What next for devolution?

Timothy Raison

It is now clear that the Government, backed by the Liberals, are hoping before too long to get the devolution wagon back on the road. To push a Bill through Parliament this session hardly looks feasible, and I doubt if even this government would resort to the device of starting a Bill this session and carrying it over into the next session. But there are indications that they hope to table fresh legislative proposals this summer, with a view to launching the Bill (and an early guillotine) at the start of the next session. The deal to achieve this would presumably rest on the allocation of some sort of taxing-raising power to the Scottish Assembly, an attempt at a clearer separation of the devolved from the UK powers, and a scheme for judicial review of whether the actions of the assembly and legislature were intra or ultra vires. This would presumably satisfy the Liberals (as well as the Scots Nationalists). Welsh devolution would be separated, which would buy off the Welsh Labour opponents of the present Scotland and Wales Bill — even though it might jeopardise the three Welsh Nationalist votes. At the same time, some guarantees — formal or informal — would no doubt be offered to the Labour Party dissidents in the North of England, who see devolution as a device for giving the Scots more than their fair share.

All this may add up to an effective tactical package, calculated to secure a second reading for a new Bill and to show the people of Scotland that both Labour and Liberals are serious about devolution. But what we — both the Tory Party and Parliament — must decide is whether the new scheme would actually benefit the people of the United Kingdom: for it is worth remembering that devolution to Scotland is not just a matter for the Scots. The Government themselves said in their 1975 White Paper Our Changing Democracy that 'The issues are extremely important for all the people of the United Kingdom' and again that 'devolution must never be seen as conferring unfair advantage on Scotland and Wales.'

Certainly if devolution were to go ahead, the shelving of the Welsh side of it would be all to the good. Similarly, not many would cavil at the idea of a tighter definition of what was to be devolved and the introduction of machinery for judicial review of vires. But none of that meets the really major objections and fears that were thrown up about the Government's Bill during its unhappy, friendless committee stage.

What, in summary, were those objections and fears?

In essence, they relate to the sheer difficulty of endeavouring to superimpose or tack a devolved layer of government on to a unitary system. Constitutional theory may not be everything; but there comes a point when a structure is so illogical, and thus so heavily dependent on goodwill, that it cannot be expected to operate effectively in any but the easiest of conditions. Stormont may not have worked too badly as a structure; but the conditions were very different from those that could be expected in a Scottish assembly where a powerful group would see it as only a step — indeed a vehicle — on the road to independence.

What came out in committee was the scope that the Bill offered for friction between the members of the United Kingdom. The fixing of the block grant from Westminster to the Assembly was one example of this. So, too, were the reserved powers for London to intervene in such things as local authority rents or public sector incomes in the interests of overall economic policy. This illustrates the enormous difficulty of trying to separate economic and social policy (which is the essence of the scheme). The Government of course found itself torn between that attempt and the Treasury's view — expressed in the White Paper on English regional devolution — that regional block grants would make the task of managing the economy more difficult.

But more fundamental than that is the problem of parliamentary representation and the powers of MPs. For what the Government proposed was that Scottish MPs should be able to legislate on English, Welsh and Northern Irish education, health, housing and so on; but that the reverse should not apply. Worse still, the seventy-one Scots members would be deprived of the task of dealing with their own consitutents' education, health and housing, which would go to the Assembly.

To make matters worse, the Government have shown no sign of willigness to reduce Scottish over-representation — nor have those high-minded Liberals tried to make them do so as part of their compact.

Over-representation is, however, a soluble problem, given the will. (Let me say that I do not object to it under present circumstances.) What is rrot soluble is the problem of members' powers. The notion of a selfdenying ordinance by which Scots members would not take part in the domestic matters of the other UK countries is quite incompatible with our system of government.

There is another aspect to this argument that I tried to press during the committee stage. It is not strictly true that Scots MPs would be unable to legislate on Scottish matters: nothing in the Bill would stop theta bringing in legislation in the Commons on any devolved matter or questioning the Scottish Secretary on any such matter. It would all depend on a convention — and the fact that such a convention worked for Northern Ireland would be no guarantee that it would work for Scotland. I certainlY would expect to see a Private Member's Bill on devolved matters brought in, if only by anti-devolutionists. The Government could only meet this problem by doing the one thing that clause 1 of their Bill forbids -limiting 'the supreme authority of Parliament to make laws for the United Kingdom or any part of it'. Again the attempt to combine devolution with a unitary system is fraught with difficulties.

So what should Parliament do now?

