Answering the unanswerable question: the UK Government’s commission on the West Lothian question

This is the text of my article in today’s Scotsman about the UK Government’s ‘Commission on the consequences of devolution for the House of Commons’, announced on Tuesday.  The Commons written statement announcing the Commission can be found here.  There’s also news coverage of the Commission from the Guardian here and the Western Mail here (both quoting me), and the Scotsman here.  The article, slightly cut for publication, can also be found on the Scotsman‘s website here.

The UK Government’s announcement of its Commission on the West Lothian question is an attempt to resolve an insoluble problem.  The West Lothian question – the anomaly that Scottish MPs can vote on matters like health or education that affect England, but English ones cannot vote on similar matters for Scotland as they are devolved – is a logical consequence of asymmetric devolution.  If all parts of the UK had devolution, it would not arise.  Because Scotland elects predominately Labour MPs at Westminster, and few if any Conservatives, this constitutional anomaly gets a lot of political air.

Conservative MPs feel a strong sense of grievance about the question, which also has resonance with the general public in England.  The anomaly is not just a theoretical problem; Scottish MPs accounted for the Labour UK government’s majority on key votes that brought in ‘top-up’ higher education fees in England, and created foundation hospitals.  If Scottish Labour MPs hadn’t been loyal to the party whip when some of their English colleagues rebelled, these policies would not have reached the statute book.  More generally, Scottish MPs (being free of constituency pressures about ‘English’ issues) tend to be more obedient to the party line than English ones. Conservatives see Scotland as a land of Labour lobby-fodder, skewing the electoral system even further against them.  The Tory party has fought all the post-devolution UK elections with commitments to some form of ‘English votes for English laws’ in their manifestoes.  That commitment explains why we have this commission; Conservative policy may have been clear but it is not shared by the Liberal Democrats.

Sorting out the West Lothian question is easier said than done, though.  There are three basic solutions to the problem.  One is an English Parliament, within a federal structure for the United Kingdom.  However, that is problematic if the goal is to maintain the Union, as so unbalanced a union (England is 85 per cent of the UK’s population) would not be stable and would probably not be sustainable.  No similarly unbalanced federal system has lasted more than a few years.  The second option is the ‘Stormont discount’ – reducing the number of MPs from Scotland, Wales and Northern Ireland, as happened for Northern Ireland between 1922 and 1972.  The problem with that is that it means Scotland, Wales and Northern Ireland have a reduced say on matters like health in England – but their say on non-devolved matters like defence or foreign affairs is also reduced.  The Stormont discount is a blunt instrument to solve complex problems.  The third option is ‘English votes for English laws’ or EVEL, as promoted by the Conservatives.  This is an ‘in and out’ solution; MPs would be eligible to take part in some votes but not others, depending on the constituency they represent.  It creates serious problems too; it would be very hard to implement, and creates problems of ‘governabiltiy’ if the party with an overall majority at Westminster doesn’t also have a majority of English seats.  That is a problem for Labour but not the Conservatives – Labour might be in a position to form a UK Government without a majority of English seats, but the Conservatives would not.

The practicalities of EVEL are pretty daunting too.  Westminster legislation commonly touches on a variety of parts of the UK; some clauses in a typical bill will relate only to England, others to England and Wales, or Great Britain, or England, Wales and Northern Ireland.  UK Government departments tend to use a bill as the vehicle for dealing with a range of problems, not just the main subjects of the bill.  Sorting out which provisions only affect England will be quite a challenge for those in charge of drafting legislation, forcing Whitehall to change deeply-ingrained habits.  Moreover, some legislation on devolved matters needs – under the Sewel convention – to be considered at Westminster too, so MPs from devolved governments should be entitled to vote on that.  It will also be a challenge for those responsible for legislation in Parliament, who will have to make sure that the right clauses are flagged in the right way, and only those MPs eligible vote or speak on them.  Even then, there is the question of finance.  While we have a system of financing devolved governments that allocates shares of changes in spending depending on what happens in England, any change in legislative arrangements raises the question of whether it is right to have devolved funding depend on decisions taken for purely English reasons in that way.

Although EVEL is fraught with problems, there is little reason to believe that it is an answer to the problem with wider appeal.  Even if it is the first step, it will not be the last.  Data from the Institute for Public Policy Research, due for publication next week, suggest a growing number of English voters are concerned about the ‘unfairness’ of the present arrangements and want something more than a limited change at Westminster.  What solution they might want – or how that might work – is less clear.  The case for an English Parliament has recently been taken up by UKIP, but still has little organised support.  England’s isolation from the debates about the relationships of the various governments in the UK is showing in that English confusion.  Altering Westminster procedures may be popular among Tory MPs, and appears to have much wider public support, but it does not provide a positive solution to the problems of representing England in a devolved and increasingly decentralised United Kingdom.

