Alan Trench: Answer to West Lothian question still unclear

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Conservatives would like only English MPs to vote on English laws but it’s not that simple

The UK government’s announcement of its commission on the West Lothian question is an attempt to resolve an insoluble problem. The West Lothian question – the anomaly that Scottish MPs can vote on matters like health or education that affect England, but English ones cannot vote on similar matters for Scotland as they are devolved – is a logical consequence of asymmetric devolution. If all parts of the UK had devolution, it would not arise. Because Scotland elects predominately Labour MPs at Westminster, and few if any Conservatives, this constitutional anomaly gets a lot of political air.

Conservative MPs feel a strong sense of grievance about the question, which also has resonance with the general public in England. The anomaly is not just a theoretical problem; Scottish MPs accounted for the Labour UK government’s majority on key votes that brought in “top-up” higher education fees in England and created foundation hospitals. If Scottish Labour MPs hadn’t been loyal to the party whip when some of their English colleagues rebelled, these policies would not have reached the statute book.

More generally, Scottish MPs (being free of constituency pressures about “English” issues) tend to be more obedient to the party line than English ones. Conservatives see Scotland as a land of Labour lobby-fodder, skewing the electoral system even further against them. The Tory party has fought all the post-devolution UK elections with commitments to some form of “English votes for English laws” in their manifestoes. That commitment explains why we have this commission: Conservative policy may have been clear but it is not shared by the Liberal Democrats.

Sorting out the West Lothian question is easier said than done, though. There are three basic solutions to the problem. One is an English Parliament, within a federal structure for the United Kingdom. However, that is problematic if the goal is to maintain the Union, as so unbalanced a union (England is 85 per cent of the UK’s population) would not be stable and would probably not be sustainable. No similarly unbalanced federal system has lasted more than a few years.

The second option is the “Stormont discount” – reducing the number of MPs from Scotland, Wales and Northern Ireland, as happened for Northern Ireland between 1922 and 1972. The problem with that is that it means Scotland, Wales and Northern Ireland have a reduced say on matters like health in England – but their say on non-devolved matters like defence or foreign affairs is also reduced. The Stormont discount is a blunt instrument to solve complex problems.

The third option is “English votes for English laws” or EVEL, as promoted by the Conservatives. This is an “in and out” solution; MPs would be eligible to take part in some votes but not others, depending on the constituency they represent. It creates serious problems too; it would be very hard to implement, and creates problems of “governability” if the party with an overall majority at Westminster doesn’t also have a majority of English seats. That is a problem for Labour but not the Conservatives – Labour might be in a position to form a UK government without a majority of English seats, but the Conservatives would not.

The practicalities of EVEL are pretty daunting too. Westminster legislation commonly touches on a variety of parts of the UK; some clauses in a typical bill will relate only to England, others to England and Wales, or Great Britain, or England, Wales and Northern Ireland. Sorting out which provisions only affect England will be quite a challenge for those in charge of drafting legislation, forcing Whitehall to change deeply-ingrained habits.

Moreover, some legislation on devolved matters needs – under the Sewel convention – to be considered at Westminster too, so MPs from devolved governments should be entitled to vote on that. It will also be a challenge for those responsible for legislation in Parliament, who will have to make sure that the right clauses are flagged in the right way, and only those MPs eligible vote or speak on them.

Although EVEL is fraught with problems, there is little reason to believe that it is an answer to the problem with wider appeal. Even if it is the first step, it will not be the last. Data from the Institute for Public Policy Research, due for publication next week, suggest a growing number of English voters are concerned about the “unfairness” of the present arrangements and want something more than a limited change at Westminster. What solution they might want – or how that might work – is less clear. Altering Westminster procedures may be popular among Tory MPs, and appears to have much wider public support, but it does not provide a positive solution to the problems of representing England in a devolved and increasingly decentralised UK.

However, the McKay Commission is weighted toward finding technical solutions to a narrowly defined problem. The commission’s remit limits it to looking at how the House of Commons deals with legislation.

Moreover, the commission has been set up as a body of independent experts to advise about solutions, not to redefine the problem.

The key decisions remain to be taken by politicians after the commission has reported. As its report is due in the next Westminster session (before May 2013), that probably means we reach decision time at some point in 2013-14. Given growing concerns in England, though, this is unlikely to be able to tackle the issues that now need to be addressed.

• Alan Trench is an honorary senior research fellow at the constitution unit, University College London