Letter to the Prime Minister, 11th September 2008


I know that you are opposed to any special political representation for people in England, and also to any proposals for "english votes for english laws" at Westminster, as a means of dealing with the effects of Scottish devolution and of proposals for further devolution in Scotland.

As regards the latter, I myself have some reservations about Kenneth Clarke's proposals to the Conservative party of which you may be aware, on the grounds of workability. However, although not my preferred solution to the anomalous position of people in England and (to a lesser extent) Wales, my own view is that "english/welsh votes for english/welsh laws" could be made to work if the precedent of the powers of the House of Lords were to be drawn on, namely the power to delay legislation for a session.

I think an arrangement could be devised that if at third reading a particular Bill or part of a Bill were not to receive the approval of the majority of members for the countries to which the laws are to apply, then it could only be passed by enactment of the same Bill or part in the following session. That would allow the government to govern, whilst also respecting the position of those in England or Wales and their representatives.


Letter from the Ministry of Justice, 14th October 2008

"Thank you for your letter of 11 September 2008 to the Prime Minister about devolution policy.  Your letter has been passed to the Consitutional Setlement Division of the Ministry of Justice as the lead department on devolution matters.

Your proposal for a remedy to the West Lothian Question has been noted.  But as indicated by the Prime Minister on 3 July 2008, the Government believes that the proposal for English/Welsh votes for English laws, which purports to address this issue, would divide the United Kingdom fundamentally.  It would create two classes of MPs - those able to vote on only particular matters, and those able to vote on all matters which come before the House.  A fundamental principle of the United Kingdom (UK) Parliament is that all MPs have equal rights.  This means that each MP can vote on any matter brought before them, whether they represent English, Scottish, or any other constituencies.  You may wish to be aware that 85% of the UK population live in England, and are represented by over 85% of UK MPs.  England is therefore far from being a minority in Parliament.

I hope this addresses your concerns.

Yours sincerely,"

Letter to the Ministry of Justice, 20th October 2008

"Thank you for your letter of 14th October

The proposal in my letter of 11th September was not founded on the idea that the population in England and Wales, or members of Parliament representing constituencies in England and Wales, form a minority - as you say, they represent the majority. It was rather based on what I perceive to be needed to safeguard the future of the UK as a political entity in the long term and the principles of democratic representation. As you will have seen from my earlier letter, I do not accept the Prime Minster's argument that all members of Parliament must be able to vote on all matters at all stages of a Bill's progress. That is the laudable and correct outcome where legislative sovereignty is shared in a single Parliament, but by virtue of devolution that is no longer the case.

The point in your letter and my response to it are, so to speak, a matter of constitutional theory, but there is a more practical and worrying side to it. The question of how policy is formed or legislation enacted for England and Wales only on matters devolved in Scotland rarely comes into focus as the UK Parliament is at present constituted, since such focus does not occur unless there is a back-bench revolt. I concur with the idea that, annoying as people in England and Wales may find it, the present constitutional arrangements can withstand the odd "top-up fees in England" event, passed by Scottish members for England, once in a while. However, were a situation to arise where a party (say, the Labour party) has only a small majority in the UK but another party has the majority in England and Wales, and were the UK government regularly and persistently to enact (by means of whipping Scottish members) controversial legislation for England and Wales only on matters devolved in Scotland which is opposed by the majority of members elected for England and Wales, I believe this would be likely to cause the break up of the UK.

Do I deduce from your letter that Ministers consider that were the UK government to act in this way in such circumstances, this would be accepted as reasonable and appropriate by people in England? If so, I think they are almost certainly wrong.

Yours sincerly,"

Letter from the Ministry of Justice, 12th November 2008

"Thank you for your letter of 20 October 2008 in response to my letter of 14 October 2008.  You have commented further on the West Lothian question.

The existing devolution settlement was designed to meet varying needs, so that local decisions could be made to respond to local problems.  This has been the success of devolution, which has resulted in different policy approaches which best meet the needs of England, Scotland, Wales and Northern Ireland.

The Goverment is of the view that even matters which may appear confined to England may have an impact on the United Kingdom as a whole.  For instance, the funding settlement with the nations and regions of the United Kingdom, means that what is decided on public funding in England affects Scotland, Wales and Northern Ireland.  These are national issues for the United Kingdom, not by subsets depending on the location of their constituency.

