Last month, Commission on the Consequences of Devolution for the House of Commons (the McKay Commission) released its report, which you can read here. The Commission had been appointed in January 2012 and was asked to consider:
how the House of Commons might deal with legislation which affects only part of the United Kingdom, following the devolution of certain legislative powers to the Scottish Parliament, the Northern Ireland Assembly and the National Assembly of Wales.
In other words, the Commission was looking into the matter of the “West Lothian Question.” The Parliament.uk website explains the West Lothian Question this way:
Named after Tam Dalyell, MP for West Lothian, who raised the question of the participation of MPs in Scotland, Wales and Northern Ireland in the UK Parliament after devolution. In a debate on devolution to Scotland and Wales on 14 November 1977, Mr Dalyell said: For how long will English constituencies and English Honourable members tolerate at least 119 Honourable Members from Scotland, Wales and Northern Ireland exercising an important, and probably often decisive, effect on British politics while they themselves have no say in the same matters in Scotland, Wales and Northern Ireland.
For Canadian readers, imagine a scenario where education policy isn’t a provincial responsibility in Canada, but under federal jurisdiction. It is the Government of Canada and the Parliament of Canada which decide all policy affecting every aspect of education across the country – from curriculum to tuition fees. Then, after years of negotiation, one province, say Quebec, is given full control over education matters in that province, while the other provinces still see Ottawa deciding education policy for them. Quebec MPs still get to vote on pieces of education legislation affecting the rest of the country, but that have no impact within the province of Quebec itself, but MPs from the rest of Canada, and the Government of Canada, have no say in any aspect of education policy within Quebec. What if the government one day decides to significantly increase tuition fees across the country – triples them, while in Quebec, the provincial government actually does away with tuition fees. The tuition fee policy is very controversial, and even a number of government backbenchers rebel against the policy (it’s a fantasy scenario – play along). The tuition fee increase passes, but only by a handful of votes. People soon realize that if the Quebec MPs hadn’t voted, the tuition fee increase would have been defeated and many start to question if MPs from Quebec should have a right to vote on policies that don’t affect their province at all, especially very controversial ones such as a massive tuition fee hike.
This is a highly generalized example of the West Lothian Question in the UK. There is a growing perception among MPs and voters that MPs from England proper should have a more decisive role in making laws for England in policy fields that have been devolved to the Scottish, Welsh and Northern Ireland assemblies. As the McKay Commission explains in its report,
The West Lothian Question is a consequence of the introduction of “asymmetrical devolution arrangements that extend to Northern Ireland, Scotland and Wales, but not to England. The issues it raises are a constant presence in post-devolution UK politics as MPs from Northern Ireland, Scotland and Wales routinely vote on legislation that wholly or mainly affects England alone. But the political resonance of the West Lothian Question is at its greatest when it is possible for the majority opinion among MPs from Englan don a piece of England-specific legislation to be overruled by a majority of all UK MPs, including those from Northern Ireland, Scotland and Wales.
The Commission does point out that instances when a majority of MPs from England is overruled by the UK-wide majority are in actual fact extremely rare. They identify three such scenarios – two happened only rarely, and one never has. Since WWI, the party or coalition forming the UK Government has almost always had a majority in England, as well as in the UK as a whole. Only during two short-lived parliaments was this not the case. Another example would be situations where a government with a majority of MPs both from England and across the UK as a whole suffers a parliamentary rebellion among its England MPs (this does happen in the UK, unlike Canada). In such an event, a controversial piece of legislation may pass because of support from MPs outside of England. The Commission identified two examples of this which occurred under Labour – votes on the introduction of foundation hospitals in 2003 and the introduction of university top-up fees in England only in 2004. In these two cases, a good number of Labour MPs from England rebelled and voted against their government, but Labour MPs from Scotland and Wales ensured that the government maintained its majority. The last scenario in which the will of the majority in England could be overruled would be if a party had a clear majority in England, but not in the UK as a whole and forms a minority government. In that event, the opposition could frustrate the UK Government’s legislative intentions for England by mobilising the votes of MPs from Northern Ireland, Scotland and Wales. However, this scenario has never occurred. (McKay Commission Report, pp. 12-13)
Because the above scenarios happen only very rarely, or not at all, the Commission approached the West Lothian Question in a broader sense: “that of non-English MPs voting on English laws, whatever the majority relationship in the House of Commons.” And because this is a wider set of concerns about the “balance and stability of teh UK’s territorial constitution”, it can be described as an “English Question”.
