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."
Update
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,"