By Mark Rowe

27 Oct 2014

Having promised Scotland new powers in a panicky bid to secure a ‘no’ vote in the referendum, the three main parties now have to deliver on their vow – and throw England a bone too. CSW examines the implications. Illustration by John Levers

The ‘no’ majority in the Scottish referendum may have averted one vast constitutional upheaval – but as the civil service is only too aware, the new set of competing plans for further devolution across the UK are likely to lead to substantial legislative and organisational change across the union.

Devolution has already created a very uneven landscape. Agriculture, environment, education and health are devolved to Scotland, Wales and Northern Ireland, whilst housing, local government and the fire services are devolved to Scotland and Wales but not Northern Ireland. Meanwhile MPs from the smaller nations get to vote on English policies in areas such as health and education – posing the longstanding ‘West Lothian question’. “The distinctive thing about the devolution arrangements is how asymmetric they are,” says Akash Paun, a fellow at the Institute for Government. “There are significant differences in each settlement for each part of the country. That makes it naturally unstable.”

Pledges of further devolution, made in a panic by the three main party leaders in the final days of the campaign, have opened up a political and constitutional can of worms. “Westminster and Whitehall only woke up when the polls narrowed, showing people just how brittle the status quo is,” says Professor Peter Hennessy. “The knock-on effects are enormous. People woke up to a ‘no’, but they also woke up to a vast political building site.”

Professor Michael Keating, director of the ESRC Scottish Centre on Constitutional Change, observes that “the political parties are desperately trying to get back to business as normal. But they will find that extremely difficult: expectations have been raised in Scotland. And the rest of the UK has woken up, and is making demands that go beyond the ability of the political parties to deal with.”


Party promises

The three leaders’ promises raise difficult constitutional questions, explains Dr Andrew Blick, lecturer in politics and contemporary history at King’s College London. “The three parties vowed that the Scottish parliament would become permanent,” he says, “but what a sovereign UK parliament can do, it can undo.” To deliver on their vow, the parties will have to create a written constitution that the Commons can’t easily amend, somehow limit the powers of the Commons, or find another solution.

Reaching agreement on the way forward will be made more difficult by the three parties’ differing interests: if Scots become angry at a lack of progress, it will be Labour and the Lib Dems whose seats are at risk at next year’s election. “The SNP would have an easy line about electing their MPs to Westminster and holding the balance of power in a hung parliament,” says Paun. “Labour have an interest in making sure Scotland gets what it wants, and the Conservatives may be happy to put pressure on Labour.”

“There are anomalies, but they don’t justify ripping our Parliament apart”
Akash Paun, IfG

The prime minister has meanwhile instructed leader of the Commons William Hague to chair a committee that will draw up plans to restrict votes on English matters to English MPs, and examine ways in which power from Whitehall can be decentralised to English regions. And he’s linked these reforms to progress on ‘Devo Max’ for Scotland: “The proposal that English reform should go hand in hand with greater Scottish devolution is a political necessity,” explains former cabinet secretary Lord Butler. “It’s to respond to those mainly – but by no means exclusively – Conservative members who felt that further concessions to Scotland needed to be balanced by a restriction of Scottish members’ influence over English issues.”

Barring non-England MPs from voting on England-only matters could leave a Labour government without a majority on these votes, and Ed Miliband has already said he won’t sign up to that plan. Instead, he favours a constitutional convention to address both the West Lothian question and English decentralisation.


Solving the problem

One solution to West Lothian was put forward by the 2013 McKay Commission, which recommended that all English legislation pass through a grand committee of MPs, with membership proportionate to the strength of the parties in England. Butler was an adviser to Ken Clarke’s Conservative Democracy Task Force, which produced a similar report in 2008: that, Butler recalls, recommended that “Bills affecting England-only should have second and third reading in the Westminster Parliament as a whole, with committee and report stages in an English committee.”
Keating thinks that such a system could be made to work. “A UK government that didn’t have an English majority would have to form a majority [by winning over rebels from other parties], negotiate with the opposition, or bring in the Lib Dems,” he says. “This is normal practice in Europe. It’s something we would just have to get used to. It’s messy, but it’s about political compromises, so it can be done.” The executive element of such a framework, though, could be “tricky”, he suggests: “I assume you wouldn’t have any more Scottish MPs running English departments or being chancellor of the Exchequer.”

Blick is more sceptical, warning that this kind of a solution would create “all kinds of anomalies”. For example, what if the environment secretary – holding an England-only brief – had the support of a majority of English MPs in opposing the building of an English power station championed by the energy secretary, whose remit covers the whole UK? “We would be heading towards a situation where it would be very difficult for a UK government to function,” Blick warns.

What’s more, the McKay proposals don’t fully address West Lothian, as the full Parliament would have the power to override the English vote. “The question is whether the Tories would be satisfied with that, or if they want something harder, such as the need for a dual majority on votes,” says Paun: they might insist that legislation be approved by both English and UK MPs. “The risk of going down this road is that you could end up with a stalemate,” he adds. Paun sees these ideas as “a sledgehammer to crack a nut. There are anomalies [in the existing settlements], but I don’t think they justify ripping our Parliament apart.”

However, Hennessy argues that finessing matters also brings risks. “We are very good at dealing with the constitution in little slices, without looking at other parts,” he says. “We pride ourselves on smart muddling through; we think that’s the genius of our political system. But this is a case where there is a risk of muddling through without the smart bit.”


What tomorrow may hold

Scotland is set for further devolution: the three leaders will have to stick to their promises, or they face meltdown north of the border and will have to concede another referendum – which they might well lose. But the shape of this devolution is not yet clear: the command paper published on 14 October set out the three main parties’ proposals, but brought us no closer to a resolution. “I suspect the changes will be pretty minor and procedural,” says Paun. “The irony is that if the Conservatives are ever in a position to impose English laws for English votes, then by definition – with their majority – they wouldn’t actually need to do so.”

The question would return if Labour ended up relying on Scottish MPs for a Commons majority. But this has rarely been the case in the past – and Paun argues that we should stop worrying about it. “This has never been dealt with properly and it may not need to be,” he says. “If you have a majority in both England and the UK, why would you waste your political capital on it?” Sounds sensible enough – but politics isn’t always sensible, and the PM has party-political reasons for pursuing an English parliament in some form. Sticking to his guns there would not only keep his English MPs sweet, but also weaken Labour in Westminster and, if it slowed down progress on Scottish devolution, potentially cost his opponents seats in Scotland. The big uncertainty over the survival of the UK has been resolved, at least temporarily; but in its wake, we find ourselves facing a host of smaller uncertainties.


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