Mckay Commission points way to confederal UK

John Osmond looks ahead to the choices being lined up in the wake of next year’s Scottish independence referendum

By far the most interesting aspect of yesterday’s report from the Mckay Commission on the consequences of devolution for the future of the House of Commons (here) is its outright rejection of a federal solution for the constitutional dilemmas of the United Kingdom.

The Commission, chaired by Sir William McKay, a former clerk of the House of Commons, and with representatives from all parts of the UK – including Sir Emyr Jones-Parry from Wales – recommended a mild version of ‘English votes for English  laws’ as an answer to procedural problems at Westminster arising from devolution. Its main proposal was that Commons decisions with a “separate and distinct effect” for England should “normally be taken only with the consent of a majority of MPs sitting for constituencies in England”.

This is put forward as an answer to the so-called ‘West Lothian Question’. Named after the constituency of the former Labour MP Tam Dalyell, this arises from the devolution anomaly whereby Welsh, Scottish, and Northern Irish MP are able to vote on English domestic matters, whereas English MPs cannot do so in relation to Wales, Scotland or Northern Ireland.

But from the point of view of what future constitutional arrangements for the UK might emerge in the wake of next year’s Scottish independence referendum, it is the Commission’s discussion of federalism and English dissatisfaction with the present set-up that is of most relevance.

The Commission considered five potential solutions to the West Lothian question and rejected all of them in the following terms:

Abolishing devolution is not on the political agenda.

Maintaining the status quo is a long-term risk.

Strengthening local government in England does not tackle the governance of England.

Federalism, both England-wide with an English parliament or with English regions, has compelling objections.

Electoral reform, including proportional representation and reduction in the number of MPs returned for seats outside England, is not realistic and fails to tackle the underlying issue.

In surveys the Commission undertook into English attitudes on how they should be governed, strong preferences were found for some version of separate treatment. A total of 81 per cent agreed with the proposition that ‘Scottish MPs should not vote on English laws’. In a further survey respondents were given three options when answering a question about possible arrangements for making laws for England. The first choice, favoured by 30 per cent, was for England to be governed with laws made solely by English MPs in the UK Parliament. This came just ahead of an English parliament, at 29 per cent, and keeping “things as they are at present”, at 25 per cent.

As the Commissions report says, “These are extremely significant findings”, with only a quarter of the respondents favouring the status quo. And it adds:

“If support for law-making by English MPs in the UK Parliament and support for an English parliament are added together, support for some form of England-specific procedure for making laws for England has the support of over half of the survey respondents.”

Yet in its rejection of a federal solution and a clear-cut version of ‘English votes for English laws’ in the House of Commons, the Commission denies this aspiration. In its rejection of federal approach to the UK, as has been advocated by First Minister Carwyn Jones in a series of speeches over the past year, the Commission rehearses what, by now, are a familiar set of arguments, but ones which it finds “compelling”:

  1. There are no precedents of federal systems in which one component makes up over five-sixths of the overall population of a state. There is a wide view26 that such a big unit would destabilise the state as a whole, both in relation to the three much smaller units in Northern Ireland, Scotland and Wales, but also in relation to the federal UK parliament and government, to which an English parliament would be likely to be a powerful rival.
  2. Any federal system requires a delineation of competences, which are usually arbitrated by a supreme court that would be able to overrule the UK parliament, as well as binding the devolved institutions. This would be a radical departure from UK constitutional practice. In this and in other respects, the “massive upheaval in governmental arrangements that would be needed to create a new Parliament for 50 million people” would not appear a proportionate response to the current sense of disadvantage in England.
  3. It seems unlikely in the current climate that citizens would favour having more politicians than now, or the costs associated with establishing a new institution.

What do these conclusions point to when we come to consider the future of the UK in the wake of the Scotland’s independence referendum, now to be held in September 2014? We are likely to be faced with three propositions:

  1. Either Scotland will become independent or there will be a move towards greater powers for Scotland – and also Wales and Northern Ireland in its wake – within a looser UK.
  2. There is no appetite for a federal solution.
  3. The electorate within England will want stronger guarantees that their distinctive voice be acknowledged.

The only way that I can see that these requirements can be reconciled is if the component parts of the UK moves towards a confederal relationship in which certain, limited and defined functions continue to be exercised at the UK level – for instance defence, foreign affairs, and some social protection measures such as pensions. Everything else would be retained by Wales, Scotland, Northern Ireland, and the House of Commons for England, with the House of Lords evolving into a chamber for the confederation. Conventions might emerge whereby all nations represented in the confederal chamber would need to provide majorities for highly controversial issues such as a declaration of war.

I’m sure this is not what Carwyn Jones has in mind when he talks about a federal or quasi-federal solution to the devolution dilemmas of the UK. But how else are we going to reconcile the desires of England, let alone those of Scotland? As ever, the risk to Wales  (and Northern Ireland) will be financial.

John Osmond is Director of the IWA

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