The Smith Commission Report – a deal among parties, ignoring the greater powers that polls show most people want

The dispute over the Smith Commission report turns on whether additional powers should be decided by negotiations between political parties on what powers they are willing to concede, or the views of the majority of the people of Scotland (1).

The “vow” didn’t refer to Home Rule, Devo Max or federalism, but Gordon Brown did, in widely reported comments in the last few weeks of the referendum. Opinion polls show majorities for devolving far more powers than Smith recommends.

A recent ICM poll found 63% want all welfare powers and  taxes devolved to the Scottish parliament. This would have to exclude Scotland’s share of Defence and Foreign Policy funding, but goes far beyond Smith’s recommendations of only devolving disability and carers’ benefits and the bedroom tax (2) – (3) .

A poll just after the referendum reported by STV found that ‘80% …supported Scotland having control over welfare, with 62% saying it should be in charge of pensions. Almost three quarters (71%) of people back the devolution of income tax while 62% want to see Scotland get control of corporation tax and 61% say Holyrood should be in charge of VAT.’ (4).

Smith only recommends devolving income tax, air passenger duty, the Aggregates levy and the first 10% of VAT. The UK government retains all corporation tax, capital gains tax , national insurance, oil and gas revenues, vehicle excise duty and other revenues raised in Scotland (5).

The UK parties’ argument that the power to set corporation and VAT tax rates couldn’t be devolved as it could lead to different parts of the UK competing to have lower rates was understandable. However their willingness to devolve income tax, which could similarly lead to competitive tax cutting, suggests their motives there are party political.

No UK government has raised the basic rate of income tax in decades because it’s political suicide to do so. It seems likely that, with the SNP having a majority in the Scottish parliament, the UK parties want to force the Scottish government into either income tax rises or spending cuts to try to lose it votes.

And there’s no reason why most of the revenues from income and corporation taxes raised in Scotland couldn’t be assigned to the Scottish government and parliament to decide on how to spend them, while leaving the power to set the rates  of these taxes set by the UK government, and so uniform across the UK.

It would be wrong not to acknowledge that there are a few other positives in the Smith commission. The report recommends the devolution of the power to issue or refuse onshore oil and gas (paragraph 69), which would give the Scottish government the power to block fracking (assuming the Scottish public put enough pressure on it – so far Scottish ministers’ responses on fracking have been very evasive). The power to scrap the bedroom tax and provide benefits for carers and the disabled are important, but they are not close to control over all welfare powers and the budget for them.

The power to allow the public sector to bid for rail franchises (paragraphs 25 to 26, page 21) is positive too, but a long way from allowing renationalisation.

However it’s equally wrong to pretend that the Smith recommendations are anything approaching the “home rule” , “devo max” or federalism which Brown talked of. The usual definition of these is that most domestic policy and most of the budget for it is devolved. Nor do the powers Smith offers come close to the ones polls show most Scots want.

And equally some of the recommended devolved powers are so limited as to be almost non-existent – see those over Crown Estates in Scotland for instance, which allow sweeping exceptions by the UK government on extremely vague and general terms (paragraphs 32 – 34, page 16). Similarly for those over Energy Efficiency and Fuel Poverty measures (paragraph 68).

One telling line is Paragraph 24,  page 13 ; ‘the Scottish Parliament will have no powers over the regulation of political parties (including donations)’.

This indicates a deal in the interest of parties, not voters. The major UK political parties rely heavily on donations from banks, hedge funds, big firms and the super-rich – particularly the Conservative party.

It also ensures no requirement for more internal democracy within all political parties in Scotland. So Miliband can keep imposing his policies on the Scottish branch of his party.

One month was long enough for horse-trading between the main UK parties on what level of devolution they’d tolerate. It wasn’t long enough to receive or read submissions from thousands of members of the public. Nor should we be presented with a take-it-or-leave-it package decided only by parties. Opinion polls and consultations, and/or a second elected constitutional convention, could be used to draw up a list of possible additional powers, with a multi-question referendum allowing voters to vote for or against each.

Brown might want Scottish politics “reset” with constitutional issues labelled “dealt with”, but opinion polls suggest many voters disagree (6).

Opinion polls suggesting a massive rise in the SNP vote in the next General election, combined with those on additional powers, may force the next UK government into offering considerably more devolved powers than the Smith negotiations resulted in (7).

 

Sources

 

(1) = https://www.smith-commission.scot/ and https://www.smith-commission.scot/wp-content/uploads/2014/11/The_Smith_Commission_Report-1.pdf

(2) = STV 30 Nov 2014 ‘Poll finds majority want Holyrood to control all taxes and benefits’,
http://news.stv.tv/scotland-decides/301542-icm-poll-finds-majority-want-holyrood-to-control-all-taxes-and-benefits/

(3) = https://www.smith-commission.scot/ and https://www.smith-commission.scot/wp-content/uploads/2014/11/The_Smith_Commission_Report-1.pdf , paragraphs 42 – 54, pages 18 - 19

(4) = STV 21 Sep 2014 ‘SNP on course to win third Holyrood term, according to new poll’,  http://news.stv.tv/scotland/292917-snp-on-course-to-win-third-consecutive-holyrood-term-says-new-poll/

(5) = https://www.smith-commission.scot/ and https://www.smith-commission.scot/wp-content/uploads/2014/11/The_Smith_Commission_Report-1.pdf , paragraphs 75 - 92, pages 23 - 25

(6) = BBC News 29 Nov ‘Gordon Brown calls for Scottish politics 'reset'’, http://www.bbc.co.uk/news/uk-scotland-scotland-politics-30256101

(7) = Guardian 30 Oct 2014 ‘Labour faces massive losses to SNP at UK general election, poll shows’, http://www.theguardian.com/politics/2014/oct/30/scottish-labour-snp-general-election-poll

The Scottish people must have their say on what additional devolved powers we choose from - not just to take or leave a package deal cut by big parties - Smith Commission on Additional Devolved Powers Submission

Thank You

First I’d like to thank you for giving the people of Scotland this opportunity to have a say on what additional devolved powers Scotland needs.

