Chapter 6: Other recent proposals
239.In the preceding chapters, we have addressed key questions relating to the Union and devolution and set out measures that should serve to stabilise the situation without removing the flexibility that is a core feature of the UK’s territorial constitution. This chapter addresses wider proposals put to us that seek to stabilise the Union.
A new Charter or Act of Union
240.We heard from representatives of two projects that have proposed similar but distinct proposals for a new statute setting out elements of the UK’s territorial constitution and aiming to bring greater stability to the Union.316 The Bingham Centre for the Rule of Law has proposed a ‘Charter of the Union’ that is intended to underlie the current devolution Acts, giving context for interpretation of that legislation and a framework for any further changes. At our request, the Bingham Centre produced a draft Charter which is included in this report as Annex B.
241.Meanwhile, the Constitution Reform Group, established under the chairmanship of the Marquess of Salisbury to consider many of the matters that his inquiry set out to examine, has proposed a new Act of Union. This would set out the function and powers of the centre (i.e. the UK Parliament and Government) and set out a process by which the devolved nations could apply for further powers to be devolved.
A Charter of the Union
242.In their May 2015 report, A Constitutional Crossroads, the Bingham Centre for the Rule of Law advocated a written constitution for the UK in the long term. As an interim measure, they proposed a Charter of the Union “setting down the powers and underlying principles governing the relationship between the four nations of the Union. The Charter would codify shared commitments to democracy, the rule of law and personal liberty alongside the rights of each nation to a government best suited to its needs.”317 One of the team involved in the report described it as “retrofitting a UK-wide constitution” on to the varied devolution settlements already in place.318
243.The Centre’s report set out a series of principles of ‘union constitutionalism’ that should be embedded in statute: consent; respect for democracy; respect for the rule of law; shared commitment to personal liberty and human rights; social solidarity; common security and defence; common economic framework; autonomy; subsidiarity; accountability; and comity, trust and fair dealing.319 In their draft Charter, these are articulated as “fundamental principles” upon which the Union of the UK is based. The Bingham Centre explained that these principles would “guide the allocation of powers within the UK and the constitutional relationships within and between the centre and the constituent nations and parts.”320
244.Professor Adam Tomkins, John Millar Professor of Public Law, University of Glasgow, and rapporteur of the Bingham Centre’s project, described the purpose of the Charter as follows:
“[a Charter] could usefully identify and articulate the constitutional principles upon which the UK’s territorial constitution is based; it could strengthen the Union by making new legal provision about solidarity, loyalty and comity; it could place currently non-legislative matters on a statutory footing (such as inter-governmental machinery); and it could bring clarity to what are currently rather opaque matters (such as the frequency with which secession referendums may lawfully be held in the UK).”321
Safeguarding core values
245.The Bingham Centre proposed that, through their Charter, certain core values should be embedded in the territorial constitution. The Centre’s Director, Professor Sir Jeffrey Jowell, argued that the Charter “should set out core shared values such as democracy, the rule of law, personal liberty and rights. It is surely unacceptable that fundamental rights can be treated differently in different parts of the United Kingdom–as is possible now.”322 In Chapter 2, we expressed our support for the principle that there are core, common values in the UK, similar to those set out by Sir Jeffrey. The Bingham Centre’s report states that human rights law should be uniform across the UK.323 Their draft Charter stresses “a commitment to democracy, the rule of law, equality and the protection of human rights and freedoms” across the territorial constitution.324
246.At present, Convention rights—as well as being given effect in UK law by the Human Rights Act 1998, which requires British Courts to “take into account” the European Court’s jurisprudence when considering cases relating to convention rights325—are embedded in the three core devolution Acts. The legislative competence of the devolved legislatures is therefore restricted by reference to Convention rights, preventing them from making laws that are incompatible with the Convention.326
247.Beyond this restriction, there is the capacity for variation in what may be considered fundamental rights. For example, the Northern Ireland Executive did not bring forward a motion extending the Defamation Act 2013 to Northern Ireland when it came into force in Great Britain. The old libel laws remain in place in Northern Ireland and consequently there are two parallel sets of libel law in the UK.327 Meanwhile, the requirement for cross-community support in the Northern Ireland Assembly means that same-sex marriage did not enter into law there although a majority of MLAs voted in favour of the change.328
248.We recognise that variations in the law across the UK can cause difficulties. We are unconvinced, however, that a statutory statement of common values will provide sufficient certainty to ensure that issues involving fundamental rights such as freedom of speech or marriage will be protected in the same way across the UK.
