Summary
This article looks forwards to likely events on devolution, in the context of England in particular. In summary I think it likely that:
- nothing of significance will happen this year nor (probably) in 2011
- if there were to be a Conservative government with a working majority, either following the forthcoming election or (if there were to be a hung Parliament) on any subsequent election later this year or at the beginning of next year, by the end of that Parliament some form of restricted voting at Westminster will be introduced
- the Barnett formula will remain for the moment
- regional devolution though desirable is a lost cause
- there will be no English Parliament in the short to medium term, although one may well occur by default in coming decades
Constraints
It is difficult to chart the constitutional future over the short term – say, the next five years – because much depends on the outcome of the forthcoming election, or if that were not to result in a working majority for the government which then ends up in office, in the election thereafter which (in the event of a hung Parliament) would be likely to take place later this year or the beginning of next year.
So far as concerns the future, what I think will happen is different from what I would like to happen. In this article I will mention both. In doing so, I will first deal with the “big ticket” issue of the political representation of England (if any) within the UK, and secondly in a very limited way with the question of UK financial arrangements, although as I mention further below, the two cannot be wholly disengaged.
English votes on English laws
The Labour party went into its 1997 devolution proposals with no working plans for an English dimension for the UK constitution, and there will remain none whilst Gordon Brown remains leader of that party. For any incoming government, including a David Cameron government, the first priority will be the economy and the budget deficit. Nothing will happen in relation to the English Question/the West Lothian Question in the first session of a new Parliament, which will be a long session lasting until prorogation in November 2011 prior to a second Queen’s Speech.
However, I expect a Tory government to introduce some form of restricted voting within the term of any Parliament with a Tory majority, probably based on the proposals of Ken Clarke’s Democracy Taskforce. This will partly be through self-interest (it gives the Tories more opportunities to stake their claims in the event of a Labour government being elected in the future with only a small majority); partly because there is an inadequacy in the current UK constitutional arrangements which it seems difficult to consider can remain unaddressed for ever and the Conservatives do not want to end up with an English Parliament; partly because it gives David Cameron’s own back-benchers something that a number of them feel strongly about; and partly because he has previously publicly come out in favour of it and he cannot too often be seen not to be implementing what he has said he would implement.
In addition, this dovetails nicely with implementation of proposals similar to those of the Calman Commission recommendations for additional financial devolution for Scotland, and with any successful outcome of the referendum on whether the Welsh Assembly should obtain law making powers under Part 4 of the Government of Wales Act 2006 similar to (although slightly reduced from) those of the Scottish Parliament.
The required approval of two-thirds of the whole number of members of the Assembly has recently been given to the holding of such a referendum, although there remains some doubt about the outcome of the referendum, which would take place after the general election. However, it seems difficult to believe that the referendum would escape the gaze of those who already think the West Lothian Question is bad enough without adding a West Clwyd Question to it. It seems likely that Calman Commission implementation, Welsh law-making powers and the position of England will be treated together as a package by the Tories.
Furthermore, my own view is that the Tory calculation that introducing such arrangements for England would do less damage than doing nothing is the correct calculation. Not all of course agree with this. Professor Victor Bogdanor is probably the best known and most widely respected champion of the status quo, and has published a number of articles on the subject. The arguments that he and others of his persuasion have presented on this are twofold:
- A scheme of English votes on English laws at Westminster is unworkable if a UK government were to be reliant on its Scottish, Northern Irish and (after the Welsh Assembly acquires law making powers under Part 4 of the Government of Wales Act 2006) Welsh members for its majority. One of the pillars of the unwritten constitution concerning the Westminster parliament is the principle that the government must be able to get its business through and to whip the members of its own party wherever elected in the UK to any extent that it wishes in order to do so. A scheme of English votes on English laws would in practice (so the argument goes) collapse into a separate English Parliament and government within Westminster by another name, whenever the UK government did not have a majority in England.
- Under the Barnett formula, decisions affecting expenditure in England on matters devolved elsewhere will feed through into amounts paid to the Scottish, Welsh and Northern Ireland Consolidated Funds with respect to those devolved matters. This is sometimes referred to as the “Barnett consequential”. There is therefore no such thing (on this argument) as an “England-only” matter for which either an English parliament, English members at Westminster or regional parliaments for England could or should in practice take jurisdiction. Barnett and devolution for England don’t mix.
