Devolution and the West Lothian Question - Part 4

Related articles:
Part 1
Part 2
Part 3

I have received a response from the Ministry of Justice to my letter of 18 November referred to in Part 3. The updated correspondence can be found here.

One interesting outcome is that the government appear to have abandoned hope of reinventing Prescott-style mini-devolution at regional level at any time in the forseeable future.

They also run the argument that devolution is indirectly good for people in England because it is good for people in Scotland, Wales and Northern Ireland - but they have little option given that devolution does not at present extend to England.

In justifying the current devolution status quo, under which members for constituencies where there are devolved governments and legislatures may decide matters in England which are devolved in their own constituencies, they have firmly planted their standard on the mound of the Barnett consequentials. The Barnett consequentials are shorthand for the operation of the Barnett formula, under which a percentage of any increase of expenditure in England will feed through automatically into the block grant paid to the devolved administrations. The argument in the letter is that since expenditure in England will affect the block grant for devolved institutions elsewhere, those representing members for constituencies in that elsewhere have a right to decide any and all matters in England which happen to be brought before the House of Commons.

Barnett consequentials

The Ministry seem to me to have planted their standard on a mound of sand. A few words of explanation about how public expenditure is financed are needed - for those whose eyes are inclined to glaze over by mentions of public finance, skip the following two paragraphs.

All money raised by taxation is paid into what is called the Consolidated Fund. This is the Exchequer account at the Bank of England, and sees eye-wateringly large amounts of money pass in and out each year. Leaving aside the operation of the National Loans Fund under the National Loans Fund Act 1968 (which affects the detailed mechanics but not the principles described below), specific statutory authority is required for the drawing of any money from the Consolidated Fund in order to pay for government programmes. This applies whether the particular government programme in question is one conducted in exercise of the natural powers of the Crown or the prerogative (about which I will write a separate commentary shortly), or under particular statutory service powers. Put shortly, the power to levy a tax does not of itself include the power to spend it.

This is linked in to the annual expenditure estimates laid by the Chief Secretary of the Treasury before the House of Commons each year, drawn up following the Treasury's spending review. Once approved by the House, authority to draw on the Consolidated Fund to meet the estimates in the first part of the following financial year (beginning on 1st April) is conferred by a Consolidated Fund Act. In the summer of the year, usually shortly before the summer recess at the end of July, these are incorporated into an annual Appropriation Act listing and authorising the appropriations for each head of service of each department for the year, usually followed by a further Appropriation Act towards the end of the financial year which sets out any excesses for the previous financial year and any supplementary supplies necessary since the estimates were drawn up for the current financial year. (To see how the heads of supply are set out for each department, see for example Schedule 2 to the Appropriation (No. 2) Act 2008, which is the July 2008 Act granting supply for the 2008/09 financial year.)

The essential point here is that the determination of the Barnett uplift (the percentage of the increase in expenditure in England which is to go in block grant to the other countries in the UK) follows directly from the spending review giving rise to the estimates and any supplementary votes for central government departments. There is nothing to stop members for, say, Scotland expressing a view and exercising their vote when the annual estimates are put forward in the Commons, and when the Appropriation Acts for supply are passed, if they feel - to adopt the Ministry's hypothesis - that the "knock-on" effects on Scotland under the Barnett formula are not to their liking. That is quite different from being able to force through what the money voted for any particular head of service must be used for at the detailed implementation level in England, or to decide everything else which happens to be going on in England, which is what the Ministry argue for.

It is also, as I said in Part 3, far fetched (and would represent very poor government) that members for, say, Scottish constituencies would actually want to take decisions on detailed education or health matters in England, not on the merits of the decisions for those subject to them, but on the ground that they may result indirectly in too much or too little expenditure in Scotland. My description of the Ministry's "Barnett formula" based justification of the current devolution status quo as a "make-weight" could I think reasonably described as being kind and generous to the Ministry.

The Ministry have not provided any other examples of matters which when decided for people in England only may affect their neighbours in the UK, but which when decided the other way round in Scotland, Wales or Northern Ireland by a devolved administration will not affect England. This is probably because there aren't any.

The Ministry's argument also pays no regard to the limited nature of what I was in fact proposing in Part 2 as the Very Simple Solution, which would not allow a Bill or separate part of a Bill to be passed without the approval of the majority of all members in the Commons at all stages (as well as a majority at third reading of those representing the area within the UK to which the Bill or part applies), and would allow the government to promote the legislation concerned again in the following session against the wishes of the majority for that area in a case where it really thought that important.

Regional Select Committees

Also interesting is the mention of the Regional Select Committees. These were approved by the House of Commons on 12 November under government whipping. The debate is worth a read and is here .

The origin of these committees is found in paragraphs 119 and 120 of the Ministry of Justice Green Paper "The Governance of Britain" published in 2007. The Modernisation Committee of the House of Commons gave effect to these proposals, passed only by a second casting vote of the Leader of the House, Harriet Harman, and the results of which in a rather comedic (some might say Orwellian) twist were "welcomed" by the Government in its White Paper "Regional Accountability: the Government's response to the Modernisation Committee's third report of session 2007-08".