249.We have not considered in any detail the case for harmonising law across the UK where it affects fundamental rights. We note, however, that any attempts to tackle this issue would require primary legislation in the UK Parliament.
A new Act of Union
250.The Constitution Reform Group propose that instead of devolution within the UK developing through bilateral agreements negotiated with each nation in turn, “the four nations should agree between them what the centre should do. … This, in our view, would make us all think about what we could all do better together” and also in which areas “we would be weaker apart”.329 It would be a “bottom-up process” in which the four nations in the Union would decide what power is held at the centre.330 This discussion about the role of the centre would produce a new Act of Union which would require the support of all the legislatures of the UK and the people in each nation (voting in a post-legislative referendum).331 Core functions would be set out in the Act, and there would be a mechanism for an application from each nation to choose whether any other function is dealt with by them or at the UK-level; that choice would then be for Westminster to approve.332 The Group’s description of it was broadly akin to the ‘draw down’ model described in chapter 5 (see paragraphs 220-223).
251.Many of the features proposed by the Constitution Reform Group accord with our recommendations in this report; in particular the Group’s focus on determining which powers should be reserved to the centre, and their intention to specify an appropriate process that would determine whether any further powers should be devolved. We are concerned, however, about the Group’s decision to approach this issue from the perspective of the devolved nations, rather than from the centre. Lord Hain, a member of the Group’s Steering Committee, described the Group’s approach:
“Devolution up until now has been a top-down process: the centre deciding to devolve powers to Scotland, Wales and Northern Ireland and more recently in parts of England. The model we are proposing is a bottom-up process. It is turning it on its head. That is to say that the nations, and I hope also in England’s case the regions and maybe city regions, will then federate upwards to the UK and decide what is done at the centre and what is done at a national level, for the purpose of the nations.”333
252.Rather than being the result of a top-down process, the devolution settlements have, to date, been driven by the demands of the devolved nations without any proper consideration of the overall needs of the Union and its constituent nations. While we understand the intention behind the Constitution Reform Group’s proposal for a new Act of Union, we are concerned that taking the wishes of the devolved nations as a starting point, rather than the needs of the Union, risks perpetuating the existing approach of focusing on diversity at the expense of UK-wide solidarity.
Common features and difficulties
253.In addition to the points made above, we have one further concern that applies to both proposals. This relates to the practical difficulties that are likely to ensue when agreement to any Charter or Act of Union is sought from the legislatures or governments of all parts of the UK.
254.Several witnesses told us that a new statute of the Union was unlikely to be passed by the Scottish Parliament with a secessionist government in power,334 although Professor Jim Gallagher of Nuffield College, Oxford, noted that the Scottish Government had an obligation to reflect the views of the entire Scottish population and that it was time for it to “represent everyone and try to unite the Scottish nation”.335
255.Scottish Government Minister Fiona Hyslop MSP did not give us cause to believe that the Scottish Government would look kindly on an attempt to find common ground to strengthen the Union. She was opposed to any “centrally-imposed” statute that “may itself cause more dissonance than is needed”.336 Other witnesses questioned whether there was sufficient basis of agreement on what would be codified in a charter or Act.337 Professor Colin Harvey, Professor of Human Rights Law, Queen’s University Belfast, feared that it could appear to be an attempt to revive a unitary model of UK governance, at a time “when real opportunities are emerging for a more pluralistic and different type of constitutional conversation in the UK”.338 Sir John Elvidge, former Permanent Secretary to the Scottish Government, felt that something might be usefully done at some point, but that it was too early in the history of devolution to attempt to codify it now.339
256.Both schemes run the risk of being perceived as an attempt to bind nations into the Union, which could undermine efforts to promote its benefits. This is particularly the case in the context of Northern Ireland, whose constitutional and political arrangements are more complex than those in Scotland and Wales.340 Northern Ireland’s constitutional settlement includes formal relationships between east and west (with Great Britain), north and south (with the Republic of Ireland) and pan-British-Isles elements, reflecting the 1998 Good Friday Agreement. Former Deputy First Minister of Northern Ireland Mark Durkan MP told us that that agreement had allowed people to engage without being “any less unionist [or]… any less nationalist, no matter what position they held”.341 Mr Durkan was concerned that a new statute would be divisive: “As someone who is not a fan of the original Act of Union, as an Irish nationalist, I am not sure that what I want is a new Act of Union”.342 Professor Derek Birrell of the University of Ulster noted that “The danger is that it would be seen as strengthening the Union and weakening the Irish dimension”.343 He and other witnesses stressed the importance of ensuring that it did not appear to be calling for people to affirm or prioritise their British identity at the expense of other identities—the polarisation of identity in Northern Ireland makes this a particular concern there, but similar concerns arise with respect to Scotland.344
257.We acknowledge and are grateful for the work done by the Bingham Centre for the Rule of Law on their proposed Charter of the Union and by the Constitution Reform Group on their new Act of Union. Their work in establishing the principles and common values underlying the Union and devolution will prove valuable for future discussions on these issues.
