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CORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 371- i v

House of commons

oral EVIDENCE

TAKEN BEFORE THE

POLITICAL AND CONSTITUTIONAL REFORM Committee

Do we need a constitutional convention for the UK?

Thursday 4 October 2012

Willie Rennie MSP

nigel SMITH and PROFESSOR JAMES MITCHELL

RUTH DAVIDSON MSP

JOHANN LAMONT MSP

Evidence heard in Public Questions 179 - 295

USE OF THE TRANSCRIPT

1.

This is a corrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.

2.

The transcript is an approved formal record of these proceedings. It will be printed in due course.

Oral Evidence

Taken before the

Political and Constitutional Reform Committee

on Thursday 4 October 2012

Members present:

Mr Graham Allen (Chair)

Sheila Gilmore

Andrew Griffiths

Fabian Hamilton

Mrs Eleanor Laing

________________

Examination of Witness

Witness: Willie Rennie MSP, Leader of Scottish Liberal Democrats, Scottish Parliament, gave evidence.

Q179 Chair: Welcome.

Willie Rennie: Thank you for inviting me.

Chair: I think you know why we are here. We are looking at the case for a constitutional convention, obviously in terms of the issue of what is going to happen before, during and after the referendum campaign. Today we are asking each of the parties and some expert witnesses for their opinions, comments and a general chat to try to understand these issues a bit more and whether there is in fact a feeling, among the political parties and others, that it would be useful to have a constitutional convention, and timings, content, before or after the referendum, who might be on it, what it might do and how it might work. This is a very general opening salvo from the Committee. We are going to be on this, I suspect, for three or four months.

Willie, did you want to say something to start us off, or do you want us to jump straight into questions?

Willie Rennie: One of the frustrations-as I am sure that Sheila recognises-is that in Scottish politics we have a passion, to a greater or lesser degree, for constitutional change. It has previously been described as the democratic deficit. We have moved on from that now but there is still a desire for a further change and we, as federalists, are hoping for that change. We want the Scottish Parliament to be able to control much more of its own destiny and have more control of its own finances, and we have a report coming out at the end of October, which will set that out in a bit more detail, under the chairmanship of Menzies Campbell.

The big missing link in all of this is the same passion and desire for change in England and, as much as we want it, in order to get a truly federal system we need to have change south of the border in terms of that passion. There is some desire and partly it is a reaction to what is happening in Scotland-"Why do we have these Scottish MPs running their affairs?" That was always the accusation that I would get, as well as: "Why are you interfering in our education system when we have no influence at all over yours?" So that is the kind of start. It is not a positive thing; at least it is something that indicates that there is perhaps some degree of support for change, but it needs to go much further than that.

I suppose the way that I would put it to the English voter is that if they are content for the whole of the UK to run their affairs then that is fine. It is up to them, but if I was them I would want the change. I would want their democratically elected representatives to control their own domestic affairs, whatever form that is, whether that is an English Parliament or regional assemblies and parliaments below that. I recognise, having lived in Cornwall for a few years, the difficulties with that in terms of regional identities within England. As long as people do not grasp that issue then we will continue to have that problem and, therefore, we will not get the further change that people like me desire. I think that is the big missing link and it is how you inspire that, which I am sure you as a committee are trying to get to.

Q180 Andrew Griffiths: Thank you, Willie, for a very interesting way to start the debate. We are looking at the constitutional convention. Clearly it is something that is exercising our minds. Everybody’s mind in Scotland is exercised about the referendum. Until the referendum has been settled, do you think it is feasible or worthwhile to engage in these discussions, to talk about a constitutional convention, or indeed press ahead with a constitutional convention?

Willie Rennie: I think you should do it beforehand. The Scottish referendum is actually an issue for the whole of the United Kingdom. Even though they do not have a vote, people should have a say because it means the future of the United Kingdom is about the continuing existence of it as it currently stands, so there is an important role for people throughout the UK to have a say about what they want the UK to look like in the future. I think the referendum will be a good opportunity to inspire greater interest in the run-up to that, because there will be debates throughout the UK, I would imagine, on television and in the newspapers, about the Scottish issue. That is a great opportunity for a constitutional convention to try to shape that for the wider UK interests and look at some of the more detailed rather than just the superficial stuff. So, yes, I think it should be done beforehand.

Q181 Andrew Griffiths: Do you think that work before the constitutional convention could proceed if one of the regions of the UK or one of the political parties in the UK decided not to take part in that debate?

Willie Rennie: You should not have a lowest-common-denominator approach to these things. If you wait for everybody to come on board then you might be waiting forever. I would hope everybody would come on board, and if people who perhaps might be reluctant to join in see that other people are moving ahead anyway that might encourage them just to realise this is where the show is and they should be participating. I think you have to show intention and desire and, with a bit of luck, everybody will come on board. I think it is really important. This is not a final decision-making body. This is really about engendering a debate, because ultimately Parliament would have to decide and the people would have to decide if you did go to a referendum, which I am sure will come. It is about stimulating a debate, and you should not allow anybody to stop that debate from happening.

Q182 Andrew Griffiths: You used the word "passion", people in Scotland are passionate about, I think you said, constitutional change.

Willie Rennie: Maybe they do not talk about it in the pubs, but yes.

Q183 Andrew Griffiths: Do you think that Scottish people are passionate about the Union?

Willie Rennie: The Union is an odd word just now because it has been described in negative terms. The Nationalists tried to remind people of the Empire and all the negative aspects of these things, but the United Kingdom, partly through things like the Olympics, can do things pretty well. When people think about the good things, the United Kingdom can inspire some passion but probably not in a political sense, but probably in softer terms, for example, family, in relation to the army, because the military is very important. The recruiting grounds in Scotland for the military is quite strong so that engenders some passion and belief, but it is probably not in the terms that we would like it to be passionate. So, yes, it is there in some cases.

Chair: Sheila, and before you start thank you for letting us come to your place.

Fabian Hamilton: She could have refused.

Q184 Sheila Gilmore: That is right, yes indeed. That is the good bit about representing the historical bit, as far as the political bit-if I could slightly follow that up. Is there a danger that the debate in Scotland is conducted in such a way that it excludes the rest of the UK, and is that a problem in getting interest in it? It is quite sort of negative. You mentioned the negative associations of the Union, but there is also the negative chippiness that perhaps has grown in recent years, the bit about people complaining endlessly if some poor BBC commentator happens to use the word "English" when it should be "British" or whatever, and people get very agitated about that. Is it a negative interest or passion, and does that have an impact on the rest of the UK?

Willie Rennie: It can be negative, and it varies from person to person. Some people view Scottishness as purely a positive thing and some people view it as anti-English, so it varies from person to person, but I think it is our role to try to shape it in a positive way, to try to lead the debate. Therefore, I think it is important-going back to that last point-about making sure that people across the UK feel comfortable about participating and they are not put off by accusations that, "This is our decision", and claims that, "This is just ours" because it is a wider debate. Even though they do not have a vote they should have a say in what happens. I did a recent contribution for The Times to say they should say what they like about Scotland and what they like about the United Kingdom. It is almost an Eric Pickles love bomb-type approach. There are a lot of people in England, from my experience, who have a great passion, desire and affection for Scotland, but I think the Scots need to hear that.

Therefore, I think that would perhaps help deal with some of those issues about the superficial football, sporting TV mistakes that people make because they may be London-centric. I do not know if that answers your question or not.

Sheila Gilmore: We are very sensitive, but then the other side of that sensitiveness is that other people’s backs get up as well, so you are not having that conversation.

Q185 Chair: I do not know whether Willie will want to comment on this, but it is something I feel. I feel that the media and the political classes are very London-centric, and I am speaking from my city of Nottingham.

Willie Rennie: Absolutely.

Chair: We talk about the Olympics, and sometimes you think, "Those London Olympics were very good". They weren’t the UK Olympics very often. I think that is an interesting point about expressing that opinion, and also letting people in the Union know that we are really thrilled to bits that we are all part of a union and we all bring a lot to the party.

Willie Rennie: One of the real dangers-just to follow up on that point-is that the only voices that we hear in Scotland commenting on this debate are the extreme voices, people who are perhaps the English Democrats or whoever, who might say, "You are subsidy junkies. We want nothing to do with you, so just leave". That is what we think the rest of the United Kingdom thinks, so moderate, reasonable, sensible voices should be speaking out and we should encourage them to do so. They are exactly the people who might feel sensitive about doing that because they do not want to tread on a debate that is somebody else’s. That is why I think it is important that we say loudly and clearly, "Yes, participate", and the constitutional convention might be a way of allowing that to happen.

Q186 Sheila Gilmore: The leader of the Welsh Liberal Democrats told us, "It is essential that any convention establishes a durable settlement that provides not just for the existence of the devolved parliaments, but makes possible for them to accrue greater areas of responsibility, especially over financial powers". Would you agree with that statement, and should it be the starting point of a constitutional convention? I suppose that is how you make a dynamic constitution, not just a static one.

Willie Rennie: I just want to get it clear. She was saying it shouldn’t just be about UK-wide reform; it should be more within Wales and the devolved Assemblies?

Sheila Gilmore: I think how you can grow that from where you start so that it becomes a more dynamic settlement not just a fixed settlement. A constitutional settlement could be a constraint in some respects, but people in the different parts of the UK clearly hold different points of view about what powers they want devolved.

Willie Rennie: It should be a once and for all decision. You are absolutely right, and she is right about that because these things are a gradual process. We started off with just the Scotland Act 1998. Now with the Scotland Act 2012, which gives us more financial powers, we want to move a bit further, even further than that. These things evolve over time. However, it is important for people to understand what roughly the end point is and what it looks like. If you continually just say, "It is a process ultimately that leads to independence", it never ever stops because people want more and more, forever more. In terms of just setting out a picture of what we want it to look like, then, in principle, yes, I agree with what Kirsty is saying, because these things have to develop over time, and we are probably not quite ready for some parts of the UK to have the final decision made absolutely now through a UK-wide constitutional convention.

Q187 Sheila Gilmore: Can you ever force more powers, devolution or whatever, on people? Is that ever going to work, or do you have to wait for that to develop?

Willie Rennie: It is very important, because you have to get ahead of the debate a little bit and encourage people to come with you by explaining what it means. It does not mean you always have to follow exactly where people are at. Sometimes you have to challenge, fight and contest to make sure that the debate moves on. You can never really force it on people, but it is one of these organic processes and you will get people who want much, much more arguing much more vigorously in order to change that debate. When we set up the Parliament in 1998 we probably would not have recognised some of the powers we are now getting for the Parliament, and you would probably think that was not reasonable. Before the Parliament was created, people would have thought the stuff we are talking about now was rather crazy. It is one of these things that has to be gradual but you have to take people with you.

Q188 Sheila Gilmore: Although the irony is that even here in Scotland most people seem to be blissfully unaware that additional powers are on their way. It is one of the best kept secrets of constitutional change, it seems to me, that the 2012 Act has gone through with hardly any fanfare of any sort. I do not know whether it became too parliamentary or it did not involve people in the same way as previous attempts, because there are quite extensive new powers. Some of the debate is about, "We need more powers, we need more powers", and actually some already are quite in force, but why is it-

Willie Rennie: Partly because I don’t think there was enough of a contest about it. Almost everybody agreed, apart from the Nationalists, who tried to rubbish it the whole time, so that is probably part of the reason for that. It was a little bit too easy to get the powers through, so there was no great big debate. I think that is probably part of it. But, yes, I think you are right, a lot of people are not aware of what is coming.

Q189 Sheila Gilmore: So you think the debate for the constitutional convention should be livelier?

Willie Rennie: It has to be like that.

Q190 Chair: Willie, I will go back to a point you made in your opening remarks, if I may. It was almost, "It is about time the English got up off their backsides and started asking for progress".

Willie Rennie: I did not quite put it that way.

Chair: Well, I am going to put it that way. From your perspective, how do we overcome that fatalism that there is in England that Whitehall rules and local government is the agent of the centre? Are there lessons to learn? Is there advice you can give? Are there ways forward on that one? We all used to talk about the Northern Irish question and the Welsh question, but we are now just talking about the English question, really. You talked about the federal set-up. How do we make progress on that?

Willie Rennie: I wonder whether it is connecting it to the wider parts of life that mean things. For instance, culture and sport and local identify is probably part of it. How do we make sure that, for instance, the Yorkshire identity is kept strong? How do we make sure that we get a lot of things that Westminster just does not understand? It is that kind of approach that I think can work. It is broadening it beyond the purely political decision-making into things that mean something to people, and then just reminding people that the rest of the UK is deciding for them and if they want to change that, then they need to embrace this change.

Q191 Mrs Laing: Willie, it was interesting to hear you say-and I do not disagree with you-that the idea of a constitutional convention is about stimulating the debate. You have just said, and Sheila said, perhaps the reason why the media have not properly publicised what the most recent Scotland Act has done, in terms of further devolution of powers for the Scottish Parliament is that there was no debate. It was not controversial enough. Looking at it from that angle, would you say that the Scottish constitutional convention of the 1990s had a particular political agenda in stimulating the debate?

Willie Rennie: Yes. I think it is probably different from the constitutional convention you are talking about. The constitutional convention then was not parliamentary because in the absence of a parliament, you created a voice, a platform, a group, a forum for discussion. It was in reaction to the Conservative Government at the time who were resisting change. There was a political consensus. There were parts of that period where there were very few Conservative MPs-sometimes none, I think.

Q192 Mrs Laing: Let us be fair and be honest about this; there were none.

Willie Rennie: We strive to be fair to our coalition partners.

Fabian Hamilton: You are being diplomatic.

Willie Rennie: It was a kind of proxy voice for Scottish political opinion, which included the churches and the trade unions and so on as well, so it was an extra forum that allowed us to just express that view. It was practical in terms of developing the model, but it also allowed that kind of expression of Scottish opinion against the resisting Government in London, so it was multi-faceted. It helped with that debate that already existed, but it almost professionalised it. It formalised it. It filled a space that was a real intellectual challenge to the Conservative Government because it came up with a proper model that was well worked out and agreed across the political spectrum. It was much more difficult for them to resist and helped to create the model for when Labour came into power.

Q193 Mrs Laing: Indeed. Thank you. That is a very helpful description. I wanted to ask you that because our Committee here is not only the people who are in this room right now and, as the Chairman said, and others have said, like yourself, in other parts of the United Kingdom there is not always an understanding of what has happened here in Scotland and how the constitutional settlement has developed, so thank you for describing that. That is helpful. If we were looking now, as we are, at the possibility of a constitutional convention, would you say that it would not be the same kind of constitutional convention as occurred here in Scotland in the 1990s?

Willie Rennie: Yes, because I am not sure who the resistant body is to change, apart from the invisible establishment that resists most change when the chips are down, like if it were AV and such things that people are strongly in favour of. I will come to that in a second because one of the biggest issues that we have is dealing with the resistance to all change. But I think it will be different. I think it will be more of an inclusive body that probably includes the whole spectrum of political opinion. There is not something to fight against in the same way as Scotland was fighting against it.

