Devolution and the West Lothian Question - Part 1

The background to devolution

The so-called "West Lothian Question" arises from non-uniform devolution within the United Kingdom, although as the name suggests it originates from devolution proposals for Scotland (in fact, those current in the 1970s).

Although Scotland has for over a thousand years retained (and still retains) its own legal system, the union with England and Wales made by the Acts of Union of 1707 instituted a sharing of legislative and executive sovereignty with England and Wales in the Parliament at Westminster. The Scotland Act 1998 changed this by establishing the Scottish Parliament with legislative autonomy for all but certain "reserved matters". This includes legislative power in health, education, transport (except air transport), local government, planning and development, and most areas of the criminal law. The 1998 Act also established the Scottish Executive, which now calls itself the Scottish Government since the Scottish National Party became the largest party in the Parliament following the last Scottish election in 2007 (albeit without a majority).

Northern Ireland has had a Parliament at Stormont since the enactment of the Government of Ireland Act 1920, further formalised with the creation of the Irish Free State in 1922 (the progenitor of the present Republic of Ireland), although there was direct rule from Westminster from 1972 because of civil strife between the communities. The Northern Ireland Assembly is the latest incarnation of the Stormont Parliament, being established by the Northern Ireland Act 1998 following the signing of the Good Friday Agreement. It has a similar degree of legislative autonomy to the Scottish Parliament, and indeed somewhat wider powers if the Secretary of State for Northern Ireland consents (with the Secretary of State's consent it may enact legislation on reserved matters provided they do not fall within a special category of reserved matters described as "excepted" matters).

Wales has constitutionally been considered to be a part of England for most purposes since the 15th or 16th century and certainly following the Glorious Revolution of 1688, and since then has had a single legal system with England. However, under the Government of Wales Acts of 1998 and 2006, there is now a Welsh Assembly with limited legislative power to pass Assembly Measures (the exercise of which is the subject of Orders in Council under Part 3 of the 2006 Act) and an Assembly Government. Under Part 4 of the 2006 Act the Assembly may, by a vote of two-thirds of all its members, hold a referendum in Wales under which it may acquire wider "Assembly Act" powers similar to those of the Scottish Parliament and Northern Ireland Assembly. The Assembly Government is at present a coalition of the Labour party and Plaid Cymru (the Welsh nationalist party), under which the Labour party has committed to support the holding of such a referendum by 2011. Sensing a stirring of the pot in England, it may well renege on that, and even if it doesn't a change of UK government is quite likely before then.

Formally, the Westminster Parliament still retains legislative power for the whole of the United Kingdom even in relation to devolved matters, but it does not in fact legislate for Scotland on devolved matters without the consent of the Scottish Parliament by virtue of the "Sewell Convention" - to the point that in 2004 the UK government apologised to the Scottish Parliament for legislating in Scotland on a minor housing matter without consent by oversight (an Act concerning mobile homes was amended in the UK Parliament thinking it applied to England and Wales only when it didn't - the irony of Scottish members voting on supposedly England/Wales-only legislation seemed to escape everyone). That consent is now rarely given in relation to Scotland on other than private member Bills (which normally make no progress) and would not be given in any event by the Scottish Government unless it were to agree with the proposals of the UK government. Similar principles apply in Northern Ireland while there is a functioning government under the 1998 Act in effect.

The West Lothian Question

There is no equivalent devolution for England. In addition members of the Westminster Parliament for Scotland, Northern Ireland and Wales retain full competence to decide laws in England, and to hold office as ministers in England in relation to matters wholly devolved in their own constituencies.

In short, members of Parliament for constituencies in Scotland, Wales or Northern Ireland may take decisions for England, both as legislators and as members of the executive branch of government, even where they no longer do so for their own constituencies because of devolution. This is the issue referred to as the West Lothian Question (although it could equally be called the West Belfast question or, particularly following a successful Assembly Act referendum, the West Clwyd question).

From the perspective of representational democracy this gives rise to two problems. First, it means that members of Parliament may take decisions as legislators or as members of the executive for which they bear no accountability to their electorate (their constituents) because they do not affect their electorate. Secondly, and this is really the other side of the same coin, people in England may be made subject to laws or decisions on matters devolved elsewhere which are opposed by the majority of their representatives in Parliament.

This might be thought of as unfair (and most reasonable people would I think recognise that it is), although as discussed in Part 2 it operates on two different levels, namely those of principle and pragmatics. However, it should be realised that from the nationalist point of view, it is not necessarily a unique unfairness within the British constitution. Under the various Acts of Union, voluntarily assented to in the case of Scotland, some may have perceived an unfairness to the extent that people in England would have been able by their numerical superiority to impose policy on other nations in the UK. I suspect that some proponents of the current devolution 'status quo' view current arrangements as a redistribution of unfairnesses, by creating circumstances where people in other parts of the UK can in certain circumstances impose policy on people in England in areas where they are the sole arbiters of policy for themselves - a kind of balancing of two injustices such that at least they reciprocate in some way satisfying to them.

However, this is a particularly tribal view of the United Kingdom. It assumes that people in England have some common political animus that might make them to want to dominate, and that other parts of the UK have a corresponding animus with respect to people in England - that we are not "in it together". It seems to me to be a weak argument for tolerating the obvious democratic deficiencies of the current arrangements. It would also mean that there is a constitutional instability within the United Kingdom which threatens the cause for it to exist in the first place.