Does EVEL breach the Acts of Union?

Like many powerful, symbolic documents, almost nobody ever reads the Acts of Union. Magna Carta, "the constitution" in America -- the myth often fails to withstand an encounter with the text. I've had occasion over the past couple of days to revisit Great Britain's founding statute after this case from Lord Gray began circulating amongst SNP supporters on social media. You can understand why. If it had any substance, it might look like constitutional dynamite which could be deployed against David Cameron's "English votes for English laws" proposals. The circulator concluded enthusiastically:

"I found the 1953 ruling someone pointed out earlier and it is very interesting indeed. The articles of union say that members of parliament returned by Scottish constituencies cannot be excluded from the House of Commons. This means excluded from voting on any legislation This is unalterable. No government can change it. It would appear that if a government attempts to do this the union is dissolved with immediate effect."

I am sorry to report that not only is this dead wrong on almost every point -- but the logic of the argument being deployed here is unintentionally surreal. First, the missing background. This isn't a "ruling" and nor is it from 1953. It is a partisan legal paper written by Richard Keen - who has just been appointed the Tory government's law officer for Scotland. It was written for Lord Gray in 1998 against the backdrop of the first Blair government's proposals to strip hereditary peers out of the House of Lords. Gray, a Scottish peer, wasn't a happy bunny at the loss of his family's privileges. His paper argues that it would violate the Act of Union to exclude Scottish hereditaries from the House of Lords. Article XXII provides:

"That by virtue of this Treaty, Of the Peers of Scotland at the time of the Union 16 shall be the number to Sit and Vote in the House of Lords, and 45 the number of the Representatives of Scotland in the House of Commons of the Parliament of Great Britain."

If Gray's case was right, and the Union provisions could not be amended "for all time coming" -- then the SNP's long term commitment to House of Lords repeal would also represent an outrageous breach with the letter of the Acts of Union. On this logic, Pete Wishart ought to be campaigning for the Scots lords in ermine to be restated. I don't know about you, but this doesn't particularly appeal to me.

And if we're going to be strict about it, we've got another problem. By the letter of the Articles, somebody is going to have to tell the 56 SNP MPs that the Union specifies for all time coming that there should only be 45 Scottish MPs, and at least eleven of them are going to have to seek employment elsewhere.  Oh, and there's some more bad news about that independence referendum we all toiled away at back in September. The very first Article of the Acts of 1706 and 1707 reads as follows:

"That the Two Kingdoms of Scotland and England, shall upon the 1st May next ensuing the date hereof, and forever after, be United into One Kingdom."

I doubt many Scottish nationalists would support that provision being inviolate. And it'll make republicans amongst us uncomfortable to learn that their democratic ambitions are to remain unconstitutional in our eternal kingdom until the end of time or the heat death of the universe -- just because a small cadre of elite opinion in the early 1700s said so. Considering Lord Gray's case, the House of Lords Privileges Committee, which included several judges, came to a similar conclusion. They rejected Gray's argument concluding that Article XXII of the treaty wouldn't be breached by giving him and his colleagues of the blood their marching orders. Indeed, this provision of the 1706 and 1707 Acts had already been repealed by Westminster some years earlier, in 1993 and 1964 respectively.  And damn right too.

But even if you disagree with this interpretation - it isn't obvious that any provision of the Acts of Union are relevant to the EVEL proposals at all. Digging further into the text, Article 23 has a good deal to say about the privileges of the sixteen Scottish peers in the House of Lords, but is mum on the rights MPs could expect to exercise in the House of Commons. The problems with EVEL are contemporary problems, and not ones which can usefully be addressed through the lens of a centuries old mercantile charter. We are at risk of being in the absurd position of pushing arcane constitutional arguments which would require sixteen Scotch lords to sit in Westminster, but which do absolutely nothing to enhance the argument about the status of Scottish MPs. 

Legal nationalism in Scotland is an interesting tradition, but despite my political inclinations, not one I have ever felt a huge amount of sympathy for. Colin Kidd's (2008) Union and Unionisms has an interesting discussion of evolving legal and political ideas since 1707 about whether the Acts of the Union are entrenched and still represent fundamental law in the UK. Lord President Cooper's celebrated comments in the (1953) case of MacCormick v Lord Advocate are much quoted. The Union settlement clearly preserved things which have been seen as pillars of Scottish identity since - the church, the distinct order of law. 

