Tuesday, 30 April 2013

The West Lothian Answer

A few weeks ago saw the publication of the Report of the Commission on the Consequences of Devolution for the House of Commons.

I need to explain my own background here. I am mainly English but with Irish ancestry. When I have holidayed in the Republic of Ireland I don't feel that I am abroad. I have loads of Northern Irish friends. I have lived in Scotland. When I was 12 we nearly moved to Wales.

I am politically a Unionist.

One thing that grates is when people consider the United Kingdom of Great Britain and Northern Ireland to be just a Greater England. Attitudes like "Well, if the Northern Ireland Protestants want to be English they can move to England and leave Ireland to the Irish", "Give the IRA a united Ireland so they'll leave England alone" or "Well, the Scots have their own Parliament so they shouldn't sit in England's" are both ignorant and annoying. I have not yet met anyone from Northern Ireland who desires to be English. The Parliament of England hasn't met for 306 years.

Indeed a few years back I was catching up with a friend from Northern Ireland who was living in London. Ireland had beaten England at rugby a few days earlier, and we passed a couple of guys wearing England rugby shirts. He started clapping his hands above his head and chanting "Eye-er-land". We all laughed. Precisely - just because he's a staunch Unionist doesn't mean he wants to be English.

The last "Queen of England" was Anne.

One lady, mentioning Andy Murray win the Gold at the 2012 Olympics, expressed her gladness that an Englishman had won. I pointed out that Murray was British, not English. "Same thing" she snapped.

By the way, why is Murray referred to as British when he's winning and Scottish when he isn't?

The West Lothian Question is often a variant of "Is it fair that Scottish MPs can vote on English-only matters post-devolution when English MPs have no say on Scotland-only matters?"

Now, one way to respond to a question "Is it fair that..?" is to ask "Is it true that...?"

The Scotlsnd Act 1998 created the Scottish Parliament, giving it legislative powers over devolved matters.

One thing has to be noted here - Scottish devolution did not begin in May 1999. There was effectively a Scottish Executive (namely the Scottish Office ministers appointed by the Prime Minister) already in existence. Scotland's education was a matter for the Scottish Secretary, not the Education Secretary. Its health service was a matter for the Scottish Secretary, not the Health Secretary. Its police were a matter for the Scottish Secretary, not the Home Secretary.

There was a bit of a fuss when Labour's John Reid served as Health Secretary (from June 2003 to May 2005) and later as Home Secretary (from May 2006 to June 2007). Didn't it show the problems with the devolution settlement, that he could make decisions that affected the people of England but couldn't make decisions that affected his constituents in Hamilton North & Bellshill (when Health Secretary) or Airdrie & Shotts (when Home Secretary)?

Firstly, there are reserved matters - issues which the Scottish Executive cannot take action on, nor the Scottish Parliament legislate on - within the Health Secretary's and Home Secretary's remit.

Secondly, even if the Scottish Parliament had not been created, there would be large areas in health and home affairs that would have been dealt with on a day-to-day basis by a minister in the Scottish Office and would not have come anywhere near Reid's desk.

Next up is a problem in the way that the West Lothian Question is framed, for it is based on a flawed premise. The Scotland Act makes clear that sovereignty remains at Westminster.

What do the Regulation of Care (Scotland) Act 2001, Protection of Children (Scotland) Act 2003 and Criminal Justice (Scotland) Act 2003 have in common? They were all amended by the Serious Organised Crime & Police Act 2005 - so there is an example of a piece of legislation passed by Westminster that amends legislation on devolved matters passed by the Scottish Parliament.

The Scotland Act made clear that the Scottish Parliament's authority was limited to matters where it had "legislative competence" and legislation passed by it that was ultra vires was invalid. Firstly, before allowing any Bill to be presented, the Presiding Officer had to ensure that it was within the Scottish Parliament's legislative competence. In addition, after the Scottish Parliament passed a Bill, there is a 28 day period in which the Lord Advocate (a devolved position), Attorney-General (a reserved position) or the Advocate-General (a reserved position) could refer the Bill to the Judicial Committee of the Privy Council for a ruling on whether it was ultra vires or not. In addition, in that 28 day period, the Scottish Secretary could rule that the Bill not become law if it has an impact on reserved matters, or interfered with the United Kingdom's international obligations, or our defence or security.

