The decision is made, and Scotland remains in the United Kingdom. So what happens now? Back to business as usual? Emphatically not. There may be a temptation to see Scotland’s vote to stay with the UK as a rejection of nationalism, and relapse into a comfortable, if poorly understood, status quo. This would be a mistake. Nationalism has been rejected at the polls, but neither the idea nor its proponents will disappear. They may present the question again in another generation, and before then the UK must take the chance to reflect on what sort of a country it is and how it hangs together.
The pledge made by party leaders David Cameron, Nick Clegg and Ed Miliband of more powers for Scotland now requires some hurried work to prepare a stronger devolution settlement, and one that’s consistent with the sort of Union defended in the referendum campaign. That’s tricky enough. But attention also now focuses on the rest of the UK, especially England. West Lothian, like most of Scotland, voted “No,” and became a Question again. The day after Scotland’s vote, David Cameron promised England more of a voice, responding to calls for “English votes for English laws.” Why should Scottish MPs (or Welsh or Northern Irish for that matter) vote in Westminster on purely English matters? This famous “West Lothian question” puzzled William Gladstone, and has entertained constitutional scholars for more than a century. It’s really an “English question”—about how to give England fair representation—and now deserves an answer. But the right answer, just like designing the right form of devolution, depends on understanding what sort of Union the UK is.
An untidy, asymmetric Union The referendum has held up a mirror not only to Scotland, but to the UK as a whole. It has given us an opportunity to understand and to restate the nature and purpose of the union. Under the pressure of the campaign, it became clearer that the Union had both economic and social aspects. Whether economic integration and a single currency could survive the shock of separation and the end of fiscal sharing and a common welfare state was a key campaign battleground. Scots concluded they could not, and opted into the political union which underpins both.
It is the nature and structure of that political union which now needs to be better articulated. In the wake of the Scottish vote, the time has come for the UK to restate its territorial constitution, and reconstitute itself as a union.
This is not just about Scotland. First, it was easy to forget in the heat of the Scottish debate that Wales and Northern Ireland, too, have their aspirations and as much say over the constitution of the country as the Scots. Wales has had only limited institutional continuity in the thousand or more years since it was incorporated into an English polity, but many of the issues that face Welsh devolution today are exactly the same as for Scotland. What should the relationship be between the Welsh legislature and Westminster? Is the default that powers should be exercised in Wales unless they need to be reserved to London? Northern Ireland’s story differs, but does share one important characteristic with the Scottish union: the UK has long acknowledged that if the people of Northern Ireland wish to leave the union (and join the Republic of Ireland) they have the right to make that decision.
At the moment, the devolution legislation—the Scotland Act 1998 and its Welsh and Northern Irish equivalents—form the nearest thing the UK has to a “territorial constitution.” It achieves a great deal, giving power to the devolved institutions, and expressly reserving to the UK the powers that deliver the benefits of the union—key economic powers, and (with a wrinkle in respect of Northern Ireland) social solidarity through the social security system. But it still suffers from serious defects, and the time has come to make the territorial constitution more explicit.
The first defect is, in a sense, purely presentational. These laws have the look and feel of “ordinary” Acts of Parliament: you wouldn’t know they were a constitution to look at them. The second is that they are piecemeal. Although achieving broadly the same purposes for Scotland, Wales and Northern Ireland, they are scattered across the statute book. They tell no coherent story about the nature of the relationship between the devolved assemblies in Edinburgh, Cardiff and Belfast, the UK as a whole, and the parliament at Westminster.
It is emphatically not necessary for each devolution settlement to be the same. There are important reasons for some differences—for example, Northern Ireland’s relationship with Dublin as well as London. But it is reasonable to ask if other differences that have arisen for purely historical reasons should be sustained. For instance, the Scottish devolution settlement works by defining what is “reserved”—dealt with at the UK level—while the Welsh settlement operates differently. There is a strong case that it is time for some, if not all, of the devolution legislation to be consolidated together in one code.
The third defect is more substantial. The reality is that devolution is a permanent and irreversible part of the UK’s constitution. In Wales, Scotland and Northern Ireland, devolved government has been ratified in a total of five referendums. (Twice in Wales, in 1997 and 2011; in 1998 on the Good Friday Agreement in Northern Ireland; in Scotland’s case, first in 1997 and now in rejecting separation in 2014.) Additionally, since 1999, Westminster has recognised that the devolved legislatures have primacy in their own competence; it does not legislate on matters they handle without their consent. This practice has hardened into a constitutional convention. During the referendum campaign, all three UK political parties explicitly acknowledged that the status of the Scottish parliament was permanent and devolution irreversible. The time has surely come for these facts to be given suitable statutory recognition in constitutional legislation.
