Devolution: A Decade On - Justice Committee Contents

Memorandum submitted by Lord Tyler CBE DL


  1.  Background

  Nearly two decades of Conservative government saw electors and politicians in Scotland identify a serious consent-deficit between their electoral choices, and the public policy outcomes which were meted out to them. Though the poll tax (or "community charge") was emblematic of this disjuncture, it was by no means the sole genesis of a sense that Scotland was being governed by an English administration, which had no democratic mandate north of the border. Opposition parties were united in their censure of that situation, even if members of those parties were divided as to the most appropriate solution. In 1989, the Scottish Constitutional Convention was founded and though Conservatives and Nationalists declined to participate, the other main parties in Scotland came together with significant community and faith groups to produce, in 1995, a report entitled Scotland's Parliament, Scotland's Right. Its proposals for a Parliament of 129 members, elected under an additional member system, with a power to vary the basic rate of income tax by up to 3p in the pound; and substantial devolution of legislative and executive functions to an Executive formed from it, were made a reality by the Scotland Act 1998. After a very narrowly-won referendum, on a low turnout, Wales gained a lesser degree of devolution, with only secondary legislative powers devolved to a new National Assembly.

  2.  Devolution to Scotland and Wales has, however, resulted in a new anomaly. Every MP in the United Kingdom is able to vote on all legislation at Westminster, even though much of it now affects only England. Great Departments of State—health, education, the Home Office—have Ministers who can, and have, represented Scottish constituencies yet whose ministerial remit largely relates to England.

  3.  Piecemeal changes to the constitutional settlement

  Since the creation of Government Office Regions by the Conservative Government in 1994, the UK has had an element of regional administration—implementation of central government policies by regional offices—but without effective democratic scrutiny or accountability. While Britain's constitution prior to 1997 was certainly defective, it had the advantage—in constitutional, if not in political terms—of being equally unsatisfactory wherever you lived in the United Kingdom. Our centralised state was concentrated in one place, and our unrepresentative electoral system had the capacity to under-represent the political values of any citizen as much as another.

  4. The 1997 devolution settlement in Scotland and Wales gave new life to those countries' politics and (for a time, at least) neutered nationalism in both territories; for the first time in some 300 years, big public policy decisions were taken by politicians—and, crucially, by political institutions—which were not just native but politically representative, since both the National Assembly for Wales and the Scottish Parliament are elected by a system of proportional representation. The logic, however, of these changes, is to give that same life and representative capacity to politics in England; after all, it can scarcely be fair or just to grant it to one part of the United Kingdom but not to another. England is the missing piece in new Labour's devolution arrangements.

  5.  Asymmetrical devolution abroad

  The situation in which England finds itself is not peculiar to the British constitution; indeed Canada, Spain, Finland, and Portugal all have forms of asymmetrical decentralisation, with, for example, remote islands having more autonomy than the mainland regions. This is reflected in the present arrangements at Holyrood and Cardiff, where territories with a distinct political identity, and a quite different political culture (the most obvious feature of which is the existence of four-party systems) have greater powers conferred on them.

  6.  An English Parliament

  The English Democrat Party has advocated the idea that an English Parliament should be set up to counterbalance the Scottish and Welsh devolved institutions. The logic of this position is that there would be separate elections for that Parliament, and that a separate Executive would be formed out of it; Westminster would retain power over foreign policy, defence, social security, economic policy and, crucially, taxation, while a separate assembly and Executive would decide how to spend the money it raised. This would reduce Westminster's role significantly and would divorce the aphorism, Expenditure is policy and policy is expenditure, since significant expenditure would, for all parts of the United Kingdom, be decided outwith the institution with the capacity to fund it. This could certainly cause serious tensions between the two administrations.

  7.  An English Grand Committee

  Sir Malcolm Rifkind MP has proposed that a Grand Committee of English MPs be constituted on the floor of the House of Commons to decide on what he terms "purely English business". Yet this solution appears not to acknowledge that its logical conclusion is identical to that of an English Parliament. A separate Grand Committee, which had no executive arm to implement its legislation, would soon become an impotent talking shop.

  8.  If the parliamentary arithmetic is to be different on different issues, and a majority UK government (whether or not it was composed of a single Party) could well hold only a minority of seats in England, so would be unable to command support for the bulk of its domestic business. The English Grand Committee might repeatedly instruct the Government to take particular policy decisions, which were at odds with the direction in which UK Ministers were heading in that area. Conversely, if the Rifkind plan were to acknowledge the need for a separate executive, it would prove quite unsatisfactory to have it subject to scrutiny by the same legislature as that for the UK Government, since the Speaker would be placed in the unremittingly political and invidious position of determining which business ought to be the responsibility of which Ministers, and which MPs could decide on which issues.

