Supermajority Rules and Future Referendums

The Scottish Independence referendum required only a simple majority either way., but should have required something more given the gravity of the situation.

The Scottish Independence referendum required only a simple majority either way., but should have required something more given the gravity of the situation.

     It’s hard to believe that four years ago, David Cameron and Alex Salmond were having their opening spats over the mechanics of the independence referendum. What resulted in October of that year was the Edinburgh Agreement under which the UK Parliament at Westminster would give the Scottish Parliament at Holyrood the temporary power to call a legally binding referendum on independence so long as it was held by the end of 2014 and asked only one up-or-down question on the matter. In exchange, the Scottish Government would decide on the wording of the question, the date of the referendum (and effectively, the length of the campaign), and the voting franchise.

     The aim was to provide a “clear legal basis” for the referendum being legislated for by Holyrood (since constitutional matters are reserved at Westminster) and to “deliver a fair test and a decisive expression of the views of people in Scotland and a result that everyone will respect.”

     A “decisive expression”, said the agreement. However, what did that mean, exactly? Was there more to this phrase than met the eye? At first glance, it would seem obvious that in a binary referendum – unlike an election where there may be more than two candidates – the side which secures more votes than the other has a majority of votes and that therefore, this means the electorate has made a “decisive expression” of its will. Indeed, Webster defines “decisive” as “having the power or quality of deciding”, and going by this, a decisive result in the referendum meant that one side gained a simple majority of 50% plus one.

     However, the Webster definition also includes: “causing something to end in a particular way” and “very clear and obvious”. As I read the text of the agreement from my university dormitory (while taking a break from econometrics homework), I could not help but feel that a simple majority could not possibly be enough to be considered a “decisive expression” to change the constitutional status of Scotland and determine the existence of the United Kingdom. Yes, it would be a clear and obvious result, but not “very clear and obvious” and far from “causing something to end in a particular way” with a result that everyone would respect.

     On the other side, the same was true for a vote to retain the Union; a simple majority would not be enough to put the issue to bed for a generation, for the SNP and their allies would almost surely continue to pursue their all-important objective in the belief that they would need only “one more heave” to cross over the hump. However, what made a separation “Yes” vote different from a pro-Union “No” vote was that the Yes vote was the vote for constitutional change (and the uncertainties this entailed with a Scotland separated from the rest of the UK) while a No vote retained the UK (and what was known – for good and ill).

     Because such constitutional change should not occur without the overwhelming support of the people (and/or their elected representatives), I believed back then as I believe now that a vote for separation should have required a supermajority – of at least 60% – in order to be valid, and that David Cameron should have pressed for this.

     This was not out of fear of a pro-independence majority so much as it was a concern for constitutional legitimacy and stability.

     At the time, the polls were indicating that the separatists had a mountain to climb and were heading to a huge defeat by a 2-to-1 margin, which naturally would have put the issue to bed by a decisive margin. But I belived there was a possibility (based on the SNP’s electoral comeback in 2011) that the secessionists could turn things around and deliver independence with perhaps a slim majority, which would have been unacceptable as such a monumental change would not have had a consensus – or overwhelming – backing of the Scottish people, meaning that the case for that monumental change was not overwhelming in and of itself.

     As it was, the separatists did catch up and two weeks before Referendum Day, one poll showed that they were ahead on a simple majority of 51%-49% (with “Don’t Knows” stripped out). On the actual day itself when votes were actually cast and when it really mattered, the people backed the Union 55.3%-44.7% – a nearly 11 point margin on an 85% voter turnout.

     But imagine if this had not happened. What if the razor-thin result from Inverclyde on September 18th had been replicated in the overall vote total, but in favor of separation?

     Under the rules of the referendum as they were, had the result been in favor of separation by a few hundred or thousand votes (or less) Alex Salmond would have had a legal mandate to proceed with negotiations for Scotland’s exit from the Union to become an independent country. In this, there is no doubt, for in a binary referendum where one side would be all but guaranteed a majority of some sort (and only a simple majority required), he would have had a “decisive” result to move forward with his agenda. But he would have done so with half of the country having rejected his offer and facing such a situation in which there was not broad support throughout Scotland for separation.

     This is not to say that those who supported the Union would (or should) have agitated for another referendum to reverse the close result, but the fact that it was so close showed that the SNP’s proposition to change the constitutional status of Scotland and effectively terminate the United Kingdom was only supported by a bare majority of voters who could quite easily have gone the other direction at the last minute and flipped the result. That’s hardly a ringing endorsement for proceeding with the tortuous break-up of the UK.

     On the other end, the actual 55% support for the Union would have fallen short of a supermajority as defined here, but it was still 383,000 votes clear of those who voted for independence and therefore represented a more decisive result than the hypothetical wafer-thin separation vote. However, even without this 11-point margin of victory, the Union would have been maintained by default since there was neither support for independence nor sufficient support for it to go ahead.

     Going forward, there need to be an official and standardized rules regarding referendums and their use in the United, including a recognition that secession or any constitutional change requires more than a simple majority in a referendum to become effective. A simple majority may appear to be the democratic way to decide on such matters, but it fails to take into account a number of factors, such as the wide swath of people who did not vote for secession, consideration of the rest of the country, and the fact that such constitutional change does have the capacity to massively (and with some cost) alter the everyday decisions and concerns of ordinary people, and therefore needs a large mandate.

     In the United States, our Constitution of 1787 was designed to be amended in accordance to the changing needs of the new country and to correct imperfections in the document itself. Indeed, within five years of its creation, the Constitution had its first ten amendments (collectively known as the Bill of Rights) in response to objections and concerns during the ratification process that the document did not contain strong enough provisions regarding personal liberty and limiting government power.

The US Constitution features a steep process for amending it. Image Credit:  Mr.TinDC  via  Flickr   CC

The US Constitution features a steep process for amending it. Image Credit: Mr.TinDC via Flickr CC

     However, each of those amendments and the subsequent amendments over the next two centuries had to go through an uphill climb to become part of the Constitution, which provides for a two part process under Article V.

     An amendment can either be proposed by two-thirds of both houses of Congress or by a constitutional convention requested by two-thirds of the state legislatures; to come into force as part of the Constitution, the proposed amendment must then be ratified by – as chosen by Congress – either three-fourths of the state legislatures or by three-fourths of state ratifying conventions.

     In The Federalist (Papers), No. 43, James Madison – “Father of the Constitution and 4th President of the United States – provided an explanation for the amendment process by writing:

“It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.”

     In other words, the Framers wanted a governing document that allowed for change when necessary, but not to the point where it changed at the whims and passions of a simple majority, because this would render the Constitution all but ineffective and meaningless, and – far from solving them – possibly exacerbate constitutional issues. Therefore, a high bar ensured that if the Constitution was changed, it would only ever be changed via the consent of the vast majority of people through their elected representatives at the federal and state levels, and not a fleeting simple majority (perhaps based on emotional spasms). Even the Constitution itself required the ratification of nine out of the thirteen states in the Union at the time to become effective.

     Further on with regard to secession of the states within the Union, the Constitution is silent on the matter, but in 1869 following the Civil War, the US Supreme Court ruled in Texas v. White that upon becoming part of the United States, a state entered into an “indissoluble relation” and that there is “no place for reconsideration and revocation, except through revolution or through consent of the States.”

