Devolution: A Decade On - Justice Committee Contents

Memorandum submitted by Professor James Mitchell


    —  Constitutional policy concerns the "rules of the game" and requires losers' consent if legitimacy is to be maintained.

    —  Devolution has successfully addressed a problem of legitimacy in the UK.

    —  However it has created new anomalies and issues of legitimacy elsewhere.

    —  Any changes should seek to avoid an endless game of constitutional pass the parcel in which resolving one constitutional anomaly creates a new one.

    —  Any response will only succeed if losers' consent is achieved.


  Constitutional policy differs from other public policy in that it deals with the "rules of the game" and cross-party agreement and/or public endorsement is necessary for continued constitutional legitimacy. Public endorsement need not require a referendum but simply acceptance and continued participation. Legitimacy is not just about legality but also justifiability and consent.[42] Indeed, a situation may be legal while lacking legitimacy. Some scholars have referred to the importance of losers' consent[43] when it comes to legitimacy of electoral rules. This applies equally across a range of constitutional affairs. The perception that constitutional rules are biased can lead to a problem of legitimacy.

  It is difficult to identify precisely when consent is withdrawn to such an extent that a crisis of legitimacy occurs but in a liberal democracy it would be expected that some remedial action would be taken before a crisis occurs. A relevant illustration may help. In the 1980s and 1990s, a problem of legitimacy occurred in the government of Scotland and, to a lesser extent, Wales. There was nothing illegal in the actions of previous Conservative Governments in Scotland and Wales but the perception grew that policies were being imposed without necessary consent. There was much talk of a "democratic deficit" when, in fact, what was occurring was a legitimacy deficit. It was this that fuelled demands for changes in the "rules of the game", the constitution of the United Kingdom.

  Losers' consent was withdrawn but, as we might expect in a liberal democracy, this took the form of articulating the case for constitutional change rather than outright opposition or withdrawal from participation in electoral contests. This is not to suggest that a Government lacks legitimacy in places where it does not have a majority only that a problem of legitimacy occurs when growing numbers of people perceive that the rules of the game work against them and believe this to be both unfair and requires remedial action. For the most part, losers' consent is given and indeed taken for granted.


  It would be a gross exaggeration to suggest that devolution was a response to a crisis of legitimacy but it was a response to a growing problem of legitimacy.[44] Indeed, the main success of devolution has been to remove this legitimacy problem from Scottish politics. There remains much debate on Scotland's constitutional status but this debate is conducted without any suggestion, other perhaps on the fringe of politics, that there is something illegitimate about the UK as constituted at present. Talk of democratic deficits, no mandates and popular sovereignty, common across the non-governing parties, has receded compared with the 1980s and 1990s. All the main parties have accepted devolution. In Wales an even more remarkable change has occurred. The slight majority for devolution there has been transformed into considerable support for devolved government.

  However, solving a problem of legitimacy in parts of the United Kingdom has created potential problems elsewhere. Indeed, there is a danger that devolution has simply displaced the problem of legitimacy. Though it has not yet, and perhaps may never, manifest itself, some of the conditions that led to a problem of legitimacy in Wales and especially in Scotland in the 1980s and 1990s might emerge in England. The evidence to date of an emerging problem may be slight at present but that reflect current conditions which compares with the situation that existed in Scotland and Wales when the largest party was in government or the real test will only come when a party other than the largest party in England is elected to government and relies on Scottish and Welsh votes for its programme of government. However, existing quiescence is not the same as full consent or legitimacy.

  It cannot be assumed that such a scenario will lead to a problem of legitimacy. The governing party in such a situation might be expected to operate in a territorially sensitive manner. The view may prevail that this is merely one of many anomalies of the UK's constitution.


  If we accept that devolution has created anomalies in the constitution, the question that then arises is what, if anything, should be done in response. Throughout the long debates on home rule, dating back to Gladstone's attempts to grapple with the issue, there have been five possible responses:

    (i) no Scottish representation in Westminster;

    (ii) providing symmetry through home rule all round/federalism;

    (iii) a reduction in Scottish representation at Westminster;

    (iv) Parliamentary procedures including limiting the issues on which Scottish MPs can vote at Westminster; and

    (v) maintenance of the current levels of Parliamentary representation with no changes in Parliamentary procedures.

  The first could only be justified in the event of Scottish independence. There appears to be little support for the second and unless this involved a symmetrical form of federalism, ie all constituents of the federation had the same powers, then the problem would still exist though become less pronounced. A reduction in the number of Scottish MPs has already been attempted though this was done following the loss of all Conservative MPs in Scotland and Wales and referendum results underpinning support for devolution. This made opposition to the provisions of the devolution legislation difficult at that time. Opposition MPs might feel that they were not properly involved in the process of discussing the consequences of devolution. If consent was given it was limited. "English votes for English laws" (EVEL) has been criticised for the difficulties and anomalies it would create. One difficulty of identifying purely English legislation, especially given the continued existence of the Barnett formula. The Barnett formula would need to be addressed in the event of EVEL to avoid any possibility that budgets of devolved institutions were not determined in large measure by only English votes. The danger that would arise with this response is that it might simply pass on the problem of legitimacy once more. It would also fail to achieve the important condition of gaining losers' consent that we have identified as important in establishing legitimate constitutional rules. It is for this reason that the fifth option retains support.

  However, it might be wise at this stage to focus on how rather than what reforms, if any, should be instituted. The main conclusions are to recognise that the existing arrangements are anomalous and that existing quiescence is not the same as full legitimacy. As happened in Scotland and, to a lesser extent, in Wales, different contexts might create conditions in which the legitimacy of policy-making is called into question. Whether it is better to respond before this occurs or wait to see if it occurs is a matter of judgement. Waiting to see how and whether a backlash occurs means that any response will have to be made in a context less propitious to achieving agreement. However, any effort to address such anomalies should seek to gain losers' consent and avoid simply playing an endless game of constitutional pass the parcel.

February 2008

We further declare and pledge that our actions and deliberations shall be directed to the following ends:

To agree a scheme for an Assembly or Parliament for Scotland;

To mobilise Scottish opinion and ensure the approval of the Scottish people for that scheme; and

To assert the right of the Scottish people to secure implementation of that scheme.

42   David Beetham, The Legitimation of Power, Basingstoke, Palgrave Macmillan, 1991. Back

43   Richard Nadeau and Andre« Blais, "Accepting the Election Outcome: The Effect on Participation on Losers' Consent", British Journal of Political Science, vol 23, 1983, pp 553-63; Anderson et alBack

44   A variety of evidence exists but perhaps the most notable was the "Claim of Right for Scotland" and Scottish Constitutional Convention. The Claim was signed by 58 of Scotland 72 MPs and 59 of Scotland's 65 regional, district and island councils and stated, "We, gathered as the Scottish Constitutional Convention, do hereby acknowledge the sovereign right of the Scottish people to determine the form of Government best suited to their needs, and do hereby declare and pledge that in all our actions and deliberations their interests shall be paramount. Back

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