‘The
Implications of Devolution for England’
A response to the document presented to the
House of Commons December 2014
Introduction-fundamental
issues
Cm8969[1]
contains, and indeed conflates, two important areas of governance: one-local
government and decentralisation of power, of long-standing existence and
debate, and the other-devolution, a recent constitutional innovation. The two
are not necessarily connected. How can power can be brought closest to the
people, encourage local participation, engender a real feeling of community and
raise voter turnout? These are issues with which governments always grapple. Not
only has local government in recent years become more of a partnership with
central government in delivering the centre’s priorities, but there has always
been a tension between decentralised and centralised delivery of vital
services. For example, the NHS as a national
service created deliberately so after the war to iron out differences in
health outcomes (and therefore life chances), rather than a locally responsive
service under the auspices of county councils.[2]
The dichotomy between the Health Secretary being
accountable in the House of Commons for government action on the nation’s
health and locally determined priorities (funded perhaps in future only by
money following the patient, rather than so heavily influenced by national
targets) presents a fundamental challenge. Moreover, the present situation with
Health being run by local (unelected) people, but having to meet many central
government targets can be said to either provide the best or worst of both
worlds. Can there be local control over Health if the ‘experts’ tell us that
larger units produce better and safer outcomes but people prefer a smaller and
geographically closer facility? The situation regarding education, described
previously as “a national system locally delivered,” has been transformed by
the creation of free schools and academies added to schools run directly by
Local Authorities. OFSTED and the National Curriculum (with the freedom to
disapply elements) provide a national framework and benchmarks so that we can
still talk of a national service. But the tensions between local and national
accountability (and at local level whether to a local authority or parents
directly) inherently remain.[3] How
we do reconcile national need in planning law with locals in effect wanting no
‘spoiling’ development? Can central government ‘let go’ because a
locally-oriented service provides better outcomes, or in the interest of
fairness must there be tight nationally enforced standards?
Local
Government Purpose and size Concerning local
government, Implications heavily
emphasises the large scale: Regional Growth Fund, Metro mayors (i.e. Greater
Manchester Combined Authority) and services reaching over local government
boundaries such as transport[4].
It also focuses on the North with the commendable desire to create a ‘Northern
Powerhouse’ in order to reduce the economic gap in relation to London. However,
there is nothing regarding less economically successful areas such as the
South-West, or how northern initiatives will relate to, for example,
Kent/Sussex and other areas which cannot easily be regionally defined.
Moreover, a number of the councils which are to gain elected mayors rejected
them within the last two years. There is the danger that going ahead so soon
after rejection can be seen as just another example of central government
riding roughshod over local sensibilities in partnership with local councillors
and interest groups (which bolster the latter’s position). Above all, there is
no discussion of the trend towards larger and larger LA’s in a country where
the average district council has an average population of 140,000[5]
compared to the Continent where many local government units are much smaller-and
whether this is desirable. There is also no consideration regarding policing
that the conspicuous and remorseless trend from small local forces to extremely
large ones may not be uniformly welcome.
Finance
The most serious issue missing from Implications is that of local government
finance. It is surely impossible to deal with local governance holistically
without considering how (and how much) money for local services is raised, and the
influence/control local voters will have upon it. This is a crucial omission. Whether
revenue is raised by a local income or property tax, its administrative complexity
and cost are challenges. Moreover, the former may be seen as a Trojan horse for
regional government. Allowing LA’s freedom to set their own taxation level to
raise income above the block grant/fees and charges, opens up a can of worms in
central government’s view, regardless of who is in power. Not only does it
place an element of public spending potentially beyond Westminster control, but
makes possible serious inequalities in services deliberately being opened up
within the same nation[6]-the
principle behind the Bevan (centralised) and Morrison (locally run) argument
regarding the NHS. The Council Tax cap, imposed by successive governments,
regardless of party, is a fundamental restraint on local democracy in that
central government prevents voters from making the “wrong” choice. Implications fails to address any of
these fundamental principles. The result is a thin and partial document which
is in danger of hardly being noticed in respect of the local government content,
and certainly fails to address the needs of the whole of England.
The
‘West Lothian Question’
Concerning the effect of devolution on England and
the ‘West Lothian Question,’ there are three possibilities: 1) the question is
not worth answering because it’s not a big deal and many/most English people
actually do not care 2) the question can be answered by an English Parliament
or EVEL 3) answering the question with an English Parliament/EVEL is in effect
English separatism and will cause the breakup of the UK. We must remember that
not only is this being considered in the context of more powers being promised
to Scotland, but that the Barnatt funding formula, which is uniquely favourable
to Scotland at England’s expense, will remain intact. But there is also a
factor which (understandably) is not contained in the Implications document. While independence was on the Scottish
referendum ballot paper, ‘Devo Max’ was not. We have the odd situation that a
major constitutional change that was specifically excluded from the referendum
vote is now presented as a done deal. Moreover, the extra powers were suggested
in what is widely regarded as a moment of panic by three politicians, one of
whom will certainly not be an MP after the GE, another may not, and a PM who may
not still occupy that office.
