In search of West Lothian
Constitutional issues have a curious ability to excite those with a particular interest in them to a near frenzy, while leaving the rest of the population at best bemused, at worst somnolent.
One such issue is voting reform, a subject already dealt with in some detail on this site. Another, and one with the potential to put an even more ferocious cat among the pigeons, is the West Lothian question.
Much has been written over the years about it, and a lot of that has had only a nodding acquaintance with actual facts. So, at a risk of sending some to sleep, I want to try to get to grips with what the West Lothian question is, and how, if at all, we should try to answer it. Some of the following posting is taken from articles I have written on my own site over the past few months.
Start by defining the question
It all started in the 1970s when Tam Dalyell, then-MP for the then-constituency of West Lothian in Scotland, formulated his fundamental opposition to the devolution legislation which was at that time going through parliament:
How, asked Dalyell, can it be justified that Scottish MPs have the right to vote on English issues that do not concern their constituents, while English MPs do not have the same right to vote on Scottish issues?
This question has haunted proceedings ever since.
But let’s examine it in more detail. It comes in two parts. Firstly, Scottish MPs having the right to vote on English issues that do not concern their constituents. When did this outrage creep into our constitution? Well, that’s an easy one: the 1707 Act of Union. This gave all UK MPs equal rights over all legislation, whether or not it affected their constituents.
When, then, were English MPs deprived of the right to vote on Scottish issues? Another easy answer. It hasn’t happened. The rights of English MPs to vote on Scottish issues remain now what they always have been. They can vote on any aspect of Scottish legislation.
But what about devolution, I hear you ask? Didn’t that limit English MPs’ rights? Let’s look at the legislation. The 1998 Scotland Act is unequivocal (Section 29(7) if you’re interested): the rights of the Westminster parliament remain completely unaltered by devolution. MPs in London have exactly the same rights as they always had.
What the Scotland Act did was set up a body which, constitutionally, is arguably little more than an elected sub-committee of the Westminster parliament. It votes on Scottish issues only in so far as Westminster tolerates this. It could be sent packing without a by-your-leave today or tomorrow, if Westminster so decided.
At this point, I imagine that some of you West-Lothianites are getting a bit hot under the collar. You will be accusing me of missing the point, and of getting lost in legal niceties while in fact English MPs no longer legislate on devolved issues. Unfortunately, this also is not really true. English MPs legislate on devolved issues with remarkable frequency and alacrity. Since devolution there have been over sixty Sewel motions (the mechanism by which Westminster legislates on devolved issues). Sixty. On average, more than ten in a year- not that much different than the number of actual bills. Perhaps you think that these have been on trivial issues. But, unless you consider the legislation to create a supreme court trivial, or the act that allows gay people to enter civil partnerships, or the reform of gambling legislation, you must concede that Sewel motions have been used, or been proposed for, very serious legislation indeed. Again, legislation on which English MPs are using their unchanged rights to vote on devolved Scottish issues.
So, what’s the fuss about?
Do I think then that the West-Lothianites are simply misguided souls that just need to be shown the error of their ways? Well, not really. It would be idle to deny that the devolution legislation has transformed quite radically the way Scotland is governed. That it has gone relatively smoothly thus far is to a large extent down to the fact that the Executive in Edinburgh and the Government in London are of broadly similar hue. What happens when (or if) the Tories regain power nationally will be quite fascinating.
What I do believe quite strongly, however, is that the West-Lothianites are seriously overstating their case. The way England is governed has changed not one iota. That Scottish MPs should vote on English issues is nothing new – it is one of the fundamental tenets of the way Britain has been governed for 300 years. And it is simply factually incorrect to say that English MPs have been deprived of their right to legislate on Scottish issues. It is true that they do so less frequently than they used to, just as it is true that the number of Scottish MPs at Westminster has been significantly reduced.
New conventions have indeed been set up, and there are some issues (such as Scottish education) on which it would now be politically difficult for Westminster to legislate, but the UK remains the UK, and the Westminster parliament, with all its MPs, remains the sovereign body.
Providing an answer
The Tories’ proposal at the last election was to formally deprive Scottish MPs of the right to vote on English issues. The best adjective for this is bonkers. That it should issue from a party that describes itself as both ‘unionist’ and ‘conservative’ is beyond parody. At a stroke, this measure could make the UK ungovernable.
