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Lothian question. Scottish MPs in the House of Commons can vote on all
matters arising there and could be in a position to exert decisive political power
215 Devolution and the structure of the UK


if there should be a hung Parliament. Concern is expressed that ˜West Lothian™
introduces an imbalance into the constitutional system; Mr Tam Dalyell (as
MP for Linlithgow) concluded that ˜some legislative entity is going to have to
emerge in England to ¬ll the vacuum left by Scottish home rule™ (HC Deb
vol 311, col 741, 6 May 1998). The most radical solution would be the creation
of an English Parliament with powers limited to matters of exclusive relevance
to England but, as we have seen, this approach to a federal constitution has
found little support. Some (including latterly the Conservative Party) have pro-
posed instead that the procedures and conventions of the House of Commons
should be changed so as to restrict consideration and voting on matters relat-
ing solely to England to MPs for English constituencies. A formal proposal on
these lines was presented to the House by Mr Frank Field MP in June 2000 in
his House of Commons (Reserved Matters) Bill which would have disabled MPs
from Scotland (and Northern Ireland) from voting in the House on matters
devolved to their Parliaments: he acted to stimulate debate rather than in hope
of seeing the bill passed. It was objected to the proposal that it ˜would create an
English Parliament “ a haphazard, accidental creation “ within the body of the
UK Parliament™ (Mr David Curry MP). The project was renewed in January
2006 when a Parliament (Participation of Members of the House of Commons)
Bill was introduced in the House of Lords by Lord Baker of Dorking: it would
have required the Speaker of the House of Commons to designate which
category of MPs should be eligible to speak and vote on a bill, having regard to
the bill™s territorial extent. In particular, only English MPs would be able to vote
on English laws.
Expedients of this kind would not only result in two classes of MPs, but
would give rise to intractable technical and political di¬culties. (See R Hazell
(ed), The English Question (2006), pp 225“6.) A solution to the West Lothian
question might be found in the development of democratic regional govern-
ment in England, but plans for bringing this about have stalled, at least for
the time being (see pp 194“5 above). In any event it may be that the constitu-
tion is su¬ciently tough and su¬ciently ¬‚exible to accommodate the West
Lothian anomaly and an asymmetrical devolutionary settlement, as it has
succeeded in reconciling many other discordant elements of which it is com-
posed. (See further Tomkins in A Tomkins (ed), Devolution and the British
Constitution (1998), pp 100“3; R Hazell (ed), The English Question (2006),
chs 4 and 11.)
There has been only a limited accommodation of the procedures and
working practices of the House of Commons to the challenge of devolution.
Questions directed to the Secretary of State for Scotland may relate, in general,
only to matters for which he or she continues to have responsibility and not
to devolved matters (see HC Deb vol 336, cols 761“74, 25 October 1999). The
time allotted for Scottish Questions has been reduced. The Scottish Grand
Committee, comprising all MPs for Scotland, remains as a forum for debating
reserved matters that have a direct impact on Scotland, but it rarely has occasion
216 British Government and the Constitution


to meet. The Select Committee on Scottish A¬airs scrutinises the work of the
Scotland O¬ce, including its relations with the Scottish Parliament.
(See further AW Bradley, ˜Constitutional reform, the sovereignty of
Parliament and devolution™, in University of Cambridge Centre for Public
Law, Constitutional Reform in the United Kingdom (1998); J McFadden and
M Lazarowicz, The Scottish Parliament (3rd edn 2003); B Winetrobe in J Jowell
and D Oliver, The Changing Constitution (5th edn 2004), ch 7; A Page in R Hazell
and R Rawlings (eds), Devolution, Law Making and the Constitution (2005), ch 1;
J Mitchell in A Trench (ed), The Dynamics of Devolution (2005), ch 2.)

