Memorandum submitted by Professor Michael
Keating, Head of Department of Political and Social Science, European
University Institute Florence; Professor of Scottish Politics,
University of Aberdeen
This paper is based on work done between 2000
and 2006 on devolution in the United Kingdom. Fuller details are
given in:
Michael Keating, The Government of Scotland,
Edinburgh University Press, 2005.
Michael Keating (ed.), Scottish Social Democracy
(Presses interuniversitaires européennes, 2007).
Michael Keating, "Policy Divergence and
Convergence in Scotland under Devolution", Regional Studies
Vol. 39.4 (2005), pp 453-463.
Michael Keating, "Higher Education Policy
in Scotland and England after Devolution", Regional and
Federal Studies, 14.4 (2005), pp 423-35.
Michael Keating and Paul Cairney, "A New
Elite? Politicians and Civil Servants in Scotland after Devolution",
Parliamentary Affairs, 59.1 (2006), pp 1-17.
Michael Keating and Linda Stevenson, "Rural
Policy in Scotland after Devolution", Regional Studies,
40.3 (2006), pp 397-408.
Paul Cairney and Michael Keating, "Sewel
Motions in the Scottish Parliament", Scottish Affairs,
47, Spring (2004), pp 115-34.
Michael Keating, "From Functional to Political
Regionalism. England in Comparative Perspective" in Robert
Hazel (ed.), The English Question (Manchester University
Press, 2006).
2. THE ENGLISH
QUESTION
2.1 There are two English questions:
(a) the unbalancing of the constitution given
devolution in the three other parts of the United Kingdom, including
the West Lothian Question. The main problem here is that MPs from
devolved territories can vote on English matters but neither they
nor English MPs can vote on non-English matters. It is even possible
that a government might depend on the votes of non-English MPs
but use this majority to legislate for England;
(b) the internal government of England. This
is a matter of the best design for the supralocal level of government
and administration given the social and economic needs of the
parts of England. Regional government and city-regions have been
proposed to address the lack of government at this level.
These cannot share the same solution. Regional
government in England, as proposed in 2004 and related proposals
since, would not give the parts of England self-government equivalent
to that of Scotland, Wales and Northern Ireland, notably legislative
powers. It would not therefore solve the West Lothian Question.
There is no demand for legislative powers for sub-national territories
in England.
The two questions must therefore be treated
separately. Issue (b) is a matter of administrative and local
government reform. Issue (a) is more properly constitutional.
2.2 The constitution might be rebalanced
by establishing an English Parliament and converting the United
Kingdom into a federation. There is, however, little demand for
an English Parliament and it would leave the UK Parliament with
little to do. Westminster would not even be able to operate as
a normal federal parliament since such parliaments normally share
competences with the constituent units. Already under devolution,
the decision has been taken to give Scotland and Northern Ireland
almost exclusive control of various competences including health,
education and social services. Federalism could thus represent
a re-centralization.
2.3 An alternative is an in-and-out system
whereby Scottish and Northern Ireland MPs (and Welsh MPs where
and when legislative powers are devolved) would not vote on matters
in England which are devolved in their own territories. I do not
find the arguments against this convincing. These are:
(a) that it is impossible to define the territorial
extent of a bill. This is in fact done already.
(b) That bills mix devolved and non-devolved
matters. This is an example of bad practice and makes the statute
book difficult to read. Governments should separate devolved and
UK clauses better.
(c) That votes on English questions matter to
Scotland because English expenditures determine the Barnett allocations
to devolved governments. This objection makes a matter of principle
out of a flawed and much-criticized system of financial allocation,
which does not even have a statutory basis. The UK needs to move
to a better system of territorial financing in any case, which
would remove this objection.
(d) That governments would not have a guaranteed
majority on English matters. This I find the least convincing
argument of all. It suggests that it is right that a party should
govern England even when, as at the last election, it has not
even gained a plurality of the vote there. This is precisely the
sort of anomaly that fuelled support for devolution in Scotland
between 1979 and 1997. It also assumes that it is right for governments
automatically to get their way on legislation. Constitutional
reformers have always found this problematic. With an in-and-out
system, governments would have to find majorities among English
MPs for their English measures. This would force them to broaden
their base, just as parties in the other parts of the UK need
to do under proportional representation.
(e) If the voting system for Westminster
elections is reformed, then governments will need to find broader
bases of support in any case.
3. INTERGOVERNMENTAL
RELATIONS
3.1 It is a commonplace that intergovernmental
relations so far have been rather smooth because the same party
has dominated at both levels. With different parties in power,
it would not be possible to depend on the same informal understandings
and it would be necessary to develop more formal arrangements.
3.2 Some critics have commented that the
UK system is unduly asymmetrical and fragmented. There is a complex
mixture of devolved governments and Whitehall departments, many
of which are de facto English departments. There is thus
a "missing centre".