Q194 Mrs Laing: It would be different?

Willie Rennie: It would be different.

Q195 Mrs Laing: It might be using the same description, the same words "constitutional convention", but it would not be the same as the constitutional convention that achieved what it did here in the 1990s?

Willie Rennie: What it needs to avoid doing is just simply being an administrative, tidying-up exercise. It needs to become something that has a bit of passion about it.

Q196 Mrs Laing: That is helpful. We are beginning to get a bit of colour in the description now. Thank you for that. I think that is very helpful. Do you think then that such a convention should look, for example, at the possibility of creating a written constitution?

Willie Rennie: Yes. We are strongly support a written constitution, and if you are looking for political change, that would be part of it.

Q197 Mrs Laing: Yes. I would take issue with you about resistance to change in general as opposed to resistance to very particular change of a very particular kind, but this is not the place to go into that. Given that you identify resistance to change as one of the catalysts for creating interest that then brings the matter to the public’s notice, if there was a possibility of a written constitution and there was some resistance to that, would that be likely to make the workings of a constitutional convention more interesting to the world in general?

Willie Rennie: It is beyond the actual technical aspects of this thing. It is much more about what do, primarily, people in England get out of this; "What is in it for me? Why should I care about this?" It is much more the other aspects of life, sport, culture; "Why is my area not getting listened to? What do we need to change in order to get a better deal for me in my patch?" I think those are the kinds of things that will inspire people that just simply a written constitution won’t do. As much as I would love people to get passionate about a written constitution, I don’t think it will happen.

Q198 Mrs Laing: Doesn’t everybody? Doesn’t every MP, or indeed every elected representative of any kind, always think that they have to push for the people in their patch?

Willie Rennie: They do, yes, and that still happens.

Q199 Mrs Laing: It doesn’t matter whether you are in Scotland or whether you are in Essex or whether you are in-

Willie Rennie: But it is the degree of scrutiny that you get, and prominent scrutiny that you get, if it is just all within one single United Kingdom Parliament. We debate a whole range of issues in much more detail in Scotland now than we ever did pre-devolution and it gets much greater prominence as well. It is not just subsumed into the UK-wide debate. That scrutiny is one of the great benefits to the Scottish Parliament, and I think the rest of the UK would benefit from exercising the same degree of scrutiny. It is not more government; it is just better government.

Q200 Mrs Laing: I take your point on that. If there were a convention, given that it would not be the type of body that we talked about in Scotland in the 1990s, who do you think should decide its terms of reference?

Willie Rennie: I suppose it comes back to Andrew’s earlier point about who do you include. Answer: as many people as possible. You want the terms of reference ultimately to be decided by Parliament so it has the authority, but you want widespread inclusion in the debate about what the terms of reference are, so all the political parties right across the UK, trade unions, the churches and anybody who has an interest are included. It is probably achieved through a consultation process, but you probably need something a wee bit more than that in terms of a key stakeholders’ gathering to form the terms of reference so you can get some kind of commitment from them to really commit to the debate so it is not just superficial. Consultation exercises are a bit process driven, but you could have some kind of stakeholders’ gathering that avoided that. Ultimately, I think the Westminster Parliament would be the best place to give the endorsement so people could recognise its official status.

Mrs Laing: That is very helpful. Thank you very much.

Q201 Sheila Gilmore: I am anxious to know what Willie thinks on this. We are very good at creating myths in Scotland, and one of the myths is that the constitutional convention was the greatest grassroots organisation that ever was. Do we exaggerate that, and was its strength that it coincided with a much wider and stronger mood? In essence, you could have described it-and I think people did who were opposed to it-as simply the chattering classes even then having the conversation among themselves, and the churches, the trade unions, voluntary organisations, and some but not all of the political parties clearly were involved in that. What made it a power in the end? Was it the constitutional convention itself and the way it worked, or was it that it coincided with a mood? Which created which, I suppose.

Willie Rennie: Yes, I think you are right. The way I described it earlier on is it gave a professional, formalised edge to a movement that had developed, a feeling in the community and a passion from many Scots who felt that something was wrong. It provided a counter to the Conservative Government at the time, which was able to put in formalised terms exactly what this movement really felt and think. In that sense it provided an extra element to it, but it did not create the movement; the movement was there already. I think you are right; what you are saying is correct.

Q202 Chair: Picking up Eleanor’s train of thought, one of the things that we could do is to have something between all the parliaments and assemblies now, and that structure exists. One of the reasons I have been pressing this particular issue is because I believe the Westminster Parliament should have a view. Rather than wait for what the Government does or what media pundits come up with, there should be a very strong parliamentary interest here. Working with the Welsh Assembly, with the devolved settlement in Northern Ireland and the Scottish Parliament, parliamentarians might collectively flex their muscles a little bit rather than just wait for the Executive to give us pointers on this. Does that make any sort of sense?

Willie Rennie: Yes, it does and I have seen encouraging developments. Probably the Whips get a bit exercised by these things, but I have seen encouraging developments since I left in 2010. There is a stronger backbench feeling, an independent mindedness of Members of Parliament, something I have noticed from afar, and Alistair Carmichael, our Chief Whip, I am sure is very concerned about the development.

Q203 Chair: That is always a good sign. I think you are looking at it, actually. Every member of this Committee, in fact every member of every Select Committee is now elected by their own party groups in a secret ballot, which is very difficult to influence, as we know. The Chairs of Select Committees are now elected by the whole House, every Member. It was unheard of when I was in the Whips’ office. We used to decide who was going to chair Committees.

Willie Rennie: It was done properly when you were in charge.

Chair: I used to decide who was going to go on a Committee and that was entirely to support the Executive interest over the legislative interest, so that is why-

Mrs Laing: Sometimes it was an honour and sometimes it was a punishment.

Fabian Hamilton: Yes, that is right. Good point.

Chair: But I think, unlike the era of the Scottish convention, we perhaps do now have an opportunity to do something collectively as a set of legislatures together in these islands, which is a unique opportunity.

Q204 Fabian Hamilton: Nice to see you again, Willie. I know we are running out of time. I will be brief.

Willie Rennie: No, that is okay.

Chair: No, we have plenty of time.

Fabian Hamilton: Following on from what Shelia said, how did the Scottish constitutional convention actually enthuse people? We have heard about the make-up of it, and whether it was just the chattering classes talking to themselves, but in the end the referendum in September 1997 was overwhelmingly in support of a Scottish Parliament, and I just wonder how people were engaged. Was it because they already wanted the Parliament and this was a momentum that could not be stopped, or was it because, in some way, the convention got to people who would not otherwise think about it?

Willie Rennie: You are getting into territory that is a bit before my time, I am afraid. I lived in Cornwall for a little while during some of the period they conceived the convention. I think before that I was in education so I wasn’t heavily involved in the constitutional convention. From what I can observe, it brought that professional informal edge to the movement that already existed, so that is why this constitutional convention would have a different role in making sure that it partly stimulates the debate rather than just formalising a movement that already exists.

Q205 Fabian Hamilton: Do you think that you always have to have a referendum after any constitutional convention? Is that vital?

Willie Rennie: No, you don’t always have to. It depends how radical and far-reaching the change is, but you don’t always have to have it. I think there is some change that you can have that does require it. What I would like to do would probably require a referendum. If you were to create a separate democratic structure for England, and then a federal parliament with a written constitution with proportional representation, a man of his words, I think you might just need a referendum for that.

Fabian Hamilton: I think you might just, yes.

Willie Rennie: But you do not always need it. I do not think, for instance, further powers for Scotland would need a referendum, because we had the referendum in 1997, we did not need it for the Scotland Act 2012. There have been other changes in between as well when real powers were transferred. We did not need a referendum for any of those things, so it is already-

Q206 Fabian Hamilton: So devo-max is okay, but anything beyond that-

Willie Rennie: Yes. Don’t get me on to devo-max, fiscal federalism, fiscal autonomy and things like that..

Fabian Hamilton: Sorry-all right.

Willie Rennie: I think you wouldn’t need a referendum for more powers, but again these things are a political judgement. You have to weigh up how far this goes. I do not think you should say all constitutional change requires a referendum because I think you are just tying your hands, given that, to a degree, people might not be concerned.

Q207 Fabian Hamilton: I accept that you were not around at the time or you were not involved so much at the time of the referendum in 1997, which makes me feel my age really.

Willie Rennie: I apologise; I was a bit indelicate.

Fabian Hamilton: But presumably you have colleagues, people in your party, who were involved. I am intrigued because I think one of the problems we found in the early days of the Labour Government, when we were very enthusiastic about devolution-not just to Scotland, Wales and Northern Ireland, but to the regions of England-was that the regions of England were not that interested. That is a huge contrast. I know we have touched on it, and everybody sat round this table today has touched on it, but I am really interested. I represent a Yorkshire seat and there is a strong feeling of almost Yorkshire chauvinism in parts of Yorkshire, a real pride in being a very separate, independent part of England, yet no desire whatsoever for independent government.

Willie Rennie: I think it gets caught up in the question of more layers of government with democratic control. From my understanding of the north-east and north-west, the proposal was not substantial enough. Other people took a different view that it just wasn’t desirable at all and there was no desire for it in England, but I think there was little interest in it because it was not substantial enough. That is my view.

Q208 Fabian Hamilton: So devolution must be almost a repatriation of power, a regionalisation of power that has taken away from the centre?

Willie Rennie: Yes.

Q209 Fabian Hamilton: As long as that is made clear, then you think people will be more enthusiastic?

Willie Rennie: I think so, yes. Not living in England it is difficult to know, but my understanding is that if you offer something substantial and you are sure it is not just more politicians and more committees and more layers of government, I think you get an interest. If you just present it as kind of a start to test the water then people say, "No, not interested. It is just more political talk".

Fabian Hamilton: That is very helpful. Thanks, Willie.

Q210 Chair: I think it may be interesting for people in Scotland to understand that the boats have been burnt on English regionalism, and there has to be another way for England. Another inquiry we have underway is about independence for local government, which I think is quite a specific English thing because of the devolved settlement emanations of the United Kingdom. That may be another way forward, but because of the failure, the lack of progress on regionalism under the Labour Administration-I think the first ballot took place four years after the great momentum around the Scottish and Welsh settlements-and the way in which the current Coalition Government have done away with the regional development agencies and the regional governmental structures, I think people need to know they can’t really look to English regionalism to take this forward. It has to be something else and something home-grown, I guess, for England.

Willie Rennie: There was a great passion for a Cornish assembly when I was down there. It was a very, very small share of the vote, but there was still a wider interest in having more decisions in Cornwall. So I do not think it needs to have necessarily a perfect system throughout England, but I think there is clearly a desire in some areas to have it. You might have different powers in different parts of the country. I don’t think it has to be perfect, but I accept your point.

Chair: It is almost changing the psychology of Whitehall so that it is permissible to do things in a multi-speed way and that civilisation as we know it does not collapse if you have a less than one-size-fits-all solution to these problems. We need to work on that one. Andrew, I know you are interested in the public consultation side of these things.

Q211 Andrew Griffiths: Yes. The phrase we heard earlier this morning was the "chattering classes" and how the previous convention had the great and the good, the churches, the trade unions and some of civil society, but what it did not seem to consist of was a real dialogue with the public. Sheila talked about a wave of enthusiasm, but the convention seemed to just happen alongside that rather than engage with it. I do not know whether you think that is true, but the question for us is how a convention-something as dry as a constitutional convention-can engage with the public and how we do that or even if that is desirable. Do we need to engage with the public in a convention or not and how do we do it? Can we do it through new media? Are 140 characters on Twitter enough to put your views about a convention or not? I wondered if you have any opinions on how we can engage with the public in this exercise.

Willie Rennie: Facilitating the debate with colourful characters is part of it. You need people who are going to be expressing it in a very colourful way that will catch the imagination, so it is almost the reverse of what the Scottish constitutional convention was. It is that kind of facilitating, agitating, provoking organisation, so the nature is different. It can’t be dry. It does need to engender a debate. It is roughly the same issues there, but the nature is different.

Q212 Andrew Griffiths: Do you think that means doing these things on YouTube and Facebook, and all those things that are in place-or does it need to be a proper-

Willie Rennie: You can use all these tools, but the tools are probably not as important as the message and the characters who are involved in promoting that. You need to engage some interesting people from business, charities, churches, politics who are going to try to bring this to life and paint the picture of what it means, and then you might get more of an interest. But it is partly top down, and partly pulling out some of the feelings that are randomly felt throughout the United Kingdom about these kind of things, so it is probably more of a campaign in some ways than it is a convention. It still needs to have a formal element to it, but you just need to approach these things differently, because I think the feelings are there. There was a poll recently that showed support for Scottish independence in England was higher than it had previously been. That shows there is an interest now in constitutional issues so that is something I would support. It is showing that the Scottish debate is having an effect elsewhere, and that is why you should use the Scottish referendum as an opportunity to have that wider debate. You can’t leave it until afterwards. I think you have to do it before to maximise the opportunity.

Q213 Chair: You talked about part of the drive for greater devolution not just being about what it does for Scotland but in some sense as being anti-English. I think you might be describing the English and this polling data as maybe responding to the question asked with, "Well, what do we care about the Scots?" rather than, "What does a devolved England look like? What do we want? What powers do we want?" and looking at it in a positive way. If someone from The Sun or a pollster in the street asks you a question, it may be framed in the terms of the prejudice of some description rather than a thoughtful debate about what England itself needs to do. Do you feel that is-

Willie Rennie: Yes, it is about having a deeper debate and presenting it in the much more positive, proactive manner of "What can we do?" If it is a snapshot opinion poll you just get gut reactions. That is what is interesting about the whole Scottish independence debate. As we are getting more and more into the issues, the polls are subtly changing over time. A lot of people say to me they like the idea of Scottish independence, it sounds very complex, but they do not have all the answers. More and more people are saying the latter two bits now. You want people to look at these things in a much more substantial sense, and that is what a constitutional convention could encourage on the back of the referendum.

Chair: Willie, thank you very much. It is great to see you again.

Willie Rennie: Thank you for inviting me.

Chair: It is a really great start for us. Thank you. I hope we see you again. Don’t forget where we live.

Examination of Witnesses

Witnesses: Nigel Smith, Director of VoxScot, strategic advice for referendum campaigns, and Professor James Mitchell, Strathclyde University, gave evidence.

Q214 Chair: We have James here and Nigel. Welcome. It is very kind of you to come along today. It is lovely to see you. I think you know why we are here and what we are doing, but we are looking at the need for a constitutional convention before, during or after a referendum that is going to take place here. I think we will kick off straight away, unless you have anything you would like to say by way of an opening statement. Nigel.

