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Guest post: Let’s avoid a huge constitutional talkfest – how devolution needs to be handled

The main constitutional business that ought to be on MPs’ minds at the moment is how to deliver the party leaders’ ‘Vow’ to grant ‘extensive new powers’ to the Scottish Parliament. The extent of powers to be transferred, and particularly the extent of power over tax that will be devolved, is far more urgent and important to the future of the UK than ‘English votes for English laws’ (the principle that MPs for English constituencies should decide on proposals only affecting England).

Both can be got on with at the same time, of course. But the fact that London politicians’ attention has so soon turned to England is a gift to Scottish nationalists, and has slowed the Union’s healing. The sooner they return to their Vow, the better.


That doesn’t mean I’m against ‘English votes’. I’m for it, as the logical consequence of substantial devolution. But one of the keys to seeing straight on ‘English votes’ is understanding the issue’s true proportion. In modern times, every government with a working UK majority has had an English majority as well. The only exceptions were the short-lived and knife-edge governments following the 1964 and February 1974 elections. Yes, 2015 is likely to be very close, and a similar situation might – just might – arise. But even that’s not all that probable: of Labour’s hundred-odd target seats, all but twelve are in England.

At the moment, all kinds of wild fears are being spread about the principle of ‘English votes’. I’ve read the suggestion that it’d mean we needed an English First Minister, an English government or an English Parliament. All are nonsense. In truth, a sensible and unexciting set of tweaks to Commons procedure has already been recommended by the McKay Commission, which was tasked with looking at this. The parties should simply get on with implementing them.


The McKay proposals are a bit complicated, and pretty dull – a sign perhaps of a sound, rather than a silly, constitutional reform. At their simplest, they amount to saying new laws with specific effects in England should be considered before second reading by an English Grand Committee (which just means all English MPs sitting together in the Commons chamber). If rejected by the committee, they should not normally be insisted upon by a majority including non-English members. Later in the bill’s passage, committee stage should also be dealt with by English-only backbenchers, the public bill committee’s makeup reflecting the party balance in England. The idea is, by means of these procedural changes, to give birth to a constitutional convention (in the modest sense of an understanding or practice) that non-English MPs should not normally vote on purely English matters.

McKay does make some other more convoluted suggestions, but these are the heart of his recommendations. They’re sound; could be implemented quickly; and would ensure that the view of English MPs could not in normal circumstances be overridden by the views of others on matters only affecting England. They offer a complete and constitutionally literate solution to the ‘West Lothian question’.

Some may object at this point that that weasel word normally leaves the door open for Scots MPs (or more accurately, an English minority with Scottish support) to impose their will in some circumstances. Yes, that’s true. McKay would not ‘ban’ Scottish MPs from voting on English matters. But he’s quite right to stop short of that.

While under the Sewel convention the Commons does not normally legislate on devolved matters without the consent of the Scottish Parliament, nothing in our constitution actually prevents English MPs from doing so, since Parliament as a whole remains sovereign. So those who would want to go further than McKay and ‘ban’ Scots MPs from voting on English matters are not actually asking for balance, but for England to be more constitutionally iron-clad than Scotland. That’s why I say McKay’s moderate proposals are constitutionally literate. They’d achieve balance for England: no less but no more.


But, some ask, what if by some chance we do happen to get one party next year with a UK majority, but without an English one? What if ‘the opposition’ has a majority in England? Surely we need now to set the ground rules within which each must work, in case that happens? The answer’s an emphatic No. It’d be far better for MPs to have to muddle through, and make it up as they went along.

If the government did not find itself with a majority in England, it would have to reach some kind of accommodation with other parties in order to implement its English programme – most obviously its health and education policies – or some agreed compromise programme. It would be a new species of hung Parliament. And just as it was helpful for Tory and LibDem politicians in 2010 not to work to a pre-ordained set of rules about how their agreement would have to work (they could have chosen a supply and confidence arrangement for instance) or even whether they reached one at all, so in this new type of hung Parliament fixed rules would be hindrance rather than a help.

