It’s time to address the Westminster Question, not the West Lothian one

The extremely modest terms of the West Lothian Commission were announced yesterday:

“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.”

Well, I’d like to make a comment on the ‘terms’ in which this announcement was made and, indeed, on the term ‘West Lothian Question’ itself. You might have noticed that the word ‘England’ is absent from this announcement, despite the fact that the term ‘West Lothian Question’ in common usage relates primarily or even exclusively to House of Commons voting on legislation which affects England, not just “part of the UK”. And what on earth is “part of the UK” supposed to mean, anyway? It’s obviously another rhetorical device to refer to England without actually saying ‘England’, because if what you wanted to say is ‘one or more parts [i.e. countries] of the UK’, you’d say ‘parts of the UK’ (plural). So England, in the very terms of reference of the West Lothian Question, has been reduced to an amorphous, anonymous ‘part of the UK’. Very promising.

And it’s not only in these explicit terms of reference for the commission that the very concept of England has been evaded. The West Lothian Question itself, in its original form as posed by West Lothian MP Tam Dalyell in 1977, explicitly focused on England:

“For how long 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?”

So I’d like to suggest to the West Lothian Commission that they need to revise their terms of reference. Whatever they’re getting together to discuss, it isn’t the West Lothian Question if it doesn’t include an explicit consideration of how England should be governed, and whether the House of Commons as a whole is fit for that purpose.

And that’s the problem, really. The Commission will focus merely on parliamentary procedure, i.e. on the second part of Tam Dalyell’s question: “How long will . . . English Honourable Members tolerate . . .?” The answer in practice has been, in fact, that English MPs in the main have tolerated the West Lothian anomaly remarkably well, for reasons of political convenience. The WLQ artificially bolstered Labour’s parliamentary majority between 1997 and 2010, including in certain decisive votes (such as those on university tuition fees and Foundation Hospitals) in which Tam Dalyell’s words were proved prophetic: “Members from Scotland, Wales and Northern Ireland exercising an important, and probably often decisive, effect on English politics”. And now, the addition of the Lib Dems’ cohort of Scottish MPs to the governing coalition provides a spurious veneer that it constitutes a genuine UK-wide government, which it would not have if it were a minority Conservative administration – the Tories having only one MP north of the border.

From the parliamentary perspective that is that of the Commission, the problem, it seems, is more how ‘Honourable Members’ from Scotland, Wales and Northern Ireland would tolerate being excluded from having a decisive impact on English politics if the answer to the West Lothian Question was to exclude them, rather than how English members get on with not having a say in corresponding matters in Scotland, Wales and Northern Ireland, which they don’t seem to mind at all! Perhaps that’s why the story was covered on the BBC’s Scottish politics page yesterday, rather than its ‘English politics’ page, as Tam Dalyell might put it. Or perhaps the BBC had no other place to run it, as it doesn’t even have an ‘English politics’ page but only a heading on the general politics page reading ‘Around England’, containing separate links to stories from ‘around England’, i.e. from the (English) regions.

So the answer to ‘the part’, to coin a phrase, of the original West Lothian Question that deals with parliamentary protocol can be reasonably accurately predicted from the terms of reference adopted: it will try to find a mechanism that preserves a role for non-English-elected MPs in debating and scrutinising English bills, without allowing them to have a decisive impact on that legislation in terms of their actual voting – although they will still be able to have a decisive impact overall, in that Scottish- and Welsh-elected MPs would still be able to become prime ministers or ministers with English portfolios; so they would still be involved in drafting English legislation as well as in ensuring its passage through the parliamentary process as a whole.

But, as I say, this is only one part of the West Lothian Question – the other part being: “How long will English constituencies . . . tolerate . . .?”. For ‘English constituencies’, substitute ‘English voters’ or the ‘English people’. While English-elected MPs may have accepted the West Lothian anomaly tolerably well since 1999, English voters are increasingly furious about it, a recently publicised IPPR poll finding, for instance, that 79% of English people want Scottish MPs barred from voting on English bills. A minor tweak to parliamentary procedure, in which non-English-elected MPs will still be able to direct and shape English legislation, even if they are not able to override the voting decisions of their English-elected colleagues, will do nothing to appease this anger or mitigate this injustice.

I think we may have to re-name this part of the West Lothian Question the ‘Westminster Question’. A contemporary re-phrasing of it might read as follows:

For how long will English voters tolerate non-English-elected Westminster MPs making their laws?

Simple question. But the mis-named West Lothian Commission isn’t even addressing the limited parliamentary aspect of the question properly (because it won’t acknowledge that it centres on England) let alone the Westminster Question. But the looming importance of the Westminster Question makes their deliberations virtually null and void before they’ve even started.

English parliament

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The constitutional morass of Scottish independence: is there ANY proper way of doing it?

There’s been something of a storm in a teacup brewing over the question of the legality or otherwise of an independence referendum legislated for by the Scottish parliament. For a summary of the legal and constitutional issues, see Alan Trench and Lalland’s Peat Worrier.

From an English perspective, the crux of the matter, for me, is what say, if any, English people get in Scottish independence and the consequential break-up of the Union. I would argue that, at some point in the process, the English (and the Welsh and Northern Irish) people have an absolute right to be consulted. This is because Scottish independence does not just involve the departure of Scotland from a state or country – the UK – that remains intact or retains its existing identity despite that departure. Independence for Scotland would require the Acts of Union between England and Scotland of 1707 to be repealed, which means the end of the United Kingdom – or technically, the end of the ‘Kingdom of Great Britain’ resulting from the 1707 Acts, and hence the end of the ‘United Kingdom of Great Britain and (Northern) Ireland’ of 1800.