Full fiscal autonomy
258.In Chapter 3 we discussed the potential impact on the Union of increased fiscal devolution. One extreme model of fiscal devolution is full fiscal autonomy (also known as ‘devo max’) whereby the devolved nation takes on powers and responsibility over almost all domestic policy. This is the preferred option of the Scottish Government,345 which submitted a paper to the Smith Commission advocating the devolution of all tax revenue and control of all taxes that it is possible to devolve, all domestic expenditure including welfare and employment, equal opportunities and human rights, and other economic levers “including competition, energy and broadcasting policy, responsibility for the Crown Estate, transport policy not currently the responsibility of the Scottish Parliament (including rail) and aspects of immigration policy”. The UK would retain responsibility only for “aspects of the constitution of the United Kingdom as a whole, monetary policy, aspects of citizenship, defence, intelligence and security including borders, [and] many aspects of foreign affairs”.346
259.Ms Hyslop argued for the policy of full fiscal autonomy on the basis that Scotland was capable of funding its domestic policies and administering welfare in a manner that was more sympathetic to the needs of Scotland. She contrasted it with a symmetrical or “one-size-fits-all form of either devolution or, indeed, tax system”.347
260.A number of observers have supported some form of full fiscal autonomy. Alun Evans, former Director of the Scotland Office, advocated something similar in his inaugural lecture as Chief Executive of the British Academy, referring to it as ‘Home Rule’. He argued that full fiscal autonomy was popular and followed the logic of devolution over the long term:
“does it end up with a more fragmented welfare system? Yes, it does, but that is the nature of devolution. It has been the nature of devolution since 1997; arguably it has been the nature of the relationship between Scotland and the Union from much further back. They have always had separate legal and education systems. It seems to me that one is just recognising the direction of history and the need for greater asymmetry by continuing devolution into other areas.”348
261.Martin Sime, Chief Executive, Scottish Council for Voluntary Organisations, argued that “the interface between health and welfare is absolutely critical for the health of public finances and the delivery of public services”,349 and that therefore all welfare powers should be devolved, along with the tax-raising powers to cover those responsibilities.
262.Professor Philip Booth, in a report for the Institute for Economic Affairs, advocated a variation on full fiscal autonomy within a federal structure, with substantial decentralisation to local government. The assumption would be for local control, with local areas able to join together to deliver some services where that was more appropriate. Pension policy, and the financing of health, education and working-age welfare, would be governed at the UK level, with local authorities responsible for all other policy and finance.350
263.Many of our other witnesses were opposed to full fiscal autonomy, telling us that it was unrealistic and internationally unprecedented for such a broad range of powers to be devolved.351 Earlier in this report (paragraph 108), we noted some of the risks to economic union that arise from the increasing fiscal and borrowing powers of the devolved nations. These risks would be far greater in the context of full fiscal autonomy.
264.Professor Richard Rawlings, Professor of Public Law at University College London, told us full fiscal autonomy was “a poison pill for the Union”.352 In particular it would undermine the social union by removing the common pool of resources to protect against asymmetrical shocks or to distribute resources to areas in need.353 The Welsh Government told us that they did not support full fiscal autonomy for the same reason:
“Each part of the UK should be able to make its own choices at the margin about tax rates and so determine the total of resources available for public services in its territory; but there should be a common core UK standard, with resources being redistributed from areas with a stronger tax base to those with a weaker tax base to ensure this. We would strongly oppose any suggestion that each part of the UK should retain the product of its tax base and only pool resources for common services.”354
265.Professor Tomkins argued that a move to full fiscal autonomy went against the will of the Scottish people as expressed in the 2014 referendum:
“Full fiscal autonomy … is simply not compatible with a Union that pools and shares risks and resources. Those who advocate it, it seems to me, fail to honour the result of the 2014 referendum, in which two million Scots voted to maintain a Union that pools and shares risks and resources.”355
266.Professor John Curtice, Professor of Politics, University of Strathclyde, told us that “virtually all of the survey evidence shows that, if you ask about a domestic affair, people think that Holyrood should decide, and if you ask about defence and foreign affairs … it is that Westminster should decide.” Yet people in Scotland were also keen, he told us, on the pooling and sharing of resources: “there is no doubt that people in Scotland want the best of both worlds. They want to make the decisions about welfare, but they are still quite keen on the UK-wide taxpayer having some responsibility for funding that. Human nature is thus.”356
267.We are strongly opposed to the concept of full fiscal autonomy for any nation or region of the United Kingdom. It would end the pooling and sharing of risks and resources that is key to the social union and that brings security to all parts of the Union. Full fiscal autonomy would, in our view, break the Union apart.
