19 February 2012

One reason why "devo max" won't be on the #indyref ballot...

Term time in Oxford is just a little demented. Heaven knows how the undergraduates do it. The demands on one's time: academic and social - the serious and the engaging to the delightfully frivolous and engaging - are extraordinarily pronounced, even without the hostage situation that is working away at a doctorate (in which circumstance, one is never sure whether you or the thesis is the kidnapper or the kidnappee).  To this, February's light peat worrying thus far is to be attributed.

Just a wee thought or two, then, for this balmy Sunday night.  Many aspects of our political discourse in Scotland at the moment are, frankly, surreal. Nationalists pursuing independence suggest the inclusion of a "devolution max" question in the independence referendum, despite claiming to prefer a single question referendum (which seems increasingly implausible, at least as far as the party leadership is concerned). This despite the fact that the inclusion of any "devo max" alternative, whether in a head-to-head conflict with independence, some more elegant three-option affair, or what have you, would likely cause nationalists no end of troubles in the increasingly moderately-posed independence campaign, advancing an even more "moderate" solution, of more powers for Scottish institutions. Simultaneously, many Tories and Liberal and Labour politicians - now apparently including the PM - who oppose independence but more or less concretely believe in a better, fuller devolution including economic powers, argue that on no account should a question on that topic be put to the Scottish people as part of the referendum process. This too, despite the evidence that the nationalism they oppose could be handily shellacked by enhanced devolutionary strategies.

In the midst of all of this confusion and paradox, the obvious question is: why? Given popular support for this median position, and given their more or less clearly declared and determined constitutional goals, set on envisaging and realising a better devolution, why the reticence to include any devolution opinion in the referendum? Just why are Unionists so wary of including any devo-max referendum option? Why do some nationalists (particularly the SNP leadership, but also others) seem so keen to facilitate the inclusion of some sort of devo-maxy question, which does not seem likely to make easier the realisation of Scottish independence by referendum? In response to my earlier piece, in defence of process, Groundskeeper Willie quoted me...

"Just because I didn't compose a carefully pitched definition hardly means that it is impossible to compose such a question, and put it to the people. That wasn't my business here"

And asked...

"O.K then smarty pants. Draft the question."

A fair demand. Though Willie's challenge appears to assume that the proposition of "devo max" is basically unstateable in a form amendable to a referendum, which seems immediately daft, it is certainly true that to pose any "more devolution" question presupposes basic agreement on a range of important and basic political questions, unanswered by waggling about the unsatisfactory, still essentially vague concept of "devolution max". It is also true that the accepted conventions about how referendums ought to operate present particular challenges for Unionists politicians, keen to retain their substantive privileges to decide what powers lie precisely where within the United Kingdom, but who are also keen to ask the public about "more devolution".

One clear expectation of plebiscites is that referendum questions will be reasonably clear and reasonably concise. Say one was a UK federalist or suchlike, and keen on seeking democratic legitimacy for more devolution. How do you phrase it crisply, comprehensively? It is not that a pro-devolution question couldn't be cleanly and clearly proposed, but that the underlying agreement required to pose such a question simply doesn't exist.

Interestingly, when various pollsters have tried their hand at devo-max question, they have borrowed the logic of the Scotland Act, asking about explicitly reserving powers rather than exhaustively enumerating those which are devolved. Emphasis here soon lies on the maximal form of potential devolution. Take, Ipsos-MORI, for example, who have asked:

"As you may know, the Scottish Government plans to hold a referendum on Scotland's constitutional future during the next Scottish Parliament. The referendum is likely to contain two separate questions. The first question will ask whether you agree or disagree with the proposal to extend the powers of the Scottish Parliament to include more laws and duties and all tax-raising powers, while Scotland remains part of the UK. If the referendum was held tomorrow, would you vote to agree or disagree with this proposal?" (my emphasis)

TNS-BMRB have also conducted polls, asking for preferences, and opposing various options:

(1) Keep the current arrangement of a Scottish Parliament with its existing powers.
(2) Transfer more powers from Westminster to the Scottish Parliament, including tax and welfare but excluding defence and foreign affairs.
(3) Full independence for Scotland.
(4) Don't know. 

