Ahead of today’s Commons vote on a possible EU referendum, some basic points that many are overlooking (originally posted as a comment over at Jon Worth’s place):

Referenda have a decidedly unclear position within the UK constitution. The people are not and never have been sovereign in the UK – sovereignty rests with Parliament (technically the Crown in Parliament), and anything that threatens parliamentary sovereignty could easily be challenged as unconstitutional. Direct democracy bypasses Parliament, therefore it easily falls into this category.

It always surprises me that anti-EU types don’t realise this, considering one of their key arguments against the EU is that it is unconstitutional for anyone/anything to be able to overrule Parliament (usually they quote the 1689 Bill of Rights – this has little/no actual legal weight, but the theory is still there).

This constitutional angle is a massively important point – advocating wider use of referenda would, if taken up, be one of the biggest changes to the UK constitution in 300+ years. It could potentially undermine the very foundations of how our political system works in ways far more widespread and unpredictable than anything we’ve seen via membership of the EEC/EU. There are no rules on what referenda should be used for, no rules on what they *shouldn’t* be used for, no rules on how they can be triggered, no rules on how they can be overruled.

Short-version – it’s dangerous to introduce any significant constitutional change without thinking through the consequences. In the rush to appease the politically vocal, we could do far, far more damage than any referendum-advocates realise.

See also: The case against referendums by Conservative peer and constitutional expert Lord Norton of Louth, whose key objections are that referendums are misleading, unbalanced and dangerous.

And also: Jon Worth making many of the same points as I do above – before we hold any more referenda, we need to work out what role they should have in the UK political system.

The European Union Bill is one of those strange populist beasts announced by the Conservative Party in the run-up to last year’s general election, aimed squarely at keeping Britain’s eurosceptic right from abandoning them for the UK Independence Party (following David Cameron’s admission that he was not planning to hold a referendum on the Lisbon Treaty after it had already entered into force, despite what many eurosceptics had hoped/expected).

In short, this new bill promises to force the government to hold a nationwide referendum on any future transfer of sovereignty from Britain to the European Union – trying to put a referendum lock in place so that no future government could sign the UK up to a treaty like Lisbon (an act that caused much outrage among eurosceptics – not least because all three main parties had promised a referendum on the old European Constitution, on which the Lisbon Treaty was heavily based).

Of course, as no parliament can bind another, all any future British government that wanted to avoid a referendum would have to do is revoke this Act – if the Bill passes into law.

On top of that, the current government has realised that to hold referenda on *every* transfer of power to the EU – no matter how small – would be cripplingly expensive and inefficient, and so has opted to leave it up to ministerial discretion whether or not a transfer of power from Westminster to Brussels is significant enough to warrant a referendum. This, unsurprisingly, has greatly angered many hard eurosceptics.

Cunning Cameron

Yet despite the protestations of the eurosceptics, from British perspective this is actually a very canny move on the part of the current government – because if passed, it will instantly give the UK a far, far stronger bargaining position in the European Council, as well as throughout the rest of the EU as a whole.

The British government doesn’t like something being proposed? Whereas now the Prime Minister risks annoying and alienating his European allies by threatening to use his veto, he would now simply say “Sorry, chaps – we’ll never get it past the public in a referendum.”

By this simple piece of legislation, David Cameron will have effectively managed to have secured Britain’s continued ability to veto any EU legislation she doesn’t like – even in areas governed by Qualified Majority Voting – by creating a new line in the sand that the government can always profess to be out of their hands, thus (in theory) helping to maintain diplomatic relations in a way that would simply be impossible by the use of a ministerially-decided veto.

You’ve got to admire it – it’s very cunning. If just a little bit cowardly…

Constitutional correctives

A good overview of the first reading debate in the House of Commons (which took place on 11th January) can be found over at Connor’s place, with plenty of focus on the proposed amendments by the veteran Tory eurosceptic MP, Bill Cash.

These amendments were – thankfully – soundly defeated, with just 39 MPs voting in favour. As such, they have already become little more than a minor footnote in British/EU political history – but considering Cash’s prominence in eurosceptic circles (he led the Maastricht rebellion against John Major for starters), they can serve as interesting insights into just why (some) eurosceptics are so worried about the EU.

Bill Cash vs the British Constitution

Connor summarises the intentions of Cash’s amendments quite neatly – though his post is worth reading in full for some interesting, thoughtful observations:

these amendments were aimed at creating a version of parliamentary sovereignty that could not be interpreted or challenged by the courts (or, perhaps more accurately, to entrench the current, not entirely strictly defined, version of parliamentary sovereignty beyond the reach of the courts). Parliamentary sovereignty is the UK legal doctrine that parliament has supreme legislative authority, and its Acts cannot be challenged by the courts – it can do whatever it wants, except limit the power of its successors (i.e. the next elected parliament(s)).

Nice summary – but I have one (important) quibble:

“perhaps more accurately, to entrench the current, not entirely strictly defined, version of parliamentary sovereignty”

It was sadly not even that.

What Cash was trying to do with his amendments was to revert the idea of parliamentary sovereignty back to one (highly debatable) interpretation of the concept that hasn’t been (even arguably) valid since Edwardian times.

By his own admission, he wanted to push the clock back 40 years to before the passing of the 1972 European Communities Act, through which the UK joined the EEC and accepted the supremacy of European Law (in some areas) over British law.

In reality, he was trying to roll back the clock on the British constitution by the best part of a century – to before the creation of NATO, the WTO, the Council of Europe the UN and more, all of which have (to a greater or lesser extent) curtailed the ability of the House of Commons to do what it likes.

What is Parliament?

Cash also – seemingly deliberately – fails to note that Parliament is not just the House of Commons, as he repeatedly appeared to be stating throughout his speech: It is *both* Houses of Parliament, the Lords as well as the Commons.

In his amendment, Cash appeared to want to establish, by statute, not merely the supremacy of Parliament, but the supremacy of the House of Commons.

By repeatedly attacking “radical judges” and “Common Law interpretations” of the status of parliamentary legislation, he was effectively arguing that nobody is entitled to overrule the House of Commons but the House of Commons itself. (We’ve already gone a long way down that route thanks to the Parliament Acts of 1911 and 1949, which both enable the Commons to overrule the objections of the Lords in certain circumstances – Cash’s proposed amendments, however, would have set a precedent that could easily have gone even further.)