(v) Conclusion: how settled is the current Scottish settlement?
Scottish devolution since 1998 seems, thus far at least, to be a constitutional
success story. There has been a very high degree of cooperation between the
Labour Government in London and the Labour/Liberal Democrat coalition in
Edinburgh, such that not a single dispute between the two administrations has
yet reached the courts (this does not necessarily mean that there have been no
disputes between London and Edinburgh, but that, when they have arisen, they
have been resolved in private within the con¬dential frameworks of the
Concordats and Memorandum of Understanding). The apparent success of
Scottish devolution is, no doubt, due to the twin facts, ¬rst, that both the British
Government and the Scottish Executive have been eager to make devolution
work and, secondly, that the Labour Party has been in power both north and
south of the border. Even though in Scotland it is in coalition with the Liberal
Democrats, the Labour Party is the lead partner.
Beneath the surface, however, there is little in place beyond political goodwill
to ensure that the smooth operation of Scottish devolution continues into the
future. Whether the current arrangements would survive a change in the party
of government either in London or Edinburgh must be open to some doubt,
especially considering the remarkable informality that is such a feature of the
inter-governmental relations that have emerged in Britain since 1998. We saw
above (p 191) how inter-governmental relations in the United Kingdom are
governed by the Memorandum of Understanding (Cm 5420) and by a series of
Concordats drawn up by ministers in the various administrations. The
Memorandum of Understanding established the Joint Ministerial Committee
(JMC) as a forum for consultation, mediation, discussion and dispute resolu-
tion. While it continues to meet, albeit apparently only occasionally, it has
become something of a ceremonial rather than an executive, decision-making
body. Indeed, it has been reported that even the most detailed of the Concordats
are rarely used by civil servants and o¬cials (see House of Lords Select
Committee on the Constitution, Devolution: Inter-Institutional Relations in the
United Kingdom, HL 28 of 2002“03). Yet the structure of devolution in the
United Kingdom means that a ˜high level of interaction between levels of
government is inevitable . . . [T]he interplay between functions that have been
devolved and those retained at United Kingdom level means that many policies
217 Devolution and the structure of the UK


or initiatives of one level of government will a¬ect the other in some way™ (ibid,
para 17). The House of Lords Constitution Committee made the following
¬ndings with regard to inter-governmental relations in practice: that a large
amount of contact takes place between the various administrations, frequently
and at a variety of levels; that these contacts are often highly informal, often
taking place by phone or email rather than in formal, minuted meetings;
that the justi¬cation for such a level of informality is the mutual goodwill
between the administrations; and that the bulk of informal contacts tend to
be bilateral “ between the United Kingdom Government and one devolved
administration “ and that this appears to be where the bulk of disputes are
resolved, rather than being referred to the full JMC (ibid, para 23).
There are other respects, also, in which Scottish devolution may be seen as a
constitutional success story. The renewal and genuine modernisation of
Scottish parliamentary democracy that devolution has facilitated is not to be
overlooked. That MSPs sit in a hemicycle rather than in opposing ranks, that
they address each other directly by name, that they vote with electric buttons
rather than by walking through lobbies, that they work normal o¬ce hours, that
they cooperate across party lines, that most of their work is done in powerful
subject committees rather than in plenary session, and that 37 per cent of MSPs
in the ¬rst Parliament were women “ the highest proportion of any European
Parliament apart from Sweden and Denmark “ all mark Scottish parliamentary
democracy out as di¬erent from, and more modern than, that found in
Westminster (see N Ascherson, Stone Voices: the Search for Scotland (rev edn
2003), p 293).
Yet we should not get too carried away. It has not been all plain sailing. Scotland
went through three First Ministers within as many years of devolution. Donald
Dewar died suddenly in October 2000 and was replaced as First Minister by
Henry McLeish. But he lasted only until the following summer, when a scandal
involving the expenses of his Westminster constituency brought him down. He
was replaced by the hard-working but not hugely inspiring ¬gure of Jack
McConnell, a man who, as Ascherson puts it, ˜made a career as an astute and
e¬cient Labour Party apparatchik™ (Stone Voices, p 293). Further, the newly invig-
orated democratic politics that Ascherson and others applaud was given a large
dose of realpolitik over the scandal concerning the extravagant cost of the new
Scottish Parliament building. A public inquiry chaired by Lord Fraser reported in
2004 that the ¬nal cost of the project was £431 million, ten times the original
estimate. Moreover, according to the Fraser Report, £170 million of the eventual
cost was wasted, unnecessary expenditure (see www.holyroodinquiry.org). Yet,
as Scott Veitch has written in a penetrating critique (˜Irresponsible govern-
ment™, Scottish Left Review, November/December 2004, p 18) the Fraser Report™s
key achievement was ˜to expose through a sustained forensic dissection of struc-
tures, systems and decision-making processes how the normal expectations of
government may operate “ and operate well “ to dissipate responsibility for major
harms su¬ered™. For the Fraser Report showed how, despite the enormity of the
218 British Government and the Constitution