"The promises made for more powers for Scotland have injected heat into what was previously a rather abstract debate of interest only to constitutional anoraks"Our territorial constitution has, however, one final and glaring defect: there is no constitutional recognition whatsoever of England. If the UK is a multinational state, a voluntary union of nations, as seems clear after the Scottish referendum, then England is surely one of those nations. At present, however, in legal terms, England is not even a jurisdiction, and it has no political existence at all. This throws up the West Lothian question: having devolved legislatures for some of the UK, but not for England means Scottish MPs vote on English legislation dealing with matters which, in Scotland, are the responsibility of the Scottish parliament, like health or education. But no MP—English or Scottish—has the opportunity to vote on these matters for Scotland. Of course, the issue has arisen since 1923 for Northern Irish MPs and, now that there is fuller legislative devolution to Cardiff, it applies to Welsh MPs also. Legislation that affects England alone therefore may not reflect the balance of views within England, because it also takes account of the views of MPs in parts of the UK not affected by the laws. But laws passed on devolved matters in Scotland, Wales and Northern Ireland reflect the balance of views within those countries alone.
The promises made for more powers for Scotland have injected heat into what was previously a rather abstract debate of interest only to constitutional anoraks. The call for “English votes for English laws” has been louder ever since, and the Conservatives clearly want to move in this direction.
Federalism won’t work Some have argued that the UK should become a fully federal state. Certainly federalism is a well-established mode of government that works successfully worldwide. If the UK consists of several nations, then each, so the argument goes, should have its own domestic government (like a US state or a German Land), leaving Westminster to discharge federal functions—macroeconomic management, promoting social solidarity through redistribution (taxation, old age pensions and cash benefits) and foreign and defence policy.
In our untidy system, Westminster is both a state and a federal parliament, dealing with domestic English issues as well as UK ones. It certainly carries out federal functions for Scotland, Wales and Northern Ireland, and domestic functions for England. The problem with strict federalism, however, is that the UK is a profoundly asymmetric state with three smaller members and one much larger one. The 1973 Royal Commission on the Constitution recognised that one state consisting of 85 per cent of the population would unbalance a federal system. England is 10 times bigger than Scotland, 20 times bigger than Wales and 30 times the size of Northern Ireland. If there was a parliament of England it would look and feel very much like the parliament of the UK, and the government of England would be at least as powerful as that of the UK. It would not last.
An English parliament might answer the West Lothian question in a formal sense. But the price of dealing with an untidy anomaly would be high: essentially, the end of anything that would be recognisable as the UK. The purpose of dealing with the West Lothian question is to accommodate differing national political priorities inside a wider union. An English parliament would have the opposite effect. It would end the Union.
The traditional answer to this puzzling question was to stop asking it. After all, this theoretical anomaly did not matter much in practice. But under the pressure of greater devolution and the searchlight of the referendum campaign, demand has grown as English identity becomes more politicised. As we restate the territorial deal that constitutes the UK, there is a good case for giving England political expression of its own. But how?
A better answer In the absence of a separate English parliament and government, the reality is that Westminster is England’s parliament as well as the UK’s, and the UK government is England’s government. This is the building block of any answer to the question: any solution, if it is to be stable, must not undermine the legitimacy of either parliament or government. To be stable, government needs confidence and supply. Confidence means that an administration with a majority at Westminster governs both the UK and England. Supply means such a government must be able to get its Budget through, even without an English majority. But on the rest of its programme, the government must be obliged to treat with English opinion. The best way of doing so, in my view, is through changes to parliamentary procedure for English legislation. Legislation relating to England needs only some parliamentary stages in which English MPs alone participate. The procedures need to allow English voices to be heard, but not to split the government into separate UK and English administrations.
In 2007, Malcolm Rifkind, the Conservative MP and former Secretary of State for Scotland, proposed a simple solution: an English Grand Committee, consisting entirely of English members, should take the second reading of bills applying only to England. Such a process could be a significant constraint on a government that lacked a majority in England, which would have to behave more like a minority government on those issues.
Rifkind’s proposal was followed in 2008 by the Conservative Party’s democracy taskforce, chaired by Kenneth Clarke. In Clarke’s more elaborate scheme, all bills would pass through the normal House of Commons processes up to and including the second reading. Bills would then be moved into a new procedure by being certified as “English” and so as a “suitable bill” by the Speaker. For suitable English bills, the committee stage would be undertaken by English MPs only, in proportion to English party strengths. At report stage on the floor of the House, the bill would similarly be voted on by English members only. At third reading, the bill would be voted on by the whole House.