Texas Cannot unilaterally secede from the United States. Image Credit: Public Domain ( Zereshk  via  Wikimedia Commons )

Texas Cannot unilaterally secede from the United States. Image Credit: Public Domain (Zereshk via Wikimedia Commons)

     So the states do not possess a unilateral right to secede from the Union as the some of the southern states did in 1860-1861 to form the Confederate States of America. The only way a state can achieve this is through armed conflict or if allowed to do so with the blessing of the other states. This was based on the fact that the other states through Congress admitted the seceding state into the Union in the first place; if they allowed it into the Union, then they must also be called upon via their elected representatives in Washington to decide if it shall leave as well, especially if the proposed secession has the potential to adversely impact them.

     North of the border, our friends in Canada have been dealing with Quebec secessionists for the better part of the last half-century. The first referendum on whether Quebec should pursue independence was defeated by a two-to-one margin in 1980; the second one in 1995 was much closer, with Quebecers voting to stay part of Canada by a margin of just 1.16%. Following the second vote, the question of Quebec’s right to secede was put to the Supreme Court of Canada, which ruled in 1998 that the province did not have a unilateral right to secede from Canada.

     In order for the secession of Quebec or any other province to take place in a constitutionally legitimate and democratic fashion, there must be a “clear expression of the desire to pursue secession.” The Court did not explicitly explain what “clear expression” meant, but as Brian Lee Crowley – managing director of the Macdonald-Laurier Institute in Ottawa – wrote in CapX, “it doesn’t require a Jesuitical mind to find that the legal requirement must…be something more than just 50 per cent plus one of those voting.” Even then, all a referendum could do is trigger a “reciprocal obligation” of all parties to “negotiate constitutional changes to respond to that desire” and the negotiations themselves may or may not lead to the desired secession. So long negotiations are held in good faith, neither the federal government nor the other provincial governments would be under obligation to allow the secession of a province within Canada – something which at the end of the day would require the passage of a constitutional amendment – and the government of said province could always decide to withdraw its case for secession.

Following the No Vote in Quebec in 1995, the Canadian Supreme Court ruled that the Unilateral Secession was not permitted. Image Credit: ©  Zorion ,  CC-BY-SA ,  Wikimedia Commons

Following the No Vote in Quebec in 1995, the Canadian Supreme Court ruled that the Unilateral Secession was not permitted. Image Credit: © Zorion, CC-BY-SA, Wikimedia Commons

     The court reached this ruling based on the notion that unilateral secession of a province “would purport to alter the governance of Canadian territory in a manner which undoubtedly is inconsistent with our current constitutional arrangements.” In this, they defined four central principals of the Canadian Constitution:

  • Federalism – The ability the federal government to act on issues of common interest of all Canadians while giving respect to the provincial governments, which have their own authority independent of each other and the federal government, as well as to create a sense of binding national unity.
  • Democracy – The principle of the right of self-government and democratic participation.
  • Constitutionalism and the Rule of Law – The idea that the government acts under the authority of the constitution, not above it, and that the passions of the majority should not prevent those in a minority from having a fair say.
  • Protection of minorities – This is found in all the aforementioned principles, but the Court gave it special attention due to the uniqueness of Canada with regard to its Aboriginal population and explicit constitutional protections dating back to treaty obligations upon the European settlers of what would become Canada, as well as the protection of others based on religion, language, and other backgrounds.

     “These defining principles”, said the justices of the Supreme Court, “function in symbiosis.  No single principle can be defined in isolation from the others, nor does any one principle trump or exclude the operation of any other.” With regard to democracy in particular, they noted that it “would be a grave mistake to equate legitimacy with the ‘sovereign will’ or majority rule alone, to the exclusion of other constitutional values.”

     Such constitutional values in Canada and other Western democracies are the reason why, for example according to Brian Lee Crowley, a candidate for public office and indeed, an entire political party, can win elections with much less than 50% of the vote. Recent examples include the 2015 Canadian federal election in which Justin Trudeau’s Liberal Party won an outright majority of seats in Parliament with just under 40% of the popular vote, as well as the David Cameron’s Conservatives at last year’s UK general election who also achieved an outright majority on an even lower share of the popular vote at nearly 37%.

     Such outcomes – flawed as they may be – are nevertheless accepted because they are “dependent on other fundamental rules of fairness”, such as government actions being subject to protection for minority rights, independent courts holding the government to account for its actions, and the right of eligible citizens to vote (with universal adult suffrage at 18 years of age for most Western democracies). In short, the rules of the game allow for a party to be legitimately elected when it has the largest number of votes and/or the largest number of seats in the legislature – even if there were more votes against it than for it – so long there are constitutional safeguards against that government and its actions. (However, I would personally add that in such circumstances, there's a case for at least some prortional element to the system.)

     So sacred are these rules of the game which underpin constitutional fairness and governmental legitimacy, that Crowley points out that “most countries don’t permit mere governments or even electoral majorities to change them on their own”, and instead require “some kind of ‘super-majority’ or parliamentary and popular approval.” This is how the American and Canadian systems work with regard to constitutional change – placing high barriers which force the side advocating change to make an overwhelming case and requiring the consent of the affected parties.

     Nowhere is this truer than with regard to the constitutional status and make up of a country and its political subdivisions, because such arrangements affect everyday decisions on property ownership, taxes, labor rights, the economy, personal finances, general welfare, and a host of other issues. This does not concern only the people in area that desires to secede, but also those in the rest of the country, which is why the Canadian and US supreme courts have rejected unilateral secession with regard to the their political subdivisions, and in Canada’s case specifically, have declared that a desire to secede merely obliges the rest of the country to enter into negotiations. After all, as Crowley notes:

“if the secessionist region has a right to pursue its national interest, it does not trump the right of the country being rejected from doing the same on a wide range of issues, including sharing of the national debt and assets, management of natural resources, use of passports and currency, dual citizenship and more.”

     Anyone with memories of the Scottish referendum in 2014 remembers how the SNP produced the infamous White Paper – billed by the party and other activists as the prospectus of Scotland’s future as an independent country (but which one former insider recently described as “deluded”). That document contained dozens of promises to the people of Scotland on many of the aforementioned issues – promises the SNP was in no position to make because it simply could not demand for them to come to fruition, such as the proposed currency union between an independent Scotland and the rest of the UK. Despite warnings that there would be no formal currency union, the SNP and their allies attempted to make the case that by voting for separation, the people were also endorsing the White Paper and all its provisions (including the currency union) and that this would have obliged the rest of the UK to go along with these provisions if Scotland voted for separation.

Concerns over a Currency Union (or lack Thereof) Likely doomed the "Yes" Campaign in 2014.  Image Credit:  Howard Lake  via  Flickr   cc

Concerns over a Currency Union (or lack Thereof) Likely doomed the "Yes" Campaign in 2014.  Image Credit: Howard Lake via Flickr cc

     In Canada, secession of a province can only become a reality when there is a “high degree of national agreement”, which means that the rest of the country have some bargaining power in shaping the new constitutional arrangements which may well be different – adversely different – from the pie-in-the-sky promises of the secessionist party and/or activists. Perhaps one reason why the SNP lost the Scottish referendum in 2014 was because the people believed (correctly) that there would be negotiations on Scotland’s exit from the Union and that the final outcome of those negotiations may well have been less than what the SNP was offering – therefore potentially leaving Scotland and themselves worse off.

     As noted by Crowley, the overall point here is that because of the known rules of the national status quo (which everyone, including the secessionists, live by):

“there is a strong presumption in favour of its protection. That presumption can be overcome, but the case for it to be overturned by a simple majority of those who happened to turn out in a referendum is very weak indeed.”

     Very weak because of the lack of constitutional safeguards to ensure that the proposed secession holds up to the rule of law, protects minorities, ensures that the rest of country has its say, and is supported by a large majority of the electorate in the seceding area (which depends on a convincing case for secession).