One early conclusion which seems indicated is: given the pressures to ask concise referendum questions, practically, it will be exceedingly difficult to frame, never mind ask any devo-max question that doesn't borrow the Scotland Act's structure, enumerating reservations rather than powers to be devolved. Moreover, because of the pressures to ask short questions, tersely phrased, the inclusion of a devolution max question in any pre-legislative referendum would tend to discourage long lists of reservations, and promote much increased rather than more limited devolution.  As a pro-devolution Nationalist, this is a fact I can cheerfully endure, but is rather more difficult for those devolutionist or UK federalists who fancy including such a question, but who are knotted in anxiety about taking the ostensible will of the people - as they'd see it - too seriously.

Amongst pro-Unionist politicians, the desire to set policy at the representative level, in parliament, is exceedingly pronounced. While able to convince themselves that the people really want Holyrood to have more powers, these characters will be much more reluctant to accept that if Scots vote for all tax powers to be devolved, that they really mean all.  However, the ballot paper starts getting pedantic and debatable, if you ask: do you agree with devolution of all taxation, save for corporation tax, VAT, national insurance - and so on, and so on, across policy areas where some Unionists would (perhaps not unreasonably) prefer powers at a UK parliamentary and ministerial level within a reimagined, reconfigured United Kingdom.

Take this example. While some folk may be keen on devolving much more taxation than the Scotland Bill presently proposes, others may baulk at the idea of signing up for a referendum on devolving all forms of taxation.  In a de facto or de jure federal future UK, for instance, we know a number of folk would wonder whether corporation tax or VAT should be reserved or devolved? Hence the worry that any nationalist-defined devolution question - and more broadly, any pre-legislative referendum including a "more devolution" question of indeterminate form - represents a "beartrap" for Unionists, apt to promote Nationalist logics about where in the UK decision-making powers on a raft of topics ought to be located.

If there is going to be a devo-max question - these are knots to be unravelled. Realistically, there probably isn't time. Despite the popularity of the message of "more devolution", it seems highly unlikely to me that the pro-devo max body of opinion, keen to see it on the ballot, will get their acts together, coalesce, and negotiate away the range of thorny topics lying barbed beneath the banal, unsatisfactory, surface support for Scottish institutions enjoying more powers. Increasingly, I am of the mind that we'll end up voting on a simple yes-or-no question on independence, though not for want of effort on Salmond's part to see a multi-opinion plebiscite posed. In great part, this is simply due to the failure to find a political proponent of the devo-max question in the campaign, substantially thanks to the dismally enervated contribution of the Scottish Labour Party to these debates, one way or the other. The outfit remains - to an astonishing degree - a clueless, stammering, tedious, irrelevance: directionless, complacent, supine and insubstantial.


  1. Good stuff. I tend to agree, looking at the state of the pro-devolution forces, that it is already too late to frame an intelligible devo max question in time for a referendum in 2014. If the voters vote No, we may find a suitable question sometime around 2018.

    One small quibble. I wouldn't presume to read Alex Salmond's mind, but I'm not convinced that he does really want a devo max question. It's equally plausible that he hopes to show that devo max is not realistically on offer. There are only options - independence or the status quo (widely seen as unsatisfactory).

  2. Agree with Dennis "There are only two options - independence or the status quo"

    But it is, if actual electon results and opinion polls are correct, "independence" that is "widely seen as unsatisfactory".

  3. Once more: the SNP really, really don't want a second question (for the very good reason you note). They want to be seen bending over backwards to offer the people of Scotland one, only for it to be scuppered by the anti-democratic Unionists. Plan working well so far.

  4. I agree with Dennis, I don't believe the SNP truly want a devo-max question. The fact so many in the media think they do is reason enough to doubt it, but just consider how things are currently going, and how they would be going if there was no question of a devo-max option.