In this, at least, Cash comes closer to the mark than many eurosceptics, who frequently attack “European judges” for forcing Britain to comply with internationally-agreed laws while seemingly not realising that British judges can do much the same thing. Yet you rarely hear anyone openly (as Cash did repeatedly throughout his speech) attack the British judiciary’s right to interpret British law – which is, after all, the whole point of the judiciary…

(As a related aside: It never ceases to amaze me how British critics of non-British systems of law, regulation and government so often fail to follow the age-old maxim of “put your own house in order“. Yes, European Commissioners are unelected – but neither are British Cabinet ministers; yes, many EU laws and regulations enter into force without being scrutinised by elected officials – but so do British statutory instruments; yes, the EU’s accounts have repeatedly failed to be signed off – but neither would the UK’s accounts if they were subject to the same criteria to be passed; yes, it’s arguable that too many powers have been centralised in Brussels – but too many have also been centralised in Westminster; yes, the EU has lots of bureaucrats – but the UK has many, many times more, etc. etc. ad infinitum… Unless your own actions are blatantly better, don’t be surprised if those you are criticising don’t take you too seriously – cf. China’s response to American criticisms of the imprisonment of political prisoners while Guantanamo Bay continues to exist, or Russia’s failure to pay attention to British criticisms of the 2008 invasion of Georgia after Britain’s role in the 2003 invasion of Iraq.)

What is Parliamentary Sovereignty?

Cash also singularly failed to realise that there’s a strong distinction between the idea of *Parliament* being sovereign (as he argues passionately should be the case), and the *actual* case, which is that sovereignty lies with “the Crown in Parliament”.

A seemingly subtle distinction, this, but a vitally important one: Parliament has *never* been sovereign – sovereignty *still* lies with the monarch, even after the Civil War, Glorious Revolution, Bill of Rights, etc. etc..

This is most obviously, if largely symbolically, expressed through the fact that the Queen still has to give the royal assent to all Acts of Parliament before they can become law – Parliament lacks the power to create new laws without the approval of the Sovereign.

This is also strongly indicated in the law courts – if the state prosecutes someone, it is expressed as “Crown vs”, not “Parliament vs”.

Likewise, the government is always “Her Majesty’s government”, and the Prime Minister is still not elected – either by the people or by Parliament – but is *appointed* by the monarch in his/her role as Sovereign. (The last British Prime Minister, Gordon Brown, was frequently attacked by the Tory right for being “unelected”, having succeeded Tony Blair to the post midway through a parliamentary term. But this is not a rare event – Major, Callaghan, Douglas-Home, Macmillan, Eden, Churchill, Chamberlain, Baldwin (twice), Lloyd-George, Asquith and Balfour all became Prime Minister without a general election having been held – and that’s just the 20th century!)

Of course, the monarch no longer directly exercises most of the crown’s executive/sovereign powers, and has – for a good three centuries – mostly allowed the government of the day to run things as it sees fit. It could be argued – and many have – that the monarch’s powers are now merely symbolic, and that in practice the Sovereign is no longer sovereign, having ceded those powers to his/her representatives in Parliament.

But until that convention is actively, openly challenged (as Cash’s amendments arguably sought to do), by the wonderfully obtuse rules of the British constitution nothing has *technically* changed, even though many things may well have changed in practice. And when it comes to points of law, technicalities can often be vital. A new constitutional convention may well have been set by the crown’s failure to veto Parliament since 1708, stating that the right of veto no longer exists (thus meaning that the crown is no longer Sovereign) – but until a monarch tries (and fails) to veto parliament again, we simply won’t know.

Cash the constitutional radical

Needless to say, both of these (significant) misinterpretations of the way the UK works threatened some fundamental alterations of the British constitution when the person who believes those misinterpretations is in a position to attempt to introduce amendments to British statute law – and is eloquent enough to sound convincing.

In other words, while professing to be a constitutional conservative – and quite probably even believing that he is to his core – Bill Cash’s proposed amendments were in fact infinitely more radical than pretty much everything he was proposing them to prevent.

And that’s before we even start on his truly dangerous attempt to exempt Acts of Parliament from judicial scrutiny/interpretation – effectively putting Parliament in the position enjoyed by the monarch prior to the Civil War (a state of legal immunity/infallibility which was in large part responsible for Parliament’s revolt in the first place – the Commons arguing that *no one* should be above the Law, including the Commons themselves).

Add that attack on long-established legal principles on top, and Cash’s amendments would have amounted to one of the most radical revolutions the British constitution has ever seen. Certainly far, far more radical than anything contained in Lisbon *or* Maastricht.

Parliamentary absolutism

Cash was, in short, arguing for the reintroduction of *absolute* sovereignty – albeit absolutism based upon an elected House of Commons rather than an inherited crown.

The reason? Cash holds with what I like to think of as the *nice* (mis)interpretation of the British constitution – the interpretation held by most of the better-educated eurosceptics I’ve talked to. Students of history or political theory will recognise it as the theory of the Social Contract.

This view holds that the people of Britain are ultimately sovereign, having voluntarily ceded power first to the monarchy, then (following the Civil War and, especially, the Glorious Revolution) to Parliament. It holds that today, the people’s election of MPs to parliament shows their willingness to continue to cede power to Parliament, which exercises the people’s sovereign will on their behalf.

Sound familiar? Yep – it’s extremely close to Cash’s interpretation of “the Crown in Parliament”, which holds that the crown has ceded power to Parliament, which exercises the monarch’s sovereign will on their behalf – only this sees sovereignty passing to Parliament from the bottom up, rather from the top down.

Where do the people fit in?

What is particularly interesting is that, despite professing to be pushing for parliamentary sovereignty to be entrenched, at no point did Cash call for the concept that the people are sovereign to be entrenched – despite using the Social Contract theories about the people’s sovereignty to justify his claims about the sovereignty of Parliament. Cash was not interested in returning power to the people, but to the politicians.

Proponents of the Social Contract theory of the British constitution frequently – while being extremely well intentioned – fail to acknowledge that the Social Contract is not, nor ever has been, an actual document. Nor did the idea of the Social Contract precede the supposed initial transfer of power from the people to the monarch – nor, indeed, from the monarch to an elected government.

The Social Contract was, and always has been, an attempt to justify rebellion, or the right to revolt. Its history tells you all you need to know: First developed by Grotius in the Dutch Republic in the early 17th century following the Dutch Revolt, then developed by Hobbes (partially accidentally) following the British Civil Wars, then by Locke in Britain following the Glorious Revolution, then by Rousseau during the rising discontent of the absolutist reign of Louis XV of France – with Rousseau’s ideas and justifications later being adopted by the leaders of the French Revolution who brought Louis to the guillotine.

The Social Contract has never been the basis of government – as much as its proponents have always wanted it to – it has only ever been an excuse for usurpation.

What is sovereignty?

What *actually* grants the right to govern is simple and obvious: It is the ability to govern. That’s it.

I could publish a statement tomorrow declaring myself to be Emperor of Europe, announcing a broad range of new laws, and demand tribute from every single person in the EU. Would it mean anything? No – because I don’t have the ability to enforce those laws or the payment of that tribute.

Likewise, does an assertion that Parliament, rather than the EU, is sovereign change anything if Parliament is unable to alter EU legislation?