No doubt, in the drawing up of the legislation for Scottish independence by the UK parliament, new clauses would be drafted setting out the status and composition of the, or a new, United Kingdom replacing the one dating from 1707 and 1800. And that’s why the people of the new UK state should be consulted: if the very identity and constitutional basis for the country of which you are a citizen is being changed, you have an absolute right to a say on the matter.

So really, I’d now argue we could be looking at three referendums. There are two possible scenarios for this:

  1. The Westminster parliament takes over the process and passes a Bill authorising a Scottish independence referendum in, say, 2012 or 2013. At this point, you could argue that all UK citizens have a right to take part, because the vote involves deciding whether or not to break up the UK. In addition, if you restrict the referendum to Scottish residents, you are already implicitly allowing a large number of non-Scottish people to take part, e.g. the hundreds of thousands of English people who currently live there. By the same token, you are excluding potentially over a million Scots living in other parts of the UK or the wider world. However, if you regard this first referendum as advisory rather than binding, then ‘Scottish residents’ could be a pragmatic approximation to ‘the Scottish people’. Scottish independence may well involve breaking up the UK, but it’s ultimately for the Scots to choose between independence and continuing to be within the Union. But for any subsequent, binding referendum, an attempt should perhaps be made in advance to draw up a more exhaustive list of ‘Scottish nationals’, i.e. those who would become Scottish citizens if independence were carried in a referendum. This is a political hot potato, admittedly, but one that perhaps needs to be grasped: shouldn’t it be only prospective Scottish citizens who should be asked whether they wish to actually become Scottish citizens, which is what Scottish independence would mean for them?

    So let’s say a majority voted in favour of the principle of Scottish independence in this Westminster-enacted referendum. There would follow a complicated process of negotiations and discussions leading up to Westminster legislation enacting Scottish independence. As I’ve been saying, there are two parts to this: what kind of independence ‘deal’ is on offer for Scotland; and what new constitutional arrangements are in place for the / a residual UK. (I’ll return to this question below.) These two questions demand two further referendums: one asking the Scottish people to endorse the independence deal; and one for non-Scottish UK citizens to approve or disapprove the new constitutional arrangements for their citizenship and governance. Incidentally, this is another reason why it might be necessary to draw up a more robust list of prospective Scottish citizens, because just as only Scots should resolve the question of Scottish independence, only the prospective citizens of a UK without Scotland should decide whether to create such a new UK.

    What would happen, in these binding referendums, if the results were contradictory: if the Scots voted for independence, but the other British people rejected the new UK settlement; or the Scots rejected independence, but the rest of the UK supported the new UK state? In the first instance, logically, Scottish independence goes ahead, and it’s back to the constitutional drawing board for the residual UK. In the second instance, the legislation would have to be drawn up in such a way that the structure, governance and constitution of the new UK would be unaffected by whether Scotland were part of it or not. See further below.

  2. The other scenario is that the Scottish government is allowed to go ahead with its own plans for a referendum some time in 2014 or 2015. In this instance, clearly, it is just for the ‘Scottish people’ to take part – as the referendum is purely advisory and seeks a mandate from the Scots for independence negotiations with the UK government – notwithstanding the caveat expressed above that the term ‘Scottish people’ is only an approximation in this instance. Following a vote in favour of independence, then I would argue that the same process as outlined above should take place: negotiations and legislation towards Scottish independence followed by two referendums – one of the Scottish people only (about independence), and one of non-Scottish UK citizens only (about the constitution and composition of the new UK).

    What about the issue of the SNP’s plans to ask two questions in its referendum: 1) whether people want Scotland to be an independent country; and 2) if they do not want independence, whether they want so-called ‘devo max’ or ‘independence lite’: fiscal, and virtually total political, autonomy under the UK defence and macro-economic umbrella? In a sense, if the SNP-organised referendum is purely advisory, I don’t think this matters, as whatever the outcome, there would still need to be negotiations with, and legislation by, Westminster to enact whatever was decided; and, I would argue, there would need to be a second binding referendum in Scotland even for devo max. In fact, it might even be more convenient for Westminster if the Scots opted for devo max, as the UK government could probably get away with not consulting non-Scottish UK citizens about it on the basis that the existing Union remained ‘unaffected’.

Somehow, I don’t think the process in reality will work in such a neat, logical and fair way, because it raises too many intractable questions that neither the Westminster nor Holyrood governments, in their different ways, wish to bottom out. A non-exhaustive list of these questions is as follows:

  1. Who would be eligible to vote in a binding Scottish-independence referendum, and how would a list of eligible persons be drawn up? My contention, as above, is that only prospective citizens of an independent Scotland should vote, including those resident outside Scotland. But how do you determine what constitutes ‘Scottish nationality’?

     

  2. What is the constitutional justification, and what are the constitutional implications, of these referendums, potentially three in number? The UK government might wish to restrict a binding referendum to Scottish nationals / residents on the independence question, in order not to stir up the issue of popular sovereignty for the residual UK: if the UK government’s legislation on Scottish independence and a new settlement for the remaining UK is dependent on the approval of the people in a referendum, then this involves conceding that, in this instance at least, the people are sovereign, which therefore challenges the whole doctrine of parliamentary sovereignty on which the established system of governance in the UK depends.

     

  3. The English Question: a referendum on the new UK, minus Scotland, would involve consulting the English people for the very first time regarding the arrangements for their governance, just as the people of the UK’s other nations have already been consulted about devolution, and the Scots would be being consulted about independence. This potentially establishes a legal precedent that there is such a thing as ‘the English people’ who might have the human and legal right to self-determination. In practical terms, any public debate and referendum on the constitution and governance of the residual UK would inevitably force the Union establishment to engage with the English Question in some form or other, even if only because the option of an English parliament would inevitably come up for discussion.

