In his seminal book, What’s Wrong with the British Constitution?, Iain McLean explains how, before devolution, Scotland, Wales and Northern Ireland were over-represented in the House of Commons by around 30% compared to England. If, instead, Scottish constituencies had represented the same number of voters as English constituencies then Scotland would have had around 55 MPs rather than 72. This over-representation was a reward for not having home rule and in a small way recognised the legitimacy of the Celtic nations in terms of representation beyond population size. Following devolution, the Scots MPs were reduced from 72 to 59. Wales and Northern Ireland, with lesser devolution, retained their original over-representation.
McLean opposes English votes for English laws. Instead he suggests mitigation for the “West Lothian” question through removal of the the over-representation of the devolved countries and adoption of under-representation as devolution is further increased. Given DevoMax, Scotland should actually be under-represented by 30% and would therefore have around 39 MPs. Increased devolution short of DevoMax for Wales and Northern Ireland would see their representation fall but to a lesser extent than that of Scotland.
The 39 rather than 59 MPs from Scotland would continue to vote on English matters. Equality between MPs would be retained and the right to vote on English matters could be seen as compensation for the reduction in their numbers, a reduction that is very real when it comes to voting on UK-wide issues such as immigration.
The McLean solution is not ideal but is preferable to either English-votes-for-English-laws, about whose disadvantages I have already written. It is also preferable to the Prussian-style instability of an English Parliament. The optimal solution of equal federalism that includes regionalisation in England may not be achievable given the resistance from vested interests and the apparent lack of demand for regionalisation in England.
As I have argued elsewhere, English votes for English laws would be impossible to implement without a written constitution and would lead to discrimination against Scots MPs. But the creation of an English Parliament also provides a poor solution to the “West Lothian Question”.
Devolution to an English Parliament, a separate institution from the House of Commons, has some attractions. It would have power to vote on domestic legislation over education, health, transport and anything else that is also devolved in Scotland. It would be the English equivalent of the Scottish Parliament. It could work but it is not ideal and here is why.
First, presumably an English-wide government in London would be established alongside the UK government that would continue to look after foreign, defence and monetary policies. Would this be popular or effective? Second, it seems that that the DevoMax on offer for Scotland will not necessarily be matched in Wales and Northern Ireland. It is difficult to see how England-wide devolution could work unless there is absolute equality in powers exercised by the devolved parliaments and governments of the four countries. Third, even with equal DevoMax across the board, and equality between English and Scots MPs at Westminster given that the separate UK-wide government would be left as the non-devolved federal shell, England would still dominate. England makes up over 80% of the population of the UK. This would be a top-heavy federation, comparable to the role of Prussia from 1871 to 1932, which maintained separate institutions from Germany. The unhappy politics of Weimar Germany were worsened by turf wars between the two governments in Berlin, particularly when the Social Democrats continued to be in the Prussian government, while in opposition at the German level. An English government could destabilise not only the UK government but also the administrations in Scotland, Wales and Northern Ireland.
The remaining solution is symmetrical federalism to the existing devolved administrations and to new regional governments throughout England. This means allowing those new administrations powers equal to those exercised by Scotland. Again this would leave the UK parliament and government with MPs who were equal and Ministers who would look after UK-wide, non-devolved powers.
We would hear that nobody in England wants regional government as we saw in the referendum over devolution in the North-East of England in 2004. That was a campaign led by John Prescott to introduce a regional government with very limited powers that was vulnerable to attack by a ‘no’ campaign focused on the ills of “useless” bureaucracy. There was no constitutional convention or engagement of citizens. If we talk of proper federalism based on DevoMax, and having engaged civil society in a proper debate, the chance to determine tax, spending, health, education, transport, police, justice, and almost everything that government does except for foreign, defence and monetary policies may be more popular – particularly since these powers would move from London without duplications. Regional identity in England varies, but there is a strong sense of identity in Yorkshire, the Midlands, London, and the South. What need to be abandoned are the regions invented by John Prescott. They are mostly too large and lack identity. Smaller counties with very strong identities like Cornwall could be regions. Micro-regions prosper in other countries, for example Ceuta (82,000 people) in Spain, Corsica (300,000 people) in France or the Aosta Valley (120,000 people) in Italy. Prescott’s regions lacked any chance of identity-formation precisely because they were too large and too few. Within England, he created only nine of them. This compares to 20 in Italy and 22 in France, which have a similar population size to the UK. In Spain, 40 million people live across 19 regions.
In each of these countries, regional government was set up without referendums but popular allegiance seemed to follow. Regionalisation in England could be accepted by a national referendum rather region-by-region if this were the will of a constitutional convention that engaged civil society and public opinion. Moving the bulk of domestic policy from a diminished Whitehall to regions or groups of counties or cities with some sense of identity could be an invigorating prospect for English democracy. Many Scots seem to approve of increased fiscal powers and ending the Barnett formula that over-rewards Scotland. Keeping money within one’s own devolved region could be remarkably popular, particularly with voters in southern England.