     With regard to the US Constitution, such safeguards amount to a system of checks and balances in which, as James Madison said in The Federalist No. 51, “ambition must be made to counteract ambition”, and the interlocking parts of the Constitution work – among other things – to prevent factions from changing it at will without the vast majority of the population supporting it, as well as to encourage broader consensus on issues facing the country (or any part of it) in general and guard against the destructive “factions” as described in Federalist No. 10.

     This is the reason why the Constitution has only ever been amended 27 times because the amendment process – with its supermajority requirements among Members of Congress and the state legislatures – prevents frivolous and unnecessary change by what may be the short-term passions and emotions of a fleeting majority. Some proposed amendments have had majority support, albeit not enough to cross through the hurdles of at least one stage of the process. The result is that it forces people to think hard about if they really want the change and ensures that the country broadly supports it.

     In contrast, the United Kingdom is a country that has been underpinned by majority rule via the sovereignty of Parliament (elected – in the Commons – by the people) and features an unwritten and uncodified constitution which has been lauded as flexible yet durable for hundreds of years. However, there may be need to have another look at that in light of the referendum which could have easily broken it up and in the face of the upcoming referendum on European Union membership, because relying on convention and various documents over the centuries may not be enough in the face of the heated passions and forces currently at work in the land.

The British System May have to change to accommodate formal referendum rules.

The British System May have to change to accommodate formal referendum rules.

     At the very least, there need to be codified rules which “governs and conditions the use of constitutional referendums” and allow constitutional changes – including secession – “on the basis of an established measure of consensus”, as suggested by the Bingham Centre for the Rule of Law’s report following the general election last year: A Constitutional Crossroads.

     With regard to referendums, the report noted that their use in the United Kingdom has been ad hoc, with no constitutional rule on when a referendum can be held or on what issues (with Northern Ireland being an exception because of the peace process which resulted in its devolution settlement including a provision for a referendum to be called by the Secretary of State for Northern Ireland on whether it remains part of the UK). It cited a House of Lords Constitution Committee inquiry into the use of referendums in the UK, which found that they had “significant drawbacks” in part due to their use more so for tactical reasons rather than principle. Therefore, cross-party consensus ought to be sought on what circumstances are appropriate for referendums, and the committee went on to say that their use should be restricted to “fundamental constitutional issues”, which it broadly defined as:

“any proposal to abolish the monarchy, to leave the European Union, for any of the nations of the UK to secede from the Union, to abolish either House of Parliament, to change the electoral system for the House of Commons, to adopt a written constitution, or to change the UK’s system of currency.”

     Further, the Bingham report noted that critical components such as the franchise, timing, and voting thresholds (if any) have been set for each referendum that has taken place, as opposed to be common rule being applied. With regard to franchise, the decision to exclude the 800,000 Scots living elsewhere in the UK and overseas from the independence referendum was met with controversy, just as was the decision not to allow non-British EU citizens to vote in the upcoming EU referendum. Similarly, while 16 and 17 year olds were given a temporary right to vote in the independence referendum, no such provision is forthcoming for the EU referendum.

     On the issue of voting thresholds, the report made note of how the infamous “40% rule” was used for the 1979 Scottish devolution referendum, but no similar threshold (either that or a supermajority) existed for the 1975 EEC referendum, the devolution referendums in 1997, the 2011 AV referendum, and the independence referendum in 2014. The Lords Constitution Committee took the view that “there should be a general presumption against the use of voter turnout thresholds and super-majorities”, but added that there may be “exceptional circumstances in which they may be deemed appropriate.”

Although there was no supermajority threshold for the 1975 EEC Referendum, the British Public voted by a two-thirds majority in favor of what was then the Common Market. Image Credit:  MrPenguin  via  Wikimedia Commons   cc

Although there was no supermajority threshold for the 1975 EEC Referendum, the British Public voted by a two-thirds majority in favor of what was then the Common Market. Image Credit: MrPenguin via Wikimedia Commons cc

     When discussing the frequency of referendums on the same issue, the Bingham report quoted Alex Salmond and Nicola Sturgeon as saying that the 2014 referendum was a “once in a generation” event. Of course, both have back-pedaled from those statements as they and the SNP have, as said by Colin Kidd in the Guardian, “worked hard to soften up the media and general public, setting out circumstances that would compel another independence poll”, including the prospect of the UK as a whole voting to terminate its EU membership while a majority of Scots voted for the UK to retain its membership. On top of that, there is no constitutional rule preventing the SNP from going back on its “once in a generation” rhetoric and calling on another referendum within the next five years should it win another majority at Holyrood this year based in part on a referendum commitment of some sort in its campaign manifesto. Yes, Westminster can refuse, but it’s realistically difficult seeing that happening in the face of a mandate and the precedent that was set following the 2011 election, and this shows the pitfall of an unwritten constitution which relies so much on convention and precedent, and can be used to the advantage of the separatists.

     However, the Bingham report did state that “referendums are not opinion polls, but legally authorized means of deciding constitutional questions”, and that as such, they should not become “neverendums” with the same (or similar) question being repeatedly asked of the electorate until the “correct” answer is delivered for one side or the other.

     This therefore raises the following question: what’s the good of holding a constitutional referendum if it fails to settle a certain issue for a prolonged period of time? Furthermore, what good is a referendum on anything if another one appears to be around the corner within 5-10 years because one side refuses to accept the result they did not want? The result is a neverendum until the aggrieved side either gives accepts the result (for an indefinite period of time, if not forever), or gets what it wants. This does not do anyone favors – economically, politically, or socially – when such uncertainty and instability is in the air. Just ask Quebec.

     Therefore, as part of an overall plan to codify and standardize Britain’s laws and constitutional rules pertaining to referendums, there ought to be a period of time following a referendum vote when another vote on the same issue cannot be held. Already, as the report states, a repeat referendum on Northern Ireland’s constitutional status cannot be held within seven years of the preceding one. For the UK as a whole (including if possible, a revision for Northern Ireland), a period between referendums should last no longer than 15 years – which is how the Bingham report defines a “generation.” Such a period would place clear blue water between the two polls and allow the second one to be fought largely independent of the first – especially in the hope that the passions and emotions of the first will have subsided by then. This can also help to focus on more pressing day-to-day matters, such as policing, education, health, welfare, transportation, and the overall economy (which is helped by the reduction of uncertainty deriving from a neverendum).

     When legal referendums are held, a supermajority should be required in order for the result to be binding. As has been noted, a supermajority is ill-defined, but at the very least, it does mean more than 50% plus one in terms of a vote share. However, in order for a supermajority vote to have any meaning with the aim of forcing the “change option” to get an overwhelming and clear mandate from the people, it will have to be well above 50%. Perhaps the definition of a required supermajority can start at 60% of the vote, but no higher than 75%. Any share of the vote within that window ought to be sufficient for the expression of an electorate’s clear, decisive, and unambiguous intent to constitutionally change something about their country, and to call all parties to the negotiation table in good faith.

     As was said above, the Lords Constitution Committee took a general view against the use of supermajorities and other thresholds outside of achieving a simple majority, but added that there were “exceptional circumstances” where a supermajority requirement would be “appropriate.” It did not elaborate on what that meant, but given what is at stake with regard to the constitutional status and makeup of the UK and its constituent parts, it is probably safe to say that another Scottish referendum and the upcoming EU referendum classify as very appropriate for being subject to a supermajority requirement. These are issues that are too sensitive, too critical, and too important for the future of the United Kingdom and its people; their outcomes will have impacts on the economy, jobs, finances (public and private), society, politics, and determine the very survival of the United Kingdom as a country and an influential world power.