We might at one extreme end up with a new kind of Anglo-British coalition, one or two ministers from an ‘opposition’ party running English policy departments. More likely, the government would take a bipartisan or compromise approach to English policy, while perhaps preparing for a new election. Much would depend on the particular balance of forces in the Commons, and the relative policy stances of the parties. A Labour government without an English majority of its own might actually find it very easy to achieve comfortable English majorities for its English programme with the support of LibDem MPs.

By the way, this sort of hung Parliament would I think be wise to get rid of the rigid framework of the Fixed-term Parliaments Act, which would otherwise prevent an early election. I mention that simply because it’s another good example of how obstructive fixed constitutional rules can be. Political solutions to political crises are better.

So the way ahead is really quite straightforward. Most focus should be on fleshing out the Scottish ‘Vow’. At the same time, MPs should do the boring back room talk necessary to put McKay into practice. It’s far from the existential threat to Labour that even Labour politicians seem to assume, and is unlikely to be bettered from any party’s point of view.


What we emphatically do not need is huge, wide-ranging or fundamental constitutional change, or any process – such as a constitutional convention (in the pompous sense of a council, assembly or folkmoot) – which would flirt with such upheaval. Designs like this, in spite of their surface grandeur, are actually opportunistic or self-serving, with the usual think-tank suspects flogging their predictable patent remedies as panaceas, and party politicians seeking advantage through delay.

If there’s ever a ‘Gardner’s law’, it might be this: constitutional change in the UK should always be piecemeal and specific, never holistic. Those who repeatedly claim piecemeal change ‘has failed’ are simply wrong.

Some people think there should be more power for English cities and counties now. I agree. If politicians want that, they should make specific proposals in their manifestos. Some want 16 and 17 year olds to be given the vote, now they’ve taken part in the Scottish referendum. Again I agree, and I’d like that specific proposal to be brought forward now. Neither needs to wait on a constitutional talkfest.

Others want more Lords reform. Again, fair enough. But it would be better done in small, agreed chunks, like taking the bishops out immediately, for example. The one serious piecemeal effort we’ve had at Lords reform worked: the hereditary peers have almost all gone. What did fail was Nick Clegg’s botched grand design. But that’s exactly the kind of rubbish that’d be revived by a constitutional seminar of the great and good. Proportional representation is an unwanted reform that campaigners would like to smuggle on to the agenda under cover of a grand constitutional jamboree. As is regional government.


But the most ominous aspect of a constitutional convention would be its inevitable flirting with a ‘codified’ or written constitution, which would be the daddy of all wrong-headed and holistic constitutional plans. A written constitution for the UK would be intended to limit politics by placing obstacles in its way. Whenever a radical new policy was advanced, opponents could object not on its merits, but on the basis of whether it was ‘constitutional’ – as happens in the US, where health care reform hung on the vote of one judge.

At the moment, EU law and human rights law limit what British politicians can achieve. Is the public completely happy about that? Or do these constraints cause tensions in our democracy? We all know it’s the latter. I’m prepared to defend the influence of both EU and human rights law in the UK; but that’s because they set only some limits on UK politics, and both are ultimately removable by Parliament. A written constitution would be for ever. It would bring in a judicialisation of politics and a disempowerment of voters that would amount to something like Britain’s current human rights controversy expanded in excelsis. It would hobble politics, and drive MPs even more towards an indistinguishable middle ground. Finally, it would prevent constitutional changes we’re likely to need in future, but can’t now foresee.

Written constitutionalism in the UK poses as a movement for unspecified ‘change’; but in truth it aims at slowing down and stopping change. A written constitution is the most conservative proposal possible. But be in no doubt: many who call for a constitutional convention want precisely this. I had an exchange on Twitter during the Scottish referendum debate with someone who wanted new constitutional rules to stop another Scottish independence referendum being held so easily, for example. But the fact that that referendum happened (it’d be impossible in many countries with written constitutions) is proof of the strength and democratic radicalism of our arrangements, not their weakness.

Politicians should get on with the limited changes needed following the Scottish vote – then allow the Union to settle. They mustn’t be allowed to throw our constitution into chaos.

Barrister and former government lawyer Carl Gardner blogs at Head of Legal.