Nigel Smith: I was asked, so-

Chair: Please do, feel free.

Nigel Smith: Thanks very much for asking me; that was the first thing I should say, but I also thought I ought to explain that I am a British decentralist, because I think that gives you a frame of context for my comments. It is a bit unfashionable at the moment, but that is where I come from on this issue.

I think going down the road of a constitutional convention is a very formidable task but not one that should be shirked. I think independence can be beaten but it can’t be crushed and we could have a result that is close enough to make this a really serious political issue in Britain. If that was the case, then the English question would be top of the list. So for me-

Q215 Chair: Is your definition of the English question the West Lothian question or is it English decentralisation?

Nigel Smith: No, it is English decentralisation.

Chair: Thank you.

Nigel Smith: I think we did something very important in 1997. After 100 years of arguing about symmetry, we ditched symmetry and it allowed us to get asymmetrical solutions in Britain, even in England where the situation was regional government and London, so we have asymmetry already within England and I think that is a great gift. It allows us to look to a felt-fair solution for Britain in which we have a patchwork distribution of power and influence, that that is the way we need to go forward. Just to state what you call "one size fits all", for example, there are limitations to the policy of localism because in the end when you come to the use of power in Britain or the infrastructure, all the big things, you are talking about something that localism can’t beat. You do need a power centre strong enough to deal with London.

I also think, as an opening remark, the coalition have allowed the SNP to corner this debate as a Scottish thing. They have to be absolutely clear that devolution was something done to Britain not to Scotland. In that context there is a scope for a full British debate here and the Government aren’t giving nearly enough of a lead on it. The First Minister of Wales has suggested that we have a constitutional convention. I agree with a lot of his remarks but what I don’t agree with is a crash convention as I would call it, by attempting to do this before we know where the political input has to come from. All the lessons about conventions are that preparation is incredibly important for anything like a successful outcome, and I don’t think you have been given enough evidence yet about the range of experience there is across the world. So I think those are the things that interest me.

Q216 Chair: James, do you want to say anything?

Professor Mitchell: The only thing I would say is I think there are many cases that could be made for a constitutional convention and many of these cases have been articulated by different people. One of the questions would be which case, if any, has to be accepted. There is a case for looking at creating a new constitution, codifying the existing constitution, which would create a very different constitutional convention from one that might simply look at the position of England within the UK or Scotland within the UK, or indeed the territories. But the other point I would make, and is a very important point, is that when one starts to look at one aspect of the constitution there are often unintended consequences, there are spill-over effects and I think one of the consequences of the debate in Scotland and the kind of devolution we have is that it had spill-over effects-the unfinished business of devolution that now is being addressed with the McKay Commission for example.

One has to be very clear that if there is a case for a convention, there are many cases that could be made. At the outset it needs to be clear as to which case, what is it actually addressing, because that will then have an impact on who should be involved and so on. As I listen to the debate, I must say I am hearing a great noise and a great number of cases for a convention, but I think that needs to be sorted out before any progress is made.

Q217 Andrew Griffiths: Thank you, gentlemen. First of all I think the key question is, can we press ahead with a constitutional convention without first dealing with the issue of a referendum in Scotland? Do we need to wait until that is settled before we move ahead with the question of a constitutional convention for the UK?

Nigel Smith: From an entirely selfish pro-unionist position I would love you to get on with the convincing evidence that Britain was looking at serious decentralisation. I think that would whip a few points off the nationalist side in a referendum. But as a democrat, I think it is absolute nonsense to be talking about having a convention before we have a decision on independence. As I said earlier about the importance of preparation, you could work from now until then and you would only just have completed the work about what a convention with a decent chance of success would look like.

Professor Mitchell: I think time is against you. I do not think you have time to have a proper constitutional convention before the referendum. The other thing is, coming back to my earlier point, what would that convention look at? Would it be held to look at the constitution as a whole? There are many contentious issues in terms of the constitution, our relations with Europe, the House of Lords. One could go on endlessly and there are many aspects of the constitution that are highly contentious. Are we simply focusing here on the territorial constitution? If so, again that has implications for other aspects. One could argue that House of Lords reform should be looked at alongside the territorial constitution. I was speaking in the Bundesrat just a couple of years ago and there was incredulity that the UK manages to conduct a debate on House of Lords reform separate from a debate of devolution. One can see how these two might be linked up. I am not saying they have to be but there is an obvious way of doing so. Other countries certainly would see it as abnormal.

Again it comes back to my point about the nature of constitutional debates, the spill-over effects and the timing. I just cannot see how a serious convention could be conducted in time for the referendum. It would look as if it is just a quick fix, and that would not be good. I don’t think a quick fix is what we are looking for. So while I can see a real attraction in constitutional deliberation prior to the referendum-and we certainly could do with knowing what the alternatives are likely to be if we are going to reject independence and that would be a helpful debate for Scotland-I am not convinced that it would be feasible for a proper convention prior to the referendum.

Q218 Chair: Is the synthesis of your respective views that you should use this time before a referendum to prepare, develop, what plan A and plan B would be should the referendum go in one direction or the other and then start your consideration of the constitutional convention proper the day after the result of the referendum?

Nigel Smith: That is it pretty well, but I would underline James’ point about limiting the scope for the convention. All the evidence that we have in the modern democracies is that unlimited scope produces all sorts of odd outcomes and heightens the chance of the convention result being rejected in a referendum. So I think the debate about the scope would be an important part of the preparations.

Professor Mitchell: Leaving the constitutional convention issue aside, I think we do need to know if we vote no in Scotland what we are likely to get. We are told different things by different people. I have had senior people of the Calman Commission tell me that that is what we will get if we vote No, but the Prime Minister has said that we will get more powers. It is very unclear and I think that is unacceptable. Just as the SNP needs to clarify what it means by independence, we need to know what we are voting for if we vote no. At the moment, frankly, I don’t know what I am voting for, whether I vote yes or no, and I think as a voter I have a right to be told clearly what I am voting for. The danger is if we vote no and we think we will get more powers and nothing happens, or the opposite in fact. We need some clarity from both sides in this debate, or all sides.

Q219 Chair: Do you feel that the pre-referenda work will be useful to create a menu so that the voter can, hopefully in an impartial way, decide between the two options?

Professor Mitchell: Yes. Ideally we should have other options put to us as well in the referendum. I personally have long favoured-I have advocated this for something like 25 years-a multi-option referendum under which we would have to work out what the options are. At the moment the public in Scotland appear to want more powers, undefined more powers, but that seems to be an option that may not be on the table, or maybe it is if we vote no; we don’t know. So there is a real issue here.

Q220 Mrs Laing: To follow up the very interesting line of exploration that Professor Mitchell has just outlined, how can that clarity be there in a changing democratic situation? This Prime Minister has given certain indications, "Yes, we promise we will do such and such after a referendum", but the referendum won’t take place until some eight months before a general election. If that general election brings about a change of government for the United Kingdom as a whole, then the promise means nothing. I am not disagreeing with what you say, I entirely take your point, but I wonder how can you put that into a democratically evolving society?

Professor Mitchell: What it would mean is that a clear, authoritative voice would be expressed as the Scottish one, and ultimately it would be up to the UK Parliament to determine how and whether they want to respond to that authoritative voice but it would be the Scottish voice. It could be the case that the UK Parliament would ignore that or begin discussions-it would be absurd to think that if the Scots voted for more power that Westminster had to deliver those powers, because most Scots would want to have their cake and eat it. Obviously if you put an option to us that involved us getting everything and giving nothing, people would be inclined to support that. That would be absurd so there would certainly have to be a discussion afterwards, but one assumes that Westminster would wish to take into account what the public had said in that referendum. Given that there is this broad area that currently is not put to the Scottish people, it does seem odd to me that the debate is being polarised. I think that is very unhelpful. I won’t say it is undemocratic, because that terms gets bandied about too much, but I think there is a problem here.

Q221 Mrs Laing: I don’t quite get that answer. In what way has the debate been polarised? Do you mean by the timing of the referendum?

Professor Mitchell: No, because at the moment the evidence from polling would suggest that most people want more powers. That is the favoured option and that is consistently the favoured option, but the question that is being put, or, as we understand, we will be asked is whether we want independence or not. But what is "not"?; we do not know what that is. That could be open to any interpretation. We need some clarification on that. Is it the status quo? It may well be understood as such, in which case it is clearly polarising.

Mrs Laing: Do you want me to come back to this later?

Chair: Would you mind, yes.

Q222 Andrew Griffiths: That is a very interesting debate. Are you suggesting, Professor Mitchell, that there should be more than one question?

Professor Mitchell: It could be either more than one question or more than one option. There are different ways of doing it. You could have a series of options and you could vote preferentially. There are a number of different ways of doing it, but certainly it is not unknown that referendums have more than simple yes/no options, including constitutional referendums. It is not unknown. It is not common, but it is not unknown.

Nigel Smith: There is a long-standing difference between Jim and me on this. I argue strongly against multi-option referendums for this situation, and I think I identified eight or nine in the last 50 years around the whole world. There are practical reasons for this situation, why it should be polarised. I accept James’s point that there is a demand for more powers, but this is not the way to deal with it. I think the way you are approaching is much more the right way.

Q223 Andrew Griffiths: Nigel, if I could come back to your experience. I think you were a member of the Scottish Constitutional Commission, which worked alongside the convention.

Nigel Smith: I was, yes.

Andrew Griffiths: So you have some fairly first-hand experience. I wonder if you could tell us your experiences of the convention; whether you thought it was successful, both as a body and as making the case for a Scottish Parliament?

Nigel Smith: I have to be careful here. The further I go from Britain the standing of the Scottish convention is very high. Inside Scotland you have the other extreme: you have people who now denigrate the work that it did. I am in between. It was successful on a wing and a prayer in the end. If there had been a very close election result, which a lot of us thought was a possibility at the time, it would have been fought tooth and nail in the Commons by the Conservatives, and perhaps by others, and the convention process, which is one of the longest in the world, would have come to nothing. It didn’t. Thanks to people like Kenyon and Campbell Christie and others pushing it, it didn’t. The way that politics turned was the politicians reached for a plan and the plan was the convention, so the first thing was that it produced a plan. But I don’t think they particularly engaged with the public. In fact, I lobbied all three leaders to have at the very least a friends of a convention element, a public engagement programme, and it was turned down, basically. It was a partial elite, which was effective but I don’t think that it engaged the public directly. What it did do was engage the interests of the intermediaries, which are so important in a democracy, and through them a debate got out to 30% or 40% of the population, so in that sense it was useful. I qualify that I think one should understand its limitations.

Q224 Andrew Griffiths: Interesting, because that was the next element I wanted to come on to, which was the public engagement of the convention. Professor Mitchell, I wonder if you could give us your thoughts on that process.

Professor Mitchell: Public engagement was always going to be very difficult for the convention, given its limited resources. But what it did was draw together representatives of a wide range of bodies in Scotland most MPs, MEPs were involved, most local authorities were involved. So in that way as indirect representatives-they were not directly elected-it was a very broad-based organisation. In addition, the churches, the trade unions and so on were involved. Any such body can always be accused of being unrepresentative and not directly elected. I think it was as good as it was likely to be under the circumstances, short of being a directly elected body.

Q225 Andrew Griffiths: You are talking about democratic legitimacy to speak on people’s behalf, but that is not the same as public engagement. I know lots of people who have a democratic mandate who do not engage with their electorate, of all parties. So it is that public engagement that I am trying to pin down, whether that was a success and what are the lessons we could learn from that in terms of having a conversation with Scottish public or the British public.

Professor Mitchell: I have just gone through all the boxes of the constitutional convention as part of a research project, 46 boxes. What emerged for me very strongly was there was certainly a desire to do that, an attempt to engage, but it is not easy to engage the public.

I slightly disagree with Willie Rennie because I don’t think the public in Scotland are passionate about constitutional change. The elites are for sure, newspapers are engaged and such like, but the public are not. The public are concerned about schools and so on, and making the link between constitutional change and having better schools is not easy. It is not impossible, but it is not easy. What you tended to find is that-I won’t say the usual suspects, I think that is too narrow-it was a limited range of people who engaged with the convention. There was an effort. Whether there could have been a bigger effort, possibly so. My view is I think they focused on the right thing-to try to agree a scheme. It had a number of objectives and I think the one that they were most successful in doing was agreeing a scheme of devolution, which in itself was a major achievement.

Q226 Mrs Laing: Can I go back to the point that you, Professor Mitchell, have opened up, which I hope is worth exploring. You were talking about polarisation of the current debate and the demand for more powers, but in terms of who makes the decision about that, isn’t it the case that separation of Scotland from the rest of the United Kingdom would be akin to divorce, which can be a unilateral decision where one party to the partnership says, "I don’t want this any more; I am off", end of story, a complete break? Isn’t the question of the Scottish Parliament having more powers, more tax-raising powers, taking a different proportion of national income from taxpayers and so on, therefore a different constitutional settlement, akin to an ongoing relationship? That cannot be subject to a unilateral decision, it has to be a bilateral or multilateral decision, doesn’t it?

Professor Mitchell: I take that point. I think that is a valid point, although I am not so convinced that independence is quite as black and white as many imagine it. I think there would continue to be fairly close relations. In fact, from the way SNP appears to be going in terms of its definition of independence I am not at all clear what it would involve. Coming back to the question, I take your very important point, but what I am trying to argue is looking at it from a different angle. That is to suggest that if the choice was simply between independence or the status quo, there is a range of options that are not being explored. That means that voters in Scotland who may well find themselves preferring something in between, will either have to not vote or be forced to make a choice that is not their first choice. We have already heard some individuals recently saying they will be voting for independence even though that is not what they want. That strikes me as not a good situation to be in.

Q227 Mrs Laing: I was about to say that is a typical Scottish attitude, but I can say that as a Scot.

Chair: You can say that.

Fabian Hamilton: We couldn’t possibly comment, could we.

Mrs Laing: But it is. Sorry, that was not a very intellectual point from me. The other concerning thing that I was going to ask Nigel about is to what extent this is an intellectual argument and to what extent it is an emotional argument? Is there a conflict there? Were you referring to that sort of conflict earlier on in what you were saying?

Nigel Smith: Are we talking now about the single question referendum or multi-option?

Mrs Laing: I was talking about the general issue of the continuation of the United Kingdom.

Nigel Smith: Emotion plays an incredibly important part in all referendums and what you are trying to do in a referendum is inject facts, consequences, into a public debate. We all know this is a hugely difficult task, but it has to be done. That is why on major referendums I think prior process is incredibly important. The multi-party talks in Northern Ireland is a very obvious example; the super-quarry debate in Harris in the Outer Hebrides where you had two referendums separated by 18 months, and a public inquiry in the middle providing public information; and tax referendums in the south of England, Bristol and so on, where you have had outreach programmes to the public to engage them, to give them information about it. This is a big task in the referendum and it is one of the reasons why I oppose a multi-option referendum, because the practicalities of that are just so damned difficult.

