David Rickard: Constitutional Futures

Re-thinking the English Parliament: (D)evolution not revolution

Short-term questions, long-term goals

What are the prospects for an English parliament as we head towards a UK general election and a probable change of regime? In the short term, there are many more questions than answers, as the extensive list of factors that could affect the chances for a change in English governance, outlined in Gareth Young’s framing of the topic ‘Where now for the campaign for an English parliament?’, makes clear.

But if the precise chain of circumstances that could lead to an English parliament or to some version of English votes on English laws (EVoEL) must seem the province of political soothsayers, the long-term direction of travel appears more certain. In all of the (increasingly dis)United Kingdom’s constituent parts, there is a growing confidence and pride in asserting the nationhood of the part in question as a more primary identity than Britishness. In all of the constituent countries other than England, this process has crystallised around the new devolved parliament / assemblies and governments, which are at once symbols and instruments of renewed civic nationalism, and have in a sense given ‘permission’ to celebrate and express a distinct Scottish, Welsh and Northern Irish national consciousness in many more ways than the merely political.

In England, we have witnessed a contrary trend: the central UK government and establishment has done everything in their considerable power to stuff the emerging English genie back into the Union bottle from whence it has started to emerge after being woken by the rub of devolution! In fact, the response of the British establishment to the emerging English Question has been not only to try to suppress all discussion of ‘English matters’ as such (stuff the genie back into the bottle) but to pretend the genie itself never existed! The establishment – by which I mean all the mainstream, unionist parties; the British government; and the pro-Union mainstream media – has embarked on what seems at times to be no less than a systematic, though unofficial, reimagining and reinvention of ‘Britain’ as the identity, name and ‘subjectivity’ of ‘the nation’, in place of England. This New Labour-New Britain is a ‘nation’ divided into ‘regions’, three of which in turn (Scotland, Wales and Northern Ireland) have the character and partially self-governing status of ‘nations’: Gordon Brown’s (in)famous ‘Britain of nations and regions’. The futility of this attempt to re-engineer an England-centric Great Britain as a de-anglicised Britain is suggested by my analogy: England, like the genie, does exist; and as devolution evolves elsewhere in the UK, the demand for a distinct English focus of government and civic society will only grow louder.

However, the establishment’s denial of the very existence of England as a nation does mean that advocates of an English parliament have to deal not only with an almost total unwillingness on the part of the establishment to engage with the English Question but with an inability to even conceptualise an English parliament: to understand what it might mean or how it could be relevant. If you genuinely believe that Britain is the nation – and that England is merely a convenient name for the larger, non-devolved part of that nation – it is impossible to see an English parliament as anything other than an unnecessary duplication of or rival to the Union parliament. And it is indeed in these terms that many opponents of an English parliament dismiss it out of hand: as an extra layer of British governance that adds nothing, either in terms of effectiveness or representation, as the Union parliament – comprising 82% English MPs – supposedly represents England’s interests adequately. The fallacies of this point of view are well known, the main one being simply that the UK parliament and MPs do not represent the interests of ‘England’ as such in any shape or form.

However, as proponents of an English parliament, we, too, need to be clearer about the context of British governance and identity into which we see an EP as fitting. And I think it is here that a fundamental modification of the conceptual underpinning of the Campaign for an English Parliament needs to take place. Hitherto, the model for an English parliament advocated by the CEP has been essentially that of a separate, devolved body with powers at least equivalent to those of the Scottish parliament. However, with moves afoot to extend the powers of the Scottish parliament to one extent or another, it now seems clear that the existing devolution settlement is no longer even adequate for Scotland, let alone for England.

Indeed, it is debatable whether the Scottish parliament as currently constituted was ever an adequate model for the English parliament. For example, although I do not agree with arguments to the effect that an English parliament would necessarily unbalance the Union or set the interests of England against those of the smaller nations, it is nonetheless clear that the relationship between the UK parliament and a devolved English parliament could not exactly parallel that between the UK and Scottish parliaments. For a start, it is hard to imagine an English parliament with extensive devolved powers being content to be fiscally dependent on a British parliament that was perhaps smaller than the English parliament, with its entire budget being based on a block grant delivered from on high, especially if that grant were thought to be inequitable by comparison with the Scottish and Welsh budgets. An English parliament would therefore be likely to demand or require more fiscal autonomy, somewhat along the lines of the ‘devolution max’ model recently put forward by the SNP as one of four potential options for Scottish governance to be debated in the run up to a potential independence referendum.