I do not deny that there is bath a desire for devolution among many Scots and sorne respectable arguments for it; nor am I flatly opposed to a constitutional change as a Mat" ter of principle, but what surely the commit; tee stage established is that it is no goou pressing a scheme that is not merely acceptable to a majority, but which caul° not be expected actually to work in practice. (Let me say in passing that I part comPanY. with Mr Heath when he says that Pahament has failed the Scots in this matter. The fault lies not with the House of Commo°s,. but with government.) And it is wort" remembering that the committee stage'5, exposure of the Bill's faults cam.e to an On after a handful of clauses: the vital sections on the Executive, the civil service and the powers to be devolved were not reached' Whatever the other parties may get up to, the Conservative Party should press for Parliament to take an objective, uncommiti; ted look at all the options for dealing wit, the question. We should not be paniekeur into saying that haste is essential: the matte is anyway too important and long-term t° be seen simply in the context of the neg` election. Broadly speaking there are four options (or five, if one were to include indePett; dence): the present scheme plus the sort o; modifications sought by the Liberals; more fully federal scheme; an assernblY; only scheme; and the status quo. Let ti leave independence on one side and eOri" sider the four options in turn, concentrating on the Scottish aspect. To judge by the paper taken over bY th.e., Liberal Party from the new Outer Cire2; policy research unit, the changes which the Liberals are negotiating with the Government are threefold (apart front. separation of the Scottish and Welsh Bills/. First, there is the manner in which the Bill devolves powers to the Scottish Assembly; second, the methods of policing the settlement; and third the financial arrangements and the argument for inde

pendent sources of revenue for the Assembly.

The first is a complicated matter which I will not seek to analyse here; but because the essence of it would be to convert the tYPleally ad hoc listing of powers and duties to be conferred that characterises the present Bill into an approach which starts with a statement of the fundamental principles of the scheme. This would be in terms of a general conferment of legislative powers, followed by a statement of the limitations on those powers and a statement of the reserve Powers of the UK Parliament, together with the possibility of a Bill of Rights. All this would require very close scrutiny, but it may be that if devolution were to go through this could represent a tidier approach, and certainly one which would appeal more to constitutional theorists.

Similarly, the search for a system of Judicial review in place of ministerial fiat ,When it comes to disputes about the legitimacy of the actions of the Assembly or .Executive seems reasonable. It is compatible with the recent tendency in England to accept that the judges should have the right to exercise some restraint on the hitherto almost untrammelled power of ministers. Socialist ministers, however, may not share that view, smarting as they are over the arneside, Skytrain and postal boycott of South Africa affairs.

What of the financial arrangements?

doubt if the notion that the Scots should be given the right to raise additional money 0. ver and above what they receive from the block grant is realistic. From the Treasury's Point of view this would simply add to Public expenditure; from the Scots' point of v, tew, the idea of a power to supertax can hardly be very attractive. Inevitably the real argument is about whether all or part of the rit, one), envisaged as coming through the block grant should instead be raised and determined separately. The approach adopted in the Liberal/ Outer Circle scheme is that the proceeds of personal income tax paid by taxpayers resident in Scotland should be transferred to ,tue Scottish Treasury; that the Scottish reasty^.h would receive royalties on oil brought ashore in Scotland at the rate of 12 Per cent; and that an equalisation grant (vhi.ch could go either from London to dinburgh or vice versa) would bridge the gal) between the yield from these two sources and the proposed block grant. To judge by the evidence submitted by the Revenue Departments to the Kilbran

" _°11 Commission, the income tax idea

w. ould be a bit complicated and expensive abut not out of the question. The oil proposIs look very much more dubious in Practical terms. Either they would be elaborate eyewash, in that the rate would not be determined by the Scottish Assembly, but

would be fixed with the result that the equalisation grant would simply go up or down as the oil revenue fluctuated; or if there were any genuine variation as between oil taxation in Scotland and in the rest of the UK, the implications could be very serious both for the UK economy and for the oil industry. The equalisation grant is probably feasible, but would of course have to be based on an assumption about what would be a fair share of UK income for the Scots. If it were simply a topping-up grant it would encourage the Assembly to keep income tax as low as possible, in the knowledge that Whitehall would make up the balance. But though the grant is feasible, let no one doubt that determining the fair share could be a complicated and bitter process, which would not do away with the rancour that the original block grant system would produce. Overall, the verdict on the possibility of an independent source of revenue is that it is feasible, anyway through the income tax mechanism; but that it would add both complication and expense and would in reality be likely to make very little difference to rates of taxation or even to the feeling that the Scots were really responsible for their own revenue decisions. Indeed, it is quite possible that the Scots Assembly would not even have as much fiscal freedom as local authorities have at present: the pressure to keep income tax in line would be at least as great as the pressure that exists on local authorities to keep their rates in line with government aims. The modifications to the existing Bill that seem likely to emerge do not radically shift the argument away from the criticisms of the existing Bill: the fact remains that the structure would still cause serious friction between the different parts of the UK; the position of Scottish MPs in Parliament would still be utterly anomalous; and the edifice would add bureaucracy to an already grossly over-bureaucratised country.

