West Lothian Question

The UK Independence Party has today (21.3.06) launched its plans for fair representation for all Britons by calling for the creation of an English Parliament.

Party Chairman, David Campbell-Bannerman said: “The current system of national parliaments for Wales, Scotland and Northern Ireland has created a serious imbalance which is regularly exploited by the Government as it rams through English legislation using the votes of Welsh and Scottish MPs, whose constituents would not be affected by the outcome.

The UKIP solution, revealed by Mr Campbell-Bannerman is to scrap the existing Welsh and Northern Ireland Assemblies and the Scottish Parliament, and re-constitute them without the expensive buildings, using Scottish, Welsh and Irish Westminster MPs. English MPs would form the English Parliament. All MPs would sit for 3 weeks at Westminster, followed by one week’s plenary on devolved issues within the devolved parliaments/assemblies.

Mr Campbell-Bannerman continued: “UKIP is a UK wide party, and is proud of it. The time has come, however, to treat the English fairly by creating an English Parliament and putting England on a par with Scotland, Northern Ireland and Wales.

“The Government’s tinkering with the constitutional settlement of the United Kingdom has created a serious democratic imbalance which requires urgent attention. The solution is not a series of small regional governments housed in shoddily built yet hugely expensive new offices, but a cheaper, more democratic use of existing institutions and elected representatives.”

The UKIP answer to the West Lothian Question

1. UKIP is the true party of the UK. We believe that each part of the UK should be treated fairly and equally, in terms of policy and representation, and that the present structure has failed to solve the ‘West Lothian Question’.
2. National parliaments/assemblies should be retained - should that be the continued wish of the people of those individual nations - but regional government and regional chambers, particularly the English regional chambers, be dismantled. However, all measures passed under devolved powers by devolved bodies that would act to disadvantage one part of the UK over another (such as free tuition fees/dental fees/free nursing care) will be made subject to referral to UK Westminster Government for final approval. Devolved powers would be altered accordingly.
3. UKIP is the true party of localism and local democracy – we will give the people the power of national referendums and give local bodies local independence and control of schools, hospitals and planning.
4. UKIP will fight for the distinctive British means of government – a strengthened House of Commons, a reformed and elected House of Lords, the well proven and historic system of county councils, metropolitan, town, district and parish councils.
5. UKIP will act to remove unnecessary and costly tiers of government and not just talk about it as other parties do.

National policies:

1. Scotland

• UKIP will scrap all MSPs and have Scottish Westminster MPs sit in the Scottish Parliament, returning all savings made in a council tax refund. UKIP will also scrap all MEPs on leaving the EU.
• Scottish Westminster MPs would sit 3 weeks in Westminster, with some Scottish Parliamentary committee meetings; followed by I week’s plenary in the Scottish Parliament.
• UKIP would restore UK Westminster control over high level, common matters across all departments, with small UK-wide departments for education, health, home affairs, transport etc. Delegated powers to national bodies would be trimmed accordingly
• UKIP will give consideration to demolishing the ugly and unpopular Scottish Parliament building, and sell the site for housing. The Scottish Parliament will be moved to more appropriate refurbished, historic buildings.
• UKIP will restore the Scottish regiments, and disband the EU- driven Euro regional army structure. UKIP will use savings from leaving the EU to spend on strengthening defence.
• UKIP will argue for Scottish ships to be built in Scottish yards [ NB loss of contract to Poland nearly closed Ferguson’s Yard ].

2. Wales

• UKIP will abolish the Welsh Assembly and scrap all Welsh Assembly members. Welsh Westminster MPs will sit in a new Welsh National Council, sitting alternate months in North and South Wales, and returning all savings made in a council tax refund. UKIP will also scrap all MEPs on leaving the EU.
• Welsh Westminster MPs will sit 3 weeks in Westminster, with some Welsh National Council committee meetings, followed by one week’s plenary in the Welsh National Council.
• UKIP would restore UK Westminster control over high level, common matters across all departments, with small UK-wide departments for education, health, home affairs, transport etc. Delegated powers to national bodies would be trimmed accordingly.
• UKIP will close the present ( leaky ) new Welsh Assembly building with more appropriate and less costly temporary facilities in North and South Wales.
• UKIP will restore the Welsh regiments, and disband the EU-driven Euro regional army structure. UKIP will use savings from leaving the EU to spend on strengthening defence.