You ask what would happen if a future government had an overall UK majority, did not have a majority in England, and relied upon Scottish votes to secure its legislative programme.  Since 1945 a government with no English majority has been a rare occurrence.  The 1950 Labour Government had an overall majority of six, but the Conservatives a majority of one in England.  The Governments of February and October 1974 provide the only other instances of a UK Government not having a majority in England, but they barely had a majority in the UK, and in October 1974 no party had overall government majority in England.  Such an occurrence may happen again in the future.  But the principle still remains sound - all MPs have equal voting rights in the House of Commons, and to create differential voting rights dependent upon geographical local of constituencies would be damaging to the Union.

I hope this addresses your concerns.

Yours sincerely,"

Letter to the Ministry of Justice, 18th November 2008

"Thank you for your letter of 12 November.

I should be grateful for a few points of explanation on the matters in your letter. First, I can see how some might want to argue (depending on their viewpoint) that the devolution settlement meets "the needs of ... Scotland, Wales and Northern Ireland", but as it does not extend to England I am not clear how it can be said to "meet the needs of England" as you suggest. My proposal to the Prime Minister offered a suggestion about how it might better do so. Perhaps I am trying to read too much into the comment in your second paragraph about the devolution settlement meeting the needs of England, and it was intended only as a rhetorical flourish or to appear a bit more inclusive -- if so, please just say so rather than spend any more time on it.

Your letter also indicates that one justification for the current devolution arrangements is that some matters decided for England only may affect other parts of the UK, and you give as an example that a decision on a matter affecting only England because it has been devolved elsewhere may affect funding for areas outside England. I imagine you have in mind on this the Barnett formula. This seems an odd example, because it suggests that members for Scottish constituencies may want to decide an issue for England only not on its merits for the people who would be subject to the decision in question, but on the basis that it may indirectly result in too much or too little expenditure in Scotland. If you think members for Scottish constituencies might be tempted to exercise their judgement in this way, from the perspective of good government that seems to me to be a reason for them not to have the final say on the issue, rather than to have it.

As this argument looks like a make-weight, given your responses I suspect I would be correct in thinking that Ministers would not change their minds even if the Barnett formula were to be replaced by a system of assigned revenues with needs based top-up, so removing the automatic funding link to which you refer, which is at least one possible outcome of the Calman Commission and one which from his earlier statements it appears might be favoured by the Prime Minister. However please correct me if I am wrong about Ministers' views were such a funding change to occur which removes the link.

That would then raise the issue of what the other matters are that you think that, when decided for England only because of devolution, may still have a significant effect on other parts of the UK. Presumably on your argument, one other property that these other matters must possess is that when decided for Scotland, Wales or Northern Ireland only they do not have any analogous reverse effect on England, because of course one result of devolution is that people in England do not have a say on decision making in the reverse direction on devolved matters. It would therefore be helpful if you could identify some of these other matters. Please bear in mind also the modest nature of the proposal in my letter to the Prime Minister of 11 September, which would still allow a UK government to drive a policy for England through against the wishes of members for England in the unlikely event of it considering that a serious impact of this kind might arise, albeit with a delay.

I am grateful for your analysis of elections since 1945. I have to say though that the fact that there have been three governments formed following an election since 1945 where the problem to which I referred would have arisen if devolution had then existed does not seem to me to be a particularly "rare occurrence", given the dangers it would pose to the union1. Do you by any chance have the equivalent figures since 1918, which marks the beginnings of modern three party politics in the UK?


Yours sincerely,


1 Can I say in parenthesis that I accept both that the West Lothian question is difficult, and that it does not represent some unique unfairness within the British constitution. Put crudely, although Ministers cannot say so because it is both crude and realistic, current devolution arrangements comprise a redistribution of unfairnesses. Under various Acts of Union, voluntarily assented to in the case of Scotland, there has been a perceived unfairness to the extent that people in England would have been able by their numerical superiority to impose policy on other nations in the UK. The area for that has been diminished by devolution and replaced (where so diminished) by an unfairness under which people in other parts of the UK can in certain circumstances impose policy on people in England, and to a lesser extent Wales, in areas where they are sole arbiters of policy for themselves (whilst leaving the other unfairness remaining for reserved matters). As a supporter of the union the problem as I see it is that this treads on the tail of the tiger, by enabling steam to build up amongst those who really could realistically bring the union to an end, namely those in England; and even if it were not to bring the union to an end, who wants to see those in England and Scotland at each others throats? The proposal in my letter of 11 September was a modest way of addressing this without affecting the ability of Scottish members to participate in proposing, and establishing the text of, legislation affecting England or England and Wales only. (The decision of the Labour opposition to oppose the Abolition of Domestic Rates etc. (Scotland) Act 1987 establishing the poll tax in Scotland on the ground that the UK government had no mandate in Scotland rather than just on policy was completely inconsistent with the views on the uniform competence of MPs which is expressed in your letters, and for those opposing any proposals of the kind I have put forward an act of stupidity because the same charge could be made should a UK government not have a majority in England, as surely it will not at some time in the future.) The scope for problems will increase further should a successful Assembly Act referendum be held under Part 4 of the Government of Wales Act 2006, at which time the government really will have to provide answers. I am not asking you to comment on this, unless you want to, but I should like an answer to the other questions I have set out above."