Q228 Mrs Laing: Thank you very much. Can I ask for education from both of you on a matter that I think is not understood in the legal communities and opinion-forming communities either in Scotland or in England. It is a point that Canon Kenyon Wright made long ago, and I will quote him: "There is a fundamental conflict between the Scottish and the English constitutional understanding and traditions". Let me have a go at this. There will be some people who think, "Well, that isn’t a question. Why even raise it?" but is it the case that whereas the parliamentary, democratic and legal tradition in England is based upon the notion of the sovereignty of parliament, the development of legal and democratic thought in Scotland is based on the sovereignty of the people? Are you going to say that you would refer me to several volumes of a book to answer that question?

Chair: Some of us have trains to get to at about 6.00pm, so if you could bear that in mind.

Mrs Laing: It is an issue that is very rarely probably considered, and we have before us two academic gentlemen who know the answer.

Professor Mitchell: I will give an answer from a political science point of view, a lawyer may give you a different answer, and there is certainly I know a great deal of contention around these issues in Scotland in terms of parliamentary sovereignty. My feeling is that when Canon Wright said, "We say yes and we are the people", the implication of that was that whatever was decided for the convention would have to be implemented. The question I raised then was what happens if Westminster says no, and Westminster did say no because at the election in 1992 the Conservative Party won and devolution didn’t happen.

In terms of just pure power politics, in terms of what happened then Parliament does seem to be sovereign. There may be a rhetorical case around the notion of popular sovereignty and it certainly has been part of the rhetoric in the Scottish debate going back 50 years. I have an issue and a problem with that. I don’t see how it’s judiciable; I don’t see how people could challenge it in the courts. Ultimately, as a political scientist, the key concept that I use is power and the question is where does power ultimately lie? In a sense it does lie with the people, because if the people were to vote for independence, then I do not think that could be denied.

A really interesting scenario is what would have happened if the Conservatives had lost all their seats in Scotland but retained a majority at Westminster and all the parties from Scotland had been in favour of devolution and agreed on a scheme of devolution. That is the real question, and I don’t know the answer to that, because ultimately that is what politics is about, power, and how a governing party with no support in Scotland would have reacted. We never got to that position, obviously.

I did write an article 20-odd years ago in which I said that sovereignty should be abandoned altogether; it is unhelpful in constitutional debate. It was slightly tongue in cheek but I increasingly think it might be helpful to get rid of it and bring in ideas of power and where power ultimately lies.

Q229 Fabian Hamilton: On that point, Professor Mitchell, you said that if the referendum was positive and the people of Scotland decided to be independent, that could not be denied. It could be denied because power does rest in the Houses of Parliament in Westminster and Westminster could say, "Well, we hear what the people have to say but it is not clear" as you yourself have said, "what this means and therefore we are not going to allow it". I think it is unlikely but it is possible because that is where power is. What is your reaction to that?

Professor Mitchell: I take that point. That is conceivable but I think it is so improbable that we can set it aside. Theoretically I suspect that could be the case. I would be interested in international reaction and the reaction of other parties. I would be interested in the Scottish reaction to that. I think you would lead yourself into incredibly difficult politics and I very much doubt it would happen, but where the sovereignty word kicks in is what would happen if the Scots were to vote for more powers. That is a tricky thing and I think Nigel’s position in opposing a multi-option referendum has some validity on that point. That is where those of us who advocate a number of options are on our weakest ground because ultimately Westminster could say no. I suspect Westminster-that is you-would be obliged to take into account what the Scottish public had said in a referendum but taking it into account doesn’t necessarily mean you will accept it.

Q230 Fabian Hamilton: Even if it is 50.01% in favour?

Professor Mitchell: Exactly my point, yes. You wouldn’t necessarily have to just accept it.

Q231 Chair: Just to get us back directly to the constitutional convention-

Mrs Laing: Which is exactly where this is going.

Chair: Let me just add one thing. You seem to be moving towards a position that a role of a constitutional convention, perhaps one of many but certainly a central role, would be to more accurately define the background to a question. So if it is yes or no, does no mean status quo or does no mean, once the constitutional convention has explored a no, for example the Prime Minister giving evidence to us and saying, "No wouldn’t mean status quo, it would mean X" so therefore work done ahead of the referendum will help frame the context in which people will vote? Am I summarising it-

Professor Mitchell: Yes, that would be good. I am concerned time is against us in that respect but I think that would make sense. There should be a clear consensus that this would be put to people and a commitment on the part of the various main parties in Westminster that they would implement that in the event of a positive vote for that option.

Q232 Mrs Laing: This is all the same train of thought because Professor Mitchell, in answer to my question about sovereignty, has identified a very important issue. Wasn’t it Lewis Carroll who said, "The words will mean what I say they mean"? I am in an unusual position because I am a Scottish lawyer and so my logical thinking comes from the law faculty of Edinburgh University, and yet my everyday life and practice comes from being a Westminster MP representing a seat in the south of England. I fight this conflict. I realise that most people, even most people in Parliament or most people in the legal world, and certainly most normal people who lead normal lives, do not recognise this conflict, and because I live with it I understand it, and you have identified it very well. I wonder whether you think that a constitutional convention, properly developed, could help to put the conflict into the right context.

Professor Mitchell: Perhaps it could. One of the things that often is the case in these debates is that caricatures are created, and that Dicey’s notion of sovereignty is often represented in caricature form. Dicey was much more sophisticated than, frankly, many people in Scotland are willing to concede. Dicey was obviously an advocate of parliamentary sovereignty, but he also recognised that Parliament would be foolish to ignore the public, and ultimately at one stage he advocated a referendum when he expected that Parliament would take a different view from him on Irish home rule. But Dicey in his earlier thinking was much more sophisticated. I don’t think any parliamentarian in Westminster would ever say that they can ignore the public. That would be absurd.

Sometimes I think the apparent starkness of the difference between parliamentary and popular sovereignty breaks down so that it is perhaps no quite so stark after all. The question, however, is whether there should be a distinct Scottish voice and how authoritative that voice should be in constitutional deliberation.

Q233 Mrs Laing: Nigel, do you have an answer to this question too?

Nigel Smith: I am afraid mine is very basic. When the Pentonville Five were imprisoned by Ted Heath by due process of law during the late 1960s/early 1970s and there was a huge public outcry about this, somehow the state magicked up some kind of official to release them from prison and I disbelieved in parliamentary sovereignty after that.

Q234 Mrs Laing: I suppose that is the exercise of political power. One more issue, which refers back to something you both said earlier, is the scope of looking at constitutional issues all at once, and Professor Mitchell’s point about the reaction of Bundestag is not surprising. Are you aware that a minority of the Joint Committee on House of Lords Reform, which sat for about nine months-it was actually 49% of the Committee-produced an alternative report and I helped to write that? It is not a special feat, but it just happens that I have been involved. It did recommend that there should be a constitutional convention, because the more you look at constitutional issues, as we have been doing this morning, as you do all the time, the deeper into it you go the more-I must put a question. Is it the case that one then finds that the latter cannot be looked at in isolation and that there should be a broader consideration?

Professor Mitchell: Yes, it raises the question that I raised in my paper, just what is a constitutional issue, and there are a variety of answers. Should, for example, the central bank be in a constitution? It is in a number of formal written constitutions today. Should an electoral system be in a constitution? These tended not to be included in written constitutions in the past; but they often are now. There is interesting research on constitutions that shows the more open deliberative constitutional conventions bring more people into the deliberative process and thereby more issues are defined as constitutional. The consequence of that is that these conventions are much more difficult to manage, to reach agreement and the final documents are also much longer. If you want to get a nice lean document then you want to exclude as many people as possible, bluntly. The old elite constitution-making approach-the constitutional convention in Philadelphia was a small of group of people-didn’t have to worry about democratic legitimacy; they got on with their business, they had a very narrow range of options, and they produced what is a wonderful document, but I think that would be inconceivable today in the States or any democracy today.

I am pointing to some of the problems. That is not to say it shouldn’t be tried but I think we have to acknowledge that in modern politics and constitution making we would expect it to be much more open, more deliberative, more participatory. That does give rise to all sorts of issues emerging as constitutional issues and therefore makes it perhaps more challenging to reach agreement, and certainly the document would be longer. I am not saying that is a bad thing, far from it, but I think we need to be aware of that.

Nigel Smith: The Americans have a term for their convention, they call it a runaway convention. In other words, if you are not careful people will just put more and more things on the table and it becomes just impractical. Therefore, I for one would support a limit. Although I am very interested in the European Union and at least half the Members of Parliament are going to go to the next general election with a commitment to a referendum on Europe, if that was involved in this I think it would be a mistake. The scope has to be limited and then you have the problem of saying which issues are in that, but you can’t duck it either because to open it up for a country with a largely unwritten constitution is too tall an order. This is a problem we might have to solve really quite quickly if there was a close result in the independence referendum, a close defeat.

Q235 Sheila Gilmore: What do you think would happen if some political parties refused to get involved in a constitutional convention? Would that affect its legitimacy?

Professor Mitchell: I think it would affect its legitimacy. I think it would be a problem. Essentially constitutions are rules of the game of politics. In that sense I think it will has to be different from everyday public policy. For that reason I also think there has to be broad agreement on the rules of the game. If there is a significant party, whether a political party or other group, that feels that the system is biased against them unfairly then we have a problem. It is always important to do that. The notion I refer to in the paper is the need for ‘loser’s consent’. There are always winners and losers in any constitutional structure. Sometimes people who may not be great winners in this may acknowledge that the process was fair and deliberative, but if you have a major political party refusing to participate then I think you have a problem. The danger is that an agreement can be reached but when that party that has not participated comes back to power then we start the whole thing again. That is not a sensible way of moving forward. So certainly the main political parties would have to be involved.

Nigel Smith: Could I add something to that point? If you have a referendum afterwards, of course a lot of legitimacy is decided by a referendum based on people who might say, "I will accept this partially founded convention", but if that led to an abstention in the referendum, for example one party said, "Not only will we not take part in the deliberations but we will campaign against our members even voting if this does happen", then that really would delegitimatise the result. But if they didn’t go as far as that, then the referendum would overcome some of the problems that James has referred to. There is no doubt that a convention where people are a little more like-minded has a greater chance of producing some kind of workable scheme, but the problem of legitimacy is then transferred to the referendum.

Q236 Sheila Gilmore: James, you mentioned in your written submission that you felt that if you had an elected convention then it would have greater legitimacy than the one that was appointed. How do you make an elected convention representative? Are there ways of ensuring that it would be representative and then, of course, how does it stand in relation to-

Professor Mitchell: I am not necessarily advocating an elected convention. What I was trying to take was an extreme case that would have a legitimacy. The likelihood is that we would have a great debate on how it should be elected, that would be tricky, but we would have an agreement. The likelihood is also that the members of that elected convention would come almost all from political parties, and so the question then arises, why bother, especially if it is by first past the post. The other problem, I think, with an elected convention is that there would be an interesting tension in its relations with Parliament and Westminster. So, while I think the overwhelming case for legitimacy lies with an elected convention, I see so many other problems that I don’t think it is likely, but I wanted to pose that as one extreme. I think it is an unlikely thing to opt for but if you are seeking legitimacy that would be the obvious way forward. The more likely way forward would be to do it through indirect representation, people who have been elected to office, whether that is MPs, MSPs, AMs, MLAs and so on, and perhaps even local authorities. That was the convention in Scotland’s experience and then bringing others in, but again where does this end? I think it is hugely tricky.

Q237 Sheila Gilmore: Could you include in that sense indirectly elected representatives, people who, for example, represent trade bodies or important groups that will have some form of election within themselves?

Professor Mitchell: I guess the question is who would be included, who would be excluded, on what basis would you include people? Would you, for example, include universities? I would argue, yes, you should. I would argue you should have professors of politics who have an interest in the subject. I am being facetious, but the point I am trying to make is it is very difficult to know where the line should be drawn. Many organisations, many individuals would make the case, and perhaps a very good case, for inclusion but it is very difficult. This is a problem that always arises when you do not have direct elections. I suspect around this table we could all identify groups we regard as having a right to be in such a convention but it would not be the same groups. Ultimately we would all be advocating groups that would support what we would wish to see the convention include, let’s be honest. The real debate on the membership of the convention is as much about what it should include as anything else.

Q238 Sheila Gilmore: In that sense I think it leads me on to saying, how does it proceed? Do you attempt to get consensus? Do you have voting within the convention? Do you need some sort of majority? Constitutions often have within them provision for a change only to come about if voted by two thirds or whatever. We have talked a lot about the Scottish convention. That convention did proceed, while I can’t recall there being votes, it was probably a consensus, but you could argue that that was partly because some key players stood outside of it and maybe, when it came to the subsequent referendum, did not necessarily rock the boat in any substantial way and that may be because of the election result. Nevertheless it was easier, was it not, to reach consensus if you didn’t have certain people there at all?

Professor Mitchell: It was, but there were some pretty tricky issues that had to be dealt with and I think it was very interesting. The one I highlight in the paper is the size of the Scottish Parliament, which is very important in terms of just how proportional the Parliament would be, and the two main parties disagreed very passionately on this. How was it resolved? It was resolved by Menzies Campbell, who has been mentioned today, in his front room in Edinburgh. The leader of the Labour Party and the Liberal Democrats got together and hammered it out. In fact, they just split the difference. I am not criticising them for doing that. I think that will often be the case. When it comes to tricky issues some of these discussions and negotiations have to take place in that way. Sometimes there is a case for just getting behind closed doors and hammering something out. Even if you think there is a great debate taking place publicly, much is likely to be held elsewhere. What I am trying to suggest in response to your question is that I think that we have to be realistic about any convention. Politics will play within the convention, and ultimately the smaller the grouping of people the easier it will be to reach agreement, but even then it is not easy. It is not easy.

There is a danger, which we are hinting at here, that any constitutional convention will be unable to reach agreement and that would be probably a very dangerous situation to get into. Where are we at the end of the convention? That takes us back to Nigel’s point that a narrower focus would probably be better in as much as it is more likely to lead to some kind of agreement. However, that confronts the problem of the spill-over effect of such agreements. I am sorry I am sounding very negative when I point out some of the problems, but I think it is better to be aware of them at this stage than at the end of a process that has been very fruitful.

Nigel Smith: I think you have to recognise that it is an entirely political process. It is about the redivision and distribution of power and it is not a kind of academic seminar. You are trying to set the modis operandi for these negotiations and debates and therefore having several hundred people doing this, you know yourself, is incredibly difficult and nothing very much would come out of it. It is interesting that even the Philadelphia Convention normally had 70 delegates, there were often only 50 involved on this-you could put them in one room-and they dealt with big issues. Remember they dealt with slavery, they dealt with the north and the south, they were log-rolling big time, but these various things were settled or compromises were made and you got something. They did it in four months and it took 40 months to ratify. It sounds like the European Constitution.