 

Need for additional devolved powers decisions not to be just a deal between party leaders
that the Scottish people can only take or leave

While I was a Yes campaigner, I recognise that the Scottish Social Attitudes Survey 2014 showed the majority of people in Scotland wanted additional devolution or “devo max” as an option in the vote, and always thought this should have been an option people could have voted for (1).

As Lord Ashcroft’s post referendum poll found 25% of No voters said they had voted No primarily because Scotland would get additional devolved powers, and assuming the vast majority of Yes voters will back additional powers too, a majority of Scottish voters of somewhere around 58% want more devolved powers (25% of the 55% who voted No would be 13.75% of all voters. The 45% of voters who voted Yes plus 13.75% would be 58.75%) (2).

While the various Scottish and British political parties, pro and anti-independence,  each have their own positions on what the additional powers should be, and clearly have to have input into the final decision, the Scottish people must also get a major part in making this decision.

It should not be reduced to just being given a Yes or No vote on  a package the parties agree among themselves to offer us. It should include the wider public getting to decide which options the whole country will choose from. Additional devolved powers are a more complicated issue than independence and cannot be reduced to a Yes or No without taking much of the say from the public.

Another Scottish Constitutional Convention? Elected this time?

One month is a very short period for such a consultation. I’d argue that the next stage should be a longer consultation period to a new Scottish Constitutional Convention elected by Single Transferrable Vote (STV) , allowing for candidates from smaller parties, and representatives of Scottish society who don’t represent any party, to be involved in drawing up the options (3) – (4).

STV allows voters rather than party officials to rank candidates in order of preference, and ensures that no one’s vote is “wasted” by going to a candidate who is not elected. It allows voters to vote positively for the candidate or party they support most, rather than just negatively to try to keep the large party they dislike most out of power (5).

While an elected constitutional convention would take longer to put proposals for additional devolved powers together, due to the time required to elect it, those options would be more likely to reflect the views of the whole population rather than just a deal cut between the leaders of the largest political parties.

While the Electoral Reform Society and the British Labour Party propose a UK Constitutional Convention this would risk become bogged down in disputes that can’t be resolved like English Votes for English Laws; as well as whether further devolution in England should happen at all, and, for those who want it, whether it should be to an English parliament or regional ones (6) – (8).

There is no reason why additional devolved or federated powers for Scotland should not be decided separately to ensure they are not delayed indefinitely.

 

How the Scottish people , rather than just political parties, can be given a real say on further devolved powers even if there isn’t another Scottish constitutional convention

Even if another Scottish Constitutional Convention is not formed though, the Scottish people’s views can still be taken into account. First through public consultations like this one. Second by looking at opinion poll results on what powers people in Scotland think should be devolved (though bodies accepted as neutral by all parties would have to be given a remit to conduct polls, as what results polls come up with depend on what questions are asked and how they’re phrased).

Finally by making the final referendum on the proposed additional powers a multi-question one with voters able to approve or reject each major additional power or group of them, rather than just a single Yes or No question to approve or reject all of them.

Opinion polls since the referendum already show majority support for devolution of welfare policy and budget to the Scottish parliament and government, as well as pensions, corporation tax and VAT (9).

These polls show that the public want far more powers devolved than the main two UK parties plan. Other polls during the referendum campaign showed that two-thirds of voters did not know what additional powers these parties were offering in the event of a No vote (10).

If the actual powers delivered are a disappointment to the majority of people in Scotland another independence referendum is likely within 5 to 6 years (or sooner if the UK leaves the EU).

Labour politicians have raised reasonable concerns about this leading to competitive reductions in corporation tax across the UK, reducing tax revenues. While such competition does already take place between countries, it is arguably unhelpful (11).

There is no reason, though, why the UK government could not continue to set the rates for these taxes, while the  majority of revenues from them went directly to the Scottish government, assuming the majority of domestic governmental powers were devolved to the Scottish government.

 

Each devolved power must include full control of the budget for that policy area – and devolving the politically sensitive income tax alone would be merely party political manoeuvring and unacceptable

All devolved powers must include power over the budget for that power, or else the power has been devolved in name but not in reality.

It also has to be emphasised that the plans for limited additional devolution amounting to little more than powers over income tax plus a “proportionate” cut in the devolved Scottish budget by the Labour and Conservative party leaderships are dubious and may well be motivated by an attempt to gain party political advantage over the SNP (12) - (14).

Income tax is the tax most reported on by the media, most noticed by the electorate and so most politically sensitive. As a result UK governments have for decades avoided any rise in the basic rate of income tax. A devolved budget cut plus income tax powers would seem to be a trap set for the Scottish government, forcing it either to raise the most unpopular of taxes or cut services.

(I’d add that I’m not an SNP member and have stood (and lost my deposit repeatedly) as an independent candidate in more than one election).

 

Why many No voters will have expected full federalism based on Brown’s statements.
Why full federalism is practical for Scotland in the UK.

Gordon Brown MP, the former UK Chancellor and Prime Minister, greatly influenced the result of the referendum and the establishment of your own commission. However his opinions should not over-ride the views of the majority of the people of Scotland any more than any other politician’s. The terms he used are also likely to have given most people the impression that he and the UK party leaders were offering considerably more devolution than he or those party leaders actually plan to.

During the referendum campaign Mr Brown claimed that a No vote would result in “as close to a federal state as you can be in a country where one nation is 85 per cent of the population” and “nothing less than a modern form of Scottish Home Rule” (15) – (16).