These conventional attacks on proposals to limit voting rights at Westminster are in part at least attacks on a straw man. Even if the Barnett consequential argument were decisive in precluding devolution in England (which for the reasons mentioned below I do not believe it is), no proposals emanating from the Tories involving an English Grand Committee, whether from Ken Clarke's Democracy Taskforce or from Malcolm Rifkind, would prevent members for the whole of the UK having a decisive say on whether laws affecting only England should pass both at second and third readings. Thus no Act could pass without the approval of all members, but an English Grand Committee could, depending on how it were implemented, prevent a repetition of, for example, the student top-up fees affair being forced on people in England. They could certainly not collapse into an English Parliament by another name.
The principle that the government must be able to get its business through needs to be considered more seriously. The calculation of opponents of restricted voting at Westminster is first that were there to be a government dependent on its Scottish MPs for its majority, less instability would arise from those MPs being able to decide matters in England which are devolved in Scotland than the reverse; and secondly that it is unacceptable if a government were to be unable to get its legislative program through for England on devolved matters without the agreement of other parties in such circumstances.
I think both ideas are challengeable. Whilst the present system may be able to accommodate the odd student top-up fees affair occurring, I do not believe it could survive it happening with regularity. Apart from it simply being undemocratic, it would be likely to generate considerable ill feeling between constituent parts of the UK. On the second point, which is super-Diceyan in its extremeness, we are not like the Aztecs who felt impelled to offer regular blood sacrifices of increasingly gross proportions in order to keep the sun providing warmth and the natural order of things in existence, nor should be believe that the earth will stop turning if Parliament does not churn out new laws. Laws on health and education which worked in 2010 are likely also to work in 2015 even if they do not match the UK government’s particular political agenda of the moment. A respite from legislative activism might be viewed as a blessing, particularly by those at the receiving end, and where something is required it will be for politicians to do what politicians do in order to reach a compromise: something that would be required in any event if proportional representation were to be introduced, which would normally result in no party having an overall majority.
For what it is worth, my own proposal for this is more limited than those emerging from the Tory party. By analogy with the power of delay for a year available to the House of Lords, if a Bill or separate Part of a Bill were not to have a majority in its favour in the Commons at third reading for the portion of the UK to which it applies as well as for the whole House, I propose that it could not be forced through against the wishes of the majority of those members representing that portion until the following session of Parliament. At all stages of a Bill all members would still exercise a vote; but people in England/Wales would get some protection at third reading against laws and decisions, applying to them only, being forced on them which are not approved of by their elected representatives. Where the government felt it really needed to force something through against the wishes of the representatives of those in England or England and Wales, they could do so, but after the same delay that could be imposed by the House of Lords. Possibly after a period of experience and the development of the processes of consultation and compromise that may be required, this power to delay could be transformed into a power to block.
For such arrangements to work, the extent of a Bill or separate part of a Bill would have to be certified by the Speaker. That used to be done before devolution for the purposes of the Scottish Grand Committee. Various new 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. Those who say that there are insuperable technical difficulties are simply overstating or misunderstanding their case.
The Barnett formula
Lastly on this, I will turn again to the Barnett formula. I am not going to dwell on the supposed iniquities of the Barnett formula, except to say that despite all the hype emerging from the (UK) Scottish Office, the formula does not as some suggest result in an export of significant quantities of English tax payers’ cash north of the border (as opposed to the export of cash from the greater-south-east-of-England’s tax payers northwards and westwards, which does occur). Taking account of the geographical allocation of North Sea oil revenues based on what would be international boundaries, at present Scotland’s fiscal balances are no worse, and possibly slightly better, than that of the UK as a whole.
That will not always be the case. Scotland’s over-reliance on public sector employment and the exhaustion of oil and gas reserves in 30 or so years’ time will give rise to new imbalances, but they do not exist significantly at the moment.
Instead I deal with the Barnett formula here for two reasons. First, in order to dispel the argument against devolution in England which is based on the Barnett consequential, and secondly to explain why I do not think it will be in any new government’s plans to replace it with, say, a needs based formula.
On the Barnett consequential, the point here is that the passing of an Act for a particular service in England such as education or health which normally exercises politicians (say, how schools are to be organised, or the role of parents within them, and so forth) does not of itself normally require expenditure. There may be additional expenditure implications, but compared to current spend on the service they are likely to be de minimis, and at the end of the day any service must cut its cloth to the amount provided for it in any year by the process of supply. Ministers bargain with the Treasury on annual spending reviews on calculations of broad brush political calculation and policy aims, not a detailed analysis of particular service legislation.
The amount available to spend in furtherance of these services (so called “supply”) is established annually by Consolidated Fund Acts. 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.
