Options for an English Parliament: policy powers and financial arrangements

Ongoing Constitution Unit research is exploring options for an English Parliament. Two of the most fundamental questions concern what policy powers such a body would have and financial arrangements. Jack Sheldon suggests that an English Parliament would be likely to have policy and fiscal powers resembling those of the Scottish Parliament, and that a new funding formula would be required to cover the costs of devolved services. These developments would have major implications not only for England but also for the other parts of the UK.

Since last autumn Professor Meg Russell and I have been working on a research project exploring the options for an English Parliament. Although there have been various calls over the last 20 years to establish such a body, how might it actually work in practice? Two of the most fundamental questions, which have major implications for other aspects of institutional design, concern what policy powers an English Parliament would have and what kind of financial arrangements would be possible. This blog post focuses on these questions.

What English Parliament supporters have said

English Parliament supporters emphasise restoring equality among the UK’s nations, in light of what they see as the unfairness of present devolution arrangements. It is thus unsurprising that they have often set the powers of the Scottish Parliament as a benchmark. The Campaign for an English Parliament (CEP) state prominently on their website that they campaign for an institution ‘with powers at least as great as those of Scotland’. This demand has been echoed by MPs who are in favour, including David Davis, Frank Field and John Redwood. In the aftermath of the Scottish independence referendum Redwood wrote that ‘As we seek to put into legislation what Gordon Brown called Home Rule for Scotland we must do the same for England’.

To the extent that they have addressed finance, advocates of an English Parliament have focused on criticism of the Barnett Formula, which provides more generous per capita government spending in Scotland than in England. Eddie Bone of the CEP has linked the continued use of the formula to ‘closures of A&E departments and council services across England’. Frank Field has likewise been highly critical of the formula, saying that ‘it is totally unacceptable that the poor in [his] constituency should be less well supported than the poor in Scottish constituencies’. Proponents have said less about what sort of financial arrangements they envisage following an English Parliament’s establishment.

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The Wales Bill 2016: a marked improvement but there are fundamental questions yet to be resolved

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Amongst the recent political upheaval, the Wales Bill’s progress through the House of Commons has been somewhat overlooked. Alan Cogbill discusses how the version currently being debated has changed from last year’s much criticised draft bill. He suggests that the new bill is a significant improvement but still leaves fundamental questions unanswered.  

Amidst the excitement and despair of the EU referendum, leadership contests, and the new UK Government, a constitutional measure is hastening through parliament with relatively little attention. The Wales Bill, which puts the legislative powers of the Welsh Assembly on a new footing, and reframes the powers of Welsh ministers, was introduced on 7 June, and has already completed second reading and committee stages in the House of Commons.

The government’s 2015 draft bill ran into heavy criticism, in the Assembly, Commons, and outside. A joint Wales Governance Centre/ Constitution Unit report, which reviewed the draft bill in detail, found it severely flawed. In February then Secretary of State for Wales Stephen Crabb announced a re-think. It fell to his successor, Alun Cairns, to introduce the revised Bill.

The new bill has tried to respond to many of the criticisms made – although its authors have not resisted a little mischief. A new duty on the Assembly to require ‘judicial impact assessments’ of Assembly bills was seen in Wales as importing another (covert) fetter, but it appears not; Alun Cairns said on second reading that appraisals would not give rise to any ‘veto’ by the UK.  The bill is deliberately declaratory in high constitutional matters, but whether it needs to highlight a small and inconsequential item of inter-government relations seems questionable.

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Things flying apart? Analysing the results of the devolved elections

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On 25 May the Constitution Unit invited three electoral experts to give their analysis on the results of the recent devolved elections in Scotland, Wales and Northern Ireland. In this post Artur Foguet Gonzalez summarises their key insights.

 The fifth round of elections to the devolved parliaments and assemblies in Scotland, Wales and Northern Ireland took place on 5 May. On 25 May the Constitution Unit hosted three electoral experts ­– Professors Ailsa Henderson, Roger Scully and Cathy Gormley-Heenan – to digest the results. This post summarises the key points that were raised by the speakers.

Scotland: Professor Ailsa Henderson, University of Glasgow

Scotland awoke the morning after the election to two significant results: the Scottish National Party (SNP) was still the largest party in Holyrood but no longer held a majority, whilst Labour’s decline continued as it fell behind the Conservatives to become the third largest party in Scotland. Ailsa Henderson used her data from the Scottish Election Study (SES) to explain these results.

