Northern Ireland at Westminster: confidence, supply and the principle of consent

Northern Ireland’s MPs rarely play a big role in Commons arithmetic. With only 18 out of 650 seats, they’re rarely decisive in the United Kingdom’s elections. Furthermore, none of the UK-wide parties win seats there.

So we’re not very used to Northern Ireland’s politicians having much say in the government of the UK. The current maths shocked us all. And as a Labour member, I clearly hold no brief for a Conservative confidence and supply deal with the Democratic Unionist Party. But the way the legitimacy, as opposed to the wisdom and policy content, of such a deal has been attacked has often been problematic at best. And at worst it’s ignored Northern Ireland’s right to a say in the UK altogether.

Who are the DUP anyway?

Much commentary on the DUP has been rooted in an ignorance of their nature. DUP politicians are indeed socially conservative in a way those in Great Britain rarely are these days. Greater scrutiny of that conservatism would be thoroughly justified. They show no sign of trying to export those norms to Great Britain — they will probably mainly want more money for Northern Ireland. But it would be a thoroughly good thing if we heard more about the impact of DUP attitudes on women and LGBT people in Northern Ireland. It is striking that Westminster never tried to equalise its abortion laws with Great Britain’s through all the years of direct rule. (We should also note this isn’t just the DUP’s prerogative in Northern Ireland. Our own sister party, the SDLP, is just as opposed.)

There are valid points to make about the history of several DUP politicians. The rhetoric and behaviour of the late Ian Paisley deserved excoriation — though in the end he formed a joint Executive, which we should remember too. It’s fair to say that it did at times display a worrying level of equivocation over loyalist terrorism. Recently, the RHI scandal and Arlene Foster’s stubbornness speak ill of DUP attitudes to good governance.

But conflating the DUP’s periodic failure to keep its nose clean with the role of the IRA mistakes the case. Conflating deeply conservative religiosity with having been inextricably bound up with terrorism won’t get you very far in understanding Northern Ireland. And DUP flirtations with Ulster Resistance were very different from the IRA’s responsibility for nearly half of deaths during the Troubles and its inherent connection with Sinn Féin. I’m not saying there aren’t a great many charges to lay at the DUP’s door over many years. But I am saying it’s a different set of arguments. The DUP is not the PUP.

Confidence, supply and the peace process

It is wholly fair to worry about the impact on the impartiality of the UK Government, perceived or actual, in the Northern Ireland peace process. The key part of the Good Friday Agreement cited here reads as follows:

The two Governments:

… affirm that whatever choice is freely exercised by a majority of the people of Northern Ireland, the power of the sovereign government with jurisdiction there shall be exercised with rigorous impartiality on behalf of all the people in the diversity of their identities and traditions …

It doesn’t constrain government formation in either the United Kingdom or a united Ireland. (Imagine the reaction were a united Ireland banned from giving Sinn Féin a role in government in Dublin and you’ll see why not.)

But it would be wholly unacceptable for the UK Government to be parti pris on either side in the peace process. A full coalition, with collective responsibility across government policy including the Northern Ireland Office, currently would make the UK Government’s position impossible in practice. But that’s not on the cards. A full coalition would serve neither the DUP’s interest nor the Conservatives’. The DUP wouldn’t want that level of responsibility; the Conservatives will have to reach beyond the DUP to make this House of Commons function anyway.

The main issue, from a Tory point of view, is guaranteed support for its Budgets — supply. And with a confidence and supply deal, there is no need for matters relating to the NIO to be included. It is completely fair to be worried about the quality of those assurances and to scrutinise the substance of a confidence and supply deal. Obviously, there would need to be assurances about impartiality, which the Irish Government states it has been given. And as the SDLP’s leader has very sensibly said, “We have to judge it on its merits and see what the deal looks like.”

A confidence and supply deal may well be a bad idea. It may very well be politically unwise. But it’s not constitutionally or politically illegitimate in and of itself, any more than it was when Labour toyed with similar deals in 2010.