Equally, while the present direct link between public expenditure in England and that in the devolved countries based on the Barnett Formula needs to be broken, the smaller nations would still retain a much greater vested interest in spending decisions in England than vice-versa. This is simply because English policies and spending would continue to have a considerable economic and social impact on the smaller countries, while the level of taxation in those countries might also need to rise following the withdrawal of the Barnett subsidy. Therefore, it is arguable that any viable model for an English parliament, other than in the context of full English independence, will need to put in place some safeguards to protect the smaller countries from an English parliament that might otherwise aggressively pursue English interests to the detriment of those of its neighbours. Indeed, a concern to protect the interests of the smaller British nations has been one of the pretexts most commonly advanced to reject the idea of an English parliament.

Towards an evolutionary model of English governance

It is clear, however, that any dismissal of an English parliament merely on the grounds that it might destabilise the Union or disadvantage the UK’s smaller nations is a pretext: in one form or another – whether the quasi-psychotic denial of England’s very existence by the establishment, or the fear of English ‘dominance’ felt by many in the smaller nations – it involves a refusal to recognise England’s natural right as a nation to determine its own forms of governance. Once this right is recognised, and arguably only when it is acknowledged, the debate can then be moved forward and consideration can be given to the constitutional reforms that can best deliver genuine English-national democracy and protect the interests of the smaller British nations, and so ensure a viable Union going forward. And it is here that I would like to suggest the lines of an evolutionary model for an English parliament.

There have been two broad types of constitutional reform in English and British history: the revolutionary (such as in the English Civil War and the Glorious Revolution) and the evolutionary. The fact that we have an ‘unwritten’ constitution (i.e. no single foundational document setting out the UK’s constitution) is a reflection of the fact that the constitution we do have has developed mainly in the evolutionary way: through a succession of partial reforms, individual acts of parliament and gradual change. In no other area is this truer than the relationships between each of the constituent countries and the central power; and, arguably, the need to preserve the historical legacy and discrepancies of these differential inter-national arrangements is one of the reasons why the UK has never had a single written constitution.

It should of course be borne in mind that differences in the degree and scope of autonomy from the centre enjoyed by each of the UK’s constituent parts are nothing new, and they certainly don’t all stem from asymmetric devolution. Scotland has maintained separate legal and education systems, and its own national church, from before the Acts of Union; and there has of course been a long and chequered history of alternating direct and home rule in the case of Northern Ireland. Only Wales was governed as a single polity, indistinct from England, throughout the history of the Union up to New Labour’s Devolution Acts, with Wales being subsumed by England – politically and legally – in much the same way as England is presently absorbed into ‘Britain’.

The devolution settlement of 1998 should, then, be regarded as just another example of the UK’s evolutionary constitution-making process. The fact is there is nothing definitively settled about the devolution settlement. Devolution, as has been remarked, is a process not an end point – the point, however, being that England has thus far been left out of the process. And devolution continues to evolve in the other nations: Scotland will almost certainly acquire more fiscal autonomy; Wales is likely to obtain more primary-legislative powers; and the arguments about devolving policing and justice to the Northern Ireland assembly are of course ongoing as I write. While all of these developments will place considerable pressure on an incoming Conservative government to reform the Barnett Formula and remediate the West Lothian Question, can the CEP come up with an evolutionary model for England’s journey to ever greater self-government that may have a chance to win acceptance by the fearful establishment? Such a solution will have to avoid directly challenging the establishment’s authority or appearing to be a threat to the Union’s survival altogether.

One of the problems with the CEP’s present blueprint for an EP is that it is, arguably, more revolutionary in its impact than evolutionary. The CEP might not accept that analysis; but the idea of a single, new, autonomous English parliament – albeit conceived along the lines of Scottish devolution – is revolutionary in its implications for the British state. For a start, as I have argued above, it is doubtful whether an English parliament could really work along the same lines as the Scottish parliament. And this is not just because it would demand greater fiscal autonomy than the present Scottish parliament but also because it would inevitably challenge the sovereignty of the British state over English affairs and would threaten to undermine the very identity of ‘Britain’ as a / the ‘nation’: a myth that is dependent for its survival on the English being compliant with the establishment’s re-modelling of their identity as ‘British’. In short, for reasons of both practical politics and diverging national identity, a fully fledged English parliament introduced in a single step would almost inevitably require a new UK-wide constitutional settlement of the ‘revolutionary’ kind: a new beginning on completely new foundations – most likely, a federal or confederal settlement with ‘Britain’ no longer being an overarching sovereign power, such as the model I set out in a previous article.

