Devolution in the round: Can Britain continue to muddle through?

September's no vote in Scotland kept the United Kingdom intact, but raised once again the vexed question of Britain's ad hoc constitutional settlement. As the clamour for devolution reform grows, Alan Trench examines the debate across the UK.


 

By 8am Friday 19 September, with the clear ‘No’ vote in the Scottish independence referendum, we knew two things. One was that there would still be a United Kingdom, rather than Scotland becoming an independent state. The second was that the UK had entered a new era of what – to borrow a Canadian term – can be called ‘constitutional megapolitics’. For the foreseeable future, UK politics will be dominated by constitutional issues, with devolution and territorial questions at the top of the list, along with the longstanding issue of the UK's relationship with the European Union. Lurking somewhat in the background is a UK constitutional convention, the idea of a federal UK, and – as an inevitable part of that – reform of the House of Lords.

This article will look briefly at key issues now emerging in relation to Scotland, before considering the English question or questions, the somewhat-overlooked problems relating to Wales and Northern Ireland, before turning to the question of how the centre of the UK relates to the various parts.

Scotland: Devo More, not Devo Max

It is arguable how important the promises of ‘further devolution’ for Scotland were to the eventual outcome. But promises of enhanced devolution were made in resounding fashion toward the end of the campaign. Just days before polls opened, the three UK party leaders issued ‘The Vow’, that Scotland would get more powers if it voted no, on the front page of the Daily Record. Those promises included ‘extensive’ further devolution, and preservation of the Barnett formula with its generosity to Scotland. Since the referendum, and despite divisions between the parties over this promise, there has been cross-party agreement that ‘The Vow’ will be delivered, with the immediate means of delivery being the Smith Commission.

The Smith Commission is chaired by Lord Smith of Kelvin, a distinguished businessman with a record of public service but no party-political associations, and has membership from the main parties in the Scottish Parliament – the three party-signatories of ‘The Vow’ in Labour, the Conservatives and the Liberal Democrats, plus the Scottish National Party and the Scottish Greens. Its remit is to come up with an agreed approach to what ‘more devolution’ means, in the form of general ‘heads of agreement.’ Those are due by St Andrew's Day (30 November 2014), with legislative clauses reflecting those provisions due by Burns Night (25 January 2015). The timetable is tight. The legislative clauses will form the basis for manifesto commitments by the parties in the 2015 UK General Election.

The task is complicated by the different approach of the various parties, as well as the shortness of time. There is substantial overlap between the schemes of the pro-Union parties, all of which established party commissions to consider proposals for further devolution. All schemes envisage substantial (Labour) or outright (Conservatives and Lib Dems) devolution of personal income tax. The three parties now also propose devolution of some aspects of welfare – Housing Benefit, Attendance Allowance and operation of the Work Programme being top of the list, followed by a general power for the devolved governments to supplement UK-level welfare benefits. There is some scope for further discussion around these propositions – such as devolution of additional functions like administration of occupational health and safety (Labour), or assigning part of VAT revenues generated in Scotland to the Scottish Government (Conservatives, also now supported by Gordon Brown). Many of these ideas drew on work done by the Institute for Public Policy Research's ‘devo more’ project, in which the author has been heavily involved, along with Guy Lodge of IPPR.

The SNP, however, has sought to revive its plans for the very extensive transfer of functions known as ‘devo max.’ This would mean the devolution of all functions other than defence, foreign affairs, currency and the macro-economy, including all powers to set and collect taxes. None of the pro-union parties in the referendum campaign offered ‘devo max’ (though a few marginal figures like George Galloway did use the term). Their pledges reflected, and were wholly consistent with, established party policies as recommended by the parties’ commissions, with the exception of the Lib Dems, who adopted some of the devo more ideas about welfare. Ironically, the Labour proposals first derided as ‘devo nano’ for their limited scope have now become ‘devo max’ in the conception of many.