3. England

• UKIP will solve the ‘West Lothian Question’ by creating an English Parliament, but not through a new and wasteful new building, but by reserving days at Westminster for English-only debates and issues – called ‘English days’.
• Existing English Westminster MPs would sit in the English Parliament
• UKIP would restore UK Westminster control over high level, common matters across all departments, with small UK-wide departments for education, health, home affairs, transport etc. Delegated powers to national bodies would be trimmed accordingly
• UKIP would recognise de facto ‘English-only ministries' ( such as Department of Education bringing forward an English only Education Bill ) by creating an English Executive. There would be an English First Minister, but he or she would be a UK Westminster MP.
• English Westminster MPs will sit 3 weeks in Westminster performing their UK-wide duties and English Parliament committee meetings; followed by I week’s plenary in the English Parliament.
• UKIP will disband all English regional chambers and replace Regional Development Agencies. English county councils, district councils and parish councils will all be saved and strengthened.

4. Northern Ireland

• UKIP respects the unique circumstances applying in Northern Ireland, and supports the Good Friday Agreement. We will retain and support the Northern Ireland Assembly in its current form, and encourage its recommencement.
• In the long term, as circumstances allow, UKIP will seek to treat Northern Ireland in the same manner as all UK home nations, by replacing Northern Ireland Assembly members with Westminster MPs, returning all savings made in a council tax refund. UKIP will also scrap all MEPs on leaving the EU.
• UKIP will restore UK and Irish regiments, and disband the EU-driven Euro regional army structure. UKIP will use savings from leaving the EU to spend on strengthening defence.

Local Policies:
5. Local elections

• UKIP will disband all English regional chambers and replace Regional Development Agencies with strategic groups formed of county or unitary authorities. We will save and strengthen English county councils, unitary, metropolitan, district and parish councils, to bring government closer to the people.
• UKIP will cut the unnecessary Government Offices of the Regions
• UKIP will act to remove unnecessary and costly tiers of government, and not just talk about it ( as the Tories do – who are often in control of regional bodies they could do away with )
• UKIP opposes EU-driven regional government in all its forms: amalgamation of historic police forces, regiments and council planning powers
• UKIP is the true party of localism and local democracy – we will give local bodies local independence and control of schools, hospitals and planning – where local people’s needs are constantly being overridden by EU and UK bureaucrats
• UKIP will use savings from leaving the EU to cut council tax – our aim is to replace council tax with a local sales tax, illegal under EU laws.

ENDS

Paul Murphy, Labour MP for Torfaen, has warned that bringing Welsh constituency sizes down to English levels, ending Welsh over-representation at Westminster, could lead to the break-up of the United Kingdom:

“I am beginning to see and to feel in the House of Commons that there is a belief among some conservative Members of Parliament – and I would exclude all Welsh Conservative MPs from this criticism – that somehow or other they would be better off frankly with an English parliament and without Welsh or Scottish Members of Parliament.”

He continued: “I don’t want to see the Conservative and Unionist party become the Conservative and Separatist party. That’s me as a Labour member saying that.

“I feel there’s an onus on all of us representing Welsh constituencies to ensure that the Government listens and that we are not heading towards an English parliament as opposed to a United Kingdom one.”

Good, the United Kingdom isn't worth preserving if some people have their own national parliament AND demand over-representation at Westminster so that they can pervert English democracy.

This Charter88 Sovereignty lecture was given at 11 May 1992

Let me start with a confession. I am not an expert on the British Constitution. I am not, for example, in the same league as John Stuart Mill who started learning Greek at the age of three and was on to proportional representation by the time he reached his teens. At a rough estimate, I should guess I started taking an interest in the British Constitution at the age of forty-two and a half.

I can only console myself with the thought that most of us are in the same boat. The general standard of Constitutional argument in this country would barely scrape a GCSE pass in a poor year. We most of us rub along on a few inherited patches of wisdom. The greater part of the estate has been set aside; the traditional machinery lies, still visible to the gaze, but neglected and rusting in a corner of the field. As Nevil Johnson put it 15 years ago, we suffer from "atrophy of any language in which we can talk of constitutional issues, of rules, or of the principles of public law". It requires only a brief acquaintance with the vigour, the ferocity, the scholarship of debate on constitutional questions in the U.S. to come to the conclusion that we, to put it kindly, are a bit out of practice. What seems to me worrying about our Constitution is not so much that it is unwritten as that it is so often inarticulate. If you think this too sweeping a judgment, I'd like to offer a couple of recent examples.