The principle of consent

Above all, too many in Great Britain have seemed hostile to the very notion that Northern Ireland’s MPs might affect the balance of power at Westminster. It feels a bit like the concerns in the 1950s that integrating Malta into the UK might allow its MPs to do the same in close elections. But unlike Malta, Northern Ireland already forms part of the UK. Its MPs have every right to a say in its governance, as do MPs from England, Scotland and Wales.

This is a basic principle of fair treatment of the UK’s constituent countries. It also goes to the heart of the principle of consent in the Good Friday Agreement. That Agreement recognises that Northern Ireland’s membership of the UK is based on the will of its people and can only be changed by that same will. Membership of the UK confers certain rights, including a voice in the House of Commons. If you don’t grant the region the right to its say in excepted and reserved matters and its voice in Parliament — and if your view is essentially that it can only have that voice so long as it never decides anything, you’re only granting that right in the narrowest possible way, if at all — you’ve got a pretty shallow understanding of the principle of consent.

It’s natural that, say, Sinn Féin’s leadership would argue Northern Ireland politicians should have no role in helping form a UK Government. They’re an abstentionist party and they seek a united Ireland. And of course they have every right to that position. If Northern Ireland and the Republic ever wish to form a united Ireland, the UK should give effect to it without demur.

But in the meantime, there’s no need for the rest of us to take a very specific view of legitimacy at face value. Northern Ireland’s rights within the UK extend further than simply not expelling it from the body politic. Whatever you think of the DUP, we should all remember that.

This post was originally published on Medium.com on 20 June 2017.

1707 and 1973: Scotland, the UK and Brexit

When a 62% Remain vote in Scotland met a 52% Leave vote across the UK, the Union of 1707 looked shaky to many. Nicola Sturgeon promptly said a second independence referendum was highly likely. Support for Yes spiked briefly in the polls. Frankly, as a half-Scottish European, I was severely tempted myself – despite being a fervent Unionist in 2014.

Since then, somewhat to my surprise, support for Yes now looks pretty similar to 2014. This has, so far, held even as it’s become clear Theresa May takes a hardline view of the Brexit vote. No doubt as a result, Sturgeon – who has no desire to lose a second referendum and really bury the issue – has tried to keep her options open. Her stated position is that her priority for now is to keep the whole UK within the single market. This would be the best possible Brexit outcome for Scotland and for the rest of the Union.

However, she has also spent plenty of time arguing Scotland could stay in the single market even while the rest of the UK left. Clearly, this ‘differentiated solution’ has a distinct political edge: Sturgeon has an interest in the UK being seen not to meet Scotland’s wishes. Still, the UK was always asymmetrical, and voters in Scotland voted decisively to remain. It is also fair to say Sturgeon has softened her position quite a bit from demanding Scottish EU membership post-Brexit. So taking it at face value, what would the differentiated solution entail?

The ‘differentiated solution’: Liechtenstein-in-Europe

The Scottish Government’s paper Scotland’s Place in Europe suggests Scotland could stay in both the EEA and the UK customs union. The document cites the principle of ‘parallel marketability’. This is the model Liechtenstein uses vis-à-vis Switzerland, while participating in the EEA. Because Liechtenstein has a customs union with Switzerland, it has to adopt Swiss technical standards and regulation in a wide range of areas. But the EEA also requires Liechtenstein to adopt its technical standards and regulation.

As a result, EEA and relevant Swiss law are now simultaneously applicable in Liechtenstein. Liechtenstein agreed this with Switzerland, and the EEA also agreed to accept the arrangement. Products meeting either Swiss or EEA standards can be sold in Liechtenstein, but EEA law trumps Swiss when dealing with the rest of the EEA. Liechenstein also had to create a Market Control and Surveillance Mechanism, so neither EEA nor Swiss rules were broken outside the principality.