While ‘devo max’ has never been clearly defined and ‘Home Rule’ similarly has no universally accepted definition, it’s likely that most people would see these phrases as meaning the same as federalism - the devolution of almost all domestic policy – full control of the budget and policy making for domestic policy – i.e everything except foreign and defence policy. While the degree of devolution of powers in existing federal systems like the US, Germany and Switzerland varies, it is high in every case.

“As close to a federal state as you can be in a country where one nation has 85% of the population” would imply the maximum level of devolution as in Germany and Switzerland. While there are some grey areas on what is foreign policy and what is domestic policy (international trade policy etc) which would be matters for negotiation, the majority is easy to define.

Mr Brown has implied that as Scotland has less than 10% of the population of the UK this precludes full federalism as “majority rule” must be maintained.

Earlier this month he stated that “You see, in the United Kingdom, England is about 84% of the United Kingdom. Scotland’s 8%, Wales is 5%, Northern Ireland’s 3%. And you’ve got to find a fair distribution of power that recognises the majority rule but also recognises the minorities and that they have special needs that have to be met.” (17).

This concern with maintaining “majority rule” is doubtful for two reasons. First existing federal systems include states with massively different populations, of far greater orders of magnitude than the differences between Scotland and England.

In 2010 Perlis, the smallest state in Indonesia, has a population of under 250,000 people, while Selangor, the largest, has a population of over 5 million – a ratio of about 20 to 1 between the largest and smallest states, double the roughly 10 to 1 between England and Scotland (This does not include the smaller federal territories which are not states) (18).

Bremen, the smallest state in Germany has a population of around 660,000 compared to over 17 million for North-Rhine Westphalia, a ratio of 25 to 1  (19).

Eight states of the U.S had an estimated population of under 1 million in 2013 and another two populations of only just over 1 million, while California has a population of 38 million, a ratio of over 38 to 1 between smallest and largest (20).

In any case it is likely that if the UK became a federal state England would be split into several regions with populations of a similar size to Scotland’s, as Gordon Brown himself has suggested, making the relative populations of the different nations in the UK irrelevant, as the devolution would probably not be only on the basis of nations, but regions of England (21).

 

Why “majority rule” does not exist in the UK,
Would not be particularly democratic if it did,
And is not a barrier to full federalism

Second “majority rule” is a doubtful definition of democracy in the UK . First, due to the unrepresentative First-Past-The-Post voting system for UK General Elections, most UK governments have not had a majority of the votes cast. Most have had large majorities of seats in the UK parliament, sometimes even over 60% of the seats, while getting only 39 to 48 per cent of the vote (22) – (26).

The current Coalition government is the only one in the last 66 years which was elected by a majority of voters, but it has also failed to represent the majority of voters in many ways (e.g by Nick Clegg MP breaking his main election pledge on tuition fees and in letting private companies run more NHS services despite public opposition – and by e.g the fact that many Lib Dem voters would have preferred them to form a coalition with Labour, or leave the Conservatives to run a minority government by not forming any coalition).

So majority rule is the exception rather than the rule in UK politics. It is usually largest minority rule, but with that minority behaving as if it had a huge majority of the votes cast for every policy it implements, when in fact it has the support only of the largest minority, and on some policies, which were not brought up in the party’s election campaign or its manifesto, not even that.

Second defining democracy as “majority rule” would lead to many undemocratic implications. In Northern Ireland “majority rule” under “Home Rule” led at one point to the Protestant, Unionist majority being given free reign implement policies that disadvantaged the Catholic minority.

Third “majority rule” is a dubious definition of democracy. Is it democratic if a small majority completely over-rule the wishes of a large minority, or even if, as more often happens in UK politics, the largest minority completely over-ride the wishes of the majority?

Surely real democracy involves everyone having an equal say, not winners and losers?

Finally defining “majority rule” as the defining democratic principle of the UK would mean that on every important matter the opinions, wishes and interests of the Scottish, Welsh and Northern Irish minorities would remain irrelevant. On every issue the majority in England would over-rule them. Scotland has just 59 MPs out of 650 in the UK parliament. Frequently a majority of Scottish MPs will vote the opposite way to the majority of English MPs on an issue. As the Reverend Stuart Campbell has shown on his ‘Wings Over Scotland’ blog, MPs elected in Scotland have only changed the results of UK elections four times since 1945, and in each case only marginally (27).

The House of Commons Library blog has largely confirmed Campbell’s analysis, finding that the overall result of all but four of the 18 UK General elections since 1945 would have been the same with or without MPs elected in Scotland (28).

 

Need for the power to regulate banks and other financial firms in Scotland

Scotland desperately needs the powers to regulate banks, hedge firms and other financial sector firms operating here in order to avoid another financial crisis and recession. We also need to stop banks foreclosing mortgages on the homes of taxpayers who bailed them out, and letting viable businesses collapse through refusal to even provide bridging loans.

If the British government was willing to effectively regulate the financial sector this would not be a problem, but UK governments of all parties have failed to even institute any law banning high street savings banks from also being involved in dubious “investment” banking (often effectively high risk bets like the trading in futures). Even the US had such a law, the Glass Steagall Act, gradually repealed in the 1980s and 1990s, with disastrous results more recently (29).

The Conservative party gets more than half its funding from banks and hedge funds. Predictably Chancellor George Osborne has not instituted a full legal separation on the types of banking, instead referring to ‘Chinese walls’,  ‘firewalls’ and ‘ring fences’ between the two arms of the same bank, which amount to the lack of a legal ban that would prevent another crisis (30) – (32).