You will recall the appearance of the Maxwell brothers, Kevin and Ian before the House of Commons Select Committee on Social Security. And you will also recall the great fuss there was when they refused to answer questions. Grave constitutional principles were said to be at stake. But what principles precisely? After a good deal of head scratching and foot-shuffling, nobody seemed very sure - was it the right to silence? But then for the life of us we could find nothing about the right to silence in Erskine May. Was it something like the American Fifth Amendment, some protection against self- incrimination? Unfortunately, we don't have a single written Constitution for there to be a fifth amendment to. I read the newspapers pretty carefully, but nowhere could I find any mention of the ancient principle involved, one which would have been familiar to Montesquieu and Burke, namely that it isn't parliament's job to try cases which may conceivably be brought before the courts. A principle better known as the Separation of Powers.

Or to take another fairly recent example. You will remember the outcry after the release of the Birmingham Six last year. More than 140 MPs - over a fifth of the House of Commons - petitioned for the removal of the Lord Chief Justice, Lord Lane. So did many great newspapers -the Independent did it twice - and many leading commentators such as Bernard Levin and Ludovic Kennedy. Even those who defended Lord Lane, such as Mr. Louis Blom- Cooper, defended him on his conduct of the case (conduct which I happen to agree was disastrous). Nobody, but nobody, defended him on the strict constitutional grounds that High Court judges enjoy security of tenure during good behaviour - and bad behaviour is not the same as a bad judgment. Yet this principle is the foundation of the independence of the judiciary, the undoubted bed-rock of our liberty. It was surely worth a mention.

As we go along, I shall refer to one or two other interpretations of our constitutional arrangements. All I wish to add at this point is that correct interpretation is not always easy; it's often more of an art than a science. Consider a problem which looked very pressing a few weeks ago. Suppose the General Election had resulted in a hung parliament, with Labour having won a handful of seats more than the Conservatives. What would Mr. Major's position have been? Well, the obvious parallel was Mr Heath's position after the results were declared in February 1974. And the Grand Soothsayers of our Constitution, Lord St. John of Fawsley and Mr. Peter Kellner, both agreed that Mr. Heath had been well "within his rights", in seeking to remain in office, and patch up some deal with the Liberals.

Well, those of us who were around at the time remember a strong feeling compounded of embarrassment and distaste. It seemed to us that, in a first- past-the-post system, Mr. Heath had finished second, a close second, but second none the less, and that he therefore ought to step down. Indeed, even the argument advanced on his behalf, that the Conservatives had totted up more of the popular vote than Labour, was more appropriate to a plebiscite than a strictly parliamentary system.

It seemed to me that Mr. Heath's behaviour had in fact crystallised, somewhat involuntarily, a new constitutional convention: namely, that the winner of the largest number of seats has the right to try and form a government. Now you still won't find this convention in any of the textbooks; you won't find it, for example, in the latest edition of Rodney Brazier's invaluable Constitutional Practice. But I believe it to be the case. If Mr. Major had finished a few seats behind Labour, I am convinced that he would have resigned instantly.

Stanley Baldwin put his finger on the difficulty:

"The historian can tell you probably perfectly clearly what the constitutional practice was at any given period in the past, but it would be very difficult for a living writer to tell you at any given period in his lifetime what the Constitution of the country is in all respects, and for this reason, that at almost any given moment ... there may be one practice called 'constitutional' which is falling into desuetude and there may be another practice which is creeping into use but is not yet constitutional."

Such difficulties are notoriously peculiar to the British. Until recently, there were two other civilised countries which didn't possess some kind of single special entrenched document setting out the rules of the game - Israel and New Zealand; in recent years, though, the passing of a constitutional semi- entrenched law in New Zealand has given that country something resembling a single written constitution. In Israel, similar basic laws have been passed in recent years. So we are now more or less on our own. Nothing wrong with standing alone, but it does help to know where you are standing and I'm not convinced that we do.