    In addition, if the establishment tried to reaffirm the existing constitutional and governance arrangements unchanged – apart from the absence of Scotland – there could be a real possibility that the new UK settlement would be rejected by the English people in a referendum. For instance, if the new UK involved no recognition for a distinct English nation, no English parliament and even no attempt to prevent non-English-elected MPs from voting on English legislation, it is quite likely, in my view, that it would not pass. Maybe even the Welsh and Northern Irish would vote in favour of the new UK while the English rejected it. What then? Better to keep the English Question in the bag by not asking it.

  4. What would the composition of the new UK be, anyway, and what would its constitutional status be? The new UK could no longer formally call itself the ‘United Kingdom of Great Britain and Northern Ireland’, because Great Britain (the product of the 1707 Acts of Union) would be dissolved by Scotland’s departure. But could the new UK even call itself the ‘United Kingdom of England, Wales and Northern Ireland’? I ask this because, at the time of the Acts of Union of 1707, ‘Wales’ didn’t exist as a distinct, separately named kingdom or part of the Kingdom of England: it was fully subsumed into the Kingdom of England, and the Acts of Union involved a union between the two kingdoms of England (including Wales) and Scotland. So if the Acts of Union are annulled, does not ‘Great Britain’ just revert to the two former kingdoms? Where is ‘Wales’ in the equation? Would a new Act have to be legislated actually creating or re-creating Wales as a distinct kingdom? Or would it be a case of ‘re-naming’ the re-emergent, post-Acts-of-Union Kingdom of England the ‘Kingdom of England and Wales’? And how would the English and Welsh people feel about being merged into a single nation and / or kingdom thus named?

    And then what would the status of the union with Northern Ireland be? Wouldn’t the 1800 Acts of Union between Great Britain and Ireland also be nullified by any repeal of the Acts of Union between England and Scotland? That’s because the ‘Great Britain’ that was united with Ireland via the 1800 Acts would no longer exist. So would you need a new Act creating Northern Ireland as a kingdom and / or merging it into a single ‘Kingdom of England, Wales and Northern Ireland’? And how would that affect the delicate sectarian balance in the Province?

  5. And then there’s the question of the broader constitutional ramifications of repealing the Acts of Union. These are an integral part of a whole host of foundational acts of parliament that make up the delicate constitutional fabric of the United Kingdom, including, among others, the Act of Settlement of 1701, the Bill of Rights of 1689 and, of course, the Acts of Union of 1800. If you repeal one such act, you might have to repeal or fundamentally amend all the others, so you could easily end up needing to produce a completely new written constitution for the new UK-minus-Scotland. That might not be a bad thing in itself, and it could allow for a more flexible, federal constitutional structure in which the UK state is not completely dissolved or fundamentally altered by one part of it deciding to leave or re-join. This flexibility could enable the Scottish people to have a real choice in their binding referendum between independence and being part of a new UK constitutional settlement that would remain in place without them (thus solving the problem discussed above of what to do if the Scots rejected independence but the remaining UK supported the new constitution that was put in place as a consequence of the Scots voting for independence in the first, advisory referendum).

    I feel that, because of the intricacy and potentially unforeseen consequences of repealing any of the parts of this delicate constitutional tissue, this may be considered far too important and technical a matter to be entrusted merely to the people. It could be left to the lawyers, politicians and constitutional experts to resolve. But the net effect could be that profound decisions affecting the nature of our nationhood and our rights as citizens could be decided as it were behind closed doors, and by a sovereign UK parliament that is unwilling to let go of any of its powers even if the original constitutional foundations and justifications for those powers no longer apply.

    But the politicians should be extremely wary of tinkering with elements of the UK constitution whose interdependencies and effects even they do not understand – or they could find that their very authority to make such changes is challenged as never before since the English Civil War. For example, the English Act of Union with Scotland explicitly states: “the two Kingdoms of England and Scotland shall . . . for
    ever after be united into one Kingdom by the name of Great Britain” [my emphasis]. This Act and the corresponding Scottish Act of Union with England also incorporate the Act of Settlement of 1701. This is the Act that specifies that the king or queen of England, and thereafter Great Britain, cannot be or be married to a Roman Catholic, and states that if this provision is ever broken, “the People of these Realms shall be and are thereby absolved of their Allegiance”. In other words, if today’s parliament takes it upon itself to dissolve the Kingdom of Great Britain that was originally instituted as a permanent settlement (lasting ‘for ever’); and if, in so doing, they repeal the Act of Settlement (which David Cameron has recently talked of doing independently of its impact on the Acts of Union, if such were possible), then it is possible they are guilty of high treason and that the people of England are absolved of any allegiance to the new state, whatever it is called, and to its king or queen.

Consulting the English (and Welsh and Northern Irish) people on what would effectively be a completely new constitution – whether a single written document or a series of fundamental amendments to existing constitutional Acts – could be a way to avoid potentially years of contestation and even violent resistance to a new settlement that contravened ancient, hallowed constitutional provisions setting out the rights and responsibilities of the rulers and the ruled. But precisely because it would stir up such intractable issues affecting the constitution and the composition of the UK, and the status and interrelationships of its different national parts, the establishment is likely to seek to gloss over these complexities, and will try to retain the constitutional status quo without consulting the people of the residual UK. So Scottish independence is unlikely to be done properly, and it could be a messy, protracted and painful process for the residual UK: a far more complex process in fact than Scottish independence would be for Scotland itself.

There could be a more rational alternative: a constitutional convention for the whole of the existing UK to work out and through a set of alternatives for the future constitution and governance of the UK, as such, and its constituent parts, which could include a form of independence and confederation for each of its nations. But politics doesn’t work in such a rational manner, at least not nationalist and unionist politics, which can contemplate only their all-or-nothing objectives, and not a happier, clearer and more constructive means to work out how the people of these isles can live and work together in an uncertain future.

