AD HOC DEVOLUTION: CONTINUING IMPLICATIONS FOR THE UNITED KINGDOM CONSTITUTION
Devolution for the United Kingdom, effected as it was by one piece of legislation at a time, is a highly ad hoc and, one might say, messy affair. As such, the phrase coined by Ron Davies, secretary of state for Wales in 1998, that devolution is a process not an event has proven to be entirely accurate.
The implications of the ad hoc nature of the development, with its deep asymmetry and lack of formalization in the structure of inter-governmental relations, are, first, that the devolved territories continue to look for modifications to their devolved powers or their institutional relationship to the central state, and second, that the constitution of the state needs to adjust on an ongoing basis to the changes that have taken place.Given the high level of asymmetry that existed after 1998, it was only to be expected that Wales, with the weakest model of devolution, would in time look for new powers, in a process similar to that in Spain where the acquisition of powers by the autonomous communities became known as cafe para todos. Developments for Wales have in fact happened more quickly than might have been foreseen. Welsh dissatisfaction with its settlement grew quickly when viewed in contrast to the starkly more autonomous Scottish model. This has already resulted in change. A major review undertaken by the Richard Commission recommended structural changes to the model of devolution for Wales, including that the assembly should be reconstituted as a separate legislature and executive.38 Various modifications to the devolution model are being put in place through the Government of Wales Act 2006. This act effectively establishes a clear distinction between the National Assembly and the Welsh Assembly government, putting it on a standard Parliament-executive footing, whereby the government is drawn from the Parliament and in turn is accountable to it.
Furthermore, under the act a provision is made for the National Assembly to have competence to make a new category of legislation to be called “Measures” and which is, in essence, primary legislation. This competence will relate only to areas of policy that have been devolved and will be granted on an issue-by-issue basis upon a request being made to United Kingdom government.With these developments, which include a gradual move for Wales towards powers similar to those of Scotland, there is perhaps a sense that the United Kingdom is moving ever more towards quasi-federalism. The two administrations in Scotland and Wales will now find that problems they have with the centre in terms of lack of intergovernmental co-operation are increasingly shared concerns, which may lead to the strengthening of a common front for further consolidation of the “representation” side of devolution to align with the already strong “autonomy” side. Now that the Northern Ireland institutions have been restored with a new degree of stability, it seems that they too will soon look more closely to the role they have in executive decision making at the centre of the state. These developments may increase pressure for a more formalized intergovernmental structure; indeed, the incoming SNP Executive in 2007 announced it wanted to formalize IGR.
A related development is the challenge of separatist nationalism, which is present in a strong way in Scotland and Northern Ireland. Taking the latter first, the Northern Ireland Act 1998 anticipates the possible secession of the territory, and in many ways the continued division between two communities leaves this final option as something of a zero sum game.39 In Scotland the dynamic is perhaps more complex in that, with the SNP now forming the executive, devolution is more than ever seen as an ongoing process. On the one hand, the SNP agenda is avowedly separatist, as evidenced by its plans for a referendum on independence in 2010,40 but there is a longer game at work also.
In Scotland a number of parties and other lobbying interests besides the SNP seek new powers, especially fiscal powers.41 Were significant reforms to be undertaken this could well encourage demands for change in Wales and perhaps Northern Ireland, just as Basque fiscal competence has long been a focus for Catalan nationalists seeking similar powers. For the separatist nationalists the agenda seems like a win-win. Either more powers will be achieved, which will serve to make the United Kingdom seem less and less relevant to Scotland, or, to use a Marxist analogy, the model of ever-escalating and hence unachievable demands will have a similarly deleterious effect. The rejection of demands by the centre will expose it as in fact inherently indisposed towards the realisation of nationalist aspirations within the host state structure, leaving independence as the only feasible alternative.Another issue involving the powers of the devolved territories is not so much constitutional as political or policy-based, but it can have constitutional implications. There are now examples of policy-making in a devolved territory driving the demand for change in other areas of the state: the bans on hunting mammals and smoking in public places in Scotland were soon followed by equivalent legislation for England. Although these are not constitutional issues, we see similar developments at this level. An institution created in Northern Ireland – the Northern Ireland Human Rights Commission – was an innovation that was not found in the HRA for the United Kingdom as a whole. This began a debate leading to the establishment of a similar body for Scotland42 and a new Equality and Human Rights Commission established at United Kingdom level in 2007.
The second major implication of ad hoc devolution is that the constitution of the state needs to adjust on an ongoing basis to accommodate the somewhat messy arrangements that do not fit comfortably into the Westminster system.
