Moving Westminster into a multi-parliament world: the Commons takes a fresh look at devolution

The UK’s devolved institutions in Northern Ireland, Scotland and Wales celebrated their twenty-first anniversary this year. Their powers have changed several times since their creation, but much of this has occurred in an ad hoc way, without deep consideration at UK level of the overall devolution framework. Paul Evans explains how a new Procedure Committee inquiry into how the House of Commons should adapt to the ‘territorial constitution’ presents an opportunity to give some key devolution issues the attention they deserve.

Devolution in the UK turned 21 this year, and watching it grow has been a fascinating study in making up the constitution as you go along. The Scotland Act 2016 and the Wales Act 2017 (each of them the third major reworkings of the statutory basis of devolution in those nations in less than 20 years) declared the devolved legislatures there, along with their governments, to be a permanent part of the UK’s constitutional arrangements, which could be abolished only with the consent of the people in a referendum. 

In both those nations 16- and 17-year olds have been newly enfranchised and will participate in the elections of their parliaments next year. The Northern Ireland Assembly restarted (once more) in January after a three-year absence, and in May the Welsh Assembly renamed itself the Welsh Parliament (or Senedd Cymru if you prefer to use the UK’s – so far – only other official language). 

All in all, the journey towards a pragmatic form of de facto federalism in the UK has been a remarkably peaceful and generally good-natured velvet revolution. So perhaps it’s not so surprising that the House of Commons Procedure Committee has not felt the need to have a major review of the implications of devolution for the workings of the Commons since 1999.

Watching its progeny develop their own values and make their own decisions has, nonetheless, been a challenging learning experience for Westminster. The assertions of devolution’s permanency and its implication of equality of esteem between the four legislatures of the UK has often appeared more rhetorical than real. Whitehall seems never to have fully come to terms with the loss of centralised control which devolution necessarily entails. But, collectively, the elected members of the four legislatures have done little better in opening up and sustaining channels of communication – though some good work has been done at the margins. 

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“ENGLISH VOICE FOR ENGLISH LAWS”

20th May 2013

When the Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly were established by law between 1998 and 1999, no English institution was created in parallel. England therefore continues to be governed and legislated for by the UK Parliament only, while Scotland, Wales and Northern Ireland are ruled by their devolved competencies on all matters that are not reserved for Westminster. But a problem arises in such an asymmetrical framework of devolution: the question of why MPs from Northern Ireland, Scotland and Wales can vote on laws that apply only to England, while MPs from England do not have reciprocal influence on devolved issues. This problem, well-known as the West Lothian Question, is still unresolved. To address the question the Coalition Government set up the McKay Commission, which released its report on 25 March 2013.

Evidence from the Future of England Survey (FoES, 2011 and 2012; see McKay Commission’s Report, 2013: 16-17) clearly shows that the vast majority of people in England see the current state of English decision-making as wrong or unfair. Some solutions for the West Lothian Question have already been suggested. The most radical involve either entirely abolishing devolution, or maintaining the status quo and essentially ignoring the problem. Other proposals include 1) strengthening local government in England, 2) establishing English-based parliaments, either one for the whole of England or several regionally, or 3) electoral reforms aimed at either the introduction of proportional representation or a reduction in the number of non-English MPs at Westminster. None of these alternatives is free of substantial objections.  Perhaps the most significant barrier to implementing one of the above changes is the high cost of implementation.

According to the polls, the preferred solution of those English people surveyed (FoES, 2012; in McKay Commission’s Report, 2013: 18) is a rather different and perhaps less costly one: “English votes for English laws”. This would require that laws applying to England be passed only if a majority of MPs from England is in favour, or that a double-majority, or “double-lock”, be introduced by which legislation could only be passed if there is both a majority of MPs from England and a majority of the House of Commons as a whole in favour. The problem with such solutions is threefold: 1) they essentially create two classes of MPs, violating the notion of equal representation, 2) identifying English laws is difficult given that there are few laws which solely pertain to England, and 3) even laws that solely pertain to England often affect the rest of the United Kingdom, considering how large England is relative to the other regions.

The Commission, however, has tried to address these problems by ensuring that all of Parliament has the capacity to protect UK-wide interests. They propose application of the principle already applied in Parliamentary discussions of devolved issues: listen first to the opinion of the concerned part. In other words, “decisions at the UK level with a separate and distinct effect for England should normally be taken only with the consent of a majority of English MPs”(McKay Commission’s Report, 2013: 36-38). The idea behind the proposal is to improve the accountability of the decision-making process by clearly separating English and UK-wide interests. Hence, where a government tried to ignore the English outcome in the chamber, it would be running the risk of paying the price for doing so at the next election.

As noted by Professor Charlie Jeffery and Sir Stephen Laws in their seminar at the Constitution Unit last week, the Commission has provided a political solution for a political problem.  By advocating the adoption of a convention whereby English MPs would be given privilege in debates over English issues but not in votes, the McKay Commission hopes to address the West Lothian Question while still giving MPs from Northern Ireland, Scotland, and Wales a say on those issues.

At first, the solution seems fairly pragmatic.  It seems to resolve the mains issues with a kind of “English voice for English laws” solution, while avoiding the costs that would be entailed by creating regional parliaments in England or changing the electoral rules. That said, the McKay Commission’s solution is, at best, partial.  It is not clear on which bills English MPs would be given priority, or what the mechanism would be for making this decision, though some proposals have been already submitted (McKay Commission’s Report, 2013: 52-62). Furthermore, since MPs from the devolved regions will still be voting on English laws, one could argue that the McKay Commission’s solution is more of a band aid, meant to appease the English constituent, than a real solution.  Only time will tell if the McKay Commission’s band aid will be adopted, or if English constituents will demand more substantial action.