Memorandum submitted by Professor James
Mitchell
KEY POINTS
— 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.
LEGITIMACY, LOSERS'
CONSENT AND
CONSTITUTIONAL POLICY
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is withdrawn to such an extent that a crisis of legitimacy occurs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Losers' consent was withdrawn but, as we might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.
DEVOLUTION AND
DISPLACED LEGITIMACY
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.
QUIESCENCE, LEGITIMACY
AND THE
FUTURE
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 al. Back
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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