Brexit has become the zeitgeist of constitutional debate. Against this backdrop, John Denham sets out an eloquent case for the need to reform England’s relationship with the rest of the United Kingdom in his article ‘England: a crisis’; there are, however, several problems with that case.
Denham states: ‘Social democracy’s base was the organised industrial working class, with its strong institutions and tough-minded collective values of solidarity, contribution and reciprocity… Millions today have never shared the experiences that generated identity with the Labour party’.
Indeed, the sociologist TH Marshall explained that citizenship was at its heart social, created through a series of shared civil, political and social rights. It is clear that the asymmetric devolution of social policy to different legislatures across the UK poses challenges to state-wide solidarity.
The great anomaly to devolution within the UK, has been the lack of devolution to the UK’s largest nation, England. It has been argued that devolution to Scotland, Wales and Northern Ireland aimed to distinguish them from their larger, more dominant neighbour. However, legislative devolution – and the resultant policy divergence, funding arrangements and bolstering of national identity, evidenced especially during the 2014 Scottish independence referendum – has brought the issue of English devolution to the fore.
To counter this, Denham calls for an English Labour movement. In line with Benedict Anderson’s thinking on imagined communities, he says: ‘National identities are created, not discovered, and the progressive patriotic Englishness we need is not yet fully formed’.
So far, so good; but, as the House of Lords Constitution Committee’s devolution and the union inquiry noted, there has been a mentality of ‘devolve and forget’ within the UK. Devolution is about respecting diversity and unity and we must always be mindful of what ties the UK together. One of the key arguments during the Scottish independence referendum – for example – was that of pooling and sharing resources across the UK, of a social union as per Marshall.
Devolving different powers to different national legislatures across the UK, however, has not been matched by a renewed commitment to strengthen state-wide social citizenship and inter-governmental institutions. The House of Lords’ inquiry noted, for example, that the Joint Ministerial Committee was not being used effectively to coordinate policy across the UK and that the UK Parliament was given little, if any, time to consider the work of the JMC.
Labour is partly to blame: as the senior partner in the Scottish executive and with a majority in the UK parliament, Labour coordinated policy through informal networks during the early years of devolution rather than by building official channels for inter-governmental communication. This legacy has been exacerbated as different parties have come to power in different parts of the UK.
Denham too falls victim to this silo mentality, building a case for English nationalism and devolution without sufficient consideration for the impact this could have on the rest of the UK. For the elephant in the room, with regards to devolution in the UK, is England itself.
Devolution to Scotland, Wales and Northern Ireland was a response to calls for recognition vis-à-vis England. Scotland, for example, for 300 years had been accommodated within the Union with its own church, education and legal systems; experienced administrative devolution for 100 years; a failed Scottish assembly referendum in the 1970s strengthened calls for home rule; a constitutional convention involving civil society led to the creation of the Scottish Parliament; and, most recently, a three year referendum debate bolstered national identity.
As Vernon Bogdanor has said: ‘the English as the dominant nation have no need to beat the drum or blow the bugle. If they do, the devolution settlement will be strained to breaking point’. For, while the West Lothian question is an anomaly, English MPs account for 533 of the 650 in the UK parliament and can outvote MPs from elsewhere at every turn if they so wish.
Devolution has not been matched with public education across the UK about how it works – admittedly this has not been easy with the UK’s uncodified constitution and asymmetric devolution – and some politicians have exploited this for political gain.
Denham states that ‘only a federal constitution holds any hope of holding the Union together’; but England accounts for 85 per cent of the UK, the closest comparator is Ontario which accounts for only 35 per cent of Canada’s population. Shotgun federalism risks destabilising the entire Union project that Labour fought so hard to save only two years ago.
To date, governments have tried to appease the English: Labour proposed the creation of regional assemblies but in 2004 proposals for a North East assembly were rejected in a referendum; under the coalition there was a drive towards localism and this has continued under the Conservatives with bilateral ‘Devolution Deals’ between the UK government and local government; and last year the House of Commons approved changes to its Standing Orders to implement ‘English Votes for English Laws’ (EVEL).
While polls have shown public support for EVEL, these changes have not been driven by public demand as has been the case elsewhere. Moreover, ‘Devolution Deals’ have been driven by political elites with powers conferred on the Communities Secretary through secondary legislation with little or no opportunities for public input or political scrutiny. In any case, these deals do not address the issue of devolution to England as they are examples of decentralisation within England, which only exacerbates the UK’s asymmetry.
EVEL does seek to address the West Lothian question, but it is a technical change to the internal workings of the UK parliament, which is not easily understood – even Sir William McKay, former Commons’ Clerk, has described the measures as a forest in which he loses himself. The measures were rushed through parliament without cross-party support, in changes to the Commons’ Standing Orders which meant the House of Lords was not able to scrutinise them. In short, the path to EVEL has been very different to the long journeys to legislative devolution elsewhere in the UK, has lacked transparency and accountability, and the arrangements themselves are not sound.
The Procedures Committee and the Public Administration Committee have already reviewed EVEL and the government is due to conduct a review this autumn. Its review will have to consider several unresolved issues, namely: the politicisation of the speaker in determining what is certified as English legislation; the dislocation of policy with revenue raising implications from decisions on taxation, and the impact this has on the Barnett formula; and the lack of accountability of parliamentary committees that are now able to veto legislative provisions certified as English.
Accountability is crucial; it was the lodestar of legislative devolution to Edinburgh, Cardiff and Belfast. Squaring the circle of English devolution within the UK’s Westminster system is a challenge. EVEL is a sticking plaster to the English question and nationalism is not the cure.
In the post-Brexit era, politicians must do all they can to bring the UK together rather than flirt with further separation. That is why Labour should revive Ed Miliband’s proposals for a wide-ranging constitutional convention, covering the English question but intergovernmental relations and voting reform too, reminiscent of that which paved the way to the Scottish parliament. Brexit is our zeitgeist: the 23 June 2016 taught us that we must do more to engage the public and that there are no easy answers to tough constitutional questions.