     That should not be determined on the back of a flimsy majority and with potentially half of the country voting another way on such a paramount issue which will have repercussions and unintended consequences for years – possibly decades – to come.

     A supermajority requirement of 60% or more ensures that constitutional change proposal are carried through with the vast majority of the voting population desiring to make that change. To put it more explicitly, this would affirm that a substantial majority of the UK wishes to terminate membership of the EU and similarly, determine that the vast majority of Scots desire to become independent and break up the UK. With this higher bar, a simple majority would not be allowed to change everything unless at least an additional 9.9% of the voting population was behind them, because it is untenable for constitutional change to occur unless the proposition receives an overwhelming mandate, and this is most important. (For historical perspective, the original Scottish Parliament in 1707 voted 106 to 69 in favor of the Union with England – a 60.5% to 39.5% majority.)

Whatever the outcome of the EU Referendum, the result should be respected for at least 15 years, but also have a supermajority requirement to Ensure that "Change" result is overwhelming. Image Credit:  David Kellam  via  Flickr   cc

Whatever the outcome of the EU Referendum, the result should be respected for at least 15 years, but also have a supermajority requirement to Ensure that "Change" result is overwhelming. Image Credit: David Kellam via Flickr cc

     If there are enough votes for a majority, but not for a binding supermajority, then the initiative will fail, and the status quo will remain in place. It’s akin to most criminal trials in the United States, where the a jury must be unanimous in convicting a person charged with a crime and the onus is on the prosecutor to make a convincing case for conviction. If but only one juror has doubts about convicting a defendant, this results in a hung jury and possibly a mistrial, which can mean that he or she will not have been cleared of the charges, but nor will the person be declared guilty and sentenced. For all intents and purposes, the charged individual remains innocent by default, unless the state decides to bring a new trial on the same charge (which is not usually subject to the “double jeopardy” rule because the first trial was inconclusive and therefore incomplete).

     Similarly, if a referendum initiative on Scottish independence or EU membership fails to attract enough votes to hit or exceed the required threshold, then Scotland remains part of the UK and the UK retains its membership with the EU. Like the a prosecutor who failed to make a convincing enough case to get all 12 jurors to convict a defendant, the proponents of secession or any other major constitutional change will have failed in their effort to convince around two-thirds of the population to vote in their favor - again, with the onus being squarely on them to make an overwhelming case. Also like the mistrial that can result in a new trial, the matter can be brought up again, albeit not until at least 15 years have elapsed.

     There will undoubtedly be some people who will not like this suggestion of requiring a supermajority for constitutional issues, or of a time period during which a referendum on a specific issue cannot be held. In particular, some Nats have accused those who support the Union and wish not to see another referendum soon after the last one of being anti-democratic and against self-determination – saying that if Scots want another referendum, they should get one. That is democratic after all, isn’t it?

     Yet, as this article has repeatedly noted, there’s more to democracy than majority rule, for democracies are dependent on a firm grounding in the rule of law and ensuring that majorities don’t easily overpower or outmaneuver minorities. Otherwise, democracy descends into anarchy and laws are too easily based on the political winds and emotions at a particular moment in time. If there is an overriding thirst for change, or if the moot has shifted from one position to another in the course of time, it must be solid and sustained. 50% plus one does not offer that, but a supermajority requirement does (so it’s actually “super-democratic”).

     Other people of various political persuasions may also object to what they see as the Americanization or federalization of the British constitution, and the reaction of some friends and acquaintances to my suggestions for the House of Lords is a testimate to that.

     However, this is not about trying to make Britain into America’s image; after all, this article is partly based on the Canadian constitutional experience, and both traditions have their roots in what was developed in and exported from the UK. It won’t hurt for the UK to learn a thing or two from its former colonies on the merits and value of adopting constitutional structures which upkeep democratic traditions but with rules which allow constitutional change within the rule of law, as well as with due consideration and when the vast majority of the population and/or Parliament expresses favor for it. When the country decides on such issues, it must do so overwhelmingly and not take the decision lightly with a simple majority; the result must be truly “decisive.”

     This can help to strengthen the UK constitution and perhaps lead to a day when it becomes a written document that encapsulates the traditions and conventions worth keeping, while creating and establishing new ones. At the very least, this can bring clarity and formalization to the rules and conditions regarding referendums and constitutional change – especially with regard to issues such as secession – and how they ought to be handled, so that they can be handled in a consistent manner. This has the added bonus of preventing politicians from setting each referendum on their own (varying) terms, because the rules will have largely been made beforehand.

     If done the right way, fixed referendum rules with a time period between referendums, an established franchise, other measures regarding issues such as campaign lengths and financing, and above all, a supermajority requirement can bring much-needed fairness, stability, and durability to Britain’s constitutional arrangements in the current politically volatile atmosphere and provide a stronger foundation for the country’s future going forward.

A Vow Fulfilled; Time to Move Forward

With the passage of the Scotland Bill, the Scottish Parliament is set to become a very powerful institution within the constitutional structure of Britain. Image Credit:  Kim Traynor  via  Wikimedia Commons   CC

With the passage of the Scotland Bill, the Scottish Parliament is set to become a very powerful institution within the constitutional structure of Britain. Image Credit: Kim Traynor via Wikimedia Commons CC

     Two days before Scotland voted on whether to secede from the United Kingdom, the Daily Record published as its headline “THE VOW”. In it was a statement jointly signed by the three main UK political party leaders at the time – Prime Minister David Cameron (Conservative), Deputy Prime Minister Nick Clegg (Liberal Democrats), and Opposition Leader Ed Miliband (Labour) – which committed them to legislating for “extensive new powers” for the Scottish Parliament at Holyrood if the people of Scotland voted to remain part of the Union.

     This promise – brought on by the newspaper, and brokered by former Prime Minister Gordon Brown and Scottish Labour – also guaranteed that the Scottish Parliament would become a permanent fixture the British constitution, and stated “categorically” that with the continuation of the Barnett Formula and “powers of the Scottish Parliament to raise revenue”, Holyrood would have the “final say on how much would be spent on the [National Health Service]” in Scotland.

     Two days later, the people voted decisively to reject separation and to keep the United Kingdom together. Since then, the “Vow” has gained an almost mythic status – as though it was our generation’s equivalent of Magna Carta (whose 700th anniversary was celebrated this year), the Bill of Rights, or the Declaration of Arbroath – because of the belief that it was that declaration “wot won it” for the pro-Union campaign. After all, the opinion polls, which had the pro-Union vote with healthy leads for most of two-and-a-half year long campaign, had begun to markedly narrow in August and culminated with the Sunday Times/YouGov poll which showed the pro-independence vote (barely) ahead for the first time on September 7th.

     For many Nationalists, the Vow was nothing more than a gimmick which revealed the desperation of the pro-Union campaign in the waning days of the referendum to turn the numbers around (especially among undecided voters) and win on September 18th.

     In my opinion, the Vow itself was really a singular restatement of previous pledges made over the course of the campaign that Scotland could have the best of both worlds: a strengthened Scottish Parliament with the ability to make more decisions on behalf of the Scottish people, but within safety and stability of the United Kingdom – hence the Vow’s declaration that voting to retain the Union would “deliver faster, safer, and better change than separation.”

     However, the reality is that after September 7th, the polls either had a tie or a pro-Union lead before announcement of the Vow, and analytical research and surveys since the referendum have shown that the Vow had little to no effect on the final outcome.