The Swiss Federal Customs Administration collects duties on goods entering the whole customs area. It informs Liechtenstein’s Office for the National Economy when goods are destined for Liechtenstein. Where customs tariffs are different (some EEA goods attract tariffs in Switzerland, but not Liechtenstein), duties are reimbursed. Importers informed of their obligations, including proofs of sales in Liechtenstein.

Why it wouldn’t work for Scotland

For Scotland, this presumably means HM Revenue and Customs would continue to collect duties for the whole UK. It would then inform a Scottish public body where requirements differed and when goods were destined for Scotland. By analogy with HMRC, the Scottish body might be a beefed-up Revenue Scotland.

The UK would also have to devolve much of employment, commercial and competition law, so Scotland could implement EEA law. Alternatively, the UK might confer a general power to implement EEA rules on Holyrood. But that could cause chaos in UK-wide law.

Where the UK’s rules didn’t mirror the EEA’s, new non-tariff barriers would arise, which poses a major problem. 64% of Scotland’s exports (excluding oil and gas) go to the rest of the UK, compared to 15% going to the rest of the EU. Even ignoring the fact that much of the oil and gas also goes to the rest of the UK, it is clear who Scotland’s main trading partner is. The Scottish Government would say the model keeps UK goods standards for UK trade. But Scotland is mainly a service-based economy. In fact, Scotland trades more in services with the rest of the UK than it does in goods. The position is reversed in trade with the rest of the EU.

So given that, what happens as UK and EEA employment law start to diverge? What about financial services regulation, especially when UK financial services are so intertwined? What if EEA competition law is tougher than the UK variety – what does that mean for a UK-wide company operating in Scotland?

The problem gets worse when you remember this is Sturgeon’s proposal in the event of a hard Brexit. The further the rest of the UK pulls away from the EU, the more acute the problem becomes. In Liechtenstein’s case, Switzerland adopts most of the acquis communautaire for goods anyway, which softens the dilemma. The UK may well copy a lot of EU regulation anyway, as it discovers the irritations of diverging from its main trading partner. But to the extent that it doesn’t, Scotland will pay a price.

Above all, Liechtenstein is a small and sovereign state. Legally, presumably the UK would need to join the EEA and then restrict its territorial application to Scotland. Scotland would then need powers to take part in the EEA Joint Committee and the EEA Council, appoint a judge to the EFTA Court, select a member of the EFTA Surveillance Authority College and so on. Spanish domestic politics on their own make it clear this won’t happen. But even if the politics could be resolved, the cases are fundamentally different. Liechtenstein has about 37,000 inhabitants. It is tiny, and therefore allowed to be anomalous. Scotland, on the other hand, would have the largest EFTA population in the EEA. It would also be far more closely bound to the rest of the UK than Liechtenstein ever was to Switzerland.

Liechtenstein’s single market model is not workable for Scotland, any more than its migration quotas set a precedent for the UK. Pursuing it undermines the overriding need for a sensible UK-wide deal.

On Brexit, powers reserved should be powers shared

With the partial but crucial exception of Northern Ireland, the form of Brexit mostly needs to be settled UK-wide. But that doesn’t mean Scotland’s (or Northern Ireland’s) distinctive views should be ignored. The UK-wide settlement needs to be a compromise befitting a narrow vote and a territorial split.

In many ways, Scotland, Wales and Northern Ireland have federal relationships with the UK. Each has a legislature of its own as well as the UK Parliament. Powers reserved to the UK Parliament are specified in law. The courts can decide if devolved legislation exceeds devolved powers. Devolved powers aren’t meant to be changed unilaterally, though what that means is obviously disputed.

One key difference with federalism is the lack of formal protection for devolution. Unless Section 28(8) of the Scotland Act 1998 is read very radically indeed, no court would actually stop the UK Parliament legislating over devolved legislatures’ heads. But another is the lack of a mature federal political culture. Federalism usually involves shared rule as well as self-rule – an idea that a state’s nations or regions have a say in government at the centre. In a state large or diverse for federalism, central government has to govern with the territorial dimension in mind.

