I cover it now because the MoJ's arguments presented in the correspondence seem to me to be so weak, even after allowing for the fact that they are no doubt based on the Ministry's standard "scripts" it uses in correspondence on devolution.
Ministry of Justice
The MoJ have in the course of the correspondence put forward three justifications for the status quo. These are:
- any rearrangement of voting at Westminster in consequence of devolution would divide the UK and provide two classes of MPs
- things decided for England only on matters devolved elsewhere could nonetheless affect its neighbours, thus entitling them to vote on them
- around 85% of the MPs at Westminster represent constituencies in England, and the occasions where a UK government does not have a majority in England are rare. (Although they do not say it, presumably an underlying point is that back-bench revolts are also relatively rare.)
Dividing the UK
This argument seems the strangest of all, as it is in the nature of devolution that it divides the UK on devolved matters: that is its purpose. As at present constituted, devolution also provides two classes of MP, namely those who can vote on all matters affecting their constituents and those who cannot.
The fact of the matter is that like it or not devolution has, on devolved matters, broken the sharing and pooling of legislative and executive authority achieved by the Acts of Union.
The only answer to this argument of the MoJ would be to abandon devolution entirely. This would destroy the hard won peace process in Northern Ireland (probably Tony Blair's finest legacy), and is certain now to be politically unacceptable in Wales and Scotland. It is too late for the MoJ to have these second thoughts.
As regards my proposed solution, as mentioned in Part 2 it would not in fact prevent members for constituencies outside England voting on England-only matters at all stages of the Bill, including third reading so far as concerns the requirement that to be passed the Bill would need to have the approval of a majority of the members for the whole of the UK (in addition to the requirement for a majority of members at third reading representing the areas to which the Bill or part is to apply).
Things decided for England only will still affect its neighbours in the UK
The MoJ offer as an example the fact that under the Barnett formula a decision to spend money in England has a "knock on" effect for those in Scotland, who will automatically receive a proportion of the expenditure in the block allocation to the Scottish Government. This gives rise to two thoughts. First, is it seriously suggested that members for Scottish constituencies would want to decide an issue for England only not on its merits for the people who would be subject to the decision in question, but instead in order to reduce or increase expenditure in Scotland? It seems very far-fetched, but if that were true, the principles of good government would dictate that it would be a reason for them not to have the final say on the issue, rather than to have it. It would also suggest that what should be changed are the funding arrangements.
Secondly, one likely outcome of the Calman Commission is indeed that funding to the parts of the UK with devolved institutions will change, maybe to an arrangement for assigned revenues (Scotland to get back some categories of the tax revenue it generates) plus a needs-based top up. If that were done, the link is removed - does this mean that the government would then be in favour of a solution to the West Lothian Question?
Probably not1, which raises the question what other things may have the suggested effect. If there are any, one other curious property that these other things must presumably possess is that when decided for Scotland, Wales or Northern Ireland only they do not have any analogous reverse effect on England, because one result of devolution is that, by design, members of Parliament for constituencies in England do not have a say on decision making in the reverse direction on devolved matters outside England.
Cases where UK governments do not have a majority in England are rare
Here, for me, is the rub. What I believe would threaten the future of the UK, and at the very minimum cause unacceptable ill-feeling within its constituent parts, is if a UK government were regularly and persistently to enact (by means of whipping Scottish members) controversial legislation for England (and Wales prior to a successful Assembly Act referendum) on matters devolved in Scotland which is opposed by the majority of members elected for England (and Wales prior to the referendum). The threat would be even worse if there were a SNP government in Scotland pouring petrol on the flames.
This may turn out to be the SNP's best hope. We have of course seen it recently on such matters as top-up fees and some aspects of foundation hospitals, but these require a significant back bench revolt to occur. The situation becomes much more serious were it to happen regularly.
As mentioned in Part 2, 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 occurred three times with respect to England since 1945. Given the risks to the union that this would cause post-devolution, it seems to me to count as less than "rare". As I also mentioned in Part 2, 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, but 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. The fact of the matter is that at some time or other it will indeed happen again, but this time in the post-devolution world.
Furthermore, 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. This is difficult to analyse and requires taking a gamble on how many "top-up" fee type revolts the system can stand and how often.
An argument about probabilities in any event cuts both ways. If it were an infrequent event, then acceding to the Very Simple Solution should pose no more worries than not acceding to it.
I hope it is not the case that the Labour party are willing to put the future of the union in jeopardy for their own perceived electoral advantage. I am willing to give them the benefit of the doubt, but in my view they will need to find solutions, rather than pretend the issue does not require an answer.
1 There is a natural advantage to a Labour party administration relying on its Scottish members in the Commons, given that the Conservative party are down to their last member in Scotland (and had none at all in the preceding Parliament).