While I personally would like to see a revolutionary transformation of English and British governance along these lines, I feel that an evolutionary model offers much greater prospects of success. And by ‘evolution’, I am also suggesting that the new – and, by definition, provisional and evolving – English parliament should be conceived of, and presented as, evolving out of the present UK parliament, albeit explicitly re-branded as an English body. After all, the UK parliament is already a de facto English parliament in most of what it does, the trouble being that it both refuses to acknowledge its England-only character and enlists the anti-democratic participation of non-English-elected MPs in legislating for England.

In this article, I would like to put forward a draft proposal for an English parliament that would indeed be a reformed but continuing Westminster parliament: distinctly English in focus and composition, but integrated within a UK parliamentary and governmental framework. This could be a first step in the long-term evolution to a fully distinct EP but – who knows? – it could potentially also represent yet another modification to the unwritten British constitution that could serve for decades or even centuries to come.

An English parliament with dual English and British responsibilities: outline for English-parliamentary evolution

Here’s my idea, in brief:

• The present Westminster parliament could in effect evolve into an English parliament (or, putting it another way, it would revert to being the English parliament it originally was). It would be elected on a fixed-term basis every four years, with the elections timed to coincide with those for the other devolved parliament / assemblies. There are already moves or proposals afoot to reduce the number of UK MPs, and particularly those from Scotland and Wales, and to introduce fixed-term parliaments. This proposal just goes that crucial extra English mile further: eliminating non-English MPs altogether, reducing the number of constituency MPs (see further below) and introducing fixed terms.
• Elections would be held using the Additional Member System (AMS): the system presently used for the Scottish parliament, and Welsh and London assemblies. Alternatively, if present moves to introduce the Alternative Vote (AV) system for UK elections come to fruition, the system adopted for elections to the Westminster English parliament could be a form of AV+: combining an element of a proportional party-list system (such as that used for AMS) with AV rather than with First Past the Post, as is done with AMS. AV+ was in any case the system recommended by the Jenkins Commission on electoral reform during the first term of the New Labour government, which subsequently kicked it into the long grass on grounds of political expediency.
  

  So here again, using AMS or AV+ would represent only a minor evolutionary step further from existing systems or proposals. It’s not my preferred voting system, nor is it the most proportional; but it could serve as an intermediate step towards multi-member Single Transferable Vote (STV), which is the most proportional system that also preserves a direct link between MPs and their constituencies – an issue I will discuss further below.

• I would, however, suggest using the proportional, party-list element of the AMS or AV+ system in a crucially different way from the present elections to the devolved bodies in Scotland and Wales. Instead of regional or county lists, such as those also used for elections to the European parliament, I would recommend national lists, with the parties’ share of seats being allocated purely on the basis of their share of the votes across England. So, for example, if there were 100 party-list seats of this sort, and if the Greens or BNP obtained 2% of the English vote each, they would each be allocated two party-list seats. This increases the proportionality of the party-list element, whereas in a county- or regional-list system, 2% of the vote would result in a party failing to win any seats. In addition, it makes the party-list MPs a genuine reflection of English political opinion across all regional variations, which adds to the national unity and representativeness of the parliament.
• Now, here’s where my proposals are most radical – but not, I would contend, revolutionary: the MPs elected via the party-list element of the ballot would be UK MPs as well as English MPs. That is to say, a new UK parliament would have to be established; and my proposal is that it would be elected purely on a party-list basis, with separate lists for each of the UK’s nations (potentially including Cornwall, further down the evolutionary line, if the people in the Duchy voted for separate nation status). (Let me note in passing that this is where my proposals are most divergent from the CEP’s existing conception of an EP: whereas the CEP advocates the establishment of a new, devolved English parliament, I’m saying that it’s a new British parliament that needs to be created, and the English parliament could more or less evolve out of the existing Westminster body.)
• It would be nicely neat and symmetrical if the Scottish and Welsh members of the new British parliament could be drawn from the MSPs and AMs that are presently elected via the party-list component of the elections for the Scottish parliament and Welsh assembly, thereby transforming elections to each of the devolved parliaments / assembly into simultaneous UK elections. For this to work, adjustments might need to be made in the numbers of such combined MSP / MPs and AM / MPs to reflect the populations of England, Scotland and Wales (but see further below); and the functions of such dual-purpose representatives within the national, as opposed to British, bodies would need to be redefined. So symmetry of this sort would perhaps be too much to expect as an initial step.
• A more attractive and, indeed, evolutionary alternative to this synchronisation and integration of UK and national elections might be to hold the UK elections every four years, with elections taking place at two years’ interval from the national elections (those for the devolved bodies). I would suggest that at least the English party-list MPs should be up for election every two years, as part of both the UK elections and English elections. This would help ensure that they had genuine dual accountability and a dual English-British mandate, as they would be alternately elected on their parties’ English and British platforms and agendas. Just to be absolutely clear: only English voters would vote for the party-list MPs for England; while Scottish, Welsh and Northern Irish people would vote for their own party lists (with scope for variation in the voting system used in Northern Ireland), whether once every four years (as part of the UK elections) or once every two years (as part of their national elections as well as the UK poll).
• The different local and national (that is, both English- and British-national) electoral bases of the constituency and party-list MPs would reflect the different responsibilities of the English and British parliaments respectively. Indeed, this split in the roles and mandates of English MPs suggests a rationale for devolution that rests on a logical and functionally efficient division of responsibilities in addition to the national rationale alone. That is, English constituency MPs, and by extension the English parliament in general, would be responsible for matters directly and concretely affecting their constituents: health care, education, English-national and -regional transport policy, planning, housing, local government and communities, policing and justice, English culture and sports, the environment, farming and agriculture, and – very importantly – all taxation required to generate the revenues needed to fulfil these responsibilities. All of the other areas of government – somewhat fewer than the present-day ‘reserved’ policy areas – would remain the province of the UK parliament and government.
  