 

Need for power to establish a nationalised national bank for Scotland
and local ones for local authorities

For similar reasons Scotland needs the power to set up a nationalised bank to provide secure savings for savers and low interest loans and grants to small and medium sized businesses, as well as the power for local councils to set up local government banks similar to the regional and local ones in Germany. The UK Labour party has said that it intends to establish something similar, but is not guaranteed to get a majority in the UK parliament for this after the next election.

 

Going beyond devolution to the Scottish parliament – the principle of subsidiarity

Some have pointed to the sizeable minority vote for the Conservatives in the 2010 General election (16% of the vote) and the election of a UKIP MEP in Scotland in the last European Parliament elections as signs that unionism and conservatism are stronger in Scotland than has been assumed.

This may be true, but they remain a minority. The Eurosceptics and pro-Europeans share one principle though – the idea of subsidiarity, that decisions should be taken at the lowest level possible for that kind of decision (33).

This would imply that if they wish to have more decisions taken by the UK government rather than the EU, they would have to approve the maximum devolution of powers from the UK government to the Scottish government, from it to local councils, and from local councils to community councils, too, based on the same principle (34).

If they want to do the first but none of the rest then they are clearly basing their decision not on democracy or subsidiarity, but blind nationalism, merely blind British nationalism rather than blind Scottish nationalism – and that is not a principle worth upholding, it’s not a principle at all.

The SNP’s tendency to want to centralise all the powers devolved to Scotland in the Scottish parliament equally needs to be challenged by the principle of subsidiarity, with both more powers transferred from the UK parliament to the Scottish parliament, from it to local councils and from them to community councils. This should include budgets and revenue raising powers.

 

Power to decide electoral system for the Scottish parliament – need to avoid changes made purely to maintain position of dominant parties

While the principle of devolving the power to decide the electoral system for the Scottish parliament to the Scottish parliament is a good one, care has to be taken that it does not give the two largest parties in Scotland – Labour and the SNP – the power to change it to a purely First-Past-The-Post system that would benefit them but be as poor in terms of democracy as the Westminster voting system. Several Labour MSPs have suggested in the past that the Holyrood voting system be changed to the supposedly “fairer” FPTP and referred to SNP list MSPs as having been “defeated” and as “sneaking into the Scottish parliament through the back door”. There has to be some suspicion that the Labour party proposals to devolve this power might be about party political advantage.

While the SNP has not made similar suggestions on changing the voting system to FPTP for Scottish parliament elections so far, it’s possible that, if they win most seats in Scotland in the 2015 General Election under FPTP, as polls suggest they could, they might be tempted to do so.

The current voting system , designed by Labour to prevent the SNP ever getting a majority, failed to do so. So it will not prevent Labour or the SNP from pushing through changes to the voting system made purely for party political advantage either.

One way to reduce this risk would to require a 66% majority in the Scottish parliament, followed by a referendum, to make any change in the voting system. The referendum could be held on the same day as the subsequent Scottish parliament elections to avoid voter fatigue or low turnout, and to reduce costs. Any resulting change in the voting system would not be made until the Scottish parliament elections after those.

On the other hand some senior Scottish Labour and Lib Dem figures have in the past suggested changing the voting system to Single Transferrable Vote, which could be a step forward from the current Additional Member System, so a balance has to be struck between making electoral reform possible, and blocking backwards steps taken for party political advantage (35) – (36).

However when the Single Transferable Vote was used for council elections in Scotland in 2012 and Labour lost seats to the SNP, some Labour MSPs, and the largely pro-Labour Daily Record, began to criticise the voting system as “too complicated” and claiming that the “over complicated” voting system had resulted in a reduced voter turnout, despite the turnout actually having been higher than in the previous council elections, and higher than in the 2012 council elections in England (37) – (38).

 This underlines the risk of big parties given the power to change the electoral system using it to change it to their advantage even if this reduces choice for voters.

 

Need for written constitution and constitutional court to define the division of powers between the Scottish and British governments – but section relating to Scotland does not need to wait on other nations and/or regions

Almost every federal system in the world has a written constitution defining what powers are held by the different levels of government, and a constitutional court to adjudicate disputed and grey areas.

This would be beneficial for a Scotland with devolved federal powers, but the complications and earlier stages of devolution to the rest of the UK do not need to delay Scotland getting additional powers.

The section of a written constitution relating to Scotland could be written separately and before those relating to other nations and/or regions of the UK.

Federalism rather than Devolution?

Devolution in the UK has involved asymmetric division of powers in which some policy areas are Reserved, with only the UK government able to legislate or make decisions on them, while others are Devolved to the Scottish, Welsh, Northern Irish and London parliaments or Assemblies. The UK government however retains the power to legislate or make decisions even on devolved matters, with the limit that it only do so with the consent of the devolved parliaments being a “convention” rather than an absolute restriction. So far the UK government has not broken this convention, but most people in the devolved areas do not realise that it retains the power to do so (39).

In a Federal system the central government would not retain this power, with the division between regional/national and central government powers being absolute and symmetrical (i.e neither could encroach into the other’s specified policy area), other than for a few grey areas of joint responsibility.

I would argue that Scotland’s devolved powers should become policy areas in which the UK government cannot act or legislate without a majority vote in the Scottish parliament permitting them to do so on a specific issue, and similarly for devolved or federally divided powers in other regional/national parliaments and assemblies.

