Deliver us from EVEL, and Full Fiscal Independence
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A version of the following (without footnotes) was submitted by Alistair McConnachie to the House of Commons Political and Constitutional Reform Committee's Inquiry on "The Future of Devolution after the Referendum" for its closing date of 23 October 2014.
It was published on this site on 24 October 2014.
You can click on any of the topic headings below to jump to the appropriate part of the text.
EXECUTIVE SUMMARY
This Submission examines 3 Matters. Matters 1 and 2 are related.
1. MPs from England cannot vote on devolved matters in Scotland which affect their constituents.
2. In consequence, voters in England should not pay for devolved matters in Scotland over which they have no democratic say.
3. A number of MPs from Scotland, or Northern Ireland or Wales, could prove decisive in voting for or against a matter which applied only to England.
We explain how the "West Lothian" question has often been misrepresented, or not properly grasped – and by doing so we get to the nub of the real matter.
We examine the two-fold response of the Conservative Party to these Matters: To promote "English votes for English laws" and to promote Full Fiscal Independence for Scotland and we find that both these options would encourage separatism.
We conclude that these 3 Matters are constitutional anomalies – rather than full-scale problems – caused by asymmetrical devolution. Any attempt to remedy them by English Votes for English Laws (EVEL) or Full Fiscal Independence for Scotland, will threaten the integrity of the Union.
Further devolution is opposed on principle, and 11 policy "patches" are suggested to try to mend the frayed constitutional tapestry.
MATTER 1
MPs from England cannot vote on devolved matters in Scotland which affect their constituents. In consequence, MATTER 2, voters in England should not pay for policies in Scotland over which they have no democratic say
This is more commonly known as the "West Lothian" matter and is usually phrased as a question, or in a variety of ways which do not help to explain anything.
The first requirement to solve a problem is to articulate it correctly.
Here are two commonly-heard, but badly phrased versions of the "West Lothian" matter, neither of which reveals a problem.
Badly Phrased Objection No 1:
"Why should MPs from Scotland vote on matters in England when MPs in England cannot vote on devolved matters in Scotland?"
This is badly phrased because MPs from Scotland cannot vote on devolved matters in Scotland either.
MPs from England and Scotland are equal in that regard, as are Northern Irish and Welsh MPs. All MPs in the House of Commons cannot vote on matters which are devolved to Scotland, Northern Ireland or Wales.
Often, this distinction is not properly grasped.
For example, if I elect an MP in Glasgow, then he or she will have a say over all UK-wide and all English matters, and all non-devolved Northern Irish and Welsh matters.
If someone elects an MP in Glastonbury, then that MP will have a say over all UK-wide and all English matters, and all non-devolved Northern Irish and Welsh matters, just like my MP.
In practice this means I have a degree of leverage – (meaning, ability to make things happen politically through my elected representatives) – through my Glasgow MP, over all matters related to England, including how my tax money is spent. However, I have no say over how my money is spent on devolved matters in Northern Ireland or Wales, or any say over what happens regarding such matters.
Similarly, the constituent in Glastonbury has leverage through her MP over all matters related to England including how her tax money is spent. Like me she has no say over how her money is spent on devolved matters in Northern Ireland or Wales, or any say over what happens regarding them either.
The only difference is that I have a say over what is happening in England and how my tax money is spent, while she has no say over what is happening in Scotland or how her tax money is spent in Scotland, on those matters which are devolved.
Badly Phrased Objection No 2:
"Why should MPs from Scotland vote on matters in England which do not affect their constituents in Scotland?"
The answer is because these matters do affect their constituents in Scotland; in two ways.
Firstly, we share a common Treasury. Everything that happens in England costs everyone money. Taxpayers in Scotland are helping to pay for that particular matter in England. Therefore, our MPs from Scotland should have a say.
Secondly, Scotland is not hermetically sealed. Roads, rail networks, health services, police, airports, energy, and hundreds of other activities in England have direct and indirect consequences for Scotland. Everything which happens in England is going to affect Scotland, and vice versa.
This is especially so given the population of England (53.5m) compared to all of the UK (almost 64m). 1
We understood that clearly when we had one Parliament, but devolution has obscured this obvious fact.
It is a principle of Union that there is no such thing as a law which "affects only England" or Northern Ireland or Wales.
We get closer to the real objection when we ask the following.
Correctly Phrased Objection:
Why can't MPs from England vote on devolved matters in Scotland which affect their constituents?