What would it take for such a constitutional convention to become a possibility? An overture from the Westminster government to the SNP administration? A willingness on the part of the SNP to engage in such a process so long as full independence was a serious option on the table from day one? Recognition on the part of the Union establishment that England is a nation and should also be represented as such in the discussions?

It’s an exciting vision, but I can’t see it happening. But the alternative could be much, much worse in so many ways.

English parliament

Comment about John Major’s speech from the IfG blog

Following the censorship of a comment of mine about Englishness on the Labour Hame website, here is another comment that’s been stuck in the limbo of ‘awaiting moderation’ for several days. It refers to an article on the Institute for Government website discussing John Major’s recent contribution to the Scottish devolution max versus independence debate. I expect the comment will be published in due course; but I’ve just got fed up waiting, so I thought I’d put it on the record here.

 

Major’s proposals on extending devolution to Scotland are unworkable on a number of levels, as I argue elsewhere. From the Scottish perspective, this is mainly because Alex Salmond has a mandate to consult the Scottish people on independence and to choose the options that will be on offer, which will probably include devolution max anyway.

Politically, it would be absolutely bonkers for David Cameron to organise a referendum of the sort Major advocates. If he lost, which would be a distinct possibility, he’d throw the UK establishment into an even greater disarray and crisis of legitimacy than it is already having to contend with in the shape of the Hackgate scandal, following on from the expenses furore. And even if he won, this would be a pyrrhic victory, as Salmond would just go ahead with his own referendum anyway, for which he has a democratic mandate, as I’ve said.

And then Major’s solution does absolutely nothing to address the West Lothian and English Questions. If anything, it only aggravates these issues in that the Scots have the maximum degree of self-government without independence while the English have . . . nothing, and continue to be governed as the UK by a parliament in which Scots (albeit fewer in number under Major’s proposals), Welsh and N. Irish MPs are still allowed to vote on England-only matters even though the Barnett Formula would probably have been abolished.

In reality, the full logic of Major’s position points towards federalism. There’d be no justification whatsoever for non-English MPs voting on English matters, and you might as well just make the Commons an English parliament, and grant equal powers and responsibilities to each of the national parliaments / assemblies. All of which would then nullify Major’s suggestion about non-elected MPs, as the Commons would no longer even be a UK parliament – or, putting it another way, this second suggestion of Major’s is predicated on the Commons remaining a UK parliament and the English Question not being addressed.

Major’s suggestion about non-elected parliamentarians does, however, make sense for the Lords, which in the scenario I’ve just mapped out would naturally evolve into the UK-federal parliament, dealing with those matters that remained the responsibility of the government / parliament for the whole UK. Indeed, it’s far more appropriate for non-elected experts to sit in the Upper House, which fits with its natural role as a revising and deliberative chamber.

And the seats for non-elected members (whether Lords or MPs) should be allocated in proportion to vote share, not seat share. It makes much more sense for these non-elected seats to be distributed in accordance with share of the vote (not seats) even if Major’s proposals were to be adopted for the Commons as presently constituted, as this would help rectify the gross distortions of First Past the Post and make the Commons more not less representative of the electorate.

36% of English people support independence – for England

A ComRes opinion poll commissioned by BBC Radio 4, published yesterday, found that 36% of the English-only people questioned felt that “England should become a fully independent country with its own government, separate from the rest of the United Kingdom”. By any account, this is an extraordinary finding. However, if all you had heard about the poll was what was said about it on last night’s Newsnight programme dedicated to discussing Scottish independence, and its impact on England and Britishness, you wouldn’t know about this particular finding, as it was not referred to.

This appears to be another, all-too typical, instance of the establishment suppressing discussion of the English Question: the question of how England should be governed. For all that the programme represented a refreshing attempt to deal with the impact Scottish independence might have on the rest of the Union, and to consider an emerging sense of Englishness and English nationalism, it glossed over what for me is the most important issue: England’s democratic deficit and how this should be remedied, irrespective of Scotland gaining independence or not. The programme did not dwell on this issue or treat it with any degree of seriousness, nor did it link it to the issue of an emerging English consciousness, to which it is central: one of the main purposes of an English parliament or English independence being that they would give England a national voice and institutions, around which a confident English identity could coalesce.

How significant is the 36% support for English independence, though? Another finding of the ComRes poll that was reported is that 36% of English people favour independence for Scotland (versus 48% who oppose it). This is also, incidentally, a striking finding. The programme did acknowledge that this represented a significant increase on the last time support for Scottish independence in England was canvassed, when it stood at 16%. However, one suspects that there is a close correlation between the 36% of English people who favour English independence and the 36% that support Scottish independence. In other words, people must be assuming that English independence would result from Scottish independence; and in that, I can’t help feeling that they’re sadly mistaken.

This was another thing that the programme didn’t explore (well, I guess you can’t cover every aspect of the question): what sort of residual United Kingdom, if any, would be the by-product of Scottish independence? My own feeling is that if the Scots voted for independence in a referendum, the inhabitants of the rest of the UK would not be given the opportunity to decide in a referendum how they wish to be governed (although 45% said people in the rest of the UK should have a say in whether Scotland became independent, while 47% thought they shouldn’t).

