The Greater West Lothian Question

Devolution in the United Kingdom is a mess.

With its beginnings in the Irish Home Rule movement in the second half of the nineteenth century, and local resentment at ‘rule from London’ having no doubt been felt for much longer, devolution is hardly recent history. But it is changing. In the twenty-first century the resentment is transferring from the ‘subject’ countries to England as the process of undoing the knot leads to inconsistent arrangements between the components of the UK and to an increasing sense, not just in Scotland, of being ruled in part from elsewhere and denied the independence granted to the others.

The situation – it is not a problem because the solution is obvious, lacking merely government will to tackle it – has been allowed to develop in which matters that one might term national, or UK-wide, such as foreign policy, the currency or succession to the Crown, are rightly debated and decided by the 650 members of the UK parliament in London, while ‘local’ or devolved matters, confusingly a different set for each of the other three countries, are dealt with in the other three capitals but those same matters as they affect England are handled in London and voted on by the same 650 members from all parts of the United Kingdom, with the possibility of England MPs being outvoted by the contributions from the other countries. There is no government obfuscation that can hide the fact that England does not have the same control over its local affairs that Scotland, Wales and Northern Ireland have over theirs.

Looking back, it is clear England has also long been unfairly treated in terms of representation over UK-wide issues, for the deciding of which one can surely only argue that the four parts of the nation should be represented in proportion to their electorates. In 1964, at the end of the ‘thirteen years of Tory misrule’, the Conservative parliament had, for reasons exhaustively documented elsewhere, been obliged to run its full five year course and the election aroused unusual interest and speculation. I have a book published at the time, The Pan Guide to the General Election, that explained to the uninitiated and the many people voting for the first time how it was all going to work. Under the heading of the electorate and the constituencies it contained the remarkable statement that the ‘allocation [of seats] gives more than their proportionate share of seats to Scotland and Wales, presumably as a sop to their national susceptibilities’. Why the English would not have national susceptibilities and why only those of the Scots and Welsh should be indulged were not explained. Conversely the fact that Northern Ireland, presumably with its own national susceptibilities, had less than its share ‘because its domestic affairs are dealt with by the Northern Ireland Parliament at Stormont’ was accepted equally unquestioningly.

Based on an even allocation of the then 635 seats in proportion to each country’s share of the total electorate the over-allocations were about 12 seats out of 71 for Scotland and four out of 36 for Wales, with corresponding under-allocations of about 12 seats for England and four for Northern Ireland.

There was very little change in this distribution until the 1983 election, by which time Northern Ireland, then under direct rule, had negotiated an increase from 12 seats to 17 in a deal to back up Jim Callaghan’s minority Labour government and the total number of seats had increased to 650. Northern Ireland’s share was now within one seat of the theoretical number but with small increases for Scotland and Wales England’s deficit had grown to eighteen. Small increases in the membership of the House of Commons continued, reaching a peak of 659 members at the 1997 and 2001 elections, by when England was 20 seats short of an equitable share and Scotland and Wales were ‘up’ by thirteen and seven.

By 2005 devolution had brought about the Scottish Parliament and the Welsh Assembly. As with Northern Ireland in 1964 Scotland was apparently now considered in less need of representation at Westminster and its allocation was reduced from 72 seats to 59, with a matching reduction of 13 members in the size of the Commons. Despite this Scotland was still over-represented, though England’s deficit was reduced to about twelve. Perversely the allocation for Wales was not changed and with other small adjustments and the effect of different rates of population growth in each country (something that will ensure that even a totally fair allocation will not remain so indefinitely) the situation in 2010 was: England ‘down’ 13, Scotland ‘up’ 4, Wales ‘up’ 8, Northern Ireland ‘up’ one.

The first change that is needed, which we might call fair shares at Westminster, is straightforward and indeed was at one point close to being achieved. The sixth periodic review of Westminster constituencies, which began in 2011, was required first to keep to exactly 600 constituencies and secondly to keep the electorate of each constituency within 5% of the UK average. This is a difficult balance and though it would have required a nearly complete redrawing of the electoral map it would have ensured a sharing of seats between the parts of the UK closely matching their share of the total electorate. It was defeated by petty party politics and squabbling within the coalition. The Liberal Democrats, sulking because their proposals for Lords reform had come to nothing, withdrew support for the review’s recommendations and the four boundary commissions stopped work without producing their final reports. The review has been delayed until at least 2018. This means the next government will be three years into its term before negotiations resume, the boundary commissions will need at least to revise the work done already and the likelihood of proposals that are radical by Westminster standards being passed will be small, as well of course as being dependent on who is in power.

