English votes for English laws a flexible solution

David Melding outlines the submission he made to the McKay Commission on the consequences of devolution for the House of Commons






Parliament

Many observers of the British constitution believe that the UK is now a quasi-federal state. I agree in part, but would rather describe the UK as a unitary-federal hybrid. Scotland and now Wales – and in time perhaps Northern Ireland – are best described as federal-style authorities within the UK, while England remains essentially unitary in its political character.

Some theorists still maintain that Scottish political institutions remain ultimately subservient to Westminster via the principle of absolute parliamentary sovereignty – the guiding principle of the British constitution since 1689 and 1707 when Scotland joined the Union. However, it is difficult to reconcile this axiom with the acceptance of Scotland’s right to secede from the Union if that becomes the will of the Scottish people. The UK is exceptional in recognising the right of at least one of the Home Nations to secede from the state. This is a federal or even confederal constitutional principle.

Devolution has, then, created Scottish political institutions of great strength and constitutional authority (and Wales seems to be on a similar path). The Scottish Parliament and executive are remarkably powerful compared to the powers inherent in the states of the USA or to the provinces of Canada and Australia. Rather than an alternative to federalism (as was undoubtedly the hope of reformers from Gladstone to Blair) devolution appears to be a robust variant of federalism, but one without the usual rulebook found in federal states.

Further reforms to the British constitution will require a greater appreciation of the federal principles now inherent in the UK state if they are to be successful.

Any moves to address the so called West Lothian question should build on federal principles, although they will need to be highly distinct to reflect the richness and peculiarities of British political practice. At the very least, reforms should not be inimical to federal practice and the fuller application of such practice in the future.

The British state developed a theory of parliamentary federalism in the 19th Century for application to Canada and later Australia. Some Victorian and Edwardian reformers called for the use of parliamentary federalism to resolve the Irish crisis. This became something of a consensus position between 1918-21, but under considerable duress and in any event too late to be a practicable response to the Irish crisis.

There is presently no clear consensus on how English political institutions or processes should develop. It is therefore necessary to seek pragmatic and perhaps interim solutions to what we may now want to term the English question. That England is in terms of size and wealth the dominant partner in the Union surely creates space to allow longer-term solutions to develop. While the frustration of English political will by UK processes cannot be dismissed, it remains a risk of relatively low probability – although a dangerous one should it occur.

While the danger of a UK government lacking a majority in England clearly exists, it would be open to the party with a UK majority (probably Labour) to form a coalition to secure a majority in England. Should the UK move to PR for Westminster elections – unlikely now, but future generations may be more sympathetic to such a reform – then the danger would be removed.

There is no perfect political constitution on the face of the Earth! Culture, goodwill and calm resolve are just as important in the conduct of liberal, democratic processes. The Irish crisis excepted, there is little in British political experience to suggest that constitutional challenges cannot be overcome if the popular will overwhelmingly favours the continuance of a British state. I see little evidence in the various opinion surveys conducted in England, Scotland and Wales to suggest that Britain lacks authority or popular support.

Therefore, the overwhelming purpose of current statecraft should be to strengthen the British state. The loss of Britain by political misadventure would fail the settled will of the electorate in England, Scotland and Wales. As Gladstone would have no doubt advised, we need to elevate our vision and have the confidence to take some decisive strategic decisions. Interestingly, the debate on Scottish independence is focusing on alternative visions about the future of the British connection. The SNP are calling for a loose British confederation based on a Social Union with a dual monarchy, shared armed forces and a common currency.

Unionists hint at a reformed Union where Scottish institutions are enhanced with some form of devolution-plus that on clear days looks distinctly federal. It is therefore necessary to address the English question seriously as part of a settlement which recognises that it is no longer credible to hold absolute parliamentary sovereignty as the central principle of the British constitution. An alternative, federal, formula is required to breathe new life into the concept of sovereign authority.

An English Parliament offers a classic federal solution to the English question. It would however create a heavily unbalanced federation and is often dismissed by constitutional theorists on this ground alone. In any event, there is little desire for such a solution amongst the English electorate, although should the settled will of the English people change it would be difficult to deny the establishment of an English Parliament (if the people of Scotland are sovereign on the matter of their domestic political institutions, are not the English?). An English Parliament would probably not encroach on Scottish and Welsh institutions (Scotland would simply secede) but it might dominate British political institutions.

An English legislative process within Westminster looks like a reasonable interim response that could well become permanent. Custom and practice would probably overcome most of the practical problems that such a process may create (principally a bifurcated executive). While it is often difficult to identify English-only legislation given the current complexity of a unitary system in transition, this entanglement is likely to diminish in time as the body of Scottish and Welsh public law becomes ever more distinct.

The great advantage of an English legislative process within Westminster would be its flexibility. Should other demands develop – perhaps even a desire for an English Parliament in due course – they might be addressed by an adaptive process. A more robust long-term development would be federalism within England. While there is little desire for this presently, we should recall that devolution was massively rejected by the people of Wales in 1979. Within a generation this antipathy evaporated. Early intimations of such an outcome in England might start with the London Assembly acquiring legislative powers and thereby initiating a wider process of reform in other English city-regions.

The argument that Scottish and Welsh MPs should retain their right to vote on English legislation because of the consequential effects on the Barnett formula would fall away quickly if the UK had a needs based mechanism to determine levels of public spending. Federal states are often transfer unions and use some form of equalisation grant to maintain minimum levels of economic and social welfare. There is currently a theoretical acceptance of the need for the UK to move to a needs based formula for public spending, although its practical implementation remains elusive.

Britain is not Belgium. There is no hope of constitutional stability if the authority of the British state is constantly diminished. A federal settlement would divide sovereignty and recognise formally current realities in Scotland and Wales. We should not forget that although no longer absolute, the sovereignty of Westminster would be supreme over those matters reserved to the British state.

It is regrettable that the Commission’s terms of reference exclude consideration of House of Lords reform. If Britain is becoming a federal state then the role of the upper chamber will be crucial in maintaining the health and resilience of the Union.

The constitutional future of Britain will in large part be determined by the result of the referendum on Scottish independence. I am wary of loosely defined schemes like devo-max or devo-plus to lure Scots away from outright independence. Only a federal solution offers the optimum means to preserve the authority of the British state.

I believe it is time for a New Act of Union, one in which the sovereignty of each Home Nation over its domestic matters is recognised. This would make the Scottish Parliament and the National Assembly entrenched and sovereign bodies over their respective jurisdictions.

It would not be wise to impose an English Parliament on England to create a tidy and uniform federal state. It is enough to recognise that England is a sovereign entity also. Should that sovereignty be mediated via Westminster and a process of English (MPs) votes for English laws, so be it. A more regular federal outcome is presently unattainable but may one day occur via federation within England.

David Melding is Deputy Presiding Officer in the National Assembly and a Conservative AM for South Wales Central. His The Reformed Union: A British Federation, currently being serialized by ClickonWales can be accessed here