And here lies the rub: The sole purpose of EU legislation and regulations is intended to be to harmonise systems across the EU. If Britain were to assert her independence by rejecting more and more aspects of EU legislation and regulations, Britain would increasingly become out of synch with the rest of the EU.

A few opt-outs? Not a problem – and Britain already has quite a few (most notably on joining the Euro). But a systematic rejection of any further harmonisation – as the hardline Tory eurosceptics want? This would effectively be a declaration that Britain will no longer be participating in the EU.

Because as much as Britain may be able to claim sovereignty within her own borders, to assert her will in France, in Slovakia, in Denmark, in Finland, or in Spain would be to claim sovereignty over *those* countries as well.

By threatening to reject any further EU integration in the name of British sovereignty while still professing a desire to remain a member of the EU, Britain would be restricting the sovereignty of every other EU member state – much as the UK is *already* restricting the sovereignty of Ireland by refusing to join the Schengen Zone (which in turn has prevented Ireland from joining due to the British ultimatum: Schengen or the Common Travel Zone?)

Thanks to the very nature of the EU’s aim of harmonising European economies, a pick and mix approach such as that proposed by the (non-withdrawalist) proponents of the European Union Bill is going to be extremely difficult to put into place – and I say that as a long-time advocate of a multi-tier EU.

You cannot maintain the Common Market without common rules and regulations – which apply to all. No one should be above the law.

Does this mean that Britain’s sovereignty has been limited by EU membership?

Yes and no. Let’s use the idea of the Social Contract to explain why, as so many who argue for more British sovereignty seem to like it so much:

According to Social Contract theory, way back in the mists of time, the people ceded their sovereignty to the monarchy because they realised the advantages the protection of the monarch could bring – this despite the downsides of now having to pay tribute, serve in the militia and so on.

Later on, that sovereignty passed to Parliament because Parliament could bring even more benefits than the monarch – better laws, better regulations. More restrictions again – taxes have gone up repeatedly since Parliament took charge – but the advantages were seen to outweigh the disadvantages. If they weren’t, then the British parliamentary system of democracy would not have survived, and we would have either reverted to monarchy – as we did in 1660 after the failure of the Cromwellian republic – or come up with something better.

Indeed, the whole point of democracy is that we are *constantly* trying to come up with something better – that’s why we have new minor laws and regulations enacted every day, and change governments every few years to allow new ideas to be tested.

Now, in turn, the governments of nation states (to whom the people have ceded their sovereignty) have come to see the advantages of, in turn, passing some of *their* sovereignty to even higher bodies, which can transcend national boundaries to provide greater advantages to all. This is not just apparent in the EU, but also in NATO, the UN, the WTO, the African Union, ASEAN (in South East Asia), CARICOM (in the Caribbean), SICA (in Central America), CCASG (in the Middle East), EAEC (in Central Asia), SAARC (in South Asia), UNASUR (in Latin America), and countless other bodies – even the federal United States of America itself counts, albeit a couple of centuries earlier.

Yes – I’m adopting a teleological approach *and* the Social Contract (both of which I despise as ahistorical nonsense) to argue that passing sovereignty to a level above the national is a natural next step in society’s evolution.

More seriously, I’m arguing that the advantages of EU membership far outweigh the advantages of withdrawal. That, while we could leave – just as we could go back to absolute monarchy – it is not in our interests to do so.

British sovereignty and the EU

But – and this is crucial – Britain retains the right to reclaim the sovereignty she has pooled at EU (or UN, or NATO, or WTO, or whatever) level any time she likes. As former Foreign Secretary Malcolm Rifkind succinctly put it in the European Union Bill debate:

“is not the ultimate test of the sovereignty of Parliament whether Parliament can amend the law, either on domestic matters, when the courts have interpreted the law to our dissatisfaction, or in relation to our international treaty obligations, from which Parliament should always have the right to withdraw if it so chooses? Given those circumstances, the sovereignty of Parliament ultimately remains available to us.”

If Britain doesn’t like it, she’s still free to leave any and all of her international treaty obligations. She’s also free to try to persuade other countries to leave with her, or to set up her own alternatives (as she did with EFTA back in 1960, having missed the boat with the initial launch of the EEC).

Britain’s ability reclaim *total* independence and sovereignty is not constrained in the slightest by EU membership, or by membership of NATO, the UN, the WTO, or whatever. We can go the way of North Korea any time we like – principles of self-determination are firmly entrenched in international law.

But what Britain *can’t* do is guarantee that *other* countries will be happy to play along in the way that Britain wants if Britain decides to throw her toys out of the pram.

What Britain also can’t do is expect other countries to always agree with her. We can’t be members of just the kind of European Union that we would like it to be – we can only be members of the EU that we’ve got (created by compromise and slow evolution over 60-odd years of negotiations between more than two dozen countries), while continuing to try to convince everyone else that our ideas are worth adopting.

There is no possibility – no matter how much many may want it – of Britain simply being a member of the Common Market without any of the EU rules and regulations that are now an intrinsic part of that Common Market. This is no more possible than me owning a pet Dodo. We missed our chance.

And if she knows what’s good for her, what Britain *shouldn’t* do – within the current EU set-up – is attempt to impose her will on other EU member states through the threat of veto or referendum.

Use vetoes and referendums to protect her own interests? By all means. But not to force others to comply with her wishes in ways that will negatively affect them.

If Britain wants to remain a member of the EU but in doing so prevents further European integration from happening, she will be destroying the EU – forcing it to stay as something Britain wants, not what other EU member states may want. And this not by negotiation, but by an obstinate, childish refusal to either compromise or have the decency to leave and let others get on with it. It’d be the diplomatic equivalent of puncturing the football the other children are playing with because no one wants to play cricket with you.

In short, my fear is that in attempting to assert British sovereignty, the European Union Bill threatens to undermine the freedoms – the sovereignty – of other EU member states, in the process building resentment against Britain that would only serve to undermine British interests.

Just back from Japan, from where I was closely following the UK election on Twitter (your best place for my day-to-day political commentary these days, though be warned they’re usually more jokey – and sweary – than here…)

After 30 hours offline, and 44 hours after the polling booths closed, the UK still doesn’t have a new government. As such, witness the wonders of my jetlag-inspired political guesswork!

I’d be surprised if this lack of a government lasted beyond Monday morning, largely because the next government will want to look responsible – and we had some serious global financial trouble on Friday for a variety of reasons (NY stock exchange hiccough, Greek crisis, UK election uncertainty, etc.). They’ll want to have a government before the markets open, if they can…)

Here’s what I currently reckon will happen, rejigged from a few comments on Twitter:

Lib Dem leader Nick Clegg’s playing this absolutely perfectly so far – he has solid offers to join coalitions from both Labour and the Conservatives, and significant policy differences with both, and has explicitly stated that the Tories – with more seats and more of the vote – should have the right to “seek to form” a government first.

