2014 10 – Tory Promises and the Scottish Referendum

The West Lothian Question

An unavoidable product of asymmetric devolution

by David Morrison

A factor – perhaps the most important factor – in limiting the vote for independence in Scotland in the referendum on 18 September to 45% was the formal pledge by the leaders of the Conservative, Labour and Liberal parties at Westminster to grant additional powers to the Scottish Parliament.

12 days earlier an opinion poll by YouGov for The Sunday Times had put the YES in the lead for the first time (by 51% to 49%) [1]. This was the culmination of a spectacular rise in YES poll ratings over the previous month from being 22% behind in early August. It produced panic at Westminster and a promise to transfer additional powers from Westminster to the Scottish Parliament in double quick time.

On the morning after the referendum, David Cameron reiterated this promise, saying that the “clear commitments” by the three pro-union parties would be “honoured in full” and announcing that Lord Smith of Kelvin would “oversee the process to take forward the devolution commitments with powers over tax, spending and welfare all agreed by November and draft legislation published by January” [2].

 

A product of asymmetric devolution

However, Cameron went on to announce that the Government intended to address the so-called “West Lothian question” at the same time.

This is the anomaly whereby Scottish MPs at Westminster can vote on matters that apply to England alone, while English MPs have no say whatsoever on those Scottish matters that are devolved to the Scottish Parliament. The same is true for Welsh and Northern Irish MPs.

Thus today Scottish MPs at Westminster can vote on legislation about, for example, English health and education, but English MPs cannot vote on legislation about these matters for Scotland, since they are devolved matters within the competence of the Scottish Parliament.

The anomaly is a product of the asymmetric devolution that has been established within the UK, where England alone hasn’t got devolution. It has existed in a mild form since the early 1920s when a parliament was forced upon Northern Ireland, but it has become much more significant since Scotland and Wales were granted devolution in the late 1990s.

Out of a total of 650 Westminster MPs today, Scotland has 59 MPs, Wales 40 and Northern Ireland 18, that is, 117 MPs (18% of the total) represent regions of the UK that have devolved legislatures. At present, 66 of these seats (40 in Scotland and 26 in Wales) are held by the Labour Party and only 9 (1 in Scotland and 8 in Wales) by the Conservative Party.

The present arrangements allow for the possibility that a majority opinion among English MPs about matters affecting England alone could be outvoted by a UK-wide majority of all UK MPs. But it is rare for this to happen. Since 1919, only in the short-lived parliaments of 1964–66 and February–October 1974 has the party or coalition forming the UK government not also enjoyed a majority in England. Of course, a formal majority may be reduced or eliminated by rebellion against government policy in the ranks of its MPs.

 

Foundation hospitals & tuition fees

On a couple of occasions in recent years, important pieces of English-only legislation would not have been passed in the House of Commons without the support of Scottish Labour MPs [3].

In November 2003, for example, the Blair government introduced a Bill to establish “foundation hospitals” in England. Had voting on the Bill been restricted to English MPs, whose constituents were the only ones likely to be affected by the legislation, the government would have been defeated. However, the legislation was carried because of the support of 44 Scottish Labour MPs.

Shortly afterwards, in January 2004, the Higher Education Bill allowing English and Welsh universities to charge variable tuition fees, scraped through the House of Commons by 316 votes to 311. The only Scottish Tory MP at the time, Peter Duncan, refused on principle to vote, because the issue did not affect Scotland. Almost all the other Scottish MPs (72 in all at that time) voted, dividing 46-21 in favour of the Bill and saving the day for the government.

Note, however, that both of these incidents occurred because of a rebellion against the Blair government’s policy by Labour MPs.

 

Tam Dalyell asks a question

The West Lothian question became an issue in UK politics (and acquired its name, thanks to Enoch Powell) in the late 1970s when a Labour government proposed a measure of devolution for Scotland and Wales. Tam Dalyell, the Labour MP for the West Lothian constituency, was a leading opponent of devolution on the grounds that it would give rise to the anomalous situation we have been discussing and, as a result, would ultimately lead to the breakup of the UK. Famously, in a debate on devolution in the House of Commons on 14 November 1977, Tam Dalyell asked:

“For how long will English constituencies and English Honourable members tolerate at least 119 Honourable Members from Scotland, Wales and Northern Ireland exercising an important, and probably often decisive, effect on British politics while they themselves have no say in the same matters in Scotland, Wales and Northern Ireland?” [4]

And he continued to ask questions along these lines whenever devolution within the UK was on the agenda.

The devolution proposal in the late 1970s was put to a referendum in Scotland, but, although a majority favoured the proposal, it wasn’t implemented because Parliament had decreed that it must have the support of 40% of the electorate in order to be put into practice.

However, another devolution proposal made by the Blair government in 1997 was supported overwhelmingly by the Scottish people in a referendum and a Scottish parliament was established in May 1999. Over the following decade, its powers have been gradually increased.