Specifically, I think the English people would not be given the chance to choose whether to have a parliament of their own, still less independence. Instead, the UK Parliament, which is presently sovereign in such matters, would simply decide what sort of state the residual United Kingdom would be. Overriding any consideration of whether the United Kingdom as such should be considered dissolved as a consequence of Scotland separating from the Union (because this breaks up ‘Great Britain’, and hence dissolves the union of Great Britain with Northern Ireland, which is what the UK is), Parliament would simply decree that a new United Kingdom (e.g. a ‘United Kingdom of England, Wales and Northern Ireland’) should inherit the legal personality and constitution of the old UK. And Parliament would then carry on governing England as the UK, as if nothing had changed – except it would be less likely, but still not impossible, for a UK government to be formed based on a majority of UK MPs without enjoying a majority of English MPs.

The programme did not nail down this issue, which is central to the whole debate: would Scottish independence be a separation from a United Kingdom that would carry on pretty much unchanged as a consequence (in which case, it could be considered to be a purely Scottish matter, although the Welsh and Northern Irish might wish to dissent from that view if it meant they were dragged into what they perceived as an even more England-dominated UK); or would it involve breaking up the UK altogether by virtue of dissolving the Union of 1707 – in which case the other party to that Union (England) should have a say in its own constitutional and political future.

These are two quite distinct questions, and the ambiguity in the Newsnight discussions in part resulted from a failure to make a distinction between them. And that further reflects the establishment’s reluctance to explore any avenue that might lead to something such as a distinct English nation deciding how it wishes to govern itself. Because, surely, that’s the logical outcome from the Scots opting for independence: that each of the UK’s remaining nations should then be allowed to choose whether the UK itself remains, or whether they follow Scotland’s example and decide for independence.

The ‘English Majority Lock’ (EML): A simple solution to the West Lothian Question

Many questions that appear intractable often admit of a simple solution if you can find a better way of posing the question. The West Lothian Question is one such conundrum. In its original form, in the parliamentary question raised by MP Tam Dalyell in 1977, it asks:

“For how long 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?”

In the wake of actual devolution for Scotland, Wales and Northern Ireland, the Question has come to be viewed more as being, in my words: ‘how can one ensure that only English-elected MPs vote on England-only matters, just as it’s the elected representatives for the other nations’ devolved parliament and assemblies that now take the decisions in those same areas for their countries?’

Putting the Question this way can lead to endless discussions around sterile issues such as how you determine whether a law or decision affects England only, given that some ‘English’ bills also have clauses that affect one or more of the devolved nations to a varying extent; and given that the Barnett Formula funding mechanism means that decisions affecting public spending in England also have knock-on consequences for the block grants available to the devolved administrations.

The ‘Legislation (Territorial Extent) Bill’ currently being sponsored in parliament by the Conservative MP Harriett Baldwin is designed to address these particular concerns by proposing that each section and clause of every bill identifies its territorial extent (i.e. which UK nation(s) it applies to) plus whether there are any Barnett consequentials. But Baldwin’s bill does not propose formally banning non-English MPs from voting on fully England-only clauses; and if a bill is almost exclusively English in extent but has major consequences for funding in other UK nations, then it will still be considered normal and acceptable for non-English MPs to participate fully in the voting.

So this gets us nowhere. However, there is another way of posing the West Lothian Question that virtually contains the answer in its very formulation, and that is:

“How can you ensure that the decision of English MPs on a matter that affects England but not some or all of the devolved nations, either in its entirety or in part, is not overturned by the votes of non-English MPs?”

Putting the Question this way cuts to the quick of the sense of injustice that the non-resolution of the West Lothian Question has aroused: in several crucial votes affecting England but not (directly) the rest of the UK, the votes of non-English MPs have been critical in overturning the decision of English MPs in precisely the way that Tam Dalyell envisaged, such as the notorious decisions to introduce tuition fees and foundation hospitals in England during New Labour’s protracted term in office. That’s why the West Lothian Question matters: it’s a case of basic democratic fairness that if a measure relates to one nation or jurisdiction, it should not be either driven through or blocked by the votes of MPs representing citizens from outside of that jurisdiction. Allowing that to happen is pure gerrymandering of a most pernicious sort: one that poisons the relationships between the normally friendly nations of the UK.

But in the formulation of the Question in this way, the answer immediately comes to mind: you should simply not allow non-English MPs to effectively overturn the decision of English MPs on English matters. In other words, my solution to the West Lothian Question, which I’m calling the ‘England Majority Lock’ (EML), can be set out as follows:

In parliamentary matters that relate to any policy area that has been devolved to any extent to one or more of the UK’s nations, the support of a majority of English MPs as well as a majority of all UK MPs is required for a measure to be passed.

My EML rule obviates the need to equivocate about which individual clauses are England-only or not by saying that any bill or vote that does not relate in its entirety to the UK as a whole is an ‘English matter’, in that bills relating to devolved matters do always relate in full to England, whether or not they also relate in part or in full to the other UK nations. So in those instances, a majority of English MPs need to vote for the matter as well as a majority of UK MPs.

One potential consequence of the EML is that you could have parties commanding a majority of all UK MPs that would not command a majority in England. This was not in fact the case during the Blair-Brown governments, when Labour had majorities in both England and the UK. However, a future election could easily see Labour winning a majority UK-wide but failing to secure a majority in England. The EML would prevent Labour from using its superior haul of Scottish and Welsh MPs to drive through English legislation that did not command the support of most English MPs. However, this could lead to a crisis of government, with the party of UK government not being able to get any of its English bills through parliament.

The obvious solution to this problem, if it arose, would be for coalition government, e.g. for Labour to seek a coalition deal with the Lib Dems to ensure they had a majority of English MPs as well as UK MPs. This is not perhaps a consequence of resolving the West Lothian Question that would be to many people’s liking, but it would still be democratically fairer: it’s a matter of principle, whether or not one gets the colour of government one would like as an effect of correcting the injustice.