Q239 Chair: I think you are making an argument that the work this Committee does, in terms of collating information and getting clarity on what the consequences of a yes or a no vote are, is increasing in importance prior to a referendum. Indeed, we will need to continue to do that. I think I need to have a word with Members around the table about that.

Nigel Smith: I strongly think that the Prime Minister should be giving evidence to you. It is not very likely but-

Chair: It is possible. Certainly the Deputy Prime Minister will be asked serious questions about this. We are also seeking to talk to the individual Secretaries of State, but I think they are passing the ball to the Deputy Prime Minister. That is the latest state of play. Serious evidence at the highest possible level will be given to this Committee. I think we may well, when we have five minutes together, seek to press some of the consequences of that, perhaps even before the Deputy Prime Minister comes before us, to get a lot of this stuff cleared out of the way before he speaks to us. Anyway, we are thinking on our feet. We will consider this carefully.

Q240 Fabian Hamilton: Nigel, you said in your evidence, I believe, to the House of Lords Constitution Committee that constitutional issues should be subject to obligatory ratification referendums. Do you think that the output of any constitutional convention should also be put to a referendum?

Nigel Smith: Yes.

Q241 Fabian Hamilton: Would all parts of the UK have to vote in favour before it was considered to be ratified and implemented?

Nigel Smith: My view would be you wouldn’t be looking for 100%. You would have to have some kind of rule about two thirds of this and that. First of all, I believe there would have to be a referendum because one of the things that does is concentrate the minds of the people in the convention that this has to pass democratic scrutiny. One of the mistakes of the EU convention was that it did not face up to that and recognise that it was going to fall foul of referendums, because they had just not thought about it.

The other thing about a known referendum beforehand is it galvanises the interest of the press and the opinion formers in the process of the convention because they know something is going to happen; a decision will be made at the end of this. So, I for one think this should be obligatory and, unlike Willie Rennie, I would extend it across virtually every constitutional function. Interestingly, in the Northern Ireland agreement it is already obligatory. Of course we now have it in parts of Europe and you can see it creeping into constitutional reform in Britain. But the specific point of how you get ratification, I think there are various ways, including an electoral college, that you can do this. I wouldn’t attempt an answer now, but it would have to be something, some kind of threshold in federal terms, a majority here or a majority there and so on. That is a problem in Britain because you have 83% in England.

Professor Mitchell: I think there is a prior question and that is: what is a constitutional issue, and what is a constitutional change? In the paper I cite an article by Vernon Bogdanor, published in 2004, about what he regards as constitutional acts and some of these were certainly not subject to referenda. He includes the independence of the Bank of England. That was not decided by Parliament, or even the Cabinet. So there is a question as to what we have done and what is a constitutional issue. One could argue that is not a constitutional issue, but some might say it is. So that prior question has to be addressed. One of the problems with our constitution is it is very unclear as to what the constitution is because we don’t have that formal written document. I think if we had a formal written document-I am not saying we should have one, but if we did-it would be much easier because it could be argued that any amendment to that required a referendum. We do seem to be edging towards a situation through precedent that certain major constitutional change is required with a referendum but not all. Again, the inconsistency in our constitution is interesting. I think there is a case to be more consistent but, again, that is easy to say in principle, and it takes me back to the question as to what is a constitutional issue.

But to the final part of the question, I think the notion that there should be separate majorities in parts of the UK would be a major innovation in the constitution. We have never had that; it has never been seen as necessary. I do recall reading about the 1975 EC membership referendum and it certainly was the case up here that speculation was Scotland might vote no and that England would vote yes and what would be the consequences of that-fascinating. A couple of weekends ago I was at a conference in Cardiff and people were speculating as to what would happen in a referendum on continued membership of the EU if Scotland voted yes and England voted no. My response was surely that wouldn’t make any difference in a sense, so why would it not matter for this but it might matter for some other constitutional question? Maybe the answer is because it would be dealing with a territorial constitution.

All I am pointing out is that this is a minefield, it is very complex, we don’t have precedent and we don’t have a clarity in constitutional deliberations, and that can lead to accusations that we operate in a very ad hoc and very unfair way. It would be good to sit down and work out what a constitution is and what are constitutional issues. Perhaps that ought to be one of the main issues for a constitutional convention. In a sense I have to say that I think there are so many prior questions that would need to be addressed before I could honestly answer that.

Q242 Fabian Hamilton: The problem with 1975, of course, is that it was the first time we had had a national referendum and so there were no rules. They were made up by Parliament as we went along, as I recall. You mentioned the issue of a written constitution, which we don’t have. Just to go back to your issue of the word "sovereignty", if we had a written constitution presumably that then becomes the sovereign document authority for everything else rather than Parliament.

Professor Mitchell: Yes, one assumes so.

Q243 Fabian Hamilton: Is that a good thing?

Professor Mitchell: Is that a good thing? I think if it was possible-I am not convinced it is possible to write such a document, people have tried and they have run up against all sort of problems-it probably would be a good thing. It would be good in as much as it would be good to have that transparency and that clarity, absolutely.

Q244 Fabian Hamilton: And that consistency?

Professor Mitchell: And that consistency, absolutely.

Q245 Fabian Hamilton: Can I move on to something that Professor Robert Hazell has argued. He says that England is now the most centralised of all the large countries in western Europe. Is that a bad thing? Is that a good thing?

Nigel Smith: I personally think it is a bad thing. I spent the first 25 years of my life in business in England, centralising things on behalf of big corporations, and I saw the practical effects of that and I didn’t like them. That is the root of my whole decentralist politics.

Q246 Fabian Hamilton: You get consistency with centralisation.

Nigel Smith: Yes, you do. Intellectually it is easier to argue the case for centralisation than decentralisation because the benefits of decentralisation are more ephemeral and less tangible but they undoubtedly exist. But in my book the north of England, the north of Thanet and the Isle of Wight and Devon and Cornwall are getting a raw deal at the moment. That would become very apparent if Scotland left Britain. I don’t know why 6 million people in Scotland should hold up British territory in this way but in some extraordinary way it does. If we went I think it would become starkly obvious that particularly the north of Britain was getting a raw deal. It is bad for Britain because the economic performance of the northern half of Britain, if it was anything like the southern half Britain, would be at the top of the economic league, and that is good news for a lot of voters. So that is where I come on this issue.

Professor Mitchell: I guess my pluralist instincts lead me to support decentralisation; however I see a case for centralisation. I certainly see a need for it in terms of many aspects of the proposal. The other thing I would say is even a centralised state need not necessarily mean you have consistent public policy outcomes, far from it, because there are so many institutions in terms of the delivery of public policy. There are very few people who are willing to put down a case for centralisation on paper in the UK. You have to really go to France to find some of the best intellectual cases for centralisation, where people do celebrate the Jacobin state.

Q247 Fabian Hamilton: One of the biggest arguments, especially in the current climate, it is especially relevant in the current climate, is cost saving, because you don’t duplicate. If you have a regional parliament for Yorkshire then presumably you don’t have chief executives in every local authority.

Professor Mitchell: I think there are easier and more effective ways to get cost saving and better policy, and that is certainly to bring together services at a local level. I was on a commission that looked at these things in Scotland, the Christie Commission, and we reached the conclusion that efficiency is best achieved through integrating services at a local level rather than through centralisation. What we need to do is make sure that local authorities, health boards and many other bodies work together more closely. I would go a bit further than that and start pooling budgets. That can be done at a local level.

Q248 Fabian Hamilton: Yes. Pooling can be done without centralisation?

Professor Mitchell: Absolutely. Centralisation in that respect can be quite dangerous. I think it can lead to very bad policymaking. The man at Whitehall does not know best.

Q249 Fabian Hamilton: I think we all know that. Can I just ask you then, Professor Mitchell, polling data from the National Centre for Social Research suggested that only 25% of those living in England would want an English Parliament with law-making powers. What is your view about why there is such a lack of interest? I suspect that is an exaggerated percentage. I doubt it is even 25%?

Professor Mitchell: When I speak to colleagues on the English question they are all very agitated, but the English public does not seem to be bothered and I suspect because it does not appear to be linked to the things that they care most about, that is better schools and so on. Up here I think the constitutional debate is linked to everyday public policy. There is obviously a national identity issue here, but I think what gives it an edge in Scotland is the perception that we should be making our own policies and that they would be different from those that would emanate from London. In terms of the impetus behind devolution in the 1997 referendum-I was involved in a research project on that referendum-the overwhelming reason people voted yes was because they wanted to avoid the Tories governing them from London. They wanted different policies. In England I am not convinced that that has become part of the debate. Perhaps more so in certain parts than others but even there, as we have seen, it is still not very strong. So I think the disconnection between everyday public policy and everyday concerns on constitutional matters leads to the kind of figures you have been citing.

Q250 Fabian Hamilton: Does it go back to the fact, Nigel, that it is seen as an extra layer of politicians, bureaucracy, in between what people want for their everyday lives and what the public administration of the democratic system, the Parliament, the local authorities can deliver? The problem, surely, in advocating an English Parliament is that nobody has ever got through the argument that it is United Kingdom Parliament, English Parliament, county council, city council; you have all these layers. But if it was argued that this was a replacement, not that an English Parliament would necessarily be a replacement-that might perhaps be easier to argue, and perhaps if it was based in Nottingham.

Chair: Parliament once was based in Nottingham.

Fabian Hamilton: I know; that is why I said Nottingham and not Leeds.

Chair: In the castle, but let us not go there.

Nigel Smith: First of all there is the overall context of the loss of faith in the parliamentary process, which has occurred in my lifetime from deference to indifference.

Fabian Hamilton: It occurred in my parliamentary career as well, I can tell you.

Nigel Smith: I think we have seen on issues like the mayors, on quite a lot of propositions, a feeling that this will make absolutely no difference to things and therefore a rejection. Anything that involves electing people is therefore a bit suspect and people need a pay-off. It won’t surprise you that I was a supporter of English regionalism post 1997, and as soon as I read John Prescott’s Bill I said, "This will lose and it will lose for one simple reason: that it hasn’t got enough powers". What was proposed was the creation of a body of 40 politicians to run Scottish Enterprise, which is the economic development body in Scotland. Nobody in their right mind would vote for that. Of course in 1997 in Scotland it wasn’t a big issue. We were electing 129 MPs, because it is quite obvious the pay-off was on the other side. But when it got to Wales, this was a significant part of the debate, there are all these MPs and we have these very limited secondary powers. When you came to the north-east then you had a situation where the public, when you did the top of the head polling, were pro the idea of a north-east assembly but not when actually presented with the proposal. I told John Prescott’s senior civil servant fairly early on that the people would oppose this referendum for the simple reason it was going to be a playground for politicians-that is my phrase-and this is absolutely a killer. We see it in the transport referendums in England, where again there is lack of faith in our institutions: "Will they deliver on this if we were to vote for it?" People just said, "No, I don’t trust them".

So for me there has to be a real measure of power devolved here. That brings you to the question of do you deal with English questions through an English Parliament. I for one think that is the wrong way because it would make no difference to the north of England, which I identify as the problem in the English question. I am interested in practical outcomes. Will the people in the north of England be better off, will the British economy be better off? An English Parliament restores symmetry but it doesn’t restore effectiveness, and that is what I am after.

Q251 Fabian Hamilton: So the city regions idea might be a better one?

Nigel Smith: As I said at the beginning, a patchwork of outcomes for me is the way. The great escape of 1997 was ditching symmetry, and we should be looking for a patchwork of power across Britain.

Professor Mitchell: I would very much agree with that. I worked on devolution in the UK a couple of years ago and my conclusion was that the UK-I used to argue it was union state, but I no longer believe it is a union state-is a state of the unions. It is a state of a series of different unions and historically they have evolved in different ways and respect for that distinctive evolution, that asymmetry, is hugely important. I would argue that the UK has been remarkably pluralist in this respect. Even prior to the establishment of the Scottish Parliament, the very existence of the Scottish Office from 1885 was a manifestation of a willingness to acknowledge Scottish distinctiveness within the state and it has been dynamic. Wales was very much integrated within England, effectively, and it was during the course of the 20th century you begin to see distinct Welsh public institutions emerge and the Welsh Office in 1964. It cannot be set in stone but I think the position we are now in is an acknowledgment of these asymmetries, these different unions, all held together in different ways. I think we are moving to an ever looser union. Exactly what that is is difficult to define, but one thing is for sure it will change from one generation to the next.

Q252 Mrs Laing: A very quick question about the composition of the convention and its consequent legitimacy. Am I right in thinking that you have both said that election is not necessary, indeed undesirable because then if someone is elected we have a politician? Would it be better if a convention was made up of people whose legitimacy is derived from something other than direct election?

Nigel Smith: I think the most interesting experience nearest ours in a way is America where they have had nearly 30 constitutional conventions-con cons, as they call them-in the last 20 years. There they very often elect but they then have to produce state money for each candidate. You get interests backing a candidate; it is a political process. In order to get around this the state has to fund all those who wish to go to this, so you are opening a major new extension. The only other way around that is the random lot and that is what was done in Canada, in British Columbia, and that dealt with only a single issue. Although I think it was very successful it dealt only with a single issue. So direct election should not entirely be ruled out, but it is a major, major extension of what you want to do.

Q253 Mrs Laing: Is there not another way? You said the only way around that is by lot, but can I mention, Mr Chairman, the lecture given by the Archbishop of Canterbury in the Magna Carta lectures delivered in June of this year at Runnymede where he-I am not getting the immediate feel of everyone saying, "Oh yes, the Archbishop of Canterbury’s lectures". May I commend it to the Committee and suggest that it should be put in our papers and perhaps you gentlemen might be interested in reading it. The Archbishop of Canterbury makes a very good case for how democratic legitimacy can be derived for a body other than by direct election. It might be worth our looking at that. I don’t know whether you get to see but it might be worth the Committee looking at that. Sorry, I didn’t allow Professor Mitchell to properly answer the question.

Professor Mitchell: I will look forward to looking at that. I haven’t seen it. Certainly legitimacy can derive from a number of difference sources. If something is effective it can be seen as legitimate, and it doesn’t have to be directly linked to elections either. Again, it comes back to what you want a convention to do. If you want to stimulate debate, I think you could go about it in a number of different ways. I am quite attracted to experimentation in terms of ballots. The experience in BC is that they looked at and debated what many people would have thought would be beyond the competence of ordinary people, which is the electoral system, and they did it very effectively by bringing in experts to advise it. That is always an important element in any constitutional deliberation, as well as the people making the decisions, it is important to open it up to expert advice. The constitutional convention in Scotland is very interesting in this respect. Where I think it was more successful was in debating the electoral system. I think it was pretty poor in some other areas-it was hopeless when it came to looking at public finance frankly-but in the electoral system it was successful and it drew in expert advice from across the world, not just on the system itself but on gender representation and so on. So that would be a very important point.