The Judicial Committee of the Privy Council's powers relating to the Scottish Parliament were transferred to the new Supreme Court under the Constitutional Reform Act 2005.

So, the Scottish Parliament is not sovereign even when it comes to devolved matters in Scotland. There are courts and Westminster-based politicians who can stop legislation it passes becoming law. And Westminster can - and does - legislate on devolved Scottish matters, even amending legislation passed by the Scottish Parliament.

One suggestion to answer the inaccurately-framed West Lothian Question is "English votes for English laws" - namely that there is "England-only legislation" which only MPs from England should vote on. And there are two problems with this.

The first problem can be considered by looking at the May 2010 general election result in England only:

  • Conservatives - 297 (including 1 Deputy Speaker)
  • Labour - 191 (including 2 Deputy Speakers)
  • Liberal Democrats - 43
  • Greens - 1
  • The Speaker - 1

This gives the Conservatives an overall majority of 63.

However, across the United Kingdom the result was different:

  • Conservatives - 306 (including 1 Deputy Speaker)
  • Labour - 258 (including 2 Deputy Speakers)
  • Liberal Democrats - 57
  • Democratic Unionist Party - 8
  • Scottish National Party - 6
  • Sinn Féin - 5
  • Plaid Cymru - 3
  • Social Democratic & Labour Party - 3
  • Greens - 1
  • Alliance Party of Northern Ireland - 1
  • Independent Unionist - 1
  • The Speaker - 1

The story is familiar - the Conservatives and Liberal Democrats formed a coalition Government. But things could have been different. The Speaker and Deputy Speakers don't vote (by convention) and the Sinn Féin MPs don't vote (as a matter of principle), leaving 641 voting MPs. Between them Labour and the Liberal Democrats had 313 voting MPs - and hence just needed 8 more to have a majority. The Democratic Unionist Party had previously shown that it doesn't take much taxpayers' money to win them over, so 8 votes could come from that direction. Or Labour could look to Plaid Cymru - with whom it was forming a coalition in the Welsh Assembly - and other minor parties to give it the votes it needed.

So, we could have ended up with a Labour/Liberal Democrat coalition Government in charge now. And if we had "English votes for English laws", then on some divisions they would only have 232 of the 529 English voting MPs. Hence, any England-only legislation would run into trouble in the House of Commons.

There would be Cabinet ministers - Communities & Local Government Secretary, Home Secretary, Education Secretary, Health Secretary etc. - who would find themselves with a problem, introducing Bills that represent a Labour/Liberal Democrat agreement, only to find them chucked out by what is, for brief periods, a House of Commons in which the Conservatives have an overall majority. Now, Governments have existed briefly when another party has held an overall majority (the Liberal Government between December 1905 and February 1906 was the last example), but this is normally only for a short period while a general election is prepared.

This would be a situation existing for the entirety of the Parliament. It would be unstable.

The second problem is that we don't have a unicameral Parliament. There is the House of Lords, and members represent the whole of the United Kingdom. Even under the aborted plans for a majority-elected House of Lords, there would still be members without a territorial affiliation. How then do you define who in the House of Lords can or cannot vote on an "England-only" matter?

There is a third problem, which is more fundamental. What is an "England-only" piece of legislation anyway? It is not as obvious as it seems, and here we need to look at a bit of history.

The American Revolution was based on the idea of "No taxation without representation". The problem with "English votes for English laws" is that there will be people in the United Kingdom who are taxed without being represented.