    Those in the Labour party who have a brain (i.e. Malcolm Chisholm and Henry McLeish) have been backing devo-max, but to no avail. We now have Cameron and Darling backing it in some post-referendum form, and presumably these are now the official party positions (which the Scottish regional versions will now adopt, suggesting perhaps that the ineptitude of the Scottish Tory and Labour leaderships has been recognised by their London leadership, who have decided that if they can't be trusted to progress things on their own, the London big guns will do it for them). So we're reaching a point where the idea of keeping the status quo is so unthinkable that even those who truly believe in it have had to abandon it. The question now is not "do we want change?" but rather "how much change do we want?" We will have over two years of people debating whether various powers should be devolved. This puts everyone in the mood for constitutional change, and people will soon start hearing reasons why certain things shouldn't be devolved (Captain Darling has already hinted that corporation tax is too complicated to devolve, which begs the question "why is it being considered for Northern Ireland, then?")

    Not everyone will agree on a set of powers that need to be devolved - some will say we need power over nuclear weapons, some will say we need full control over welfare, some will say nothing less than all taxation and spending will suffice. Amongst all of this, people will be told "no, we can’t devolve that because it would be too complicated under the union". People will start to see that devolution is not about empowering Scotland, but about keeping the union - not "what powers are best put in Scottish hands?" but rather, "which powers can we transfer without undermining the union?" They will start to question what exactly it is we need the union for when it just prevents us from getting the powers we need. People who do not call themselves nationalist will start to see that they are not unionist either, and just want Scotland to have the powers it needs to blossom.

  5. All of this is due to devo-max being part of the current debate. Conversely, if devo-max was already ruled out, all the unionists would have to do is convince people that they do not want the Scottish Government to have full control over our affairs. Rather than focusing on what powers people DO want, they could drag the debate down to which powers people DON'T want. They could frame polls showing a majority (even a slim one) in favour of the union as proof that people are satisfied with the union, a claim they just cannot make when three-way polls show a clear 2:1 majority in favour of one of the two forms of constitutional change.

    The existence of the devo-max option forces the unionists to offer change they don’t want, probably because they realise that devo-max reduces the jump to independence to a tiny baby step, and that constitutionally Scotland is on a one-way street to independence. All they can do is create traffic jams. They also recognise that allowing the people to determine how much devolution they truly want is suicidal, hence why they progress devolution by asking unelected people to examine what powers should be devolved, rather than asking us what we truly want, because again, this would merely highlight the fact that much of our choice is constrained by the union straitjacket, as the unambitious Calman Commission and subsequent Scotland Bill prove.

    So, the SNP do not actually want devo-max - they just don't want to be the ones to refuse it, and know they won't have to be. Otherwise, we'd already know what the Labour/Tory/Lib Dem vision of devo-max is, and they'd use it to completely spike the independence referendum.

  6. The obvious question, of course, is "If the Unionists now all believe in significantly greater powers, what are they waiting for?"

    If they were telling the truth, they could just get on with it. Add worthwhile powers to the piss-useless Scotland Bill, and spike Salmond's guns before the battle. There's plenty of time and no need for a referendum, since EVERYONE now seems to agree Scotland should have these powers.

    Instead, every single improvement to the bill the Scottish Government has asked for - all of them backed by at least one opposition party - has been rejected out of hand.

    The Unionist parties are quite simply lying. There is no other rational conclusion. Vote No, Get Nothing.

  7. In its first consultation on the draft referendum bill the SNP suggested Devo Max could be defined as the Scottish Parliament being "fully responsible for laws, taxes and duties in Scotland, except for certain things which would remain the responsibility of the UK Parliament. Key issues which would continue to be the responsibility of the UK Parliament would include:

    defence and foreign affairs;

    financial regulation,

    monetary policy and the currency.

    It was then - and it is now - partly a fishing expedition, an attempt to flush out political support for that position.