You could bring in just ordinary people through a ballot to address issues and to be addressed by experts and to listen. That could inform the main convention. It is conceivable you could have a main convention but with other discussion and debates going on elsewhere, which would perhaps allow you to claim a form of legitimacy that would otherwise be absent.

Q254 Chair: Thank you very much indeed. Nigel and James, thank you so much for your expert advice this morning. The Committee has been given a lot of food for thought about where we need to go from here and perhaps there are some new roles opening up for us but we will need to talk about that in a private session. Thank you so much for coming this morning. It was a great pleasure to have you along.

Examination of Witness

Witness: Ruth Davidson MSP, Leader of the Scottish Conservatives, Scottish Parliament, gave evidence.

Q255 Chair: Thank you for coming, Ruth. It is good of you to spare the time to see us. We are seeing all the party leaders. I saw Nicola and discussed her new responsibilities last night, informally, and then we have seen Willie, and Johann comes in later. We have had some academics talking to us as well, so we are hopefully getting very well educated and briefed. Thanks for coming, Ruth, and I do not know whether congratulations are in order on your appointment since we had dinner with your predecessor last night. We had great fun.

Ruth Davidson: Yes, she said that she had a delightful evening, so thank you very much for that.

Q256 Chair: Ruth, I know you are very pressed for time. Would you like to say something to kick us off and then we will ask a few questions? Would that be a good way to proceed?

Ruth Davidson: First, I would like to thank the Committee for inviting me to give evidence to you today. I would also like to apologise for my very slight lateness. The First Minister’s questions next door in the Parliament ran on slightly late today, so my apologies for that. With the time pressure that we have on this session today, perhaps it would be best if we just go straight to questions, if that is all right. Thank you very much.

Chair: Great. I know Ruth is very much on a strict timetable, so I would ask colleagues to be a bit terser than they normally would be, just because Ruth will need to leave at about 1.15pm.

Fabian Hamilton: I am not sure we can do that.

Chair: Sheila, set us an example, please.

Sheila Gilmore: Yes. I am also going to apologise in advance because I am going to have to leave before you have finished.

Chair: That is why you are on first.

Q257 Sheila Gilmore: First question is do you think there is a case for establishing a constitutional convention before the referendum on Scottish independence?

Ruth Davidson: Firstly, I think you have to make a decision about whether there is a case for this kind of convention at all. If you decide that, then for me, because over the last 15 years there has been so much change in what has been happening and so many staging points, not just for Scotland but also for Wales and Northern Ireland-we have had the Silk Commission, we have had the Welsh referendum, we have had the Scotland Act, we have had the Calman Commission-I think you have to make the decision about whether you want this or not. If you do, then you have to decide, "Well, let’s get on and do it" and be cognisant of some of the set pieces, as I say, that are happening, and perhaps not put it off until after the next event, the next event, the next event, because in that way, given the way devolution has worked in the various parts of the UK, I think you could be putting it off for a very long time.

Q258 Sheila Gilmore: In your written evidence, you used a phrase that the convention should start by establishing, "The essence of the UK and the essential characteristics that define the unitary state". Could you expand on what you meant by that and perhaps give some examples that would help illustrate that?

Ruth Davidson: Sure. I think first of all you have to decide, or a commission of this nature would have to decide, what is the UK? What are those things that cannot be dissolved and still remain part of a nation state? If you were looking for examples, I would look at the fact that the head of state would be the same for all constituent parts, whether that is a monarch or otherwise. I am sure it will be of no surprise to this Committee that I very much suggest that we would still retain the monarch. Would you have the same currency, that is the sort of thing that you have to decide. What are those things that cannot be looked at in terms of dissolution and still maintain the United Kingdom as a nation state?

Q259 Andrew Griffiths: Thank you, Ruth. Very good to see you. If we do go ahead with a constitutional convention, who do you think should be the people who decide its terms of reference?

Ruth Davidson: I think that has to be done very much in consultation. I think there has to be input from each of the constituent parts of the UK, and there has to be a political element to that too, and therefore that would require political input from the Westminster Government. Where I see the big gap is in England, because there is a devolved parliament in Scotland, there is an assembly in Wales and there is an assembly in Northern Ireland, and the House of Commons and the House of Lords acts for the whole of the UK. I am not entirely sure where you get that uniquely English component and how you also get other forms of governance in there in terms of local authority. I think it is very important, if this is looked at, that we do not just push powers from one parliament to another, but we also look at the distribution of powers across the UK. I think you would have to look there.

Q260 Andrew Griffiths: Very good. You are obviously focused on a referendum at the moment. It is a big issue in Scotland.

Ruth Davidson: It has come up once or twice.

Q261 Andrew Griffiths: Yes, exactly. If we had a constitutional convention that came forward as a recommendation, do you think that that too would have to be put to a referendum?

Ruth Davidson: I think that when we are talking in the abstract and hypothetically it is very difficult to make a judgment one way or the other. It depends very much what the terms of reference for that convention would be. I would prefer not to be drawn on something now, not having seen what the proposals are, which is not to kick this into the long grass. It is just that I don’t think I can honestly answer that question without having more information about what the proposal, if any, would be.

Q262 Andrew Griffiths: But would you be in favour of a constitutional convention?

Ruth Davidson: I think that there is a question with further devolution about looking at how the different parts of the UK fit in with each other. I think one of the ways in which we have seen devolution progress over the last 15 years is that it has been almost a bilateral arrangement between one constituent part of the UK and the UK Government. For example, in Scotland, we had something like the Calman Commission, which led to the Scotland Bill, the Scotland Act, and that was about the devolvement of powers between the UK Government and Scotland and it worked in a bilateral arrangement. It quite purposefully did not look at powers that would have some form of impact on other areas of the UK. For example, something like the devolution of corporation tax was not something that was proposed by Calman because that would have an impact on other areas of the UK.

With the progression of devolution in Scotland, I think we have got to a point where further devolution of some other things that have been suggested in Scottish public life would then have an impact on the rest of the UK, and if you are doing something like that then that cannot be a bilateral process. You have to bring in other parts of the UK to look at what is going on. If I could use an example, if I may, I know that there has been a suggestion in Northern Ireland that they would very much like to have the devolution of corporation tax so that the corporation tax in Northern Ireland is much closer to that of the Republic of Ireland, rather than with the rest of the UK. That has a material impact, I believe, on other areas of the UK in terms of where people site businesses and in terms of where there is employment. I don’t believe that is a decision that can just be made by people in Northern Ireland. It is a position that must be discussed between all constituent parts of the UK.

Q263 Mrs Laing: I think you are making a very good point about all constituent parts of the UK. Do you think a constitutional convention could proceed with-let me put it the other way round. Would all constituent parts of the UK have to be involved before a constitutional convention could be meaningful?

Ruth Davidson: I think it would be hugely advisable if they were.

Q264 Mrs Laing: In doing that, how important would you consider it to engage the public, rather than just the usual suspects?

Ruth Davidson: I think that civic Scotland, civic England, civic Wales and civic Northern Ireland would have to have a seat at the table. You can’t exclude the public from this. We did have something called the Scottish Constitutional Convention in the 1980s and 1990s, which was-I am slightly paraphrasing-slightly self-appointed and it went in with a key aim in mind that there would be some form of assembly or parliament in Scotland, and that was what it was going to get out of the other end of it. The Scottish Conservatives were not part of that constitutional convention. The Scottish National Party were at the start and then left because their perceived wish or choice on constitutional development was taken out of the equation before the meetings even started. If something like this were to go ahead you would have to have an open remit, rather than have the stated aim at the end of it of what was going to happen before you even started. In terms of learning lessons from previous constitutional conventions that have happened elsewhere, I think that is one where lessons could be learned.

I do believe that whether it is a convention or a commission, which could be a possibility rather than a convention, that there should be some form of input from the public, and it should not just be paid-up elected representatives.

Q265 Mrs Laing: This is really saving time, Mr Chairman, because Ruth has just answered my next question before I asked it, which is absolutely brilliant, as I would expect from the leader of the Scottish Conservative Party. I am allowed to make these points. It was about the difference between a constitutional convention that might be proposed now and the one that took place in Scotland in the late 1980s and 1990s. That was the distinction I was going to ask Ruth if she would like to draw, and she has already drawn it, so I think that brings my questioning to an end. Thank you.

Ruth Davidson: I am delighted to aid the Committee and its work in any way that I can. If that is pre-empting questions, then I am very pleased to have been able to do so.

Q266 Chair: I am going to risk now throwing you out with 10 minutes left. It is all right; we have time. But I have a thought of my own, Ruth, that I would like your comments on. When the question is asked in the referendum, a yes to independence is not straightforward but you pretty much know what the answer means, and then there is a process that takes place. If the answer is no, what happens after the no? Does that mean people have voted for the status quo, or does it mean that people may have voted because there may have been other offers of additional powers and that there would be an expectation that that would take place? The no seems to be a little bit more complex of a result, somehow, unless we get clear before the vote what a no means.

Ruth Davidson: Mr Chairman, I think that this is a confusion that is going on in Scotland quite a lot right now, particularly in commentary about what is the status quo of Scotland. Does that mean the powers that are currently available to the Scottish Parliament right now, or does that mean the powers that will be enacted fully beyond 2016 when the Scotland Act comes into full power? As I am sure the Committee is well aware, that is a whole swathe, a whole suite of new powers, and it is the largest transfer of fiscal power in more than 300 years to Scotland. We are faced with a slight intrigue in that there is a question going to be on the ballot paper, we think, although it has not been signed off yet, in the autumn of 2014 that is looking at a situation where what is the current status of power will not be the powers in just a couple of years hence, when things like income tax are devolved in 2016.

I think that there is a question in people’s minds in Scotland regarding what the potential future for devolution is for Scotland and something like this constitutional commission could be one of the ways in which ideas are furthered. But, like I say, for me I would believe that a commission or a convention of this kind would have to focus on all of the UK and how it interplays with each other, rather than just looking at how the Parliament of Scotland primarily relates with the House of Commons and the House of Lords.

Q267 Chair: A constitutional convention coming into being before the referendum could have a role of just outlining what the consequences of each vote might be. Would that be a helpful thing in the public domain?

Ruth Davidson: It may have. Again, we are delving in real realms of the hypothetical there. It may have a purpose in looking at, for example, defining a structure or manner in which future dispute resolutions could happen, or future progress, for want of a better word, could be made.

I think there is a view too, though, in Scotland that Scotland’s political parties fight on manifestos and the manifestos’ commitments do look at areas of the constitution as well, and the people of Scotland have one member, one vote on that issue. I know that work is going on in other parties, as well as my own, looking at the constitutional settlement of Scotland that can be taken to the people of Scotland in the normal manner in an election. I am not sure whether you would want a commission or convention of this kind to override the normal politics of a nation, but that is not to say that there is no work that can be done that would be helpful, not just to Scotland but to the settlement of the UK.

Q268 Chair: When is the next election for the Scottish Parliament?

Ruth Davidson: The next election for the Scottish Parliament is in May 2016.

Q269 Chair: So it is possible that there could be a referendum vote that goes one way, and an electoral victory that goes another? For example, let us say, hypothetically, there is a vote for independence and then, hypothetically, a Labour Administration takes over in Holyrood who are not committed to the decision.

Ruth Davidson: I understand the intellectual hypothesis of your question but, given there has been no statistically significant polls in Scotland for the last 40 years showing a majority support for independence, I am going to reject its premise, if I may.

Q270 Chair: Let me give you another hypothetical that you may find more comfortable, which is that independence is rejected but then an SNP Government continues or gets another mandate. What is the mandate of a nationalist party that has just been rejected in a referendum but given an electoral mandate? What do they do?

Ruth Davidson: I think that is primarily a question for the Scottish National Party but, if I can fear to tread here, that is very much like the situation that we have seen. The only mandate that the Scottish National Party had in terms of the manifesto it took to the people of Scotland was that there would be a referendum on independence for the people of Scotland if they were returned as the Government of Scotland, and that is what the negotiations between the UK Government and the Scottish Government have sought to achieve. There have been some questions regarding second questions and all the rest of it, but that is not in the mandate of the Scottish Government. There were questions too about the franchise for what the referendum would be. My contention would be that the franchise should be for the mandate that they received, and that is those people who are eligible to vote in a Scottish parliamentary election, which is different from those who are eligible to vote in a UK parliamentary election. Again, it is down to the normal, if you like, politics of Scotland.

Q271 Chair: Then another scenario, which may be your ideal one, which is the referendum says no, and you are the new First Minister in 2016. Again, this is speculation, but do you at that point say, "Everything now is fine, status quo", or do you at that point say, "We give some powers back to Westminster", or do you say, "We would like additional things to come in our direction"?

Ruth Davidson: First of all, as I say, work is going on in all political parties, and I am sure nobody is telling tales out of school on what that is regarding what they may bring to the people of Scotland in a manifesto for an election. Secondly, were that hypothetical to occur, again it brings me back to the question of there are still powers in train beyond a referendum in 2014 that are still to come. Also, the Scotland Act itself is an enabling Act. It allows for further transference of power in restricted areas without having to go through the system of getting a bill through the House of Commons as well, so there is provision within the Scotland Act itself for further powers to be devolved. But, given the pace of change in Scotland, not just in the last 15 years but particularly in the last nine months to a year, I think you will see people and parties setting out their stalls on manifestos for the elections coming, and people will vote on that.

Q272 Chair: Do you think people in Scotland know the sort of powers that are in the pipeline and coming their way? Is that going to be a consideration in their minds when they come to vote on the referendum?

Ruth Davidson: I think that as the powers are devolved there will be a greater cognisance of those that are still to be devolved. Particularly with the personal taxation powers, for me that is the big one that will make people sit up and take notice. I am not convinced that there is a general awareness within the general public of Scotland of just how big the Scotland Act was and how much is about to be devolved.

Q273 Fabian Hamilton: Ruth, on 11 September 1997-I am sure you will remember it well-the Scottish people voted overwhelmingly in favour of the British Government’s proposal for a Scottish Parliament. Why do you think the convention was so successful in making the case for a Scottish Parliament in a way that no other similar organisation has been successful in doing throughout the UK? How did they engage people?

Ruth Davidson: You are right. I remember the referendum. It was only the second vote I ever cast, because on 11 September 1997 I was only 18 years old, if I have worked that out right. Yes. My first election was May, not the best election to be a Conservative in Scotland, I think it is fair to say, and my second time I cast a vote was in that referendum. I don’t know if there was only one compelling reason for it. I think there were myriad reasons that had not just to do with the Scottish constitutional convention itself, because, as I say, it didn’t have buy-in from all the political strands of Scotland. It had some very strong characters in it and it had some very strong groups in it, but I think even those who were the strongest proponents of it wouldn’t say that it represented every sector equally. I think the campaign that was run by three parties uniting was an effective one in terms of the political campaign, and possibly that there was a belief in Scotland that there was a wish for greater self-determination at that time. Beyond that, I have to say I am unable to pick one particular point. I think it was a coming together of points.

