Question: West Lothian? Answer: A Federal United Kingdom

[Note:  This is the text of a submission to the McKay Commission on how the House of Commons might deal with legislation affecting only part of the UK,  following devolution – i.e., the West Lothian Question.  Information about the Commission is on its website at http://tmc.independent.gov.uk/.  This submission is also posted on the Commission’s  website here (pdf)  Comments on it may be posted either here (below) or on the McKay Commission website].  

Question: West Lothian?  Answer: A Federal United Kingdom

Devolution ‘has turned Britain from a unitary state into a quasi-federal state’
(Vernon Bogdanor in The New British Constitution)

Introduction:  the problems and their solution

This paper argues that the only durable and democratic answer to the West Lothian Question (narrowly re-phrased in the Commission’s terms of reference) is ultimately a full federation of the four UK nations — England, Scotland, Wales and Northern Ireland; and that it is impossible to propose a solution to the narrow problem posed in the McKay Commission’s terms of reference (“To consider how the House of Commons might deal with legislation which affects only part of the United Kingdom, following the devolution of certain legislative powers to the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales“) without placing it in the context of the constitutional future of the United Kingdom as a whole.  This inevitably also means considering the future of Scotland, within or outside the United Kingdom, and its implications for the rest of the UK .  Study of the implications for the House of Commons must also include consideration of the future of the House of Lords or whatever would replace it in a federal United Kingdom.

At the heart of the West Lothian Question and the Commission’s terms of reference is the unsustainable anomaly whereby since devolution the House of Commons has had to try to play two distinct and ultimately incompatible roles:  first, as a quasi-federal legislative body for the whole of the United Kingdom, dealing with all subjects not devolved to Scotland, Wales and Northern Ireland (such as foreign affairs, defence, and other all-UK matters);  and secondly, with the House of Lords, as a parliament for England dealing with all English internal matters, including subjects such as education and crime that have been devolved to Scotland, Wales and Northern Ireland but not to England.  Since the members of the House of Commons are elected from all the four UK nations, and not just from England, it follows that its membership alone makes it quite unsuitable as a parliament for England.

Another aspect of the anomaly is that whereas the House of Commons can more or less function as a substitute for an English parliament, despite the unsuitability of its membership for that role, the only available substitute for an English government is the government of the whole of the United Kingdom, whose composition is even more unsuitable for governing England than that of the House of Commons — for example when the United Kingdom has had a Scottish or Welsh prime minister and other non-English ministers responsible for English domestic matters.  Elaborate schemes for establishing an English Grand Committee of English MPs to act as an English parliament to deal with legislation affecting only England all fall down on this fundamental problem:  under the Westminster system, a legislature can’t function without an executive drawn from it and answerable to it.  There are many other fatal objections to the English Grand Committee idea and its more or less ingenious variants, but the absence of anything corresponding to an English government alone makes it impracticable.

The West Lothian Question and a federal United Kingdom

The anomaly reflected in the West Lothian Question can be resolved only by separating the two contradictory roles currently played by the House of Commons.  Its primary role, as a semi-federal legislature for the whole of the UK for subjects not devolved, is appropriate to its all-UK composition, matched by a semi-federal UK government, and appropriate for the federal United Kingdom of the future.  Its secondary role, as an English parliament, for which its composition is inappropriate and which is unmatched by any English executive body, manifestly requires the creation of a new legislative body for England, in parallel with the Scottish parliament and the corresponding legislatures in Wales and Northern Ireland.  Logic and basic constitutional doctrine would also then  require the creation of an English government, in parallel with the executives or governments of the other three UK nations.  When England at last possesses its own parliament and government, the federal character of the United Kingdom created by devolution will become too obvious for even the most dedicated conservative to miss.

Implications of federalism

As Professor Bogdanor has recognised, devolution has already made the UK a “quasi-federal” state, with many of the features of a full federation already in place:  an upper or federal tier for the whole of the United Kingdom (the House of Commons, House of Lords and the United Kingdom government), with a lower, second tier comprising the four UK nations, of which three already possess their own legislatures and governments with powers for many of the purely internal, domestic affairs of each but no powers at the level of the United Kingdom as a whole.  We now also have a Supreme Court whose powers include, inter alia, interpreting (i) the Human Rights Act (which would need to be incorporated in a written federal constitution and entrenched) and (ii) the legislation that has created devolution and defined the competences of the second-tier organs, although the Supreme Court at present lacks the power to disallow or nullify primary legislation of the United Kingdom parliament in the way that the Supreme Court of a fully-fledged federation would have to be empowered to do.