 

Sources

(1) = Scotsman 18 Feb 2014 ‘Scottish independence: Most Scots back ‘devo max’’, http://www.scotsman.com/news/politics/top-stories/scottish-independence-most-scots-back-devo-max-1-3310342

(2) = theguardian.com 20 Sep 2014 ‘Scottish independence: poll reveals who voted, how and why’, http://www.theguardian.com/politics/2014/sep/20/scottish-independence-lord-ashcroft-poll?CMP=fb_gu

(3) = Wikipedia - Constitutional convention (political meeting) , http://en.wikipedia.org/wiki/Constitutional_convention_%28political_meeting%29

(4) = Wikipedia – Single Transferable Vote, http://en.wikipedia.org/wiki/Single_transferable_vote

(5) = Electoral Reform Society – Single Transferable Vote,
http://www.electoral-reform.org.uk/single-transferable-vote/

(6) = Electoral Reform Society Briefing 19 Sep 2014 ‘Time for a Constitutional Convention’, http://www.electoral-reform.org.uk/images/dynamicImages/file/Briefing%20on%20a%20Constitutional%20Convention,%2019th%20Sep.pdf

(7) = Guardian 19/20 Sep (website/print edition)  ‘Labour proposes devolution settlement to 'shape own futures'’, http://www.theguardian.com/politics/2014/sep/19/labour-ed-miliband-constitutional-convention

(8) = BBC 14 Oct 2014 ‘Hague and Brown clash over 'English votes for English laws'’, http://www.bbc.co.uk/news/uk-politics-29606220

(9) = STV 21 Sep 2014 ‘SNP on course to win third Holyrood term, according to new poll’, http://news.stv.tv/scotland/292917-snp-on-course-to-win-third-consecutive-holyrood-term-says-new-poll/ , (see 2nd last paragraph ‘A total of 80% of people questioned supported Scotland having control over welfare, with 62% saying it should be in charge of pensions. Almost three quarters (71%) of people back the devolution of income tax while 62% want to see Scotland get control of corporation tax and 61% say Holyrood should be in charge of VAT.’)

(10) = Sky News 17 Sep 2014 ‘Sky Poll: Scots Unclear Over No Vote Powers’,
http://news.sky.com/story/1337107/sky-poll-scots-unclear-over-no-vote-powers

(11) = Scottish Labour Devolution Commission March 2014 ,  all of it, but especially page 6, http://b.3cdn.net/scotlab/26e0eb4bdf4c775d14_ram6b81bk.pdf

(12) = See (11) above

(13) = Scottish Labour’s Devolution Commission Final Report March 2014 ‘Powers for a Purpose :

Strengthening Accountability and Empowering People’, http://b.3cdn.net/scotlab/277fe5eb9b114b9a3c_1pm6iir9r.pdf

(14) = BBC News 9 Sep 2014 ‘Scottish independence: What new powers might Scotland get?’, http://www.bbc.co.uk/news/uk-scotland-scotland-politics-25626977

(15) = Scotsman 15 Aug 2014 ‘Gordon Brown backs federalism in event of No vote’,
http://www.scotsman.com/news/politics/top-stories/gordon-brown-backs-federalism-in-event-of-no-vote-1-3511291

(16) = Telegraph 08 Sep 2014 ‘Gordon Brown unveils cross-party deal on Scottish powers’,
http://www.telegraph.co.uk/news/uknews/scottish-independence/11082930/Gordon-Brown-unveils-cross-party-deal-on-Scottish-powers.html

(17) = Guardian 12 / 13 October ‘David Cameron ‘playing fast and loose’ with constitution, says Gordon Brown’, http://www.theguardian.com/politics/2014/oct/12/david-cameron-fast-and-loose-constitution-gordon-brown

(18) = Wikipedia - States and federal territories of Malaysia, http://en.wikipedia.org/wiki/States_and_federal_territories_of_Malaysia#The_states_and_federal_territories , (Wikipedia states source as "Laporan Kiraan Permulaan 2010". Jabatan Perangkaan Malaysia. p. iv. Retrieved 24 January 2011.)

(19) = Wikipedia - States of Germany,
http://en.wikipedia.org/wiki/States_of_Germany#States

(20) = Wikipedia - List of U.S. states and territories by population
http://en.wikipedia.org/wiki/List_of_U.S._states_and_territories_by_population#States_and_territories , based on US Census Bureau reports and statistics,
http://en.wikipedia.org/wiki/List_of_U.S._states_and_territories_by_population#References

(21) = Scotsman 15 Aug 2014 ‘Gordon Brown backs federalism in event of No vote’,
http://www.scotsman.com/news/politics/top-stories/gordon-brown-backs-federalism-in-event-of-no-vote-1-3511291

(22) = Electoral Reform Society – First Past the Post, http://www.electoral-reform.org.uk/first-past-the-post/

(23) = Political Science Resources – ‘British Governments and Elections since 1945’, http://www.politicsresources.net/area/uk/uktable.htm

(24) = House of Commons Briefing Paper SN/SG/2632 (2010) ‘General Election results 1979 - 2010’, http://www. parliament.uk/briefing-papers/SN02632.pdf

(25) = David Butler (1989) ‘British General Elections since 1945’ Blackwell, Institute of Contemporary British History, London, 1989 ; Appendix I Election Results 1945 – 1987, pages 121 to 123

(26) = David Butler and Dennis Kavanagh ‘The British General Election of 1997’ MacMillan Press, London , 1997,  Appendix I The Voting Statistics, pages 254 to 255 (includes 1992 and 1997 election results)

(27) = Wings Over Scotland 10 Jan 2012 ‘Why Labour doesn’t need Scotland’ by Rev Stuart Campbell,
http://wingsoverscotland.com/why-labour-doesnt-need-scotland/

(28) = Second Reading - House Of Commons Library Blog 19 Jan 2014 ‘General Elections without Scotland, Part 1: 1945-2010’, http://commonslibraryblog.com/2014/01/30/general-elections-without-scotland-part-1-1945-2010/

(29) = Wikipedia – Glass Steagall Legislation, http://en.wikipedia.org/wiki/Glass%E2%80%93Steagall_Legislation

(30) = Bureau of Investigative Journalism 08 Feb 2011 ‘Tory Party funding from City doubles under Cameron’, http://www.thebureauinvestigates.com/2011/02/08/city-financing-of-the-conservative-party-doubles-under-cameron/