  9.  Financial arrangements

  Both the Rifkind proposal and that of an English Parliament fail to identify how public spending would be managed. Liberal Democrats have long advocated a fundamentally decentralised state, with taxation devolved in commensurate proportion to political power, yet this has never been the basis on which the British devolution arrangements are predicated. Instead, the Barnett formula has persisted as the method by which funds are allocated; the formula allocates public funding per head of population on a proportionate basis (or, more accurately, on a disproportionate basis) according to the public spending settlement for England. If England were—in a body without Scottish and Welsh representation—deciding its own public spending arrangements, these would under present arrangements impact substantially on Scotland and Wales, yielding a further democratic deficit. Moreover, the UK Government would be able substantially to hamper the efforts and scope of any English Executive by reducing the funding available to it.

  10.  A bicameral Parliament

  The Rifkind proposal fails fundamentally to take into account the role of the House of Lords. Would legislative decisions for England be taken by the House of Commons alone, in the English Grand Committee without recourse to the second chamber? Or would England benefit from the checks and balances of a second chamber where Scotland and Wales do not? Would Peers from outside England be able to vote on English legislation? Further, if substantial areas of domestic public policy for England were devolved to a separate English legislature, and the Lords is presently precluded from pronouncing on financial matters, what functions would the UK's second chamber have left? Crucially, the Lords would not be able to take a view on the overall funding settlement, which would otherwise become the key function of the UK Parliament as a whole.

  11. Possible solutions

  Devolution to Scotland and Wales is a permanent—and welcome—feature of our constitutional arrangements, and as such calls to return to a unitary Parliament are misplaced. However, simplistic attempts just to `plug the gap' in which England clearly lies do not constitute an adequate response to the fundamental problem of centralisation in Britain, and particularly in England. As we have identified, "English" solutions to the English Question are fraught with problems and threaten to undermine the UK Parliament and, by extension, the Union. Instead, Ministers should return to the question of devolution within England, radically decentralising power to English regions.

  12. These regions need not necessarily be those agreed as Government Office Regions, and in certain cases we would argue they definitely should not be. The principle of regional devolution is not contingent on the credibility of the present regional boundaries. Nor should the 2004 referendum in the North East region be taken as a signal that real decentralisation is—or was -rejected by the English in principle. There were, of course, manifold weaknesses and flaws in the devolution settlement offered to the North East, chief among which was that the powers offered from Westminster were marginal, while the powers to be arrogated up from County Councils were to be substantial.

  13. Not all regions will want the same powers. This is the case in Spain's autonomous communities, and there is no reason to suggest the same would not apply in Britain. However, we work on the basis that where centralisation is allowed to persist, it should do so by choice, not default. Power over local services; healthcare, education, the police, and so on, should rest with people close to those who use those services and, where practicable, with service users themselves. This can hardly be achieved while key services in Wigan remain accountable only to the Secretary of State in Whitehall. Since the Government has already moved towards the principle of unitary government at local level, these authorities ought properly to be able to take on enhanced responsibilities in their areas, even if more effective regional boundaries take time to agree. If the problem is that Scottish MPs vote on legislation affecting only England, the solution is not to prevent them from voting on it, but to devolve power in those areas of policy away from all MPs to more effective, responsive and accountable government beyond Westminster.

  14. Liberal Democrats argued before the present Scottish and Welsh arrangements came into effect that devolution would strengthen the Union. If the present settlement is straining relations between its constituent parts, it is because the process of devolution has stalled at its first stage. That process must now be driven forward to afford all the citizens of the United Kingdom fair representation and accountable governance.

  15.  To this end, Liberal Democrats are committed to the completion of a comprehensive constitutional settlement, and we recognise that this could only be sustained in the long term if it benefited from popular "ownership". Hence our proposal for a British constitutional convention to look at Britain's constitutional arrangements in the round, and to involve people directly in their development. At least half of the members of the convention should be drawn by lot from the general public, putting our present constitutional processes and difficulties (of which the English Question is a key component) on a real "jury trial". We outlined these proposals in our recent policy paper For the people, by the people, which was endorsed by the party's Autumn Conference in 2007.

February 2008

  Lord Tyler was Chair of the Liberal Democrat Better Governance Working Group, 2006-07, which prepared the recent party policy paper.

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