In July 1886 there was a general election held in the shadow of devolution - this being the issue of Irish Home Rule:

  • Conservatives & Liberal Unionists* - 393
  • Liberals - 192
  • Irish Parliamentary Party - 85

[*In British Electoral Facts, Colin Rallings and Michael Thrasher state that approximately 77 of these were Liberal Unionists - which leaves aproximately 316 Conservatives]

A minority Conservative Government was formed, with the Liberal Unionists supporting it from the backbenches. In December 1886 Randolph Churchill resigned as Chancellor of the Exchequer, and he was replaced by George Goschen, who was the first Liberal Unionist in the Cabinet.

Goschen made an important decision at the Treasury, one that has implications today.

That decision was to allocate grants to local authorities in the following proportions - 80% to England & Wales, 11% to Scotland and 9% to Ireland - which actually gave Scotland less per capita than England & Wales. The Education (Scotland) Act 1918 was the first piece of legislation to formally use this formula in giving Scotland 11/80th of the spending allocated to England & Wales.

The October 1974 general election saw the sitting Labour Government gain a small majority, and proceed with its plans for devolution to Scotland and Wales, leading to the Scotland Act 1978 and the Wales Act 1978. Joel Barnett, the Chief Secretary to the Treasury at the time, used the Goschen formula as the template for the issue he was looking at - how much money should go from the Treasury to the devolved assemblies being planned in Edinburgh and Cardiff. And he based this on what we can call "equivalent devolved expenditure" - i.e. how much was being spent in England on things that would be devolved in Scotland and Wales.

The formula that Barnett came up with was that the amount given to the proposed Scottish and Welsh Assemblies would be based on the amount of equivalent devolved expenditure in England, but that increases/decreases would depend on increases/decreases in England. So, if equivalent devolved expenditure went up/down by £85, then the amount given to the Scottish Assembly would go up/down by £10 and that given to the Welsh Assembly would go up/down by £5.

In March 1979 the people of Wales rejected the Assembly in a referendum, and the people of Scotland voted in favour of an Assembly - albeit not enough to get over the "40% of the electorate" threshhold. The Conservatives won the May 1979 general election, and the devolution proposals were shelved. However, the Barnett formula lived on in determining the Scottish block grant given to the Scottish Office.

And the block grant given to the Scottish Parliament is descended from this. Herein lies the problem.

Yes, it may seem that health and education are "England-only" matters. But most legislation has a financial implication. Suppose health policies lead to a reduction or an increase in the spending on health in England. Under the Barnett formula, this leads to a reduction or an increase in the Scottish block grant. And under "English votes for England laws" there would be no Scottish MP able to have a say. Decisions which have an impact on Scottish finances would be made solely by English MPs. No taxation without representation.

Something else needs to be mentioned about financing. Some of the more emotive arguments for an English Parliament, or for "English votes for English laws", or against Scottish devolution concentrate on the way the block grant is spent. We hear about NHS prescriptions for example. However, when the Scottish Secretary had control of the block grant, it was up to him to decide how to spend it. So, there is no reason why a decrease in spending on English schools should be matched by a decrease in spending on Scottish schools - yes, there would have to be a decrease on some item of spending but it could be elsewhere in the Scottish budget.

If you were to ensure that there was a common policy on health spending, or schools spending, then you would have to go further than abolishing just the Scottish Parliament. You would have to abolish the post of Scottish Secretary itself, and have a Health Secretary determining a common United Kingdom health policy, an Education Secretary determining a common United Kingdom education policy etc.. You would not be turning the clock back to before 1999 but to before the Conservatives' Charles Gordon-Lennox became the first Scottish Secretary in August 1885. It appeals to those who believe that when you cross a bridge over the River Sark you are simply crossing the border between Cumberland and Dumfriesshire - nothing more than that.

There is another thing connected to this - a slight tangent. We should be careful of defending/opposing any organisation having powers based on what it does with them. At some point we should have a referendum on the European Union.

Now, tabloid objections to the European Union, and also the unconnected European Court of Human Rights (or the "EU Court of Human Rights" as some tabloids use to confuse us), rest on things like "Brussels states..." or "Strasbourg ruled...".