(31) = BBC 15 Jun 2011 ‘Banks must ring-fence retail operations, Osborne to say’, http://www.bbc.co.uk/news/business-13770746

(32) = Telegraph 21 Nov 2012 ‘Big banks are good for society, says George Osborne’, http://www.telegraph.co.uk/finance/newsbysector/banksandfinance/9694634/Big-banks-are-good-for-society-says-George-Osborne.html

(33) = Wikipedia – Subsidiarity, http://en.wikipedia.org/wiki/Subsidiarity

(34) = The Scottish Government – Community Councils, http://www.scotland.gov.uk/Topics/Government/PublicServiceReform/CommunityCouncils

(35) = BBC News 27 Aug 2003 ‘Voting system change mooted’, http://news.bbc.co.uk/1/hi/scotland/3183401.stm

(36) = Electoral Reform Society – Additional Member System, http://www.electoral-reform.org.uk/additional-member-system/

(37) = Daily Record 05 May 2012 ‘Local council elections 2012: Fears over turnout as numbers system puts off voters’, http://www.dailyrecord.co.uk/news/politics/local-council-elections-2012-fears-877195

(38) = Dr Alastair Clark, LSE Blog, 2012 ‘Scottish local elections in 2012 show that voters have understood the STV system and are not put-off by it’, http://blogs.lse.ac.uk/politicsandpolicy/stv-scottish-local-elections-2012-clark/

(39) = The Scottish Parliament - Devolved and Reserved Matters, http://www.scottish.parliament.uk/visitandlearn/Education/18642.aspx

Supreme Court Judges in Egypt have little legitimacy as appointees of Mubarak dictatorship, but Morsi and the Muslim Brotherhood, though elected, need to compromise further on drafting a new constitution - while the opposition need to remember Morsy and the Brotherhood are elected and that another long period of instability could lead to a military coup or push the Brotherhood into the arms of the military

While there are some serious problems with the draft Egyptian constitution, much of the criticism of President Mohammed Morsy by the Egyptian opposition and much of the media has badly misrepresented the facts. Morsy, Egypt’s first democratically elected President since Independence in 1953, over-ruled judges most of whom are appointees of the former dictator Mubarak or of the military (1).

These judges have not only found almost everyone charged with killing, injuring or ordering the killing of unarmed protesters under Mubarak not guilty, they have also attempted to dissolve the elected Egyptian parliament and were considering dissolving a constituent assembly to draft a new constitution which includes representatives of trade unions, Coptic Christians, Al Azhar (an Islamic theological university, but one critical of the Muslim Brotherhood) – and this was after the Egyptian Supreme Constitutional Court judges had dissolved the previous Constituent Assembly, with the new Assembly being much more representative as a result (2) – (5).

Morsi’s decree merely allowed him to over-rule the dictatorship era judges until a new constitution was in place. This was to be for eight months as the constituent assembly finished drafting the new constitution (6).

(Some members of the opposition say he should have maintained the 1971 Constitution, but the 1971 constitution gives the President the power to to appoint or sack the Prime Minister and the entire cabinet (Article 141) and to choose when to dissolve the upper and lower houses of parliament to call new elections for them (e.g Article 204) (7). The new draft constitution says the President has to get parliament’s approval for his choice of Prime Minister and to go to war. So the draft constitution puts more limits on the President’s power than the existing 1971 one does.(8)- (10))

When the opposition claimed that Morsy was taking too many powers to himself and accused him of making himself a dictator he brought the referendum on the new constitution forward to 15^th December so he would have the powers for less than a month (11). Since then the opposition first said they wanted the referendum on the new constitution delayed until a wider range of people got input into the new draft constitution, before saying they want it cancelled entirely (12).

The draft constitution written by the Constituent Assembly, while it includes some very questionable Islamic fundamentalist aspects (e.g the only religions permitted are Muslim, Christian and Jewish ; and religious education is to be a core subject in primary and secondary schools) is in many ways much more progressive than the 1971 constitution – for instance including equality for women (marred by a qualification that this be where it would not conflict with Islam) and the right of all employees to have a share of profits of any firm or co-operative they work for, as well as for some employees to sit on the board of directors of any firm , plus a guarantee of the right to adequate housing, transportation, food and clothing, provided by the state where necessary (13).

The lack of protections in the Constitution seems to be far more serious for Shia Muslims and Baha’i (both considered “false” Muslims by Sunnis, the Muslim majority in Egypt) than Coptic Christians or women. As with Burmese Rohingya Muslims in Burma being labelled “not Burmese” by the Buddhist majority, the Sunni majority in Egypt say Egyptian Shia should “go back to their own country” (14).

Some of the claims that the draft constitution makes no reference to womens’ rights are wrong if you read it though (15) – (16).

Gang rapes of women in Egypt are still common, as they were under Mubarak, but whether these attacks are organised or permitted by the new government is not certain (17).

While the draft constitution makes many references to Islam and Sharia Law it says Al Azhar – Cairo’s main Islamic university – will decide on what does and does not conform to Islam or Sharia. Al Azhar’s current head was appointed by Mubarak, is fiercely critical of the Musim Brotherhood and is widely considered much more moderate than his predecessor, so any Egyptian version of Islamic law is likely to be much more moderate than that of the Taliban (18). This could change though, if a more extreme leadership takes over Al Azhar – and this is one of the major problems with the draft constitution. However if a majority of Egyptians vote for it, it will be hard to call this undemocratic.

The 1971 Constitution also says Sharia was to be the main source of legislation and it’s section on women’s rights is almost identical to the draft constitution’s. The only areas in which the draft constitution seems to be less progressive are in switching from freedom of religion to only allowing Islam, Judaism or Christianity; and in banning the NDP party which was Mubarak’s party and which had banned the Muslim Brotherhood (19).

