The McKay Commission and the “West Lothian Question”

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Lord Irvine, who as the first Lord Chancellor in the Blair Government was instrumental in many of its constitutional reform projects, is reported once to have said that “the best thing to do about the West Lothian question is to stop asking it”. The Coalition Government, however, charged the McKay Commission with addressing precisely that question—and its conclusions can be found in the report it published earlier today.

The question

The West Lothian Question is so-called because it was famously posed (in the context of the debate about Scottish devolution in the 1970s) by the then MP for West Lothian, Tam Dalyell. As originally posed, it concerned the post-devolution role of Scottish MPs (i.e. members of the UK Parliament representing Scottish constituencies) in the enactment of UK legislation not extending to Scotland. Why, asked Dalyell, should such MPs be able to influence legislation affecting (say) only England and Wales, when, following devolution, MPs representing English and Welsh constituencies would have no influence over legislation relating to matters devolved to Scotland? The absence of reciprocity in such arrangements strikes many as anomalous at best, fundamentally unfair at worst.

Given that devolution now extends to Wales and Northern Ireland as well as Scotland, the West Lothian Question can be posed in broader terms. The McKay Commission thus describes the issue by reference to the possibility that

MPs 
from outside England could help determine laws that apply in England, while MPs from England would have no reciprocal influence on laws outside England in policy fields for which the devolved institutions would now be responsible.

The McKay Commission’s guiding principle

The key issue, then, is reciprocity—or lack thereof. The Commission accepts that there is an issue that needs to be resolved—and that Irvine’s proposed approach is no longer (if it ever was) an acceptable response. The guiding principle, set out and referred to repeatedly in its report, is that:

Decisions at the United Kingdom level having a separate and distinct effect for a component part of the United Kingdom should normally be taken only with the consent of a majority of the elected representatives for that part of the United Kingdom.

Leaving to one side the obvious questions begged by the “separate and distinct” formulation, it is clear from this statement of principle that the Commission is opposed to the creation of an English legislature. And indeed there are few who support so radical an institutional development. But the Commission also opposes the implementation of its guiding principle by reference to the notion of “English votes for English laws”. It therefore rejects the suggestion, made by many, that only MPs representing English constituencies should be allowed to vote on laws affecting only England (or only MPs representing English and Welsh constituencies on laws affecting only England and Wales).

The Commission’s reasons for rejecting this option are largely pragmatic: it is feared that different “classes” of MPs would be created (some of whom would end up with remarkably little to do), and that the possibility of “deadlock” would arise. This is a reference to what Brigid Hadfield, “Devolution, Westminster and the English Question” [2005] Public Law 286, refers to as the “problem of the shifting majority”—i.e. the possibility that a Government might enjoy a majority in Parliament as a whole, but not amongst English constituencies. This is certainly a problem that would, in some Parliaments, eventuate. Whether it is a reason for rejecting the proposal that only MPs representing relevant constituencies should be entitled to vote is another matter.

The McKay Commission’s preferred approach

Reduced to its essentials, the McKay Commission’s preferred approach consists of two (complementary) strands.

First, there should be parliamentary mechanisms for securing scrutiny of legislation that affects England (or England and Wales) in a “separate and distinct” way by MPs representing English (or English and Welsh) constituencies. The Commission is hesitant, however, on what precisely those mechanisms should be. It identifies several possibilities, including consideration of relevant Bills by a Grand Committee of MPs representing relevant constituencies and committal of relevant Bills to specially-constituted Public Bill Committees. Leaving to one side the technicalities of parliamentary procedure, the overall aim of this aspect of the Commission’s proposals is to subject “separate and distinct” Bills to peculiarly English (or English and Welsh) scrutiny, with a view to determining the acceptability of such Bills to the cohort of relevant MPs.

Second, there should be political—but no absolute—obstacles to the enactment of “separate but distinct” Bills against the wishes of the majority of MPs representing English (or English and Welsh) constituencies:

[A]fter due provision has been made for the views of England (or England-and-Wales) to be heard and taken into account, the UK majority should prevail, not least in order to retain the UK Government’s accountability at election time for decision-making during its time in office.