Progress to delivering further devolution will not be straightforward. There are differences among the three pro-UK parties’ schemes, and resolving those is made more difficult by poor relations between Labour and Conservatives. Moreover, SNP arguments about its form of ‘devo max’ are a source of further distraction, since they go far beyond the Commission's remit of a form of devolution consistent with the Union. It seems the SNP wishes to play to the gallery rather than contribute constructively to the Smith Commission process.

English Questions

The unexpected dimension of post-referendum constitutional megapolitics, is the prominence given to the English question. There has been clear evidence for some years of the growing discontent of the English with the devolution settlement, specifically the voting rights of non-English MPs over matters that are devolved elsewhere being at the top of the list. For Labour, the threat to a possible slim parliamentary majority has meant it has tried to avoid the issue, with the most substantial response being support for regional government within England. Despite the demise of the option following the 2004 referendum in the North East, and the Coalition's dismantling of most of the administrative apparatus of English regional government on taking office, Labour still seems to hanker after a regional approach.

The Conservatives have long been concerned about the anomaly of the ‘West Lothian question’, and proffered ‘English votes for English laws’ (EVEL for short) as the solution in successive UK general election manifestos. In office, they have been hampered in delivering this by the Liberal Democrats, and got no further than establishing the McKay Commission, which recommended a ‘weak’ version of EVEL, with voting on provisions that relate only to England being limited at Commons Committee and Report stages to English MPs through an ‘English standing committee’. This version would probably be workable, and create a bargaining dynamic with a possible Labour government with a weak mandate in England. Other versions, limiting voting at all stages to English MPs, would raise serious questions over whether a Labour government could in fact govern at all. That harder approach has support on the Conservative backbenches, most notably from John Redwood, and appeared to be what Cameron was proposing when he made his statement about moving to implement EVEL on a similar timetable to the Smith Commission on the morning of 19 September, though subsequently the Conservative leadership has rowed back somewhat.

Conservative support for EVEL is not particularly principled. Rather, it reflects the advantages the Conservative Party gains from the first-past-the-post electoral system. In 2010, the Conservatives gained 56 per cent of English seats with just 40 per cent of the vote. (Labour also benefited disproportionately, 36 per cent of seats with 28 per cent of the vote, with the Lib Dems being the big losers.) The Conservatives benefit from that system in the England arena, but not the overall UK one (see Figure 1).

Cameron's move sought to entrench this Conservative advantage, and both strengthen his position with his backbench and steal a march on the United Kingdom Independence Party (UKIP). It also appeared to be a response to Gordon Brown's move to safeguard the Barnett formula (which is unpopular in England) during the referendum campaign. But the price of it was to sour relations with Labour on matters where quiet co-operation between the two parties to deliver further devolution will be vital.

Perhaps the most difficult question is how effective EVEL might be in redressing English constitutional concerns. There is certainly a grievance, which has popular resonance across England – as the annual ‘Future of England’ surveys demonstrate. But there is more to the problems England faces in an unbalanced constitution, and country, than that. Labour and Liberal Democrats have both been keen to talk about strengthening cities and city-regions through forms of further devolution to them, a process already underway in an ad hoc manner through the UK Government's programme of ‘City Deals’. Since symmetrical regionalism has weak roots in popular support, pursuing an agenda focussed on cities and city-regions in tandem with a bottom-up form of EVEL may offer a way of producing an overall settlement that addresses English concerns about both the constitutional anomaly and regional economic powers.

Northern Ireland

The limited attention paid in Britain recently to developments in Northern Ireland should not be mistaken for positive news. There are serious problems with the Northern Ireland settlement. The process led by Richard Haass to address issues of historic injustices, flags, parading and other symbols proved unsuccessful, save in further souring relations between the parties in the Northern Ireland Executive and particularly the Democratic Unionist Party and Sinn Fein. The refusal of Sinn Fein (and the nationalist Social Democratic and Labour Party) to agree to welfare changes driven by the UK Government's welfare reform agenda – needed as welfare is formally a devolved matter, but subject to a principle of ‘parity’ with Great Britain –has worsened that, as well as putting the Northern Ireland budget under serious strain. This has even led to suggestions that welfare be ‘undevolved’, though that would require revision of the 1998 Good Friday Agreement. Calls for devolution of corporation tax – seen by many unionists and nationalists as the much-needed ‘game changer’ for the Northern Ireland economy – have similarly made little progress. Corporation tax devolution would be highly problematic as it would mean a significant cut in public spending, but has still been pursued by the Executive.

