Options for an English Parliament: lessons from existing decentralised states

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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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Brexit, federalism and Scottish independence

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As the UK withdraws from the EU, is this the opportune moment for a restructuring of the Union along (con)federal lines? On 13 February, the Constitution Unit hosted a panel discussion on ‘Brexit, Federalism, and Scottish Independence’, to explore this question further. The panel, chaired by Kenny Farquharson, consisted of Professor Jim Gallagher, Kezia Dugdale and Baroness (Jenny) Randerson. Seema Syeda reports.

Opening the Constitution Unit’s seminar on ‘Brexit, federalism and Scottish Independence’ on 13 February, Kenny Farquharson declared that ‘Brexit is a painting that has not yet dried’. After the EU referendum result exposed a nation fractured along the lines of geography, age, wealth, and education the full consequences are yet to become apparent. The divisions now manifest in UK society are troubling enough to satisfy the worst of cynics – yet, in the greatest constitutional upheaval the UK has seen in decades, some have spied an opportunity.

Might the transfer of wide-ranging powers from Brussels, not only to Whitehall but also to the devolved administrations, provide an opportunity to revitalise our democracy through a newly federal UK? Important competencies relating to agriculture, fisheries and the environment will, unless the UK government legislates otherwise, return to the Scottish Parliament and to the Welsh and Northern Ireland Assemblies. Both the devolved and central governments will therefore see a dramatic increase in their powers. Brexit, as ‘wet paint on canvas’, in a continuation of Farquharson’s vividly imagined metaphor, might be an opportunity to restructure the relationship between the UK’s four constituent nations.

These possibilities were discussed by a panel which consisted of Professor Jim Gallagher, Scottish Labour leader Kezia Dugdale and former Liberal Democrat Welsh Assembly member and Wales Office minister Baroness (Jenny) Randerson. Kenny Macaskill, Cabinet Secretary for Justice in the Scottish government under Alex Salmond, was also due to attend but unfortunately could not make it due to unavoidable business in Scotland.

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The Scottish government’s Brexit paper suggests that the last thing Nicola Sturgeon wants is an independence referendum

Jim-Gallagher

Yesterday the Scottish government published a detailed policy paper, setting out options for how Scotland could remain in the EU single market following Brexit. In this post Jim Gallagher argues that the paper, which focuses on options that would involve Scotland remaining part of the UK, suggests that Nicola Sturgeon would rather avoid a second independence referendum. The First Minister may instead be edging towards a confederal solution that the majority of Scots might sign up for.

The publication of the Scottish government’s policy paper on Brexit, Scotland’s Place in Europe, may signal something of a change in tone from the SNP leadership. Reading it, one can only conclude that last thing Nicola Sturgeon wants is an independence referendum.

Certainly Sturgeon’s tone contrasts with the noises off from Alex Salmond, who has been energetically laying the groundwork for a rerun of 2014, or some of Scottish government Brexit minister Mike Russell’s earlier rhetoric. It is still possible to conclude from the paper and the logic of the SNP’s argument that, if they don’t get the concessions they hope, then they will be demanding another independence referendum. But the big message from the paper and its presentation is not bullying language about when a referendum might be called: it is that the SNP don’t think leaving the EU justifies repeating the independence poll at all. Instead they are setting out ways the UK can leave the EU without one. Can the UK stay in or near the single market, or at least can Scotland? If it can the UK leaves the EU, but the SNP won’t find themselves demanding ‘indyref2’.

Responses from Unionists

Opponents of independence can respond in different ways. It’s easy enough to mock. Many, supporters and opponents alike, will say it’s fear. Maybe fear of losing – two-thirds of voters don’t want yet another poll, and independence support is where it was in 2014. Around 400,000 nationalists seem to dislike the EU as much as the UK  and might not vote to leave the UK just to join the EU again. So despite what Alex Salmond says, the prospects of another referendum are not hopeful for the SNP and a second defeat would surely be fatal to the cause.

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We need a cross-party convention to consider proposals for a Federal UK Council

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In a pamphlet published last week Lord Owen suggested that a cross-party convention should be established to consider proposals for a Federal UK Council, modelled on the German Bundesrat. He argues that such an institution, which would include representation for London and the new city-regions as well as England, Scotland, Wales and Northern Ireland, could help unite the UK in the aftermath of the EU referendum. In this post he summarises his proposals.

In the aftermath of the EU referendum result it is both logical and appropriate for political parties to seek to unite the UK. In a pamphlet published last week I propose that to this end an all-party convention should be held on the establishment of a Federal UK Council, modelled on the German Bundesrat. I argue that running our exit from the EU in tandem with the creation of a Federal UK Council is both feasible and proper. Different people and different issues are involved, but they fit together. Postponing a Federal UK Council would be an error and risks missing a moment in history when the British people are well aware that our unity is at risk and yet most want it to be maintained.

The German Bundesrat

I am convinced that if any convention is to be capable of attracting full SNP participation it needs a specific, not a general mandate. This specific mandate should be to examine the possibility of establishing a Federal UK Council based on the model of the German Bundesrat. The Bundesrat has the advantage of being a proven mechanism designed to approve all legislation that affects Germany’s 16 Länder (federal states), including constitutional changes.

The Bundesrat’s membership is drawn entirely from the executives (i.e. governments) of the Länder. Each state sends a delegation of between three and six members depending on population size (all have at least three members, those with populations of over two million have four, those with populations of over six million five and those with populations over seven million six). The delegations are required to cast their votes as a block, even though there are often coalitions at state level so they are drawn from two or more parties. Should members of a delegation cast different votes then all of the votes of that state would be invalid.

