SNP U-turn on foxhunting vote: a conflict of principle and practice

http://www.theguardian.com/politics/blog/2015/jul/15/snp-foxhunting-conflict-principle-practice

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One of the hardest things in politics sometimes is to disentangle whether or not we approve of a proposed action from the overarching principle that may be guiding the action in question. The SNP’s decision this week to block David Cameron’s plans to relax the hunting ban is a classic example.

It’s not the only conflict of declared principle and practice in view, nor the one I want to concentrate on here which is the prospect of an English backbench veto on the UK budget. Scary stuff. But not the only stuff.

Before the budget I expressed scepticism about a free-market chancellor’s promise to interfere in markets and legislate (in theory) on a “living wage”. Before Wednesday’s union-bashing I expressed alarm. It is an act of brazen self-interest, unjustified by the minor irritations now caused by strikes, far less than banker abuses.

Nicola Sturgeon’s U-turn on the now-postponed foxhunting vote looks pretty straightforward. Last winter, Scotland’s first minister cited it as an example of the kind of England- and Wales-only vote that the SNP would refrain from interfering with, in line with her party’s current sense of constitutional propriety (or tactics).

This week she said her reversal was retaliation for the lack of respect (ie they lost the votes) shown to SNP views and amendments on English votes for English laws (EVEL), which has also now stalled for not dissimilar reasons – welcome to the leverage that a small Commons majority provides for sectional grievances. We were here in the Labour 70s and the John Major 90s. We’re back. Life will go on.

As a leftwing anti-hunter, Sturgeon slightly spoiled the effect by adding that she didn’t like Cameron’s hunting proposals anyway. But they would bring English law into line with Scotland’s more relaxed attitudes to hunting with dogs, someone said. I don’t like our law either, the first minister is reported to have replied.

This is where principle clashes with practice. If you resent Labour’s ineffectual hunting ban and want Cameron to prevail – high-minded Tory commentator Matthew D’Ancona thinks it’s a retox error here – you may mutter: “Change your own law, Nicola, and let us change ours.” If you are a progressive anti-hunter, you may say: “Well done, Nic.”

But previously declared principle suggests that Sturgeon should have resisted temptation until the whole purpose is to annoy the English 85% of the UK so much that they say “good riddance and goodbye” when the SNP next engineers an indy referendum. Simon Jenkins wittily sees it as further evidence that the SNP is rapidly joining the Westminster club.

That’s a little cynical for my taste. All parties are struggling to adapt to circumstances not seen at Westminster since Charles Parnell’s Irish party held what amounted to an ethnic block veto over Liberal governments on and off in the decades before 1914. Imagine how much more we would be hearing from Sturgeon if the Tory campaign scare – “SNP to run Labour Britain” – had not worked on both sides of the border.

Yet an ethnic block veto is exactly what the Cameron government seems to be stumbling into in the small print of its much revised EVEL proposals. The ethnic block in question being English, it is not very ethnic at all in strictly ethnic terms – it’s a politically English block, sharply divided between left and right, but about to be handed a powerful weapon.

The “English votes” response to devolution, notably in Scotland where political separatism is currently stronger than in Northern Ireland, let alone Wales, is legitimate. But it has to be handled carefully if it is not to break up the UK union that most of us value (rightly so).

The Tories have been promising a version of EVEL since 2005 and, when back in power in 2010, commissioned Sir William McKay to examine how best to do it. McKay reported in 2013, but his considered views were not meaty enough for William Hague who beefed them up before handing the package over to Chris Grayling, his successor as leader of the Commons – a man for whom “beefing up” is second nature.

Basically, McKay wanted to reconcile the fact that Westminster is both the UK parliament and the English parliament, to keep disputes with the three devolved nations out of the clutches of the courts, and to keep the UK show on the road without creating two classes of MPs with different voting rights.

McKay did so by proposing that the Commons change its standing orders (not subject to judicial review) to accommodate a “dual consent” process . Under this, matters declared by the Speaker (he’s safe from judicial review too) to be English-only or English and Welsh would be subject to a new Commons committee procedure before final approval or rejection of legislation by all 650 MPs.

The attraction of the blueprint is that it stops bills affecting England going through without an English majority. This almost never happens – in just 25 votes out of 3,773 (0.7%) between 2001 and 2015 – just as a Westminster government is almost never sustained by non-English MPs (for just 2.5 years out of 70 since 1945).

The most dramatic example of the Celtic veto, almost forgotten, came when Labour had a majority of four and Harold Wilson was prevented from renationalising steel in 1965 because the Ulster Unionists supported the Tories in opposing it. But in recent years it’s become a problem of political perception, rarely a practical problem if all sides give and take (which they currently don’t on this issue). The Tory election campaign didn’t help. Coincidentally, it’s Ulster votes in tandem with Tory rebels that have stalled the EVEL vote.

I am indebted for the 1965 instance and much else here (the errors are mine) to Prof Jim Gallagher, a Scottish official who used to run the Cabinet Office’s devolution unit, now with a desk at both Glasgow and Oxford universities. As secretary of the Calman commission, Gallagher is an acknowledged pro-Union expert. On Wednesday, he published a disturbing analysis (full report here) that highlights a serious, previously unexamined flaw.

Cameron’s plans – being debated again on Wednesday, with votes postponed until the autumn – envisage a double veto, so that the English MPs’ majority prevents injustice to English interests. But the Grayling proposals address (without outside consultation) a problem that McKay could not resolve any more than Gladstone could in the 1880s – an English veto over income taxation.

There is a separate problem regarding administrative statutory instruments, an important tool of any government, but this is complex. So let’s stick to tax. It is different from ordinary laws – on foxhunting, for example – because to make taxes legal, tax laws must be renewed via the budget and annual finance act every year.

That’s a hangover from 17th-century battles with the autocratic Stuart kings. But it could mean there might be occasions when the English committee could reject an income tax proposal in the finance bill, knowing that the government would have a pistol at its head because the power to stop collecting the tax would fall without the passage of the finance bill.

There ought to be an “exceptional circumstances” power of override in the Grayling document, as there is in most devolution legislation. But Gallagher, who has a lot more understanding than Grayling, says there isn’t, not yet. So a determined committee of English MPs could call the shots.

It not only gives English MPs a potential veto over tax laws for the whole UK (Calman’s proposals will devolve more to Scotland next year), but has a knock-on effect on spending. Can a government in Whitehall really be called a government, either for England or the UK, if it can’t control tax and spending, Gallagher’s paper asks.

He also wonders whether the Tories are doing this because they think (wrongly) that it would only hamstring a Labour government in future, never themselves.

Which takes us back to where we started: the abandonment of principle to obtain a political advantage. When fixing the rules that govern the system, as the US moral and political theorist John Rawls wrote, politicians should shelter behind a “veil of ignorance” to avoid partisan calculation. The union reforms are also open to this objection.

Are the Tories less scrupulous than Labour governments in making such partisan calculations? Are the SNP less scrupulous? Surely not. It sometimes feels that way, but that may just be partisan prejudice on my part – the bit we try to guard against.

The real lesson here is that the small print matters and we should take time to reach a consensus on EVEL powers that will endure future changes of government. There’s no hurry, Mr Grayling. Get it right.