However it is more the legislative effects of devolution that are causing resentment in England. To appreciate how this mess has developed it helps to look at some history.

Devolution in Northern Ireland goes back to the Government of Ireland Act of 1920. This extraordinary piece of legislation (in fairness it was trying to deal with a very intractable problem) provided for the Lord Lieutenant (a long-standing post) to preside in the name of the Crown over separate parliaments for ‘Southern Ireland’ and ‘Northern Ireland’ (I simplify). The two states were to be self-governing in most matters with a short list of areas of legislation reserved to the UK parliament in Westminster: principally succession to the Crown, defence, foreign affairs, international trade, and currency.

The Act never had a chance. A war of independence was going on at the time and neither part of Ireland really wanted the arrangement. The war ended with the Anglo-Irish Treaty of December 1921, which provided for the Irish Free State, this coming formally into being with a Royal Proclamation on 6 December 1922 that brought into effect the Irish Free State Constitution Act after the Irish Constitution had been adopted, quite independently, by the Dáil in October (again I simplify).

The arrangement as originally envisaged lasted barely two days, for the Act made provision for Northern Ireland to opt out within a month, which it did the next day. The Irish Free State continued as a dominion, if a less than enthusiastic one, of the British Empire until a new constitution was approved by referendum in 1937, leading effectively to full independence though with the final tie being severed only in 1949.

Northern Ireland, having split not just Ireland into two parts but also its ancient province of Ulster into the six counties in which its Protestant majority was strongest, continued with the arrangement provided in the 1920 Act, giving it authority over almost all its affairs. It had greater autonomy than Scotland has today and this lasted until direct rule was imposed in 1972.

The current Northern Ireland Assembly dates from the 1998 Good Friday Agreement. To replace the two tiers of the earlier arrangement, reserved matters and transferred matters, there are now excepted matters (permanently kept with the UK parliament), reserved matters that may be dealt with by the Assembly subject to central government agreement (these include firearms and explosives) and transferred matters, being anything not in the first two lists. The excepted matters are very similar to the original reserved list, with a few quaint additions such as outer space and activities in Antarctica. Northern Ireland does not have tax-raising powers and in terms of independence has so far no ambition among the majority of its population to separate from the United Kingdom.

Scotland is different, both in history, ambition and its effect on English politics. Unlike Wales and Ireland Scotland was never conquered by England but joined the union of its own free will, some hundred years after the union of the crowns and now is set to decide whether it wants to reverse that. One could argue that the desire to revert to an independent state was never abandoned for when the Act of Union was passed in 1707 the Scottish parliament was not disbanded but merely adjourned and there have been elements of dissatisfaction ever since. A Scottish Home Rule Association was formed in 1886 and a Home Rule Bill achieved its second reading in 1913. Those who favoured preservation of the union were not impressed at the time by either the Scottish or Irish ambitions, though sometimes with different interpretations of their motives. An article in the Spectator of 7 June 1913 presented the Irish case as a ‘demand for the establishment of an anti-English nation’ and the Scottish one as ‘tentative proposals for some form of local self-government’.

After some support from Edward Heath, a Royal Commission that took four years to report, in favour, and a White Paper that went as far as proposing the powers that would be devolved, devolution eventually came about through two referendums, both limited to the Scottish electorate. The Scotland Act of 1978 was passed, requiring a referendum to confirm the agreement of the Scottish electorate, but a late amendment imposed the notorious 40% condition which specified that a simple majority of those voting would not be enough unless that majority amounted also to 40% of the electorate. On a turnout of less than 64% the threshold to satisfy the Act was nearly 63%, well above the 51.6% achieved. Perversely it was this attempt to bring about devolution that led to the defeat of Callaghan’s government as the Scottish National Party reacted to what they saw as a betrayal by putting down a motion of no confidence that the Conservatives, opposed to devolution, were happy to take advantage of, bringing Margaret Thatcher to power. There the matter stayed for eighteen years.