However, the Mackay Commission is weighted toward finding technical solutions to a narrowly defined problem.  The commission’s remit limits it to looking at how the House of Commons deals with legislation.  It therefore has limited scope to look at other, non-legislative aspects of how Parliament works, with issues affecting UK Government – or indeed to look at the role of the House of Lords.  (Such issues have also been kept out of the work of the Joint Committee on Lords Reform as well.)  Moreover, the commission has been set up as a body of independent experts to advise about solutions, not to re-define the problem.  Three of the commission’s six members have spent their working lives grappling with the legislative machinery of Westminster.  The key decisions remain to be taken by politicians after the commission has reported.  As its report is due in the next Westminster session (before May 2013), that probably means we reach decision time at some point in 2013-14.  Given growing concerns in England, though, this is unlikely to be able to tackle the issues that now need to be addressed.

The endgame for the Scotland bill

The Scotland bill, framed to implement the Coalition’s Programme for Government commitment to implement the recommendations of the Calman Commission, had its second reading in the House of Lords in October.  It has also been reconsidered by the Scottish Parliament during the autumn, following a first consideration in late 2010 and early 2011.  The Lords Committee stage has been put on hold pending its reconsideration at Holyrood. Following May’s election, the new Parliament has a very different composition to the old one.  Despite the conditional approval given to the bill by the old Parliament before the election and the wider demands of the SNP majority, the UK Government has declined to change the bill.  

The report of the second Holyrood  committee considering the bill was published last week.  This comment on it by Alan Trench appeared in The Scotsman on Friday 16 December (it’s also on the paper’s website here). 

There’s further discussion of the report and the bill generally on Alan’s blog, Devolution Matters.

WITH the Scotland Bill committee’s report, the constitutional politics surrounding the bill start to enter the endgame.

The committee seeks a raft of changes to the bill. The trickiest for the UK government is recommendation 6, that there be “joint approval” of the introduction of the income tax power and related cut in the block grant. This has been a key demand of the Scottish Government, but the UK government has failed to spell out how the cut will be made in the two-and-a-half years since the Calman Commission’s report was published.

Both the Secretary of State and Advocate General for Scotland have signalled it is unacceptable. Michael Moore has said he should be trusted to have Scotland’s best interests in mind when the effect of the new tax power on the block grant is calculated. However, without any clear statement of UK government policy on how the cut will be made (which is simple) or adjusted in subsequent years (which isn’t), it would be an imprudent government or parliament that simply took another’s word on an issue of such importance.

If the parliament insists on this provision – fairly likely, as the SNP have put much emphasis on it – one of five things may happen. The UK government could accede to the request and amend the bill (though that will make for a choppier passage in the House of Lords). If London doesn’t amend the bill, either the parliament will pull back and approve it anyway, or Holyrood will reaffirm its earlier position and vote against the bill. If Holyrood approves the bill, it can pass on to the statute book.

If Holyrood doesn’t approve the bill, either UK will drop it, or Westminster will pass it, despite the Sewel convention saying that such legislation “normally” requires devolved approval. That would put the Scottish Parliament in much the same constitutional position as an English local authority.

So the ball is in London’s court, but it has to remember it is making the pro-Union pitch that devolution works for Scotland. The SNP, on the other hand, know that they can use a narrow approach from Westminster, or the outright failure of the bill, to strengthen the case for independence.

How London responds to this move at Holyrood is going to be interesting to watch. The UK government’s position is much trickier than it may seem.

The commission on the West Lothian question looms, sort-of

Thursday’s UK Government announcement about the long-proposed ‘commission on the West Lothian question’ is more of a non-announcement.  The Commission was of course promised in the Coalition agreement of May 2010, but precious little has been heard about it since then.  The use of a commission suggested an attempt to kick the issue into touch more than anything, as it’s not a pressing issue once the Conservatives are in office and it’s a bone of contention between the Conservatives and the Lib Dems.  In this, it has clear resemblances to the commission on the UK bill of rights, finally established in March and which produced a rather sketchy issues paper in July.  Mark Harper’s brief statement is available here.  There news reports from the BBC here and the Scotsman here (though they don’t add much to the statement).

Clearly the pressure of Harriet Baldwin’s bill on territorial extent clauses, and the need to throw some red meat to the Conservative back benches, has led to an announcement that … there will be an announcement in due course. A remit will be set out in October.  It’s not clear whether members will be announced then, or later.   This sequence of announcements that don’t have anything new in them is all rather reminiscent of the ongoing process surrounding the ‘Ap Calman’ commission in Wales, of course.

The most interesting point is that the Commission is to be composed of independent academic experts.  Some (notably Robert Hazell) have suggested this would be a task best discharged by a joint committee of both Houses of Parliament, including senior parliamentarians from both Houses (and presumably all parties).  That would have called for very careful management to avoid party differences leading it to a stalemate.  Instead, the choice has been made to try to depoliticise it (though there is to be consultation with the Speaker and input from the parties.   However, as the issue is of its nature highly political, it looks as though the key decisions will fall to be resolved by politicians after the Commission has reported.

(This post also appears on Alan Trench’s blog, Devolution Matters, which can be found here.)