This is why many federations have indirectly elected second chambers. It’s why federations usually require some or all constituent territories to agree some or all constitutional changes. Modern federalism requires governments to work together. But at the moment, we ‘deal’ with problems between the UK’s nations by ignoring them or offering more powers. With Brexit, working out where to handle powers no longer exercised at EU level will matter a great deal. One of the many arguments for the EEA is that it spares us the need to create a framework for a UK single market which neither undermines devolved powers nor means more non-tariff barriers within the UK.

If the SNP wants to serve Scotland’s interests, however, it needs to recognise the UK can’t just devolve itself out of this problem. Scottish Labour, meanwhile, should push hard for UK Labour to back staying in the single market. But in some ways, it’s the Scottish Conservatives who bear the biggest responsibility.

After the referendum, Ruth Davidson said she’d prefer to stay in the single market post-Brexit. She has built her success on being an uncompromising voice for the Union of 1707. No one will ask her to row back on that. But Scottish unionism shouldn’t just be about keeping Scotland in the UK, but helping Scotland shape the UK. The Scottish Conservatives have political capital. Ruth Davidson is highly respected by her UK party. She has shown Tories can make headway in Scotland. She should use it to make Brexit respect Scotland’s interests, and work better for the whole UK.

What happens otherwise?

Some of the Tory right will say Scotland wouldn’t really leave over Brexit, hard or soft. Well, it might or it might not. Brexit complicates and sharpens the choice for Scotland, and the harder the Brexit the truer that will be. Scots would need to be prepared for a decades-long, probably very painful reorientation. It would be a far more radical form of independence than Alex Salmond proffered in 2014.

But wise unionists should want to reduce Scottish discomfort within the UK, not foment it. They should also beware of assuming Scotland would never jump. A Scotland where 45% voted to leave the Union is not one where the Union is secure. It is one in which the Union has much to prove. If Theresa May really cares for its ‘precious, precious bond’, she would do well to bear that in mind.

A plea for my three countries: Britain, Scotland and England

I have no vote in the referendum on Thursday.  But the second of my countries may be on the verge of divorcing the third and abolishing the first. I make no apology for the emotional parts of this piece: nations are about shared affection and belonging. Here, I want to set down why I so desperately hope Scotland votes No, stays in the shared British family and helps to improve it.

Family and friends

For me, this question is deeply personal.

My father is a Scot.  He went to school in Edinburgh; his parents now live in England.  He fell in love with my mother, an Englishwoman, when they were both studying at Aberdeen.  My sister and I have lived in both Scotland and England.  My mother’s sister also went to Aberdeen to study, and married a Scot.  The marriage ended, but my aunt still lives in northeast Scotland.  One of her children lives in Aberdeen; the other is now in Leamington Spa.  We are all children of the Union.

Countless families all over Britain can tell similar stories.  Three centuries of common endeavour – of living, trading, travelling, fighting, negotiating together – have created them.  Without the Union, there will be fewer.  I’m not saying we’ll suddenly all regard each other as complete strangers and foreigners: but the nations of the UK will be less interested in each other, less involved, less intertwined.  There are about 400,000 people from Ireland in the UK: but there are about 700,000 Scots in England and about 400,000 people from England in Scotland alone.  It isn’t quite the same, and if it leaves Britain, in the long term the links with Scotland won’t be either.

We won’t become as foreign to each other as we are to anywhere else: but we will become more foreign to each other than we were before.  Anglo-Scottish families won’t cease to be families: but fewer Scots and English will intermarry than before.  Our horizons will narrow that little bit, and that would be desperately sad.

Scotland in the Union

Scotland is an extraordinary country.  In population, it is small: about the size of Finland, Denmark or Turkmenistan.  But its impact on the world has been out of all proportion to its size: in fact, I don’t think there is any other nation of five million people which has had anything like its influence.  That’s down to Scottish talent, enterprise, efforts and ingenuity: but the Union also gave a platform for Scotland to project itself to the world.  Scotland has always refused to be a ‘small country’, despite its size.