     Nevertheless, a vow is a vow, and upon the outcome of the vote, David Cameron appointed a commission led by Lord Smith of Kelvin to negotiate the devolution of more powers among the five political parties of Scotland – Labour, the Conservatives, the Liberal Democrats, the Green Party, and the SNP. What emerged was an agreement signed off by all of the parties which became the basis for the current Scotland Bill, which at the UK Parliament at Westminster, completed its final passage in the House of Commons this past Monday, and heads to the House of Lords for further scrutiny.

     Its main provisions include the ability of Holyrood to set income tax rates and bands from April 2017, keep half of the taxes generated through VAT in Scotland, and have control over Air Passenger Duty (aka, the "tourism tax"). Holyrood will also have enhanced authority over welfare, such as control over Disability Living Allowance and elements of Employment Support and Universal Credit. It will have the ability to top-up existing benefits (including tax credits which may be cut by the UK Government) as well as to create new ones. Through these powers, the welfare system in Scotland can be changed and Holyrood will have the ability to tax accordingly in order to pay for such changes here, or in other areas that have been devolved.

     In addition, management of most of the Crown Estate in Scotland will be handed over to Holyrood. It will have increased borrowing powers to fund large capital projects, legislative control over onshore oil and gas extraction, and – more controversially – abortion law. Furthermore, the Scottish Parliament and Scottish Government will be recognized as permanent features of the UK’s constitutional structure, with provisions for them to be abolished only through a referendum.

     Taken together with the powers it currently has and the powers already to be phased-in next year from the 2012 Scotland Act, Holyrood will become quite powerful – indeed, one of the most powerful sub-central parliaments in the world, with the ability to decide on policy matters which will affect the day-to-day lives of ordinary Scots.

     The tax powers alone are no joke, and the BBC has calculated that with the devolution of the aforementioned taxes combined with the other taxes Holyrood controls (or will soon control), revenues will stand at £19.3 billion, which represents nearly 60% of the 2012-2013 Scottish budget (which is the latest fiscal year for which there is a known outturn). Even with the 2015-2016 draft budget standing at £37.4 billion, this amount of revenue raised by Holyrood would still amount to a majority (51%) of that budget.

     Earlier this year in the UK Government’s command paper on implementing the Smith Agreement noted the extent to which sub-central governments within OECD (Organization for Economic Co-operation and Development) countries like the UK have responsibility for spending and taxation:

“the tax and spending powers of sub central governments varies considerably across OECD countries. The OECD average for sub-central government responsibilities is c30 per cent of spending and c20 per cent of tax, but this ranges from below 10 per cent to above 50 per cent.2 As a result of the Smith Commission Agreement, the Scottish Parliament will control around 60 per cent of spending in Scotland and retain around 40 per cent of Scottish tax. This will therefore make the Scottish Government one of the most powerful sub-central governments in the OECD, just behind the Canadian provinces and Swiss cantons. Importantly, it will therefore give the Scottish Government substantial choices in relation to levels of tax and spending in Scotland.”

     Of course, the how much is actually raised in tax and how much is spent will now be largely be determined by the party that controls Holyrood, which for the foreseeable future is the SNP.

     But the SNP, which once dismissed the Vow as a last-minute gimmick, now complains that it has not been fulfilled via the Scotland Bill. Indeed, it has been complaining from day one, and basically set up the Smith Commission for failure by demanding full fiscal autonomy (aka devo-max) for Holyrood, which would have resulted in independence-in-all-but-name and a serious financial cost for Scotland. It signed off on the Smith Agreement, but kept on whining about how it did not go far enough with more powers.

     This attitude kept on going all the way through to final passage on Monday night, where their 55 MP’s in the House of Commons not only moaned about the bill itself, but the process under which it was passed – saying that the six hours allotted for debating the bill and its amendments was too little time. On Twitter, their supporters complained about the lack of MP’s in the chamber (though as Iain Martin said on CapX, “imagine the SNP’s anger if English Tories had turned up in huge numbers to debate”), and there was more complaining about the traditional voting methods at Westminster.

     They griped about their amendments being shot down, including ones to devolve control over tax credits to Holyrood, as well as to give it the sole authority to call a future referendum on separation. Interestingly however, the party failed to call a vote on their own amendment for full fiscal autonomy.

     In all, over 200 amendments were lodged, including 80 by the government for the purpose of clarifying and strengthening the bill to allay concerns. But Pete Wishart angrily stood before the House to claim that the whole process had shown “gross disrespect” to the debate over Scotland’s future and felt as though the country had been given an “almighty slap in the face and told to just get on with it.” In response, Scottish Secretary David Mundell said that Wishart was “always angry at something”.

     He further noted that Wishart pulled “this sort of stunt” every time the bill was being discussed, but asserted that his anger was not directed him or the House of Commons, but “directed at the people of Scotland because they voted decisively remain part of the United Kingdom, and that is something he just cannot accept.”

     Indeed, it sometimes feels as though the SNP has not accepted the results from last year – with them keeping the independence conversation alive and changing their tune from the referendum being a once in a generation (or lifetime) event, to discussing the possibility of having another one in a vastly shorter time span. Even with the Scotland Bill, some members of party have banged on about Westminster “betrayal” for it not going far enough and believing that there should be another referendum soon.

     All this before actually getting on with the new powers and seeing what Holyrood can do with those powers for Scotland within the United Kingdom, which is what the people expect.

     David Cameron and David Mundell have expressed their belief that the Vow has been fulfilled. So has Labour’s Shadow Scottish Secretary Ian Murray, who said that “significant tax powers mean that new choices will be available to the Scottish government and new welfare powers provide the opportunity to create a social security system fit for the needs of [Scotland].”

     At the end of this week, Lord Smith of Kelvin added his voice as being in agreement that the Scotland Bill “honoured what the five parties agreed” and also declared that his commission’s recommendations on welfare powers had been “delivered in full.” Writing for the Daily Record, Lord Smith expressed praise for the politicians who were on the commission and came to an agreement, which had gone farther than some wanted, and not far enough for others. Nevertheless they reached a deal and got on with the task of putting it into effect – something he hailed as a “significant achievement” in terms of going through the political processes, which he said “was never going to be easy” given the politics and the complexities of the law.

     Gordon Brown has given his endorsement of the bill as having delivered the Vow, and the Daily Record – which published the Vow and has campaigned on its behalf – is in agreement that with the Scotland Bill due to the Vow, “the powers of future Scottish governments will be greatly enhanced”, while criticizing the SNP for their constant moaning, complaining, and “behaving like they have been handed a soiled nappy” as opposed to celebrating the arrival of the new powers.

     Meanwhile, Stephen Daisley of STV has noted that he was skeptical of the Vow, but now concedes that the Scotland Bill “makes good” on the promise of “substantial new powers” for Holyrood – a “fact no Nationalist demagogue can inveigh away.” He also took aim at the SNP for using the Vow as a means to stoke anger and peddle grievance – quipping that “if Westminster found a cure for the common cold, they would complain it was putting hard-working Scottish pharmacists out of business.”

     However, Daisley agreed with Nationalist claims that the Vow failed to deliver on “home rule” for Scotland. This is perhaps one of the more contentious issues concerning the shaping of the new devolution settlement, for while the Vow said nothing about home rule and was “cautiously worded”, Gordon Brown did mention it in his last minute interventions as the campaign came to a close.

     Daisley points out that Brown was seen as “the savior of the UK” because of the respect that he commanded as a Labour “big beast” amongst the sort of left-leaning voters thought to be wavering on whether to vote for the Union or independence – people who would listen to him when they would not listen to David Cameron, or even Alistair Darling or Ed Miliband. So when the former prime minister unleashed his soaring oratory in a speech on the eve of the referendum, he was celebrated by pro-Union activists of all persuasions – not least for its colorful references to the virtues of British solidarity and the UK’s historic achievements, which depended on the participation (and in many cases, sacrifice) of people from throughout the UK regardless of the home nation from which they came.