The Welsh referendum result: Wales said Yes

The results from the referendum on the National Assembly’s legislative powers on 3 March produced a very clear mandate for the Assembly to have primary law-making powers: the vote is 517,132 votes in favour, and 297,380 votes against (or 63.5 per cent to 36.5 per cent).  There’s news coverage from the BBC here and the official results from the Electoral Commission are here.  Of the local authority areas used for counting, only Monmouthshire voted No – and that by just 320 votes.  While the Yes vote appears to have been weaker in eastern parts of the country, it varied relatively little across the country (and much less than it did in 1997).  There’s a good discussion by Roger Scully of the result on the BBC News website, available here.

Turn out was 35.2 per cent; not high, but higher than in some other referendums, and higher than some predictions.  Given the limited public visibility of the campaign (compounded by True Wales’s decision not to apply to become a designated campaign organisation), the inherent obscurity of the issue and the confusing nature of the question, that has to be regarded as a comparatively strong showing.  Rachel Banner of True Wales has accepted that it’s a clear mandate for an Assembly with legislative powers.  This result suggests strongly that legislative devolution is indeed the settled will of the people of Wales.  Perhaps the shadows created by the defeat in 1979 and narrowest of victories in 1997 will now pass into history.

Ironically, the result comes just as the Boundary Commission for Wales announces how it plans to review the Westminster constituency boundaries, so as to reduce the number of Welsh MPs from 40 to 30 (the same quota as for England or Scotland).  One of the problems that hobbled No campaigners was the prospect of reduced representation at Westminster whatever happened.  If Wales had voted No, it would have faced the double whammy of that combined with limited devolved legislative powers – a sure way to minimise Wales’s overall influence over government.

The referendum result has triggered a flurry of activity on other fronts.  First, there is the question of bringing the new powers into force.  The First Minister announced on Tuesday that an order regarding that would be laid later in the week for debate on 29 March, and providing for the new powers to come into effect on 5 May (polling day in the Assembly elections, of course).   His statement is here.  That means the new Assembly will have primary law-making powers as soon as it meets.  At the same time, work is underway on formalities like letters patent and a Welsh seal for signifying Royal assent to Assembly Acts.

Second, the debate about the Assembly’s finances has revived.  The referendum put this on hold – Welsh politicians didn’t particularly want to talk about it during the campaign, and the UK Government had signalled that it would only take action if there was a Yes vote.  But now confusion reigns.  Some politicians – including Nick Clegg and Cheryl Gillan, both speaking at their parties’ conferences in Cardiff at the weekend – have stuck to the Coalition’s commitment in the Programme for Government about a further commission to look at the issue, despite the work of the Holtham Commission.  Other UK politicians have moved beyond this and talked about implementing Holtham, though with greater interest in tax powers than a ‘fair’ (needs-related) grant.  Carwyn Jones, on the other hand, is keener on a ‘fair grant’ than tax-varying powers.  There’s also the question of whether a further referendum on that would be needed.

All this makes for exciting times in Wales’s developing constitution, in the short interval between the referendum and the start of the Assembly election campaigns.

Michael Moore, the Scottish Affairs Committee and the Scotland bill

When Michael Moore, the Scottish Secretary, gave evidence to the Commons Scottish Affairs Committee last week, he largely played a straight bat and avoided giving much away.  But late in the session (which is still recycling periodically on the BBC Parliament channel), he made two pretty startling statements.

One was to announce that the UK Government wouldn’t necessarily respect the Sewel Convention if the Scottish Parliament requested ‘fundamental’ changes to the Scotland bill – say, increasing the devolved income tax power from 10 points to 15 – which the UK Government didn’t wish to make.  Rather, it would push the bill through regardless.

This is startling because the Sewel Convention is the foundation on which devolution rests.  The Convention provides that the UK Parliament will not legislate for devolved matters without the consent of the devolved legislature involved.  While there’s an ambiguity about how it affects the UK Parliament, the UK Government has clearly committed itself to the Convention in the Memorandum of Understanding.   The Convention is a powerful and ingenious constitutional tool, which squares the circle between a division of power set out in a written constitution and then set in stone, as in most federal systems, and the principle of the sovereign UK parliament conferring legislative powers on other legislatures.  It rebuts Enoch Powell’s claim that ‘power devolved is power retained’, and makes devolution a viable alternative for a country with an unwritten constitution.   The saving clause in it (it talks of the UK Government ‘normally’ complying with devolved wishes should only be used in the direst of emergencies – not a case where there’s a serious constitutional disagreement between the Scottish Parliament and UK Government over the nature of devolved powers.

Moore’s other statement relates to clause 23 of the Scotland bill, a curious provision that enables UK Ministers to act regarding devolved matters if that is to fulfil a UK international obligation.  The Command paper explaining the bill offered no clear rationale for this.  The trigger turns out to be two cases where the Scottish Government took a year longer than the UK Government to implement agreements concerning two minor organisations ancillary to the European Union.  But the Memorandum of Understanding protects the UK Government from any financial liability (it’s passed on to the devolved administrations), and the UK already has power to implement EU obligations anyway.  It’s now clear that this clause is much wider than is needed to deal with any harm the UK can suffer.

I’ve written more detailed posts about both these issues on Devolution Matters; that on the Sewel Convention is available here, and that on clause 23 is here.