"English votes for English laws" is the resurrection of a policy that failed over Irish home ruleby Jack Straw / October 27, 2007 / Leave a comment
Published in October 2007 issue of Prospect Magazine
In the 1955 general election, the Conservative party not only won a majority of seats in Scotland but also a majority of the votes—the only time that has been achieved by any political party since the war. Today, it is impossible to imagine such an outcome. The Tories are barely represented in Scotland and Wales, and despite sporadic advances in English local elections, are conspicuous by their absence in the great northern cities. This situation is now affecting the party’s psychology. The Conservatives are in danger of becoming a party of narrow English nationalism.
Nowhere is this more evident than in the party’s attitude to devolution and its policy of English votes for English laws. This is the Conservative answer to the so-called “West Lothian question,” named after the constituency represented by Tam Dalyell. He famously asked whether, after devolution, it was justifiable for Scottish, Welsh or Northern Irish MPs to vote on all issues before the British parliament, when MPs representing English constituencies would not be able to vote on devolved matters.
“English votes for English laws” is the resurrection of a policy that first surfaced with the Irish home rule proposals of the 19th century. It may sound like a beguilingly simple solution—the premise being that only MPs representing English constituencies should be allowed to vote on specifically English business. But the proposal is unworkable: it would fatally undermine the Westminster parliament and irrevocably fracture the union.
It is first worth asking why this has become such an urgent issue for the Conservative party, when for most of the 20th century it raised no objection to the position of Northern Irish MPs in Westminster, despite the fact that the Government of Ireland Act 1920 established virtually the same devolved powers for Northern Ireland as the Scotland Act 1998 established for Scotland. Could it be, as John Sewel of Aberdeen University has asked, “that the period of deafening silence was quite simply because the Conservative party was in formal alliance with the Ulster Unionist party?”
On one of the few occasions when the Conservatives spoke out on this issue, it was to support the full involvement of Northern Irish MPs. This was in 1965, at a time when Harold Wilson was unhappy at Ulster Unionist MPs joining the Tories in voting against steel nationalisation when the bill related to Great Britain only, and not to Northern Ireland. Wilson asked Elwyn Jones, the attorney general, to look into the possibility of devising an “in and out” scheme so that the votes of Ulster MPs in Westminster would be counted only in respect of Northern Irish and reserved matters. Jones reported to Wilson that there were a number of difficulties with the proposal and concluded that it would present “a real threat to our present parliamentary system of representation as it has long been accepted.” In outlining his argument, Jones referred back to Gladstone, who had proposed a similar “in and out” plan for all Irish MPs as part of his second home rule bill in 1893.
Gladstone’s home rule solution was a forerunner of David Cameron’s answer to the West Lothian question. Gladstone argued for the “in and out” answer at the second reading of the bill before he had faced the intricacies and inherent contradictions of his solution. But at committee stage the scheme fell apart in his hands. Among the various flaws he found was the impossibility of discriminating between “Irish” and non-Irish (described as “Imperial”) issues. Despite labouring hard to do so, Gladstone was forced to concede that “it passed the wit of man to frame any distinct, thorough-going, universal severance between the one class of subjects and the other,” and on 12th July 1893 withdrew the measure from his bill.
Fast forward to the 21st century and we can see the same difficulty in respect of identifying specifically “English” laws. This was displayed in 2004 in the passage of the higher education bill, which contained measures to introduce tuition fees in English and Welsh universities only. As student finance was a devolved matter in Scotland, the policy would not apply there. The Conservative party dubbed the legislation a “West Lothian bill” and instructed their one Conservative MP in Scotland, Peter Duncan, to abstain despite the fact that he had previously voted 37 times on “non-Scottish” issues—including on the Mersey tunnels bill.
In fact, an analysis of the bill by the Constitution Unit at UCL found that although the territorial extent of the bill covered England and Wales, Part 1 provided for the establishment of the Arts and Humanities Research Council, which extended to the whole of Britain. As the Constitution Unit noted, this was typical of the difficulty in stipulating the territorial extent of bills, which can often contain provisions that apply to different parts of the country.
The problem, however, as Gladstone had discovered, is that the “territorial extent” clause of a bill could never be sufficient evidence as to whether a bill, or subdivision of it, could be certified as applying to England and Wales only. To certify a bill as “English,” it would be necessary to isolate its constituent elements on a part-by-part or even clause-by-clause basis, with votes on each. Aside from (in George Foulkes’s words) the “legislative hokey-cokey” that this would entail, it would place enormous pressure on the speaker, who would have to rule on the territorial reach of legislation.