To sum up, there is a simple solution to the West Lothian Question but only if you define it in a simple way: there are matters that are 100% English and not 100% UK in their effects; and those matters should not be allowed to pass if they do not command the support of most English MPs. Simples.

But will the present crop of UK MPs implement a simple solution such as this? Unlikely, as it would strip Labour of its gerrymandering route to power; and it would involve establishing ‘English governance’ as a reality at the heart of the UK parliament: it would involve formally stating that there are some areas of UK legislation and policy that are English in a particular way and are not just UK matters. Setting such a precedent runs fundamentally counter to the UK parliament’s and state’s self-preservation instincts, which are that an English polity must be denied and suppressed at all counts in case it strips the UK establishment of its raison d’être.

But if a solution to fair English government within the UK parliament is not found, then the more drastic solution of an English parliament may be the surer outcome. My challenge to MPs is to ask them whether they’d prefer to answer the West Lothian Question or instead have the more challenging English Question increasingly raise its head. And that is a question that only the English people and not UK MPs can answer.

Can we expect more progress on the WLQ Commission after the Scottish and Welsh elections?

Doh! It suddenly struck me that that must be the reason – or at least one of the main reasons – why the Con-Dem government has been so cagey about the timing of the promised Commission to look into the West Lothian Question: they don’t want to give Labour and the Nationalists in Scotland and Wales another weapon to use against them in the devolved election campaigns presently taking place in those countries. Labour and the Nationalists would be able to spin any move to prevent Scottish and Welsh MPs from voting on English matters in Parliament as a sign of the Westminster government’s enmity towards Scotland’s and Wales’ present public sector-friendly, social-democratic settlement – with MPs from Scotland and Wales no longer able to influence spending decisions for England that have knock-on effects in those countries via the Barnett Formula.

Does that mean we can expect the WLQ to mysteriously appear on the parliamentary agenda as soon as the Scottish and Welsh elections are put to bed? I suppose that depends in part on the results and on how well (or badly) the Tories and Lib Dems perform, particularly in Scotland. If they do really badly – as the signs are they will – this will make it less likely that they’ll do anything on the WLQ, as they won’t want to undermine their position in Scotland and Wales still further. So while a dramatic SNP victory will put Scottish independence – and, indirectly, the English Question – back on the political agenda, it may delay still further any attempt to resolve the West Lothian Question.

DPEV: absolutely the best single-member voting system for the UK and England – honest

OK, I admit it: I’m a voting-system geek, if not obsessive. I really dislike AV, for a number of reasons, not the least of which is that it leaves England short-changed: nothing done to address the West Lothian Question or the broader English Question, to say nothing about the unaccountable nature of executive power in the UK, which relies on a disproportional voting system and a subservient parliament to run the country virtually as an elective dictatorship.

During the course of the last few months, in this blog, I’ve discussed a number of alternative single member-constituency voting systems that are better than the Alternative Vote, in my view, despite the fact that AV is the only alternative on offer. It seems to me I’ve been fishing around for a ‘killer’ system: one that is simple, fair and transparent but which also addresses the two main failings of First Past the Post and AV – that they 1) produce disproportional results and 2) bring about governments with no real mandate that can basically get away with whatever they want (a simplification, I know, but it sometimes feels that way). In addition, if a voting system passes the ‘English parliament test’ – or at least a fairness-to-England test – then all the better. Basically, if I’d be happy if the system in question were used to elect an English parliament, then it must be OK.

I now think I’ve come up with such a ‘killer voting-system app’, so to speak. It’s called DPEV: ‘Dual Parliamentary and Executive Voting’. How it works is as follows:

  1. DPEV is a single-member system. There are two parts to the voting process: a First Past the Post ballot of individual candidates and a separate ballot listing the parties standing in that constituency. Voters must select the individual candidate they’d like to be their MP by marking a cross next to their name – exactly as under the present FPTP system. Again, just as with the present system, the winner is the candidate obtaining the most votes. Voters must also mark a cross next to the name of the party or parties they’d like to form the next UK government. Here, they can vote for more than one party, thereby expressing a preference for a coalition government of the parties in question.

     

  2. The individual-candidate vote is used to determine the composition of Parliament, whereas the party vote is used separately to determine which parties have a mandate to form the next government. Basically, if one party wins an outright majority of the party vote, they are deemed to have a mandate to form the government. Otherwise, the strongest multi-party combination is considered to have a mandate to form a coalition government so long as the overall total of votes for both or all of the parties involved adds up to more than 50%.

    For example, let’s say that 30% of voters want the Tories only to be in government; 25% want just Labour; 10% want only the Lib Dems; 16% want a Lab-Lib coalition; and 11% want a Tory-Lib Dem coalition. Here, the system decides there is a mandate for a Lab-Lib Dem coalition because this was the most popular party-combination vote (i.e. 16% vs. 11% for a Con-Lib combo) and the total number of voters wanting either a Labour or Lib Dem government (single-party or coalition) adds up to a majority (51%). However, if the percentage of voters wanting a Lab-Lib Dem coalition had been only 14%, those parties’ combined vote would add up to only 49%. In that case, despite having the largest coalition vote, there would be no implied mandate for a Lab-Lib Dem coalition, and it would be down to the Conservatives and Lib Dems to try to reach a coalition deal, as the combined total of individual and joint votes for those parties would be 51%.

One other point of detail here: to form a government, a party or combination of parties must garner over 50% of the party vote in England as well as across the UK as a whole. This is because, without devolution for England, the UK government is also an acting English government and so must have a democratic mandate in England separately. Obviously, the best solution would be a completely separate English parliament and executive. But in the absence of that, this does address the West Lothian Question, if not the English Question: it wouldn’t matter, on one level, if English laws were passed by parliamentary majorities that included non-English MPs if the government enacting those laws had a legitimate democratic mandate from English voters. This is what this ‘England lock’ on the government is designed to ensure.