The problem is that this ignores the fundamental question - should the EU and/or ECHR have these powers to begin with, regardless of whether they use them in ways we approve or not? For example, Parliament has passed legislation I disapprove of - but I don't deny they have a right to. Judges have come up with barmy rulings - but I agree they have a right to pass barmy rulings.

So, just because the Scottish Parliament uses its powers to do something we don't agree with, this is not an argument that it should not have those powers. England is not meant to be Scotland's smother-mother, saying "Naughty Jock, introducing free personal care for the elderly. I'm going to have to ground you. You cannot pass any legislation for a month".

"English votes for English laws" sounds fair on first hearing, but falls apart when you look at it more carefully.

Another suggestion to the West Lothian Question is the idea of a devolved English Parliament. There is even a Campaign for an English Parliament.

Is this the solution? Well, as the wise philosopher Victoria Pollard would say "Yeah, but no, but yeah, but no..."

It sounds simple - have a devolved English Parliament on the Scottish model. But there is one flaw, which is connected with the error in the way the West Lothian Question is phrased.

The Campaign for an English Parliament uses the example of tuition fees.

In July 1997, Ron Dearing presented the Labour Government with his report on the funding of higher education, which had been commissioned by the previous Conservative Government. One of the suggestions was that students pay around 25% of their tuition fees.

The Teaching & Higher Education Act 1998 introduced the principle of students contributing up to £1,000pa to their university education. However, under the Scotland Act 1998, this was a devolved matter.

The May 1999 election to the Scottish Parliament gave the result:

  • Labour - 56
  • Scottish National Party - 35
  • Conservatives - 18
  • Liberal Democrats - 17 (including the Presiding Officer)
  • Greens - 1
  • Scottish Socialist Party - 1
  • Independent - 1

With 72 voting Members of the Scottish Parliament between them, Labour and the Liberal Democrats were able to form an administration with an overall majority of 16. But one area of difference was tuition fees.

Hence, a commission was set up under Andrew Cubie, which reported in December 1999. The main recommendation was abolishing up-front tuition fees but making students pay £3,000 of them when their salary reached £25,000pa - courses in England, Wales and Northern Ireland tended to be 3 years (in Scotland they are 4 years, as pupils sit their Highers exams a year before pupils elsewhere in the United Kingdom sit A-levels. This is reflected in the university offers, e.g. I applied to do Maths at Edinburgh University and the offer stated I could go straight into the second year if my A-level grades were good enough) so the £3,000 was the same as students in England, Wales and Northern Ireland would expect to pay overall.

The Scottish Executive introduced the Education (Graduate Endowment and Student Support) (Scotland) Act 2001 which created the "graduate endowment" of £2,000 to be paid by students from within the EU (apart from England, Wales and Northern Ireland) who did their first degree at a Scottish university once their salary reached £10,000pa.

Students from England, Wales and Northern Ireland studying at Scottish universities would have to pay tuition fees.

At the June 2001 general election, Labour had a manifesto commitment not to increase tuition fees. However, they decided to introduce plans to allow universities to charge variable top-up fees and this was debated in the House of Commons on 27 January 2004, with the Bill that became the Higher Education Act 2004 passed by 316 votes to 311 - a majority of only 5.

Part of the controversy was that Scottish MPs voted on it, with 46 Labour MPs voting in favour and 16 Scottish MPs (10 Liberal Democrat, 5 Scottish National Party, 1 Respect) voting against.

So, would an English Parliament similar to the Scottish Parliament have been the solution?

Well, no it wouldn't - and the reason it wouldn't goes back to the fundamental misunderstanding that underlies the West Lothian Question.

Suppose a Conservative-dominated English Parliament voted not to introduce tuition fees. What legal provisions would stop a Labour-dominated United Kingdom Parliament voting to introduce them in England (and relying on Scottish MPs for that)? Westminster has simply amended legislation on devolved matters passed by the Scottish Parliament, with there being no calls that only MPs representing Scottish constituencies vote on devolved Scottish matters.