Federalism
268.The term ‘federalism’ can be used to refer to two different concepts. The first is a set of institutional arrangements which feature a division of sovereignty between different levels of government. Second, it is used to refer to a type of decentralised government which might have one of a range of institutional structures, but that balances shared-rule and self-rule. Most of our witnesses used the term to refer to the former meaning.
269.Some of our witnesses told us that a federal structure was a sensible longer-term option for the UK.357 Liberal Democrat Councillor Robert Brown told us that it was the only alternative to independence for Scotland.358 The Federal Trust for Education and Research told us that further devolution and decentralisation may require “a federal structure to provide coherence to the overall system, and establish more clearly both the authorities it is appropriate to devolve, and the competencies that need to remain at the centre in the interests of constitutional and political cohesion.” They told us that the “most satisfactory way of managing asymmetry … would be a fully federal constitution for the UK. It could ensure that every part of the UK possessed the same rights of national, regional and local autonomy, and was at the same time incorporated into the whole with the same status as its counterparts, perhaps via a federal upper chamber in the UK Parliament.”359
270.A federal system would not inherently mean equal powers for each nation or region. Asymmetrical systems exist in other countries, such as Spain—and notably Canada, where Quebec has significantly greater powers than other provinces.360 A federal structure could, we were told, accommodate shared national and British identities and “avoid the perception of a competition between the UK centre on the one hand and sub-UK autonomy on the other hand.”361
271.The Acts of Parliament that govern devolution to Wales, Northern Ireland and Scotland have some of the characteristics of federalism,362 with the powers of their legislatures and executives set out in those statutes, limited by human rights compatibility and subject to adjudication in the courts (or by reference directly to the Supreme Court) where the boundaries of those powers are contested. Yet a fully federal structure for the UK would require a legal division of sovereignty between layers of government, including formal limits on power at the UK level, and a codified written constitution.363 While these features may be welcomed by some,364 they would require a significant shift in the UK’s constitution including a written constitution and the ending of the concept of parliamentary sovereignty.
272.Nonetheless, Professor Tomkins told us that “There is a lot in federalism that the United Kingdom can borrow from and learn from … in terms of improving the governance arrangements of the United Kingdom, particularly when it comes to things like intergovernmental relations and fiscal federalism or the fiscal framework.”365 Witnesses stressed that devolution requires shared rule as well as self-rule, a key part of federal systems.366 Professor Nicola McEwen, Professor of Territorial Politics, University of Edinburgh, told us that federal or multi-level governance systems all have a balance of the two, but that “In the UK, at least with respect to Scotland, Wales and Northern Ireland, we have tended to focus rather more on the self-government aspects and have really neglected the shared rule dimension.”367
273.In our report on the draft clauses that became the Scotland Act 2016, and again in our report on inter-governmental relations in the UK, we noted the increase in shared competencies between the UK and Scottish Governments and the additional interaction required between the two administrations.368 Professor Tomkins highlighted the difficulties faced in adapting to this new situation: “Where there is shared power there needs to be provision for shared decision-making as well as for shared accountability. At the moment we have the architecture for neither of these.”369 We revisit some of the issues around inter-governmental co-operation in Chapter 7.
274.We were reminded that in 1973, the Royal Commission on the Constitution (the Kilbrandon Commission) concluded that: “As far as we are aware no advocate of federalism in the United Kingdom has succeeded in producing a federal scheme satisfactorily tailored to fit the circumstances of England”. Federalism would require either a dominant English Parliament or English regional assemblies, which raise their own questions of powers and imbalance.370 This is the fundamental problem with creating a federal system in the UK: it must include England and it is not clear how a federal structure could handle England as a discrete entity given its disproportionate size compared to the other nations in the Union.371 For a federal structure, the overwhelming size of England is a major obstacle and likely source of instability; we heard that there is nothing comparable to this situation in existing federal systems worldwide.372 The Federal Trust acknowledged that the size of England a significant problem. They felt that treating England as a single unit was likely to be unacceptable, concluding a federal model made up “English regions, none of which was large enough to predominate, would seem to be more likely to succeed.”373 We address the problems of both the single-unit and regional solutions to the governance of England in Chapter 8.