Following the Scottish referendum, the Northern Ireland Secretary of State, Theresa Villiers, has made a number of moves. She has announced she will chair talks on the ‘Haass’ agenda herself, with the political weight and resources that a UK Cabinet minister – rather than an impartial expert mediator – can bring to the table. She has also announced that corporation tax devolution will be shelved until there is a functioning and coherent Executive, while the Chancellor has provided a £100 million loan to help address the immediate financial problems of the Executive. A solution to the impasse over welfare reform is now clearly in the interests of both sides, but will require considerable effort to be achieved.

Wales

Wales often gets overlooked in devolution debates, despite raising many of the most interesting questions. The referendum aftermath has seen a wider endorsement of the idea of a ‘constitutional convention’, long espoused by the First Minister, Carwyn Jones, and other figures there. It has also seen the new Secretary of State, Stephen Crabbe, announce the removal of the ‘lockstep’ on the income tax power in the Wales Bill currently before Parliament, an issue which had led to the dismissal of his predecessor after internal disagreements were vented in a very public way.

Wales has continued to be handicapped by a fragmented approach to its devolved constitution: key issues such as electoral arrangements for the National Assembly, the size of the Assembly and the basis of its grant funding were kept off the agenda of the independent commission on devolution for Wales, better known as the Silk Commission. The current Wales bill standing before Westminster partly implements the Silk Commission's part one report and a number of other provisions, while any response to its part two report on further devolution is still pending. When that might see the statute book is an open question. Less open is a referendum on the devolved income tax power; Labour is clear that will not be held until ‘fair funding’ is addressed, which means a revamp of the Barnett formula – something ruled out for (and by) Scotland.


Welsh first minister Carwyn Jones (second right) has called for a constitutional commission to be held in the UK.
 

Can the Centre Hold?

The absence of any overall strategy for ‘the Union’, and any overarching process for achieving it, has been a noticeable feature of the UK since devolution in 1999. Even the shock of the Scottish referendum has done little to change that. Yet how the UK Government can hope to handle the complex issues and processes without such as strategy is increasingly hard to answer. Indeed, its approach to the English question has been both partisan and unstrategic.

As an attempt to find a common, UK-wide, approach, the idea of a ‘constitutional convention’ is gaining ground. A constitutional commission is supported by the Welsh First Minister, the Commons Political and Constitutional Reform Committee, Unlock Democracy and numerous other commentators and interest groups. A convention would offer the opportunity to look at issues in the round, and to engage the wider public with important issues affecting everyone.

But a constitutional convention is not a panacea in the absence of a UK Government strategy. A convention raises huge questions about who takes part, what its remit is, how long its work will take, and what will happen to the outcome, which none of those advocating one have clear answers to. A convention without a purpose is more a way of postponing problems than addressing them, however vital the needs of a more synoptic view and public engagement are.

Likewise, discussions of a ‘federal UK’ stumble when it comes both to the question of England, and what happens at the centre. At the very least, a federal UK would need a restructured upper house to give a voice to its constituent nations and regions. Lords reform is part of the wider agenda, intractable though it has proved to be, whether or not that suits a UK Government's agenda.

Britain has long ‘muddled through’ its constitution-making, but now the problems that approach left unresolved all need to be resolved at once. Clear heads and cool reason are more likely to produce workable outcomes than pursuit of partisan interests or tit-for-tat politics, and the Scottish referendum result has opened these issues up rather than resolving them. A great deal is now at stake.

Alan Trench is a former Professor of Politics at the University of Ulster. He is an expert on devolution and blogs at http://devolutionmatters.wordpress.com/