    The SNP's motivation has always been interpreted as finding a "fall-back" position. And in some senses that is true because in the event that indepedence lost the vote but you had a majority for Devo Max there would be a mandate to transfer those powers.

    But there is also an argument which I accept that very few people outside the SNP subscribe to - but which I subscribe to - which is that independence in a two question referendum would win. Why? Because if there was majority support for Devo Max - for full economic and fiscal powers, for the Scottish Parliament controlling pensions, broadcasting etc - these issues would be effectively taken out of the debate. There would be a consensus that the Scottish Parliament could indeed handle those things, a consensus which would include unionist politicians. Then the debate would be focussed on what would still be reserved under Devo Max - defence, foreign policy etc. It could be boiled down in some senses to saying do you want Scotland to be self-governing but still keep nuclear weapons? Or get rid of the nukes? I have always thought that was an argument we could easily win.

    But I agree it's not going to happen because the unionist parties quite simply do not support Devo Max,

  8. As I see it the main problem with defining devo-max in a way that could see it included on the ballot is making that definition meaningful - i.e. getting any sort of assurance that the UK government (or, more likely, the next one) would actually implement what was voted for in a referendum and not simply do whatever the hell it felt like. For that to happen your definition would necessarily need to have the explicit and enthusiastic support of at least the Tories and Labour at Westminster, and that is never going to happen.

    The only way devo max is going to feature in the Scottish referendum is if it's legislated for and implemented between now and 2014, and thus becomes the status quo option. It's encouraging to see people like Tim Montogmerie (in today's Guardian) arguing that Cameron should do just that.

  9. A further thought on terminology. The media tend to talk about devo max without trying to define it, but more detailed analyses often assume a distinction between devo max and devo plus (or full fiscal autonomy or whatever). This looks plausible at first sight. Devo max represents a single, easily definable maximum,whereas there are obviously many devo plus options (in fact, infinitely many - no matter how many options you list, it's always possible to devise more. This is why a devo max question can only be reached by hard political bargaining: academic discussion and consultation exercises will only produce more and more theoretical options.)

    LPW's discussion suggests that this distinction between devo max and devo plus may be illusory. On close inspection devo max dissolves into a range of devo plus options.

    There's also a curious argument that if you take the idea of the devolution of power literally then devo max collapses into independence. When the maximum of power - all power - has been devolved, there is none left at Westminster. This can't be what advocates of devo max mean. They must mean something like 'maximum consistent with retaining the sovereignty of Westminster'. But this is not much help. What does 'the sovereignty of Westminster' mean? Dicey still rules OK?

  10. I have to disagree - there is still quite a ways to go, many arguments to still to be fought over, and this devo-max question could easily find itself on the paper come the day.

    I think this will be largely down to Camerons intervention. Having uttered the hint of a promise of more devolution, he has placed the Unionist campaign in a bit of a pickle. To remove it now, as Forsyth would like to see happen, would make the Unionist camp seem unable to agree on anything and not to be trusted. If they try to water it down into some sort of "taking stock" exercise, then people are not going to fall for that. If they won't state what this process of more devolution would involve, then the 79 promise from Lord Home comes back to haunt them, and voters could well turn on them. If they refuse to place the question of devo-max on the ballot but only to be "looked at" after a vote of no, then people will start to question if the Unionists are playing the scottish people for fools.

    Having played a poor hand badly (a trait Cameron seems to suffer from a lot)they may very well be forced to agree to the question going on the paper after all, because in the end, they won't want to admit to the mistake, as that would just as damaging to their campaign.

    I also don't think the SNP are all that set against "devo-max" - they have seen the same polls and know that while there is a lot to play for in the independence debate, the opinion of scots to "devo-max" is very strongly in favour of it.
    Salmond mentioned this himself in an interview sometime ago.

  11. "There's also a curious argument that if you take the idea of the devolution of power literally then devo max collapses into independence."

