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?