But the Tories can’t get a parliamentary majority without Lib Dem support. At least, not a stable one. Not the sort of majority that they’d need to do, well, just about anything.

But Labour and the Lib Dems combined can’t get a parliamentary majority without other parties’ support either.

Clegg has also repeatedly mentioned “the national interest” and equated this with electoral reform (unsurprising, considering Labour got only 5% more of the vote than the Lib Dems, but 5 times the parliamentary seats).

The Tories are fundamentally opposed to the sort of Proportional Representation-style electoral reform that the Lib Dems want (usually single transferable vote) – which is hardly surprising, as it would almost certainly lead to a permanent Labour/Lib Dem coalition (there being very few other parties on the centre right that are likely to end up big enough to give the Tories the backing they’d need under such a system).

So, Clegg is giving the impression that he’s willing to work with the Tories – and probably is – but his one major condition is a deal-breaker for Cameron and co.

So I’m now fairly convinced that Prime Minister Cameron’s not going to happen. If Cameron rejects PR, as he must to keep his party behind him (there have already been dire warnings from the right wing of the Conservative Party about such a move, in the shape of Thatcher-era relic Lord Tebbit), then a Lib Dem/Labour/Scottish National Party / Plaid Cymru coalition has first dibs (SNP leader Alex Salmond has already openly proposed this).

Constituionally-speaking, Gordon Brown retains first right to try to form a government, as the sitting Prime Minister in a hung parliament. With Lib Dem, SNP and Plaid Cymru support, the coalition would have an outright majority – able to outvote the Tories and their allies on anything. As such, despite his unpopularity (and calls from within his own party to step down), Brown could yet remain as caretaker PM of a coalition expressly set up to bring in electoral reform.

This would actually be a very sensible option, for several reasons:

1) It would be constitutionally unprecedented for Cameron to form a minority government in the current circumstances – he is impotent until he has enough supporters to claim an outright majority. This looks to be impossible.

2) The constitution explicitly states that Gordon Brown remains Prime Minister, so using him as a figurehead for any new coalition is – constitutionally – the least harmful in the short term.

3) Anyone unhappy with Brown remaining as PM simply adds to the case for major constitutional reform with their objections.

4) This would also give both Labour *and* the Conservatives time to sort themselves out, as they are blatantly in a shambles at the moment.

So, what I’d suggest is a short-term multi-party national coalition *explicitly* for electoral *and* parliamentary/constitutional reform, as well as to maintain some form of stability in the midst of an ongoing financial crisis, keeping Gordon Brown as a figurehead Prime Minister for constitutional reasons alone, with an explicit promise that he will step down once the basic reforms are in place to have a fresh election under a new electoral system.

One final note: There’s nothing to say – constitutionally – that the Prime Minister has to be a party leader. Nor even that he has to be an MP… The question is, is there *anyone* who could be seen as a sufficiently impartial lynchpin to take on the task of leading a coalition of (at least) four parties?

A point that arose in the comments to the National identity vs European identity post the other day was that of citizenship, commenter Anoldun noting that

“We were informed we were now “Europeans” when the Treaty of Maastricht was ratified, but the people had nothing to do with wanting to be EU Citizens. They were not asked if they wanted this extra ‘identity’, they did not apply for any such forms to make them citizen’s of Europe and did not even ask for or want them. None of the Commonwealth Countries that fight and die with the British, have British identities or been made British citizens, if THEY wanted to become so they would have to fill forms in etc and if we wanted to give them different identities there would be much form filling and asking of questions. No such things took place when we were made EU Citizens, asked for Passports or have to have an Identity card to prove who we are. I have absolutely no sense of belonging to “Europe” Nosemonkey and certainly none with the EU.”

Citizenship is, of course, effectively a legal codification of a certain form of identity, usually based around the notion of a nation state. EU citizenship is unusual in this regard, to be sure – because despite having certain characteristics of a state, the EU is not one. (For more on the EU as a state, and the perennial fear that it may become a superstate, please see my series of posts on the subject from earlier this year: 1, 2, 3, 4, 5.)

Citizenship as imposition

The complaint that EU citizenship has been forced upon us without our say is understandable, but if you think about it for a moment it’s also illogical. After all, the vast majority of us have had no say in what nationality we are, our citizenship having been determined by where we were born (or, in some cases, by that of our parents). I had no more say in being British than I did in being male, or having blond hair and green eyes.

The sudden creation of a new layer of citizenship over and above a national/state one is not a new idea, of course. It happened in the United States back after the American Revolution (the comparison that those who fear an EU superstate are likely to fear), but also rather more recently, with the British Nationality Act 1948. This oft-forgotten Act of Parliament made *every single person* in the British Empire a British citizen, whether they wanted to be or not – and considering this was the year after Indian independence, and shortly before the Empire disintegrated, it’s a safe bet that many had little interest in British citizenship, and if anything would have taken this as a patronising insult.

When it comes to EU citizenship, you may not identify yourself as European; you may not want to be European; but if you are a citizen of an EU member state then you are an EU citizen whether you like it or not – just as (in most cases) you are a citizen of that state whether you like it or not.

British citizen or British subject?

It’s also worth noting that the very concept of citizenship is continental European in origin (in the modern sense mostly via the French Revolution, though the idea does pre-date it) – and a very recent introduction to Britain. It’s a word that entered English via the Old French citeain, itself derived from the Latin civitatem.

Indeed, until the aforementioned 1948 British Nationality Act, there was no such thing as a British citizen – we were all merely subjects of the crown.

This, in effect, meant that we – as British subjects – had obligations to the state, but few rights.

This is because, contrary to popular belief in the power of the likes of Magna Carta and the Bill of Rights, the one constant in British constitutional law over the last three centuries has been that no parliament can bind another. This includes binding future parliaments by legislation granting rights to the people – because, again contrary to popular belief, in Britain the people have never been sovereign – first sovereignty lay with the crown, now it lies with parliament.

This means that the “right” of the people of Britain to vote, to a fair trial – even to life – are all down to the whim of parliament, and can be withdrawn at any time. (For more on this, see this post on the nature of sovereignty, this post on the nature of the English/British constitution and how “rights” fit into it, and this Wikipedia article on the concept of parliamentary sovereignty.)

The benefits of EU citizenship

In contrast, EU citizenship has conferred rights with no obligations.

With the introduction of EU citizenship, for the first time in Britain’s history, British citizens/subjects have the right to vote, to free movement, and so on, rather than just the privilege – we are no longer dependant upon the whim of parliament.

In return, the EU asks nothing of us. We are not directly taxed by the EU, nor does the EU directly pass any laws that we have to obey – all go via the governments of the member states, all of whom can challenge every stage of the process. Nothing the EU does is done without the approval of the (elected) governments of the member states – and therefore our obligations remain to the member states we are citizens of, and not to the EU as an entity. This may sound like pedantry, but in a legal sense it is a vital distinction.

