Devolution in England: a review

On Monday 10 April Professor Tony Travers of the London School of Economics (LSE) spoke at a Constitution Unit seminar on devolution in England. The talk covered the history of English devolution, international comparisons, and some thoughts for the future amidst the current Brexit-dominated political landscape. Kasim Khorasanee reports.

English devolution – the delegation of powers, responsibility, and accountability from central Whitehall/Westminster government to sub-national levels – has had a fitful and uneven history. Its inevitable comparators are the devolution processes to Northern Ireland, Scotland, and Wales which took place from the late 1990s onwards. All three received national devolved governments and legislatures. More recently, Scotland and Wales have been the subjects of significant fiscal devolution. England, on the other hand, appears to have been left out in the cold – having no devolved government outside London, and both fewer MPs and lower public expenditure per head of population than other parts of the UK. Professor Travers explained that historically this trade-off was seen as necessary to maintain the Union – it was felt that an assertive England would dominate any federal union, for example its budget would be significantly larger than a federal UK government’s. However, devolution to the other UK nations had stirred something of a burgeoning sense of English identity.

English devolution – a brief history

Taking us on a canter through the history of English devolution, Travers began with Labour’s aborted attempts in the 1970s. The Kilbrandon Report (1973) recommended regional devolution within England, as well as legislatures for Wales and Scotland. The Layfield Report (1976) emphasised the importance of local accountability and responsibility for financial matters. Both failed to be implemented, and attempts at Scottish and Welsh devolution played a key part in the fall of the Labour government. The ensuing Conservative government in the 1980s brought to an end a number of significant devolved entities – metropolitan counties, the Greater London Council, and the Greater Manchester County Council. It was under Tony Blair’s Labour government that devolution received its new life. However, while Scotland, Wales and Northern Ireland received devolved assemblies, regional devolution within England was stopped short by the North East referendum (2004). But the North East was offered ‘nothing like’ the powers devolved to Scotland and Wales. An opposition campaign, illustrating their point with a life-sized white elephant, convincingly defeated the devolution proposal by 78 per cent to 22 per cent. This left the idea of regions ‘doomed – possibly forever’. In terms of new elected bodies, the only significant change was hence the resurrection of London-wide government, with the establishment of the Greater London Assembly and London Mayor in 2000.

City regions and fiscal devolution

Travers flagged that ‘city regions’ have since taken over as the focus of English devolution efforts. He drew a parallel between Tony Blair’s presidential governing style, and his push for city regions to be led by further directly-elected mayors. This enthusiasm was carried on by David Cameron, who continued to build on his predecessor’s policy. City regional mayors were made a condition of greater devolution to combined authorities. Travers emphasised that the current legislative framework for English devolution envisaged highly ‘bespoke’ devolution across the country. In doing so he highlighted that this could result in wide – seemingly random – disparities in the functions devolved to different city regions. One area which appeared quite resistant to change, however, was fiscal devolution. Although the aforementioned Layfield Report, and more recently the London Finance Commission’s reports (2013 & 2017), called for localised responsibility for taxation, central government has traditionally been highly reluctant to implement this. Travers acknowledged that responsibility for local business rates was being devolved to local government by 2020, but pointed out that it was being offset by the phasing out of the central grant to councils.

To put the UK’s lack of fiscal devolution in context Travers drew on international comparisons. He cited OECD statistics setting out the UK’s sub-national tax-raising as 1.6 per cent of GDP. By comparison Sweden, Canada, and Germany all had figures of over 10 per cent, the OECD average sitting at 8.8 per cent. The UK was very much an outlier in this respect (see below).

Similarly there are far fewer taxes devolved to London when compared with other capitals such as New York, Berlin, Tokyo, and Paris. In sum there would have to be far more radical change than currently envisaged to bring the UK into alignment with OECD trends.