In 1997 the new Labour government held another referendum, this time pre-legislative, in which, on a slightly lower turnout, over 74% voted in favour, enough to satisfy the 40% threshold had it been in place. A second question approved the proposal for tax-varying powers by a smaller majority.

Scotland has only reserved and devolved powers but it does have tax raising powers, not so far used. It is also the origin of the West Lothian question. Like Northern Ireland but unlike Wales the Scottish parliament has authority over anything not specifically reserved to Westminster. This presumably explains some of the apparent gaps in the table below, it being unnecessary, for example, for ancient monuments to be listed as an area Scotland can deal with as it is not on the reserved list.

Wales has been treated in legal terms as part of England from the sixteenth century and did not get its own secretary of state until 1964. A proposal for a Welsh assembly in parallel with that for Scotland was heavily defeated in a referendum in 1979. In 1997 a second referendum, corresponding to that for Scotland, was passed and the National Assembly for Wales was created as an executive body. It was not until the passing of the Government of Wales Act 2006 that legislative powers were granted and the devolved structure came to mirror more closely that in Scotland. Further proposals are in the pipeline to bring in tax raising powers and it seems that after a slower start Wales is moving towards greater independence though with as yet no serious demands for secession. It is only with the prospect of further devolution involving tax raising powers that the Welsh have been warned that a likely consequence would be a reduction in their representation at Westminster.

The table below shows the approximate lists of what has been devolved, derived from government websites on the subject. I make no claim that it is precise or complete or that a term used in one column has the same legal meaning as that term in another column. This could only be determined through careful scrutiny of the various acts, probably followed by copious legal interpretation.

Wales Assembly	Scotland Parliament	N Ireland Assembly
20 ‘subjects’ below are areas of devolved policy responsibility in which the Assembly can legislate. Anything not devolved is reserved.	Reserved powers with Westminster. All others devolved. Can vary income tax by 3p in the pound. Borrowing powers to come in 2016. Reserved include: social security, equal opportunities (see NI), abortion, genetics, broadcasting.	Originally specified by exception. All powers devolved except eg: succession to the crown, honours, armed forces, central taxes, postal services. Current: excepted matters (permanently with Westminster) and reserved, (may be transferred later). Rest are transferred. Assembly has borrowing powers.
Agriculture, fisheries, forestry and rural development	Agriculture, forestry and fisheries	Agriculture
Ancient monuments and historic buildings
Culture		Culture
Economic development	Economic development and internal transport	Economic development
Education and training	Education and training	Education, employment and skills
Environment	Environment	Environmental issues, including planning
		Equal opportunities
Fire and rescue services and promotion of fire safety
Food
Health and health services	Health and social services	Health and social services
Highways and transport		Transport
Housing	Housing	Housing
	Justice and policing (law and order)	Justice and policing
Local government	Local government	Local government
National Assembly for Wales		Northern Ireland Civil Service
Public administration		Pensions and child support
Social welfare		Social security
Sport and recreation	Sport and heritage and the arts	Sport
Tourism	Tourism
Town and country planning		Planning
Water and flood defence
Welsh language

Approximate distribution of powers to devolved parliament/assemblies.

The original West Lothian question was posed by Tam Dalyell, the member for that constituency, during the debate on the 1978 Scotland Act though it was Enoch Powell who gave it its name. Dalyell, a true constituency MP and anti-devolutionist, considered himself elected to represent the people of West Lothian at Westminster and could not accept the idea that if the Scottish parliament came about these duties would be split. As his seat was in Scotland he saw the question the other way around from its usual presentation: he could vote on matters affecting, for example West Bromwich but not West Lothian. ‘For how long’ he asked ‘will English constituencies and English Honourable members tolerate ... at least 119 Honourable Members from Scotland, Wales and Northern Ireland exercising an important, and probably often decisive, effect on English politics while they themselves have no say in the same matters in Scotland, Wales and Northern Ireland?’ This was a strange way of looking at it. It is doubtful if the actions of a properly constituted devolved parliament over its local affairs has ever troubled most England MPs. If it has it can only have increased their concerns over being unable to stop non-England members interfering in theirs.