It is the ongoing power that the British parliament has to abolish any and all freedoms it so desires that is one of the key reasons why I became in favour of some form of supranational body that could, for the first time in the country’s history*, serve to guarantee the freedoms that we have all come to assume are our right.

EU citizenship being layered on top of national citizenship finally guarantees all British citizens the right to appeal to a court that lies beyond the British government’s jurisdiction, whereas before we were stuck with the House of Lords as the highest court of appeal – a House of Lords and a justice system presided over by the Lord Chancellor, a member of the same government against whose abuses we would have been appealing.

Because the trouble with the concept of sovereignty is that is implies *absolute freedom of action*. In a state where the people are sovereign – as in the US with its “We the people” opening to the Constitution and specific clarification of the people’s rights in the 9th Amendment – this means that the people are (legally) secure from governmental abuses of power. In a state like Britain, where parliament is sovereign, it means that the people have no guarantees about anything – no rights, only privileges, and no legal recourse if those privileges are withdrawn. (The same problem faced parliament in the 17th century – they wanted certain guaranteed rights, but the monarch was sovereign. The problem was only solved by a series of bloody civil wars, the constitutional shift finalised by a foreign invasion.)

The concept of EU citizenship rectifies that historical/legal/constitutional anomaly – this time without a drop of blood shed.

* The UN’s Universal Declaration on Human Rights (1948) and the Council of Europe’s European Convention on Human Rights (1950) were steps in the right direction, but the former is not legally binding, and the latter’s failings are made clear by the fact that the likes of Russia and Georgia are signatories, despite routinely breaching their citizens’ declared rights under the Convention.

My last post has been hijacked by the rather fervent supporters of the concept of an English Parliament to the extent that it’s impossible to discuss what it was really about – i.e. local/regional vs national identities.

For non-Brits, a quick overview…

The Campaign for an English Parliament and its political offshoot the English Democrats Party are English nationalist organisations that have arisen since devolution and the creation of the Scottish Parliament, Welsh Assembly and Northern Ireland Assembly.

The argument is fair enough – Scotland, Wales and Northern Ireland now have sole control over various areas of domestic policy (e.g. health, education), but in those same areas, England is still governed by the parliament of the United Kingdom in Westminster – which contains Welsh, Scottish and Northern Irish MPs. This means that we have a situation whereby a majority of English MPs could oppose a policy (to do with, say, health) that would affect *only* England – yet the government could pass that policy anyway with the assistance of MPs from other parts of the United Kingdom, even though it would not take effect in their own constituencies.

It is a problem that has long been acknowledged in British politics, that should have been more adequately dealt with before devolution took place, and that has come to be known as “the West Lothian Question” after a 1977 speech by Scottish Labour MP for West Lothian, Tam Dalyell:

For how long will English constituencies and English Honourable members tolerate… Honourable Members from Scotland, Wales and Northern Ireland exercising an important, and probably often decisive, effect on English politics while they themselves have no say in the same matters in Scotland, Wales and Northern Ireland?

As such – to keep the English Parliament lot happy (though I’m not sure why I should bother considering their wild hostility in my last post and decision to libel me with unfounded accusations) – here’s a dedicated post for them to rant at. (Which will probably be of little interest to anyone else…)

My views on the West Lothian Question

For the English Parliament lot in particular, a selection of some of my past comments on the idea of an English Parliament – which both show some sympathy to your cause, and raise some concerns that I have:

Example 1: (17/08/09) “The campaign for an English Parliament – effectively English devolution – is something that makes a good amount of sense since Scotland, Wales and Northern Ireland have been granted their own assemblies.”

Example 2: (07/02/06) “it’s not very hard. You look at the legislation and ask “is this going to affect England only?” (e.g. quite a chunk of education and health policy) – if the answer’s “yes” then Scottish MPs shouldn’t vote”

And so yes, I do have some sympathy to the arguments for an English Parliament.

What I don’t get, though, is the idea that an English Parliament is the only – or indeed the best – solution. As I said yesterday,

“I still don’t see any convincing reasons for England to be any better a unit of governance than the United Kingdom – both are too large and too diverse to be sufficiently responsive to the needs of the people who live within them.”

But more of this later.

Level of support for an English Parliament

I also am not convinced that a 1.8% share of the vote for the English Democrats in the European elections back in June is indicative of the kind of widespread support that online supporters of an English Parliament always seem to assert.

The figure normally quoted by an English Parliament’s supporters is that 73% back the idea of an English Parliament, based on a solitary BBC poll from 2006. What is normally ignored is another poll the BBC conducted in early 2007. This also showed a majority support for the idea, though this time only 61%.

But look at the more detailed breakdown of that poll and you get a rather different picture – PDF. This showed that only 25% from England thought that England would benefit from “independence” from the United Kingdom, with 24% thinking such a move would be damaging. At the same time just 11% reckoned English independence would “enhance” English culture, with 10% saying it would be “diminished” (and 76% saying it would make “no difference”).

And the headline figure? In England, 73% would “Prefer [the] Union to continue as it is/has done”.

That hardly shows overwhelming support for the idea, in my books.

How much would an English Parliament cost?

OK, so given that I agree that the West Lothian Question can be seen to pose a problem for democracy within England, and ignoring the fact that 73% of the population of England seem not to mind, what are the practicalities?

The obvious question is how much would it cost? Well, the Scottish Parliament’s costs have famously soared over the years – the building alone ending up costing about ten times more than planned.

Then there are the 129 MSPs, with a basic salary of £52,226 (so a bare minimum salary bill of £6.7 million just for the politicians – let alone the other staff and running expenses and the like). Each MSP represents around 55,000 electors – England has a significantly larger population, so either the constituencies would need to be far larger (thus reducing the connection between electors and elected representatives) or we’d need far more politicians (thus increasing the cost).

Either way, taxes would either have to go up, or spending on public services would have to go down. Which would make the wonderful list of things that would become free if there were an English Parliament start to look rather less certain.

Is there another solution?

Meanwhile, we already have 529 English MPs sitting in Westminster – sitting in a room only a few hundred feet from where English Parliaments have sat since the 13th century. There are just 117 non-English MPs.

In other words, England already has plenty of representation in Westminster, at the site of the Parliament of England’s traditional home.

And – at effectively zero additional cost to the taxpayer – it would be entirely possible to pass a quick Act of Parliament to the effect that Scottish, Welsh, and Northern Irish MPs are unable to vote on those issues that have been devolved to their respective national assemblies. Which would solve the whole West Lothian Question overnight.

This solution is so obvious it’s painful. And just because it was rejected by Tony Blair doesn’t mean that it hasn’t got a chance of being passed in future. It’s certainly got a lot more chance of happening than the creation of an expensive parallel parliament in England, running alongside that of Westminster.