sums involved, ˜it is plausible to end up with culpability simply vanishing and
how, instead, those with least input into the whole process “ the people of
Scotland “ are left to pick up the bill™. As Veitch concludes (p 19):

The real problems emerge through Fraser™s analysis of the culture of ˜closedness™, and the
way in which this allowed incompetence to proliferate in the proceedings. Evidence of this
opens with the failure of senior civil servants to keep their political masters properly
informed of what was going on, particularly with regard to true cost figures and the nature
of the risk regime agreed by them in the construction arrangements. The justifications for
these failures, as Fraser again points out, come across as implausible at best and incompe-
tent at worst. Errors of judgement were made . . . with apparently scant regard for [the]
public interest.


Not here, then, the spirit of openness and democracy in which devolution was
said to have been conceived.
For the time being, however, and perhaps for as long as the Labour and
Liberal Democrat Parties continue to be in power in both Edinburgh and
London, the structure of Scottish devolution appears to have solved the prob-
lems it was designed to address, even if, as the Fraser Report found, some of
the features of old, British, closed, ˜irresponsible™ government continue in the
new devolved Scotland. This conclusion “ of devolution™s success in Scotland “
tentative and provisional as it must necessarily be, is starkly at odds with
a number of predictions that were made when the Scottish Parliament was
established. The iconoclastic political sociologist, Tom Nairn, wrote, for
example, that the ˜devolution project has added greatly to the momentum of
change in Scotland. Since the [1997] referendum there has arisen the general
sense of an incoming tide, carrying us forward into a new period of history™
(After Britain: New Labour and the Return of Scotland (2000), p 155), a period
of history that, Nairn thought, would see the break-up of Britain and the
(re-)establishment of an independent Scotland. Nairn might be proved right, in
time, but for at least the ¬rst two terms of the new Scottish Parliament, Scottish
independence has seemed a more distant prospect than at any point in the last
twenty-¬ve years. In politics, however, one should never say never, and it may
be some time before the true consequences of what happened in 1998 are
realised. Consider, for example, the following, more meditative interpretation,
o¬ered by the Scottish journalist, Neal Ascherson.


Neal Ascherson, Stone Voices: the Search for Scotland
(rev edn 2003), pp 303“5

Will devolution lead inexorably to independence? For the moment, this question has lost its
urgency. Scots are more interested in whether devolution can lead to democracy . . . This
means reaching towards qualities of social justice, equality and sheer modernity which the
219 Devolution and the structure of the UK