     However, Brown also said – either in that speech, or in the days preceding – that Scotland could expect "nothing less than a modern form of Scottish Home Rule”, something "quite close to something near to federalism” if it voted to maintain the Union and reject separation. Driving the point home, he further stated that “the United Kingdom will move as close to federalism as we can go in a country where one nation accounts for 80% of the population.”

     These commitments, claims Daisley, were “more heartfelt oath” than the Vow, and have not been honored by the pro-Union parties. He mentioned some of the powers still reserved at the UK level: industrial relations, broadcasting, the minimum wage, the rail network, equalities legislation, “full oversight of the Crown Estate”, and the ability to administer tax credits (and not just to top them up). Therefore, he says, the Nationalists are not engaging in political spin when they say the Scotland Bill falls short of their expectations for federalism/home rule, and the failure to implement this means that the pro-Union cause is now “constitutionally barren”, with only economics and sentiment to carry it through another vote (which, in his view, may not be enough).

     However, if this sounds like a whiff of Westminster “betrayal”, it is important to understand that there were two parts to the Vow and the Gordon Brown’s home rule/federalism statements.

     With regard to the Vow, it did indeed make a promise for “extensive new powers” for Holyrood, that Holyrood would have the final say over the Scottish NHS, and that Holyrood would be permanent, which is the part the SNP like to quote so often. However, it also said that “the UK exists to ensure opportunity and security for all by sharing our resources…to secure the defence, prosperity, and welfare of every citizen”, and partly to this end, the Vow called for “the continuation of the Barnett allocation for resources.” There was also a line about these “principles and values” underpinning the UK’s “future as a country.” In the extended clauses of the Vow, Guarantee Two states in part that:

“the modern purpose of the Union is to ensure opportunity and security by pooling and sharing our resources equitably for our defence, prosperity and the social and economic welfare of every citizen, including through UK pensions and UK funding of healthcare.”

     In other words, part of the Vow was about stating that with further devolution, Scotland would still be very much part of the United Kingdom and therefore still be part of the UK’s system of pooling and sharing for the benefit people not just in Scotland, but throughout the UK as a whole – something that may have been difficult to achieve with what the Nationalists wanted short of independence, which was devo-max/full fiscal autonomy (the implications of which are helpfully explained here by businessman and blogger Kevin Hague).

     This leads to Gordon Brown’s dramatic interventions late in the campaign, for while he did make statements about achieving home rule and federalism, it is also clear that there were limits. Why else would have said “near to federalism” or that the UK would move as “close to federalism as we can go in a country where one nation accounts for 80% of the population”? Was it because he was determined to keep Scotland in “its place”, or more likely because he knew – as a former chancellor and prime minister – that there is a point at which devolution to one part of the UK makes the country as a whole ineffective, ungovernable, and constitutionally unstable to the detriment of everyone, including Scots?

     Is it possible that we have gotten to that point – where devolution can be had without emasculating the Union and the pooling and sharing benefits of being part of a larger country? Yes, I know “pooling and sharing” is becoming a cliche and may ring hollow for some people, but that was a key reason for keeping the United Kingdom together – more so than the “Vow” because of economic pragmatism, as well as the safety and stability of the Union. The new settlement is an attempt to preserve that stability while also making the Union more flexible with further devolution and the ability for Holyrood to make more decisions for Scotland.

     It may well be true, as Daisley wrote, that some politicians “were dragged kicking and screaming by the Record and its editor Murray Foote” in their resistance to parting with the powers they eventually devolved, but it is not as though they were hell-bent on greedily keeping those powers only for themselves, and away from Scots. They, along with many Scots, may have been concerned that going too far would have had adverse effects for Scottish representation in the House of Commons (especially without a solution for the West Lothian Question). There was probably also a fear that the further devolution of power would hollow out the UK by eroding the critical fiscal and political bonds that keep the country together.

     In this light, it is important to note that former Prime Minister Brown spoke of a “stronger Scottish Parliament within the United Kingdom” (not half-way in), and that the total sum of the guarantee’s made by the pro-Union parties paved the way to a future with “a great Scotland as a driving, successful and vibrant nation playing its full part in Great Britain.”

     This, I believe, was as much of a heartfelt declaration as those statements relating to more powers. They speak to the pragmatic belief that the benefits of staying in the UK outweigh the costs, and that Scotland can (as it always has) play a significant role in shaping it. In short, it appears that Gordon Brown believes that Holyrood should be more powerful within the UK and that the UK should be able to work as a country for all of its constituent parts.

     This situation is probably better explained in section 2.1.1 of the command paper, which stated:

“The United Kingdom (UK) has a strong and successful economy because currency and monetary policy, taxation, spending and financial stability policies are coordinated across the UK. If one part of the UK faces an economic challenge – from a fall in tax revenues, pressure on public services or a temporary increase in unemployment – the impact and the cost is shared across all parts of the UK. This is achieved by the UK Government pooling and redistributing tax revenues across the UK to ensure sustainable and secure levels of spending on public services. The implementation of the Smith Commission Agreement, including an updated fiscal framework, must therefore underpin Scotland’s devolution settlement while retaining the existing benefits of the UK.”

     On this last point about an updated fiscal framework, Lord Smith has said that this is the “final interlocking piece of the jigsaw” of the agreement reached by the parties last year. With the ability of Holyrood to set several taxes in a few years, the new fiscal agreement needs to take that into account so that it can be fair for Scotland and the rest of the UK. Negotiations are ongoing, and Lord Smith expects that a framework will be agreed to, for it underpins Scotland’s finances, and therefore is vital for everything else to work, including the use of the new powers.

     Aside from these matters - which may not be settled until early next year - he wrote that the “question now turns to how Scotland’s parties choose to use these powers.” On this point, the pro-Union parties need to begin a massive information campaign to educate the people on what is going to be devolved and how they are looking forward to using those powers for the benefit of the people of Scotland - with an emphasis on moving away from the SNP's constitutional/separatist obsessions, and explaining how they intend to do a better job on bread-and-butter issues such as health, education, and policing than the SNP.

     Indeed, if the SNP's real gripe has been that the British constitution does not work in the interest in Scotland, then after going through all this constitutional rearranging, it should at least try out the new powers that are coming its way and see the results.

     But of course, it cannot do that, because using those new powers may demonstrate that the constitutional arrangements work and therefore deprive them of grievances with which to pick fights with big, bad (evil) Westminster. It may also demonstrate the challenges of having to make tough decisions in the face of economic reality, such as deciding the level of income tax and deciding between winners and losers, which inevitably happens and causes governing parties to lose popularity (i.e,. the reason they moan about “fiscal traps”). Of course, it will be daft to assume that Westminster-Holyrood rows will cease, but as the Daily Record's Torcuil Crichton noted in his break-down of the Scotland Bill, "having responsibility for making difficult tax decisions could change how voters choose their MSPs at Holyrood."

     Either way, it distracts from the independence cause, and the griping shows that the SNP has no interest in making the UK work in some form or fashion. The only, overriding thing that matters is separation, and they need the grievance narrative – the sense of Scotland being treated badly because well...its Scotland – in order to carry that ambition forward, which is why the SNP cannot really be a party of government because its focused on complaining about what powers it does not have, rather than getting on with the powers it already has, and will soon have.

     In this sense, the SNP is not "stronger for Scotland" so much as it is stronger for itself and for the separatist movement, which are not the same as Scotland, and as Iain Martin explains, it may become “apparent to reasonable people that complaining about powers always was cover, created by a party elite obsessed with breaking up the UK.”

