Constitutional Groundhog Day

By Professor James Mitchell

Controversy surrounding English Votes for English Laws reminds us that the issues involved are as old as debates on home rule.  The dangers of instituting change in one constituent part of the UK without taking adequate account of the implications for the state as a whole or other parts of the state have been well rehearsed.  One iteration of the issues, introducing the concept of ‘losers’ consent’ to debates on devolution was published in Political Quarterly in 2006 under the title of ‘Devolution’s Unfinished Business‘.

The same arguments were submitted a couple of years later to the Commons’ Justice Select Committee and found below. The implication of the argument is that the issues have not been resolved with EVEL and that the key to resolution demands acknowledging the prior question of how to agree an appropriate means of addressing the issues involved in asymmetrical devolution.  Any response, such as EVEL, that fails to address the prior question will result in what is referred to in the submission to the Justice Select Committee as constitutional ‘pass the parcel’.

Devolution and legitimacy

Key points:

  • Constitutional policy concerns the ‘rules of the game’ and requires losers’ consent or, at least, sufficient acquiescence if legitimacy is to be maintained
  • Devolution has successfully addressed one or more problems of legitimacy in the UK
  • However it has created new anomalies and issues of legitimacy elsewhere
  • Any changes should seek to avoid an endless game of constitutional ‘pass the parcel’ in which resolving one constitutional anomaly creates significant new problems
  • Some measure of fiscal autonomy combined with a replacement of the ‘Barnett formula’ has the potential to meet Scottish demands for more powers for Holyrood while satisfying those who view the formula as providing Scotland with a financial advantage and contribute to underpinning the legitimacy of the system
  • Any response will only succeed if losers’ consent  or, at least, sufficient acquiescence is achieved.

Legitimacy, losers’ consent and constitutional policy

Constitutional policy differs from other public policy in that it deals with the ‘rules of the game’ and cross-party agreement and/or public endorsement is necessary for continued constitutional legitimacy.  Public endorsement need not require a referendum but simply acceptance and continued participation.  Legitimacy is not just about legality but also justifiability and consent.[1]  Indeed, a situation may be legal while lacking legitimacy.  Some scholars have referred to the importance of losers’ consent[2] when it comes to legitimacy of electoral rules.  This applies equally across a range of constitutional affairs.  The perception that constitutional rules are biased can lead to a problem of legitimacy.

It is difficult to identify precisely when consent is withdrawn to such an extent that a crisis of legitimacy occurs but in a liberal democracy it would be expected that some remedial action would be taken before a crisis occurs.  A relevant illustration may help.  In the 1980s and 1990s, a problem of legitimacy occurred in Scotland and, to a lesser extent, Wales.  There was nothing illegal in the actions of previous Conservative Governments in Scotland and Wales but theperception grew, in components of the UK, that policies were being imposed without necessary consent.  There was much talk of a ‘democratic deficit’ when, in fact, what was occurring was a legitimacy deficit.  It was this that fuelled demands for changes in the ‘rules of the game’, the constitution of the United Kingdom.

Losers’ consent to previously existing accepted practice that the governing party had no need to command majority Parliamentary support in components of the state but simply across the state as a whole was withdrawn but, as we might expect in a liberal democracy, this took the form of articulating the case for constitutional change rather than outright opposition or withdrawal from participation in electoral contests.  This is not to suggest that a Government lacks legitimacy in places where it does not have a majority only that a problem of legitimacy occurs when growing numbers of people perceive that the rules of the game work against them and believe this to be both unfair and requires remedial action.  For the most part, losers’ consent is given and indeed taken for granted.

Devolution and displaced legitimacy

It would be a gross exaggeration to suggest that devolution was a response to a crisis of legitimacy but it was a response to a growing problem of legitimacy.[3]  Indeed, the main success of devolution has been to remove this legitimacy problem from Scottish politics.  There remains much debate on Scotland’s constitutional status but this debate is conducted without any suggestion, other perhaps on the fringe of politics, that there is something illegitimate about the UK as constituted at present.  Talk of democratic deficits, no mandates and popular sovereignty, common across the non-governing parties, has receded compared with the 1980s and 1990s.  All the main parties have accepted devolution.  In Wales an even more remarkable change has occurred.  The slight majority for devolution there has been transformed into considerable support for devolved government.

However, solving a problem of legitimacy in parts of the United Kingdom has created potential problems elsewhere.  Indeed, there is a danger that devolution has simply displaced the problem of legitimacy.  Though it has not yet, and perhaps may never, manifest itself, some of the conditions that led to a problem of legitimacy in Wales and especially in Scotland in the 1980s and 1990s might emerge in England.  The evidence to date of an emerging problem may be slight at present but that reflect current conditions which compares with the situation that existed in Scotland and Wales when the largest party was in government or the real test will only come when a party other than the largest party in England is elected to government and relies on Scottish and Welsh votes for its programme of government.  However, existing quiescence is not the same as full consent or legitimacy.

It cannot be assumed that such a scenario will lead to a problem of legitimacy.  The governing party in such a situation might be expected to operate in a territorially sensitive manner.  The view may prevail that this is merely one of many acceptable anomalies of the UK’s constitution.

WLQ and ‘Barnett’

If we accept that devolution has created anomalies in the constitution, the question that then arises is what, if anything, should be done in response.  Attention has focussed on the West Lothian Question (WLQ) and ‘Barnett’ formula.  Throughout the long debates on home rule, dating back to Gladstone’s attempts to grapple with the WLQ, there have been five possible responses:

  1. no Scottish representation in Westminster
  2. providing symmetry through home rule all round/federalism
  3. a reduction in Scottish representation at Westminster
  4. Parliamentary procedures including limiting the issues on which Scottish MPs can vote at Westminster
  5. maintenance of the current levels of Parliamentary representation with no changes in Parliamentary procedures.