Hmm, so it seems to get what campaigners for an English Parliament want, and to avoid the scenarios they use, we would need both an English Parliament and "English votes for English laws".

As the Scotland Act 1998 makes clear, the Scottish Parliament is not sovereign. It is a devolved legislature, not a federal one.

There is a difference. A devolved legislature owes its existence to a higher legislature - Westminster created the Scottish Parliament, can increase or decrease its powers, or can abolish it, simply by passing legislation.

Devolution is top-down.

A federal legislature is one where the higher legislature owes its existence to the lower ones. This is where it gets interesting.

After it was first elected, the first devolved Scottish Parliament had to hold a meeting with the normal business, the swearing-in of Members of the Scottish Parliament and election of the Presiding Officer.

And chosen to preside over this was the oldest MSP, the Scottish National Party's Winnie Ewing, elected as an MSP for Highlands & Islands (and also at the time the Member of the European Parliament for Highlands & Islands), who used the words:

The Scottish Parliament, adjourned on the 25th day of March, in the year 1707, is hereby reconvened.

The Scottish Parliament was not adjourned and then reconvened 292 years later. It was abolished and a new one created 292 years later.

Which leads to the question - who abolished the Scottish Parliament?

The Parliament of the United Kingdom has its powers because in 1800 the Parliament of Ireland and the Parliament of Great Britain passed legislation abolishing themselves and tranferring their powers to a Parliament of the United Kingdom. And the Parliament of Great Britain had its powers because in 1707 the Parliament of Scotland and the Parliament of England abolished themselves and passed legislation transferring their powers to the Parliament of Great Britain.

So, we seem to be in an odd situation. There is a legislature based in Westminster which owes its existence to legislatures each covering a smaller geographical area transferring their powers to it - but we are not a federal state. If only these Parliaments had transferred some of their powers then we would be living in a federal nation and would not be having this debate.

Is federalism the answer? Is it British?

When the American colonies rebelled in the 1770s, they saw federalism as the solution - a group of colonies coming together as one nation with some powers at federal level and some at state level, with the Tenth Amendment making clear that the new nation would use the principle of subsidiarity:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Note what it does not say:

The powers not delegated to the states by the Constitution, nor prohibited by it to the United States, are reserved to the United States.

That is the complete opposite to devolution. Even the Scotland Act 1998 uses "reserved" to mean the powers which are not transferred to the Scottish Parliament. There is a default setting in both devolution and federalism - in devolution that default setting is power residing at the higher legislature, while in federalism that default setting is power residing at the lower legislatures.

And to answer the question whether it is British, we need to ask ourselves which country is culturally the closest to the United Kingdom. I would say Canada.

By 1840 there were the North American colonies of Lower Canada and Upper Canada. The British North America Act 1840 combined these into the Province of Canada. The British North America Act 1847 divided the Province of Canada into Ontario and Québec, and combined them with two other colonies - Nove Scotia and New Brunswick - to form a federal nation, Canada.

Hence, by the 1860s the British Empire was experimenting with federalism - so it can hardly be described as unBritish.

This seems to be the solution now. It would create something more than a devolved Parliament - an English Parliament which is itself sovereign and not dependant on another Parliament. Which could not have its powers altered or be abolished by Westminster.

And this would create something new. At the moment, the Supreme Court can rule that the Scottish Parliament has acted ultra vires, but cannot rule that Westminster has acted ultra vires. If there were an English Parliament in a federal system that would have to change.

The Speaker of the House of Commons would have to ensure that any legislation brought before the House of Commons did not infringe on the English Parliament's powers.

The Law Officers of the English Government would have the power to ask the Supreme Court to rule that a Bill just passed by Westminster was ultra vires and have it struck down ensuring it never gets Royal Assent.

Answering the West Lothian Question puts England - and the United Kingdom - into new constitutional situations.

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