3.3 Both these points have substance. This
does not, however, imply stronger mechanisms for policy coordination.
Nor does it imply building up the "missing centre" or
imposing limits to divergence. Given the disparity in size, power
and resources between Whitehall and the devolved territories,
any such effort could only mean recentralization and Whitehall
dominance. The "centre" would in fact be formed by English
departments and policy coordination would be on their terms. Devolution
is about allowing policy divergence and a healthy competition
among governments to innovate and respond to challenges. Experience
from other countries shows that coordination mechanisms or framework
laws defining the limits of divergence are used as a mechanism
for re-centralization. Devolved systems of policy making are still
in their infancy and need room to develop freely. Incorporating
them back into UK-wide policy systems would undermine the dynamic
of devolution. Other federal and devolved systems have recently
tended to reform by disentangling responsibilities and encouraging
policy autonomy.
3.4 The need, rather, is for two things.
First is a system to highlight when decisions taken in one jurisdiction
impinge on the responsibilities of another. Examples might be
decisions on tuition fees, or the consequences for attendance
allowances of the decision on free personal care for the elderly
in Scotland. In this case, a forum should exist for resolving
the resulting conflicts. Second is a system for diffusing ideas
about innovation from one territory to another. This does not
need to be constitutionalized and could operate at various levels,
the political, the administrative and the academic.
3.5 Representation of the devolved territories
in the EU is currently at the discretion of the central government.
This is in contrast to arrangements in Germany, Belgium, Austria
and now Spain. It is true that there can only be one representation
of a state in the EU Council of Ministers and that a single line
must be taken. It is not necessary that the representative be
the central government. More formal arrangements should be made
for representing the devolved territories in EU negotiations.
There should be guaranteed membership of the UK delegation when
devolved matters are being discussed, and corresponding membership
in working parties and preparatory meetings. It is likely that
consensus can be reached on most issues. If there is a fundamental
disagreement, then the UK government line might have to prevail
but the devolved territories would be publicly to signal their
dissent. This would provide political incentives for all sides
to seek agreement.
4. SECRETARIES
OF STATE
FOR SCOTLAND,
WALES AND
NORTHERN IRELAND
There is no need to retain the territorial secretaries
of state. They could be replaced by one minister responsible for
overall relations with devolved territories.
5. DEVOLUTION
AND THE
COURTS
The courts have not been used to resolve devolution
disputes. Some regard this as healthy and a sign that the devolution
settlement is working. It might be argued, on the contrary, that
the failure to use the courts has prevented the development of
a body of devolution case law. This means that, in the case of
serious conflict, the courts would have to invent very quickly.
Sewel (legislative consent) motions have been used too often in
order to circumvent questions of unclear competence, rather than
demarcating the boundaries of devolved and reserved competences
more clearly. This, rather than any centralizing effects, is my
main criticism of the legislative consent mechanism.
6. OTHER ISSUES
6.1 The most serious outstanding issue concerns
fiscal powers for the devolved bodies. In no other system that
I know of is such a high degree of freedom on how money is spent
combined with such an absence of power over how it is raised.
The lack of responsibility for raising money is a debilitating
influence on policy debate within Scotland and Wales and is responsible
for much of the perception that Westminster remains the most important
influence even over devolved matters. Politics is stuck in a pre-devolution
mode of lobbying rather than of creative policy-making. Policy-makers
have less incentive to focus on economic growth and reduction
in welfare dependency when they do not gain the fiscal benefit
from it. Within the devolved governments, there has not developed
an adequate system of resource planning and budgeting since the
main task has been to distribute funds that have, since 1999,
been flowing rather generously. Some of the main decisions to
be taken by governments is the balance between taxation and spending;
or between taxation and charging. As the debates on free personal
care and tuition fees have shown, the devolved governments have
very limited scope for altering these balances. As transfers from
Westminster become more constrained, this difficulty will only
increase, inhibiting diversity in models of service provision.
6.2 Some parties, notably Labour, and many
academics, have insisted that there is no viable alternative to
the present system because any form of devolved taxation would
be unworkable or would cause economic distortions. This ignores
the example of all other federal and devolved systems in the world.
Devolving taxes is feasible; what is lacking is the political
will.
6.3 It is likely at some point that the
Treasury and English MPs will declare themselves unwilling to
take the pain of raising money while the devolved administrations
get the credit for spending it. There is now a trend across Europe
and North America to devolve fiscal powers to the regions, states
and provinces. This has promoted policy innovation and competition.
6.4 Fiscal devolution should be accompanied
by a system of fiscal equalization. It is an illusion to pretend
that such a system can be purely technical, since definitions
of need and resources involve value judgements. This means that
fiscal equalization is difficult, not that it is impossible. Adjustments
would have to made incrementally rather than in big steps from
one year to the next. Yet the Barnett formula already provides
for incremental adjustment. An equalization formula could similarly
be brought in and adjusted over time.
20 April 2007
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