For the SNP three factors explain their continued popularity: the constitution, valence and leadership. Though the data shows that the constitution is not top of voters’ agenda, it also shows that voters are very unlikely to back a party that does not share their view on independence, so whilst the constitution may not be driving voter choice, it is a constraining factor. The SNP was the only party likely to collect votes from those who had supported independence in the 2014 referendum, whilst No voters were split between multiple parties. On valence, when voters were asked which party they trusted most on particular issues the SNP came top, not only on ‘standing up for Scotland’ but on every single issue. Nicola Sturgeon, meanwhile, remains an extremely popular figure.

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Not meeting the challenge: the failings of the draft Wales Bill

The draft Wales bill is far from the fair, clear and lasting devolution settlement Wales seeks, writes Alan Trench. Drawing on a joint Constitution Unit and Wales Governance Centre report, he explains that the ‘necessity test’ and the not thought-through ‘reserved powers’ approach would make it particularly difficult for the Welsh Assembly to legislate on concerned matters, and also undermine the respect due to an elected legislature.

When the draft Wales Bill was published in October 2015, it was described by Stephen Crabb, the Secretary of State for Wales as delivering on the UK Government’s commitment ‘to create a stronger, clearer and fairer devolution settlement for Wales’. This is badly needed; the history of Welsh devolution since 1998 has been one of short-term solutions that have needed to be revised or replaced within a few years. Hopes were high that the present round of constitutional debate – triggered by the appointment of the Commission on Devolution in Wales chaired by Sir Paul Silk in 2011 – would mark a departure from that established pattern.

Sadly, a close analysis of the draft bill shows those hopes to have foundered. A joint project hosted by The Constitution Unit and the Wales Governance Centre at Cardiff University has been looking at the draft bill in detail, and published its report Challenge and Opportunity: The Draft Wales Bill 2015 yesterday.  Our group has been chaired by Alan Cogbill, former Director of the Wales Office in Whitehall, and had Professor Rick Rawlings from UCL as rapporteur.  Other members have included Sir Paul Silk and Sir Stephen Laws (formerly First Parliamentary Counsel), academic and practising lawyers from Cardiff, as well as myself. This work follows an earlier joint CU/WGC report published in September 2015, entitled Delivering A Reserved Powers Model of Devolution for Wales (available here as a PDF, and summarised here). Our examination of the draft bill has found it to be flawed in many respects.

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Legislative consent in Wales

Alan Trench discusses the Sewel convention’s application to Wales and the implications of this for the current debate about Welsh devolution. He argues that were the recently introduced draft Wales Bill to be enacted without the Assembly’s consent, it would lead to a major constitutional crisis, and that the idea of holding a referendum on the devolution of income tax without the Assembly’s consent is also a constitutional non-starter.

The Sewel convention has rightly come to be seen as key to the working of devolution in the United Kingdom. It may have first been envisaged as a way of enabling Westminster to continue to legislate for devolved matters and maintain something like the practical pre-devolution status quo in policy-making, when convenient and politically acceptable, but it was quickly understood to mean more than that.

One reason may be that devolved legislative powers are more far-reaching than was at first appreciated. More important, though, is the emergence of the ‘constitutional’ dimension of the convention. The wording used in the Memorandum of Understanding (first agreed in 1999 and not changed since then) may refer to ‘the UK Parliament … not normally legislat[ing] with regard to devolved matters except with the agreement of the devolved legislatures’, but Devolution Guidance Note 10 on Post Devolution Primary Legislation regarding Scotland has been clear that consent is also required where there are changes to the functions of the Scottish Executive/Government or Parliament.  This means that functions cannot be removed from the devolved tier of government without its consent.  It also means functions cannot be added without consent, meaning that the UK tier cannot get rid of inconvenient functions, or transfer them without adequate funding, if a devolved legislature objects.

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The electoral implications of the draft Wales Bill

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Last Tuesday the government published their draft Wales Bill. Among its provisions are devolution of control of the electoral system for Welsh Assembly and local government elections. In this post Roger Scully explains the significance of this.

It was all fun and games in Wales last Tuesday, as the draft Wales Bill was published by the UK Government. This putative piece of legislation has had quite a long gestation – a process that includes both the second Silk Commission report (published in spring 2014) and the cross-party talks that generated this spring’s St David’s Day declaration.

There has already been, and will doubtless continue to be, much debate about the draft bill, at least among the Welsh political class. I think it is fair to say, given the reception accorded the draft bill, that it is far from certain to become legislation at all, and certainly not in quite this form. The bill will need to go through both Houses of Parliament. It will also need to be supported by the National Assembly. At present, we are only at the stage of draft legislation, which will face pre-legislative scrutiny in parliament from the Welsh Affairs Committee over the next few months.

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