For 292 years, prior to devolution, MPs from England were able to vote on all matters in Scotland, which, while arguably not directly related to their constituents in England, nevertheless did affect their constituents in the two ways we have explained above.
Most of us (except the nationalists) understood that was perfectly acceptable.
We understood that the MP from England, who was voting on a matter in Scotland, was exercising a degree of financial responsibility over that matter, on behalf of his constituents in England – since they were helping to pay for it. And we understood he was doing so as a British MP for the best interests of Britain at large.
Vice versa, we understood that the MP from Scotland, who was voting on a matter in England, was doing so on behalf of his constituents in Scotland who were helping to pay for it, and he was doing so as a British MP for the best interests of Britain at large.
Today, after devolution, an MP in England no longer has a say over a range of devolved policies in Scotland for which his constituents are paying. Nor does he or she have a say over devolved policies in Scotland which may directly or indirectly affect England.
That is unfair to the voter in England and it is contrary to the principles of the Union that:
a) All British citizens should have democratic leverage over how their tax money is spent anywhere in the UK.
b) There is no such thing as a law which affects only one part of the UK.
EXAMINING the RESPONSE of the CONSERVATIVE PARTY to this CIRCUMSTANCE
Its approach is two-fold: To promote "English votes for English laws" and to promote Full Fiscal Independence for Scotland.
Conservative Party Plan No 1: "English votes for English laws"
Such a response seeks to exclude the British MPs from Scotland. Yet these MPs have a crucial role. They represent the financial contribution which their constituents are making to matters in England, and their work acknowledges that we all have a vested interest in what happens in England, as common British citizens. A British MP from Scotland has a crucial British role within Britain.
EVEL, from a unionist perspective, damages the voter in Scotland because:
a) It prevents us, in Scotland, having a say – through our MP – over matters which we are paying for in England; and, if the principle is extended, to non-devolved matters specifically in Northern Ireland or Wales.
b) It prevents us, in Scotland, having a say – through our MP – over matters in England; and, if the principle is extended, to non-devolved matters specifically in Northern Ireland or Wales, which will ultimately affect, directly or indirectly, Scotland.
c) This restricts, and thereby damages, the political expression of our British citizenship.
d) This restricts, and thereby damages, our sense of Britishness.
e) It makes the British MPs from Scotland less relevant in the British Parliament which, very quickly, will only help separatist philosophy and policy.
The fact that the SNP support EVEL should give all unionists pause for thought!
It is still valid to ask, "Why should taxpayers in England pay for devolved matters in Scotland over which they have no democratic say?" However, EVEL does nothing to address this unfairness. It will simply mean that, now, "Taxpayers in Scotland will pay for policies in England over which they have no democratic say!"
As for the voters in England: It doesn't change anything for them at all:
a) Their democratic representation – the people who represent their voice and ideals in Parliament – will remain the same.
b) Their democratic reach – the geographical extent over which they can apply their political point of view – will remain the same.
c) Their democratic leverage – their ability to be make things happen politically, through their elected representatives – will remain the same.
d) The result of any EVEL vote may, or may not, be to the voter's satisfaction, and may or may not be any different regardless of whether the MPs from Scotland and Northern Ireland and Wales had been included.
Voters in England will continue to have no say over what happens regarding devolved matters in Scotland, financially or politically. The central unfairness will remain. For voters in Scotland, our democratic representation, reach and leverage will all have been restricted.
One unfairness to people in England will be joined by a new unfairness towards people in Scotland. Two wrongs don't make a right. Democratically and morally, there is no improvement.
Some say they are only seeking "fairness for England" or "justice for the English" but their solution doesn't change anything for England or the English. It doesn't make anything "fairer" or "better" for the voter in England. It only ends up excluding the rest of the UK's citizens, and diminishing the idea of Britain.
EVEL is not a call for the voter in England to have more democracy. It is a call for the voter in Scotland to have less.
Conservative Party Plan No 2: Full Fiscal Independence for Scotland
The Conservative Party argues that if people in England were no longer paying for matters in Scotland then it would solve the consequence of Matter 1 which is Matter 2: Taxpayers in England should not pay for devolved matters in Scotland over which they have no democratic say.
Furthermore, it is argued that if Scotland were no longer paying for matters in England, then MPs from Scotland could safely be excluded from voting on Bills which were largely related to England because they would no longer have any Scottish financial interest to represent. In this sense, the Conservative Party sees Full Fiscal Independence as a necessary accompaniment to EVEL.
However, we are opposed to Full Fiscal Independence in principle and in practice.
In principle, we believe, as we have already stated that "There is no such thing as a law which affects only one part of the UK."