But our exceptionalism is odder than that. Not merely are we an exception to the rest of the world; our constitutional arrangements are also an exception to the general run of arrangements in other great British institutions: sporting clubs and federations, college bodies, learned and professional institutions, political parties, trade unions. Almost all of them have a code of rules written down in a single document and special procedures for changing those rules - procedures which tend to be elaborate, to require extra-large majorities for approval, and to require that approval to be spread over an unusually large number of meetings or conferences. So the British parliamentary system is unusual in that way too, that exactly the same procedure is gone through, regardless of whether the measure is some profound constitutional alteration or the Hairdressing (Scotland) Amendment Bill.

Defenders of the status quo will argue that this system has served us well over the centuries, that our parliamentary traditions have combined stability and flexibility and that we should not cast away in a minute what has taken generations to build.

I am not insensible to the charms of this line of argument. But it has to be said that the status quo is not what it was. Advocates of "rolling constitutional change", like the present Education Secretary, Mr. John Patten, have to reckon with the fact that this is a rolling stone which actually sheds moss. It shed, first of all, the Church and the heritage of natural law which placed the monarch firmly under the Almighty and hence prevented power from being wholly arbitrary; then it shed the power of the monarchy, although Queen Victoria was extremely reluctant to admit it; then it shed the effective power of the Second Chamber, in two steps, in 1911 and 1949. More recently, the independence of local government went for a burton.

This thinning of our constitutional texture was described by Lord Hailsham as amounting to "elective dictatorship". Forty years earlier, Harold Laski claimed that "our Government has become an executive dictatorship tempered by the fear of parliamentary revolt." In earlier years still, even those principal justifiers of our constitution, Sir Ivor Jennings, and A. V. Dicey, now and then uneasily let slip their anxieties that the party majority - what Dick Crossman called "the battering ram" - could now force through any measure which took the passing fancy of the Prime Minister of the day, without fear of modification or delay. These fears that our democracy is now too unmediated and too centralised are neither novel nor confined to one party or another. After all, we have together endured a pretty consistent stream of ill-considered, short-sighted, partisan legislation: from the Trade Disputes Act of 1906 to the Poll Tax legislation of the 1980s. The supremacy of our elected parliament is our most precious constitutional inheritance, but is that all we are to inherit?

There are certainly differences in the way political parties approach the dilemma. The Left tends to be indignant, the Right tends to be apprehensive; the Left tends to talk of incipient fascism, the Right foresees the end of civilisation as we know it; the Left worries about human rights, the Right about sound money. But there is a common ground, and it is the purpose of these Sovereignty Lectures to explore, and, if possible, enlarge this common ground. I ought to repeat, by the way, that I'm not a signatory or a paid-up supporter of Charter 88. But we do travel along the same line for quite a part of the way, even if as Iain Macleod said of Enoch Powell, I prefer to get off several stations before the terminus.

I'll start the exploring by stating what I take to be the principal shared belief about the present state of things, the single piece of common ground which we all have at least one foot planted on.

I mean the belief that two World Wars and the various ideological shocks of the past century have left our system too centralised; and that accordingly we need to disperse, devolve and pluralise power and responsibility. Power in the U.K. has been clenched too tightly; sensitivity to the interests and aspirations of individuals and localities - what might be called fingertip feeling - is possible only if we unclench the fist. That broad general assumption would, I imagine, unite most people in this Hall. The belief, I'm sure, is common to the four people delivering these Sovereignty Lectures. Certainly Mr. Gordon Brown's absorbing address in this Hall a couple of months ago repays re-reading, because it embodies an approach very different from the battering-ram Labour Party of my youth, which not only believed, in Douglas Jay's immortal words, that "the man in Whitehall knows best" - about nutrition, about education, about how to run a steel mill, but also that socialism could be effectively delivered only by the concentrated clout of central government. Not only was the man in the Whitehall omniscient, but he was omnicompetent too.

That kind of self-confidence has pretty well disappeared from British politics, and we, most of us, kiss it goodbye without regret. We have, over the past decade-and-a-bit, witnessed quite a dispersal of the Whitehall estate. One elegant bystander saw it as selling off the family silver, but a large quantity of the goods on offer on closer inspection turned out to be car boot sale stuff. The really valuable lots were those sold off to existing tenants - the council houses, above all. Despite the widespread grumbles at the time, the logic of such privatisation has now become generally accepted.