Much the biggest, most widely gaping hole in our present quasi-federal constitution, that will need to be filled in before we can progress to fully federal status, is the absence of a dedicated parliament and government for England, by far the biggest and wealthiest of the four second-tier nations.  Developing a national consensus — especially but not only in England — in favour of  a new, separate parliament and government for England will be a difficult challenge facing those with the vision to work towards eventual full federation for the whole UK.

Other challenges will be to develop general agreement across the UK and the main political parties on:  the definition of the powers of the first and second tiers of government respectively, including which powers are to be shared, and which tier is to prevail in the event of disagreement;  on the mechanism for revenue allocation as between the five spheres of government; on the terms of a written federal constitution setting out, among other things, the respective competences of the two tiers;  on the mechanisms for drawing up a written constitution for each of the four UK nations, each of which will almost certainly differ from all the others, and for legitimising each by local referendum or otherwise;  on mechanisms for consultation between each of the five governments on matters of common interest to all of them, and for resolving disagreements between them where necessary; and on empowering the federal Supreme Court to interpret and enforce the new written federal constitution, including the power to strike down legislation by any of the five legislatures that it deems inconsistent with the constitution; and on procedures for amending the federal constitution after it has come into force, including special procedures for amending the most important of its provisions, which will be ‘entrenched’, requiring especially demanding procedures for amending them.

Before any progress can be made on any of these reforms, it will be essential to forge a widespread national consensus in favour of the federal idea and its broad implications (although the details will need to be worked out by stages as each phase nears completion and comes up for popular approval by whichever mechanisms are decided at the time).  Clearly all this, including especially the establishment of a parliament and government for England, will take years to work its way through the system.  The essential preliminary is to secure broad national agreement on the ultimate objective, filling in the details step by step as we go along.  The whole process is unlikely to take less than two decades from the time when a major UK political party commits itself to eventual federalism and embarks on the enormous task of persuading a broad swath of public opinion to agree to it and to work towards it.

Objections to federation

The commonest objection to a federal UK is that the disproportionate size and wealth of England relative to Scotland, Wales and Northern Ireland would make a federal system unworkable.  The answer to this is surely that it is precisely the disproportionate size and wealth of England that make federalism necessary. The size of England relative to the rest of the UK is a given; it can’t be changed by any conceivable constitutional device.  Before devolution there were effectively no safeguards for the rest of the UK  against domination by an England whose population is far bigger than that of the other three nations put together.  A UK government and parliament with a huge majority of MPs and ministers from England were free to impose virtually any policies on the rest of the UK, regardless of local interests or wishes.  Devolution has provided limited protection for the rest of the UK against interference by the England-dominated UK government by preventing Westminster from exercising powers on the devolved subjects.  Full federation would greatly increase that protection in various ways:  each of the four UK nations would enjoy full internal self-government, with the federal government at Westminster prohibited by the constitution from legislating for the domestic affairs of any of the four UK nations; the constitution of each of the four UK nations would only be amendable by that nation’s people and parliament, not by any first-tier federal government or parliamentary organ;  and the interests and wishes of the rest of the UK would be further protected by the composition and powers of the federal second chamber or Senate (replacing the House of Lords) in which it would be impossible for members elected in England to outvote those elected in the other three smaller nations.  Only a federal system will provide such extensive safeguards against domination and interference by England in the affairs of the other three nations.  The disproportionate size of England is a strong argument for federation, not an obstacle to it.

Another frequent objection to federalism, and to the creation of a parliament and government for England, is that there is no popular demand for them.  But this has always been cited as an obstacle to progressive reform. Popular demand and support are created by the vision and leadership of our best politicians, their capacity for describing persuasively what is wrong with things as they are and how they could be done better.  When Britons begin to experience the enormous benefits of federalism, they will wonder why they took so long to want them.

And the third most common objection is that federation will create a new and unnecessary tier of government in addition to those we already have, and put hundreds more politicians on the payroll.  But we already have two tiers of government in our quasi-federal system, on top of local government, district councils, parishes and the rest;  adding English government organs to the existing second tier won’t create a new tier.  As to the number of politicians, the new federal Senate, if each of the four UK nations were to elect (say) ten or even 20 members to it, would still comprise at most 80 members — less than a tenth of the present membership of the House of Lords (812 at the latest count!), and still comparable in size with the Senate of the United States to which each of the 50 States elects just two members, for a country whose population is around five times that of the UK.  With the significant reduction in the responsibilities of the federal parliament at Westminster (because it will lose any jurisdiction in England’s domestic affairs once an English parliament has been established, and because all remaining powers in respect of the internal affairs of the four UK nations not yet devolved will be transferred to them), there could be a significant reduction in the size of the House of Commons to well under the currently proposed 600: and most of its MPs’ current constituency duties would fall to the members of the parliaments of the four UK nations which would have full and exclusive competence in all their domestic affairs.  Only the new English parliament, whether comprising one or two chambers, would  involve additional politicians, and it too could be strictly limited in size.  Thus, far more savings in the number of current politicians could be achieved than the additional politicians needed for England, resulting in an overall reduction in the number of UK politicians, not an increase.