     For that matter, “more powers for Scotland” is a bit of a misnomer in my opinion, because Scotland has exercised powers over taxation, welfare, health, and other areas in conjunction with the rest of the UK. The powers were exercised at the UK level and decided upon by politicians representing the people of the UK as a whole for the UK as a whole. The only difference in relation to Scotland is that instead of these matters being decided by and for the UK as a whole at Westminster, they will now be decided by and for Scotland alone at Holyrood.

     In other words, power is not being transferred to Scotland or the Scottish people (who have had these powers anyway with the rest of the UK) so much as it is being transferred from one central authority (Westminster) to another central authority (Holyrood). If anything, as Lord Smith said, there needs to be “improved parliamentary oversight in the Scottish Parliament” and an effort to “make sure decisions are properly scrutinised.”

     Going forward, if the UK is moving in the direction of federalism, there must still be a central authority which is still responsible for governing the UK as a whole. Under such a system, there will be some exclusive responsibilities for a federal UK government, exclusive responsibilities for the sub-central administrations, and shared responsibilities between each level of government.

     With the passage of the Scotland Bill and it becoming an Act of Parliament upon receiving Royal Assent, some shared responsibilities will be born out in the arena of welfare, where the SNP complained that ministers at the Department of Work and Pensions (DWP) could “veto” changes to benefits that Scottish ministers want, despite Holyrood being given £2.5 billion worth of new welfare powers. But, as was said in the Record, DWP ministers in Whitehall “explained that under a joint system, with benefits still administered by the DWP, the agreement of both governments would be needed for practical reasons.” Among the 80 amendments made to the bill on Monday were ones designed to ensure that language regarding the two governments working together were not construed as a “veto” against Holyrood setting policy.

     The Bill also gives Holyrood a formal consultative role in reserved matters such as broadcasting (including the BBC), telecommunications, postal affairs, and energy regulation. In foreign affairs, Scottish ministers will be able to speak on behalf of the UK in EU discussions on issues like fishing and work in conjunction with UK ministers on the UK’s position in such matters. Furthermore, the Bill itself has to be given legislative consent by Holyrood, and on this point, the SNP have indicated that they may refuse consent if Holyrood "loses out financially from the budget settlement" via the updated fiscal framework. With so much riding on the line however, it is in the best interest for everyone to come to an agreement on this.

     Indeed, Lord Smith commented in his Daily Record article that there must be “a continuation of efforts to improve the relationship between the Scottish and UK Governments”, for the constitutional settlement depends on the two working well in everyone’s best interest. This is similar to the interaction between the federal government and state governments in the United States, and may mark another point on the UK’s road to federalism.

     However at this point, with the Vow having been fulfilled (and for further perspective on it, please read this piece by Fraser Whyte), any further devolution and/or constitutional change really needs to be done a UK national basis. The constitution may well continue to evolve as it always has, but needs to be done in a more coordinated fashion, such as at a constitutional convention, where the interests of the UK as a whole and its constituent parts can be well-considered. Perhaps this can lead to a written constitution or at least something more durable, comprehensive, and lasting than the current set of ad hoc and piecemeal arrangements, which include the controversial EVEL (which I have written about here and here) and devolution to English cities and regions.

     In 1787, few (if any) of the signers of the US Constitution were satisfied with the document they signed, and their feelings toward it were probably best summed up by Benjamin Franklin when he said: "I consent to this Constitution because I expect no better, and because I am not sure it is not the best."

     As it was, they went on to make the Constitution work, and over 200 years later, we the American people have strived to make the Constitution work for all us. It is in many ways, still an imperfect document, but nonetheless still aims to create a more perfect Union, while standing the test of time as the backbone of American governance and the guarantor of our democracy.

     In Britain, though more changes may be in store down the line, the British people – whoever they are and wherever they live – should at least try to make their constitutional arrangements work, and focus on achieving better things for the greater good.

Praise the Lords?

     Yesterday marked a truly dramatic moment in modern British politics as the House of Lords voted to delay Prime Minister David Cameron’s government from cutting over £4.4 billion of tax credits to low income families and individuals, which are part of an overall £12 billion deficit reduction plan by Chancellor of the Exchequer George Osborne.

     It’s remarkable because the Lords, the unelected upper house of the UK Parliament, usually does not take a strong stand in the way of legislation supported by the elected government and the lower house of Parliament, the House of Commons. Indeed, the Parliament Acts of 1911 and 1949 stripped the right of Lords to veto “money” bills, and placed a maximum of two years (reduced to one year by the 1949 Act) for the Lords to delay other public bills coming before it. These acts asserted the near-supremacy of the Commons and limited the Lords to providing scrutiny to legislation.

     However, this isn’t to say that the Lords is entirely meaningless, for their ability to scrutinize, hold up, or turn back legislation to the Commons (even if only temporary) is can used as a check on the government and force it to rethink its proposals. This is what happened yesterday during a highly charged and emotional debate in a packed Lords chamber on whether to either allow the cuts to go through, delay them, or block them entirely.

     In the upper chamber, the Conservative Party – which has a majority of 12 in the Commons and therefore forms the UK Government – has the biggest number of peers at 249, but is faced with the combined numbers of 213 Labour and 112 Liberal Democrat peers, along with hundreds of other peers among smaller parties, independent crossbenchers, non-affiliated members, and Church of England bishops.

     Anticipating a possible defeat on the matter of tax credits, the government and people on its behalf warned against any move to delay or block the reductions, saying that along with contravening the Parliament Acts, this would break a 300 year old convention of the Lords not to interfere with finance bills and spark a major constitutional crisis. Professor Vernon Bogdanor, a leading constitutional scholar who was David Cameron’s tutor at Oxford, told the BBC:

     “These rules date back to the end of the seventeenth century and they say that the House of Commons had exclusive financial privilege – that is the House of Lords should not interfere with the financial privilege of the Commons or the power of the government.”

     He further stated that there was “no source” from which the Lords could derive the authority to defy the Commons, where the tax credit changes have been passed by the elected Tory majority. It was simply a matter of the “very fundamental principle, no taxation without representation”, and the Commons he said, was the “only representative chamber that should decide on matters of taxation.”

     However, Labour, LibDem, and crossbench peers defended their actions to table motions to delay or block the cuts under the notion that the cuts were not actually part of a finance bill or primary legislation. Instead, they were enshrined in secondary legislation known as a statutory instrument (or regulation), which according to The Guardian, is not "subject to the same line-by-line Commons scrutiny as legislation, but instead stand or fall on a single quickfire vote." However, by going about getting through the changes this way, George Osborne “forswore the ‘money bill’ exemption” with regard to the Lords, and therefore set it up to be more closely scrutinized there with the possibility of revisions being sent back to the Commons.

     In addition, the opposition and some cross-bench peers believed that they were within the limits of the Salisbury convention, which states that the Lords will not oppose government legislation if it was promised in the election manifesto of the government party.

     This then, leads to crux of the matter. The Conservatives spent the general election promising not to touch the tax credits brought in by the previous Labour government as part of its overall deficit reduction agenda. After the election, Osborne announced the creation of a UK National Living Wage, which would replace the minimum wage (currently at £6.50 per hour), and be gradually raised to £9.00 an hour by 2020. However, tax credits would also be reduced – with the government claiming that the National Living Wage would make up for the lost tax credit income.

