The make-up of the Commission on the West Lothian Question

The government announced yesterday the composition and terms of reference of the Commission on the West Lothian Question.

When Mark Harper made his statement to the House on 8th September last year in attempting to kill off Harriett Baldwin's Legislation (Territorial Extent) Bill, he explained the Commission's remit in these terms: "The Government are clear that the commission's primary task should be to examine how this House and Parliament as a whole can deal most effectively with business that affects England wholly or primarily, when at the same time similar matters in some or all of Scotland, Wales and Northern Ireland are lawfully and democratically the responsibility of the separate Parliament or Assemblies."

The terms of reference for the Commission announced yesterday are slightly different, namely "To consider how the House of Commons might deal with legislation which affects only part of the United Kingdom, following the devolution of certain legislative powers to the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales." The earlier proposed limitation to "effectiveness" would have made the the Commission's task pointless, because if efficiency were the only criterion, to the exclusion of other things like fairness and basic common sense, things could be left as they are.

The membership of the Commission is quite heartening. It includes both the current but shortly-to-retire First Parliamentary Counsel, Sir Stephen Laws, and his predecessor, Sir Geoffrey Bowman. First Parliamentary Counsel heads the Office of the Parliamentary Counsel, which is the office which drafts public Bills and is composed of clever and able individuals. I have long thought that those who are opposed to solving the West Lothian Question have over-egged the difficulties of establishing a drafting convention for the division of Bills into different Parts for their different territorial extents, and having two former heads of that Office in the Commission will I hope put that to rest at least. It was also good to see that Professor Victor Bogdanor is not a member of the Commission, as one of those prone to such over-egging.

As readers of this blog will also know, I think requiring a double majority at 3rd reading for any Part of a Bill with limited extent, one for all (UK-wide) members and one for those representing the actual extent, is a viable solution to the WLQ, and such a double majority requirement would meet the objection of those who argue that the whole of the UK has an interest in much England-only legislation via the Barnett formula (an argument which I think is anyway greatly overstated by its proponents, for reasons given in other articles in this blog). So far as concerns the argument that governments with slim majorities depending on Scottish members could not govern in England, it would be possible to borrow from practice with respect to the House of Lords, so that the absence of a territorial majority could, say, delay a Bill for a Parliamentary session (a year) but not defeat it: but better still, and as startling an idea as it might be, UK governments could actually try negotiation and compromise on those occasions when they lack a territorial majority.

One problem I foresee is the late reporting time of the Commission, which is to be "next session", that is 2013. Constitutional issues are moving so fast at present, that I would have liked to see it report by the end of this session.

The other problem is the limited nature of the Commission's remit. A double-majority solution of the kind I have outlined seems the most likely outcome, but it is one that will be overtaken by events should Scotland move to "devolution max" following a referendum in 2014. If and when Scotland becomes autonomous on all matters except defence and foreign affairs, and in particular once it can decide its own taxation, it would be unacceptable for Scottish members to decide taxes, such as income tax, in the remainder of the UK to which their constituents could not be subject; and the kind of voting finessing to which I have referred could not adequately deal with this. But I guess one can only deal with the position which pertains at any one time.

The West Lothian question rumbles on

I watched Question Time last night. It was the usual mix of politicians following their party lines (including Nadine Dorries tying herself up in knots) and John Sargeant arguing an implausible apologia for the BBC, to the effect that it would have been improper to delay the showing of the Panorama programme about FIFA until after the decision on the venue for the 2018 World Cup. Possibly one or two people might believe that.

The thing which drew my attention was the extent to which people are obviously getting concerned about increased higher education fees for students coming from England. John Sargeant was good on this (he said what he thought when not having to stand up for his former employer), pointing out that having a well educated citizenry is the key to future success, and that this country has managed to afford to educate its young people in the past when it was poorer and there seems no reason why it should not do so in the future. It is just a matter of priorities.

What interested me is the wedge this seems to be beginning to drive between people in England and Scotland. Outwardly it is unconscionable that students in England should pay large sums of money for their higher education when those in Scotland will not. A Scot and a person from England with similar qualifications may sit in adjacent desks at the same place of work in future, doing the same work at the same rates of pay, with one having to pay deductions against her income once she finds employment for as much as 20 years into the future, and one not. The Liberal Democrat proposals for a graduate tax do not seem any improvement on that: it is the same inequality in a different form, and indeed would be a form of double or super-regressive taxation - if it is true that graduates in general earn more, they pay more anyway through the existing income tax system

However this difference between England and Scotland, and now Wales also, is what devolved decision making is about. The overarching point on this is that every pound the Scottish government pays for higher education is a pound less that it can spend on something else within its devolved competence. There seems no reason, applying devolution logic, why this should cause friction within the UK, but the practical workings of devolution in this case, no doubt aided by the rantings of the Daily Mail, is doing so because the differential policy-making on higher education is, at the end of it all, simply unfair. And unfairness breeds resentment. The SNP must be loving it.