Current government policy

From speaking to civil servants, Travers identified that Theresa May’s Conservative government intended to shift its emphasis away from devolution. The current ongoing processes for the May 2017 elected mayors, the 2018 mayoral election in Sheffield, and the potential for a ‘North of Tyne’ combined authority and mayor, were the extent of the devolution policy horizon. In a piece of analysis which drew chuckles from the audience he cited the number of UK budget mentions of the phrases ‘devolution’, ‘Northern Powerhouse’, and ‘mayor’ between March 2013 and March 2017. There was a spike in mentions after the coalition – between 2015 and 2016 the average number of mentions of the three phrases per budget document was 31, 14, and 13 respectively. However this dropped sharply in Philip Hammond’s March 2017 budget to eight, one, and zero mentions respectively.

Mayors and communal identities

Travers suggested that the experience of London indicated that the introduction of directly elected mayors for city regions across the UK could have significant implications. As well as having a generally higher turnout compared to local elections, London’s mayoral elections have helped cement the idea of London as a political unit in people’s minds. Devolution can reinforce a sense of difference from the whole, and Travers drew attention to the fact that the three significant ‘Remain’ regions in the EU referendum – Greater London, Northern Ireland, and Scotland – were also the subjects of significant devolution (though the balance of votes in Wales was for ‘Leave’). In the case of London this sense of civic identity had not yet gained enough momentum to push for Scottish or Welsh-style devolution. However, Travers did note an increase in the number of news articles discussing London independence. He suspected that the incoming 2017 elected mayors would – as London’s mayor had historically done – lobby for increased powers once in office. As a body the mayors could hence potentially become a lobby for English devolution. Given the consistent electoral popularity of London’s mayors, and some of the high profile candidates for the incoming May 2017 mayoral elections, these positions might also increasingly prove a staging ground for national political careers.

Reflections

In considering why England was so centralised Professor Travers reflected on a variety of explanations – the historic power of the Crown, the end of Empire, and the conflicts with local government across the 1970s and 80s. Ultimately, he expressed uncertainty about the reason, but suggested that national politicians in the UK appear to instinctively have little faith in sub-national government. Ultimately the future of English devolution is tied up with wider forces – the fate of the Union, austerity and the financing of the state, and the Brexit process.

About the speaker

Professor Tony Travers is a Professor at the LSE, and Director of the LSE London research centre

About the author

Kasim Khorasanee is a Research Volunteer at The Constitution Unit

Following Monday’s deadline, the future of devolved government in Northern Ireland remains uncertain

The legal deadline for forming a new Northern Ireland Executive has passed without agreement between the parties. This could have important political and legal consequences, including the return of ‘direct rule’. For the time being, however, the Secretary of State for Northern Ireland has decided to give the negotiations more time. In this addendum to his earlier blog post, published on Monday before the UK government’s statement, Alan Whysall discusses what might happen over the coming weeks.

Monday’s deadline for forming a new Executive in Northern Ireland passed without an agreement. The Secretary of State for Northern Ireland spoke afterwards, and again in parliament on Tuesday. As predicted, he decided to give the negotiation process more time, until after the Easter recess (the Commons returns on 18 April). He will then ‘as a minimum’ bring forward a Westminster bill to regularise finances (see below). The bill would also allow an Executive to be formed, if political agreement emerges. But otherwise, the government would have to ‘consider all options’. Since he made it clear further elections were unappealing, this appears to mean direct rule, though he deplored the prospect.

In most such political deadlocks worldwide, there is at least a caretaker government of some sort: but not in Northern Ireland. No–one is at present empowered to give direction to the Northern Ireland civil service. The Head of the Service set out the nature of that uncomfortable position in a letter to staff. There would be business as usual, but no new initiatives, whose legal legitimacy must be doubtful. Such an arrangement clearly cannot go on for long, and unexpected events could cause real difficulty.

And there will be great budgetary prudence. In the absence of a budget voted by the Assembly, the Finance Permanent Secretary has powers to release certain limited funds, but no more than 95 per cent in cash terms of last year’s budget; moreover, there is no authority at present to raise the principal local tax, the rates (a property tax analogous to Council Tax).