I think Dalyell was concerned that his role as an MP would be diminished. If he wanted to be his constituents’ spokesman on devolved matters he would have to stand for the devolved parliament; if he wanted to continue at Westminster he could represent them only on national issues and by inference would not be happy voting on devolved matters as they affected England. In this he was right. He was also right, along with others, in foreseeing a ratchet effect under which devolution of some powers would lead inevitably to demands for more and eventually to a wish for independence. Powell, utterly opposed to devolution in any form, was strongly of the view, perhaps influenced by his particular position at the time as the Ulster Unionist member for a Northern Ireland constituency, that partial devolution was illogical and could logically happen (it was always logic with Powell) only as part of a federal parliament.

In action devolution has worked out very much as predicted: the ratchet effect is working and Scotland is to have an independence referendum. There have been Commons votes in which measures affecting only England have been passed that have needed the support of Scottish or Scottish and Welsh members to overcome rebellions by English MPs, though whether those members would have dared rebel had the non-English members been barred from voting can only be guessed at. We have also had two prime ministers born and educated in Scotland, one of them sitting for a Scottish seat, and at one time a disproportionate number of cabinet ministers from Scottish seats.

An example from the current coalition parliament shows at the least that non-English members are quite prepared to vote on English issues. The Education Act of 2011 for England and Wales passed its second reading against the votes of 230 Labour MPs only 217 of whom at most could have represented English or Welsh seats. It was also opposed by eleven votes from Northern Ireland and supported by at least five Liberal Democrats from Scotland. The third reading was less well attended but still featured nine Liberal Democrat votes in favour from Scotland and three votes in favour and one against from Northern Ireland. The Scottish National Party did not vote on either occasion and there is some evidence that it generally abstains on such matters, perhaps in a tacit acknowledgement of the validity of the West Lothian question.

The argument against doing anything to solve the question is usually twofold: that many bills affect, if only in part, countries other than England  or ‘England-and-Wales’, and that the financial provisions of even England-only bills often have ramifications across the rest of the UK. The first objection can hardly be serious. Parliament is full of lawyers (on reflection maybe this is the problem) who can surely separate the different areas of applicability into different bills. The second has more validity and deserves open minded discussion but can hardly be insoluble and is not a reason for doing nothing. It may be that the debate about a federal state should be reopened and given public discussion. Would Scotland prefer being a federal unit within the United Kingdom to full independence? Or would it prefer, as has been suggested, to join the Nordic Council or some similar body for the countries of the once United Kingdom? The only certainty, now that the result is likely to be close, is that the union will never be the same again whichever way the vote goes. Win or lose, Salmond has won.

At first I found the back to front arrangement for the referendum extraordinary. For the Scots are being asked to vote on the principle of independence before they know what devil there will be in the detail. However this now seems to me to be entirely proper. The Scots will vote with their hearts, from first principles, an opportunity we never had at the time of joining the ‘Common Market’ and over which we were deliberately deceived, as the Scots are being deceived now, when a referendum was belatedly granted. If Scotland votes yes we will know they truly want it, risks and all, and must respect their decision. It may well be the rest of the UK – and I cannot see why we cannot continue to be the UK of England, Wales and Northern Ireland – that will have the greater problems. The Conservatives will be humiliated and discredited, Labour and the LibDems will lose a significant part of their Westminster representation, Wales could be catapulted into a degree of self-government it is not yet ready for and Northern Ireland, whose original leaders wanted to be ruled entirely from Westminster, could be out on a limb nursing the most fragile economy of the union.

Deceit, uneven representation, outside interference, potentially fundamental change: the resentment and confusion is growing and I haven’t even mentioned the Barnett formula which allows Scotland to abolish tuition fees and Wales to remove prescription charges, apparently without adverse effects in other areas. When will our government put it right? The 2010 Conservative party manifesto promised “a Conservative government will introduce new rules so that legislation referring specifically to England, or to England and Wales, cannot be enacted without the consent of MPs representing constituencies of those countries”. This was not nearly enough, yet not even this much has been delivered and the need will soon be greater than ever. Could this be down to their coalition partners who, like Labour, have a substantial proportion of their members in Scottish seats?

We are the people of England and we have not spoken yet.  G K Chesterton