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In order to sustain itself, the UK must become a new and different Union

Jim-Gallagher

Jim Gallagher reflects on what the Scotland Bill tells us about the Scotland-UK relationship and devolution more broadly. He argues that the Bill presents a challenge to the unwritten constitution, and that now is the time to clarify and codify the territorial aspects to make a statement about how and why the Union hangs together.

The Scotland Bill calls to mind, irresistibly, the aphorism of Lampedusa: if things are to stay the same, they’ve got to change. If it is to sustain itself as a Union, the UK must become a new and different one. The Scotland Bill should be the catalyst for change, but this isn’t only about Scotland.  It is about how the UK understands itself as a territorial state. Like Scotland, Wales and Northern Ireland understand the UK as a voluntary association bound together by common interests and shared experience, in many ways like a federal country. But too many at the centre of the UK see a unitary state with some untidy territorial edges. In essence this understanding is based on a half-baked notion of parliamentary sovereignty. If the UK wants to stay together, this has to change.

The Scotland Bill makes the nature of Scotland-UK relationship more explicit, and implies similar things about Wales and Northern Ireland too. The UK is a multinational state, an association whose membership is voluntary, and that is now very explicit for both Northern Ireland and Scotland. Scotland has always had its own institutions, separate from the UK’s. For first three centuries after the union, these were Scottish, but undemocratic. For the last 15 years, Scottish institutions have been accountable through the Scottish Parliament. The Scotland Bill puts it beyond doubt that this is irreversible. Devolution is permanent, and the Scottish Parliament is master in its own house: its power is paramount in devolved matters, and it controls its own composition. That is the point of the constitutional provisions of the Bill: statements of the obvious if you like, but that will be true of many constitutions–if you know how the institutions work in practice, you will find the constitutional legislation almost banal.

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The future of the union: It’s about politics, stupid!

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On Friday 5 June, the Constitution Unit and the Wales Governance Centre jointly sponsored a conference of politicians and academics on ‘Devolution and the Future of The Union’ at the British Academy. It followed up a series of separate reports by them and by the Bingham Centre for the Rule of Law and the Institute for Government, urging an end to the UK’s government’s piecemeal approach to devolution. But the Scotland Bill’s second reading in the House of Commons on Tuesday made it clear that the political parties are not rushing to heed the academic advice. Brian Walker reflects on the differences between the two agendas.

The two rival victors in the general election have made opening moves over the future of the United Kingdom. After the second reading debate, government sources let it be known that the Scotland Bill based on the Smith Commission report was all Scotland was going to get this session, while the SNP played down full fiscal autonomy as one of its early aims. But this still leaves plenty to dispute. SNP demands for ’Smith plus’ – in the shape of further powers on job creation, taxation, welfare and wages – were left hanging. No clue was offered as to how the balance would be negotiated between pooling and sharing at UK level, and the extensive new fiscal powers being awarded to Holyrood. While the Barnett formula which disproportionally benefits Scotland remains in place, the government’s position contains the implicit challenge: if you want to take public service provision further, pay for it yourselves.

Fiscal devolution: Barnett and other issues

At the conference, it was the English local government expert Tony Travers who put his finger on the issue likely to feature more prominently than purely constitutional matters. ‘The Conservative aim of shrinking of the state to 36% of GDP raises big questions of how to sustain public services’. It is hardly shock news that there will be no increase in subvention levels from Westminster for further devolution under the Chancellor’s latest programme of fiscal consolidation. In his much-vaunted ‘Northern powerhouse’ plan, budgets will be concentrated for maximum effect, not increased. Fiscal tightening has already aggravated the stand-off between Westminster and Cardiff Bay over the ‘unfairness’ of Wales’ Barnett deal, and it has produced an anti-austerity rebellion at Stormont which could threatened the survival of the power sharing institutions. From the start of the parliament, political tensions over devolution seem set to rise, with unpredictable results for the future of the UK.

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The English Question comprises two broad questions, with half a dozen different answers

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The Constitution Unit conducted a three-year research project into the English Question, with a team of ten people led by Robert Hazell. This blog post summarises their main findings and conclusions.

For a more concise introduction to the English Question and the points discussed here, see Robert Hazell’s “Bluffer’s guide“.

For their book, see Robert Hazell (ed), The English Question (Manchester University Press, 2005).

1              The English Question comprises two broad questions

The English Question is not a single question, but a general heading for a whole series of questions about the government of England. Scotland, Wales and Northern Ireland have a stronger political voice as a result of their elected legislatures, which have all been given greater powers. England and the English regions risk losing out in the distribution of government funds, in competition for inward investment, in making English laws. For the first 15 years of devolution the English did not seem to care. Polls showed they were quite content for the Scots, Welsh and Northern Irish to have devolution, but did not want any for themselves. That has changed following the Scottish independence referendum and the proposal to grant Scotland further powers. Politicians have rekindled the debate about English votes on English laws; but it is not clear whether the English want a stronger political voice, or simply fair treatment on issues like the territorial distribution of funding.

Answers to the English Question vary because they are responses to different versions of the question. If the aim is to give England a separate political voice, to rebalance the louder political voices now accorded to Scotland, Wales and Northern Ireland, then solutions are English votes on English laws, or an English Parliament. But if the aim is devolution within England, breaking the excessive domination of the central government in London, then the solutions include elected regional assemblies, city regions, stronger local government, elected mayors. Conservatives tend to favour the first set of solutions, and Labour the second (but with exceptions on both sides). If they appear to be talking past each other, it is because they are answering different versions of the question.

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