Q274 Fabian Hamilton: Thank you for that. How important is it-we have touched on this already-that we engage the public in a constitutional convention, and how do we do it, rather than having, as you mentioned earlier, people who are self-appointed, what we might call the usual suspects? If it is not self-appointed or elected, how do you ensure the spread of interest?

Ruth Davidson: I think also public buy-in, if you want to use that phrase, is one. It is about making sure that there is some level of representation on there, and that I believe is a discussion for when we have a much clearer position of what is actually being proposed here. The other part is also how you engage with taking people’s views in terms of the consultative nature. That may have unintended consequences in terms of timing and so on, but I think in terms of having submissions to that it would have to take a very large number of submissions from a great number of areas to make sure that people had had the chance to have their say.

Q275 Fabian Hamilton: Do the Scottish public sufficiently care about constitutional issues, in the broadest sense, to engage, or is it a minority interest?

Ruth Davidson: I think many people care very deeply about particularly the question that is in everybody’s mind regarding the referendum in Scotland right now. Like I say, there are a number of people who care very deeply on both sides of the argument. I think there is a frustration, too, among many people of Scotland that elected personnel such as myself spend so much time talking about the constitution that some of the other things are not discussed to a level that they would like to see. Certainly I hear complaints from people, not necessarily Conservatives but from people up and down Scotland, who say, "Can Alex Salmond stop banging on about independence and just fix schools, hospitals, prisons, whatever?"

Fabian Hamilton: Roads-yes, exactly.

Ruth Davidson: Exactly. There are an awful lot of people who do care very deeply, but there are also an awful lot of people who are frustrated with the process that has been ongoing in Scotland, particularly in the last year.

Q276 Chair: Ruth, we have kept to time.

Ruth Davidson: Oh, excellent.

Chair: I hope we have earned a brownie point. We can let you go to your appointment.

Ruth Davidson: Thank you very much, Mr Chairman, and thank you to your Committee.

Chair: Since we did rattle through the questions, if there is additional stuff that you would like to send us, any notes or memos or whatever, we would love to receive them.

Ruth Davidson: Additionally, if there were any questions that we did not get to or any follow-up that you would like from me, I would be delighted to help you in any way that I can. Thank you.

Chair: Great. Thank you so much for your time, Ruth.

Examination of Witness

Witness: Johann Lamont MSP, Leader of Scottish Labour, Scottish Parliament, gave evidence.

Q277 Chair: Johann, thank you so much for coming in and sparing your very valuable time to talk to us today. We are the Select Committee on Political and Constitutional Reform and we are in Edinburgh to listen to the people who know about the issue that we are most concerned about at the moment, which is the need for a constitutional convention, whether we need one at all, if we need one when might it best take place, what might the issues be. Sheila had to leave us this morning for a constituency engagement, so she sends her apologies. Johann, do you want to make a little opening statement?

Johann Lamont: Just very briefly to welcome you and recognise the significance of the work that you are doing. I think it would be fair to say that sometimes it is very useful simply to explore these issues. We recognise that the constitutional landscape has changed dramatically and it is how the different bits of that landscape fit together now and within the coherence of the United Kingdom I think these are really interesting questions to ask and I am very interested in your findings. One of the things you would need to think about is what is the question your constitutional convention is answering. There are whole issues about how you get devolved governments working with the UK Government, to what extent it is under threat or whatever. These are interesting questions and I am more than happy to explore them. I was privileged to be a member of the Scottish Constitutional Convention when it was created a very long time ago and there are interesting ways in which that developed that we might want to explore further. But I think it was something of its time and came out of a political desire to answer some very serious questions. I suppose the test would be is this convention something political that we think might be a good idea when, in fact, the actual conditions in the communities are not quite the same.

Chair: In an odd way, it is almost a convention, if it does ever exist, which will help us answer the English question. We have all been considering the Welsh question, the Scottish question and the Northern Irish question. I think the English question is who speaks for England and what should the settlement be that devolves power within England. That is a different aspect of this completely. We might be looking for your help on that with the experience of going through the Scottish convention.

Q278 Andrew Griffiths: Good to see you. A bit like comedy, in politics timing is everything. Do you think that there is a case for a convention before a referendum takes place on devolution or separation in Scotland?

Johann Lamont: Timetables need to be relevant to themselves. One of my frustrations around the debate about devolution is that some people wish to characterise a discussion about how you make devolution work as a means of dealing with an argument about the Scottish separation from the United Kingdom. It is two entirely different things. I have always said Alex Salmond had the mandate to ask the question do the people of Scotland want to leave the United Kingdom and the people of Scotland have the right to answer that question. But you will not deal with the questions and philosophies behind nationalism, or those who wish to remain part of the United Kingdom, trading power around devolution because for those who want to be independent it is not about individual powers. They want to be a separate country by definition. I think that if you want to talk about how we make the constitutional settlement across the United Kingdom better, the context for it is not whether Scotland wants to leave the United Kingdom or not, the context is how do we do government better? How do we empower our communities? How do we make sure that politicians’ actions and policy development are shaped by the communities affected by them? That is what I think devolution is about. Devolution is about good government, it is about people having control over their lives, where the gap between what the politician says and how people feel about it and are impacted by it are brought together.

To me, do not decide your timetable on anything to do with how we make the United Kingdom work better as a means of dealing with an entirely separate debate, which is about would Scotland be stronger inside the United Kingdom or outside of it. I hear what you say about England and I think there needs to be a dialogue and a conversation about the way in which the United Kingdom has changed and what is it about it that is precious to us. Yes, there are common ties and common bonds. For me, one of the big things about the United Kingdom is the way in which we come together co-operatively, we share risk, we pool resource and at tough times at different places in the United Kingdom you can address that. Does the convention deal with those issues? That would be a question I would ask.

But there is no doubt that simply acknowledging the landscape and thinking about the implications of that is important. You call it the English question, but I guess part of it is that bits of England didn’t want the opportunity to have power devolved to them and other bits did. Maybe that is a dialogue about power and what you can use power for and the capacity to use it at a more local level. You will be aware that I have established inside the Labour Party in Scotland a devolution commission. What we want to look at is how do we strengthen devolution; it is not about, "Let us have a battle about powers". It is genuinely about where the best power base lies to meet the aspirations of the people of Scotland. Part of that process is going to be about local government devolving power into our communities. That is then not really about the constitutional debate, it is about power and the way that politics should be exercised.

Having said that, just to repeat the point, I do think it is a question about what this all means. It is a bit further away from us because we are in opposition. There is an issue about different governments and how they relate to each other and I would not be in such a position as Carwyn Jones, for example, to be able to comment on that. I suppose the last point I want to make is that one of the things that we said in the debate around the constitution question generally is it is reasonable for us to decide whether we want to leave the club or not but some of our devolution discussion is about how we see Scotland, some of the rules. If we are going to stay within the club, we do have to find some agreement with others across the country.

Q279 Andrew Griffiths: Thank you for that. You touched earlier on the Scottish Constitutional Convention, which you were a part of, so you have good experience of that. One of the parties did not take part in that. The Conservatives were not part of it. What do you think about the potential of a constitutional convention if one part of the UK or one political party in the UK decided they are not going to have a part in?

Johann Lamont: Two parties did not take part in the constitutional convention. If I were being unkind, I would say that the SNP made a decision on whether they would go in on the basis of whether the Labour Party was going to go in or not and decided it would be better for them to stand at the side and take the opportunity to talk down what the convention did. What happened, in my view, was the constitutional convention then developed an authority beyond political parties and when the package were developed the SNP took what I said was the right decision, which was be part of the campaign for a Scottish Parliament. So can you sustain a constitutional convention without political parties being part of it? Yes, you can. Can you sustain it if people more generally say Scotland will not accept it if the trade unions are not interested in it? No, you can’t, because it is then just doing something over here.

It was a very long time ago and I was exceptionally young when I was there, but it was a very interesting process because what you then began to see was people paring down what were the bits that really mattered, what was the core business. To be fair to the architects of the Scottish Parliament, Donald Dewar and others, they did have the courage then to allow the group that came out of there to develop the standing orders of the Parliament. It was a "how many sticks can you get to beat your own back with" kind of attitude to how government should be conducted and I thought that was a very powerful and courageous thing to do.

Q280 Mrs Laing: Courageous indeed in the Yes, Minister sense, although in saying that I am not other than paying tribute to Donald Dewar. It might seem like a very long time ago but I spent the first two years of my time in Parliament sitting opposite Donald Dewar questioning everything he was saying and everything he was doing. I would still question a lot of it but not his integrity or courage. Having experienced the constitutional convention in the 1980s and 1990s, would you say that what we should be looking at now would be a different creature? You have made the point, which I do not need to ask you and I will ask other people, that it was a political body. You made the point very well that there was one party that was not in it at the beginning and then when the political climate changed and things moved on, it was. There was another party that was never in it, but the convention itself had a momentum of its own and, indeed, achieved its political goal. Would you say that a constitutional convention set up today should have the same kind of political goal or should it be wider?

Johann Lamont: I think the political goal was wider than political parties. That is the principle of it. Essentially, everything is political, particularly if you are talking about the constitution, so I do not think you could say you could create a body that wasn’t political. But to me it feels as if the challenge for you in looking at this is does this have any relationship to people beyond ourselves? As I said before, what is the question that the constitutional convention is answering? If it is about how governments relate to each other, that is a very different thing. If it is something about what is good government-the context of the constitutional convention in Scotland was a sense in which a centralising and very polarising Thatcher Government was doing things that people had no sense of control over. We can debate whether we are in that context now. I do not detect that is, in relation to what is happening, what the constitutional debate was about, Alex Salmond has tried to polarise. Some of this debate has been between home rule and Tory rule; so, an element of trying to be able create some of that stuff.

My sense is you can’t make this happen, it has to be already there. You have to be tapping into something that people already feel. You all know what the position is in England, so you will have a far better sense than I have of that. But is a UK-wide constitutional convention going to have authority? Are there going to be voices there asking the hard questions and when you find answers will they then get resonance in the broader communities? I don’t know whether that is true. Maybe I am just putting back to you what you are trying to establish. I think the mistake would be to say, "Well, here is a system that worked", and pull it over and try to play it out. To a large extent, yes, the political parties were engaged in the issue of devolution. There was a separate constitutional alternative presented by the SNP, but the trade unions were very engaged in it, civic Scotland was very engaged in it, and some of the key figures within the organisation were not aligned to any political party. I do not think you can make that happen. It has to be that the sense of your wanting to do something is there and then you take it in a way that people will maybe accept whatever its conclusions are.

Q281 Mrs Laing: Do you think that could happen now or are we just simply not in the same place?

Johann Lamont: I am trying to transpose what I felt about Scotland in Thatcher’s Britain to what people in England feel about a change of constitutional landscape across the United Kingdom. I can’t do that because I recognise what I see in front of me, which is the Northern Ireland Assembly, the Scottish Parliament, the Welsh Assembly and that some bits of England did not want to take regional powers to themselves. You will have a better explanation of that than I do. You will also have a better idea whether within individual local communities people are talking about that in that kind of way. I do not want to be in a place where some of the ways in which this is characterised is about competition. The United Kingdom has all this diversity, different ways of doing things, but there is still a coherence about being part of the United Kingdom which is quite a hard question. Does a constitutional convention do that work? Again, that is a matter for you. My fear would be that you look to a body that replicates something done at another time but not at the same terms.

Q282 Mrs Laing: Yes, that is very helpful; thank you. What about the composition of a constitutional convention now? Do you think it would have to be elected or could it derive its democratic legitimacy from another source? Could its members be indirectly elected or represent bodies within the community?

Johann Lamont: You will no doubt have the detail of how the constitutional convention of Scotland is constructed, but I think it did recognise that the political parties were players in the process and they appointed their people into it. It would be a matter of asking them how they did that. You do not really want to know the details of how the Scottish Labour Party’s structures operate, but I was part of the Scottish executive of the Labour Party. We decided we would have some people from there and we had some elected MPs, Maria Fyfe was there and Donald Dewar was there and so on. There was an element of pragmatism around. There had to be people there who understand the politics about all of this. Does election give you authenticity if in the country people are indifferent? The purpose of it is to build consensus. You are not going to solve anything through any kind of convention if it ends up as a vote and it is a challenge for everybody. Where does the authenticity come from? The question is: how would you place people who are interested in this body or felt how that body related to them? There are all sorts of things you can do, whether it would be voluntary organisations, representative bodies. The trade union infrastructure would do that. How do you reach out to people who do not engage in any of these structures at all but might have a view on how they feel about the way the Government treats them, doesn’t listen to them and so on?

Q283 Mrs Laing: That was exactly the next question I was going to ask you. We are doing very well on pre-empting the questions here. That is exactly it, how do you? I was thinking about that from the composition of prevention as to how it then relates to the people who you are trying to represent?

Johann Lamont: It can’t be something that looks like and sounds like something representative but is entirely detached from where people are living their own lives. It is how what you are doing is relevant to what people’s concerns are. There are loads of people in our local communities who have very sharp views and frustrations around the way in which government at every level just does not respond to them. There are very interesting debates. Sometimes I think people think all the structures, all the elected structures are great, it is just a pity you have to have politicians in them.

Mrs Laing: I think that is the answer to the question.

Johann Lamont: Certainly in the past in Scotland one of the things we tried to do in the first eight years when we were in elected office was not simply to create policy and then just take it out and say, "There it is". They did this at UK level as well, particularly under, I think, Labour since 1997. But policy development should be about people who live with the problem, understand the problem and generally have a solution. You should be using these models round government anyway. No one said of course I would always say this. I didn’t come into politics to talk about whether Scotland should be in the United Kingdom or not but sometimes the constitutional debate reflects what I am much more interested in, which is about how power can used, abused or is very distant from people and that it is an issue in Scotland.

I accept that the constitutional debate is there, but sometimes it is about prisms through which you are arousing other frustrations, of the sense in which things are out of control. I think that in these times people are very frightened about how things get out of control at European level and are concerned with what is happening in finance and the economy, what is happening with their jobs, what has happening with their families. In those circumstances, people may look at how much influence I have over the decisions that are being made, how much control I can take. That is part of the argument around what has happened in Scotland. I don’t think you can create it unless people feel it. As I have said already, I respect what you will have picked up in other places. If this is responding to people’s concerns to look at how the constitutional arrangements are then that is a very legitimate thing to do and you would then want to get the mechanics right. But if that is not there first, it is very difficult to see how to can generate it.

Q284 Mrs Laing: I entirely endorse what you have said. You have, I think rightly, said that the constitutional debate can be a prism through which people are looking at what is really bothering them. Is it a bit of a worry that when you consult people, for example in the referendum that will be happening soon on separating Scotland from the United Kingdom, that people might not vote exactly on that issue but will vote because of their concerns about the other political or social matters that are concerning them at the time?