Say a Labour government were elected with a good UK majority but without a majority in England (as has happened in the past). Under the Tories’ ideas, that government would not be able to implement any of its health, crime, education, etc, proposals, as it would lack the necessary votes. Only Tory proposals could pass. But given that only the government has access to the Civil Service, Parliamentary draughtsmen, etc, this means that none of these areas could be touched. Of course, you could say that this would be a good thing, but it would transform the nature of the way Britain is governed.
If you did want things done, then you would need two separate governments acting in parallel, with two different prime ministers depending on the subject in question (Labour for defence, pensions and welfare payment, Tory for health, education and crime). It would not be a continental-style coalition, but some curious new animal for which I can think of no precedent around the world. Prime Minister’s Questions would be interesting, with the two party leaders having to run from one side of the dispatch box to the other depending on what the subject matter was.
And if you could solve it in parliament, what about executive decisions? Who would be the bona fide health minister, a Labour or Tory politician? Most laws give sweeping powers to the ‘Secretary of State’. The Secretary of State is appointed by the Prime Minister (in turn appointed by the Queen), ie, Labour in my scenario, or would it be Tory, or both or… It just gets too ludicrous once you start going down that path.
Another option would be to set up an English parliament – a huge can of worms in itself, not least because it would require a definitive way of handling both my own homeland, Wales and, wait for it, Northern Ireland.
Or, of course, we could do nothing. Which is my preferred option (another one of my secret conservative tendencies). It is frustrating that Labour ministers seem unable to handle questions on this issue. They should be firm and forthright: Westminster is the parliament that rules all the UK, Westminster MPs have the rights they always had, Westminster is sovereign and must remain so.
I agree that the current post-devolution situation is messy. But one of the hallmarks of the British constitution is its messiness. It is no more messy now that it was in the past.
So let’s celebrate the great British tradition of messiness, and leave West Lothian in peace.
Good post.
And the, ah, Tories suggested this? Whatever could be the reason for that? Oh well, enough with the snark.
Good one. Prof. Bill Miller at Glasgow Uni used to always say that the West Lothian question is always asked by people who don’t want an answer…
Are Sewall Motions actual legislation or are they simply a way that Westminster MP’s can have a vote on an issue of their choice, like early day motions, meaning that they are, effectively, pointless.
The fact is that Scottish MP’s can support and vote for measures which would be unbelievably unpopular in their own constituencies, simply because they know that they will never have to answer to their constituents for their actions. I am thinking here of the vote on top-up fees.
You may be correct that the ‘West Lothian’ question has been overstated, but in it simplest form it remains true. Those voting on some laws for England are not electorally accountable to those affected by their votes. This is not democracy, it is oligarchy.
Good post, 3A. Although if one did want to resolve West Lothian issues neatly, the obvious solution would be to set up English regional parliaments of similar size and power to the Scottish Assembly (it’s a shame that the English regional assemblies proposed recently were so powerless and lame…).
Fred – your last sentence is trivially true and has been the case for as long as we’ve had a parliament. Or do you think MPs representing constituencies outside of Berkshire, London and Essex should have been banned from voting on the Crossrail Bill (one of thousands of possible examples). And Sewell motions do indeed let Westminster make Scottish law, much to the SNP’s chagrin.
The paradox highlighted by Tam Dalyell’s West Lothian question reflects the anomaly in our constitution created by devolution. With what amount to regional parliaments in Scotland, Wales, Northern Ireland (currently dormant) and London, we already have in effect a federal system, but England has no comparable regional institutions and above all there is no proper federal constitution setting out the respective powers of the federal level institutions (the Westminster government and parliament) and the regional institutions. As long as we lack both of these — English regional institutions and a federal constitution setting out federal, regional and joint powers — we are going to continue to encounter anomalies such as that identified in the West Lothian Question, and many others.
Unfortunately there are four huge obstacles blocking the way to progress in remedying either of these deficiencies:
1. British, or at least English, addiction to the concept of the unlimited sovereignty of the Westminster parliament, which will have to be abandoned when we eventually bite the bullet and make Westminster the federal parliament and government with no jurisdiction in subjects assigned exclusively to the regions;
2. The extreme reluctance of many of the English to allow the establishment of regional parliaments and governments, seen as ‘adding an extra layer of bureaucracy’ — and expense;
3. The fact that in the debate on the EU and its powers relative to those of its member states, the word ‘federal’ has become a term of opprobrium, which hinders recognition of our current realities and their implications for further reform; and
4. The widespread hostility to the idea of having a written constitution in a single document, a sine qua non for a properly functioning federation, since clear definition of the distribution of powers and functions is absolutely essential in a functioning federation.