The next possibility, and the one to which the Liberals are in theory committed though they seem willing to settle for very much less in the interests of saving their skins is a much more fully federal system, with a clear division of powers not merely between Westminster and Edinburgh (and Cardiff) but between Westminster and regions throughout the UK. This could take the form of either a federation of the four countries or — the Liberals' preference — of Scotland, Wales and Northern Ireland plus a number of English regions.

Quite apart from the widespread absence of desire for a federal system of either kind, there are very substantial problems about both approaches. The experience of federalism in other countries is pretty mixed, with pressure to strengthen the centre at the expense of the regions very frequent; but, apart from that, the UK does not seem well suited to federalism. If it were on the four-country pattern, the overwhelming preponderance of England would make things very difficult. How would the UK Parliament be made up? England would either swamp it, or feel very hard done by. All through there would be scope for continuing resentment either by the smaller units or the larger. Indeed, one of the strong objections to the whole devolution saga is the way in which it is causing national antagonisms which have barely existed to come up to the surface as was shown in the votes of the Northern Labour MPs on the guillotine.

But the alternative is equally unacceptable. There is little feeling for regionalism in England: to create a whole new series of bureaucracies merely to solve the devolution question would be mucb resented. Moreover, there would still be a problem of imbalance. The South-East region would have a population of some seventeen million far bigger than some of the other likely regions. Again, regional rivalries in the struggle for resources would become more and more prevalent at the expense of the really rather creditable willingness of Westminster to allocate resources between regions on a rough and ready basis of need, rather than the porkbarrel.

Fortunately the full-scale federal argument is not making much headway at the moment. What of the assembly-only approach, to which the Conservative Party has been more or less committed over the last year or two?

The version of this which has been most often aired has been the idea that Bills should receive their second reading, committee and report stages in the Assembly, and their first and third readings at Westminster. Another, milder variant is that the

Scottish Grand Committee should play a bigger part in the legislative and perhaps questioning process and meet in Edinburgh. I have always myself felt that if we are to have a Scottish Assembly it would make better sense to model it on the House of Lords. In other words, there would be an elected assembly. meeting in Edinburgh which would take over from the House of Lords its role in dealing with devolved Scottish matters. It would deal with legislation, debate and question ministers in exactly the same way as the Lords do — perhaps with the same limitation over financial matters; but equally it would be ultimately subservient to the Commons in the same way as the Lords are. Exactly the same delaying power might be incorporated.

This approach overcomes some of the gravest drawbacks in the Government's present scheme — notably the problem of the role of Scottish MPs. It also has the merit that we have great experience in this sort of mechanism. It would of course have important consequences for the House of Lords — but then reform of the Lords is something which I believe should anyway be tackled.

The problem, of course, is that there could be substantial conflict between the majority in the Scottish chamber and that in Parliament; and in a sense this could be more continuous than the conflict between a separate Scottish government and Westminster under the Scotland and Wales Bill. But against this is the fact that one would not be breaking up the government of the unitary kingdom: one would not have the endless difficulties that seem bound to arise from a division between the economic, social and for that matter foreign and even defence policy that seem bound to arise in any scheme that partially fragments the UK.

The more one considers the problem in any sort of detail, however, the more one is forced to ask whether any form of constitutional devolution makes sense. Separatism is one answer — though! am wholly opposed to it. Perhaps what we should really be doing is to ask how we could make the present unitary system work better, and overcome the insensitivites which sometimes mar it. Should Parliament meet in Edinburgh, say for two fortnights a year? Could the televising of Parliament help to bring it closer to those who live five hundred miles from London? More important, perhaps, could we demonstrate our faith in the United Kingdom by resolving that we will not accept that degree of squalor that exists in Glasgow? I certainly don't believe that the rejection of devolution should allow us to sink into complacency (complacency, incidentally, which afflicted our attitude to Northern Ireland, when it was devolved). But, at the same time, the arguments for devolution — not in general but in a particular version — have got to look very much more powerful than they do at present to justify Parliament supporting it.