  By contrast, the English party-list MPs that would also serve as British MPs would be responsible for defending the interests of England within the UK parliament, and for representing the interests of the UK and the other UK nations within the English parliament. This dual national mandate would neatly correspond to the fact that they had been elected by the English people from national-English party lists at alternately English and British elections. In other words, this provides a functional rationale for the party-list system in addition to its purpose as a means to ensure more proportional election results. Party-list MPs would have a specific responsibility to consider the strategic, economic and social interests of England as a whole, both within the English parliament and the British parliament. Equally, as British MPs responsible for hugely important UK-wide issues such as macro-economics, national security and foreign affairs, they would need to balance their role as advocates for the English nation with a more all-embracing, strategic responsibility for the interests of the UK as a whole and the needs of all its nations.

  This sort of structure provides continuity for the present system’s guarantees that the interests of the smaller UK nations are protected even when England-only matters are being legislated in Parliament – with the difference that the MPs with a constitutional responsibility to consider the interests of the whole of the UK within the English parliament would be elected by English voters. In fact, these MPs should be answerable not only to English voters but to English constituency MPs. Party-list MPs cannot be thrown out by any constituents, whereas constituency MPs could be sacked if present suggestions are taken up that ineffectual constituency MPs should be dismissed within the term of a parliament if enough of their constituents supported this. The potential immunity from dismissal of party-list MPs could lead to abuses, with national (British) parties promoting their placemen to positions high up in their national-English lists in perpetuity, making those MPs accountable to the British party leaderships, not voters. To prevent this, it should be possible for the English-parliamentary parties to force out any party-list MPs that are thought not to be fulfilling their responsibilities to represent England within the Union, or the Union within the English parliament.

• With respect to the composition of the English and British governments, the English government and executive should be drawn from English constituency MPs only, reflecting their England-specific responsibilities. The British government would be drawn from the dual-purpose English-British, party-list-elected MPs along with the party-list-elected MPs from Scotland and Wales (whether these were also MSPs and AMs or not), and the MPs from Northern Ireland, however elected. It could be made a constitutional requirement to ensure that at least one ministerial portfolio in the British government was filled by an MP from each of the UK’s nations. But it also follows from what I said in the previous paragraph that English constituency MPs would have the power to sack English-elected British ministers, although there might need to be some sort of constitutional court to arbitrate in the case of allegations that such ministers had neglected their responsibilities to English voters. The Scottish, Welsh and Northern Irish parliament / assemblies could have similar powers of veto over their own British ministers if the party-list-elected representatives in those countries also served as British MPs.
• In terms of the number of English and British MPs, I think that something like 75% of English MPs should be constituency-based and 25% would be elected by party lists. If, for argument’s sake, there were 500 English MPs in total (compared with 533 UK MPs from English seats after the next general election), this would mean there would be a total of 375 constituency MPs and 125 English-British MPs. The number of British MPs from the other UK countries would then be in proportion to their population, e.g. approximately 12 from Scotland, seven from Wales and four from Northern Ireland, making 148 in total.
  