The reason given for forming these committees was to improve the accountability of the regional development agencies and the government offices for the regions to Parliament. Many of the things that these regional bodies do (other than those of the government offices which are in any event already accountable to Parliament) could in fact be put back to the local authorities from which they came. However, in the absence of these functions returning to local authorities, some form of accountability seems to me to be a good idea.

It is strange however to see these bodies mentioned in the context of devolution, because they do not exercise devolved powers of any kind. The fact that they are scrutiny bodies on the model of other Select Committees, not policy forming bodies, was one justification given for the fact that their membership does not reflect the political make-up of the regions which they represent. Instead, they represent the political make-up of Parliament as a whole - in other words, there will always be an inbuilt government majority, even though Labour members are in a minority in a number of the English regions. In fact in the south-west region (and possibly in the eastern region) the government will have to draft in members from other regions in order to maintain the government majority on the committee.

Were committees to have some role in devolved policy forming, then such a membership would I imagine be seen as unacceptable even by present Ministers.

Also mentioned are Regional Ministers. These additions to the payroll were, like the Regional Select Committees, created under the Green Paper proposals (paragraphs 115 to 118). They have no executive functions within the region. They are "champions" of government policy to regions and vice versa (people at whom rotten eggs can be thrown in place of those Ministers who do make the decisions?). They are entirely toothless - in fact, does anyone actually know who their regional minister is, and has anyone ever seen one of these curious beings?

Speaker's regrets

The Speaker made a statement to the House of Commons this afternoon about the Damian Green affair. (See on this my earlier commentary on the legal position.)

In his statement he states that he "regrets" that police were allowed to search Damian Green's MP's office in the House without a warrant; that the Serjeant at Arms had allowed the search by signing a consent form; and that he had known in advance about the search and Mr Green's arrest, but he had not been told that the police did not have a search warrant.

However, he is confessing to an error of procedure that he or the Serjeant at Arms did not make. The question of the Serjeant at Arms consenting (apparently inadvertently) to the entry into Mr Green's office without the prior issue of a warrant is a red herring, since the issue of a warrant for the search of the House of Commons would have been unconstitutional. In short, a warrant couldn't have been issued without consent, and if consent were to be given then there would be no need for a warrant.

The Speaker's proposal for a new protocol permitting or requiring warrants to be issued against the House is also misconceived, for the same reason. It should be resisted as comprising a gross breach of privilege. It is not for the courts to issue warrants, but for the House to permit or to refuse permission, after investigating the facts alleged by the police giving rise to the request for them to enter. Possibly he meant to institute a protocol or procedure for the issue of warrants against the personal property of individual MPs which they keep in their offices (see below). It remains to be seen what MPs think about that.

I suppose confessing to an error of procedure may be viewed as better than confessing to an error of judgement.

There remains the question of the taking away of a MP's personal property in his office (if any). That may require a warrant although it is an interesting point whether such a warrant could be issued, even with the Serjeant at Arm's or Speaker's consent. Would that require an Act of Parliament?

Update:

On the last point (whether further legislation would be needed to enable personal property of a member in his office at the House to be seized under a warrant), probably not. The Times have obtained a copy of a House of Commons Library report prepared at short notice last night. The report points out correctly that a member of Parliament is not protected from arrest within the Palace of Westminster on account of criminal conduct on his part, and that unlawful conduct engaged at in Parliament is not privileged unless it forms part of a proceeding in Parliament protected by article 9 of the Bill of Rights. This report of the Committee of Privileges also covers similar ground.

This means that in the unlikely event of Damian Green having conspired with a civil servant for the civil servant to commit misconduct in a public office, Mr Green would not be immune. However, that has not been in dispute.

This does not mean that executing a warrant to seize or examine property of the House, such as its computers and papers, in furtherance of a criminal investigation would be proper without consent of the House. It seems to me that it would not, but since this does not appear to have arisen before there are no precedents to rely on.

Much probably turns on what comprises property of the House and what comprises personal property of an individual MP. That might also make the drafting and execution of a warrant for the seizure of property within the precincts of the Palace of Westminster an exceptionally difficult exercise.

Presumably little if any personal property of Damian Green was involved as he did not, apparently, give consent to seizure of property there without a warrant¹. Perhaps time will tell.

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Update 2:

¹ An issue would then arise about whether section 18 of the Police and Criminal Evidence Act 1984 applies to offices at Parliament with respect to the personal property of a MP or peer kept in his/her office, and if so whether the MP or peer "occupies or controls" the office within the meaning of that section in addition to the Parliamentary estate (clearly the Parliamentary estate does). If he/she does, then that is another reason why the issue of a warrant is an irrelevance - the police would not need one and could not be required to obtain one to examine and seize personal property.