Scots have been at the forefront of Britain’s story, for better and for worse – as soldiers, diplomats, ministers, migrants and more besides.  To take one example, James Watt’s steam engine played a vital role in the Industrial Revolution – which he commercialised, at least in part, through partnership with the English Matthew Boulton.  Scots have served disproportionately in Britain’s Army for centuries.  There is a reason why Canada has a province called Nova Scotia.  Ships from the Clyde sailed the world.  There have been 10 Scottish Prime Ministers – more than population would suggest.  Scots invented penicillin, the telephone and radar, spread the British and Scottish presence around the world – and helped to shape that world.

In fact, Scotland didn’t just contribute enormously to Britain: in many ways, it created it.  Ideas of Unionism, in the true sense, emerged in Scotland before England.  Back in 1520, John Mair saw it as a way to prevent an English empire – an agreement to allow both to flourish.  James VI and I wanted a full union, but one which took full account of Scotland’s story as well as England’s.  And for all the talk of ‘bought and sold for English gold’ (which referred to Darien and not to the Union, by the way), Scottish negotiators honoured the Scottish unionist tradition.  The Scots Parliament may have ceased: the Kirk Assembly, with its larger place in Scottish life in that time, remained. Scots law, education, religion: these were preserved too.

Scotland, in other words, made Great Britain too. England’s security imperatives were key, of course they were, but the Scottish conception of union was crucial. The result was that 1707 secured the Hanoverian succession and a Parliament at Westminster, but also ensured Scottish distinctiveness. And proud Scottish Unionists would go on to celebrate Bannockburn, the Declaration of Arbroath, the fight against English kings – and see them as the battles that made an agreed Union possible. Britain is an extraordinary Scottish success story.

Britain: a country worth celebrating

For all its faults, Britain is also a country which is worth keeping, and without which the world would be the poorer.

For a start, Britain was always multinational: you could never be British without being something else as well.  Within our duffle-coat state, we have always had at least two legal systems, two national churches, at least two systems of education and more besides.  Devolution in 1999 was, in many ways, a modern variation on a constant theme.

That means that Britishness has never been a narrow identity.  It has always had to coexist with other senses of self.  That is a very precious thing in a world where societies are multicultural, identities are overlapping and integration is indispensable.  Because you’ve always had to be English, Scottish, Welsh or something else as well as British, it’s generally been easier to be British Indian, or Somali, or Chinese, or anything else.  Scottishness is generally inclusive too, of course, but I think the arrival of ethnic diversity in a land where multiple identities had been officially sanctioned for so long helped make it that way.

Secondly, Britain has done a lot of good as well as bad, and has a lot to be proud of.  It isn’t the first home of parliaments, but it has had an exceptionally long run of constitutional government.  That has often been enormously influential in other democracies: and in countries where Britons played oppressor, it’s striking how their own values were eventually used against their rule and helped to inform the successor state.  It is, in fact, a remarkable tribute to the British history of government by consent that this referendum is being held on an agreed basis: look at Catalonia or Quebec if you think that just comes with being a developed democracy.

Scots, English, Welsh and Northern Irish have also fought together, of course.  However you qualify it – and we too easily cast aside the contributions of Canadians, Australians, Irish, Poles, Free French and many others – there was a period when Britain had to lead the fight against fascism, and hold the ring.  It was one of the few democracies to fight the Second World War from beginning to end, and it mobilised an extraordinary amount of its resources to fight that conflict.  Everyone always mentions this, and that’s because it really is something we all share, and something we can be proud of.

Since 1945, Britain’s role has continued to be large – and Scotland, as always, has played a part out of all proportion to its size.  It was a Scottish Lord Chancellor of Great Britain, practising English law, who was vital in making the European Convention on Human Rights happen.  It was a Scottish Chancellor, in a British Labour government, who worked with an English International Development Secretary to create Britain’s Department for International Development.  DfID now has the second largest aid budget, and is arguably the finest international development ministry in the world.  It was a Scottish Foreign Secretary who began to position the UK as one of the most active of anti-death penalty states.  Britain played a major role in making the Arms Trade Treaty possible.