But for myself, I have never understood the place of the Acts of Union in that tradition. I'm indisposed to treat a commercial deal about salt and beer and window taxes with much reverence. Indeed, this is a paradoxical seam in the wider tapestry of Scottish nationalism. For many Scottish nationalists, the Union was "bought and sold for English gold" by a parcel of Scottish rogues -- but the agreement those "rogues" struck is today invoked as if it was Moses and the Prophets, in pious tones. On any reckoning, this is a perplexing combination of historical ideas to hold. This is a crooked deal, and we insist that it must be enforced to the letter and forever. 

UK Supreme Court justice, Lord Sumption, began a recent lecture on Magna Carta on provocative form. "It is", he said, "impossible to say anything new about Magna Carta, unless you say something mad. In fact, even if you say something mad, the likelihood is that it will have been said before, probably quite recently." The same often goes for those other mythic texts in the UK and Scottish constitutional tradition, like the rampantly anti-catholic 1689 Claim of Right or the Scottish feudal oligarchy envisaged by the declaration of Arbroath.  Much of the contemporary force of these texts seems to derive from ripping them out of context and attributing to them democratic virtues and aspirations which would have seemed alien to the very people who drafted them. It is a conclusion to madden the lawyer, but the cultural significance of these documents is not exhausted by what they do or do not actually say.

Detached from their context, and their texts, these declarations and charters float freely in the popular constitutional imagination. Sometimes, they are used to promote a more democratic vision of the country's best traditions; sometimes for more reactionary purposes. In America, grown men don tricorn hats and 18th century militiamen uniforms, to argue that their constitution is betrayed by federal healthcare reforms. On this side of the pond, Tories are even now invoking Magna Carta neo-mediaevalism to justify hacking back the contemporary rights which citizens enjoy. And Scottish nationalists are appealing to the ancient and perpetual rights of Scottish peers to try to resist the Conservative solution to the very modern West Lothian question.

Our abiding passion for old documents and ancient sources of authority are fascinating -- but often strange. Very strange.

Labour's lukewarm devosomething prospectus

When not indulging in sentimental British nationalist storytelling, Scottish Labour's case for the Union tends to rest on what Colin Kidd has usefully described as "instrumental unionism". The metaphors and tropes will doubtless be familiar to you. The pooling of resources and the sharing of risk; social solidarity; marching on a shared mission of social justice in these islands. Not fluttering union jacks and the trooping of the colour, but an argument that the Union is:

"... as Gordon Brown has suggested, founded on a moral purpose – that no matter where you reside and what your background is, every citizen enjoys the dignity of not just equal civil and political rights, but the same basic social and economic rights. Because we pool and share our resources, the moral purpose of the union is to deliver opportunity and security for all UK citizens irrespective of race, gender or religion – or location" (p.3)

Unsurprisingly, these arguments are well to the fore in today's report from the party's Devolution Commission, charged by Johann with dreaming up a compelling alternative vista to tempt Scots to vote against separation in September. The proposals are already being criticised by the usual suspects, but I wanted to pick up just one curious strand of argument running through the document.  Justifying their decision to rule out the devolution of "the core of the Welfare state", the commission revisit the theme, emphasising the importance of maintaining:

"... common UK-wide pensions, common UK social insurance, common UK benefits, a common UK minimum wage, and a UK system of equalising resources, so that everyone irrespective of where they stay benefits from fundamental political, social and economic rights."

Continuing:

"... in this union, we pool and share resources to ensure hard-working people, pensioners and those in need have equal economic, social and political rights throughout the entire UK. This is an idea – founded on solidarity, community and fairness – that is much greater than any notion of creating an independent state."

As grounds to justify their refusal to transfer key benefits, this argument is not without its allure. An instrumental politics of the union in this line is only possible if we are held together by the redistribution and exchange of resources across the whole country.  Invest Holyrood with responsibility for great tranches of welfare, and the Labour party is left making the instrumental case for Union on the basis of reserved forms of taxation - good luck with that one - or by appealing to the lip-quivering patriotism recently espoused by the Prime Minister in London. 