There are two areas where there are unsettling consequences of this unfinished arrangement – one is inter-governmental relations and the other is inter-parliamentary relations.Taking Scotland as our case study, the devolution model is very lop-sided when compared to a federal system. Although containing a great deal of detail concerning the balance between devolved and reserved matters,43 the Scotland Act is much less vocal with regard to representation at the centre – what in federal systems is known as intra-state federalism. There are very few provisions touching on how inter-governmental and inter-parliamentary relations should be managed under devolved arrangements in terms of the creation, structure, and modus operandi of institutions to coordinate policy for the United Kingdom as a whole. A formal system of inter-governmentalism is widely seen as a crucial component of any credible decentralized model, not only to give subunits a protected level of involvement in central decision making but also to help avoid, or at least resolve, conflicts between different levels of government. It is in this sense that sub-state national societies actively seek certain modes of integration, in other words, formal pathways of representation at the centre with which they can meet with the dominant national society as partners in a joint multinational enterprise.
But the model in place is very informal. An important body for relations between Scotland and London is the Joint Ministerial Committee (JMC), which establishes a format for co-operation between ministers in Whitehall and their counterparts in Edinburgh and the other devolved administrations.44 Generally it was intended to operate through meetings between officials or in direct relationships between one London department and its devolved equivalent. It was intended to deal with reserved matters insofar as they might affect devolved territories and devolved matters where they affect the rest of the United Kingdom.
Flowing from this arrangement are a series of Memoranda of Understanding, and Supplementary Agreements known as “concordats.”45Since there is no legal requirement to conduct relations with the Scottish Executive in a particular way (or indeed at all), the United Kingdom government can set the terms for such discussions, can table the agenda it wants, and can offer greater or lower levels of co-operation to the devolved administration or individual departments within it based on political preference.46 In this way the devolved institutions can be induced into a position of political compliance in order to gain a role in these discussions. More importantly, just as there is no legal requirement to enter into negotiations, similarly there is no obligation on the United Kingdom government to reach agreement with the devolved institutions on any issue of policy, even where it affects the devolved territory. Inter-governmental co-operation can be, and often is, simply a process of passing on information concerning decisions already taken by the centre. Furthermore, such quasi-formal mechanisms as have been established through the JMC have not been utilized systematically: some departments at the United Kingdom level operate in a significantly more structured way with their Scottish counterparts than others.47 Another difficulty is that the culture of secrecy that continues to pervade British government, despite freedom of information legislation,48 has made the operation of intergovernmental relations very untransparent.49
Several factors have helped things run smoothly thus far. One is the fact that the Labour Party was in power in both London and Edinburgh (the latter in coalition with the Liberal Democrats) from 1999 until 2007, and since so much within the existing arrangements depends on political agreement, this was a felicitous coincidence. A second factor in the easy adaptation of administrative processes, and indeed in the lack of transparency that continues to attend them, is the continuation of a unified British civil service from the pre-devolution system.
A strong culture of integrated government survives among civil servants, who operate within one employment and promotion system; this is widely seen to be an integrationist factor of considerable practical importance in the operation of devolution.50 These centripetal tendencies are underpinned by the system of funding mentioned above. It was anticipated that territorial financial arrangements would be a source of conflict in the United Kingdom, as they have been in other decentralized states. But central control over tax-raising has meant that this has not in fact become an issue, certainly not in terms of provoking competence disputes. Therefore, central fiscal power complements control over inter-governmental relations and over the civil service to create a powerful system of carrots and sticks that encourages/requires gravitational compliance by the devolved administration in Scotland with central policy objectives.51It should also be noted that there are strong political as well as institutional pressures towards convergence. This is not simply because of the role of the Labour Party in both administrations until 2007. There are expectations among citizens and political elites alike that common standards, particularly in respect of public services, will be maintained across the United Kingdom.52 Also, there are areas where United Kingdom-wide policy communities are well-networked and look for uniformity, one example being in higher education. This is not uncommon in any decentralized state, plurinational or otherwise, and it speaks to the bonds that unite people. This again is an example of how not every integrationist activity is unpopular within sub-state national societies, given these strong pulls among the citizenry towards policy integration – based on partnership not assimilation – across a range of areas. What seems to be problematic, however, is the lack of formal mechanisms whereby the different nations of the United Kingdom can debate their different, or indeed shared, priorities in a systematic and transparent way. The excessively centralized, informal, and secretive devices currently available may well breed dissatisfaction with the process of these deliberations even when substantive agreement itself may be attainable.