During the Question Time programme, Ken Livingston brought up the West Lothian question on this. Like it or not, it is a fact that student fees in England were only introduced in 2004 on the votes of Labour MPs for Scottish constituencies (and even worse, on a vote taken after the Scottish Labour party had decided against higher education fees for students in Scotland). Tom Harris MP, member for Glasgow South, has apparently taken exception to this, describing it as "anti-Scottish". Perhaps he has a guilty conscience as one of those responsible in 2004, but if not he should have. He has gone on to say that the West Lothian question has no answer and the Labour party should not get involved in considering it.

If it is really the case that there is no answer to the West Lothian question, then the Labour party in general and Tom Harris in particular should never have proceeded with devolution in the first place. If that is really the case, it is only a matter of time before the the current constitutional arrangements collapse. Let us image that Labour had managed to stitch together a deal with the Liberal Democrats, SNP and Plaid Cymru to form a government after the last election: it would have been wholly reliant on its Scottish and Welsh members to enact its legislation affecting England only on matters devolved elsewhere, such as education. The current angst over fees for English students would surely be dangerously magnified if the current proposed disparities for students from England were to have been imposed by MPs for Scottish and Welsh constituencies not subject to the additional fees. Arguments that there are knock-on effects on Scotland and Wales via the Barnett formula, while that formula lasts (it is due for replacement), would have cut little ice.

There are answers to the West Lothian Question, some of which I explore here, here, here and here . The Tory pledge to deal with it was, as part of the Coalition agreement, shunted to a Commission to be set up by the Deputy Prime Minister, Nick Clegg. He was supposed to have set one up during the Autumn, but will now apparently publish proposals for one "by Christmas". It would be foolish for the Labour party to follow Tom Harris's advice and fail to engage, if and when Nick Clegg can manage to muster the energy to proceed with it. They created the current devolution arrangements, and they must help to resolve the problems it has created.

A coalition with potential

I am surprised that the Conservatives managed to agree a coalition with the Liberal Democrats, but it is an interesting development, and in its form is one that shows considerable political generosity by the Conservatives towards the Liberal Democrats.

The Conservatives may benefit from this indirectly, beyond just being able to take power for the moment, by making the party more used to occupying the centre ground and by neutralising, for a while, the more swivel-eyed at the far right of the party. As a person in the centre of the party leaning towards, but not yet at one with, the one-nation Tories, David Cameron's talk of this being an opportunity as well as a challenge is probably something he actually feels as well as being a good sound bite. A dose of realism might well be good for the Tories, and in due course become a habit.

The Labour party's attack strategy is already becoming clear, and is a retreat to type: that this government is a government of cuts. If the coalition play their cards right, they may well be able to defeat this one. Gordon Brown was at his most unpopular and most derided when he was pushing his "Tories' 10% cuts" line, when everyone knew that a Labour government would have to do the same and cuts were inevitable. The coalition response needs to be in kind, namely that it is the same old dishonesty. If they play their cards correctly (and they may not), Cameron may be right that the coalition can bring a good portion of the electorate with them on cuts. Their stock response to a Labour attack of this kind should not be a quibble about numbers (nor even the ineffective Steve Hilton nicey-nicey big society stuff), but should work at the level of sentiment with one word: dishonest.

All this of course depends on the coalition surviving more than 12 months. It might or might not. But this is certainly a bold move by David Cameron. It seems that he lacks neither political instinct nor the decisiveness to lead the way and follow his instinct.

The coalition document

Two things of interest were in the coalition document. First, the proposal to require any vote of no confidence to have a 55% majority against the government looks like the same-old same-old political cynicism and seems very ill-advised. Its purpose is presumably to allow the government to continue even with a Liberal Democrat defection, as a minority government, but it simply won't work, and I am amazed the Conservatives had the balls to suggest it and the Liberal Democrats the lack of wisdom to agree it. To be effective it would require any Finance Act and Appropriation Act to be capable of being passed with a 45% vote, which would be outrageous. Update: it transpires that this is a misreading of the intentions of the coalition document: see this for further explanation.

Secondly, also of interest was the agreement, presumably at Liberal Democrats' insistence, that the West Lothian question should be put to a commission rather than implementing Ken Clarke's Democracy Taskforce proposal for an English Grand Committee.