In principle, we also believe that one of the benefits of the Union is the redistribution of money throughout the UK, from richer to poorer areas. As unionists we are keen to help to pay for services in the rest of the UK, and we expect to rely on the rest of the UK when necessary.
In practice, from our unionist concern, we realise that this would reduce the relevance of British MPs from Scotland. This would happen very quickly. It would only benefit the separatists. Even partial fiscal devolution tends, inevitably, to reduce the status and relevance of British MPs from Scotland in the British Parliament.
In Summary: EVEL narrows the democratic participation – representation, reach and leverage – of the voter in Scotland and it does nothing to enhance the democratic participation of the English voter. Moreover, the integrity of the Union is threatened by both EVEL and Full Fiscal Independence.
MATTER 3A number of MPs from Scotland, or Northern Ireland or Wales, could prove decisive in voting for or against a matter which applied only to England
If a party has a majority of MPs in England, but not in the UK, then sometimes a Bill which applies largely or only to England, might be passed or failed only by the votes of some of the MPs from Scotland, or Northern Ireland or Wales. The complaint is that the MPs from the rest of the UK were the decisive element, and that they voted against the wishes of the majority of the MPs in England. The complaint may be heightened if the Bill was on a matter already devolved to Scotland or Northern Ireland or Wales.
Prior to devolution, this was irrelevant. For 292 years, MPs from England voted on matters relating to Scotland, and those matters would have been passed, even when a majority of MPs from Scotland may have been against that particular Bill.
Very few of us bothered. We knew that an MP from England was representing his constituents and their financial and shared British concerns when he voted on the Bill which related to Scotland. In return the MP from Scotland was representing his constituents and their financial and shared British concerns when he voted on the Bill which related to England.
Similarly, Northern Ireland had devolution for 50 years from 1922-1972 and nobody bothered about the Northern Irish MPs who could vote on matters in England, which English, Scottish and Welsh constituents had no say upon in Northern Ireland – although this may have been because there were relatively few MPs from Northern Ireland.
Today, MPs are still equal in the sense that they are all entitled to vote on exactly the same things as each other.
However, as we have explained above, the difference today is that the voter in England is no longer able to express his or her financial and shared British concerns, through their MP, about devolved policies which relate to Scotland or Northern Ireland or Wales.
Yet that voter in England will notice that constituents in the rest of the UK are able to express their concerns, through their MPs, on all matters which relate to England.
Devolution has changed the inclusive frame of "British MPs voting on British matters" to a divisive perception of "Scottish MPs voting on English matters".
4 SOLUTIONS to MATTER 3
We do not know how often this occurs. It may be a problem more apparent than real.
It seems to be a complaint heard mainly from the Conservative Party – which holds 1 MP in Scotland, in comparison to 40 held by the Labour Party.
If it is a problem, why should it be considered permanent? Here are 4 ways around it:
1 – It may be a temporary situation. Has the Conservative Party given up on winning seats in Scotland? That seems defeatist! The Conservative Party could win more seats in Scotland, or Labour could lose several, and the relevance of the problem would diminish.
2 – The Conservative Party has an inherent disadvantage owing to Boundaries which have not been updated in England. Perhaps a change in Boundaries might deliver fewer Labour MPs for the Conservatives to worry about.
3 – If the Whip System was not so prevalent – forcing MPs perhaps to vote against their conscience – then the problem might not be so relevant.
4 – Proportional Representation would also change the context. 2
CONCLUSION
We consider the 3 Matters above to be constitutional anomalies rather than full-scale problems. These anomalies have been caused by asymmetrical devolution.
Any attempts to remedy them by imposing symmetrical devolution – for example, EVEL, Full Fiscal Independence to Scotland, Reduction of MPs from Scotland, English Parliament, or Devolution to English Regions – would compromise the integrity of the Union. 3
The best we can do is to attempt to "patch" the anomalies, in the manner that software programmers attempt to "patch" programming faults. Below are 11 Policy Patches.
Our Philosophical Base for the Policies
More devolution will undermine the unionist case for the UK, which depends upon shared political institutions and laws. It will fuel the nationalist fire and it will continue to upset the voter in England, leading to a crisis of Union.
The less that is devolved to the constituent parts, then the less that has to be paid for by the taxpayers from England, Northern Ireland, Scotland and Wales who have no democratic leverage over each other's devolved affairs, and consequently, the less irritation they are likely to express.