Letter from the Ministry of Justice, 10th December 2008

"Thank you for your letter of 18 November ... .  You ask how the devolution settlements 'meet the needs of England'.  As you will no doubt be aware, the referendum in 2004 rejected the proposals for a regional assembly in the North East.  There is little appetite for these proposals to be resurrected and the Government does not believe that the creation of an English Parliament or separate English Assembly is either necessary or desirable (or indeed desired).  What the Government has done is devolve some powers to the Mayor of London and the Greater London Assembly, created the positions of Regional Ministers, and through the Governance of Britain agenda has reached agreement with Parliament to the establishment of Regional Select Committees.  The Government believes in the Union, and indeed that we are stronger as a Union than as distinct nation states.

To the extent that devolution strengthens the union, which the Government believes, then it can be argued that although England has limited devolution in and of its own right, the devolution settlements meet the needs of England through securing the political, economic, cultural and social welfare union that we live in.

You ask a number of questions relating to the Barnett formula, and what Ministers view may be if certain hypothetical situations rose.  I am afraid that I am unable to answer those questions for the Minister.  What I can say is that the Barnett formula has provided transparent and stable funding arrangements for the last 30 years for Wales, Scotland and Northern Ireland. The Calman Commission is looking specifically at the financial accountability of the Scottish Parliament, as you note, and may recommend changes.  The Prime Minister has previously accepted that the financial accountability of the Scottish Parliament needs to be considered.  But it is not known what this scrutiny may result in.

The argument that the Barnett consequentials of 'English only' legislation may effect other constituent nations of the United Kingdom and so ought to be voted on by all Members of Paliament is not a make-weight.  Funding is provided by general taxation, drawn from the across the United Kingdom.  It is a matter of both general, and specific importance.  Both in relation to the principles upon which it is spent, and the specific instance or policy which it is being spent to further.  That the expenditure of public money should have effect in one area as a direct consequence of expenditure in another (in this case Scotland and England) is, in a Union Parliament reason enough to enable all Members to vote on that expenditure.  But the core principle at stake is simply that all Members of Parliament are equal on the floor of the House, and have and ought to have equal voting rights.

My colleague previously supplied you with an analysis of the outcome of elections since 1945.  You ask whether a similar analysis exists from 1918.  I am afraid that we do not have such an analysis. ...

I hope this addresses all your concerns.

Yours sincerely,"

Letter to the Ministry of Justice, 13th December 2008

"Thank you for your letter of 10 December.

You refer in your first paragraph to an English parliament, but I was not of course proposing that. I wonder from that and other parts of your letter if it is appreciated that my proposal was only that for a Bill or separate part of a Bill to pass at third reading, it should have, in addition to a majority of all members in the Commons voting, also a majority of those for the area of the UK to which the Bill or part applies. That would still give all members a say at all stages of a Bill's progress. Furthermore, I was proposing that it could be forced through against the wishes of the majority in the following session under a "Parliament Act" type procedure should the government really think that there were to be a case to do so.

On the Barnett formula, I can see that there might be said to be a case, because of what you call Barnett consequentials, for all members to have a say (as indeed under my proposal they would) when supply is voted to departments for England-related functions on the annual estimates, as subsequently authorised by the Appropriation Acts or other consolidated fund Acts authorising payment out of the Consolidated Fund for the departments' heads of service. These will be based on the same series of spending reviews which determines, through applying the Barnett formula to the estimates, the amount of block grant to be paid into the Scottish Consolidated Fund (the two go together), and which indeed also determines expenditure for functions undertaken at regional level in England.

However, it seems to me that that is no argument for members for constituencies outside England to act, against the wishes of the majority of those representing the people to whom a decision applies, on matters of implementation within the amounts so voted by Parliament, any more than it is expected that members of Parliament for English constituencies (or indeed for Scottish constituencies) should decide what the Scottish government must do with its block allocations arising by virtue of those estimates. I also find it extraordinary that Ministers should regard it as acceptable let alone likely in such cases for members outside England to decide England-only implementation matters on such improbable grounds rather than on the merits of the decision in question for those affected by it.