But I regard that dispersal of property rights as only the first of three stages in the process of unclenching the fist. The second stage is what I would call the dispersal of institutional responsibility; I mean here such things as the local management of schools, better still in my view, grant-maintained schools or self-governing hospitals. To those who are still unreconciled to the latter and regard them as some kind of below-the-belt blow to the National Health Service, I would only say that even within the 1945 Labour government there was a strong body of opinion, led by Herbert Morrison, which opposed the nationalisation of those hospitals which were owned by local authorities and charitable bodies, believing that Nye Bevan's total takeover would injure local pride and enthusiasm and was anyway unnecessary to the central purpose - the provision of first-class free treatment.

But I don't want to become embroiled in an argument about the specifics of these reforms. My purpose is simply to mention the first two stages in the dispersal campaign - property rights and institutional responsibility - only to set them alongside the third stage, the one we have scarcely started on, constitutional reform. From my own perspective, I regard this third stage as unfinished business in the process of reinvigorating self-government in this country.

I do not expect everyone here tonight to agree, but far from this quest for decentralisation representing a retreat from Thatcherism, I regard it as the completing and securing of the two projects of individual responsibility and limited government which modern conservatism has adopted as its mission. And I think complacency about the present state of our constitutional arrangements is just as much of an abdication from true Conservatism as complacency about the State education system or nationalised industries was in 1979.

And that, I promise you, is the last whiff of party politics for this evening.

Now if you see our essential purpose as a decentralising one, if you keep your eye on that goal, then I believe honesty compels us to be a little sceptical about some reforms.

For example, some eminently respectable bodies have put forward the suggestions that the remaining constitutional prerogatives of the Crown - the right to dissolve Parliament and so on - should be removed and granted to some other public official, the Speaker of the House of Commons, for example. Now this sounds an impeccably democratic and modern-minded suggestion; there is no need to accuse all those who make it of the peevish republicanism which does lurk in the breasts of some would-be reformers.

Yet I cannot see that the proposal would do much to assist the dispersal of power or even the cause of making its exercise more transparent. The Speaker is, for all his or her inestimable virtues, only a nicely laundered politician; he or she lives like other politicians in a web of gratitudes and resentments; if his or her arm is in fact untwistable, there is no way of preventing an old comrade from trying to twist it, or of stopping old opponents from accusing him or her of having had it twisted. Which sounds to you better evidence of an effective separation of powers: the relationship between President Hillery and Mr. Charles Haughey, or the relationship between the Queen and Mrs. Thatcher?

Or let us take a more central preoccupation of constitutional reformers, Proportional Representation. Now it is said on behalf of Proportional Representation that it produces fairer, more representative, more balanced parliament and hence more stable, consistent governments. And it is said against PR that it gives an easy leg-up into Parliament to demagogic racists who might otherwise fade away, that it gives unrepresentative minorities - the Free Democrats in Germany, for example - undue influence over the policy of governments in which they are coalition partners, and that it makes stable, consistent government less rather than more likely. I happily concede that for a chamber which does not have to sustain a government, a Senate or the House of Lords, PR seems to me ideal; and in any case, in the right political circumstances, PR, like the first-past-the-post or election by drawing lots, for that matter, can produce perfectly decent government for longish stretches of time.

But what I don't think anyone can deny is that PR does have an inherent centralising tendency. It centralises political power at party headquarters. In any seriously proportional system, that is, a party-list or multimember system, the party label is essentially the currency in which the votes are counted and the seats allocated. I would like to refer here again to Mr. Nevil Johnson of Nuffield College, a former believer in PR, who in his recent recantation was much impressed by the overweening power - and consequent tendency to corruption - within the major parties in West Germany. There is, I believe, genuine virtue in the relative poverty of our political parties and the relative independence of their constituency associations. I cannot help believing that both the poverty and the independence would wither under most systems of PR.

At the same time, the management of government under a PR system also has an introverted quality, which amounts to a further kind of centralisation. It is not simply that the electors cannot foresee and have no control over the policy trading between the parties which negotiate the virtually inevitable coalition after the election. If the coalition is to prosper, the eyes of its leaders must be constantly on the mood of their junior coalition partners, rather than on the mood of the nation; by contrast, a British Prime Minister or an American President in their simpler systems will be paying close attention to what the voters as a whole are saying. The conversation between governors and governed is more straightforward, more transparent.