  Clearly, if the number of MPs from Scotland and Wales were as low as this, they would not be able to be drawn from all of the party-list-elected MSPs and AMs, which are more numerous. But these numbers are purely illustrative; and it might be the case that there would have to be some exclusively British MPs elected via the English-national party lists in addition to the combined English-British MPs. But to ensure that these English-elected, British-only MPs remained accountable to English voters, they could still be subject to scrutiny by the English parliament and be liable to be removed from their positions if they were adjudged to be neglecting their responsibilities to the English people.

• With respect to mutual scrutiny by the English and British parliaments, the new British parliament could, and in my view should, have the responsibility to scrutinise legislation arising from all of the national parliaments, including the English one, in a similar way to the present House of Lords’ revising function in relation to House of Commons bills. This would extend second-house scrutiny to the parliament / assemblies of Scotland, Wales and Northern Ireland, which is presently lacking. However, whether or not this revising function were applied to Scottish, Welsh and Northern Irish legislation, the British parliament should still fulfil this role in relation to the English parliament: adding another layer of security that English legislation that potentially damaged the interests of the UK’s other countries could not be enacted without being referred back to the English parliament for serious reconsideration, although the British parliament should not have the absolute power of veto over English bills.
  

  Conversely, the English parliament should also have a scrutinising and revising role in relation to British bills, and could refer back to the UK parliament any legislation that was thought to be damaging to the English people. The overwhelming majority of English MPs making up the British parliament, and accountable to the English parliament, would make such referrals in practice a rare occurrence. Similarly, the devolved bodies in Scotland, Wales and Northern Ireland could exercise a revising function in relation to British bills affecting their countries so long as they accepted that the British parliament could scrutinise their own bills in terms of their impact on the UK as a whole.

Envisioning the English Parliament: Need for creativity and flexibility

The above evolutionary model for an English parliament is by no means definitive – by definition, in fact. I do, however, think it could work quite well as a transition from the present anomalous situation whereby England is governed as the UK, by the UK parliament, and for the UK. The English parliament whose structure, composition and election I’ve mapped out could be arrived at by extending some already proposed reforms and the devolution process itself just that little bit further, so that the residual UK parliament almost seamlessly evolves into an English parliament. If need be, this parliament could carry on sitting in the Palace of Westminster. Even some of the hallowed procedures and traditions of the Westminster parliament could be preserved intact if that would assuage the establishment’s pain; although some of those practices are themselves already targets for reform, such as the role of the whips, and the present inability of backbench MPs to influence the House’s timetable and the composition of select committees. And even the current Britain-wide mandate of English-elected MPs could be preserved in my system, albeit in greatly mitigated form, by creating an organic overlap between the English parliament and a new British parliament through the establishment of a class of English MPs that also sit as British MPs.

This model for an English parliament is therefore intended as an illustration of what can be achieved by thinking more creatively around the options for enhanced English self-rule and, in particular, by trying to map out what ICT specialists might call a ‘migration path’ to an English parliament: a realistic, achievable roadmap for how we can journey towards the goal of full English self-government starting from where we are now, which is a position total denial of England’s very existence as a nation on the part of the establishment.

We won’t get to where we want to go by pretending we can get there in one Great Leap Forward: the revolutionary establishment of a wholly new, devolved English parliament out of nothing, as it were, would indeed represent an immense Cultural Revolution in the governance and identity of Britain as a whole. In reality, the journey to an English parliament is likely to be more of a Long March; but we’ll never even get going unless we start to map out the staging posts ahead.

So what I’m trying to say is that the CEP needs to re-evaluate its model for an English parliament. The conception of an EP modelled along the lines of the Scottish parliament established in 1998 has already been superseded by the continuing evolution of devolution; and in any case, it raises more questions about the relationship between the governance of England and that of the UK as a whole than it answers.

So the CEP should think differently – more creatively and flexibly – about the English parliament, and work within the harsh realities of the British establishment’s present iron grip over English government to prepare pathways along which the undeniable dynamic that exists towards broader constitutional reform can open up to the English dimension.
For the time being, we may have to settle for what we can realistically get in terms of English self-government, even if our English parliament may initially remain too embedded in the system of British-national governance for many people’s liking. But we must bear in mind that what we settle for now is not definitively settled. Once England, too, is allowed to embark on the journey of devolution, no one can tell where that evolutionary process will ultimately land us.

David Rickard is the author of Britology Watch and A National Conversation for England.

This post is part of the Constitutional Futures series.