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"English votes for English Laws" – Is it really that simple?

About The Author

Former Author (Assistant Editor)

Author is a King's College London Law graduate, currently working as a corporate paralegal for a firm based in South West England. Author is due to begin his BPTC at the University of Law in September 2015, having attained a scholarship from Middle Temple.

Ever since William Gladstone proposed 'Home Rule' for Ireland as far back as 1868, devolution has been an almost constant issue, not only politically but also constitutionally. Despite the passage of almost 150 years since the first suggestion of home rule was made, there has still not been a satisfactory outcome despite several attempts. The recent referendum on Scottish Independence has added a renewed vigour to reconsider devolved powers, not only to the other nations of the United Kingdom, but also within England itself. 'English votes for English laws' is an attractive proposition, but is the answer really all that simple? Judging from the lessons of attempts past, it appears not.

The 'Downing Street Declarations'

Although the epithet of the 'Downing Street Declarations' is not yet established, the statement from Prime Minister David Cameron on the morning of the Scottish referendum decision would indeed deserve such a title, if the change that is promised comes to fruition. The full speech can be found here, but I wish to highlight a few key statements.

The Prime Minister set out, in very bold terms, his vision for the future of the United Kingdom after Scotland voted in favour of remaining part of the United Kingdom. He stated that:

To those in Scotland sceptical of the constitutional promises made, let me say this: we have delivered on devolution under this government, and we will do so again in the next Parliament. The 3 pro-union parties have made commitments, clear commitments, on further powers for the Scottish Parliament. We will ensure that they are honoured in full.

More interestingly though, in addition to reiterating his previous promises to devolve further powers to Scotland in the run-up to the vote itself, he went on to say that:

The question of English votes for English laws – the so-called West Lothian question – requires a decisive answer. So, just as Scotland will vote separately in the Scottish Parliament on their issues of tax, spending and welfare, so too England, as well as Wales and Northern Ireland, should be able to vote on these issues and all this must take place in tandem with, and at the same pace as, the settlement for Scotland.

Promises made: can they be delivered?

The British constitution and political structure currently lies somewhere between a federal and unified state. Before devolution, all legislation that affected the nations of the United Kingdom was debated and passed solely by the Westminster legislature, demonstrative of a unitary state. Comparatively, the clearest example of a federal system of government is the United States of America. Under a federal system, each state has nearly autonomous control over its fiscal and social policies, with federal authorities only responsible for matters that affect the states collectively, such as national defence.

One of the most controversial points noted by David Cameron is one that was originally highlighted in 1977 by the MP for West Lothian, Tam Dalyell, who questioned why MPs from Scotland (and now from Wales and Northern Ireland) are able to vote on issues which solely affect England, such as NHS England when English MPs have no power to vote on measures affecting NHS Scotland, which is a devolved matter. 

As of yet no clear answer has been provided to solve this issue, although there have been several suggestions put forward to solve the current constitutional gridlock. 

Our current constitutional framework

Westminster

Parliament is made up of two chambers, the elected House of Commons and the unelected House of Lords. For legislation to be enacted it must be passed by both Houses before receiving royal assent from the monarch. The Members of the House of Commons represent individual constituencies from across the United Kingdom and are able to vote on any issue which comes before the House, whether relating to their constituency or not. The intention is that the MP is a personal representative for each constituency and should vote in the way that is representative of their constituents. In 1997, referendums were held in Scotland and Wales, with Northern Ireland following suit the following year. After the passing of these referendums, some by particularly slender margins, the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly were established.

Scotland

The Scotland Act 1998 created a Scottish Parliament with some very limited powers over devolved matters, but these powers have been extended ever since, most notably by the Scotland Act 2012. The 2012 Act focused mainly on the fiscal powers of the Scottish legislature, with the Prime Minister saying at the time that it was “the biggest transfer of fiscal powers in 300 years”. Despite this growth, there are still considerable areas that the Scottish Parliament is unable to legislate on, with the referendum campaign highlighting several of these areas. Greater powers that are likely to be granted to Scotland in the next advance of devolution will concern (i) taxation and, (ii) the welfare system.

The ability to levy new taxes or lessen them would give the Scottish Parliament far greater control over their budgets and could even make them less reliant on the funding provided by the Westminster parliament. The funding provided from the Treasury proved to be a contentious point amongst the political parties during the referendum campaign, with the Prime Minister committing to the Barnett Formula, which gives an extra £1623 to each Scottish citizen compared to their English counterparts.

It is important to note however that the Scottish Parliament already has the ability to lessen or increase income tax by 3% under the provisions of Part 4 of the Scotland Act 1998 but has chosen not to exercise this right. This decision may have been taken in order to ensure that it did not appear too radical, but may also be a signal that the Scottish Parliament approve the tax system currently administered from Westminster. 

The number of ‘Yes’ votes for independence, and also comments from several of the ‘No’ voters show that there is a clear appetite for more powers to be handed to the Scottish legislature. However, the contradiction between the greater desire for a stronger Scottish Parliament but a maintained United Kingdom is that the constitutional problems are only increased for Westminster. A greater allocation of powers for the Scottish Parliament would mean that Members of the Scottish Parliament (MSPs) would be able to debate a wider range of issues, but conversely Scottish MPs in Westminster would be unable to vote on more and more issues that affect their constituents. This legitimacy gap would be extremely unsatisfactory and will likely lead to a more radical approach to solving the West Lothian question.

Constitutional conventions?