Where do the talks now go? The process to date, and the British government’s role in it, has been criticised for incoherence and lack of inclusivity; for the absence of the Prime Minister; and for lack of full partnership between the two governments. And various participants (not just nationalist) have suggested the British government cannot be an impartial chair, especially in the light of Brexit. Continue reading

Following the break down of talks in Northern Ireland, what now?

Northern Ireland’s political parties have failed to reach an agreement that would allow a new power-sharing Executive to be formed by today’s deadline. This will have important legal and political consequences, possibly including the re-introduction of ‘direct rule’ from Westminster. These issues are looked at here by Alan Whysall.

Political negotiations have been going on since the election of 2 March, which was brought about by the decision in January of Martin McGuinness of Sinn Féin (who has since died) to resign as deputy First Minister. Yesterday, however, Sinn Féin said that the talks process had ‘run its course‘, and they would not be making nominations to Executive offices today. They did not say where the political process might go from here, but professed commitment to the devolved institutions returning.

Sinn Féin have significant grievances that they say must be resolved before a new Executive is formed. They have an effective veto on that happening since, as the largest nationalist party, they must nominate the deputy First Minister. Among their demands has been that the leader of the DUP, Arlene Foster, should not become First Minister until the report of an inquiry into the Renewable Heat Incentive affair that was the ostensible trigger for the election, potentially a year away. That condition would be very hard for the DUP to meet. Latterly, though, they have given precedence to their demands of the British government in relation to what they assert are ‘existing commitments’ as to ‘rights’ of various sorts.

Some may question whether Sinn Féin want to be in devolved government at all at the moment. There is a range of grievances that their base genuinely feel. But in large measure, this may be on account of Brexit. Brexit is the first development since 1998 with a significant effect on the operation of the Good Friday Agreement which was not agreed by both sides of the community in Northern Ireland. It would be extremely uncomfortable for Sinn Féin to be in government, carrying out British rule in Ireland, as hard-line Republicans would put it, while Brexit was being implemented, potentially including barriers of whatever sort (and anything will be an irritant politically) being introduced at the land border within the island.

Northern Ireland views on Brexit appear to have had no impact on the approach in London. A political stand-off against the British government might gain more traction. It may also play well for Sinn Féin politically north and south of the border. But renouncing a role in government in Northern Ireland in favour of British ministers, for an uncertain but perhaps protracted period, is not attractive for them either.

At all events, by today, the main parties in the Assembly elected on 2 March ought by law to have nominated a First and deputy First Minister. They are also scheduled to fill the other ministerial posts in the Executive, and the Assembly Speakership. The Assembly was due to meet at 12 noon for the purpose, and the legal shutters are deemed to come down at 4pm. If the parties do not appoint the FM and DFM by that time their powers disappear and the Secretary of State comes under an obligation to set a date for another Assembly election. There is legal authority that he does not have to do so immediately however, and there is speculation that he might hold off for a while, seeking to reinstate negotiations. He appears likely to make a statement in the Commons tomorrow.

Like his predecessors in similar situations, the Secretary of State has been playing up the prospect of a further election as a threat. In fact that might rather appeal to both of the two big parties, who might hope to pick up seats from smaller ones. But there is no sign that an election would do anything to facilitate political agreement. The arithmetic would not change radically. The campaign would probably intensify the reversion of the political debate in Northern Ireland to the old unionist-nationalist, them and us, stand-off, and away from the era of working together which Martin McGuinness personified.

If there are no Executive appointments, and no elections, some Westminster primary legislation will be needed after today. That might be to permit the selection of an FM and DFM, if there is a late breakthrough; or give more time for negotiation if the prospects radically change. And in those contexts there might be powers to fix aspects of Executive business in the short term, since there are no ministers at present, nor any budget for the new financial year.

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A second Scottish independence referendum without a s.30 Order? A legal question that demands a political answer

In this blog Stephen Tierney argues that the legality of a unilateral referendum organised by the Scottish Parliament is a grey area. He also offers personal reflections from his experience as a parliamentary adviser at the time of the 2014 referendum and contends that a referendum held without an agreed process would have been damaging then and would be damaging now. It is incumbent upon both governments to ensure that a political solution to the current dispute is achieved and that, in particular, such a divisive issue is not left to the courts to settle. 