For many years, Scotland had been overrepresented in the House of Commons with 72 seats. This was reduced to 59 in the Scotland Act 1998, which established the Scottish Parliament.

At the same time, a devolution proposal for Wales was narrowly endorsed by the Welsh people in a referendum and a Welsh Assembly was established, with considerably less powers than its Scottish equivalent and, initially, no powers to make laws for Wales.

 

A decisive answer

On the morning after the referendum, David Cameron declared:

“The question of English votes for English laws – the so-called West Lothian question – requires a decisive answer.”

And he insisted that “this must take place in tandem with, and at the same pace as, the settlement for Scotland”.

In fact, the Conservative Party has been promising to “answer” the West Lothian question ever since the Scottish Parliament was established in 1999. A commitment to do so formed part of the Conservative manifesto for the 2001 general election, which promised to “reform Parliament so that only English and Welsh MPs vote on exclusively English and Welsh matters” [5].

A similar commitment was present in the 2005 and 2010 manifestos. The latter said:

“Labour have refused to address the so-called ‘West Lothian Question’: the unfair situation of Scottish MPs voting on matters which are devolved.

“A Conservative government will introduce new rules so that legislation referring specifically to England, or to England and Wales, cannot be enacted without the consent of MPs representing constituencies of those countries.” [6]

However, the programme for government of the Conservative coalition with the Liberal Democrats, published on 20 May 2010, merely undertook to look into the matter, stating:

“We will establish a commission to consider the ‘West Lothian question’.” [7]

And nearly two years elapsed before the commission was established in January 2012 under the chairmanship of a former Clerk of the House of Commons, Sir William McKay. Its terms of reference were:

“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.” [8]

Note that the terms of reference are only concerned with handling legislation that applies to England alone.

The Commission reported just over a year later in March 2013, but eighteen months later the Government has yet to make a formal response to its report, despite promising to do so last autumn [9]. Until David Cameron declared on the morning of 19 September 2014 that “the West Lothian question … requires a decisive answer”, one could be forgiven for thinking that the Government had decided to kick the issue into the long grass.

 

McKay Commission proposals

The McKay Commission proposed that the procedures of the House of Commons be modified to enshrine the principle that “decisions at the United Kingdom level with a separate and distinct effect for England … should normally be taken only with the consent of a majority of MPs for constituencies in England … “ (see Commission Report [10], paragraph 12). In essence, this is the same principle that underlies the devolution arrangements for Scotland, Wales and Northern Ireland, where local representatives take decisions for that area on devolved matters.

However, the Commission insisted on the maintenance of the principle that “MPs from outside England should not be prevented from voting on matters before Parliament” (ibid, paragraph 15). Its report continues:

“This would create different classes of MP and could provoke deadlock between the UK Government and the majority of MPs in England. The concerns of England should be met without provoking an adverse reaction outside England.

“MPs from all parts of the UK need to have the opportunity to participate in the adoption of legislation, whatever the limits of its territorial effect. Instead, MPs from England … should have new or additional ways to assert their interests. But MPs from outside England would then continue to vote on all legislation but with prior knowledge of what the view from England is.”

As a consequence, it rejected (ibid, paragraph 75):

(a) A requirement for laws applying to England to be passed only if a majority of MPs from England is in favour.

(b) A requirement of a double-majority, or “double-lock”, in which legislation could only be passed if there is both a majority of MPs from England and a majority of the House of Commons as a whole in favour.

The Commission came down in favour of a procedure in which the majority opinion of MPs from England is ascertained, but in which the majority in the House as a whole could overrule the majority from England.

If, as proposed by the Commission, the House of Commons were to adopt the principle that decisions affecting England alone should normally be taken only with the consent of English MPs, then it would be very unlikely that MPs from other parts of the UK would vote to overrule a majority from England. Most likely, it would become the rule that Scottish, Welsh and Northern Ireland MPs abstain on decisions affecting England alone. The SNP adheres to that rule at the moment (as did Tam Dalyell until he retired from the House of Commons in 2005).

This seems to be a workable system for the House of Commons to take decisions affecting England alone, which doesn’t divide MPs into two classes with different voting rights. Furthermore, it shouldn’t cause resentment in Scotland, Wales and Northern Ireland, since its objective is to give effect to the reasonable principle that decisions affecting England alone should normally be taken only with the consent of English MPs.

However, the arrangements proposed are not ideal. Specifically, they do not allow for circumstances in which English-only legislation has indirect consequences outside England, which raises the question of whether it is reasonable to seek to dissuade MPs from outside England from voting on the legalisation.

A prime example of this arises because of the Barnett Formula, which is used to calculate the block grants given by the Treasury in London to the devolved governments in Scotland, Wales and Northern Ireland. It is based on relative population adjusted annually (not need). Its application means that an increase in expenditure on, for example, health provided for in legislation for England, leads automatically to an increase of around 10% of that amount to the Scottish block grant.