So we are a federation in all but name, and because of our deep reluctance to recognise it, we are trying to run a federation which lacks certain key elements required to make it function properly and in a democratic way. And because of the four obstacles listed above, there is almost no prospect of repairing this defective situation in the foreseeable future, unless a political party emerges which (a) is prepared to exercise brave and far-sighted leadership on these issues, and (b) has a sporting chance of being elected with a working majority and a constitutional reform programme. (Incidentally, PR for elections to the House of Commons would almost certainly rule out any hope of these conditions being satisfied.)
An additional problem over the necessary reforms is our congenital reluctance to look carefully at the political and constitutional arrangements of other western democracies to see what lessons we can learn from them. The successful federations of Australia and Germany, for example — and even, dare I say? the United States — all incorporate excellent models which we could adapt and employ in Britain to great advantage.
Meanwhile we shall no doubt continue to muddle through regardless, probably making a reasonable fist of it in spite of the anomalies and loose ends.
I am also putting the text of this comment on my own blog.
Cheers
Brian
http://www.barder.com/brian/
The only fair soloution to this is for England to have a parliment of its own with the same powers a the Scottish one.
It is not rocket science but common sense.
There would be no need of any more Mps as you would use the current MPs for there own devoled parliments.
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Well, the perception of a problem is almost as important as the actual details nowadays… Yes, English MPs can vote on Scottish matters using Sewel Motions. No, they don’t vote on anything really contentious because it would be politically unfeasible. Could the reverse of the tuition fees vote happen to Scotland because of English MPs voting to extend it to there? Yes. Would it? No. If you don’t think that’s a constitutional problem, wait till it bites back when my team are back in power.
Incidentally, Sewel motions are just a convention arising from the supremacy of Westminster. They aren’t enshrined in law. The Scottish parliament could debate them and strike them down or amend them if they so chose. In practice, because Labour rules the roost both sides of Hadrian’s wall, this has not yet happened to any serious degree, but one could envisage a situation whereby a Tory majority at Westminster, but a Labour (or coalition) majority at Holyrood, could clash.
The main problem which surrounds all so-called solutions to the West Lothian question is quite simply asked by the question, who pays?
The distribution of money paid out from central government to all the British regions has been biased by what is known as the Barnett formula, by which the cash is doled out according to a measure not only of the numbers of people, but also the area lived on by the same people. Because Scotland is sparsely inhabited, they get more of the loot because there is more of Scotland, as it were!
Every time that Parliament is asked to debate this thorny question, the Scots MP’s act like a bunch of sheep being asked which side they would like to be shot from, as the net result of any enquiry would be a re-shuffle of the cash towards England, and what turkey is gonna’ vote for christmas?
Being realistic, it will only be altered when there is a sufficient majority of like-minded English MP’s who are not only ready, but willing to do the dirty deed!
Andrew’s got the point here – although Westminster remains ultimately sovereign, for it to over-ride the delegated authority of the Scottish Parliament would trigger a constitutional crisis. The SNP would be laughing all the way to independence.
That’s not to say there are any obvious, simple answers to the problem. But there is a problem.
I completely agree, but I, too, can see the points of some people about it, thinking about it being unfair – especially those who do not know the facts.
Last year a fundamental Act was passed by Westminster that affected the Scottish Parliament – the Scottish Parliament (Constituencies) Act 2004. This clearly illustrates that the entire devolution settlement is in the hands of Westminster! The way the parliament is composed, the voting systems used, the amount of legislation that it is allowed to pass – all in the hands of Westminster.
It is worth pointing out NO bills passed by Westminster purely affect England. Most are England, Wales or the whole of the UK. Interestingly the overwhelming majority of Northern Ireland legislation is subordinate legislation, rather than primary legislation.
As for the distribution of cash from the Tresury it is an absolute nonsense that the budget is doled out by the Tresury who could give Scotland however much money it wants! It could cut Scotland’s budget tomorrow if it wished! Absolutely patronising. The Barnett Formula has also damaged Scotland’s economy by allowing government to grow at twice the rate of the economy. It isn’t all Scandinavian milk and honey.
“And it is simply factually incorrect to say that English MPs have been deprived of their right to legislate on Scottish issues. It is true that they do so less frequently than they used to, just as it is true that the number of Scottish MPs at Westminster has been significantly reduced.”