The Scottish Parliament today concludes its debate on whether to request from the UK parliament a ‘s.30 Order’ under the Scotland Act 1998. This would provide unequivocal authority for the Scottish Parliament to hold a second independence referendum. Westminster is likely to refuse this request for the time being at least, raising the question of whether the Scottish Parliament can legislate to hold a referendum without such consent.

In 2012 I argued that there was a plausible case to be made that the current powers of the Scottish Parliament do indeed allow it to legislate on the subject of an independence referendum; a view shared by several colleagues. The argument was that a consultative exercise, asking the electorate if they favoured an independent Scotland, could be legally permissible. Crucial to the legality of such a referendum, however, would also be its legal inconsequentiality; it would not bind the UK government to give effect to a pro-independence outcome.

I still consider this argument to be valid; the relevant devolved powers of the Scottish Parliament have not changed since that time. But I went on to serve as Constitutional Adviser to the Scottish Parliament Referendum Bill Committee which helped shape the bills (here and here) which regulated the 2014 referendum. What became clear to me was that, regardless of whether one was a Yes or a No voter, it was far better in terms of fostering a conducive environment for debate that a referendum, without the consent of the UK parliament, was not attempted. The fact that the 2014 referendum was the product of the Edinburgh Agreement between the Scottish and UK governments is central to how commentators now look upon that referendum as a valid and deliberative, if not uncontentious, exercise in popular decision-making.

In this blog I will briefly set out the zone of legal uncertainty, one which does suggest that the Scottish Parliament’s powers in this area are potentially broader than is often claimed. My main goal, however, is to make a plea for political restraint by both governments in recognition that this is fundamentally an issue of politics and not of law, and that in the interests of a healthy, democratic political process, it is incumbent upon the two governments not to allow an uncertain area of law to become a political football.

I would emphasise that this is not a call for unilateral self-restraint by the Scottish government and Scottish Parliament; both sides must work to ensure that this matter does not end up before the courts with potentially disastrous consequences for the reputation of the UK’s Supreme Court and the health of our democracy.

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A second independence referendum in Scotland: the legal issues

First Minister Nicola Sturgeon yesterday declared the Scottish government’s intention to hold a second referendum on independence by spring 2019. In this post Stephen Tierney discusses the steps that have to be gone through before this is realised. He suggests that although a referendum is not inevitable the Scottish government are not bluffing about it – if, as seems likely, it can gain a majority in the Scottish Parliament to request a s. 30 Order, and can convince Westminster to grant this, then the path will be set for a referendum process that could see Scotland leave the UK just as the UK leaves the EU.

Scottish First Minister Nicola Sturgeon yesterday announced the Scottish government’s intention to hold a second referendum on independence between the autumn of 2018 and the spring of 2019. The move comes ahead of the start of Brexit negotiations under Article 50 of the Treaty of European Union, expected to be triggered by the end of the month. The next two years are set to be consumed by two parallel processes that will see the UK leave the EU and could also see Scotland leave the UK in an effort to remain within the EU.

Can the Scottish Parliament hold a referendum without the consent of Westminster?

Whether the Scottish Parliament can unilaterally hold an ‘advisory’ referendum on this issue has never been finally resolved. But it seems clear that the Scottish government does not propose to test this issue; instead it will seek the consent of Westminster to a so-called s. 30 Order, thereby ensuring that the UK government will have to accept the referendum result.

A s. 30 Order would involve a temporary transfer of power from the UK parliament to the Scottish Parliament to allow the referendum to go ahead, along similar lines to the 2014 process. The Scottish government indicated its intention to go down this route in its white paper, ‘Consultation on a Draft Referendum Bill’ published in October last year, and this was also confirmed by the First Minister today when she stated that she will ask the Scottish Parliament next week for permission to request a s. 30 order.

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A watershed is reached in Northern Ireland

Last week’s snap election in Northern Ireland saw the DUP’s lead over Sinn Féin reduced to a single seat and an Assembly without a unionist majority returned for the first time in the institution’s history. Brian Walker digests the result and considers what might happen next.