As regards England, it represents 84% of the UK's population. It has 533 or 82% of the 650 MPs. At any time, the combined weight of the MPs in England could outvote Scotland (59), Northern Ireland (18) and Wales (40) put together, by a factor of 4 and a half times.
It is a powerful State already. We ask people in England to keep this matter in that context.
Scotland, Northern Ireland and Wales, although influential and important within the UK Parliament in their own right, are still – if we insist on thinking in these separate national terms – minorities. Surely the Parliament can make allowances for the rights of minorities.
Our 11 Policy Proposals or "Patches" to try to Mend the Constitutional Tapestry
We must continue to allow the Scottish MPs, and Northern Irish and Welsh, to vote on those matters which some describe as "English" while finding ways for the voters in England, through their MPs, to have a say over devolved matters in Scotland, and Northern Ireland and Wales.
Although we have concentrated here on England, we are also conscious, and ask people to remember, that while voters in England don't have a say over Scottish, Northern Irish and Welsh devolved matters, voters in Scotland don't have a say over devolved matters in Northern Ireland and Wales; voters in Northern Ireland don't have a say over devolved matters in Scotland and Wales; and voters in Wales don't have a say over devolved matters in Scotland and Northern Ireland.
It has also been brought to our attention that the same principle applies to the matter of London. The London Assembly is responsible for spending a large proportion of the UK's budget, and on expensive matters such as transport, that no MP from England, Scotland, Northern Ireland or Wales gets a say on. Consequently, everyone outside London and throughout the UK has also been, to an extent, politically marginalised regarding the spending of our tax money in London and our political participation in its future.
In the absence of being able to return to the status quo ante we suggest:
1. Devo Minus: Reverse the Devolutionary Process where Possible
The priority should be in those areas where the practice has created inequality of opportunity, and financial inequality among British citizens – tuition fees for example. This requires that we:
2. Accept the Principle that a Devolved Competence can be Rescinded
If we accept that the Union must be maintained, and that the Scottish Parliament is intended to "strengthen the Union", and if we believe in the principle of "ever closer union" for the UK, then there should be no reluctance – in principle – to rescind a devolved competence if that competence is being used in a way which is damaging to our Union relationship.
There should be a presumption that it is possible. There should be nothing controversial about that presumption.
3. Legislate to Rescind, or Override, a Particular Rogue Law
Rather than targeting the entire devolved matter (ie Education), the UK Government could simply rescind the particular rogue law whose consequences are damaging the Union relationship, or override it with a new, more "strengthening" law.
4. Devo Zero: No more Devolution
At the very least we must avoid making the constitutional anomalies any worse.
5. A Dual Strategy of Devo Minus and Devo Zero is also Possible
6. Devo Mini: Devolve as Little as Possible
If there is pressure to devolve which cannot be resisted, then the guideline should be to devolve as little as possible, and only to those areas which are as inconsequential as possible.
7. Establish a UK Constitutional Veto: Safeguard against Future Rogue Laws by additional Paragraph in Scotland Act
In order to safeguard against future devolved rogue laws which damage the Union, a further paragraph "c" should be added to Section 35 (1) of the Scotland Act 1998 (Power to intervene in certain cases) which should state something along the lines of:
"If a Bill contains provisions which the Secretary of State has reasonable grounds to believe would be incompatible with the principle of ever closer union for the United Kingdom, or contrary to the principle that devolution must strengthen the Union, or incompatible with the principle of equality of opportunity throughout the United Kingdom, he may make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent."
To Address Matter 1 and Matter 2 specifically, we advocate:
8. Institute a "Principle of British Equal Treatment" Law
It is a principle of Union that all British citizens are equal before the law and must enjoy equality of opportunity anywhere in the United Kingdom.
It is unacceptable that students, who are British citizens, from England, Northern Ireland and Wales should be treated unequally, and to their disadvantage, in the matter of tuition fees in Scotland.
The EU has a European Court to ensure the equality of EU citizenship throughout the EU. Britain should have something similar.
A Principle of British Equal Treatment would be adjudicated by the Supreme Court. It would ensure that no British citizen is prejudiced legally or financially or has their opportunities compromised by participation in any public or private matter as a consequence of devolution, and in comparison to another British citizen from another part of the UK. The Supreme Court would strike down laws passed in Holyrood, Belfast or Cardiff which contradicted this principle of Union.
Sorting this out legally would not be difficult and would go a long way to getting rid of the unfairness which causes some people in the rest of the UK to be upset. It would help to strengthen the social and cultural Union which has already been damaged by such devolved polices.
