Devolution and the West Lothian Question - Part 2

For the reasons mentioned in Part 1, I think a solution needs to be found to the West Lothian question if the long term future of the United Kingdom as a political entity is to be assured. In my view current arrangements are, in the long term, simply unsustainable.

However, there is more time to deal with the point than the representational principles to which I referred in Part 1 might lead one to believe. Although I have never seen this articulated in discussions of the West Lothian Question, in the legislative sphere there are two schools of thought:

• The "how dare they" school - this objects to any role for members at Westminster on matters which, in their constituencies, are devolved to another legislature, whether speaking in debates, putting down amendments or voting. (Its proponents are pragmatic though in the sense that they take the Sewell Convention seriously, as they should.)

• The pragmatic school - adherents of this school are not too fussed unless the voting of a particular member at Westminster on a matter devolved in the member's own constituency has a decisive effect in England or (until a successful Assembly Act referendum) Wales.

The "how dare they" school would also automatically object to members for, say, constituencies in Scotland taking office as ministers on portfolios now having England-only scope at Westminster, such as health, local government, education, town and country planning, railways and roads. The pragmatic school may or may not do so. Some may feel that it does make a pragmatic difference, because a member for a constituency outside, for example, England will have her constituents' interests at least equally in mind when administering policy, rather than only the interests of those for whom she is making decisions, and might be less mindful that she will have to face her constituents on her decisions at the next election (she won't).

The "how dare they" school, relying on general patriotic sentiment, is likely to become more important over time as the consequences of devolution feed through into national consciousness in England. It goes without saying that a failure to deal with the pragmatist's view on controversial issues will give a substantial boost to the "how dare they" approach should the scenario described below arise.

The pragmatist's view

In the pragmatist's view, the West Lothian Question in its legislative form is not an issue unless the voting of a particular member at Westminster on a matter devolved in the member's own constituency has a decisive effect on the making of laws in England or (until a successful Assembly Act referendum) Wales.

The pre-disposing electoral outcome at Westminster for this to happen in its starkest form - a working majority or working coalition in the UK but no majority (or coalition majority) in England (or in England and Wales prior to an Assembly Act referendum) - has according to MoJ's correspondence referred to in Part 3 occurred three times with respect to England since 1945. The probabilities will have slightly changed since the period up to 2005, because at the 2005 election Scotland returned only slightly more members per head of population than England, rather than nearly 20% more before 2005. However, that levelling of the playing field will be likely to be offset by the collapse of Tory representation at Westminster for Scottish constituencies and (to a lesser extent) Welsh ones over the last two Parliaments.

If one considers also the case of a government with a working majority in the UK but only a small majority prone to reverses in England (or England and Wales) on controversial issues, this raises the probability of problems arising further.

I refer to some of these points again in Part 3. The purpose of introducing the pragmatist's view here is that it is relevant to possible solutions.

A number of solutions to the West Lothian problem have been suggested, from the establishment of a separate Parliament for England equivalent to the Scottish Parliament and Northern Ireland Assembly (with the giving of immediate Assembly Act powers for the Welsh Assembly under a joint referendum with an English referendum); to a modification of MPs' voting rights in the Westminster Parliament; to some form of regional government within England; to reducing representation at Westminster for devolved areas.

Regional government

Devolved regional government in England is certainly possible. A regional government and parliament for, say, the North, the Midlands and the South, based on the Scottish or Welsh model with real governmental functions and some legislative powers, is doable, might be attractive to those in the north of England at least (and also elsewhere if they were given an opportunity to express a view on what region they thought they were in), and would result in the introduction of something approaching federal government within the UK.

The problem is that that level of full-blooded regional devolution within England is unlikely to occur: whilst Whitehall, and Westminster career politicians, are reluctantly willing to give up Scotland, Wales and (for historical reasons) Northern Ireland, it is highly improbable that they will readily give up England, which they see as the political prize and on which their careers and route to power depend. It is probably even more unappealing to David Cameron (and Gordon Brown) than are sour little Englanders. In England as a whole there may not in any event be a majority in favour of carving the country up in this way.

If done properly with genuine and real devolved powers, personally I would like it, but I am realistic enough to know that without a significant change in political culture it is not going to happen.

Mini-devolution on the Prescott lines with assemblies covering smaller areas with very limited executive or policy forming powers (and no legislative powers) lacks any significant public support, relies on arbitrary boundaries not representing local loyalties, and is based on the conception that the presence of the Mayor of London and London Assembly, which together comprise a reincarnated GLC with a few knobs on, means that the West Lothian Question is no longer an issue for those living in Greater London. It was a nice try on John Prescott's part, and has the advantage of not threatening the political establishment, but is probably doomed to failure first as unwanted and secondly as not addressing the problem. Come the man, come the policy.

An English Parliament

Whether there should be an English Parliament generally generates more heat than light. The argument traditionally ranged against it is that an English Parliament would command such a large proportion of the UK by population and economic activity that it would dominate. I have never wholly got to grips with that argument, as viewed on those terms England dominates already, so no change there. Whilst some, but by no means all, polls seem to show that more people in England want it than not, it is not clear that this is more than a relatively unformed preference (which is probably why polls differ on the point), but since all mainstream parties oppose it, in the short to medium term we are unlikely to find out either way.