Essentially, because of devolution, more and more legislation before the UK Parliament applies to England only (or England and Wales). This reality will only increase over time. The continued devolution of powers to the other national assemblies – for example, a referendum held in March 2011 in Wales established full legislative powers for the Welsh National Assembly in 20 policy fields, and debates on further devolution are ongoing, while Scotland will have a referendum on independence in 2014. The problem, as identified by the McKay Commission, is that the House of Commons has not adapted to this reality:
The House of Commons does not differentiate its mode of operation for English as compared with UK-wide matters. It lacks a capacity to focus directly on England just at the point when more of its work deals with English matters. In the absence of change in the way the House of Commons works, the consequence – clearly unintended, but nonetheless important- may be to impede the voicing of any distinctively English concerns, or perceived concerns, that exist on wholly or mainly English matters.
The Commission made the following recommendations:
- Adopt the following constitutional principle for England (and for England-and-Wales): Decisions taken in the Commons which have a separate and distinct effect for England (or England-and-Wales) should normally be taken only with the consent of a majority of MPs sitting for constituencies in England (or England-and-Wales).
- That principle should be clearly set out in a resolution of the House of Commons, and House procedure should be changed to encourage MPs to follow this approach.
- A range of procedural changes is suggested, all of which would allow the English voice to be heard. Some of them involve committees on bills, with majorities reflecting the party balance in England (or England-and-Wales). Others take the form of motions on the floor of the House. They are not a single package but a menu from which choices can be made to suit the circumstances of a particular bill.
- A select committee on Devolution should be appointed, which would (among other things) assist the House to hold UK ministers to account for their responsibilities in connection with devolution and their relations with the devolved administrations.
- No MPs would be prevented from voting on any bill, and the right of the House as a whole to make final decisions would be preserved. However, there would also be scope for additional roles for MPs from England (or England-and-Wales).
These are explained in more detail in the report itself, which you can consult via the link posted above.
It should be noted that there has been some criticism of the fact that while the West Lothian Question is very much a parliamentary issue affecting parliamentary procedure, the McKay Commission was set up by the government, by-passing parliament’s own select committees. See for example this post from the Constitution Unit:
Sadly, its newly-published report confirms this executive-centred approach to parliamentary reform. The key section entitled ‘next steps’ (paras 248-9) contains phrases like “We envisage that the Government would first make an assessment of our proposals and put before the House..” and “When the House has expressed its views, we suggest that the Government should move for a select committee to advise the House on the details..”
Presumably Parliament is expected, as usual, to sit back quietly and wait for its executive masters to work out how it should operate. The idea that one of the Commons’ select committees dealing with House matters (given the current Political & Constitutional Reform Committee’s inquiry into the ‘Wright Committee reforms’, we currently have 2 of them, ie it and Procedure Committee) should do a brisk inquiry into the subject of WLQ and the McKay Report, independently of Government’s own deliberations, is presumably far too revolutionary for the current House. Ditto for some sort of initiative of this sort by the Speaker.
Or perhaps they will surprise us all?
The House of Commons Political and Constitutional Reform Committee did touch on the English Question in its recent report entitled “Do we need a constitutional convention for the UK?” In the section headed “The elephant in the room: England“, the committee discusses the English Question at some length, and concludes with the following recommendation:
76. We recommend that the “English Question” be addressed without delay. Of all the tectonic plates within the Union, it is England which most needs to be lubricated and adjusted to the new reality of an effective Union, within a key framework of national competences. The Government should now, with all urgency, create a forum, or pre-convention, for the people of England to discuss if, and how, they wish to follow in the footsteps of Scotland, Wales and Northern Ireland and access substantial devolved powers, clearly defined in statute, for their local communities. The Government should consider whether such a forum might be conducted before a UK-wide constitutional convention and involve representatives from all parts of England.