Putting things to commissions is of course the standard way of kicking things to the long grass. In the 1970s we had the Kilbrandon Commission on the Constitution of the United Kingdom, which enumerated the arguments against an English Parliament and/or restricted voting at Westminster and/or regional bodies with legislative powers within England (the majority report recommended instead pseudo-devolution within England along the lines of the hopeless John Prescott proposals). As Ken Clarke is the new Justice Secretary and will therefore presumably be in charge of this project, it will be for him to move it along should he feel the urge to do so, and maybe his appointment to the office of Justice Secretary is an indication that he proposes to do so.

What we need though is a commission which looks for solutions and not for problems. In particular it needs to eschew the straw-man approach of those who advocate the "do-nothing" option, which I touch on here. I do not think "do-nothing" is going to work for a great deal longer.

Even better would be a commission which actually listens to what people in England would like, which is surely going to have to happen at some stage, or would that be too much like open government for the taste of this coalition? Probably, it would: the coalition is a bold step in government, but it will probably not turn out to be the start of a new kind of politics as claimed for it. However, let's keep hoping.

Constitutional reform

It is curious how the revelations of abuse by some MPs of the expenses system that MPs have created for themselves have stimulated calls for constitutional reform.

This probably suits both sides of the argument. No doubt those MPs who are supporters of the constitutional status quo (most of the parliamentary Labour party probably) will be relieved to see attention passing to something other than them, and electoral reformers see it as their approximately once-every-decade chance to wave the flag for proportional representation. In response to these pressures we have the Prime Minister proposing to set up a "National Council for Democratic Renewal" to be formed of, wait for it, Ministers in government. Anything more guaranteed to promote centralist "top down" policy forming and minimise the prospect of democratic renewal would be difficult to imagine.

Justice Committee - Devolution: a decade on

At the same time, by co-incidence the report of the Justice Select Committee of the House of Commons (the departmental Select Committee covering the Ministry of Justice) was published at the beginning of last week looking at the British constitution from the perspective of 10 years of devolution. Whilst recognising the present anomalies of constitutional arrangements for people in England, their report was also a depressing read for its inability to get to grips with solutions. The evidence given to the Committee was interesting however, particularly that taken on 19 February last year (which can be seen here (parts one, two, three and four). Vernon Bogdanor, professor of government at Oxford Unitversity has (like John Curtice, professor of politics at Strathclyde University) for some time beaten the drum for the view that there is no constitutional problem to address with respect to the position of people in England arising as a consequence of the devolution of executive and legislative powers elsewhere; and that there is only a political issue to deal with from a feeling amongst some in England that their interests are not sufficiently taken into account, which can be solved by having more elected mayors along the lines of the Mayor of London as "figureheads" for the major cities.

Professor Bogdanor's criticisms of Ken Clarke's then partly-formed proposals for an English Grand Committee followed the Ministry of Justice handbook, positing a case where the UK government did not have a majority in England: "... if you had a government with a majority in the United Kingdom but another party with a majority in England, the government with the majority in the United Kingdom could not say it had a policy on health or education because that would depend on what the English MPs thought ... it would bring the Government to a halt".

Undoubtedly that situation would be problematic, but surely leaving things as they are in those circumstances would be even more problematic. It seems inconceivable that a UK government could spend its five year term enacting legislation on health, education, transport, local government and town and country planning relating to England only which was opposed by the majority of members in England, and which could only be passed by whipping its Scottish members through the lobbies in one division after another. Surely this would be bound to fuel unnecessary (and no doubt for the most part childish but none the less strongly felt) resentment between those in different parts of the UK. The fact of the matter is that in the circumstances posited, the only sensible course would be for co-operation between the government and the majority party in England, and if for a number of years legislative intervention were to dry up except on non-contentious issues, many might regard that as a good thing. The dangers of impasse where action is needed could be further diminished if my suggestion here were adopted, namely that if a particular part of a Bill relating to only a part of the UK were not to have a majority of members representing the part of the UK to which it applies on Third Reading in the Commons (in addition to a majority of the whole House on Third Reading), then by analogy with the power of delay available to the House of Lords, the part of the Bill in question could only be enacted by passing it again in the next session.