Gerry Adams was justified in declaring that the perpetual unionist majority since 1921 was ‘demolished’ in Northern Ireland’s snap election on 2 March. Only 40 seats in an Assembly of 90 members went to the two unionist-designated parties, with Sinn Féin’s 27 seats coming within a whisker of the DUP’s 28. The long-term demographic trend towards a nationalist majority in the province was at last translated into Assembly seats. Turnout, at 65 per cent, was 10 per cent up on May last year, the crucial differential turnout favouring nationalists in particular – the Sinn Féin vote was up by 57,000 compared with 23,000 for the DUP. Fairly small increases in percentage share of the vote – four per cent for nationalists, two per cent for unionists – made crucial differences accentuated by the reduction of seat numbers in the Assembly from 108 to 90. Of 16 lost in an Assembly of ten fewer seats, ten were unionists. Undoubtedly, nationalism has recovered momentum. A chance transfer of only a handful of votes could result in a Sinn Féin First Minister next time and seal the transformation.

Sinn Féin’s success should not be exaggerated. All nationalism’s 40 per cent share is well short of what is necessary for calling the border poll which is likely in time to become a Sinn Féin demand. Nationalist voters may have been keener to punish Arlene Foster and the DUP for arrogance than advance the cause of Irish unity. In any hypothetical straight vote in the Assembly  to test support for Irish unity, the pro-union side could muster around 50 votes to nationalism’s 40. There were other successes. The non- sectarian Alliance party held its 8 seats. The first call for cross community voting, controversially made by the Ulster Unionist leader Mike Nesbitt, ironically helped  save all 12 seats for the minority nationalist SDLP, although  at the cost of losing six of their own 16 seats and Nesbitt’s resignation. Nevertheless the score for centre parties could count in simple majority votes in an Assembly so finely balanced between the DUP and Sinn Féin.

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Options for an English Parliament: lessons from existing decentralised states

Jack_SheldonMeg-Russell

Last year the Constitution Unit began work on a project exploring the options for an English Parliament. As part of this research we are examining arrangements in other decentralised states, particularly those which are federal, to draw out lessons for the design of political institutions were an English Parliament to be established. Jack Sheldon and Meg Russell summarise some early findings.

Last autumn we began work on a research project exploring the options for an English Parliament. As outlined in a previous blog post, calls for an English Parliament have long existed, but frequently been dismissed by academics and mainstream politicians. However, in recent years the salience of questions concerning England’s constitutional status has increased and as a result the idea has gained new supporters. Despite this no detailed analysis of the design options for an English Parliament – including key questions such as its possible powers, structure and location – has previously been undertaken. We are aiming to close this gap and plan to publish a report in late 2017.

As part of our research we are examining constitutional arrangements in existing decentralised states, including those which are federal. In this blog post we present some early findings from a survey of arrangements in the 22 states that are listed as federations by the Forum of Federations. The establishment of an English Parliament would not necessarily imply a federal arrangement for the UK, but certainly something like it – with separate legislative institutions for the four historic nations. When drawing out comparative lessons, looking at existing federal states is therefore an obvious place to start.

What are federations and when are they established?

The term federalism covers a wide range of political systems in which legislative powers are divided between state and sub-state levels (see Dardanelli and Kincaid, 2016, for further discussion of the definition). Among the 22 federations listed by the Forum of Federations there are 11 parliamentary systems, nine presidential or semi-presidential systems and two that fall into none of these categories. Even within these categories there is great variation in institutional structures.

The classic early federations – the United States, Australia and Canada, for example – were comprised of existing autonomous political systems. ‘Coming together’ federations of this type remain more numerous than ‘holding together’ federations formed from previously unitary states (for discussion of this distinction see Stepan, 1999). However, the latter category has grown in the post-1945 period. Examples of ‘holding together’ federations include Belgium and India, whilst Spain – though not strictly a federation – has moved in an increasingly federal direction. Were it to move in the direction of a more federal structure the UK would not, therefore, be out of step with developments elsewhere.

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