Referenda We
must remember that the referendum represents a recent and massive
constitutional innovation, previously judged incompatible with parliamentary
sovereignty in this country. The history of the UK referendum is a somewhat
disreputable one of questions being put to a popular vote to avoid party splits
and get governments out of a political mess, rather than as well thought out
policy proposals for the good of the country. The 1975 European Community
(Common Market) vote was Harold Wilson’s way of keeping the Labour Party
united. The votes to establish Welsh and Scottish devolution were intended
(ironically) to dish the nationalists because it was feared they would win
Labour seats,[7]
while a low turnout in the London mayor/assembly referendum, and comparatively
low ones in Wales and Scotland, were ignored.[8] The
requirement for local referenda concerning grammar schools and in order to
raise the Council Tax above 2% represent attempts to gain party political
advantage by Labour and Conservatives respectively, not the use of an impartial
constitutional instrument. To go ahead directly with ‘Devo Max’, which further
destabilises our constitution and the Union-and was not on the independence
ballot, without full national discussion is unacceptable. Moreover, it is
strongly arguable that while independence is only a matter for a referendum in
Scotland, the transfer of exceptional powers with potentially such serious
consequences for the Union, while leaving the Barnatt Formula unreformed, logically
ought to trigger a vote in the rest of the UK, particularly in England.
The referendum had previously been regarded with
suspicion in this country as something often used by dictators, from
confirmation of Napoleon III and Hitler’s power or of the Soviet constitution
to Crimea’s recent ‘independence’ from Ukraine and incorporation into Russia The
post-war changes in the French constitution can also be seen as being more
about embedding partisan political power than gaining good governance. The
previously noted almost unanimous use of referenda in the UK to gain party advantage
or avoid party splits, contrary to their publicly stated purposes, suggests
that it is most often used for reasons in this country we might describe as corrupting
democracy rather than enhancing it. There is also a fundamental problem
regarding the wording of a referendum question. Questions which suggest the positive
answer ‘Yes’ (such as in the Scottish vote) or contain the word ‘remain,’ encouraging
support for the status quo, show the immense difficulty of constructing neutral
wording. It is difficult how controversy can be avoided over the wording on the
EU in-out referendum ballot paper. Such a question ought to include the
consequence of leaving will create a ‘sovereign,’ or ‘independent’ Britain,
which those in favour of membership are unlikely to agree. But wording such as
“Should Britain remain in the EU” contains the loaded status quo word remain. Is it even possible to achieve a
neutral wording in referenda? There is a strong argument that it is not.
The
Smith Commission
The Commission was set up in great haste after the
referendum, reinforcing the sense of panic engendered during it. There were
only four weeks for public submissions and no input from anyone outside
Scotland. This is disrespectful to the other nations comprising the United
Kingdom. Unilateral action such as this suggests that the Union no longer
exists. Decisions of constitutional import surely deserve to be carefully
considered. The Commission has acted as if devolution of Income Tax rates, thresholds
and certain benefits are matters of no concern to the nations of the UK and
that their economies are sealed. Although the block grant would be changed to
match any decisions on taxation by the Scottish Parliament, this creates a
situation of the worst of both worlds where Scotland can vary tax at the rest
of the UK’s expense and use the revenue for some different priorities to some
degree-but one which will always be insufficient for the separatists, but the
Block Grant/Barnatt situation remains. National Insurance, Corporation Tax and
the majority of the VAT raised in Scotland will not be devolved. The Scottish
Government will have complete power over services such as health and
education-those which determine how people vote, but not over all the money
required to run public services, a proportion which will still come from the UK
budget after great expectations have been raised in the referendum. At the same
time, devolution means that other parts of the UK (especially England) are
contributing towards services over which they have no influence.
Crown property in Scotland and revenue is to be
devolved ownership of Crown property, suggesting an independent country.
Devolution of control of onshore minerals is not going to satisfy the SNP,
which covets the whole of the North Sea oil resource. In any case, onshore
minerals in the rest of the country contributes to the UK budget, while those
in Scotland only to its budget at the same time as the Block Grant and Barnatt
Formula remain. The idea that the proposals will enhance mutual co-operation
and partnership is wishful thinking. That they “will not cause detriment to any
part of the UK as a whole nor to any of its constituent parts”[9] is
more reminiscent of the conclusions of a party political manifesto rather than
a believable, certifiably unbiased and rigorous public report. The ability to
levy Income Tax is the prerogative either of a nation state or a component of a
federal state. The statement under the heading “Permanence of the Scottish
Parliament” that “UK legislation will ensure that the Scottish Parliament and
Scottish Government are permanent institutions”[10]
is either meaningless under the convention that no parliament can bind its
successors, or suggests that the Commission believes Britain already has a
federal constitution.