Implications for the House of Commons and for House of Lords reform

As suggested earlier, the second chamber or Senate of the federal parliament at Westminster in a fully federal system would ordinarily be a “states’ house”, designed to provide each of the second tier nations with an additional input into such federal subjects as foreign affairs and defence, as well as affording the three smaller nations protection against being steam-rollered by much larger England in federal subjects.  It would in addition continue its roles as a scrutineer of draft legislation coming to it from the other House,  and holding the UK government to account.  Protection for the smaller nations against  being steam-rollered by England in the federal spheres would be achieved by the principle that each of the four nations would elect an equal number of representatives to the second chamber — as is the case in the Senates of the United States and Australia, the two democratic federations which perhaps offer the most useful lessons to a federal United Kingdom.  The principle of representation roughly proportionate to population would be preserved in the federal House of Commons, which would continue to be the source and home of the federal UK government.  This would be the case regardless of whether in the course of the constitutional reforms it were to be decided to retain First Past the Post or some form of proportional representation for elections to the Commons.

There seems no reason why the arrival of full federalism should involve much, if any, change in the powers and functions of the federal second chamber (or Senate) from those of the present House of Lords — nor indeed why there would need to be changes in the functions and powers of the federal House of Commons, apart from the Commons ceasing to function as a parliament for England once a separate English parliament had been set up as part of the federalisation process.

The relationship between the House of Commons and the new federal Senate would also probably be unaffected.  The obsession with preserving the primacy of the House of Commons, and avoiding conflict or deadlock between the Commons and an elected second chamber, is in any case misconceived.  The Commons’ primacy is already guaranteed by its function as the creator and home of governments – the prime minister and all senior ministers must nowadays be MPs, not peers, and the government derives its legitimacy from having the confidence of the majority in the House of Commons, not the House of Lords.  (It would be wise to provide that after any reform of the second chamber all ministers must be House of Commons MPs, not members of the second chamber.  There could be provision for ministers to appear in the second chamber to answer questions, or even to take part in its debates, but without the right to vote there.)

We don’t need to invent the wheel.  The vast majority of western democracies have two wholly elected legislative chambers without suffering the kind of constant conflict or paralysis that our present rulers seem to fear (the coup d’état mounted by the Governor-General of Australia and the then leader of the federal opposition against the Labor prime minister, Gough Whitlam, in November 1975 following a deadlock between the two Houses was a function of a bizarre anachronism in the Australian constitution).   Moreover a degree of constructive conflict between the two chambers can be good for accountability and transparency, especially if both have a plausible claim to democratic legitimacy through having been elected.  The fear of an elected second chamber sometimes challenging the House of Commons reflects the control freakery and over-centralism that are the bane of our politics.  The House of Commons will always have the ultimate power and the last word in subjects reserved to the competence of the federal tier.

I assume that a federal Senate will be wholly elected.  The alleged benefits of the expertise contributed by appointed members of the House of Lords, cited as justification for retaining an unelected, appointed element in a reformed second chamber, are wildly exaggerated.  A distinguished former gynaecologist has no more credentials for contributing to a debate on Trident than an equally distinguished retired admiral has for speaking on abortions (and the bishops have no obvious expertise on anything relevant to law-making).   An elected second chamber could call on expertise ad hoc, even allowing experts to participate in debates, as required:  but unelected experts should have no claim on seats in our legislature just because they are experts, and any appointments system may be relied on to degenerate into party patronage and effectively a kind of corruption.  In any case, the wisdom and profundity of House of Lords debates are more often admired than experienced:  as our sharpest constitutional commentator, Walter Bagehot, sagely remarked, “A severe though not unfriendly critic of our institutions said that the cure for admiring the House of Lords was to go and look at it,” an observation as accurate now as when it was written (in 1867!).