In terms of inter-parliamentary relations between the Scottish Parliament and Westminster there are two notable issues that highlight the potentially unsatisfactory nature of devolution in terms, respectively, of a coherent division of competences between legislatures and the protection of the prerogatives of a devolved legislature from central encroachment. The first illustrates clearly the distinction between a system of legislative devolution and a federal model. The Scotland Act brought with it little change in Scottish representation at Westminster. Scotland, for historical and political reasons, had for most of the twentieth century enjoyed more seats in the House of Commons than a simple per capita distribution across the United Kingdom would have provided. The Scotland Act set out to correct this anomaly53 – the reasoning being that with increased autonomy there was no longer any justification for such over-representation, and a reduction from seventy-two to fifty-nine MPs was effected in time for the 2005 General Election.54
Nonetheless, an argument persists that Scottish MPs exert too great an influence within the House of Commons. The contention is that since certain matters that are devolved to the competence of the Scottish Parliament are dealt with for England, and in certain cases other parts of the United Kingdom, by Westminster, it is unfair that MPs who are returned to the House of Commons from Scotland can vote on matters that affect other parts of the United Kingdom but not Scotland.55 This has been called the “West Lothian”56 question, and it has become particularly controversial in situations where the United Kingdom government has relied on Scots MPs to pass legislation that does not affect Scotland but that would have failed without their support.57 This is in reality a fallout from the ad hoc nature of devolution, whereby Scotland achieved autonomy without any similar process for England.
The consequence of this somewhat messy arrangement is that it damages the traditional territorial linkage within a parliamentary democracy between representatives and voters. Voters in England might justifiably feel aggrieved that their preferences are not being met. This situation does not promote a partnership integrationist strategy, since it also suggests to Scots that the United Kingdom Parliament is now increasingly an English Parliament and that their interests might be better served by gaining more powers for the Scottish Parliament. It also increases the likelihood that English voters, resentful of the way in which their priorities are subject to the voting patterns of Scottish MPs, will favour a reduced role for Scotland at Westminster.58
Another tension resulting from the West Lothian issue concerns the United Kingdom executive. It is also argued by some that just as it is unfair for MPs from Scotland to vote on English or Welsh matters, for the same reason it is inappropriate for ministers who represent constituencies in Scotland to serve in the United Kingdom government.59 According to this argument, ministers should not be formulating policy for England, and in some cases Wales, when they are not elected within these territories and when ministers from England and Wales are restricted as to the policies they can form for Scotland. Once again, however, this debate detracts from any partnership integration strategy. Suggestions that, for example, it might be inappropriate for Gordon Brown, who represents a Scottish seat, to succeed Tony Blair to the position of prime minister, heightens tensions and also exacerbates the risk that the United Kingdom executive will come to be seen in Scotland as the government of England.
The West Lothian issue therefore highlights how Westminster continues to act with the air of a unitary parliament and is very different from those federal legislatures that are, in effect, negotiating for different territorial interests. There is also no sign of significant change in a plurinational direction. The general lack of territoriality is particularly apparent when we consider the House of Lords, which unlike the second chamber in a number of federal systems, is not constituted as a “chamber of the regions,” reviewing the work of the lower house from a territorial perspective. There is an ongoing process of reform of the second chamber, but so far this has not led to, nor are there any plans that it should lead to, the conversion of the House into a territorial chamber with equal representation or even weighted representation for the three devolved territories.60 Proposals for reform of the House of Lords have emphasized almost exclusively the “democracy” issue rather than the “territorial” issue. This is another area where devolution might produce the impetus for change as pressure grows for a forum in Westminster that is oriented to reflect the territorial and indeed the union nature of the state.
Another issue that, according to critics, hints at assimilationist integrationism has been central coordination of the legislation of Westminster and the Scottish Parliament. As was mentioned above, a convention has developed whereby the United Kingdom Parliament will not legislate on devolved matters without the consent of the Scottish Parliament. Therefore, the Scottish Parliament has instituted the practice of passing resolutions authorizing the Westminster Parliament to legislate on its behalf. These “Sewel resolutions,”61 or “legislative consent memorandums,” have been heavily used, largely to ensure United Kingdom–wide uniformity, to give legislative effect to EU law and other international obligations and, more controversially, to create time for the Scottish Parliament to do other things. Considerable disagreement remains as to whether this procedure is simply an efficient device in the management of inter-parliamentary relations or an instance of Westminster encroaching on the Scottish Parliament’s autonomy.62
Related knock-on effects have been proposals to create regional government for England. There has been no commitment to create an English Parliament analogous to devolved institutions elsewhere in the United Kingdom, but the Labour government did pursue a policy of regionalization in England. London has an elected mayor with “strategic” steering powers over a number of London-wide agencies and a role in mobilising other bodies, such as local authorities, behind regional strategies. There are no legislative powers. The mayor is held accountable by a directly elected assembly. Similar proposals, though without a directly elected executive leader, were proposed for the other English regions and decisively rejected (by 4: 1) in the North East. The United Kingdom government has now dropped plans to introduce elected regional authorities outside London.