Clarke’s scheme offers a measure of “English votes for English laws” without rendering England ungovernable when the overall majority in the Commons differed from England. It strikes a balance between allowing English opinion to influence a bill, and allowing the UK government to do the job it must do, of governing England as well as the whole UK.
One problem with Clarke’s proposal is that some MPs would be unable to participate in some votes on the floor of the House: this runs counter to Commons principle that all MPs are equal. This can be remedied, however, by taking the report stage of a bill to an English Grand Committee and then the third reading on the floor of the House. This solves the problem that defeated Gladstone when he tried to devise a measure for Irish Home Rule. How would Irish members move “in and out” of the Commons, depending on the topic of the legislation. Here it would be the bill which moves “in and out” (of committees) and not the MPs, who all retain the same status. The commission on the “consequences of devolution for the House of Commons,” led by William McKay and appointed by the present government, reported in March 2013. It adopted the core of the Clarke proposals. The changes recommended by McKay should, in my view, be seen as part of the territorial constitution of the UK. All parties need to accept that, even though it may be unpalatable and make governing the UK more challenging for a government that cannot secure an overall majority in England. To repeat: what cannot happen, if the UK is to be stable, is that it is impossible for a government without a majority in England to govern the UK. The confidence of the Commons as a whole must be sufficient to sustain an administration, and a government with a UK majority must be able to get its Budget through, without separate votes among English members on a significant part of it, such as income tax. Former Prime Minister Gordon Brown has recently been arguing for more, but not complete, devolution of income tax to Scotland.
Power to cities and regions More needs to be done about the distribution of power and wealth in the UK. The real division is between the north and south, not Scotland and England. The south and east are becoming more distinct from the rest of the country, as they operate in a globalised commercial and financial world. Scottish nationalists go on about this all the time, but it is at least as relevant to the majority of the population of England as to Scotland. Ironically, Scotland is economically more like the south of England: its GDP, even excluding North Sea oil, is closer to that of the south than the north, or to that of Wales and Northern Ireland.
Economic and political challenges both emerge. The first is finding effective measures of regional economic development which can operate throughout the UK. Regional development agencies were an attempt to address this need, with their supply-side regional economic policies (spending on training, factory building and so on). Other attempted solutions include substantial infrastructure investment, such as improved transport links between the north and south; or relocating public sector activity, such as the BBC to Salford, or in previous decades the Overseas Development Administration (as it then was) to East Kilbride. In truth, no government has found the answer to this problem.
Successful economic development strategies, however, link to political decentralisation. Many in the English regions look with envy on Scotland because its political power can be used for economic purposes: not the legislative powers of a parliament but the executive powers of government. Much more substantial executive powers can and should be dispersed to different parts of England. All governments promise to do this, but none has yet successfully delivered it. Maybe the mechanism of the city-region with substantial economic development powers is attractive, but different solutions for different parts of the country are surely appropriate. That is the lesson from the wider constitutional debate. Why not give Kent the powers of a county palatine, and the Birmingham city-region similar capacity to develop its own regional economy? And that has to include fiscal powers—the scope to raise and spend money.
Sharing out the money: fiscal federalism The legislative framework of our territorial constitution is virtually silent on fiscal issues. Legislation sets the tax powers of the devolved administrations, but the other key element of what elsewhere in the world is called “fiscal federalism,” the sharing of resources across the country as a whole, is left to administrative action.
That action is, to be fair, highly structured and set out in Treasury publications. A key mechanism is the “Barnett formula,” devised in the 1970s as a way of allocating spending on some services to Scotland, Northern Ireland and Wales. The outcome is one in which Scotland and Northern Ireland have done well, but Wales less so. Towards the end of the Scottish referendum campaign, the main UK parties affirmed Barnett would continue.
The important principle behind Barnett is not the arithmetic, as the context of the political commitment shows. It was because of the sharing of UK resources in support of devolved spending under the “continuation of the Barnett allocation for resources” that the Scottish parliament would, under devolution, have the last word in safeguarding the National Health Service. The NHS reference made sense in the campaign context, but the principles are what matters. First, the UK shares resources to support devolved services: it is a fiscal and a social union—spending in each country does not depend only on how much tax is raised there. Second, in our asymmetric union, it is the responsibility of the UK government to split UK tax income between spending on services like heath and education which are devolved outside England, and reserved services for which Westminster alone is responsible. Only the UK government can make decisions about what to spend on social security or defence. But when it is allocating resources to services in England that are devolved elsewhere in the UK, it needs a principle that delivers a fair share of those resources to each part of the UK, and does so without interfering with the discretion of the devolved administrations. Whatever its weaknesses, Barnett achieves this.