     However, as the scale of the proposed reforms became known (that millions of families and individuals would be adversely affected to the tune of an average £1,300) and as there were questions regarding whether the National Living Wage could fully make up for it, opposition and unease increased. People who claimed to have supported the Tories in the election expressed their anger and the feeling that they had been lied to, including a single mother who unleashed her frustration on the BBC’s Question Time. Conservative politicians, including backbenchers in the Commons and Scottish leader Ruth Davidson, as well media pundits also expressed their displeasure and the need to at least find ways to blunt the effect of the cuts for the poorest working individuals and families who are beneficiaries of the credits. The idea of many of their constituents being told around Christmas that their benefits (and therefore a substantial part of their income) would be cut became increasing untenable in Tory ranks, but the reforms got through the Commons anyway.

     However, some peers contended that since the tax credit reforms were not featured in the Conservative election manifesto, they could at least be held up in the Lords for further debate and possible revision under the Salisbury convention.

     Following a passionate debate in the packed Lords chamber, a motion tabled by Liberal Democrat peer Baroness Manzoor to block the cuts outright was defeated. This was a so-called “fatal motion”, which is rarely used since peers are wary about overstepping their powers to throw out legislation from an elected government. However, the Lords did pass a motion tabled by Labour peer Baroness Hollis of Heigham to delay the cuts until the government produces a plan to compensate affected workers during a three year transition, as well as a crossbench motion tabled by Baroness Meacher to decline support for the cuts until the government outlines how it will help those affected by the cuts and responds to research by the Institute for Fiscal Studies, which claimed among other things, that only about a quarter of the income lost via cuts in credits would be taken up by the National Living Wage.

     This was a huge defeat for government of David Cameron and a personal blow to George Osborne, who responded that he would delay the policy until he finds a way to compensate the workers, and wait until his Autumn Statement next month to make an announcement about this. In the long-term however, he said that the events of last night raised “constitutional questions that need to be dealt with” and criticized “unelected Labour and Liberal Democrat Lords” for interfering on a financial matter passed  by the elected Commons. David Cameron’s office responded by saying that the Prime Minister will seek a “rapid review” with regard to the status of the Lords, saying that a “convention exists and it has been broken”, and that it must be restored to ensure that ensure that the Commons has complete primacy on finance issues.

     Other Conservatives made similar comments in expressing their outrage and fury towards the Lords, but some people who opposed the tax credit reforms appreciated the actions taken by the Lords, including some of its critics who believed that the chamber needs to be reformed into an elected body or abolished outright. Many commented it was good to see the Lords actually proving to be useful, while noting that it was sad that it took the unelected body of Parliament to force a climbdown by the elected government on this contentious, controversial, and quite personal issue.

     However, SNP members and politicians (including First Minister Nicola Sturgeon), never to be satisfied with anything the “Westminster parties” do, expressed criticism against Labour peers for abstaining on the Liberal Democrat motion to kill the cuts altogether. In response, Labour people said that their peers abstained because the “fatal motion” would have meant that Osborne could have just brought the cuts back again, and that delaying them to extract protections for those affected was more effective.

     Another reason for not passing the “fatal motion” was that it may result in a Conservative retaliation whenever Labour returns to government. To this, some Nationalists said this showed why the Lords needed to be abolished and replaced by an elected chamber that can actually take action without constitutional concerns, but as this is a more long-term concern and would not do anything to help those to be affected by the proposed reforms, it made more sense from a Labour perspective to do something that would force Osborne to think again, rather than do something that may have turned out to be ineffective and quite potentially overstep the power of the Lords more so than the delaying motions did.

     In many ways, this showed how the SNP is obsessed over constitutional arrangements they don’t like, rather than working within the existing system in the here and now to achieve positive outcomes for the day-to-day lives of their constituents. Certainly some of their members don’t seem to understand the intricacies of parliamentary procedure and strategy, for process matters as much as principle and the latter cannot be achieved without the former. Instead, they prefer to just wanting to tear things down and not observe necessary processes (and of course, having another go at the Labour Party for being “Red Tories”).

     One personal I interacted with said that along with “lack of principle”, the UK has a problem with process and tradition, as if to say that they get in the way of governing or taking certain actions. However, process and tradition are some of the things I admire and respect about the UK. Yes, they may perhaps be archaic, but they give character to the country and make it stand out – mostly in a good way, I might add. Many people look at such processes and traditions, and think, “Yep, that’s how the Brits do it”, and say it in a positive light because that’s simply how things have been done going back hundreds of years.

     That being said, there is always room for reform, and indeed, the British system has reformed it time and time again through many changes over the centuries – some revolutionary, others for more evolutionary and gradual. The monarch is no longer absolute, but constitutional; free elections are regularly held to Parliament with a universal adult franchise, as opposed to elections by the propertied elite; and the Lord’s are limited to a revising and scrutiny capacity, as opposed to an outright and perpetual veto.

     On this last point, yesterday’s developments showed how the Lord’s can be useful in these roles as a check on the government of the day, and it seems that people on both the left and right agree. Stephen Bush of the left-leaning New Statesman tweeted that it was “not a constitutional crisis for the Lords to return to sender. It’s just the constitution.” Adam Tomkins, a Glasgow law professor and Conservative candidate for the Scottish Parliament next year also tweeted that “it’s the House of Lords’ job to scrutinise legislation. That’s what they did today. It [would] be a constitutional crisis if they didn’t do it.” Conservative writer Tim Montgomerie of The Times emphasized in a tweet that the actions of the Lords had more to do with giving MP’s time to rethink, especially considering that "tax credits weren't specified in [the] Tory manifesto", and that for this reason, democracy was not "being undermined." Meanwhile, in relation to politics north of the Tweed, Kevin Shoefield of PoliticsHome.com commented on Twitter that the Lords “does a better job of holding the executive to account” than the SNP-dominated committee’s at the Scottish Parliament (and many others on and off social media expressed similar sentiments).

     Nevertheless, the Lords still attract controversy for being viewed as not much more than a gravy train for former politicians and party favorites – a symbol to some people of a self-serving elite and of Westminster decadence and corruption. Furthermore, while there were expressions of pleasure and even "high-fiving" with the way the Lords acted yesterday, those who did so may not be pleased tomorrow if they are on the losing side of an issue taken up by the unelected body.

     Of course, the reality is that the House of Lord’s does have many people who take their membership seriously and actually work hard. There are elder statesmen who actually bother to read legislation (as they did in their previous political life) and serve to question the agenda of the government and provide counsel for particular areas of public policy for which they have a specialty.  There are also many others from all walks of life who also bring particular qualities and experiences to the upper house, and help to guide its decisions.

     Given what happened yesterday, it may very well be that the Lords acted as it should have done in scrutinizing legislation and turning it back to the Commons for revision, and that fears of a constitutional crisis are overblown. However, reform may be needed to make the Lords more legitimate in the eyes of the British public and therefore more able to take the kind of stands as it did yesterday.

     Among other things, perhaps there should be reform of the nominations process to the peerage, so as to reduce the use of Lords as a reward for party hacks and donors, and to encourage the nomination of people who can bring valuable skills and expertise in the Lords. In addition, there should be attendance requirements to ensure that peers are active in their job, as well as limitations on expense claims to prevent abuse of the system. Even more boldly, it should not be outside the realm of possibility for the Lords to represent the nations and regions of the UK on an equal or near-equal basis, in similar fashion to upper houses in Canada, Australia, and the US, where such representation gives constituents parts – particularly those with small populations – a greater sense that they have a role on running the country on the same terms as the larger areas. This, and perhaps eventually, a partially or entirely elected House of Lords would give the ancient upper chamber a more firm legitimacy in the eyes of the public and allow it be a more effective and meaningful body.

     For now though, the Lords will continue to operate as it has, and if the developments over the tax credits leads to long-term and positive constitutional reform, then that can only be good for British democracy going forward.