And in any case, I don’t know if you’ve noticed, but politicians aren’t very popular at the moment. What makes you think – especially after the expenses scandal – that we want any more of the buggers?

So, English Parliament lot – convince me. Why should we fork out a load of extra money on even more politicians when we could just stop Scottish, Welsh and Northern Irish MPs from voting on England-only issues – solving all the same problems that an English Parliament would at a fraction of the cost?

The MP expenses scandal has rocked Westminster for over a month now (with more revelations *still* emerging). Many MPs have found their careers cut short – among them Speaker Michael Martin (a man who never should have got the job back in 2000, but that’s beside the point).

As is the way of things these days, public and press outrage over the perceived piss-taking by MPs of all parties has led parliament to jump to entirely the wrong conclusion. In hunting for a scapegoat, they picked on Michael Martin; in the process, they tarnished the office of Speaker itself with smears designed primarily to hit this man they had collectively decided to blame. “Oh,” they said, “If only we had someone like Boothroyd or Weatherill this never would have happened!” Yet despite professing that it was the man, not the office, which had been found wanting, it looks as if the next Speaker is intended to “update” and “make relevant” an institution that has doing very well, thank you very much, without any meddling from mere gadfly politicians.

Altering the office of Speaker is not what is required. That way lies failure and recrimination down the line. Because we cannot do constitutional reform – not when it’s hasty; not when it’s carried out by politicians; and most especially, it would seem, not when it’s carried out by the lot we’ve got at the moment. (Remember the half-arsed attempt to reform the House of Lords, that has left us in an arguably worse situation than we had before? The dismal attempt to abolish the office of Lord Chancellor? The various residual angers and squabbles over devolution? The back-of-an-envelope creation of a supreme court? The constant renaming of government departments, often at vast expense and with no discernible impact? The gradual downscaling of both the Cabinet and parliament, hand-in-hand with the politicisation of the previously stringently impartial civil service?)

The office of Speaker has been brought into disrepute? One Speaker’s failures over a nine-year period is enough to destroy the respectability of a position that has existed (more or less) since the 14th century? By the same logic, shouldn’t we abolish the office of Prime Minister about now?

What we need is not to alter the office of Speaker and “make it more relevant”, as seems to be the buzz phrase at the moment. We need someone respectable, unimpeachable, with an intricate understanding of the rules of parliament (something Martin never had), a sense of the history of the place, and an ability to stand up for what’s right in the face of overwhelming opposition from a chamber full of shouty, petulant MPs.

Few of the candidates can live up to this:

- Margaret Beckett is a party animal through and through, heavily implicated in the expenses scandal
- Sir Alan Beith is another party man – and to have former deputy leader of any party take over such a high profile position at this stage is just silly, even if he is only a Lib Dem
- Sir George Young is a former Secretary of State, and therefore he too has too much of the party man about him
- John Bercow is both incredibly smug and, with only 12 years in the Commons, too inexperienced
- Parmjit Dhanda only entered the Commons in 2001, so just cannot be taken seriously no matter how intelligent and earnest he may seem
- Anne Widdecombe is more a TV personality than a politician these days, and is stepping down at the next election anyway, so really – what’s the point?
- Sir Alan Haselhurst put £12,000 on his expenses for gardening over four years, based on a figure just £1 below the receipt threshold every month throughout that time, so surely can no longer be a contender
- Richard Shepherd is a man of principle, no doubt, but with the ongoing difficulties over the positioning of the UK within the EU I can’t see the Commons going for one of the most fervent of the Maastricht rebels (plus he’s a friend of Robert Kilroy-Silk, which must show poor judgement, surely?)

Which leaves us with two genuinely decent candidates: Sir Michael Lord, and Sir Patrick Cormack. Both Tories? Yes. Both with Knighthoods? Yes. Between them, they have 65 years in the House (39 of those Cormack). Lord, like Shepherd, was a Maastricht rebel – but I wouldn’t discount him for that, as it does, after all, show some independence. More impressively, however, Cormack was a Poll Tax rebel – one of the very few Tories to refuse to support that most unpopular of policies, and was also the first MP to force a debate on the Yugoslav crisis in the 1990s – much against the wishes of the then government (which was, yes, Tory again).

Yes, I’m biased here – I used to work for Cormack. This does, however, also mean that I’ve seen his character up close and know him to be a man with a genuine, passionate belief in doing the right thing. The Telegraph’s Ben Brogan seems to see much of the same in him that I do.

If you want to return a sense of decorum to the Commons, what better than someone who knows the place inside out, with four decades’ experience? What better than someone who’s been through ten general elections and seven Prime Ministers, who’s seen countless MPs come and go – and yet has, throughout, watched the institution of parliament endure, despite all the scandals, all the infighting, all the failures and ill-considered reforms?

We don’t need a big media star – the Speaker should never *be* high-profile, that was part of the reason Martin had to go – we need someone who can command quiet respect. We don’t need rapid reform – we need someone with a sense of perspective who can take a step back and calmly assess, because that is what the Commons has been lacking above all during the last few weeks. Cormack would be ideal.

Which is, of course, why he almost certainly won’t get it. When was the last time MPs voted for something to do with the running of parliament that actually makes sense?

In our last little discussion of the likelihood of an EU superstate (in amongst and partially as an offshoot of the rather silly sidetrack about jam), Josef noted that

there is a concern that this is how the EU will form itself into a “superstate.” Not through a series of demi-democratic treaties, but through a sort of slow, suffocating creep of boring, incomprehensible, impenetrable legislation. If you write a follow up post, Nosemonkey/J Clive, then I’d be interested to hear your take on this.

This is always a danger with any democratic system which relies largely on a more or less bureaucratic civil service to get things done. We like to think that all new legislation is debated and scrutinised by our elected representatives, dissected in minute detail and put to a vote considering only the best interests of the people – but it rarely happens like that.

In the UK, the vast majority of primary legislation is passed in the form of statutory instruments – new laws drawn up by civil servants and government ministers and put onto the statute books without (most of the time) parliament so much as being informed. In the UK in 2008 alone, there were 3,399 statutory instruments passed – that’s more than nine new laws a day that have come into existence without so much as a by your leave from an elected official. (That’s about average for the last 20 years, by the by – the number of statutory instruments began to creep up under Major, but have remained relatively constant since the mid-1990s, despite various claims that Blair used them more than any previous Prime Minister as another way of bypassing parliament.)