One suggestion to solve the West Lothian question is the establishment of a constitutional convention. This proposed convention would require Members of the House of Commons who are elected from the other nations of the United Kingdom to abstain from voting on any policies that solely affect England. This proposal has been dubbed the “abstention convention”.

Constitutional conventions are informal rules that govern the operation of Parliament and government in the United Kingdom and are one of the features of our uncodified constitution. A recent example of the creation of a new convention is the requirement for Parliamentary approval before taking military action against another state. Previously this had been at the discretion of the monarch, known as a royal prerogative, but since the decision to hold a vote on the Iraq war, every subsequent decision has been subject to a vote in the House of Commons. This was seen most recently last week with the vote on proposed military action in Iraq to combat IS. The abstention convention for MPs elected from constituencies beyond England initially seems to be a sensible one as it would resolve the West Lothian question in principle, as there would no longer be any cross-over of votes. However, this could only be seen as a short-term fix because it would threaten to create two classes of MPs. 

The attractiveness of the constitutional convention is that it could be implemented immediately, however, this would leave our constitution in an even more unsatisfactory position than what we have currently. The two-tier system within the House of Commons that would develop would undermine the legitimacy of electing MPs from the non-English constituencies, as they would be restricted to voting only on matters that affect the United Kingdom as a whole. These lower-tier MPs would therefore be operating as a federal representative in a non-federal state. Far from resolving the issue of independence for a generation, or even a lifetime as suggested by Alex Salmond following his campaign’s defeat in the referendum, this concern could advance the argument in favour of independence for the nations of the United Kingdom even further.

There is also a practical political resistance against such a convention from the Labour party, as they currently have 40 MPs who are elected from Scottish constituencies. If they were to lose these votes in the House of Commons there would be a dramatic swing in power when English matters were discussed. With Scottish MPs discounted, the Conservative party would have a majority and thus a controlling say in all English affairs. An interesting fact is that if one discounts Scottish MPs from the Parliament, in post-war Britain there would only have been two Labour governments, under Tony Blair and Gordon Brown from 1997-2010, who would have been elected solely on the basis of English votes.

Is federalism on the horizon?

Considering the Prime Minister’s determination to honour his promise on further devolution within the United Kingdom, the aforementioned proposed constitutional convention could only be seen as a stopgap. Consequently, a federal state seems to be the only possible alternative that provides a stable constitutional outcome.

A practical barrier to a federalist state similar to the model in the United States is that there is no true political appetite to create a separate English Parliament that would mirror the Scottish Parliament, Welsh Assembly and the Northern Irish Assembly. Again one reason for this is that the Labour party would be far less likely to command support at Westminster because of the strong Conservative support within England. The size of the English Parliament would also far outweigh that of the other nations and as noted by Vernon Bogdanor, research professor at the Institute of Contemporary British History at King's College London:

There is no federal system in the world in which one unit represents more than 80% of the population… Federations in which the largest unit dominated, such as the USSR, Czechoslovakia and Yugoslavia, have not been successful. 

A federalist state would clearly be the most radical solution to the West Lothian Question, but it may create far greater problems both politically and constitutionally because of the vast difference in economic and geographical size.

A Third Way Out? 

The 'Commission on the consequences of devolution for the House of Commons', also known as the McKay Commission, provided a third option last year. They made several recommendations all designed to “allow the English voice to be heard”. One of the summary points on the recommendations state that:

They are not a single package but a menu from which choices can be made to suit the circumstances of a particular bill. 

The main thrust of their recommendations is that a committee should be set up within the Commons who would be responsible for providing consent to pass legislation which affected England or ‘England-and-Wales’. England and Wales can be taken together in this way because they operate under a unified legal system, which is distinct from that of Scotland and Northern Ireland. 

The requirement to seek approval from the Committee would be analogous to the position of a minority government, which will often have to seek approval from opposition parties before attempting to pass legislation in order to secure the requisite number of votes to pass it through the House of Commons. Of course, a committee of this sort with the powers recommended by the Commission would not have the power to veto any legislation, but the more conservative nature of the British political system means that the radical step of ignoring a committee recommendation would be highly unlikely.

The committee sees this option as promoting ‘compromise rather than conflict’ and appears to reach a situation where the West Lothian question is solved without too radical a shift in the political framework of the United Kingdom. There would be questions over the legitimacy of this committee, as it would highlight the majority political support within the voting patterns of England as highlighted above.

Conclusion

As was stated on BBC Radio 4's Today programme directly after the 'Downing Street Declarations' by David Cameron, the current constitutional gridlock we face was noted as an example of a British, idiosyncratic ‘fuddle’. Amidst the promises and confusion, one thing is clear; the constitution as we know it is entering a period of change and those in charge of modification must remember that constitutional shifts are almost inevitably impossible to reverse. I do not believe that the West Lothian question needs a particularly decisive answer with the suite of powers currently afforded to the devolved legislatures. However, if the promises are carried through and more powers are passed then decisive action must be taken.

If federalism did come to the United Kingdom it may herald an era of radical shift in the politics not only of the United Kingdom, but more pertinently in England as voters come to realise that unless change comes, a Conservative-led English parliament would be the inevitable outcome almost indefinitely. A decisive shift into a federalist state is unlikely, but this is unchartered territory for the United Kingdom and there is no clear likely outcome. 

Further reading

Joshua Rozenberg, The Guardian: 'West Lothian question: Easy to ask, trickier to answer'

James Landale, BBC: 'West Lothian question continues to puzzle'

Holly Watt and James Kirkup, The Daily Telegraph: 'West Lothian Question: Would 'English votes for English laws' work?'

Huffington Post 'West Lothian Question' articles

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Tagged: Constitution

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