Mr Sampay's letter of 12 November gave the Barnett formula as a "for instance". I asked in my letter of 18 November if I could be told what other cases there are where it is thought that a matter decided for England only may affect its neighbours in the UK and where, when decided for Scotland, Wales or Northern Ireland only because of devolution, it would not have the reverse effect on England. Would I be correct in deducing that no other examples have come to mind?
Even if there were, and even if one were to buy your argument on Barnett consequentials, I reiterate the point that under my proposal all members would have a say at all stages of the Bill. It could not be passed without the approval of the majority of all members in the Commons. Furthermore, my proposal would allow the government to promote the legislation concerned again in the following session against the wishes of the majority representing those to whom the laws are to apply, in a case where it really thought that important.

It was brave of you to mention the Regional Select Committees in your letter in the context of arrangements for devolution. Such Committees were not, according to the government, intended as an answer to the West Lothian question. They were described in the White Paper "Regional Accountability: the Government's response to the Modernisation Committee's third report of session 2007-08" (ostensibly they were a proposal of the Modernisation Committee of the House of Commons in response to the Green Paper "the Governance of Britain"), and indeed by the Leader of the House in the debate on 12 November, primarily as a means of providing Parliamentary scrutiny of the regional development agencies and government offices for the regions. It was on that ground that the government justified insisting that the political balance on Regional Select Committees must represent party balance in the UK as a whole rather than the political make-up of the region in question - to the point that in the south-west region and possibly eastern region (you may know better on that one), the government will have to "bus in" Labour members for constituencies outside the region to maintain its majority in the Committee. Were the Committees to have a policy forming role, I imagine even current Ministers would see the difficulties in having Committees of that kind which do not represent the make-up of the regions for which they have responsibilities.

Lastly, I do not dissent from the views you have expressed about the benefits of the union (so far as we have a difference, it is about how to keep the union going in a way which will maintain the confidence of reasonable people in England), but I was curious to see your reference to a "social welfare union". I thought that much social welfare provision originating in the Attlee years, such as health, child welfare and local social services, had been devolved so that the Scottish Parliament or Northern Ireland Assembly could opt for something different from the rest of the UK. I thought it was only things like unemployment and supplementary benefits which were reserved (or, in the case of Northern Ireland, excepted). Is it proposed to claw some of it back to the UK Parliament?


Yours sincerely,"

Update 2

Letter from the Ministry of Justice, 12th January 2009

Thank you for your letter of 13 December, in response to mine of 10 December.

I can see that you have given a great deal of thought to a potential solution to the West Lothian question.  Your proposal has been noted.  The Government believes that English MPs, comprising as they do 85% of the House of Commons, are able to properly determine the outcome of legislation as it affects England.  I can do no more than reiterate the Government's position on this issue as set out in letters to you from both my colleague Kam Samplay and I.

You mentioned Regional Select Committees, and stated that they were not intended as an answer to the West Lothian Question.  I agree on this point.  They were set up to improve regional accountability in England.  I had included their creation in my previous correspondence to demonstrate the action the Government had taken to improve accountability in England.

Lastly you ask whether the Government intends to take back some powers relating to health, child welfare and local social services.  The Government has no current plans to take back powers relating to health, child welfare and local social services which have been devolved to Wales, Scotland or Northern Ireland, and looks forward to the final report of the Commission on Scottish Devolution late this year.  The Government believes that devolution strengthens the Union and allows greater flexibility in the delivery of local services.


Yours sincerely,"

Letter to the Ministry of Justice, 19th January 2009

"Thank you for your letter of 12 January.

I will not rehash old ground, but the fundamental proposition in your letter, that 85% representation on matters devolved elsewhere is enough, is flawed, and not just when judged by some theory of representational democracy.  It is flawed practically as well as theoretically because of the imbalances of party allegiances in different parts of the United Kingdom.

I find it disappointing that Ministers appear willing and indeed driven to put their own short-term party advantage ahead of the national interest.  I find it disappointing that they would be willing to cause ill-feeling and dissension to arise between people in different parts of the UK, with the long-term effect this would be likely to have on the Union, in the attempt to retain political control in England on devolved matters were a situation to arise where they do not have the majority in England which would entitle them to do so (which is the situation my proposal is intended to address on a practical basis).

It is also foolish because having caused ill-feeling and dissension, in the end the policy would be bound to fail. Ministers have the opportunity to lead on this.  Instead, they will end up led, with an outcome which is likely to be considerably less to their advantage than if they were to have taken the issue seriously, after having also risked damaging the Union.


Yours sincerely,"