275.Some believe that federal constitutions provide useful lessons regarding the effective management of shared competencies which may prove of use as these become more common with the implementation of the Scotland Act 2016. We concur with the conclusion of the Kilbrandon Commission in 1973 that there is no federal structure currently proposed that could accommodate England as a discrete entity. Nor is there public or political support at present for the creation of regional assemblies within England which might otherwise provide a viable basis for a federal system. Federalism does not, therefore, provide a solution to the tensions in the UK’s territorial constitution.
316 Other witnesses also suggested a single statute of the Union or devolution, for example see written evidence from the Society of Conservative Lawyers (UDE0028) and Mr Ruairi Hipkin (UDE0002)
317 Bingham Centre, A Constitutional Crossroads, p xiii
319 Bingham Centre, A Constitutional Crossroads, pp 20-21
320 Bingham Centre, Draft Charter of the Union, para 3 (see Annex B)
322 Written evidence from Professor Sir Jeffrey Jowell (UDE0053). We also heard that the charter could build on the language of openness and mutual respect found in the Good Friday Agreement and the 2012 Edinburgh Agreement; Q 300 (Professor Arthur Aughey)
323 Bingham Centre, A Constitutional Crossroads, pp 8 and 24
324 Bingham Centre, Draft Charter of the Union, Article 5 (see Annex B)
326 Scotland Act 1998, section 29(2)(d); Northern Ireland Act 1998, section 6(2)(c); Government of Wales Act 2006, section 81
327 See ‘Wilson halted libel bill debate’, Belfast Telegraph (4 May 2015): http://www.belfasttelegraph.co.uk/news/northern-ireland/wilson-halted-libel-bill-debate-29239535.html [accessed 4 April 2016]
328 A ‘petition of concern’ was tabled in relation to the legislation, meaning that it required the support of a majority of both unionist and nationalist MLAs, which it did not have. See ‘Northern Ireland MLAs vote ‘yes’ for gay marriage - but motion is torpedoed by DUP veto’, Belfast Telegraph (22 November 2011): http://www.belfasttelegraph.co.uk/news/northern-ireland/northern-ireland-mlas-vote-yes-for-gay-marriage-but-motion-is-torpedoed-by-dup-veto-34160017.html [accessed 4 April 2016]
331 QQ 202-204 (Lord Salisbury and Daniel Greenberg); see also a similar proposal in written evidence from Bill Noakes and Rolf Smith (UDE0026)
344 Q 300 (Professor Arthur Aughey and Professor Derek Birrell) and Q 158 (Professor Michael Keating)
346 Scottish Government, More Powers for the Scottish Parliament: Scottish Government Proposals (October 2014) pp 2-3: http://www.gov.scot/Publications/2014/10/2806/0 [accessed 9 May 2016]
350 Philip Booth, ‘Federal Britain: The Case for Decentralisation’, Institute of Economic Affairs (4 November 2015): http://www.iea.org.uk/publications/research/federal-britain-the-case-for-decentralisation [accessed 9 May 2016]; Q 104
357 Written evidence from the Federal Trust for Education and Research (UDE0018), the Campaign for an English Parliament (UDE0012), Mr Christopher Luke (UDE0011), Ms Adrianne Elson (UDE0014), Mr David B Taylor (UDE0050); Q 158 (Professor Michael Keating), Q 167 (Willie Sullivan). See also evidence from Professor Philip Booth (Q 100), who advocates a federal system with a significant degree of powers devolved to local levels, and Plaid Cymru leader Leanne Wood AM (Q 263), who advocates a confederal model.
361 Written evidence from the Federal Trust for Education and Research (UDE0018); see also Q 112 (Ed Cox)
363 Written evidence from the Federal Trust for Education and Research (UDE0018), Professor Sir Jeffrey Jowell (UDE0053), Mr Colin Murray (UDE0051) and Dr Andrew Blick (UDE0029)
366 Q 1 (Professor Sir Jeffery Jowell) and written evidence from Professor Richard Rawlings (UDE0009), Dr Paolo Dardanelli (UDE0035) and Dr Bettina Petersohn (UDE0043)
368 Constitution Committee, Proposals for the further devolution of powers to Scotland, paras 10 and 20, and Inter-governmental relations, p 5 and Box 2
371 Q 127 (Fiona Hyslop MSP), Q 317 (Oliver Letwin MP), written evidence from Dr Andrew Blick (UDE0029)