Many of you may wish to dispute this argument, and in a way I am sorry to have spent this much time on it. But I do so, not so much to bury PR, as to try to clear it out of the way in order to concentrate on what seem to me the real architectural questions about our constitutional arrangements.

I think it's a pity that in many people's minds constitutional reform and PR have come to mean much the same thing. To me, PR looks like an ingenious and expensive scheme of interior decoration which we might get fed up with all too quickly; I don't see it as a load-bearing part of the structure.

Well, what should that architecture look like? I'll jot down five general principles which I think ought to guide us, and then like a good jobbing architect I'll give you a prompt and, I hope, alluring blueprint.

I make no apology for pausing to consider the qualities we are aiming for. It has always seemed to me rather odd that constitutional reformers should take less trouble to consider the aesthetic and functional qualities of their proposals than a team designing a new can-opener or garden spray.

First of all we want simplicity. We don't wish to add to the burden of government on the citizens, either through extra taxes or extra administrative complications. Every additional tier of government must increase the possibilities of further public expense and more maladministration. So, for example, if we want to set up some sort of representative body for Scotland, then the Scots, whether pro- or anti-devolution, would be glad to see a layer of Scottish local government removed in compensation. Conversely, since the demand for a corresponding network of English regional assemblies is faint if not invisible, then we should feel no compulsion to invent one.

Second, stability. We want a system that will improve consistency and steadiness in the quality of government. Voters will not thank us if, in our quest for mathematical fairness, we end up with a set of arrangements which produces more see-sawing of the type which has been so justly complained of over the post-war era in British politics.

Then it follows from what we have already said about unclenching the governmental fist, that separation is a highly desirable quality. Any reforms which help to entrench, clarify or widen the present separations between the executive, the legislature and the judiciary should be favourably considered, in the interests of improving both the protection of liberty and the transparency of government. Conversely, any proposal which would tend further to glue together our already over-fused branches of government should be looked at with a sceptical eye.

That is linked to my next desirable quality for which I will meekly use that unlovely term, subsidiarity (devolution is not much better). Functions should be exercised at the lowest practicable level of government and, wherever possible, not by government at all but by private individuals and independent institutions. This rule applies pre-eminently to our dealings within the European Community, but not to them alone.

And mention of the European Community brings me to my final desirable quality, what I call patriation. While subsidiarity is a constitutional expression of democracy - people-power - patriation gives constitutional expression to national pride and independence -nation-power, if you like. It is English and Scottish judges who ought to be the prime protectors of our legal rights and liberties; it is British MPs who ought to remain the prime exponents of our anxieties and grievances. It is the best defence against the outbreak of neo- fascism which Euro-sceptics like Mr. Norman Tebbit fear, and not without reason. I say 'prime'; I do not say 'sole'. I do believe that the European Parliament and the European Courts do have a considerable role to play in the resolution of disputes and grievances. But we need to think much more carefully than we have so far about their relationship with national courts and parliaments.

Well now, let us get down to specifics. What kind of reforms fit the bill we have drawn up?

I want to start, briskly and symbolically, at the bottom, with local government at its most local. One of the unsung disasters of the Heath-Walker reforms was their lack of interest in the lowest tier of government - the parish. I suppose that is not so surprising when you consider that some of the historic counties - older than the Westminster Parliament - were being shovelled into the dustbin of history - or so they thought at the time.

I remember, as a rather timid leader-writer, going to see Mr. Peter Walker in his cubbyhole in the House of Commons, and summoning up the courage to ask him if he didn't think these new super-counties were a bit large and remote and if there wasn't something to be said for keeping the intimate historic scale (although I don't think I put it so coherently). He looked at me, not unkindly, for he is an amiable man, but with amazement. The doctrine that bigger was better was such an indelible part of the conventional wisdom of government that anyone who couldn't see it must himself be an antique survival like a beadle or a remembrancer.

I want to revive the bottom-most tier - well, tier is too grand a term, ledge would be nearer the mark - as an earnest of our basic intention, which is to revive self-government. At present, village or ward governance is mostly agitation and supplication; there is very little decision-making power. Entitle every parish council to 5% of the proceeds of the council tax to spend as they thought fit - rather on the lines of the old penny - now two-penny rate - and then you might see things begin to hum; environmental self-improvement on a modest scale might replace futile lamentation.