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 or any supplementaries are put forward in the Commons for the resolution of the House, if they feel 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.
Secondly, the Barnett formula itself. At the moment it undoubtedly favours Scotland in a way that a needs based formula would not. The report of the Richards Committee probably sets out reasonably accurately how any needs based formula would in practice work. Its main effect would be to transfer some of Scotland’s block grant to Wales (a point also made by the Welsh Assembly’s Holtham Commission). England as a whole would stay pretty much the same (although there might be some changes in distribution within different parts of England), and because of the gearing caused by the fact that England represents some 83% of the population of the UK there is no significant pot of money hiding there for the English taxpayer to enjoy anyway.
Any new government will have to cut public expenditure. It will also have to deal with the SNP and with Scottish elections in 2011. Given that these cuts in public expenditure will have a significant impact on Scotland because of its reliance on the public sector, the last thing the new government will want to do is to make things worse by cutting Scotland’s block grant. Bad luck Wales.
Regional government
One feature of the present devolution arrangements which sometimes worries me is the thread of tribalism that lies underneath it. The very existence of a Scottish Parliament or a Welsh Assembly has within it the implicit view that on matters of social provision such as health and education, and indeed in social democracy itself, people within the UK are no longer “in it together”. However, now that tribalism within Scotland and Wales has found an outlet it should be no surprise if, in due course, the light reflected into England from this tribal mirror also begins to make its mark.
Or put more prosaically, I think it will be some time before the full consequences of the 1997 devolution project have worked their way through, and the Labour party having begun that project are unlikely to be able to maintain ownership of it as one suspects they originally thought they could. Having begun the project of devolution and accepted the fracturing of social democracy that it entails, we now have to see it through. It is too late to look back.
With that in mind, I am a fan of regional devolved government within England. My view is that if people in England were offered three regional parliaments and governments for the North, the Midlands and the South, with powers similar to those of the Welsh Assembly and government, and with an opportunity to say which region they thought they were in, it might well find favour at a referendum, and in particular in the north. The botched attempts of John Prescott which ended up in overwhelming rejection in the north-east in 2004 are attributable, I strongly suspect, to the fact that first they did not offer any meaningful devolution at all (a few transport matters would have gone from the Government Office for the North-East to the assembly, but most of the transport and planning powers were to be lifted from the county councils and unitary authorities and on planning were to be subject to central government direction anyway), and secondly that the proposals had the practical effect of dividing rather than representing the interests of the north of England. People in the north-east saw through it.
Some argue that the kind of federal regional devolution to which I have referred would result in a situation where the laws in, say, Manchester could be different from the laws in London, and that is (so the argument goes) ridiculous. To this I would only say first that that is devolution, and secondly that at present laws in Belfast and Edinburgh are different from those in Manchester, and in due course those in Cardiff will become different as well. One of the purposes of devolution was to allow that to happen and it seems a curious criticism to level against federal regional government. Behind it lies the unspoken thought that the 1997 devolution proposals were either wrong, or are not to be taken seriously.
Having said all those things, regrettably I do not think genuine regional government will happen. The Westminster political establishment still sees England as the prize and will not readily cede any meaningful responsibilities to powerful regions and their representatives. Prescott’s quest may have been hopeless politically, notwithstanding the ineffective job he made of it. I am as strongly opposed to pretend regional devolution as were the people of the north-east, and the problem with the Prescott proposals is that they did not, in fact, deal with the West Lothian Question anyway. They would probably still have to be coupled with some form of restricted voting at Westminster.
An English parliament
I am not a great advocate of an English parliament. There is a respectable argument for one, particularly in establishing and legitimising a new identity for those in England. However, to construct a new political class for England to provide complete equivalence to those in Scotland, Wales and Northern Ireland seems to me to be overkill when a simpler solution at Westminster for the West Lothian Question is available; and compared to regional devolution it does not move down powers to any significant degree. It seems possible that if given the choice, even today a majority in England would vote for an English Parliament, and over time that number is likely to become larger, but equally the opportunity in the next decade to make that choice is not likely to be offered by our politicians. Furthermore, I suspect a system of restricted voting at Westminster is the preferred option for most – but again we are unlikely actually to find out. If restricted voting happens, as I suspect it will, it will happen.
Having said that, I also suspect that we may end up with an English parliament after a number of decades by default. It could emerge from a slow metamorphosis of UK power structures into England power structures on matters which will have already become devolved in the remainder of the UK. However, that will be some time in the future I suspect, and time will tell. An English parliament would also be almost certain to emerge if fiscal autonomy were to arise in Scotland, for the reasons I explore further below. Where such Scottish fiscal autonomy would leave Wales and Northern Ireland, and how cross-subsidies from England would continue to operate, would then become quite problematic.