The Commission thus rejects a “double-lock” procedure, whereby a majority both of all MPs and of MPs representing English (or English and Welsh) constituencies would be required. Instead, it favours a “double-count” procedure:

The balance of the votes from England (or England-and-Wales) would be announced as well as – though probably slightly later than – the result of the overall vote. In the double-count, the determining majority would be that in the overall vote, as has always been the case. But if a government was seen to have failed to attract the support of a majority of MPs from England (or England-and-Wales) for business affecting those interests, it would be likely to sustain severe political damage.

In this way, attention would be drawn systematically to situations in which a “separate and distinct” Bill failed to reflect the wishes of MPs representing English (or English and Welsh) constituencies—with the intention that political pressure would thereby be exerted upon the Government. But neither law nor parliamentary procedure would preclude the enactment of the Bill in such circumstances.

Assessment

Is this a sensible way of proceeding? Looked at in one way, the McKay Commission’s proposals may seem rather disappointing: the nettle has arguably not been firmly grasped. In particular, the detail of the proposals may be taken to be out of line with the spirit of the guiding principle. If the majority of MPs representing the relevant part of the UK should consent to laws affecting that part of the country in a “separate and distinct” way, why should it still be possible for such laws to be enacted against the wishes of a majority of such MPs? Viewed thus, the Commission ought to have had the courage of its convictions by advocating proposals that would have given effect more concretely to guiding principle it persuasively advocated.

But such criticism of the Commission’s conclusions would reflect an inadequately nuanced  grasp of how the constitution works. It is clear beyond doubt that no rational person designing a new constitution from scratch would build into it either the West Lothian issue or the Commission’s solution to it. But we are not, of course, starting from scratch. Devolution is bolted onto an existing constitutional structure that does not presuppose its existence: and the West Lothian Question is an artifact of that broader phenomenon. A consequence of this is that once one begins to pick at the constitution—e.g. by attempting to resolve something like the West Lothian Question—one finds that other aspects of the constitutional fabric start to unravel. As such, any solution must be pragmatically workable—not just (or even) conceptually elegant.

There are many anomalies in the British constitution that we learn to live with, many of which are finessed through the medium of constitutional convention (that is, accumulated tradition and concretized practice). The requirement of Royal Assent to Bills is a case in point: this apparent affront to democracy is rendered relatively unobjectionable by means of a long-standing convention that requires the granting of such Assent. The same may well happen in the present context, as the McKay Commission itself recognizes. The political difficulties likely to attend the enactment of legislation that fails the “double-count” mean that it will be rare—perhaps unheard of—for Bills to be pushed through in such circumstances. And that practice, together with the values underpinning it, are likely to harden into a constitutional convention in short order (as with the Sewel convention protecting the integrity of devolution settlements against unwanted interference by Westminster).

It may well be, therefore, that the effect of the Commission’s proposals, if implemented, will not fall far short of a requirement that “separate and distinct” Bills, if they are to be enacted, be supported by a majority of English (or English and Welsh) MPs. The capacity of MPs from other parts of the country to facilitate the enactment of legislation against the wishes of the majority of English (or English and Welsh) MPs might therefore turn out to be as notional as the monarch’s capacity to veto Bills by withholding Assent. That may not be a neat or elegant solution—but it reflects pragmatic form of constitutionalism that characterises the British approach to such matters. Hard edges are rarely squared off: rather, a blind-eye is turned and a workaround identified. Whether such an approach is desirable, or even acceptable, is a matter of opinion. Its greatest strength—or its greatest weakness—is that it enables the constitution to be operated in a manner that conforms to contemporary expectations without disturbing the constitution’s (increasingly thin) veneer of historical continuity. As such, the recommendations of the McKay Commission are of a piece with how constitutionalism is generally done in the UK, make do and mend, as opposed to fundamental institutional reform, being the standard modus operandi.

For more detailed discussion of the McKay Commission’s report, see my post on the UK Constitutional Law Group Blog.

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