Paragraph 7 of the UK Governmental Analysis for the
Smith Commission[11]
is worth quoting in full-
“To be successful for both Scotland and the
rest of the UK, devolution must enable Scotland to have the best of both worlds.[12] This
means ensuring that Scotland continues to benefit from the advantages of
remaining in the union, while building on and enhancing the existing benefits
of devolution. Devolution allows decisions to be made which reflect Scottish
circumstances in key areas, bringing government closer to the people of
Scotland. At the same time, it should sustain those core elements of the union
that are key to the collective prosperity of all the nations within the UK. The
most important are those that underpin an effective currency union, with a
strong, independent, central bank and financial stability across the whole UK.
This includes a credible UK-wide fiscal policy-which enables all nations and
regions of the UK to pool financial resources, manage financial risks and
borrow as a single and credible participant in international-a banking union;
and the free movement of goods and people.”
In
other words, of the United Kingdom, only a customs union is to be left.
The effect of tax and other incentive competition will be particularly
felt in the North-east, even if the Barnatt Formula is modified. At the same
time as the Government wants to close the gap between parts of Britain and
within England, it will be obliged to give extra aid to areas such as the
North-east because of the additional competitive advantage Scotland will
receive. More powers for Scotland also revives the question of regional
government, comprehensively rejected by the North-east previously. Given that
there are no natural regional boundaries or identities in England, either
artificial ones would need to be created, or powers devolved to local
authorities on an ad hoc basis as proposed. To balance the advantages given to
Scotland these would need to be considerable-in effect creating federalism by
stealth.[13]
The suggestion that these should include primary legislative powers is tucked
into the ‘Implementation Issues’ section with no supporting information or
context, and buried among proposals for all tiers of local government. Primary
legislative powers, once gained in one part of the country will inevitably be
seized on in others, rather than risk being ‘left behind.’ Nor is there any
consideration in the document of the effect on the Westminster Parliament. Federalism
would be the logical result. England dominates with 85% of the UK’s population,
so creation of an English Parliament is impossible. Thus, artificial regions
would have to be created.
Finance-the
necessity of UK-wide accountability The
paper implies that the issue of MP’s voting rights is the most serious kind of injustice,
which needs to be rectified by some kind of EVEL. However, as previously noted,
it is the disparity in financial contributions which constitutes the most
serious imbalance at present (which could be solved via the Barnatt Formula),
with this situation set to worsen with extra powers for Scotland. EVEL does not
address the financial injustice to England. It is also based upon ignoring past
constitutional practice and involves a fundamental misunderstanding of how the
UK-wide financial settlement works. Since the block grant funds a major part of
Scottish spending, and would do even if all income tax is devolved, there are
no specifically ‘English’ domestic matters involving public expenditure. If
spending is reduced in England, it has a knock-on effect elsewhere in the UK
and therefore MP’s from all its constituent parts must be able to vote. The 1973
Royal Commission on the
Constitution summarised the situation as-‘Any issue in
Westminster involving expenditure of public money is of concern to all parts of
the United Kingdom since it may directly affect the level of taxation and
indirectly influence the level of a region’s own expenditure.’[14]
Necessary
effects of EVEL
After a General Election, the situation under EVEL could arise where a
government with an overall UK majority (most likely Labour), but without Welsh,
Scottish and N. Ireland MP’s voting on issues affecting England, could not implement
policies on ‘English’ issues. If English MP’s were to be organised in a Grand
Committee (effectively an English Parliament) then an opposition party with a
majority there (likely Conservative overall or Conservative dominated/led)
could block a large amount of the government’s programme-“bifurcated government
would become deadlocked government.”[15]
It would also inevitably not stop at blocking measures it deemed against
England’s interest but desire to propose measures for which it did not have the
power to raise supporting revenue. For the English majority party it would be
hard to resist the temptation to whip up a sense of “It’s unfair to England” to
position itself as England’s champion and gain a party political advantage, no
matter arguably how necessary a UK-wide policy might be that it opposes. A
reasonable, non-confrontational party leader would be in danger of being
outflanked by a more determinedly ‘English’ party. He or she would have to
become more confrontational or risk losing votes, or even be replaced from
within their party. It would present the perplexing situation of a deadlocked
parliament; in effect a minority government, when one party could have a
UK-wide majority. Moreover, this would cause most notable difficulty where
Labour wins an overall UK majority, but there is a Conservative majority in
England. Past constitutional crises would seem tame by comparison. The very
real danger exists that this would be resolved by England breaking up the
Union. Thus, attempts to solve the so-called West Lothian Question are actually
the answer to the ‘How to achieve English independence’ question.