Of course a progressive constitution does not guarantee progressive policies – and much of the opposition accuse the Brotherhood of continuing Mubarak’s neo-liberal policies on the orders of the IMF (20).

The opposition say Morsi has had his own people killed, just like Mubarak. Yet it seems so far that both sides’ supporters are killing one another (21). It’s possible Morsi is using Brotherhood thugs the way Mubarak used hired thugs to attack his opponents and claim no involvement, but it’s equally possible that both sides’ supporters are simply getting out of control.

Some revolutionaries seem to believe that any government which does not give them exactly what they or their party wants is illegitimate. The reality is that no government can ever give everyone exactly what they want, because there are too many different people and groups who want conflicting things. Morsi’s government is far from perfect, but it is at least democratically elected, so has some legitimacy whether the opposition, I or anyone else, likes or dislikes it’s policies and views.

While some opposition leaders, like Ayman Nour, have agreed to talks with Morsi, others like El Baradei, who refuse, may simply need to accept that they are in a minority and they will have to compromise to get even a little of what they want (22).

Of course being elected is not a blank cheque to do whatever you like without giving the people who elected you a say on it, but Morsi is providing the people with a say through a referendum.

Ideally a constituent assembly to draft a new constitution should be elected directly, rather than indirectly by the elected parliament, as with the current Egyptian one. The opposition seem to have decided that they will not accept anything except new elections months after the recent ones, on the grounds that they didn’t like the results of the last one. That is not reasonable and it is not likely that the results of new elections would be different.

All that the opposition’s refusal to talk to the elected President is doing is strengthening the hand of the military and former members of Mubarak’s dictatorship. Likely results could be a military coup and another military regime or dictatorship, or, even more likely, pushing the Muslim Brotherhood into the arms of the military.

(There has already been a sign of the latter in Morsy’s decree giving the military the power to arrest and try civilians until the 15^th December referendum. The draft constitution also makes a General elected by other military officers the Commander in Chief of the military – rather than the elected head of government being the CinC as in most democracies. There are also disturbing allegations that anti-Morsi protesters are being tortured by Muslim Brotherhood members before being handed over to police to be jailed (23) – (25)).

Neither outcome would be progress towards most of the revolutionaries’ aims. Much of the draft constitution would be. If they want it changed (and some of it badly needs changed) they should do what people have to do for a democracy to function – start discussing it with their opponents and negotiate a compromise that keeps the military and the former Mubarak regime cronies side-lined.

Morsi and the Muslim Brotherhood also have to make compromises – starting with ending their refusal to delay the referendum on the new constitution until a draft more acceptable to the secular minority in Egypt and to religious minorities can be agreed on. This does not mean they have to accept the rulings of a constitutional court made up of appointees and sympathisers of the former dictator though (26).

The opposition have to remember that an indefinite delay in putting a new constitution into place could play into the hands of the military and former Mubarak regime members though, who could use the continuing instability as an excuse for a military coup that excludes any elected government.

Morsi has to remember that being in the majority in a democracy does not mean you can ignore the wishes of the minority entirely – and that around half the people who elected him were voting against Shafik and the Mubarak regime remnants rather than for him or the Brotherhood.

It’s possible that Morsi could yet turn out to be a would-be dictator and the Brotherhood could yet try to enforce fundamentalist Islam on all Egyptians, but a division between the secular and religious opposition to the former dictatorship and military rule could turn this into a self-fulfilling prophecy. Dialogue with them would be much better than making the Brotherhood likely to ally with the military, as has happened with Islamic fundamentalist parties and the military in Pakistan.

And if the opposition believe they can overthrow an elected President and an elected parliament as easily as they overthrew Mubarak, they are likely to be kidding themselves. In a democracy sometimes you have to accept election results that you don’t like.

 

(1) = CNN 23 Nov 2012 ‘Egypt's Morsy says courts can't overturn him’, http://edition.cnn.com/2012/11/22/world/meast/egypt-morsy-powers/index.html ; 2^nd and 3^rd paragraphs ‘Morsy also ordered retrials and reinvestigations in the deaths of protesters during last year's uprising against strongman Hosni Mubarak. That could lead to the reprosecution of Mubarak, currently serving a life prison term, and several acquitted officials who served under him…The order for retrials could please some Egyptians who've expressed disappointment that security officers and others have escaped legal consequences over last year's protester crackdown by the Mubarak regime.’

(2) = BBC News 14 Jun 2012 ‘Egypt supreme court calls for parliament to be dissolved’, http://www.bbc.co.uk/news/world-middle-east-18439530

(3) = BBC News 09 Jul 2012 ‘Egypt court challenges Mursi's reopening of parliament’,
http://www.bbc.co.uk/news/world-middle-east-18765947

(4) = New York Times 05 Dec 2012 ‘Egyptian Court Postpones Ruling on Constitutional Assembly’, http://www.nytimes.com/2012/12/03/world/middleeast/egypt-morsi-constitution-vote.html ; 1^st paragraph ‘Egypt’s constitutional court on Sunday put off its much-awaited ruling on the legitimacy of the Islamist-led legislative assembly that drafted a new charter last week, accusing a crowd of Islamists outside the courthouse of intimidating its judges’

(5) = New York Times 05 Dec 2012 ‘Egyptian Court Postpones Ruling on Constitutional Assembly’, http://www.nytimes.com/2012/12/03/world/middleeast/egypt-morsi-constitution-vote.html ; 6th paragraph ‘Egyptian courts had previously dissolved both the elected Parliament and an earlier Constitutional Assembly, and the breakup of the current one would have completely undone the transition. President Mohamed Morsi cited the pending ruling on Nov. 22 when he put his own edicts above judicial review until ratification of the constitution, saying that he intended to protect the assembly until it finished its work.’