We cannot ignore that federalism reliant on full-scale regionalisation in England would be difficult to achieve. The Whitehall and Westminster elites would do all they can to resist and persuading public opinion could be insurmountable even with a constitutional convention of the type that took place in Scotland. In my next piece, I look at Iain McLean’s proposal for cutting the number of Scots (and perhaps Welsh and Northern Irish) MPs at Westminster.
Due to the referendum on Scottish independence, the UK government has committed itself to legislation for increased devolution of powers, or DevoMax. In return, a further reduction in the number of Scottish MPs at Westminster or taking away their right to vote on legislation for England is in the offing.
Because of devolution, Scotland is already disenfranchised in aspects of EU policy-making. In devolved policy areas, the Scottish government has no formal vote on the Council of the European Union, where police cooperation in Europe, agricultural, transport or environment policies are represented by UK ministers. The British (English) Secretary of State takes legislative decisions in the EU Council in precisely these areas that are already devolved.
In policy-making there are often grey areas over who has competence (see further down for my comments on shared competence). Who will decide if a law applies only to England and Wales, but not to Scotland? Will it be the Supreme Court? Without the UK acquiring a written constitution, will the Supreme Court or some other agent like the Speaker of the House of Commons adjudicate? Or will the authors of bills, whether the government or ordinary MPs, tick a box from the start to indicate that the bill will not apply in Scotland and will therefore exclude Scottish MPs from the right to vote? What if a Labour government or a Labour MP proposes a bill whose likely effect will be only on England but to make it easier to pass declares that it is an all-UK bill? What if the bill is genuinely declared to be England-only but due to its regulatory effects, it requires de-facto compliance elsewhere in the UK? Would Scottish MPs still be allowed to be UK Ministers in departments like the Foreign Office or Ministry of Defence whose policy areas are not devolved? What about the Treasury given that some taxes won't be devolved and given the Treasury's oversight of sterling? What about the Home Office, where police matters are devolved but immigration isn’t? Since the Home Office will continue to manage immigration, surely a Scottish MP should not be disqualified from becoming Home Secretary.
The “West Lothian Question” of Scots MPs voting on English matters but not having the power to vote on matters back in Scotland is a problem. Can “English votes for English MPs” be solved by a written constitution with judicial application that can be widely viewed as legitimate? In federal systems like Germany and Switzerland, the Constitutions define exclusive competences for the federal and state levels. They also list shared competences where either the federation or the state can legislate. Even a tight written constitution on this model would presumably allow shared competences, in which case Scottish MPs would still be voting on English matters and sometimes English-only MPs would be voting on matters that also affected Scotland.
English votes on English laws would be impossible to implement and adjudicate, and would undermine the equality between elected members of the House of Commons. I explore an English Parliament and symmetrical federations in a further piece. I also explore the more viable alternative to English votes on English laws here, which is to reduce the number of Scots MPs.
Today’s ruling at the Appeal Court in Milan quashed Berlusconi’s conviction for underage prostitution and abuse of office.
The lower court had convicted Berlusconi to seven years of house arrest and a lifetime ban from public office for this double offence. In Italy, prostitution is illegal if the prostitute is under 18. It seems that the appeal court cleared him of the underage prostitution offence because he convinced the court that the prostitute had lied about her age and that he genuinely believed she was over 18. To a UK audience this seems incredible, since the excuse of believing that a minor was over 16 or over 18 in a sex case has never been permissible.
As for the abuse of office case, the very same underage prostitute committed a minor theft from a third party some weeks later and was arrested. From inside the police station, she called the then Prime Minister on her mobile phone. Afraid that she would spill the beans to the police, Berlusconi (as Prime Minister) telephoned the Police Chief and asked him to release the young woman because she was the grand-daughter of the President of Egypt and that her arrest would cause a diplomatic incident. (For the record, the woman in question is not related to any ruling families in the Arab World.) This was not denied at the Appeal. However, on a legal technicality he was just cleared because that charge of abuse of office only applies if the recipient of the request (the police chief) gained something from the request such as promotion or another favour in kind:
It therefore seems that the underage prostitution occurred as did the abuse of public office despite Berlusconi being cleared on legal grounds by the Court. For now, it is not totally finished, since the prosecution has the right to lodge a counter-appeal in front of Italy’s Court of Cassation. However, the case would have more time to run if the Court of Cassation found against Berlusconi because it has the power only to uphold the decision of the Appeal Court or to order a re-trial in a lower court, which would mean returning to square 1.