The Empire Strikes Back: the plan to save the union
Here is the summary of the Lord’s Constitution Select Committee report which outlines a plan to save the Union. Reading between the lines it seems to want to make future devolution harder, thinks the UK government should decide (after consultation) what are the integral elements of the UK and those parts should not be devolved. Any devolution of non essential elements should first consider the overall effect on the integrity of the UK. The report writes off solutions such as home rule (because it would lead to UK break up) and federalism (nobody is interested in it), wants to make independence referenda more difficult in the future by taking into account the wishes of all four UK nations, wants to have the Scottish and UK governments work together instead of be confrontational, and proposes resolutions to the ‘English Question’.
We believe that the four nations of England, Northern Ireland, Scotland and Wales are stronger united than apart. The Union has brought stability, peace and prosperity to the United Kingdom. Yet today, the Union is under threat. Power has been devolved to Scotland, Wales and Northern Ireland in an ad hoc, piecemeal fashion. Successive Governments have taken the Union for granted. Proper consideration of the cumulative impact of devolution on the integrity of the Union itself has been lacking. Every system has limits. This haphazard approach to the UK’s constitution, in which power has been devolved without any counter-balancing steps to protect the Union, recently culminated in an existential threat in the form of a referendum on Scottish independence. An inattentive approach to the integrity of the Union cannot continue.
Following the significant changes that the territorial constitution has undergone in recent years, the time has come to reflect and take stock. While the constitution should reflect the wishes and interests of the nations and regions, that must not be at the expense of the stability, coherence and viability of the Union as a whole. Should any proposals for further devolution arise in the future, they should be considered within an appropriate framework of constitutional principles that safeguard the integrity of the Union. We also draw attention once again to the conclusion of our 2014 report, Proposals for the devolution of further powers to Scotland. It stated that the UK Government must “devise and articulate a coherent vision for the shape and structure of the United Kingdom, without which there cannot be constitutional stability.” The Union and the devolution process We do not share the Government’s confidence that all the pieces for a stable constitutional settlement will be in place with the implementation of the Scotland Act 2016 and the passage of the next Wales Act.
It is possible that at some point there will be demands for the devolution of further powers. It is essential that steps are taken now to ensure that any further proposals are dealt with in a manner that both meets the needs of the devolved nations and protects the interests of the Union as a whole. While the UK constitution has proved flexible and resilient over the centuries, the Scottish referendum threatened the integrity of the Union. We regret that Mr Letwin, the Government minister responsible for the constitution, does not recognise the concerns expressed by this Committee and many others at the pressures being placed on the UK constitution by the manner in which the devolution of powers has taken place, and continues to take place, with little consideration of the status and needs of the Union. The Government needs fundamentally to reassess how it approaches issues relating to devolution. What affects one constituent part of the UK affects both the Union and the other nations within the UK. Devolution needs to be viewed through the lens of the Union, with appropriate consideration given to the needs of, and consequences for, the entire Union.
The Union and devolution The UK Government should identify which functions are essential to the effective functioning of the Union. These are the functions that underpin and maintain the key elements of the Union, which we define in our report as the economic, social, political, cultural, and security and defence unions. We explain these elements fully in our report. Ending, or substantially weakening, any of them would undermine the Union as a whole. We also recommend that the UK Government publish a Devolution Impact Assessment, should any future proposals for devolution be made. This would measure the potential impact of such proposals on the cohesiveness and stability of the Union as a whole, and on each of its constituent nations. To help guide this process, we set out a number of principles that should underpin any future development of devolution.