One reason a bill could have clear effects beyond its territorial extent is the dominance of England within the union. It has over 84 per cent of the British population, over 80 per cent of the GDP and over 80 per cent of the seats at Westminster. English MPs can wholly determine the level of public expenditure in other parts of Britain, and tax levels too (apart from council tax and the currently unused Scottish parliament 3p in the pound tax supplement). Decisions that ostensibly impact only on England in practice resonate around Britain.
The higher education bill starkly exposed this fact, and shed further light on the problems of defining “English legislation.” In contrast with the Scottish Conservative MP, all SNP MPs opted to vote on the bill, arguing that tuition fees in England and Wales would have a knock-on impact in Scotland. Tam Dalyell reached the same conclusion and broke his self-denying ordinance of not participating in votes on “English-only” legislation. These MPs’ reasoning was that changes in expenditure on higher education in England and Wales would impact on Scotland’s block grant—and thus on the level of public expenditure in Scotland. This had previously been explicitly acknowledged by the royal commission on the constitution, which stated that “Any issue in Westminster involving expenditure of public money is of concern to all parts of the United Kingdom since it may directly affect the level of taxation and indirectly influence the level of a region’s own expenditure.”
So there are virtually no clear-cut “English” issues that are of no consequence in Scotland and Wales. However, according to constitutional expert Vernon Bogdanor, a more fundamental concern is what would happen if party majorities in England and Britain were different. It would bifurcate the executive. A British government might not then be able to command a majority for its English business. Such a situation would be incompatible with cabinet government, which requires cabinet to be responsible to parliament for all the issues that come before it, not just a selection.
Of course, there are some who argue for an English parliament. But this would undoubtedly mean the end of the union. William Goodhart, the Liberal Democrat peer, has said: “First, the English parliament would insist on taking control of welfare and pensions—the largest element in public spending, and a subject that would be of enormous importance to England. The English parliament would next insist on setting its own taxes. It would not be prepared to leave control of the raising of funds, which the English parliament would then need to spend, to a UK government controlled by another party… The English government would be far more powerful in everyday life than the UK government, and if that happens then Scottish secession from the union seems almost certain.”
The Conservative party should heed these words and remind itself of the historic consequences of failure to grant Ireland home rule. The rejection of the second home rule bill in 1893 by the Tory-dominated House of Lords, and the failure to implement the third home rule bill due to the outbreak of war in 1914, paved the way for Ireland’s exit from the union. As George V said to Ramsay MacDonald in 1930, “What fools we were not to have accepted Gladstone’s home rule bill. The empire now would not have had the Irish Free State giving us so much trouble and pulling us to bits.” The Conservatives need to learn from that experience and understand that it is by embracing devolution that the union has been able to survive and to thrive.
Pursuing “Little England” policies that create resentment between the peoples of Britain is a sure means of destroying the union. The West Lothian question is not an “English question,” a “Welsh question,” a “Scottish question” or a “Northern Ireland question”—it is a union question.
The Conservative party cannot go on claiming to be a unionist party while advocating policies that every expert and many of their own members, notably Malcolm Rifkind, recognise will break up the union. It is time for those who oppose the break-up of the union to oppose the “in and out” solution in its modern guise of English votes for English laws. You are either in the union or you are out of it; you cannot be both.
Devolution in the late 1990s was essential in securing and strengthening the union. It is unclear whether those questioning devolution today accept that proposition. Do they think devolution was necessary after 1997? If they do not, what do they say should have happened?
Devolution provides the right balance between local (in its broadest sense) and national concerns. It frees the constituent parts of Britain to innovate local solutions for local problems. If there are different policies in different parts of Britain, that is part of the point of devolution. The arrangements are necessarily asymmetric, as with most democratic constitutions, because the protections needed for the interests of minorities are different from those needed for the majority.
As Charlie Falconer, my predecessor as lord chancellor, has pointed out, “If we were seeking symmetry or even logic in the British constitution, we would have to tear up most of it. We are not about constitutional symmetry. We seek practical changes for practical goals. The great strength of our constitution is its effectiveness. It can accommodate difference and rough edges in support of wider goals of national unity, affiliation to the institutions of the state and the service of those institutions to the public.”
This unity is vital to the people of Britain. The union of peoples that constitutes Britain may be old, but with a British parliament and devolved arrangements for Scotland, Wales and Northern Ireland, it looks more in tune with the modern world than most political systems.
Scotland, England, Wales, Northern Ireland, Britain: these are not isolated compartments. They fit together. Globalisation makes the relationship more, not less, relevant to individuals. Our unity gives strength to our voice on the international stage and in this increasingly interdependent world.