The first could only be justified in the event of Scottish independence.  There appears to be little support for the second and unless this involved a symmetrical form of federalism, ie all constituents of the federation had the same powers, then the problem would still exist though become less pronounced.  A reduction in the number of Scottish MPs has already been attempted though this was done following the loss of all Conservative MPs in Scotland and Wales and referendum results underpinning support for devolution.  This made opposition to the provisions of the devolution legislation difficult at that time.  Opposition MPs might feel that they were not properly involved in the process of discussing the consequences of devolution.  If consent was given it was limited.  ‘English votes for English laws’ (EVEL) has been criticised for the difficulties and anomalies it would create.  One difficulty of identifying purely English legislation, especially given the continued existence of the Barnett formula.  The Barnett formula would need to be addressed in the event of EVEL to avoid any possibility that budgets of devolved institutions were not determined in large measure by only English votes.  The danger that would arise with this response is that it might simply pass on the problem of legitimacy once more.  It would also fail to achieve the important condition of gaining losers’ consent that we have identified as important in establishing legitimate constitutional rules.  It is for this reason that the fifth option retains support.

The misnamed ‘Barnett formula’[4] was devised as a short-term fix and has little relationship to needs or any other principle.  Its operation pre-devolution attracted little attention but devolution has created conditions in which acquiescence has turned into criticism.  One possible way in which a change could be brought about that might enhance the legitimacy of the system as a whole in each component of the UK would be to introduce a measure of fiscal autonomy combined with a replacement for the Barnett formula with one based on need.  The current situation in which the Scottish Parliament provides more generous public policies than elsewhere without having to pay the additional cost is leading to a problem of legitimacy in England.  This may give Scotland an advantage now but the prospect of a legitimate grievance developing in England cannot be ignored.  Fiscal autonomy without reform of the ‘Barnett formula’ would only have the potential for tackling demands in Scotland without addressing problems of legitimacy elsewhere.  Combining a measure of fiscal autonomy with a revised formula would allow the Scottish Parliament to choose more generous public policies without provoking an adverse reaction in England.

However, at this stage the focus on how rather than what reforms, if any, should be instituted is the priority.  The main conclusions are to recognise that the existing arrangements are anomalous and that existing quiescence is not the same as full legitimacy.  As happened in Scotland and, to a lesser extent, in Wales, different contexts might create conditions in which the legitimacy of policy-making is called into question.  Whether it is better to respond before this occurs or wait to see if it occurs is a matter of judgement.  Waiting to see how and whether a backlash occurs means that any response will have to be made in a context less propitious to achieving agreement.  However, any effort to address such anomalies should seek to gain losers’ consent and avoid simply playing an endless game of constitutional pass the parcel.

Notes —

[1]  David Beetham, The Legitimation of Power, Basingstoke, Palgrave Macmillan, 1991.

[2] Richard Nadeau and André Blais, ‘Accepting the Election Outcome: The Effect on Participation on Losers’ Consent’, British Journal of Political Science, vol.23, 1983, pp.553-63; Anderson et.al.

[3] A variety of evidence exists but perhaps the most notable was the ‘Claim of Right for Scotland’ and Scottish Constitutional Convention.  The Claim was signed by 58 of Scotland 72 MPs and 59 of Scotland’s 65 regional, district and island councils and stated, ‘We, gathered as the Scottish Constitutional Convention, do hereby acknowledge the sovereign right of the Scottish people to determine the form of Government best suited to their needs, and do hereby declare and pledge that in all our actions and deliberations their interests shall be paramount.’

[4] The formula was named after Joel Barnett in an important paper produced by David Heald, Heald, David (1980), Territorial Equity and Public Finances: Concepts and Confusion, Studies in Public Policy No.75, Glasgow, University of Strathclyde.  However, in February 1985 in response to questions about the formula, his answer corresponded better with the public records, ‘I was aware of what you describe as the ‘Barnett Formula’ but I had not been aware that the particular formula has been thought of as my special creation. My understanding is that the allocations in the proportions of England 85%, Scotland 10%, and Wales 5%, is a fairly long standing formula that has been used over many years before I became Chief Secretary to the Treasury. All I can tell you is that the formula was indeed used during the whole of my period in office and to the best of my knowledge and belief is still being used.’  Barnett made no reference to the formula in his book on his years as Chief Secretary (Barnett 1982) but explained this in evidence to the Treasury Select Committee in 1997, ‘When I wrote the book I was not too concerned with that particular issue. I was concerned with many more’ (Barnett, 1997: 1).  The formula had been used before Barnett became Chief Secretary.  A paper prepared by a Treasury civil servant for the Kilbrandon Commission on the Constitution in January 1974 outlined noted, ‘For some services, notably health and the personal social services, there are very few objectively defined standards for the provision of services, and significant differences in the levels of provision.  Present policy is designed to ensure that the growth rates in England, Scotland and Wales are broadly comparable, and that additional expenditures on reduced allocations are calculated on a population basis (85 England, 10 Scotland, 5 Wales).’ (PRO T 227/4253)

__________

James Mitchell is Professor of Public Policy and Co-Director of the Academy of Government at the University of Edinburgh. He is the author of Devolution in the UK (Manchester University Press 2009) and The Scottish Question (Oxford University Press 2014). He tweets @ProfJMitchell.

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