Moving from the little platoon to the battalion level, we have a double purpose: to restore the historic counties and boroughs, in the interests of civic pride and to simplify the over-elaboration of tiers and functions. It is nice to hear from Mr. Michael Howard that there is no money to spare for a grand reform; we don't want a grand reform; we want a careful county-by-county and borough-by-borough reconsideration, of the sort that seems to have met with general approval in Wales. I don't mind if Sir John Banham's rural rides take years rather than months. It was hurry that undid us last time.

A simplification of local government then leaves room for representative bodies in the non-English bits of the United Kingdom. As their names suggest - the principality, the province and the kingdom - the three regions are different in themselves and different in their historic relationship to the British Crown Parliament. It would accordingly be wrong to aim for a tidy-minded symmetry in devising representative bodies. No constitution is or can be perfectly symmetrical, what it can and must be is generally accepted as both fair and usable.

As in Gladstone's day, opponents of anything which looks faintly like Home Rule like to ask what is now known as the West Lothian question: how can Scottish MPs at Westminster continue to vote on English domestic affairs when, if we had a Scottish Assembly, English MPs would no longer be allowed to vote on Scottish domestic affairs? This is the sort of question which is asked by people who don't want an answer. After all, for half a century, nobody minded Northern Irish MPs voting at Westminster on mainland business, while mainland MPs took no part in the increasing activities of the Stormont Parliament.

We can perfectly well devise a system like the one suggested by Sir Alec Douglas-Home's committee back in the 1970s: that a directly elected Scottish Assembly would form a third chamber of the Westminster Parliament to take the Second Reading and Committee stages of Scottish Bills. Should it have revenue-raising powers? Why not? After all, until recently local authorities in this country had unlimited revenue-raising powers. But suppose a Labour dominated Scottish Assembly wanted to raise more revenue than the UK Treasury approved of? My answer is simply: let them. If the Scots wished to be more heavily taxed than the English, that would be up to them; and if they didn't, the Assembly wouldn't be dominated by Labour for very much longer.

I must, in fact, confess to a more general insouciance: I really don't mind very much if there is an occasional dust-up between one part of the political system and another. I think we have too often sacrificed clear and honest argument in the interests of smoothness of administration. I believe - and I think anyone who believes in the revival of the Second Chamber, let alone the creation of a Third Chamber, must also believe - that public, intra-governmental conflict is not necessarily an unhealthy symptom. That is why I want to strengthen the constitutional authority of the House of Lords, so that it can disagree uninhibitedly with the Commons and the Commons will have to take its disagreement seriously. That is why some element of election - by PR, if you fancy - is an essential ingredient in a reformed Upper House. Once again, I refer you to a report of a committee chaired by that indefatigable radical, Sir Alec Douglas-Home, back in the 1970s. His recipe was a mixed House, part- elected, part-nominated from among existing life and hereditary peers.

But any reform of the Second Chamber must lead us one stage further back: to a reinvigoration of the Lower House and a determination to make its scrutiny of legislation a reality rather than a wearisome formality.

It is here in the House of Commons that one experiences the rustiness of our system at its most painful and embarrassing. It is not simply the habitual emptiness of the Chamber, now crowded only for the hollow mummery of Prime Minister's question time, it is the emptiness of the speeches; the listless drone of the Minister reading out his brief, the unconvincing chuckles of the doughnut ring around him, the unconvincing jeers of the Opposition, the members who have been persuaded to stay on for the debate on the promise of unspecified favours from the Whips. True, much of all this would be familiar to observers of the House of Commons in its supposed heyday; in fact, I have often thought that the most shocking sight to the novice - the backbenchers who have been pressed to serve on committees, and who appear to spend most of their time on answering their letters - needs only a few stove-pipe hats and brocade waistcoats to recall the Parliaments of the Regency.