As tax devolution grows, the grant under the Barnett formula will obviously decrease. But the objective of devolution is not to make it as small as possible. Any devolved funding system strikes a balance between autonomy and accountability on the one hand, and equity on the other. Different federal states strike the balance in different ways. The United States is willing to tolerate wide variations in living conditions across the nations of its union. Australia operates an elaborate system of equalisation. Canada is somewhere in between.
The union that was defended in the recent referendum campaign is one with a commitment to social solidarity, so that the level of public services in England, Scotland, Northern Ireland and Wales does not depend solely on the tax revenues raised in each place. That implies substantial fiscal sharing, even as tax devolution grows; the UK will grow to be more like Canada than Australia, but will not become like the US.
What is needed in constitutional terms is a clear statement of the principle that the UK government gathers taxes, and uses them for services supplied only by central government, and to ensure there is a fair level of resources available across the UK for devolved services. What constitutes a fair level can no doubt be argued (and usually is), but resources must be sufficient to guarantee the key elements of the social union, including free healthcare and education, alongside directly provided social security. A way needs to be found to give this some legal form. The present statutory formulation—“the secretary of state may from time to time make such payments as he may determine”—is clearly inadequate to explain how the UK should share out its resources.
A Minister for the Union? Codifying the UK’s territorial constitution to make it explicit will be a very helpful step. But such a constitution also needs to be managed by and for the UK as a whole. Federal countries take this for granted. Canada, for example, has a Minister for Intergovernmental Affairs at the centre of government and a Secretariat dealing with constitutional and legal issues relating to the federation and Canadian unity. In the UK, although we have well-developed legal mechanisms for managing the boundary between the different legislatures, intergovernmental processes have been ad hoc and often bilateral. The UK’s capability—Scotland, Wales and the Northern Ireland offices—are very small. The Scotland and Wales offices each support a secretary of state, but are tiny departments—too small to discharge the responsibilities they ought to have.
Having separate departments and secretaries of state encourages a piecemeal approach, rather than any coherent picture of the UK as an entity. People in each nation may value having their own secretary of state in the Cabinet, and it would be possible for that to continue. But the time has surely come for a substantial institution of government whose job it is to manage all devolved relationships, and to place them in the context of the UK as a whole; indeed to be responsible for the unity of the UK. In practical terms this might mean three ministers, but one with overall responsibility for the Union. Most important would be a powerful government department supporting the politicians responsible. Some other relationships could, for convenience, be managed by such an institution as well (with the Channel Islands and the Isle of Man, which as self-governing crown dependencies, are not part of the UK but resemble in part its constituent “nations”). The interesting choice is whether this responsibility might be combined with the responsibility for constitutional issues more generally, or with responsibility for English legal or local government issues. I favour the former, for two reasons. First, constitutional issues, if thought about at all, have in the past been combined with the management of the England and Wales legal system, through the office of Lord Chancellor. This encourages too narrow an Anglocentric view of the UK constitution. Second, the management of decentralisation in England (which must surely be a priority for any government) is related much more closely to English local government, and dealing with that relationship is a huge task on its own.
One more thought. Secretaries of state for Scotland and Wales always face the risk of direct political competition with the first minister of those countries. (Northern Ireland’s party system differs.) It’s hard to say whether competition between opposing political parties or within the same party is the more painful. One is public, the other (usually) private. Either way, it can be unhelpful to intergovernmental relationships. This raises one intriguing possibility. In the endless conversations about the reform of the House of Lords, attention usually focuses on how it should be composed. It would be better to begin by thinking what it was for. One function a reformed House of Lords could properly discharge is oversight of the UK’s territorial nature. It could take a particular responsibility for scrutinising the operation of the territorial constitution, something which a second chamber does (of course in very different ways) in other, federal, countries. The responsible secretary of state might be one of its members.
Rethinking and codifying the UK’s territorial constitution will be a complex task. That constitution is something the UK has always had, but has never properly acknowledged. It needs both updating and restating. Updating to acknowledge formally and explicitly that the Union is a voluntary one of which devolved institutions are a permanent part, entrenched by the votes of people in Scotland, Wales and Northern Ireland; and updating, most crucially, to reflect the reality that England also has a constitutional existence, one best expressed in parliamentary procedures to deal with English legislation.
Scotland has answered the question put to it. The “English question” needs the right answer, too. And all the answers now need to be properly codified, so we can all know what kind of state we belong to. Untidy maybe, asymmetric certainly. But a state that can take great satisfaction from the fact that, when nearly a tenth of its population thought very hard about it, they decided to stay in.
