Now is the time to act (again) : make your own submission to the Smith Commission

Well, it's only a few weeks since we all took a few minutes out of our time to vote for the independence of our country, so surely we can all spare an hour or so to argue the case for the maximum amount of powers to be transferred to our national parliament? A few days ago, the Smith Commission started accepting submissions from the public - you can read the guidelines, and find the email address to send submissions to, by clicking HERE.

Here's the submission I've just sent in...

As I understand it, the commission is particularly keen to hear about the principles or 'unifying themes' that underpin any proposal for a package of powers that should be transferred to the Scottish Parliament. In my view there are two principles which must apply, and they are both simple and largely self-evident. Firstly, there is the logic upon which the current devolution settlement is founded, namely that any powers which are not specifically reserved are deemed to be automatically devolved. This means that the burden of proof does not properly lie with the proponents of devolution when they explain why any given power should be devolved, but rather with the devo-sceptics when they explain why it should remain reserved. Looking at the extraordinary "everything but the kitchen sink" list of powers that are currently reserved, it's hard to imagine that a large portion of it would survive such a test.

The second principle is that the new settlement must reflect the democratic will of voters as expressed in the independence referendum on 18th September. The insistence of the UK government that Devo Max (universally defined as the transfer of all powers to Scotland other than the small number absolutely essential to the functioning of a unified state) should not be included as an additional option on the ballot paper was presumably motivated by a desire to thwart the likelihood of the referendum resulting in a mandate for that option. However, there is overwhelming evidence that the two parties represented in the UK government, plus the Labour party and the official No campaign as a whole, abandoned that desire in the latter stages of the campaign and instead invited the electorate to vote No on the specific basis that it would be interpreted as providing a mandate for Devo Max, as opposed to a mandate for no change. This was most explicitly stated by Mr George Galloway, who was nominated by the official Better Together campaign to speak on their behalf in a major televised BBC debate in the Hydro in Glasgow one week before polling day. He pledged that a No vote would automatically result in "not just Devo Max, but Devo SUPER Max". Many viewers were startled by the apparent implication that more powers will somehow be devolved over and above the maximum amount that is actually possible, but nevertheless they were left in no doubt that a No vote was a vote for Devo Max at the absolute minimum. Mr Galloway's fellow representative from Better Together in that debate was Ruth Davidson, leader of the Scottish Conservative party, who made no attempt to correct or even to qualify the Devo Max pledge. Nor did the Better Together campaign issue a retraction or clarification after the debate. So the pledge made by their official representative must be regarded as a solemn and binding contract with the electorate, which the commission should assist in delivering now that the mandate that was sought for Devo Max has been secured in the form of a No majority. Statements from other Better Together representatives backed up Mr Galloway's pledge - Gordon Brown, for example, promised that a No vote would lead automatically to a "modern form of Scottish Home Rule" and something close to "federalism".

There is also ample opinion poll evidence that the referendum vote in favour of the option tied to Devo Max (or "Devo SUPER Max") accurately reflects the popular will. A Panelbase poll conducted between 29th September and 1st October found that voters support the transfer of all powers other than foreign affairs and defence to the Scottish Parliament by an emphatic margin of 66% to 19%. The exit poll conducted by Conservative peer Lord Ashcroft on referendum day itself found that no fewer than 25% of people who voted No did so primarily and specifically on the basis of the promises of more powers for the Scottish Parliament. When combined with the 45% of the electorate who voted Yes, this means that a grand total of 59% of people were consciously voting in favour of either full sovereign independence or Devo Max (or indeed "Devo SUPER Max").

In a nutshell, then, the principles that I have outlined demand the transfer of absolutely all powers to the Scottish Parliament, with the exception of foreign affairs and defence, and a very small number of other powers that can realistically be regarded as essential to maintaining the United Kingdom as a single state, such as currency and immigration.  [UPDATE : The Scottish Government's submission calls for some immigration powers, and specifically the power to reintroduce the post-study work visa, to be devolved.]

