that are looking for internal change.

The only other way of altering it is to look at devolved powers. You can ask why abortion and gay rights were devolved matters. It was probably never thought about; that is the way it was in 1921, and it was left. You could interpret it as a UK citizenship matter. The Calman commission looked at the importance of UK citizenship in determining certain basic rights. That was one of the Calman arguments for the union. One way of addressing it would be for a UK Government, if they were brave enough, to say, Really this is a matter of UK citizenship and maybe international obligations and perceptions, so you could either exert pressure, or even legislate over the heads of the Northern Ireland Assembly.

Professor Colin Harvey: I have three points. First, the power-sharing model in Northern Ireland has largely been successful. It is stabilising the politics of Northern Ireland and providing a foundation to try to build the new Northern Ireland that so many people want to see. I have a rather different understanding of that model, how it has worked out and its importance, recognising its distinctiveness.


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Secondly, it underlines the importance of the Human Rights Act. That is a UK-wide piece of legislation that applies to Northern Ireland, is used in Northern Ireland and has made a difference in Northern Ireland. People are trying to make use of their human rights to change Northern Irish society for the better, including in relation to the appalling treatment of the LGBT community.

On the third point I have to declare an interest. I was a member of the Northern Ireland Human Rights Commission and I was involved with others in proposing to the UK Government a Bill of Rights for Northern Ireland. The mandate for our process was clear that our advice had to supplement the European Convention on Human Rights. We recommended a Bill of Rights that would build on the Human Rights Act, supplement it and go further. To answer the question, that Bill of Rights has not been implemented. It is one of a number of things that remain outstanding from the Belfast/Good Friday Agreement.

There was reference to a charter of the union earlier. There is reference in the Belfast/Good Friday Agreement to the possibility of a charter of rights for the island of Ireland, for example. There is no charter of rights for the island of Ireland as we speak. There is no Bill of Rights for Northern Ireland. Those are the sorts of measures that, if implemented, would assist greatly in creating a rights-based and equality-based society that could only benefit all the people of Northern Ireland.

Professor Arthur Aughey: I always remember one of my great intellectual mentors, Michael Oakeshott, saying very mischievously when referring to the Russian revolution that the further away you get from the Russian revolution it is less a new beginning than a modification of Russian circumstances. That became very clear in the 1990s when we saw the sort of Russian state that emerged from the Soviet Union. A lot of things were very familiar. Maybe the illusion of 1998 was that the Belfast Good Friday agreement was a new beginning and that one could read into it a fundamental transformation of Northern Ireland. However, it was really a modification of Northern Irelands circumstances such that those profound arguments about identity and belonging did not go away. The conservatism of religious attitudes did not go away but became modified in institutional form, which was power-sharing devolution, north-south relations and the stabilisation of Northern Irelands position within the union. When you look at those institutions, I agree with Professor Harvey that the situation has stabilised, and that is a profound blessing of the policy that the two Governments pushed through in 1998.

A colleague of mine, Professor Gormley-Heenan, makes a distinction between power-sharing, which suggests some form of positive engagement of political parties, and power-splitting, which we often see in the way the various ministries in Northern Ireland operate, going on different trajectories without any form of Cabinet collective responsibility. What she said is quite distinctive about Northern Ireland. It is not power-sharing and it is not power-splitting; it is power-snaring. That may address your point about the institutionalisation of vetoes.

I have often thought of a motoring analogy for Northern Ireland. It is almost in political neutral. The engine is revving and the

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