Constitutional Niceties

by Ken Gibb

In the week when we will find out the precise date of the independence referendum I wanted to air a couple of constitutional niceties that don’t seem to get much coverage. I am by no means a lawyer, nor do I not think of myself as being particularly a traditionalist. I do however think there is something wrong or at least inconsistent in two of our recent constitutional reforms affecting Scotland – in at least how the State has gone about making those changes. The two cases in point are: Scottish tax-raising powers and the proposal to allow 16-17 year olds to vote in the referendum (and tacitly accepted by both UK and Scottish Governments).

The 2012 Scotland Act that emerged from the ‘unionist’ parties (and originally the Calman Commission) did some good things, for instance, (a) providing some additional tax devolution of new taxes such as the replacement of Stamp Duty Land Tax with what will be a Scottish Land and Buildings Transaction Tax; and, (b) opening the door for the Scottish Government to borrow for capital purposes (though limited as a share of annual budgets and subject to Treasury controls).

However, I always thought that the decision to devolve a large chunk of income tax collection and widen the devolved income tax raising powers, while fine in substance, was something of a constitutional anomaly.  It is true that the old 3p tax varying powers were in all probability redundant. During the 2007-11 Minority Government, John Swinney admitted to the Scottish Parliament that he had let lapse the 1997 referendum powers for the Scottish Parliament to vary income tax by 3p in the pound (these powers were never used though the SNP had briefly considered using the 3p in the pound a some kind of national substitute to replace the council tax – though wisely quickly dropped the idea).

The new system enacted by the 2012 Act will work as follows: the HMRC-levied UK income tax rate in Scotland would be reduced by 10p in the £ at each income tax rate and the new Scottish rate will be added to the now lower UK income tax rate. The Scottish Parliament will be able to choose to levy the same UK overall rate (i.e. by levying the rate at 10%) or could choose to increase it or reduce it, with consequent effects on public finances and (allegedly) economic behavior.

My point is that there seems to be a fundamental asymmetry here. The original tax varying power was created by a referendum and therefore would appear to possess a superior constitutional weight or authority relative to normal legislation. But it was in 2012, nonetheless, swept away by Westminster legislation that gave Scotland the new powers identified above. The Welsh voted against tax-raising powers in 1997 but of course are now considering greater powers for their Assembly. How should decisions on their constitutional position over fiscal powers be determined? Enshrining a constitutional power by dint of a referendum and then replacing it  (with different powers) by parliamentary legislative process – does seem at the very least to be inconsistent.

Turning to the voting age – I have no problem with 16 and 17 year olds voting but I do think it is a major constitutional electoral reform and to pilot it as part of a critical referendum on the constitution prior to any learned commission or substantial debate about the issue seems like fairly opportunistic deal-making and establishes precedent with no prior way to test the idea (e.g. in local or European elections). How committed are UK politicians to 16-17 year olds voting in all elections in the future?  It is a strange way to modernize constitutions.

Don’t we need a proper consistent basis for determining how we change constitutional practice? We may or may not need a written constitution (an issue for the status quo, a more federal UK or for an independent Scotland) but surely prior to that debate we need a consistent way of settling how substantive changes to constitutional relationships are to be done, taking account of the basis of previous decisions? Reading the London press you would think this was a purely UK-EU debate but it applies a little closer to home too.