It's therefore largely self-explanatory which powers should be devolved - there are a vast number of them, and I won't go through them all individually. I will, however, highlight just a few, because it is particularly important that these are not permitted to slip through the cracks -

1) The Scottish Parliament must be constitutionally entrenched, and Westminster must permanently relinquish its right to legislate on devolved powers except when granted specific permission to do so by the Scottish Parliament via the Sewel Motion process, which should be given a statutory basis. There can really be no dispute about this - the most unambiguous part of the No campaign's "vow" to the Scottish people was that "the Scottish Parliament is permanent". It would be a clear breach of faith if legislation was not passed to that effect, because there is literally no other way in which it is possible for the three political leaders who put their name to the vow to bind their successors in perpetuity. 'Permanent' is a slightly misleading word, however - the important principle is that Westminster must relinquish its right to take powers back, but it would still be open to the Scottish Parliament to voluntarily return powers. It's highly unlikely that it would ever choose to do so, but it's nevertheless important that enthusiasts for Westminster rule retain a clear democratic route by which to achieve their goal, just as supporters of full independence will have a clear democratic route by which to achieve theirs as soon as a majority of the electorate have been persuaded of the case.

2) The power to hold referenda on Scotland's constitutional future must be unambiguously transferred to the Scottish Parliament. The route by which the Scottish people can most appropriately exercise their inalienable right to national self-determination has now been established by precedent - namely the election of a majority government at Holyrood that has a commitment to a constitutional referendum in its manifesto(s), followed by the holding of that referendum. It's clearly an unsatisfactory and unsustainable situation that there is any legal ambiguity over the ability of the people to replicate that process, if they so choose, after 31st December of this year. It also runs counter to the logic of existing legislation that establishes the means by which the people of Northern Ireland can exercise their right to self-determination at any time, not just in the year 2014.

I gather that concerns have been expressed about the possibility of a so-called "neverendum", but there will be a clear safeguard against that eventuality after powers over constitutional referenda have been permanently transferred to Holyrood. That safeguard is called 'democracy'. If the electorate agree with the Prime Minister's view that there should not be a second independence referendum for "a generation, perhaps a lifetime", then all they need to do to maintain that principle is to vote against any party that proposes a referendum. If, on the other hand, what the politicians who oppose a future referendum really mean is that it should not take place even if the electorate wishes it to, then that is plainly an anti-democratic view, and one that the commission has no business entertaining even for a microsecond.

3) Control over oil revenues should be transferred to Holyrood. I understand from listening to the official No campaign, and also to an impressive number of informed commentators in London, that oil is a dwindling resource and is really more of a burden than a blessing. So this should be a relatively uncontroversial reform in the corridors of power in Whitehall, and I imagine it will trigger little more than a disinterested shrug of the shoulders.

4) Broadcasting should be devolved. The referendum campaign perfectly illustrated how inadequately Scotland is currently served by news and current affairs programmes in particular, and it's likely that only devolution can ever hope to address that. There need be no fears about this reform leading to Scotland decoupling from UK broadcast networks more generally - that would only occur if there was a clear democratic will for it to occur. It's also worth noting that the recent Panelbase poll asked a specific question about this topic, and found that the devolution of broadcasting is supported by an overwhelming 54% to 30% margin.

5) Abortion law should be devolved. There is no rational basis for the current position of abortion law being reserved to Westminster, because the two policy areas that touch upon it (health and criminal law) are both generally devolved. The anomaly seemed to come about because of a view in the late 1990s that abortion was a grown-up subject that mustn't be entrusted to a 'junior' legislature - such patronising views are clearly now long outdated. The oft-cited concern about 'abortion tourism' occurring if Scotland adopts a different law is something that the Scottish Parliament is perfectly capable of taking account of in its deliberations, and it's conceivable that MSPs will opt to keep the law closely aligned with England and Wales for that very reason. But the decision should be properly made in Edinburgh, not in London.

6) Appeals in criminal cases over alleged breaches of the ECHR should in future be made to the High Court of Justiciary in Edinburgh, not to the UK Supreme Court. The current position is eroding the integrity of Scots Law, and the argument that removing the Supreme Court's jurisdiction would lead to Scots becoming second-class citizens in respect of human rights protection is an obvious red herring. A Scottish court is perfectly capable of processing ECHR cases with the same speed as the Supreme Court.

The almost (but not quite) total devolution of powers to Scotland outlined above would have numerous advantages. It would trigger a democratic revolution, repatriating the levers of power necessary to revitalise our economy, create jobs, protect the environment, and reinvent public service broadcasting as something that actually serves the public. But most importantly of all, it would represent the honouring of a solemn vow. At a time when public trust in politics is understandably at an all-time low, a keeping of faith now would light a beacon of hope that will radiate warmth to the entire democratic world.

Once again, if you'd like to make your own submission to the Smith Commission, here is the link.  (Submissions don't necessarily have to be very long - even just a few bullet-points would be fine.)