In its favour, which is why it might well happen in the long term (but that means long term - 30 years maybe), it does not fracture structures in the same way that full-on regionalisation would. One can see the existing political forms transferring relatively seamlessly into English institutions. Also in its favour is that it brings the West Lothian Question to an end at a stroke, including dealing with the "how dare they" school of objection.

A significant problem (from my perspective) is none of the above - it seems to me to create another layer of bureaucracy without significantly driving down decision making to any degree. In short, there would be more people to spend taxpayers' money on making themselves feel important. Do we really want both Westminster (UK) MPs and MEngPs politicking around at our expense - I don't. It is easy to add bureaucracy, and much more difficult to remove it.

Reducing representation at Westminster in devolved areas

The idea here is that Scotland would return less members to Parliament per head of population than England, and ditto Wales if a successful Assembly Act referendum were held.

This is precedented - it was the solution adopted when the Stormont Parliament was established in 1920 until direct rule in 1972. People in Northern Ireland returned less members per head of population than in other parts of the UK.

The main objection to this is that it misses the mark, by still giving (albeit a lesser number of) members' voting rights in England on devolved matters, whilst also inadequately representing the parts of the UK where there are devolved legislatures on UK reserved issues such as UK taxation, energy supply, defence and foreign affairs. These weaknesses seem to me to be fatal.

Either of the other three possible solutions seem much to be preferred.

Revised voting arrangements at Westminster

This is the "English/Welsh votes for English/Welsh laws" solution. It is favoured by the Conservatives in some form, it appears. Kenneth Clark has chaired a working party with proposals which reported in July this year (Report of the Conservative Task Force "Answering the Question: Devolution, the West Lothian Question and the Future of the Union").

The Kenneth Clark proposals, which involve restricted voting at Public Bill Committee and Report stages, seem to me to be too complicated, and whilst I regard the current government's arguments for the status quo as poor (see Part 3), there does seem to me to be some force in the point made by others, which the Ministry of Justice do not make in that correspondence (perhaps because I was not proposing it), that they would encourage or induce a Parliament within a Parliament. They are similar to the "in and out" proposals examined at the time of (unsuccessful) Bills for Irish home rule at the end of the 19th century, except that all members of Parliament would participate at second and third reading stages.

Whilst that is not necessarily wrong - it is difficult to believe that new political forms could not in due course develop to accommodate them - the British constitution is intensely practical and it seems better to try out more straightforward solutions and see how they work when put to the test.

I have a Very Simple Solution (TM), which is to borrow from the precedent of the House of Lords, namely to confer the power to delay legislation for a session.

I think an arrangement could be devised that if at third reading a particular Bill or separate part of a Bill were not to receive the approval of the majority of members for the countries to which the laws are to apply, then it could only be passed by enactment of the same Bill or part in the following session. That would allow the government to govern, whilst also respecting the position of those in England or Wales and their representatives. This approach may possibly also need to be applied to the Commons Consideration of Lords Amendments stage of Bills originating in the Commons, by taking a further "in principle" vote at that stage, but that is a matter of finesse.

Those who get particularly upset about the West Lothian Question will probably argue that a vote at third reading should be decisive, without leaving the government the opportunity of enacting the same legislation against the wishes of the majority in the following session. I am relatively agnostic about this - forcing a Bill rejected by the Lords through under the Parliament Act is a rare occurrence, and were it to happen in relation to England and/or Wales under my proposal the electorate in England or Wales would be likely to take notice of it at the next election; the government would therefore be expected to have to come up with a pretty good explanation when doing so. In my view whether a third reading vote should be decisive or be subject to being overridden in the next session should be decided on what would best hold the union together and minimise resentment between people in England and people in Scotland (and elsewhere in the UK) caused by asymmetrical devolution.

Looking at the point from a wider perspective, on the one hand, providing a "Parliament Act" kind of procedure would lessen the prospect of a Parliament within a Parliament developing if that were thought to be undesirable - at the end of the day the government would be able to call the shots, where it really wanted to. On the other hand, not allowing rejection of a Bill or part of a Bill to be overridden in the next session would encourage governments in office and oppositions to develop a minimum level of consensus as employed in many other parts of the European Union. That would, it seems to me, be healthy, but with Whitehall and Westminster so used to the hard wiring of the legislature with the executive in the UK as to be part of their DNA at present, that may require too much political sophistication too soon.

It should be noted that either approach to my Very Simple Solution would still give members in Scotland and Northern Ireland a full say on England or Wales-only legislation, and a Bill or separate part of a Bill could still not pass at third reading without a majority of UK members. That might also raise the ire of those particularly upset about the West Lothian Question, but neither could it pass at third reading first time around without there also being a majority within the part of the UK to which the Bill applies.

The extent of a Bill or separate part of a Bill can be certified by the Speaker. It used to be done before devolution for the purposes of the Scottish Grand Committee. Various drafting conventions about how a Bill is divided into parts may be required so as to enable separate treatment in this way, but this is nothing that the flexibility of Parliamentary procedure (and the excellent drafting skills at the Office of the Parliamentary Counsel) could not manage.

This proposal might, depending on taste, also be accompanied by a convention that only a member for an English constituency should be a minister in the Commons for an England-only portfolio - a kind of reverse Sewell Convention. That would not be necessary for my proposal to work however.