(6) = Egypt Independent 22 Nov 2012 ‘Morsy issues new constitutional declaration’, http://www.egyptindependent.com/news/morsy-issues-new-constitutional-declaration

(7) = Guardian 10 Dec 2012 ‘Egypt's hopes betrayed by Morsi’,
http://www.guardian.co.uk/commentisfree/2012/dec/09/egypt-hopes-betrayed-mohamed-morsi ; 9^th paragraph ‘A leader who wanted to unite the country would use our 1971 constitution until we got through this difficult time. But once again we have a presidency that would see Egyptians murdering Egyptians on the streets before it puts aside party politics and tries to lead honestly in the interests of the people.’

(8) = Egypt State Information Service ‘Constitution of the Arab Republic of Egypt 1971’, http://www.sis.gov.eg/en/LastPage.aspx?Category_ID=208

(9) = Reuters 30 Nov 2012 ‘Factbox: Egypt's draft constitution’,
http://news.yahoo.com/factbox-egypts-draft-constitution-001332044--sector.html ; ‘POWERS - The constitution limits the president to two four-year terms. The president must secure parliament's approval for his choice of prime minister. The head of state can declare war with parliament's approval, but must consult a newly defined national defense council, in which generals outnumber civilians.’

(10) = Egypt 12 Feb 2012 ‘Egypt's draft constitution translated’,  http://www.egyptindependent.com/news/egypt-s-draft-constitution-translated

(11) = BBC News 10 Dec 2012 ‘Egypt: Who holds the power?’, http://www.bbc.co.uk/news/world-middle-east-18779934

(12) = Channel 4 News 09 Dec 2012 ‘Cairo protests: opposition demands referendum cancellation’, http://www.channel4.com/news/cairo-protests-opposition-demands-referendum-cancellation

(13) = Egypt State Information Service ‘Constitution of the Arab Republic of Egypt 1971’, http://www.sis.gov.eg/en/LastPage.aspx?Category_ID=208

(14) = New Statesman 03 Jul 2012 ‘The plight of Egypt’s forgotten Shia minority’, http://www.newstatesman.com/blogs/world-affairs/2012/07/plight-egypt%E2%80%99s-forgotten-shia-minority

(15) = Amnesty International 30 Nov 2012 ‘Egypt’s new constitution limits fundamental freedoms and ignores the rights of women’, http://www.amnesty.org/en/news/egypt-s-new-constitution-limits-fundamental-freedoms-and-ignores-rights-women-2012-11-30

(16) = See (8) above

(17) = Unreported World, Channel 4 (UK), Series 2012, ‘ Episode 14 - Egypt: Sex, Mobs and Revolution’, http://www.channel4.com/programmes/unreported-world/episode-guide/series-2012/episode-14

(18) = Al Jazeera 28 May 2010 ‘Egypt appoints senior Sunni figure’, http://www.aljazeera.com/news/middleeast/2010/03/2010319165631215994.html

(19) = BBC News 30 Nov 2012 ‘Comparison of Egypt's suspended and draft constitutions’, http://www.bbc.co.uk/news/world-middle-east-20555478

(20) = Guardian 10 Dec 2012 ‘Egypt's hopes betrayed by Morsi’,
http://www.guardian.co.uk/commentisfree/2012/dec/09/egypt-hopes-betrayed-mohamed-morsi ; by Ahdaf Soueif;  4^th paragraph ‘Concerning the economy it's become clear that the Brotherhood's programme is basically Mubarak's: Morsi visited China accompanied by some of the biggest business allies of Mubarak; the banking communities talk of deals already being made by high-ranking officials and their relatives, and borrowing from the IMF and the World Bank is suddenly not sinful. Meanwhile, the president is able to issue the wildest constitutional declarations but is unable to make the smallest step towards establishing minimum and maximum wages.’

(21) = Independent 06 Dec 2012 ‘Egyptian military halts Cairo clashes after seven are killed’, http://www.independent.co.uk/news/world/middle-east/egyptian-military-halts-cairo-clashes-after-seven-are-killed-8389573.html 6^th and 15^th paragraphs ‘Officials said seven people had been killed and 350 wounded in the violence, for which each side blamed the other. Six of the dead were Morsi supporters, the Muslim Brotherhood said… Rival factions used rocks, petrol bombs and guns in the clashes around the presidential palace.’

(22) = AP / Time World 10 Dec 2012 ‘Gunmen Attack Egyptian Opposition Protesters’, http://world.time.com/2012/12/10/egypts-military-takes-over-security-ahead-of-vote/ ; 9^th to 10^th paragraphs ‘Cracks in the opposition’s unity first appeared last weekend when one of its leading figures, veteran opposition politician Ayman Nour, accepted an invitation by Morsi to attend a “national dialogue” meeting. On Monday, another key opposition figure, El-Sayed Badawi of the Wafd party, met Morsi at the presidential palace. The opposition has said it would not talk to Morsi until he shelves the draft constitution and postpones the referendum.’

(23) = Human Rights Watch 10 Dec 2012 ‘Egypt: Morsy Law Invites Military Trials of Civilians’, http://www.hrw.org/news/2012/12/10/egypt-morsy-law-invites-military-trials-civilians

(24) = See (8) above

(25) = Al-Masry Al-Youhm 06 Dec 2012 ‘Al-Masry Al-Youm Reports On Brotherhood Torture Chambers’, http://www.al-monitor.com/pulse/politics/2012/12/muslim-brotherhood-egypt-torture-chambers.html

(26) = Voice of America 08 Dec 2012 ‘Egyptian Islamist Parties Reject Referendum Delay’, http://blogs.voanews.com/breaking-news/2012/12/08/egyptian-islamist-parties-reject-referendum-delay-2/