Johann Lamont: You could say that at one level. I accept that constitutional arrangements are sometimes seen as an answer to these concerns and it is very difficult. We know that local government elections sometimes are used as a verdict to national governments and that happens. It is quite difficult to instruct the voters to empty their heads of all that they are worrying about.

Mrs Laing: Impossible.

Johann Lamont: But the challenge in the constitutional debate that we are going forward in is to have clarity around what the consequences are for people. We have asked and will continue to ask that we get the information we require, the work that has been done around what a separate Scotland’s currency would be like, would we be in Europe and so on, and then people can make a decision. I think all the campaigning groups and whatever view you take on this, we all want to make sure that people are informed. It is not about scaring the horses, not about reflecting on other things, it is about that. In terms of a broader UK-wide constitutional convention, it needs to be clear about what its purpose is. I would need to be persuaded about whether people are at a stage now where they think, "You know what we need to do, we need to think about the relationship between Scotland and Northern Ireland and Wales and England, or do we maybe need to think about how do we order our priorities in terms of what we spend money on, how much authority and control people have over their own lives?" These are separate things.

Q285 Chair: Johann, one of the reasons we are raising this now is so that we can think through some of those issues. It is not to say that we must style a constitutional convention immediately but it is giving us time to plan, if that is the way people want this to go. The other thing is that if others than ourselves were to decide they wanted a constitutional convention after a yes to independence in the referendum, that could lower its esteem. It could be seen as a reactive thing to a particular result. Thinking about it now, whenever people choose to enact it, it has that sense of "let us start examining what the options are for the future". I do not know whether you feel that is a good reason to progress this or not?

Johann Lamont: I can see the logic of that position and I do think that if Scotland leaves the United Kingdom one of the conversations we need to have more fully is how that feels to the rest of the United Kingdom and how that feels to friends and family that I have across the rest of the United Kingdom. What does it make people concerned about? I am interested in a more general discussion about how we feel within the United Kingdom. I think in the past-and to be fair not so much more recently-there has been the impression created in Scotland that all of the problems are because somebody in Whitehall has all our powers and rights and they are holding them away from us, that sense that we have been denied things, we can’t achieve what we want, perhaps in some more extreme cases, like Braveheart they can’t be free. Some of that debate has just moved on. There is not really a sense people have of being part of the United Kingdom, or it being a part of colonisation. I think that is a very important part of the discussions that people will be having within their own families about the constitutional change. Yes, they will have to have economic debates but they will also think about what is to be gained and what is to be lost. It is quite a mature discussion that may take place there.

Around the timing, the idea that you would look at these ideas because and of themselves they matter, as opposed to what is happening to Scotland, is I think a very powerful message because they matter in themselves. To have the courage to devolve, to recognise diversity and make it work matters to those of us who want to stay in the United Kingdom. We do not just say we want to look at this because this is going on over here. From that point of view, whether you establish a convention or not, in that sense right across the United Kingdom we want to make the settlement work and we want the more chunky bits or clunky bits to be sorted out too for those of us who want to be in the United Kingdom.

Q286 Chair: It may be that the traditional way Whitehall deals with stuff is that it has to be a crisis and that planning ahead is not one of the greatest assets of the civil service in Whitehall. In a way, we are trying to pre-empt a bit of that and say, "Don’t wait until the die is cast one way or another, let’s examine some of the options now". If people know a bit more about the options-I think you just caught the end of the conversation we had with Ruth-if there are particular outcomes, they have particular impacts on lots of people. A yes vote to independence would have a set of impacts, a no vote would have a set of impacts. We played through some scenarios with Ruth about let’s say, for example, there is a yes to independence vote and then a matter of 16 or 17 months later a Labour Administration comes to power in the Scottish Parliament; that might produce some interesting impacts.

Johann Lamont: Except I would be explicit in saying the reason I want a single question in the referendum-I have just said Alex Salmond has the mandate to ask the question and the people of Scotland have the right to answer that question and the Labour Party of Scotland will deal with the consequences of where that decision is. It is really important, which is why I think there has been this debate around the questions and the safeguards around the way in which the referendum is conducted. That result has to have authority. Regardless of what the result is, it has to have authority. The last thing we need is for it to end up in court to be challenged, that people feel that somehow they were done down in a way and it loses consent. I am not quite sure what you would see. If the people of Scotland want to be independent they will then have the authority to negotiate for separation and our Labour Government took that responsibility too. I think that is a separate issue.

I think that the focus of the convention, as you describe it, has to be about good government. Whitehall has not been very nice to people in the East End of London in terms of the advantages of capacity to be responsive. It is not a geographical thing, it is a mindset thing about where power is. What devolution said was you can take power down from there and the challenge is the uneven way in which that has happened in parts of England. You will know that better than I do. But I think that debate is about people who want to make the United Kingdom work. Ultimately, Scotland will decide what it is going to do. Whatever is the structure of the United Kingdom thereafter, or as we think about it now, it is about how to make it better. What are the definitions of making it better? What do I think? Constitutions are arid and dull things, but they are supposed to be an expression of priorities and rights and entitlements and responsibilities. I think that is a much more interesting debate, frankly; some of the corners would inch around constitutional debate.

Q287 Mrs Laing: Rightly you have stressed the importance of people knowing the consequences, the outcome of, let us say, a referendum or the important one that is going to take place here soon. Given that and given that there is not time for a constitutional convention before the referendum, should there be something of a sort of mini-focused constitutional convention on this particular part of constitutional development, being the relationship between Scotland and the rest of the UK, before the referendum in order to inform about the consequences?

Johann Lamont: People will be informed by the voices that have authority and that they have respect for. That debate has to be about people in Scotland talking about the consequences, people hearing the arguments based on one side or another, and they will respond to what the trade unions say or they will respond to what voluntary organisations say or they will respond to what businesses say. But I don’t think there is a place for the creation of something that has an assumed authority when actually it is just a body. It is not to say you can’t take that authority. I can assure you there will be a full-blooded debate on the consequences and the potential and all the rest of it of being in the United Kingdom or outwith it. I think that is a debate that people across the United Kingdom will want to engage in and be interested in and so on. Of course, the referendum will be made in Scotland and conducted in Scotland and it is about Scotland’s future. I want that debate to take place. I do not think you can artificially create debates. I think it has to be there. The message is very strong from the constitutional convention. You would not have got it if a party passed a motion at the conference to say this is what would happen.

We are at the stage where we are just now in Labour, which is we have our own commission on devolution. We think there is something about our view of the way in which power operates and what power we have and how the constitutional settlement should be shaped by those priorities. At a later stage do I envisage people seeking to build consensus on the way in which devolution develops? Yes, I should think that would happen, given its own history. I like the idea of people talking about how the other United Kingdom looks, how to make it work better for people and for their interests. I would be concerned if it were allowed to be characterised as something that was being brought in as a separate debate, which is whether Scotland should stay in the United Kingdom or not. I think that is a different issue.

Q288 Chair: Do you think people are clear or will be clear about what a no vote means? Does a no vote mean status quo or does a no vote mean something else, other powers, devo-max? Will the electors know that by the time they get to vote?

Johann Lamont: Some people regard devo-max as getting you to a point where you are virtually a separate country anyway, and some people try to characterise devo-max as the middle ground. It is not the middle ground; it is one particular version of a possibility of being inside the United Kingdom. What I said is we should test it, not against how do I accumulate powers to the institution that I serve but in a more rational way of where does power best lie to serve the interests of the people of the Scotland, a strong economy and a fair and just society, which is why I have talked about local government and through local government thinking about how do we influence and have some shape of what local government itself says. That is where we have got to in our own thinking.

Do I think this debate goes beyond Scotland? Yes, of course it does. What are the different options? Those of us who want devolution to work recognise it will change over time, and we will be clear again to answer the question how best to serve the people of Scotland. It is not a human shield against nationalism. It is not a means of taking on nationalism, "If you give them a few more powers they will just stop". That is not what motivates people. If that is their view, they want to leave the United Kingdom, they want Scotland to be an independent country. There is not any point in having a debate around powers in order to deal with that argument. You have to deal with that argument. Our work on the devolution commission is about strengthening the United Kingdom and it is about making it work better, which is why I am interested in the work you might do at governmental level-you have central government and then all the devolved organisations coming to them, which I think sometimes is part of it. There should be creative relationships at officer level, at political level. That is for the people with the privilege of being in power. There is then a bigger challenge about how people use power when they are in power to make a difference for the people they seek to serve. I hope there will be an open, honest debate about consequences and conclusions of yes or no in the referendum but, at the same time, I don’t think we should suspend our capacity to think about how the United Kingdom might change and just want to look at local desire to influence and shape things more.

Q289 Fabian Hamilton: The other hypothetical situation that Graham outlined earlier-I do not know if you were in the room, Johann-was the referendum is lost for independence but the SNP-I would say God forbid, I am a Labour MP-gets re-elected as the Scottish Government. Where do they go from there and is that possible even? Do you think if the independence referendum is lost, and lost decisively, there is any chance that the SNP will come back into power?

Johann Lamont: Of course there is the chance of it. That is the way of politics and-

Q290 Fabian Hamilton: What is their purpose?

Johann Lamont: I presume they would draw their views from other nationalist parties across the world. I do not pretend to know but my sense is that the nationalists in Wales do not advocate full independence; I might be wrong. The challenge politically is for the Labour Party. My argument is about the constitutional question. It is a different question, what would you do if you were in power? You would have the opportunity to change people’s lives. You can’t take them out of that equation; you just have to win politically. To win politically you could make that difference. My contention to the SNP now is they had an overwhelming victory in 2011 and argued that it was on competence and have spent every moment since talking about independence, talked about the hard question of independence but asserting that there is this wonderful world somewhere where the big, tough things that happen in the rest of the world do not happen. The answer to everything is independence. Yes, there is an issue about the constitution. My grave concern is that Scotland is on pause while we await the referendum because we do not want anything difficult to come in the face of that.

But your challenge, if you ask me, is just a straightforward political challenge. How do you deal politically with people-this is more about, from my perspective, how we rebuild the trust of people of Scotland in us, that we are serious about them, that we are serious about the Scottish Parliament and that we are thinking through properly how to address their concerns in these tough times. I can’t make the SNP go away but we can certainly win the political argument. It is a curiosity of the last election where they fought it on straightforward political things and now, bizarrely, they spend a lot of time on the independence referendum without, curiously, having seemed to have thought through anything around how the currency would work, for example. It is quite an interesting-

Q291 Fabian Hamilton: Yes, there are a lot of questions about the head of state and so on. Obviously, if the referendum is lost then, to a certain extent, you have won the political argument, not necessarily the Labour Party but the coalition against independence.

Johann Lamont: We have one political argument that says that Scotland can stand strong inside the United Kingdom, that it is a partnership. It is not one of a hierarchy where Scotland is getting kicked about. We will have won that argument. There is a continuing argument around what would your focus be if you were leading Scotland, and to me that just goes back to straight politics.

Q292 Fabian Hamilton: Can I come back to the constitutional convention idea. If there was a constitutional convention, who decides the terms of reference?

Johann Lamont: That would be one of your first challenges. That is the hard thing about all of this.

Fabian Hamilton: That is why I was asking you. Exactly, yes.

Johann Lamont: Again to come back to the Scottish Constitutional Convention, my recollection was you had to get people to sit down and build a consensus about what the terms of reference were. People accepted that. They then said they had the authority to engage with it and then that authority went more broadly. But that is the task. The task is building consensus. Somebody has to sit down and write it down. My recollection is that at the time there would have been organisations and groups who were arguing for a convention beyond a political party, people saying, "This is what we think it would look like, this is what we think the terms of reference would be, this would be an interesting thing to try to do", and developed the political argument for having the convention, and then created the standards that people were obliged to take seriously of how we get terms of reference that people can agree to.

Q293 Fabian Hamilton: Once the convention decides what it wants to do and makes a recommendation, does there have to be a referendum? Is that the only way that you can get proper approval?

Johann Lamont: I am still in the place where I don’t suppose I have in my head what it will be you are going to come up with. What would you be asking people to think about? To what extent it would affect everybody, bearing in mind that when Scotland had devolution, it was the people in Scotland who voted on it? If it were only about dealing with what is happening in England-all these issues are issues to explore. People make a decision on whether they need a referendum on the basis of the significance of the recommendation and the impact it will have. You would not rule out anything. You would need to wait and see what happened.

Q294 Fabian Hamilton: It depends entirely on the recommendations and what they actually say?

Johann Lamont: There are different kinds of legitimacy. Is it so significant that it goes beyond just the fact that you have built this convention or is there something contentious here? If there is something contentious coming out of the convention, they would be curious and they would be interested in what it was, but it is about how you would go. Would you take it completely out of the political sphere where you then have straightforward votes and you reach a political decision whether you would go for a referendum or not? If that is what you are going to do, that is a decision of politicians. If it is something more than that, then that body would almost shape the political debate in a way that you would be able to judge whether it needed a referendum or not. It is true that, in terms of the Scottish Parliament’s creation, we won the political argument, the political parties saying, "Adopt it" and Labour delivered it as soon as they came in. But that is because they saw that was supported.

I should have referred back to the question you asked earlier about what is the status quo. I think it is quite important to say, first of all, Scottish devolution has already changed in how proposals are coming through, but we cannot allow ourselves to put a false argument. It is either what we have now or what we had, against something really exciting but completely different. It is recognised there is a creativity among people in favour of staying in the United Kingdom as well, that tests what the defined start would be, but it is not simple-people will say, "Well, how can you be sure?" and that is about political will and it is about the way in which you respond to political concerns. Devolution emerged out of a political consensus and further change in the devolution settlement will reflect that, and that is one of the things that we have said in our commission.

Q295 Chair: Johann, I think we have come to the end. Thank you so much for your time..

Johann Lamont: Thank you very much.

Chair: It was really good of you to come over.

Johann Lamont: Enjoy the rest of your visit. When are you finishing?

Chair: I think we have a couple of people looking for a tour around the Parliament.

Fabian Hamilton: Yes, absolutely. Please, if you can drag us over there, we would love to come.

Johann Lamont: Are you finished now?

Chair: I think we have finished now. We have met all the leaders of the political parties. Nicola Sturgeon I met with informally last night, and we have also had a couple of academic witnesses as well.

Johann Lamont: Where next for you?

Chair: We have been to Cardiff, we have seen Carwyn and all the other leaders, and probably Northern Ireland. Our problem is who do we speak to in England.

Fabian Hamilton: Yes, that is the big problem.

Johann Lamont: I wouldn’t dare to tell you.

Chair: We are open to suggestions because it is not immediately evident, but we will definitely do it. Johann, thank you so much.

Prepared 22nd November 2012