These include solidarity, which is essential for the coherence of the Union. It must be balanced against the needs of diversity, reflecting the importance of recognising local circumstances and preferences. There must be responsiveness to demand, and due consideration given to an appropriate degree of consent for any change. Power should only be devolved according to the principle of subsidiarity, and in a manner that ensures clarity to assist public understanding of where responsibility lies. The constitution being a reserved matter, provision for any future referendum on an issue as fundamental to the Union as the secession of one of its four nations should be set out in primary legislation by the UK Parliament. This will enable proper scrutiny by representatives of all four nations. Adapting to devolution Recognition is needed of the overarching responsibility of the UK Government and Parliament for the effective governance of the United Kingdom. At the same time, a new mindset is required at all levels of government—one that recognises the devolved institutions as now being established components of the UK’s constitution.
This new mindset will require abandoning a ‘devolve and forget’ attitude. Instead the UK Government should engage with the devolved institutions across the whole breadth of government policy, co-operating and collaborating where possible. In particular, the Joint Ministerial Committee should be reformed to promote co-operation and collaboration, rather than grandstanding and gesture politics. We recommend that the UK Government undertake a thorough review of the operation of the Civil Service. It should consider how the devolved administrations can be more effectively and more consistently involved in policy development, in a way that answers their concerns and improves the governance of the UK. In our view, to perpetuate the use of the Barnett Formula, which takes no account of relative need, makes a mockery of the Government’s duty to ensure a fair distribution of resources across the UK. We recommend that the UK Government reconsider its use of the inadequate Barnett formula and establish a mechanism that takes into account the relative needs of different nations and regions in allocating funds.
Action is needed to clarify for citizens the increasingly complex division of responsibilities between different levels of government. Clarity is vital for proper accountability and responsibility at each level of Government. We recommend that the Government consider the ways in which UK Government services could be branded, to make clear to citizens the distinction between services provided by devolved government and those provided by the UK Government. We consider that the BBC and other public service broadcasters play an important role in maintaining a common British identity. By providing a shared source of culture and information, they act as a unifying force within the Union.
It is vitally important that independent public sector broadcasters continue to provide a common UK-wide service in addition to regional and local coverage, particularly in relation to topics such as news and current affairs. Civil servants can face conflicting priorities when a devolved administration takes a position diametrically opposed to the UK Government on a major policy issue. This tension was most acute during the Scottish independence referendum. Clear and definitive guidance for such situations should be issued now, rather than when political tensions have already started to arise. In particular, civil servants involved in a referendum that might jeopardise the integrity of the United Kingdom should be given clear guidance on their duties and rights.
The English Question The ‘English Question’ encompasses both concerns about the representation of England within the Union, and about the devolution or decentralisation of power within England. As a result of the devolution granted to other parts of the UK, the governance of England is now a key concern for those considering the territorial constitution. It is the largest, most powerful nation in the UK yet the only one without separate recognition and political representation within the Union. Meanwhile, within England power is centralised. As a result, there is dissatisfaction within England with the current territorial constitution. One proposed solution, the creation of an English Parliament, would introduce a destabilising asymmetry of power to the Union. Another, elected regional assemblies, is not currently being considered and is unlikely to gain any traction in the near future. The House of Commons has instead adopted procedures for ‘English votes for English Laws’ (EVEL) which aim to give English MPs a distinct voice in Parliament—but these are viewed unfavourably by some, including, but not exclusively, those representing the devolved nations whose devolution settlements already provide them with a distinct political voice.
The Government has also agreed a number of ‘devolution deals’ with local authorities, primarily forming new combined authorities with greater devolved powers. We generally support the principle of decentralising power, and consequently we cautiously welcome the deals. However, while they may address some of the concerns about the centralisation of power within England, there appears to be a lack of consideration given to how they may affect the overall governance of England in the longer term, and the wider territorial constitution of the UK. We discern no clear vision in Government of where the process might lead. We raise a number of concerns about the negotiation process for ‘devolution deals’, and in particular the lack of public engagement and transparency. It is essential that the public should be engaged about their concerns and about where they believe power should lie within England. It is too soon to know whether EVEL and the ‘devolution deals’ will provide an answer to the English Question. What is clear is that the English Question remains one of the unresolved issues facing decision-makers grappling with the UK’s territorial constitution.
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