In the absence of regional devolution, an English Parliament would also be a pre-requisite of any federal system within the UK.
Fiscal autonomy
There is a very good reason why the Calman Commission trod carefully on matters of fiscal devolution. Its recommendations on this are relatively modest: they are, in effect, that the Scottish Parliament may set its own rate of income tax provided that it is not more than 10% below that set by the Westminster parliament for the remainder of the UK, and provided that the differential between tax bands is not changed. All money raised above the rate which is 10% below UK rates would go directly to the Scottish Consolidated Fund, in exchange for which the missing 10% would be deducted from the annual amount paid into the fund from the Treasury from UK taxation. So, if the Scottish Parliament were to set the same rate as applying in the remainder of the UK it would find its revenues broadly the same as without Calman; and if it were to set it higher or lower it would get proportionately more or less.
It seems highly unlikely that a Scottish Parliament would ever want to set a rate of income tax for Scotland more than 10% below that applying elsewhere in the UK, so the substantial effect is that Scots could set their own rate of income tax. The preclusion on changing tax bands may be as much in order to avoid arguments that, if MSPs can set their own rates of income tax, then their MP brothers in Westminster for Scottish constituencies should not be able to vote on income tax rates in the remainder of the UK, as it is to avoid unfair taxes on high earners in Scotland. In other words, the preclusion on changing tax bands is probably at least intended in part to avoid a West Lothian issue arising on taxation, where it would become serious.
Imagine then what would happen if there were to be financial autonomy for Scotland, under which the Scottish Parliament became responsible for raising its own taxation to meet its own expenditure. It seems inevitable that members of the UK parliament elected for Scottish constituencies would no longer be able to vote in connection with the fixing of rates of taxes such as income tax and corporation tax applying outside Scotland, to which their constituents would not be subject: were they to do so, it would fly against the constitutional links between taxation and representation, and be grossly unfair to people in the remainder of the UK. The link between taxation and representation, and the removal of the power of the Crown to tax without grant of the Commons in Parliament, formed one of the causes of the English Civil War (aka the Wars of the Three Kingdoms). We surely can’t and shouldn’t go back on this principle now.
If a UK government depended for its majority on its members for Scottish constituencies, it could be unable to raise the taxation for its own programmes. The only logical vehicle for introducing such fiscal autonomy in Scotland would be the creation of an English Parliament.
Other matters
One other “broad picture” point must be taken into account when looking at England.
On two occasions since the war, there has been a Labour government for the UK when England returned a majority of Tory members. The reverse happened in Scotland in the Thatcher governments and the Major government. If one is keeping score, Scotland has now moved ahead of England in the “we didn’t elect them” count. Given the current political complexion of Scotland it seems highly unlikely that at any time in the short to medium future Scotland would ever return more than a handful of Tory members, thus exacerbating this situation in times to come.
One might counter this legalistically by saying that this is what the Scots agreed to in the articles of union. One could also counter it politically by saying that this was one of the issues that the establishment of a Scottish parliament was intended to address. One should not underestimate the extent of the matters which have been devolved which, despite what the SNP say, are already very extensive – I personally regret the loss of a UK-wide national health service as something which binds us together.
I say this to illustrate the point that however aggrieved people in England may in the future think they have become, there is more than one point of view about representational fairness arising from the now multiple legislatures within the UK.
Where now for the Campaign for an English Parliament?
I hesitate to offer advice to the CEP because I have the reservations about their case which I have mentioned, and I am therefore not well qualified to do so. I suspect all they can do is sit it out, because as I have said I think time is on their side. Were the Scots to achieve any substantial fiscal autonomy, which is not impossible, that seems to me to require the establishment of an English Parliament in order to enable taxation to be raised legitimately with respect to the matters affecting England which are devolved elsewhere.
Perhaps my other main advice is to chill a little, and to spend less time aggravated by the fact that the Scottish parliament may have decided, by virtue of devolution, to offer some particular financial advantage for people in Scotland. Every pound that goes to, say, reduce prescription charges or abolish toll road charges in Scotland is a pound less which is available to the Scottish government to spend on something else. That is what devolution and the establishment of local priorities is about, and except when something like the student top-up fees affair arises, it has little to do with an English parliament.
Chris Vine blogs at The Withering Vine
This post is part of the Constitutional Futures series.