The vast majority of these statutory instruments are amendments to existing Acts of Parliament, fiddling with the details (most of them minor). Our last little debate got sidetracked on the use of apple geranium in jams other than those made with quince. Hardly the sort of thing – the logic goes – that it’s worth wasting parliament’s time with, and so precisely the sort of thing that would be sorted out in a statutory instrument. If the approval of British MEPs was needed for each of the law changes that statutory instruments bring in, then every one of the British parliament’s 646 MPs would have to go through more than five of the things every single day of the year – as well as all the major legislation, dealing with constituency concerns, being part of the government, holding the government to account and so on. (Remove those MPs who hold government office, it’d be more like 7 statutory instruments each to scrutinise and research the utility of per day – that’s a full-time job…)

In the EU, we have much the same problem. Having accepted the general principle that area X is best dealt with at EU level, it is impractical for MEPs to then scrutinise every subsequent tiny bit of legislation to ensure that it meets their high standards, and vote on every tiny clause about different types of fruit preserve in full session at the European Parliament. Because just as we, the people, delegate our powers of decision to our representatives at Westminster and Brussels/Strasbourg, so our representatives then delegate powers of drafting new laws to the various civil servants, be they in national civil services or the European Commission.

(At which point it’s worth noting that most EU legislation is not actually drawn up by the Commission – the EC only has a staff of c.38,000 – less than a third of that of the UK Department of Work and Pensions alone, and nowhere near enough to do everything that the Commission is accused of doing. Instead, pretty much all EU legislation is drawn up by the civil servants of the various member states, checked by civil servants in other member states, and then rubber-stamped by the Commission once it’s been looked at my enough bureaucrats in enough member states.)

And so in the normal course of events, yes – dozens of new laws will likely come into force every week without having been so much as glanced at by an elected official. But such developed social systems as ours could not possibly function any other way – unless you think that the civil service should be elected, and that it’s a practical possibility to find several hundred thousand people willing to campaign for such a thankless job (not to mention several hundred thousand people willing to turn out and vote on what would prove to be an almost daily basis as retirement and transfers necessitate by-elections to fill vacant posts…) And in any case, the general principles are already always voted on by elected representatives at both national and EU level – as long as they are doing their jobs properly, they shouldn’t vote through sweeping new powers that would allow unelected bodies or people to suddenly advance major changed without anyone checking them first. (Though that’s not to say that there isn’t always a danger that this could happen, as we found out in the UK only recently with the – thankfully defeated – Legislative and Regulatory Reform Bill, which would effectively have made parliament obsolete and allowed any government minister to make any law they liked, when they liked.)

When it comes to the EU, the real fear of competence creep was epitomised by this glorious clause (Article 308 EC):

If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community, and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures.

In other words, the EU could grant itself whatever powers it liked. Or, at least, it could after unanimous agreement from the governments of the member states in the Council, and after being passed by the elected representatives of the European Parliament – but most anti-EU types conflate Council, Parliament and Commission into one monolithic-sounding “EU” to make these things sound more scary.

So, for more powers to pass to the EU, even with the existence of the “competence clause”, you’d still need unanimous agreement between the governments of all 27 member states, plus a majority in the European Parliament. Hardly that scary – but even so, the Lisbon Treaty amended that same article (now Article 352) to clearly delineate (in line with the subsidiarity principle introduced with Maastricht back in 1992) just where competences lie between the EU and member states, as well as explicitly excluding common foreign and security policy as an area where the competence clause could be used to grant the EU more powers.

Oh yes, and Article 352 also introduced a new clause obliging the Commission to involve national parliaments in any moves to grant the EU more powers. So that’s unanimous agreement by all 27 member state governments, passing a vote in the European Parliament, and passing votes in the parliaments of all 27 member states before the EU can claim any major new powers for itself. Hardly a major worry.

In the meantime, life will continue as normal, with dozens upon dozens of minor changes to minor laws being brought into force merely by civil servants via statutory instruments and their equivalents across Europe – and then (despite some of the claims made in our last comment thread that alterations to jam legislation would require ratification by the Council, Parliament, and so on) amended just as easily if they turn out not to be workable.

Is there a danger that some of these laws will be bad ones? Of course there is. But at least they are generally being drawn up by civil servants who are experts in their field (rather than members of parliament who tend to be generalists), and at least they can be corrected with ease.

Is there a danger that such civil servant-drafted laws could slowly grant more power to institutions that we aren’t willing to give them? Well, a poorly-worded new law always has the potential to be misinterpreted. That’s what we have judges and courts for – if such poorly-worded laws are found, they can be challenged and struck down, if a simple amendment isn’t enough. After all, both the existing Article 308 and the proposed new Article 352 explicitly state that both the Council and the Parliament have to approve any new EU power-grab – and treaty law will always take precedence in such cases.

In short: Modern western liberal democracies are very complex systems, packed full of checks and balances that have been worked out over the course of many centuries. The EU is not a true liberal democracy, but shares many of its forms and functions. As such, I remain confident that there are enough checks and balances in place to ensure that the only way the EU will gain more powers is if the member states of the EU want to delegate more powers to it. It will not -can not – happen by accident. Unlike in the British system, where bad laws like the Legislative and Regulatory Reform Bill can easily slip through parliament if the government has a sufficient majority and MPs are sufficiently cowed, the EU has 27 additional chances of spotting them before they get anywhere near the statute books – something that the Lisbon Treaty would only have underscored by bringing national parliaments into the equation as well. Once again, it’s hardly the stuff of an impending superstate.

Today sees Britain’s new European Commissioner, Baroness Ashton, appear before the European Parliament. You never know – something interesting might crop up. Her answers to the usual written questions can be found here. Not much to get excited about, though the anti-EU crowd will no doubt leap on her first justification for her appointment:

“As Leader of the House of Lords, I steered the Lisbon Treaty through that House.”

Perhaps more interesting is a different constitutional issue – that of whether life peer Ashton can be fully independent in her new role – as raised by Jon Worth. Be warned, this one may go on a bit, and I doubt there’ll be many definite answers…

It is, in short, the age-old problem of whether it’s possible to serve two masters – a dispute that’s been ongoing ever since medieval times when increasingly powerful monarchs began to object to the authority of the Papacy, first properly expressed by Pope Gelasius back in 494 in what has come to be known as two swords theory. How can one swear an oath of allegiance to both Pope and monarch? What happens when they come into dispute? This was the very problem – well, part of a larger, more complex problem – that caused England’s break from Rome back in the reign of Henry VIII, the bitter Investiture Controversy during the time of Pope Gregory VII, and countless other spats down the years.

Currently, European Commissioners have to take an oath (PDF) that includes the following:

“I do solemnly undertake: to be completely independent in the performance of my duties, in the general interest of the Communities; in the performance of these duties, neither to seek nor to take instructions from any government or from any other body”

Is this compatible with Ashton’s oath of allegiance to the Queen, sworn on taking up her seat in the House of Lords? Ashton seems to think it’s not a problem:

“For the term of my mandate as Commissioner I have taken leave of absence from the Lords. This means in practice that, although I retain my title, I would not attend the House of Lords, nor take part in votes, give speeches there, or draw any allowances during the period of my mandate.”