So basically: in the absence of an outright majority for any party in the party-vote bit of DPEV, parties must try to form majority coalitions, beginning with the multi-party combination vote (i.e. where people vote for two or more parties together) that obtained the largest share of the votes across the UK, so long as those coalitions command an overall majority of the votes across the UK and England.

What would happen if neither a Lab-Lib Dem nor a Con-Lib Dem coalition could muster a block of votes of over 50% across the UK or in England only? In this instance, the parties would have to bring in a third coalition partner that had won a sufficient percentage of the party vote across the UK and England, as applicable, to constitute a majority mandate, so long as that third party had won some MPs. However, even so, it is possible that a majority coalition could still not be formed, either because there was insufficient political will among the parties involved or because there would be parties for which people had voted that were without MPs, such as – for example – UKIP, the Greens, the BNP or the English Democrats. In this instance, the parties would have to try to form a coalition or single-party government based on the majority of available party votes. E.g. if only 80% of the UK-wide party vote had been for parties that succeeded in winning MPs, then the government (single-party or coalition) would have to command over 40% of the party vote across the UK, and whatever the corresponding majority percentage would be in England: probably higher than 40% given the lower share of the votes won by nationalist or sectarian parties in England compared with the UK’s other nations.

To prevent this rule becoming a get-out clause allowing the Conservatives or Labour to form governments that were without a true majority mandate, one of the major constitutional innovations of DPEV would be that any government commanding the support of only a minority of voters (as determined by the party vote) would have to be ratified by the electorate in a snap referendum following the conclusion of coalition negotiations. And that means a UK-wide referendum if the government in question was based on minority support across the UK as well as England, or a referendum in England only if the proposed government enjoyed a majority across the UK but was backed by only a minority in England.

If such a referendum failed to win the endorsement of either the British or English people, then the parties would have to go back to the drawing board and try to find a majority coalition or alternative minority government. If the latter were the outcome, this too would need to be ratified in a referendum. Then, if this in turn failed, a new election would have to be held – but not a whole general election with all the new constituency MPs needing to seek re-election, merely a new party election, in which all of the parties that had won MPs would be standing. This would determine a new clear majority mandate, as now the choice of parties would be greatly cut down. In practice, in the absence of an outright majority for any single party in this second party vote-only election, it would be pretty obvious which combination of parties (e.g. a coalition between the Lib Dems and one of the other major parties) had a clear mandate, and the parties concerned could have a constitutional obligation to work together.

These provisions for majority coalitions or – in the absence of majorities – ratifying referendums and follow-up elections, as required, would ensure that any UK government had a clear majority mandate from the people across the UK and England, irrespective of whether the party or parties in government commanded a majority of MPs in Parliament. This relates to another original feature of DPEV: MPs are elected using a disproportional system (FPTP), but the executive is elected using a perfectly proportional system – so the government takes its democratic mandate directly from the people, not from parliament. This does mean that the parliamentary majority could be at odds with the executive majority, and governments could well find they commanded only a minority in Parliament. However, this could be a good thing, in that Parliament would be able to hold governments to account more effectively. Equally, the system for electing MPs could be changed separately, without altering the perfectly proportional method for electing the executive. E.g. you could introduce AV, STV or some other system for electing Parliament that would make it more proportional and representative, and make the majority in Parliament less likely to clash with that of the government.

Not only the executive but also MPs would be more directly accountable to their voters, in two main ways:

  1. Separating out the vote for an individual MP from the vote for a government, as DPEV does, restores the direct accountability of an MP to his or her constituents. Voters can now choose an MP on the basis of their individual suitability for the role – their experience, character and values as well as political opinions – without prejudice to the party they want to be in government, which they vote for separately. By contrast, under the present FPTP system, and the proposed AV system, if you vote for the man or woman, you are also voting for the party and are presumed to be endorsing that whole party’s programme for government as set out in their manifesto. This is rolling up two distinct choices in one, and it’s what helps make MPs subservient to their party apparatus in Parliament, because they are presumed to have been sent to Parliament to fulfil that party’s programme. Under DPEV, each individual MP has been personally chosen by the plurality of their voters: having been elected independently, they are empowered to act independently.
     
  2. This independence from party, and accountability to voters, would be reinforced by another constitutional innovation that would be associated with DPEV. Let’s say a Conservative MP has been elected into Parliament, but a majority of constituents had voted either Labour or Lib Dem (or for both Labour and Lib Dem) in the party vote, and a Lab-Lib Dem coalition was in fact formed. Then, if that Tory MP persistently votes against government bills at their third and final reading (e.g. in 50% or more of cases), constituents should have the right to demand a by-election to hold that MP to account. If the MP is re-elected, they could be said to have received a mandate to continue opposing government bills. The smart thing for the government parties to do in this instance would be to field only one candidate to ensure a government majority in the by-election – but whether they’d have the wit to do that or not is moot.

    I would envisage that voters would be able to call a by-election on this basis one year after the general election, and then again after another year, by means of, say, more than 10% of the electorate turning up at polling stations on a designated day to sign a petition for such a by-election. Once more than two years have elapsed after the general election, there should be no further by-elections of this sort, in that – ideally – there would be four-year fixed-term governments, so that holding a large number of by-elections at the close of the third year of the parliament would be somewhat excessive. (Incidentally, if a coalition collapsed before the fixed term had expired, it could be made mandatory for the parties to try to form a new coalition – but this would also have to be ratified by referendum. If it was rejected in the referendum, then a general election would have to be held.)