Constitutional
‘reform’-no need to rush
There
is no principle that our constitutional arrangements have to be neat and
pristine without any anomalies. Messy compromise is perfectly acceptable.
Indeed, it is almost a British cultural/political marker. It is the ‘Reformists’
who want everything to be neat and tidy, no matter what the potentially harmful
consequences are. Moreover, there must be a strong suspicion that if the position
in parliament was reversed and Conservatives had the 40+ Scottish MP's, there
would not be the same urgency or even demand for 'English votes for English
laws.' From 1922 to 1972 the Conservative Party’s Unionist allies deprived
Labour of a working majority on two occasions, despite having a devolved
parliament in Northern Ireland. There was no suggestion that there was a ‘Belfast
Question,’ let alone that it was of such import and injustice that it needed to
be addressed. Conservative spokesmen insisted that all UK MP’s had an equal
right to vote in the House of Commons.[16] The
document passes over this.
What is the hurry to deal with the consequences of
Scottish devolution when Britain’s constitutional relationship with(in) the EU
is due to be resolved in a period of two years? It is far more sensible to
undertake a comprehensive renegotiation of our position within the EU. If
renegotiation results in the repatriation of substantial powers, or exit from
the EU, powers and respect will have been restored to Westminster. A UK
government committed to national unity could then promote the powerful uniting
theme that we are 'all in it together' in the global race with some credibility
as our national parliament would again be sovereign. It is this sovereign power
which allows politicians to get things done. Crucially, it also gives the
citizen confidence both that an elected representative really can do what the
voter expects, and be held accountable. Moves to culturally rebind the nations
of the UK together could go hand-in-hand with this. If this does not occur,
then there will need to be fundamental review of our constitution, but to
introduce EVEL now would be jumping the gun even without the objection in
principle that it will prove disruptive rather than settle any question.
·
The proposals for strengthening local
democracy and reducing the ‘North/South Divide’ are welcome, but must address
local government finance and the questions whether ‘bigger is better’ plus the
relationship between tiers across the whole current field of local government.
·
Local councils must be able to raise a
very considerable amount of their finance to be properly accountable. Capping
is against the spirit of local democracy and works against the decentralisation
the government is commendably pursuing.
·
The referendum is a recent innovation
which has been consistently misused for party political advantage-locally and
nationally, and for which it is impossible to fairly frame the wording of the
question. It has generally failed as an unbiased element of the British
constitution.
·
The rushed nature of the Smith
Commission’s work and the exclusion of input from the other nations of the UK
is undemocratic, insulting and unacceptable. All of the UK must have a proper
say on these proposals-and not merely in a handpicked ‘constitutional
convention.’
·
By devolving Income Tax the Smith
Commission proposals proposes a feature found in a federal state, although this
country does not have a codified constitution.
·
The Smith Commission proposals alone
will cause disruption to the Union, but without change of the Barnatt Formula
to one based on need they will increase English resentment all the more.
·
Because finance affects all parts of the
UK, all MP’s must be able to vote in the House of Commons. Asymmetry is the
price we pay for the Union due to devolution.
·
EVEL is not is to the answer to the West
Lothian Question but is likely to lead to English separatism.
·
The present rush in constitutional
matters is unnecessary. The most important conclusion is that consideration of
all the devolution proposals should be delayed until the position of the UK in
or out of the EU has been determined.
[1] Henceforth
Implications
[2]
Which by responding to local differences could perform better rather than
willing something from the centre which is not actually delivered
[3]
And we may suspect also involves vested interests
[4]
And how do they differ from the old Metropolitan councils: West Midlands,
Greater Manchester etc?
[5]
Bogdanor 2009, The New Constitution of Britain
[6]
England being a nation, not a country-it is often unclear what ‘country’ means
in the document
[7] A
conversation between Tony Blair & lord Ashdown in which the former said,
“You can’t have Scotland doing something different from the rest of Britain”
(concerning student support) and on being reproached by Ashdown as to why he
had introduced it commented, “I’m beginning to see the defects in this
devolution stuff” adds weight to devolution being a party political trick-which
has backfired spectacularly, Bogdanor op. cit. 110
[8] Bogdanor
op. cit.
[9]
The Smith Commission, 2014: 9
[10]
Ibid. 13
[11]
UK Governmental Analysis for the Smith Commission: 2
[12]
Report’s original bold highlighting
[13] Implications: 16
[14]
Bogdanor 2014, Guardian, ‘Why English Votes for English Laws is a Kneejerk
Absurdity’
[15]
Ibid.
[16]
Ibid.