All well and good – as according to the Code of Conduct for European Commissioners (PDF), “Commissioners may hold honorary, unpaid posts in political, cultural, artistic or charitable foundations”. But it doesn’t quite answer the question. Can you hold allegiance to the Queen while being “completely independent”?

As life peers who become MEPs have to give up their peerages (something Ashton claims she is unable to do), surely the same should apply to Commissioners – not least because they are explicitly supposed to be acting for the good of the whole of the EU, not just their respective countries. It’s an ongoing problem for British politicians, almost all of whom – if they end up sent to the Commission – will have taken not just the oath of allegiance, but the far more explicit oath sworn by members of the Privy Council (PDF):

“You will to your uttermost bear Faith and Allegiance to the Queen’s Majesty; and will assist and defend all civil and temporal Jurisdictions, Pre-eminences, and Authorities, granted to Her Majesty and annexed to the Crown by Acts of Parliament, or otherwise, against all Foreign Princes, Persons, Prelates, States, or Potentates.”

It’s hard not to see this as incompatible with the Commissioners’ oath to be independent and act “in the interest of the communities” – so little wonder UKIP’s Nigel Farrage raised the point on Peter Mandelson’s appointment to the Commission four years ago.

The question of where a European Commissioner’s loyalties lie is a vital one – especially with the ongoing moves to reduce their number, so that not all member states will have a Commissioner of their own nationality. Is Ashton’s first allegiance to the Queen, or to the European Union? It’s not hard to see how anti-EU types could start to ask how can she defend Her Majesty’s “temporal Jurisdictions, Pre-eminences, and Authorities” while working for an organisation that pushes for a pooling of national powers. But turn that around – how can pro-EU types not ask how someone who’s taken an oath to defend national powers can work for the good of the Union? It’s not like it would be hard to pass a quick statutory instrument to absolve British Commissioners from their previous oaths for the duration of their terms. So why haven’t we?

Is the Privy Council oath meaningless? And if so, why does that organisation remain part of the governance of Britain? Or is the oath the Commissioners take meaningless? And if so what does this say about the role of the Commission? Where do Commissioners’ loyalties lie – with the EU, or with their home nations? Because if it’s the latter, the Commission is incapable of fulfilling its allotted task.

Not having particularly kept up with Scottish politics after the ’45, and despite having close Scottish relations involved on the fringe of the Scottish political scene, the niceties of the devolution settlement have largely eluded me. I’ve only made it up to Scotland once since devolution anyway, and spent the majority of the trip in the remote Highlands getting boozed up on fine whisky.

You’d think that for someone with a keen interest in British constitutional history I’d have paid more attention, considering that devolution was always – potentially – the most significant constitutional change since universal suffrage was introduced. I just never really thought it would have legs, and that the entire experiment would end up being scrapped once it was shown to be a huge waste of money. More fool me, it would seem, as it appears that something very odd indeed may be happening north of the border.

Because, you see, in constitutional and international legal terms, terminology is hugely important. Call the Scottish political executive an executive, fine. Call it a government? Well, it’s not, is it? It has elements of the powers of a government, but it’s merely a subservient element of the federation that is the United Kingdom, surely?

That’s what I’ve largely – in my ignorance of the niceties of Scottish politics – thought to be the case. But now I’m not so sure, as it looks rather as if the ruling Scottish National Party has already decided to declare independence in the most subtle of ways – in a manner, in fact, that has barely even been noticed by the London-centric media, and that appears to have been done with little or no consultation with Westminster.

This is the post that’s drawn my attention to it:

“the unilateral decision of the Scottish National Party’s minority administration to remove the Royal Coat of Arms from government offices and rename the Scottish Executive as the Scottish Government is not a ‘rebranding’; it’s a rebellion.

“That’s what you call the removal of lawful authority’s symbols in conjunction with unmandated, unsupported and unsupportable claims to the sole title to govern nations. They’re called rebellions…

“It says much for how deeply, and dismally, the dismal science has seeped into the hearts of the British people that so much reaction to the rebellion has focussed on ‘How much does the rebranding cost?, rather than the more pertinent question of ‘How dare you try to take our country from us?’”

Merely calling the Scottish Executive the Scottish Government doesn’t give it all the powers of a government, that much is certainly true. Hollyrood still lacks the power to declare war and make treaties independent of the rest of the UK, after all, two defining aspects of governmental power. Yet it does have the power to raise some taxes, and to set policy in areas as important as education, health, transport and – most vitally – justice.

Considering how restrained most European states are in their foreign policies these days – what with obligations to the EU, NATO, UN, WTO etc. etc. etc. – is the ability to determine an independent foreign policy really a necessary hallmark of a national government these days? If not, the Scottish National Party’s “rebranding” of Scotland’s Executive as “the Scottish Government” could well be an informal declaration of independence from the UK. Not full independence just yet, certainly, but certainly a significant step down that route.

There are, let’s face it, plenty of precedents to choose from for countries under British/English rule seeking full independence. You can take the armed rebellion route, like the Americans, or the peaceful negotiation, like India.

Scotland, however, seems to be taking Canada as its role model, specifically the concept of patriation. Because in 1867, under the British North America Act, Canada gained partial independence – an independence which crept steadily over the following century, until the country was fully independent in all but name. In fact, it wasn’t until the 1982 Canada Act that our Canuck cousins gained full independence from Britain.

So, was the passing of the Scotland Act the latter-day equivalent of the first British North America Act of 1867? Is Scotland truly now in that no man’s land of not being fully independent, not fully under London’s control, as Canada was from 1867-1982? And are the masterminds of the independence-seeking Scottish National Party, currently in control at Hollyrood, using their current position to make subtle changes – such as calling themselves a government rather than an executive – merely to hasten the process, or is this something more significant?

Update note: It’s entirely possible that there should be a question-mark in the headline to this post. He’s not stupid enough to have made this move without thinking it through, but I can’t for the life of me work out what he’s got planned.

Update 2: This post is now largely obsolete, and so has been edited down – Jack Straw is indeed Lord Chancellor. Had a bit of a scare there though – and it’s still very confusing…

—

Via email and the like, I’ve been having heated discussions with a couple of mates about precisely what’s happened to the office of Lord Chancellor in this reshuffle. It looks rather like Brown may have made a major cock-up, and the current TV coverage hasn’t mentioned it a jot.

[Update edit - removed paragraph]

There is, technically, no constitutional reason why Jack Straw couldn’t be Lord Chancellor while remaining in the Commons, from what I can tell. But it’d be very, very odd indeed and I can’t see any way it would work in practice. [Update edit - removed speculation]

What the hell is going on? [Update edit - removed sentence]

They’re now announcing a special Cabinet session to change the constitution – but how, exactly, and where does the Cabinet get the authority to do that?