    Yeah, that's the point! Obviously the more powers that are devolved, the closer we are to independence. And if we add economic control into the mix there could come a point when it would be hard to spot the difference between "indy lite" and "devo max". What that would mean in political terms would be that Scotland was already 90 per cent independent. Achieving the other ten per cent would not be a huge task and we could afford to take our time about it, if indeed we thought it essential.

    Personally I do see control of foreign policy and defence as being essential but there are other areas I am not bothered about, like currency. If after a few years a case grows for a Scottish currency then fair enough, I'd be in favour of considering that, but I don't see it as a pre-requisite of independence. Ditto future relations with the EU. And I suppose I should also mention the monarchy though personally I feel that is one of the least important things we have to worry about!

    However clearly the unionist parties are actually a bit more unionist than we had thought they were. I have been quite surprised by that - certainly I have never really seen Scottish Labour as an enclave of diehard unionists but that is what most of them appear to be. Whereas, paradoxically, there are quite a few Tories who are devo maxists.

    Funny old world.

  12. Indy - but there's one crucial difference. You could imagine an eventual independence settlement and a devo max settlement which resulted in Holyrood having essentially identical powers. But the routes there are crucially different. The independence route depends solely on Scottish votes (plus post-independence negotiations) while the devo max route depends on legislation from Westminster.

    1. Dennis - so far you're the only one who seems to get it! Devo-max, from the nationalist/SNP position, is full independence with agreement to negotiate back to rUK whatever civic Scotland's broadly wish. Independence is secured on the understanding that rUK will be offered jam tomorrow.

  13. Yes but from the voters perspective it hardly matters. From the perspective of the average voter, who doesn't have a particularly political mindset, but thinks, on a common sense level, that self-government is generally a good idea the route is less important than the destination. This is what we need to bear in mind and what the unionist side have failed to grasp. From the end user point of view the difference between the Scottish Parliament having certain powers because they have been devolved or having certain powers because it has become sovereign in those areas is not as important as we may think it is. It's why we really can't be anything less than open-minded about devo max.

  14. I don't think three's any chance of another question. Rather, I feel that it's a political ploy by the SNP: There's a middle body looking for more powers which will be denied to them by the unionist side. That body, already looking for change, will then have one choice offering change so may be more likely to vote for independence. If the vote is lost then that middle body may continue, or be more likely, to support the SNP in the future. Same too for the 16 and seventeen year olds (today's fourteen and fifteen year olds), the SNP is the only party that's offering them a say in their future. They too may be more likely to support the SNP in the future, no matter the outcome.

  15. Indy - thanks for the explanation. I agree that the line between de iure and de facto gets very murky here (imagine Westminster trying to use its de iure powers to abolish the Scottish Parliament without first getting the consent of the Scottish people). And these issues no doubt bore the pants off many voters. But I still wonder about some of the symbolism involved. Do people care which flag flies over Edinburgh Castle or what country is named on their passport?

  16. I think people care to a certain extent about what flag flies over Edinburgh Castle or what country is named on their passport but they don't care about that kind of thing to anything like the extent that they care about improving the economy, cutting unemployment, protecting the NHS, reducing inequality and tackling some of the social problems that hold us back like drug and alcohol abuse, sectarianism, gang culture, organised crime etc. On a scale of 1 - 10 with 10 being vital and 1 being not really that big a deal I would guess most people would put cutting unemployment at 9 or 10. They would put what flag flies over Edinburgh Castle at 1 or 2.

  17. Great piece again and a very good thread - thanks to all. much to ponder.

    To continue with the tent image, well you can't get a bigger top than Eck's, all of whose big beasts are content to jump through the hoops for him (and for the forseeable future).

    The Unionist camp, however, is of course actually a loose aggregate of camps not speaking to each other. There seems no excuse for this. The pro-devolution movement included many people who actively disliked each other but who all thought they were doing the right thing.

    This all seems to be good news for the SNP - I wonder if it is. Things may look vastly different in 2014. Two years past, few could have seen where we are now; confident predictions for two years hence seem risky to me.

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