Unlock Democracy

However, some of the most interesting and intelligent evidence, both in analysing the issues and coming up with serviceable solutions, seems to me to come from Peter Facey representing an organisation to which I have not previously paid much attention called "Unlock Democracy". Of the problem, he said this:

"Theoretically, Professor Bogdanor is right, that there are 528 English MPs and they can outvote MPs from other parts of the United Kingdom, including the fourth bit, Northern Ireland, but the reality is that [the House of Commons] splits on party lines, on policy lines. The example which was given in the earlier session was that if at the next election a government is returned with a majority based effectively on MPs from Scotland and Wales and, because of the present political make-up of the United Kingdom, this is going to be the Labour party, in those circumstances it will depend on MPs from Scotland voting through legislation in England. That, I think, is the fundamental difficulty with Professor Bogdanor's position, even though, yes, he is right: there are more English MPs than there are Scottish or Welsh MPs. The problem when it comes down to it is that, if there are more Conservative and Liberal Democrat English MPs than there are Labour MPs but Labour has a majority in Westminster, that is when it becomes a real political issue. On the question of risk, which was the second part of the question, yes, there are risks in dealing with the English Question (or questions) and we should not pretend that there are not, but the bigger risk for me personally is the group which says, "Do not ask the question", because I think we have now got to a point where doing nothing is probably worse than doing something, that if we simply stay where we are and we let circumstances develop and we get into that crisis point it is very difficult then to do something, so now, when the issue is not as burning, is the time to deal with it. If it becomes a constitutional crisis because you effectively have England being governed by a party which is perceived, by the media at least, or elements of the media, as being not English but foisting policies on from elsewhere, then it becomes very difficult in a core, logical way to deal with the issue, and therefore we need to deal with it now, even though there are risks."

He advocates a national element for England within Westminster to deal with this (how this might differ from Ken Clarke's proposals for a Grand Committee or indeed mine relating to Third Reading remains to be seen), which would then take the pressure off the creation of artificial regional units within England in order to temper the West Lothian Question. One can then concentrate on realistic devolution to accord with what people want, rather than the devolution that the government thinks it should dictate. He said:

"I think one of the problems with the route we have gone down for decentralisation is that we have created government regions where even the one I used to live in in the south west has no recognition on the ground. Devon does not necessarily feel in the same region as the northern parts around Bristol. We also get this idea that you have to break England up into large units which can be given the same powers as Scotland and Wales. Kent has 1.3 million people. That is 300,000 people less than Northern Ireland, but Northern Ireland already is regarded as big enough to have those powers. Kent has more people in it than ten US states and those states, the smallest one being Wyoming, have more powers than the Scottish Parliament, so the idea in terms of decentralisation is that we have to somehow create these large units. I am not against it if the people in the north east want to have it on a regional basis but we must find a way forward which is flexible enough to allow those units to be choosing, whether those are government regions, collections of existing local government units or in some cases individual councils at the moment. Where you live, the county of Hampshire, again is a very similar size to Northern Ireland and if you include in it the unitary authorities it is larger than Northern Ireland, so we need to start thinking about some of our counties and local units as the vehicles for devolution and then look at bringing government below that down as well, not simply to have the idea that to do devolution in England we have to always create new units. Where that is appropriate, yes, but we also have to say that where there is demand that can be to existing units.

...

"What we are toying with the idea of is having an English devolution enabling act, which says, 'These are the powers which have already been devolved elsewhere in the United Kingdom', and if powers are then devolved later it could be be added to it, where they could be called down. They could either be asked for by existing local authorities, and if they met certain criteria they could be given to them, subject to a referendum endorsing it, or central government could say, 'We would like you to have this, subject to a referendum', or, the third option, the people themselves could call for those powers. ... The option would have to be that they could either join in with another area if they want to or they would continue with being governed by the United Kingdom Parliament. It is a messy way of doing devolution but I happen to think it goes with the grain of the governance of England"

Now this seems to me to represent a real way forward. Will it be opposed by centrists within the civil service and by the current Cabinet - most certainly, because it would offer meaningful devolution (as well as respecting people's wishes). A project of this kind could also be swamped in today's climate by that portion of the political elite on the soft left who see proportional representation as the sole or main answer to public re-engagement in politics and see now as the opportunity to promote it. There is just a chance David Cameron might pick up ideas like this, but as we found with Tony Blair, new Prime Ministers can quickly forget their zeal to deal with constitutional thorns once they have taken office and the sclerosis of power has seriously set in.

So going back to Professor Bogdanor and his unwillingness to face the issues thrown up by devolution - whilst the prospect of a UK government without a majority in England seems remote in 2010, it could occur in 2014/5. Were that to happen and a full-blown constitutional crisis to arise, the lack of vision of those such as Professors Bogdanor and Curtice in the academic community will I think have to take much of the blame.

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?

Devolution and the West Lothian Question - Part 3

Out of interest I wrote to the Prime Minister about the Very Simple Solution set out in Part 2. I was not naive enough to think it would have much effect and I was expecting no more than a simple acknowledgement and a "thanks but no thanks". However, what I received in reply was the Ministry of Justice's justification for the current status quo. The correspondence, as it stands at present, can be viewed here. (Update: on this correspondence see also Part 4 and Part 5)

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.


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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).

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.

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.