Scottish talent, ingenuity and enterprise has contributed a vast amount to our common home, and we are all better off for it.  A separate Scotland would, of course, play its part in the wider world: but it couldn’t be on the scale of Britain.  We do far more together than either of us would apart – and I don’t believe it would be true to Scotland’s story to turn away from that.

British social democracy

Domestically, we have built a welfare state together.  I don’t think we always realise how unusual the NHS is.  Even Sweden charges patients to visit their GP.  In Britain, healthcare free at point of use is non-negotiable.  No government would challenge it in England, Scotland, Wales or Northern Ireland, because the social commitment to the principle is absolute.  Far from being a case for Yes, it is a principle we all share as British citizens.  It was a Welshman, Lloyd George, who steered through the People’s Budget and the National Insurance Act 1911; it was a Scotsman, Keir Hardie, who was the first leader of the Labour Party.

We also have a striking belief in the importance of a decent public culture.  We have the finest broadcaster in the world, the BBC, and it was founded by a Scot in 1926.  In communist eastern Europe, people listened to the World Service secretly, for real news rather than propaganda.  The last Labour government also gave us free museums – and again, we have some of the finest in the world.  Free museums aren’t typical: they’re exceptional.  They have, in only 13 years, become another thing we all share as citizens.

I know our welfare state is much more threadbare than it was: I hate what this UK government is doing to it as much as any Yes voter.  But I also know that Britain, a large country with a currency of its own and very slowly-maturing debt, had a choice in 2010.  We had the option of running a looser fiscal policy than we did.   A country of five million, without its own currency, doesn’t necessarily have the same fiscal options and can’t follow that particular path so easily.

More than that, I also know it’s happening to people in Gateshead and Glamorgan, just as much as Glasgow – and in fact, it’s happening more to people in Gateshead, because they don’t have devolution.  And I believe in solidarity: I want to see us standing together for a better Britain – not turning away from each other, and still less entering some kind of race to undercut each other to attract the multinationals. The Salmond vision of corporation tax cuts to beggar the neighbours holds no charms for me. I want the bonds of solidarity widened, not narrowed.

The better option is to support greater devolution to Scotland, including serious fiscal devolution, to allow social democracy to be pursued there while preserving the best principles of the British safety net: social security transfers, smoothing of the spending impact of the economic cycle and guarantees of the ability to provide a common standard of services for common levels of taxation, whatever happens in future.  That would allow Scotland to be a shining example of what social democracy could do – one for the rest of the UK to emulate.

Ideally, in fact, I’d have a federal state, with an elected second chamber to keep Whitehall in check and powerful legislatures within England to counterbalance the pull of the south east.  With Scotland in the UK, that becomes much more likely: and wouldn’t it be appropriate if the country which did so much to create Britain before 1707 did the same in 2014?

Finally …

Without Scotland, Great Britain wouldn’t exist, and the UK would be vastly poorer for it.  The most influential country of five million in the whole world would be leaving the most successful multinational state in history.  Ties of family would weaken.  Individuals would have to make painful choices about who they were, where they came from and how they chose to identify themselves.

It isn’t true that most Scots reject Britishness as an identity.  It might be subsidiary, or used at some times and not others, but it’s there nonetheless.  And that’s true for all the nations of Britain.  We don’t always know exactly how our different layers of identity relate to each other, but then we haven’t needed to.  Vagueness about identity is a British trait – not necessarily a flaw.

Voters in Scotland: rightly, the choice is yours alone. Please don’t make us all choose.  Please don’t turn away from all the things we’ve done, enjoyed, suffered and endured together. Please don’t separate my father’s country from my mother’s.  Please don’t place my English aunt in Scotland and my Scottish grandparents in England on opposite sides of an international border. Please vote No.