Correct me if I’m wrong but we have now moved from the situation where an MP from an English consituency can vote on any legislation passing through Parliament, to the situation where they can only vote if a motion (the Sewell motion) is passed allowing them to vote on it. This is undoubtedly a loss of a right.
Furthermore, according to Wikipedia it is up to the Scottish Executive to pass the devolved legislation back to Westminster under the Sewell motion, so again it’s hard to argue that this doesn’t represent a loss of a right to English MPs.
Also, you are surely not suggesting that the reduction in the number of Scottish MPs which dealt with (and then only in part) the smaller size of Scottish constituencies is in some way a compensation to the English for the changes in the consitutional settlement are you?
The Scottish Executive paper on Sewell motions is here
A further point which should be made, based on my reading of this paper, is that the Sewell convention refers to the right of Westminster to legislate on devolved matters (or matters which are not devolved but that will affect Scotland). It does not refer to the right of individual MPs to vote on devolved matters – the West Lothian question.
Bishop Hill – the Sewell convention is just that – a convention. It is not enshrined in any legislation. The convention is that Westminster will not legislate on devolved issues unless Edinburgh agrees (it does not apply to non-devolved matters that affect Scotland). But if there were ever to be a dispute, the legal position is absolutely clear – Westminster wins (not to say that it wouldn’t be politically interesting…).
I’m not sure I grasp your very last point – what’s the distinction between Westminster legislating on devolved issues and MPs voting on devolved issues?
That’s what the word devolution means – powers are delegated by central government to a local authority. As has been said several times up-thread, the House of Commons is elected from the entire UK and hence has a basic claim to legislate for it. If, to take a counterfactual, it was proposed to declare Scottish independence, whatever settlement that required between Scotland and the rest-UK would have to be legislated in the Commons.
Third Av:
The point I’m trying to make is that an English MP only gets to vote on matters in Scotland if he is part of a majority in Westminster that is willing to force the issue. Previously he would have got to vote on, say, the Education Bill (Scotland). Now he cannot unless the rest of the Westminster parliament feels so strongly about the issue that they are willing to cause a constitutional crisis by overturning the convention.
The Westminster parliament is still, as you note, supreme. English MPs therefore have lost their right as individuals to vote on Scottish legislation.
To put it another way, a right you can only take advantage of with the agreement of a lot of other people isn’t a right at all.
Dear sir,
do you really think we’re going away? Do you think one day you’ll wake up and see us no more? Dream on! YOU people started this, but WE are going to finish it!
Say bye bye! Good riddance as far as i’m concerned.
While we’re on the subject, also see The West Lothian question: Some MPs are more equal than others?
A very interesting website. I plan to access it again when I get home and have more time. There is much I need to look into here.
Nice site and fine content
Who pays?
Scotland’s Oil does and did. As the recently released government report shows, England would have had a 1930’s style depression had it not been allowed access to the oil off Scotland’s coast.
It might be a bitter pill for some English patriots to swallow to admit that, but curtailing Scottish Nationalism in the 1970’s (when it, arguably was at its peak)was what stopped the rest of the UK going down the pan.
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THE WEST LOTHIAN ISSUE.
Dr.John Reid, the M.P. for Aidrie and Defence Minister, voted at Westminster on the Bill to restrict smoking in enclosed public places in England.( He voted for an amendment permitting smoking in certain enclosed places.)The Scottish Parliament had already voted on the issue of smoking in enclosed places and the Airdrie MSP did so.No English M.P. could,or should, have voted in the Edinburgh Parliament on this. Such a situation is plainly inequitable and unfair.There are 41 M.Ps for Scottish Constituencies at Westminster. ( In an Oxford Poll, 93% voted for a complete ban on smoking in public places in the city.This is representative of feeling in England. Why should Dr.Reid be able to use his vote to counter the popular will in England as expressed by M.Ps representing English constituencies ? It is an issue of natural justice. It is also a health issue.
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The issue that irritates me and many other people that I know isn’t simply that Scottish MPs vote on issues that do not affect their constituents. It’s more that they are voting on issues where those issues are disposed differently in a different parliament for their constituents. I believe that this issue is becoming more emotive every month and will be a major issue in the next election, particularly if Labour go in with a scot as PM and with several scots in his cabinet. Ten years ago I would have called myself a Brit. Now I’m more likely to call myself English….