 

Federalism?

Is the Government now going to implement the recommendations of the McKay Commission? That’s not clear. Since the Government hasn’t made a formal response to the Commission’s report, it’s difficult to know its attitude to the report’s recommendations. But the rhetoric coming from the Conservative Party has suggested that the Government intends to exclude Scottish (and Welsh and Northern Irish) MPs from decisions that affect England only, a proposition which was specifically rejected by the McKay Commission.

Some Conservative MPs, for example, John Redwood, have gone so far as to talk about arranging the business of the House of Commons so that its serves part of the time as an English Parliament with only English MPs present and the rest of the time as the UK Parliament with all MPs present.

There is a certain logic to this since today the House of Commons functions in part an English Parliament and in part a UK Parliament. The ultimate logic is to create a separate English Parliament and transform the UK’s system of government into a federal system, with the House of Commons becoming the lower house of the federal parliament. The McKay Commission considered this option and argued against it as follows (ibid, paragraph 71):

“There are no precedents of federal systems in which one component makes up over five-sixths of the overall population of a state. There is a wide view that such a big unit would destabilise the state as a whole, both in relation to the three much smaller units in Northern Ireland, Scotland and Wales, but also in relation to the federal UK parliament and government, to which an English parliament would be likely to be a powerful rival. …

“We see little merit in considering a federal system based in England on English regions and heard little evidence in support. We are conscious of the swingeing rejection of such an approach in the North East of England in 2004 when four-fifths of the regional electorate voted against establishing an elected regional assembly [which had no law making powers]. ….”

“Any federal system requires a delineation of competences, which are usually arbitrated by a supreme court that would be able to overrule the UK parliament, as well as binding the devolved institutions. This would be a radical departure from UK constitutional practice. In this and in other respects, the massive upheaval in governmental arrangements that would be needed to create a new Parliament for 50 million people would not appear a proportionate response to the current sense of disadvantage in England.

“It seems unlikely in the current climate that citizens would favour having more politicians than now, or the costs associated with establishing a new institution.”

It’s impossible to argue against any of that.

 

A trap for the Labour Party

The granting of additional powers to the Scottish Parliament increases the scope of the West Lothian anomaly and it was inevitable that English MPs would demand that the anomaly be addressed. However, when David Cameron chose to raise the flag for “English votes for English laws” on the morning after the referendum, his principle objective was to set a trap for the Labour Party to fall into – and it duly did.

In response to Cameron, Labour spokespersons refused to acknowledge that an anomaly exists that required to be addressed and instead proposed a comprehensive constitutional review beginning in 12 months time to deal with matters which are not obviously of pressing concern, for example, devolution within England.

The overall impression given by the Labour Party is that fairness to England is being given second place to party political advantage, that the Labour Party is seeking to retain unrestricted voting rights in the House of Commons for Scottish and Welsh MPs, because 66 of them are Labour and only 9 Conservative. That could have serious consequences for its support in England in next May’s general election, particularly with UKIP also flying the flag for “English votes for English laws”.

One might have thought that a wiser course for the Labour Party would have been to acknowledge that a problem exists, to point to the 100-page report of the McKay Commission set up by the Government to consider this serious and difficult issue and to say that the proper way to proceed is for the Government to make a formal response to Parliament about the report (as it promised to do a year ago) – rather than by the Prime Minister demonstrating contempt for Parliament by making an announcement to the press in Downing Street at 7 o’clock in the morning.

 

 

References:

[1] yougov.co.uk/news/2014/09/06/latest-scottish-referendum-poll-yes-lead/

[2] http://www.gov.uk/government/news/scottish-independence-referendum-statement-by-the-prime-minister

[3] http://www.independent.co.uk/news/uk/politics/the-big-question-what-is-the-west-lothian-question-and-can-it-be-resolved-satisfactorily-406571.html

[4] http://www.parliament.uk/site-information/glossary/west-lothian-question/

[5] http://www.conservative-party.net/manifestos/2001/2001-conservative-manifesto.shtml

[6] http://www.conservatives.com/~/media/Files/Activist%20Centre/Press%20and%20Policy/Manifestos/Manifesto2010

[7] http://www.gov.uk/government/uploads/system/uploads/attachment_data/file/78977/coalition_programme_for_government.pdf

[8] http://www.publications.parliament.uk/pa/cm201212/cmhansrd/cm120117/wmstext/120117m0001.htm

[9] http://www.publications.parliament.uk/pa/cm201314/cmhansrd/cm130902/text/130902w0001.htm

[10] webarchive.nationalarchives.gov.uk/20130403030652/http:/tmc.independent.gov.uk/wp-content/uploads/2013/03/The-McKay-Commission_Main-Report_25-March-20131.pdf

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