9. MPs from England to have a Role in Holyrood Committees
The Holyrood Committee structure is badly designed and can be dominated by one party. We propose the introduction of MPs from England, Northern Ireland and Wales onto these Committees.
The MPs would not be elected to Holyrood, but would have a say in its affairs. Perhaps they could have voting rights in the Committees, or initially be observers exercising oversight on behalf of their constituents. Perhaps they could be from the northern English or Northern Irish constituencies in particular; or perhaps simply chosen by lottery from any constituency in the rest of the UK.
The aim is to make Holyrood more of a British Parliament, rather than a parochial "Scottish" one and to enable the voter in England, through his or her MP, to have a degree of oversight, and possibly a democratic say, about what happens in Holyrood, in the absence of them having any democratic say at Westminster, as per our Matter 1 above.
10. Review the Barnett Formula
Ensure the levels are still appropriate.
11. A Ministry, and Minister of State, for the Union
To bring everything together we need Westminster to set up a specific Ministry, and a UK Minister, for the Union. This would be tasked to promote the social and cultural value of the United Kingdom, and to spot and prevent and defeat threats to the Union.
(1) Source: Helen William, "Now we are 63.7m: UK had biggest population growth in Europe over past year", The Independent, 8-8-13. http://www.independent.co.uk/news/uk/home-news/now-we-are-637m-uk-had-biggest-population-growth-in-europe-over-past-year-8751929.html
(2) The following comment was written before devolution. (Andrew Marr, "The Scotsman's home rule hand-grenade", The Independent, 19-3-97, p. 19.)
If Labour embraced voting reform, then Scotland would be a little more Tory and England would be rather more Labour and Lib Dem. The differences between the historic nations of Britain, which are greatly exaggerated by the first-past-the-post system, would be smoothed over. We would become a Union of political minds, not simply of taxpayers. The UK would become more ideologically similar, and therefore stronger, not weaker. And, of course, it would matter far less to Labour whether it had Scottish MPs to prop it up at Westminster or not.
(3) The following are the alternatives to EVEL and Full Fiscal Independence:
1. Abolish Holyrood
This is not being proposed by any political party at present.
2. Reduce or remove the Scottish MPs from Westminster
We oppose any reduction of MPs from Scotland in the British Parliament. This would gradually make it appear irrelevant to Scotland. It would promote separatism. The removal of MPs from Scotland would be equivalent to independence.
3. Create an English Parliament
We think this is a sledgehammer to crack a nut.
A Parliament for the 53.5m people in England would immediately become a powerful competitor to the UK Parliament which is for the combined 64m of us. This would create instability in both England and the whole of the UK.
It would also become a direct competitor to the much smaller Scottish Parliament and the conflict generated between the two would create Scottish/English animosity, to a level far greater than anything which exists at present.
It would also be a massive expenditure, and create a huge new level of over-government, and a whole morass of new laws. It might also tend to be dominated by the London Members, or the Members from the South East of England. This would lead to inter-English strife.
Nor would the establishment of an English Parliament address the matter – which would continue to arise in the UK Parliament – of legislation which may be for the combined "England and Wales", or perhaps "England, Wales and Northern Ireland", or "England and Northern Ireland".
These votes would still have to take place. Should only English and Welsh MPs vote on the matter? Or English, Welsh and Northern Irish, or English and Northern Irish? In which case, what was the point in going to all the trouble of setting up an English Parliament in order to avoid those complications?
Furthermore, we do not believe that such a demand exists. We are aware, of course, that politicians could create perceived "injustices" in the current system and consequently end up creating such a demand.
In that regard we emphasise that the 3 Matters we have identified in our submission above are constitutional anomalies – irregularities. They should not be elevated into grave injustices, and certainly not for party political advantage or rabble-rousing purposes.
We caution against attempting to appease "English nationalism". The Labour Party tried to appease "Scottish nationalism" and only succeeded in feeding and growing the threat.
4. Devolve power to "the Regions" or "Cities and Counties"
Again, this seems a sledgehammer to crack the Matters of the 3 anomalous nuts we have identified above.
Would such devolution even be fair to England? Devolution has allowed Scotland to retain its distinct "national" identity. Why should England be balkanised, or dismembered into "Regions" in response?
Is it even practical? How are these "Regions" to be divided? Is Cornwall to be regarded as separate, or part of "the South West"? Are the old counties to be reinstated? Are cities to be treated separately? If so, how are these to be defined? It sounds like great work for Think Tanks and Policy Wonks – giving employment for many years – but we question whether anyone, beyond those sorts, is actually demanding it.
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