An article of faith in the Scottish independence debate has – quite rightly – been that it was for Scotland, and only Scotland, to decide whether it should remain part of the UK. But it is equally clear, now that Scotland has rejected independence, that a broader debate is necessary. That debate will reverberate throughout the country, and its outcome may well have profound consequences for the UK’s constitutional architecture.
That architecture is a product of the intensely pragmatic attitude to reform that is the defining characteristic of British constitutionalism. Wholesale reform is eschewed in favor of incremental change – many problems fail to be resolved until political pressure so dictates.
The devolution programme is a case in point. Power has been given to new institutions in Belfast, Cardiff and Edinburgh in quantities and forms that reflect the different levels of demands made.
England, meanwhile, was wholly excluded from devolution, the perception being that there was no appetite for it. As a result, England finds itself governed – by default – by UK institutions. There is no separate English Parliament, as there is for the UK’s other constituent parts, and so the UK legislature and executive assume a supplementary role as de facto English institutions.
For a long time, this anomaly was considered unproblematic, England’s relative size allowing it to punch its weight even without formal institutional representation. But the Scottish No vote changes all that, as the prime minister made clear in his statement following the referendum result.
The independence debate has not only put the incredibly lopsided nature of the present system in the spotlight; it is likely to bring about a furthering of it. Prompted to act by an opinion poll suggesting a narrow lead for Yes, the leaders of the three main UK parties pledged the devolution of still-greater powers to Edinburgh in the event of a No vote.
Yet as further authority shifts to the Scottish parliament – and, quite possibly, to its counterparts in Northern Ireland and Wales – England’s situation becomes increasingly unsustainable. The difficulty is not necessarily that England lacks governing institutions of its own. It’s that UK institutions acting on England’s behalf can be influenced by those who represent the interests of other parts of the UK.
The epitome of this phenomenon is the “West Lothian question”: MPs from outside England can shape laws affecting only England, even though equivalent laws affecting other parts of the country are immune from influence by English lawmakers. As further power is devolved from Westminster, the one-sided nature of the current system becomes yet more pronounced.
An English solution?
The prime minister today suggested that “English votes for English laws” – an approach rejected by the McKay Commission last year – is the solution to this conundrum. This would effectively create a parliament within a parliament: a corpus of English MPs would deal with the majority of the business – that is, English business – conducted at Westminster, while MPs from elsewhere would participate only in matters affecting their part of the country or matters relating to the UK as a whole.
But within the Westminster model, the legislature serves not only as a lawmaking body but also as an “electoral college” whose party-political composition determines who forms the government. It is therefore easy to foresee circumstances in which a government with a majority across the UK would, in its guise as the de facto English government, be unable to command the support of the House of Commons.
Take, for example, Labour, which is traditionally strongly represented in Scotland. Were Labour’s Scottish MPs – of whom there are presently 41 – excluded from voting on matters concerning England, the likelihood of a Labour prime minister being able to enact his legislative program would be diminished.
This, in turn, raises questions about the sustainability of the current model of government under reformed legislative arrangements. It is therefore illustrative of a still-broader point: that every ad hoc solution adopted pursuant to a piecemeal approach to constitutional reform risks creating a new, if unintended, difficulty. Indeed, it is precisely because seeking to answer the West Lothian question risks opening up a Pandora’s box of new issues that politicians have for so long sought to avoid its confrontation.
None of this is to suggest that the nettle should not now be grasped. Nor is it necessarily an argument in favour of the sort of grand constitutional redesign for which some are now calling. But it does suggest that we should at least pause for reflection. And it cautions against a rushed implementation of back-of-the-envelope proposals.
Mark Elliott is Reader in Public Law at the Faculty of Law, University of Cambridge.
This article was first published in The Conversation. Click here to go to the original.