Implications of and for the Scottish independence referendum

Britain has traditionally been governed not only as a unitary state but also under a grossly over-centralised system. Scottish resentment of an overwhelmingly English government and Parliament constantly meddling in Scotland’s internal affairs has led to the rise of a popular independence movement to which partial devolution was the imaginative and constructive response of Scottish leaders of all political colours and of the then Labour government at Westminster. Partial devolution to Scotland, Wales and Northern Ireland has become increasingly popular in those three nations, leading to widespread demand for the grant of further devolved powers. In Scotland, this demand takes the form of a campaign for ‘devo max’, or full internal self-government within the United Kingdom, as a constructive alternative to full independence. It currently enjoys greater support than independence in the opinion polls. Full internal self-government for Scotland, if chosen by the Scottish people in the referendum scheduled for the autumn of 2014, will inevitably prompt demands for the same status in Wales and Northern Ireland, and (more controversially) for devolution and full internal self-government, with its own parliament and government, for England. As already noted, the UK has already become a quasi-federation since devolution;  that process has been temporarily interrupted, leaving a host of anomalies crying out for resolution, including most potently that encapsulated in the West Lothian Question;  its logical destination can only be full federation for the whole of the UK.

It is impossible at present to predict precisely what kind of federal system we shall want or need in the medium to long term, in advance of the Scottish referendum in 2014. If Scotland votes for full independence, the rest of the UK will need a different kind of constitution from the four-nation federation that will be appropriate if Scotland becomes fully self-governing within the UK. It follows that now cannot be the right time either to introduce important changes to the way we appoint or elect members of the House of Lords, or to attempt a precise description of the kind of federation that will be appropriate for a three- or four-nation United Kingdom.  But it’s vital to register that the result of the referendum in Scotland in 2014 could be powerfully affected by what seems to be in store for a United Kingdom that still includes Scotland in the years following 2014.  If there were to be a good prospect of an eventual full federation of the four UK nations, including Scotland, each enjoying full internal self-government and more effective protection against meddling by Big England or by the federal centre at Westminster, that might well tip the scales decisively against a referendum vote for Scottish independence and secession from the United Kingdom.

But there is not much time left for convincing undecided Scots that such a prospect is a realistic one.  Neither of the two main UK parties has yet been brave enough to pick up the federal ball and run with it, although the LibDems have been increasingly toying with the idea.

Conclusions

The problem of how to legislate for England on matters which have been devolved to the other three UK nations, encapsulated in the West Lothian Question, is logically and constitutionally incapable of being solved by creating a sort of English parliament within the present House of Commons.  Such an ur-parliament could not function without a separate English government.  Under our present semi-unitary, semi-federal constitutional arrangements, almost all Westminster legislation affecting England has consequences, often including financial implications, for the other three nations, who can’t properly be denied a say in it.  It’s inescapable that a solution must tackle the problem at its root: namely, the fact that the House of Commons has to try to play two fundamentally incompatible roles, that of a first-tier federal parliament for the whole of the United Kingdom in subjects not devolved to Scotland, Wales and Northern Ireland, and simultaneously as a second-tier English parliament for which its composition disqualifies it, as well as the absence of a corresponding English government and the lack of any role in legislating for England for the House of Lords.  The only durable and logical solution to this is to separate out the two roles by establishing a separate second-tier parliament and government for England.  And this means a further and decisive step towards a full federation of the four UK nations, with wide and almost entirely beneficial implications for the whole country.

A large part of the problem of securing a sensible, durable and democratic federal system for the UK arises from the widespread ignorance in Britain of basic federal principles, aggravated by an apparent inability to recognise that we are already more than halfway into a federal constitution. It can’t be said too often that we already have a quasi-federal system, and that eventually a full federal system for the UK is almost inevitable – as well as highly desirable.  If our political leaders, parliamentarians, political commentators, editors, academics and other opinion-formers continue in ignorance of what federalism needs and demands, we shall continue to commit damaging blunders in seeking to reform or even just improve our constitutional system. Instead of ramming through an ill considered and flawed reform of the arrangements for legislating on purely English matters by a selection of House of Commons MPs who have been elected to a quite different kind of body, or for “reforming” the House of Lords as proposed in the government’s current Bill, we should spend the time between now and the Scottish referendum on a campaign of public education in federalism as the best and only way to resolve the many anomalies created by our failure to complete the half-finished process of devolution, namely by moving purposefully towards a full federal constitution for the United Kingdom. A good start might be the appointment of a Royal Commission or other formal body charged with making and publishing a detailed analysis of the constitutions of other democratic federations, spelling out the lessons to be learned from them in the circumstances of the United Kingdom following the Scottish independence referendum in late 2014, whatever its outcome turns out to be.  Already we are running out of time for that badly needed exercise in public education.

Brian Barder
London
25 July 2012