    This method of holding MPs to account could be applied to any MP that persistently voted against the party majority in their constituency. For instance, if a candidate from one of the government parties had been elected as MP but a majority of constituents had not voted for the party or parties of government in the party vote, those MPs could also be held to account and forced to fight a by-election if they persistently voted with the government. This means that MPs would truly have to respect the opinions of their voters and take them into consideration in their work in Parliament, alongside party loyalty.

All these aspects of DPEV would bring about much greater popular sovereignty and political accountability: the government taking its mandate direct from the people; MPs directly accountable to their voters and expected to act independently of party dictates. And, as I said above, it provides a solution to the West Lothian Question, if not an answer to the English Question – but I would say that it’s still an excellent voting and constitutional system for any English parliament and so passes my English parliament test.

How does DPEV perform in relation to the six criteria I’ve been using to assess the merits of different single-member voting systems? My first criterion is: Does every vote count, and is every vote counted? Here, I’d give DPEV four out of five. Every party vote, under DPEV, counts in the sense that the right to form a government depends on every single vote cast. However, as many parties for which people vote would still not win MPs, those parties could not participate in government. Similarly, the constituency vote counts for more than it does presently under FPTP, in that MPs are elected independently of their party affiliation and are expected to act accordingly. However, as the system used to elect MPs – at least in my initial version of DPEV – is the disproportional FPTP, many constituency votes will count for little.

In terms of the second criterion – Is the system proportional? – I’d again award DPEV four out of five: it’s perfectly proportional in terms of the party vote that is used to determine the shape of the government,but disproportional with respect to the constituency vote. However, the fact that the government derives its mandate direct from the people, and the fact that accountability of MPs to constituents is built into DPEV, makes it less critical to achieve a perfectly proportional parliament.

The third criterion is: Does the system foster accountability? Here, I’d modestly give DPEV five out of five: it embodies a very high degree of accountability of MPs to their constituents, and it also makes the government directly answerable to the whole electorate, a majority of whom have to give it their backing, either in general elections and referendums to ratify minority governments or coalitions.

Fourthly: Does the voting system allow voters to express the full range of their political and personal preferences, and send a message to politicians? Here, DPEV scores four out of five. It enables voters to support individual candidates that can be of an altogether different political persuasion to themselves, on the basis that whichever candidate you vote for (based on their personal qualities), you can vote for different parties to form the government. In addition, you can vote for as many parties as are on the ballot paper in the party vote. Not all of those votes will be effective, however, in the sense of resulting in representation – and in fact, it would be silly to vote, say, for four parties, as it is unlikely that such a vote will be rewarded with a coalition of all four parties. But all party votes are nonetheless recorded, so that voters can send a message to politicians. In addition, the more people voted for parties such as UKIP and the Greens, the more people would feel emboldened to vote for UKIP and Green candidates, too – with the added incentive that even if only one or two MPs from those parties were elected, they might go straight into government as part of a coalition.

The fifth criterion is: Does the system mitigate / obviate tactical voting? Here, I’d give DPEV four out of five. Under DPEV, there is virtually no incentive for tactical voting, other than to try to defeat the candidate of a particular party in the constituency vote. But the reward for doing so is considerably less than under FPTP or AV, in that MPs of any hue are supposed to act independently and can be held to account if they put party interest above that of constituents by opposing legislation that the constituents have by implication supported (by voting in a majority for the parties that are in government).

Finally, How easy is the system for voters to understand, trust and use effectively? Well, DPEV should be easy for voters to understand and use to their best advantage. You just vote for an MP in the same way as now; and you can vote separately for the party or parties you want to form the next government. However, some voters might find the separation of the candidate and party vote confusing, and also might not use the option to combine votes for multiple parties very effectively (i.e. they might select several parties or not understand that selecting multiple parties means you’re expressing a preference for a coalition of them all). So I’d give DPEV four out of five here.

So here’s how I rate DPEV in comparison with the other single-member systems I’ve discussed, including several I’ve ‘invented’ myself, as I have with DPEV. For the sake of comprehensiveness, I’m also rating the variants of AV I’ve discussed recently (FMT (First Past the Post Majority Top-UP) and AV 2.0); and the method I evoked in my post yesterday, whereby you just have two preferences, and if there is no majority of first preferences, the second preferences of all voters are added to all candidates’ totals, and the winner is the candidate obtaining the most votes (let’s call that ‘TPP’: Two-Preference Plurality!):

Criterion FPTP AV AppV ARV TMPR AV+ NetV 3CV Bucklin
Does every vote count?

3

2

3

4

4

3

4

3

3

Is the system proportional?

1

2

2

3

3

3

3

3

3

Does the system foster accountability?

3

3

4

4

4

4

4

4

3

Does the system let voters express their views?

1

2

3

4

4

3

4

3

2

Does the system mitigate tactical voting?

1

2

2

3

4

2

3

3

3

How user-friendly is the system?

3

2

4

3

3

3

3

3

4

Total scored out of a maximum of 30

12

13

18

21

22

18

21

19

18

 

Criterion DPEV FMT AV 2.0 TPP
Does every vote count?

4

3

4

4

Is the system proportional?

4

2

2

2

Does the system foster accountability?

5

3

3

3

Does the system let voters express their views?

4

3

3

2

Does the system mitigate tactical voting?

4

2

2

3

How user-friendly is the system?

4

3

2

4

Total scored out of a maximum of 30

25

16

16

18

 

Clearly, different readers will rate these voting systems differently according to their own perspectives: my ratings are to an extent subjective. My scoring system is, however, based on an attempt to think through the main implications of the systems in terms of the degree to which they provide an accurate and user-friendly means for voters to record their opinions, and how they might influence voter behaviour.

But DPEV is the clear winner: a single-member system that would produce more accountable government and MPs, and would be fairer to England. I know I would say so, but it gets my vote!