United Kingdom as a whole has not achieved. In discussions about ˜opening up the
Parliament to the people™, and ˜interactive government™, I met nobody who suggested that
these good aims could only be fulfilled in an independent Scotland. And yet I think that
independence will probably come about.
There are pragmatic political reasons to think so, but also considerations from history. At
the practical level, it is unlikely that the British political structure can absorb the tensions
between “ say “ a right-wing Tory government in London and a Labour-Liberal coalition in
Edinburgh. Confrontation would probably centre on finance for Scottish social programmes:
the block grant. In those circumstances, it is not hard to imagine a ˜velvet divorce™ on the
Czech/Slovak model. Slovakia™s independence was not achieved by Slovak patriotic fervour.
Instead it was dumped on the table by the Czechs, who grew tired of negotiating endless
Slovak demands and walked away. As births of nations go, it was undignified.
But there are . . . deeper reasons to suspect that Scotland may not long remain in the
United Kingdom. All are to do with the revival of traditions or “ more precisely “ with the
selective rediscovery of elements in Scotland™s past which are now being adapted to serve
Scotland™s future. One of these elements is Scotland™s sense of European identity, as a small
North Sea nation which needs to encounter the world directly rather than through the prior-
ities of ˜Great Britain™ . . .
[Additionally], there is the particular, apparently indelible colouring of Scottish society.
All generalisations are subjective. So I am speaking personally when I suggest that the
Scots are communitarian rather than individualist, democratic in their obsession with
equality, patriarchal rather than spontaneous in their respect for authority, spartan in their
insistence that solidarity matters more than free self-expression. Not all of these are
admirable or ˜modern™ qualities. But they are all being invoked as the Scots move beyond
riddles of national identity towards establishing institutions which they recognise as their
own. This, too, points towards a completion of self-government which lies outside the limits
of the Union.



(c) Wales
Wales is about one-twelfth the size of the United Kingdom and has a popula-
tion of 3 million, or about 5 per cent of the total United Kingdom population.
Wales came under the rule of the English Crown in the thirteenth century.
There was no treaty of union, then or later, between the two countries, and the
Act of Union of 1536 was a unilateral Act of the English Parliament, extending
the English administrative system to Wales and providing for Welsh represen-
tation in Parliament.
In the early years of the twentieth century a number of departments with
Welsh responsibilities were created (eg, the Welsh Board of Health and the
Welsh Department of the Board of Education) and from 1951 a senior depart-
mental minister (at ¬rst the Home Secretary) was given a general responsibility
for Wales with the title of Minister for Welsh A¬airs. A Secretaryship of State
for Wales was created by the Wilson Government in 1964, and since then there
220 British Government and the Constitution


has been a Secretary of State for Wales, with a seat in the Cabinet, in charge of
the Welsh O¬ce (now named the Wales O¬ce).
The responsibilities of the Secretary of State for Wales were substantially
increased in the years after 1964. They did not become quite so wide-ranging
as those of the Secretary of State for Scotland, for, as we have seen, the Scottish
O¬ce had a longer history of ˜separateness™ and administered Scotland™s own
judicial and legal systems. To a great extent government policies were executed
in Wales by local authorities and by some twenty-four (in 1998) executive
non-departmental public bodies overseen by the Welsh O¬ce (eg, the Welsh
Development Agency and the Welsh Language Board).
It was remarked by the House of Commons Welsh A¬airs Committee that the
framework of policy was generally ˜set by English government departments and
copied by the Welsh O¬ce with greater or lesser variations to suit Welsh
circumstances™ (First Report, HC 259 of 1992“93, para 3). The Secretary of State
and the Welsh O¬ce were also, no doubt, sometimes able to bring Welsh inter-
ests into account when government policies were being formulated. On the
other hand, the Welsh Secretary was bound by collective responsibility and by
the policies of the governing party, whether or not these were to the advantage
of Wales or coincided with the wishes of a majority of Welsh voters (see
V Bogdanor, Devolution in the United Kingdom (1999), pp 160“1).
Wales is guaranteed a minimum of thirty-¬ve seats in the House of
Commons (by the Parliamentary Constituencies Act 1986, Sch 2) and has at
present forty. Wales is overrepresented in the House on the basis of the size of
its electorate, which would strictly entitle it to no more than thirty-three seats.
No change was made in Welsh representation in consequence of devolution.
Parliamentary legislation relating exclusively to Wales was uncommon before
devolution: examples are the Welsh Language Act 1993 and the Local Govern-
ment (Wales) Act 1994. Arrangements were put in place in the House of
Commons for debating Welsh a¬airs and for scrutinising the administration of

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