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The West Lothian Question: The McKay Commission's Answer

06/10/2014 12:14 BST | Updated 05/12/2014 10:59 GMT

"For how long will English constituencies and English honourable Members tolerate not just 71 Scots, 36 Welsh and a number of Ulstermen but 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 Ireland?"

Tam Dalyell, then MP for West Lothian, asked this question in a House of Commons debate on 14 November 1977 on a Bill to give devolution to Scotland and continued to ask it in various forms in his unbending opposition to Scottish devolution. That is the West Lothian question.

It has come to the fore again because on the morning after the Scottish referendum (19 September 2014), David Cameron declared:

"The question of English votes for English laws - the so-called West Lothian question - requires a decisive answer."

And he insisted that "this must take place in tandem with, and at the same pace as, the settlement for Scotland", that is, the transfer of additional powers for the Scottish Parliament that the leaders of the Conservative, Labour and Liberal parties at Westminster promised prior to the referendum in order to stave off a majority vote in favour of full independence.

A product of asymmetric devolution

The West Lothian question is a product of asymmetric devolution within the UK, with Scotland, Wales and Northern Ireland having their own devolved legislative bodies (with different powers, to complicate matters further) and England having none. The Westminster Parliament therefore functions in part as an English Parliament and in part as a UK Parliament.

This leads to the anomaly whereby Scottish MPs at Westminster can vote on matters that apply to England alone, while English MPs have no say whatsoever on those Scottish matters that are devolved to the Scottish Parliament. For example, Scottish MPs at Westminster can vote on legislation about the provision of health care and education in England, but English MPs cannot vote on legislation about these matters for Scotland, since they are within the competence of the Scottish Parliament. The same is true for Welsh and Northern Irish MPs.

This anomaly has existed in a mild form since the early 1920s when a parliament was forced upon Northern Ireland, but it has become much more significant since Scotland and Wales were granted devolution in the late 1990s.

Out of a total of 650 Westminster MPs today, Scotland has 59 MPs, Wales 40 and Northern Ireland 18, that is, 117 MPs (18% of the total) represent regions of the UK that have devolved legislatures. At present, 66 of these seats (40 in Scotland and 26 in Wales) are held by the Labour Party and only 9 (1 in Scotland and 8 in Wales) by the Conservative Party.

The present arrangements allow for the possibility that a majority opinion among English MPs about matters affecting England alone could be outvoted by a UK-wide majority of all UK MPs. But it is rare for this to happen. Since 1919, only in the short-lived parliaments of 1964-66 and February-October 1974 has the party or coalition forming the UK government not also enjoyed a majority in England.

Of course, a notional majority may be eliminated by a rebellion against government policy in the ranks of its MPs. This happened to the Blair government in November 2003 on the establishment of "foundation hospitals" in England and in January 2004 on the introduction of tuition fees in England and Wales. On both occasions, a rebellion amongst English Labour MPs meant that the government would have failed to pass the necessary legislation without the support of Scottish Labour MPs, whose constituents were not affected by these measures.

The McKay Commission

The Conservative Party's 2010 election manifesto included a commitment to "address" the West Lothian question, promising to "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". The programme for government of the Conservative coalition with the Liberal Democrats undertook to establish a commission to look into the matter and this was done in January 2012 when a commission was established under the chairmanship of a former Clerk of the House of Commons, Sir William McKay. Its terms of reference were as follows:

"To consider how the House of Commons might deal with legislation which affects only part of the United Kingdom, following the devolution of certain legislative powers to the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales."

The Commission's report was published in March 2013. Normally, one would expect the Government to make a formal response to Parliament on such a report, setting out its views on the Commission's proposals and how the Government proposed to proceed on the matter. But it has never done so despite promising to do so before the end of 2013. Until David Cameron declared on the morning of 19 September 2014 that "the West Lothian question ... requires a decisive answer", one could be forgiven for thinking that the Government had decided to kick the issue into the long grass.

The Government has not said if its "decisive answer" will be based on the Commission's proposals. A strange feature of the subsequent public discussion on the issue is that the Commission's proposals have been almost entirely absent from it.

The McKay Commission's answer

What did the Commission propose? First, that the procedures of the House of Commons should be modified to enshrine the principle that

"decisions at the United Kingdom level with a separate and distinct effect for England ... should normally be taken only with the consent of a majority of MPs for constituencies in England" (paragraph 12).

However, it did not propose that MPs from outside England be banned from voting on legislation affecting England alone. On the contrary, it said:

"MPs from all parts of the UK need to have the opportunity to participate in the adoption of legislation, whatever the limits of its territorial effect. Instead, MPs from England ... should have new or additional ways to assert their interests. But MPs from outside England would then continue to vote on all legislation but with prior knowledge of what the view from England is." (paragraph 15)

The Commission came down in favour of a procedure in which the majority opinion of MPs from England is ascertained, but in which the majority in the House as a whole could overrule the majority from England.

If these proposals were adopted, then it would be very unlikely that MPs from other parts of the UK would vote to overrule a majority from England, but if that happened the legislation would not be passed and the government would have to think again. But, most likely, it would become the rule that Scottish, Welsh and Northern Ireland MPs abstain on decisions affecting England alone. The Scottish Nationalist Party adheres to this rule at the moment (as did Tam Dalyell until he retired from the House of Commons in 2005).

These arrangements proposed are far from ideal. Specifically, they do not allow for circumstances in which English-only legislation has indirect consequences outside England, which raises the question of whether it is reasonable to seek to dissuade MPs from outside England from voting on the legalisation.

A prime example of this arises because of the Barnett Formula, which is used to calculate the block grants given by the Treasury in London to the devolved governments in Scotland, Wales and Northern Ireland. It is based on relative population adjusted annually (not on relative need). Its application means that an increase in expenditure on, for example, health care provided for in legislation for England, leads automatically to an increase of around 10% of that amount to the Scottish block grant.

Federalism?

The West Lothian question is a product of asymmetric devolution and it is impossible to find a perfect answer to it while retaining asymmetric devolution. A solution can only be found in all round devolution with the same powers being given to each devolved unit. This would involve the creation of a separate English Parliament (or a set of Parliaments for regions in England) and the transformation of the UK's system of government into something akin to a federal system with the Westminster becoming the federal parliament.

(A federal system normally implies that the powers of the federal units are defined in a written constitution and can only be altered by a popular referendum. By contrast, in a system of devolution the powers devolved are within the gift of the central government, and can be amended at will, or removed altogether, by the central government - which is the situation in the UK at the moment.)

The McKay Commission argued against going down this route as follows (paragraph 71):

"There are no precedents of federal systems in which one component makes up over five-sixths of the overall population of a state. There is a wide view that such a big unit would destabilise the state as a whole, both in relation to the three much smaller units in Northern Ireland, Scotland and Wales, but also in relation to the federal UK parliament and government, to which an English parliament would be likely to be a powerful rival."

"We see little merit in considering a federal system based in England on English regions and heard little evidence in support. We are conscious of the swingeing rejection of such an approach in the North East of England in 2004 when four-fifths of the regional electorate voted against establishing an elected regional [non-legislative] assembly. ...."

"Any federal system requires a delineation of competences, which are usually arbitrated by a supreme court that would be able to overrule the UK parliament, as well as binding the devolved institutions. This would be a radical departure from UK constitutional practice. In this and in other respects, the massive upheaval in governmental arrangements that would be needed to create a new Parliament for 50 million people would not appear a proportionate response to the current sense of disadvantage in England.

"It seems unlikely in the current climate that citizens would favour having more politicians than now, or the costs associated with establishing a new institution."

It's difficult to argue against any of that.