The husk of an instrumental case for the union can survive Iain Duncan Smith's parsimonious tenure in the Department for Work and Pensions; devolution of great tranches of welfare decision-making to the Scottish Parliament would reduce it to dust. It is not a surprise, therefore, that Johann's commission has declined to endorse it. 

I do wonder, however, how far this "solidarity and fairness" logic can really be taken. The Commission state boldly that it is integral to the stability and ethical purpose of the union that folk have access to the same "social and economic" rights irrespective of "location". But is this even true under the current devolution settlement? For example, education is widely considered to be a core social right, yet the English undergraduate must sink £9,000 into debt to fund her degree each year, while her Glaswegian cousin studies for free. This has been widely criticised as an inequity in parts of the media, and by politicians like Boris Johnson, but is fundamentally what devolution is all about, allowing spending to be allocated differently according to different political preferences, giving different substance to key social and economic rights which citizens have access to in different parts of the UK. 

There are other examples. The right to access to health care is another core social right, but there are already cross-border differences. If your Aunt Peg needs regular statins for her dicky ticker, the Scottish Government will foot the bill, but your Yorkshire cousin with a lardy tooth will have to stump up for his own pills. NHS England maintains a cancer drugs fund, the Scottish government has decided not to, to criticism in Holyrood from Ruth Davidson. A right to housing is another social right, but if you live in Berwick and find yourself impoverished by the Bedroom Tax, you're on your own; if you're north of the border, by hook or by crook, compensation for the reduced housing benefit will be found.  

From the citizen's perspective, your location in the UK already has significant implications for the scope of key social and economic rights available to you. Jobseeker's allowance may be identical, but it is a gross overstatement to claim that we currently enjoy the same basic social and economic rights in this country from John O'Groats to Land's end. Conceptually, welfare devolution isn't so readily insulated from these wider issues. If we are, as Ed Miliband insistently proclaims, "one nation", what justify these differences in treatment? If the integrity of the Union relies on having the same civil, political, economic rights everywhere in these islands, how can devolution and its outcomes be justified? Do tuition fees and free prescriptions not, at least to some extent, undermine the sameness and solidarity cited to keep almost all of social security reserved?

One of the curiosities of the referendum debate is that many of the writers who are explicitly keenest on a federal solution to Britain's current constitutional crisis - the Scotland on Sunday's Kenny Farquharson and David Torrance come to mind - are also enthusiastic proponents of the idea that political opinion among the wildling tribes of Scotland is more or less similar to those living south of the wall. As Gary Dunion observes in a piece on the European elections this morning, of Better Together:

"Crucial to their campaign is the argument that Scotland is politically no different to the rest of the UK, that our apparent predilection for more progressive policies is nothing more than an illusion brought on by our lack of fiscal responsibilities, a symptom of our subsidy junkiehood."

What bemuses me about the Torrance-Farquarson position is that, if true, it undermines not only the case for independence, but also for maintaining the current devolution settlement. If our political values and preferences are seamlessly of a piece across the country, what's the point in having an expensive assembly at the bottom of the Royal Mile to follow the English lead at a slower pace? If we don't have distinctive political aspirations in Northern Ireland, Wales and Scotland, why enshrine or extend the powers of these institutions at all? It is a question to which I am yet to hear a tolerably satisfactory answer. 

Scottish Labour's invocation of the values of equality, solidarity and fairness to reject devolution of welfare will serve for today's rearguard action in defence of their lukewarm prospectus for more powers. It does not answer the more fundamental question. Labour always insists that they are "the party of devolution". But why? To what end? Today's report is entitled "powers for the purpose", yet the party has struggled since 1999 to produce a compelling and sustained sense of what to do, having completed John Smith's "unfinished business".

Under Miliband's Westminster-centric "one nation" vision, it is becoming increasingly clear that the Labour Party's political imagination is fired primarily by a unitary vision of the British state, leaving their flailing northern functionaries at a loss as what to do with this awkward institution they helped found.