More serious, I think, is the way in which attention and influence has imperceptibly drained away from the House. This may come as news to some of those innocent entrepreneurs who still pay handsome consultancy fees to backbenchers, but they would be better occupied in wooing the much derided members of the European Parliament who actually have some prospect of securing the passage of a useful amendment. It is from the Upper House that the more memorable and damaging criticisms of government policy seem to come these days. While if we turn to the other branches of government, we find that the views of even minor members of the Royal family are listened to with the closest attention and often acted on quite assiduously by Ministers. Far from the Royal family receding in importance, it seems more plausible that we are coming to the end of an era of silent monarchy and returning to the less fettered behaviour of Queen Victoria and Prince Albert. The informality of modern monarchs may, indeed, be accompanied by a willingness to speak one's mind € la Juan Carlos.

But more dramatic even than the end to the silence of the monarchy is the revival of the judiciary as a constitutional actor. For the first half of this century, High Court judges have been cautious to the point of timidity in expressing any criticism of governmental action; the independence of the judiciary has been of a decidedly subordinate character. But over recent decades, a greater willingness not only to criticise Ministers but to grant relief against them has become visible. Not merely have many of the remaining immunities of the Crown been stripped away by statute and case law, but an increasing number of High Court judges have followed Lord Denning's lead in taking a decidedly broad view of their powers. Accordingly, aggrieved parties have piled into the courts. Lord Chief Justice Lane reported last year that applications for judicial review had risen from 491 in 1980 to over 2,000 in 1990 - with the same percentage rise of applications granted. This extraordinary upsurge in judicial boldness came upon us without much forethought or warning, and I can assure you that it has left government departments in a state of shocked apprehension. Even ten years ago, it would have been unthinkable for the Court of Appeal to find the Home Secretary guilty of contempt, as Mr. Kenneth Baker was last year in a deportation case (although the judgement was later overruled).

I have called this talk the Recovery of the Constitution. I intended a hint of double-entendre. On the one hand, I wanted to urge us to think about the sort of actions we might need to consider in order to "get our Constitution back"; but I also wanted to invoke the other sense of recovery - the sense of a patient recovering from an illness. And I do believe that in several respects we are recovering our constitutional spirits.

A majority in all parties do, I think, want to see local government recover its old vigour and independence. Equally, I think a majority in all parties are happy to see judges recover their voices and muster some of the stentorian criticism of the executive that we associate with Coke and Holt and more recently with Salmon and Radcliffe, and Denning and Scarman.

And in this renewed ability to challenge the executive, we should not undervalue the contribution made by the European connection. I do not speak merely of the pressure applied in the Community to clean up our rivers and our beaches, but of the reinforcement offered by the European Convention on Human Rights. As you know, we are signatories to that Convention, but it is not part of English or Scottish law. Yet even in this undignified position, half in, half out, it provides valuable ammunition for judges who wish to press home a point which is not sufficiently supported by English common statute law. There was a beautiful example recently in the High Court's use of Article Ten of the Convention to defend the principle of freedom of expression in the case of Derbyshire County Council versus Times Newspapers. I believe that, sooner or later, we might as well formally incorporate the European Convention in our law; but even if we don't bestir ourselves to take that step, it is in practice already a part of our legal inheritance and will come to seem as immovable as the Act of Settlement or the Bill of Rights.

It is not surprising perhaps that the House of Commons, jealous of its ancient pre-eminence, should seem on occasion the stiffest limb of government and the slowest to wake up, as though determined to reverse Bagehot's distinction and show itself the dignified rather than the efficient branch of government. Yet here too the pressure of European institutions is making itself inexorably felt. The timetable of the Community is slowly but surely affecting the timetable of the House; that old prickliness which refused to recognise the existence of MEPs is beginning to yield - they are already allowed in the canteen, soon no doubt they will be using the lavatories.

But there is a long way to go before the House of Commons has learnt the art of shaping British policy in Europe rather than reacting in peevish and baffled fashion to unwelcome faits accompli. But then we are still a long way from reconciling the government's need to get its business through with the careful and informed scrutiny of legislation. The use of the guillotine continues to increase rather than diminish, reaching an acme of absurdity as recently as June 10th last year, when it was applied to the Dangerous Dogs Bill.

I have further gleams in my eye: I'd like to reinforce the independence of standing committees by appointing them for the duration of a parliament and on a free vote; I'd like to minimise the debilitating pre-election manoeuvrering by instituting four-year fixed parliaments - with provision for early dissolution in cases where a government has genuinely lost its majority, and ultimately I'd like to entrench certain constitutional fundamentals by having a special procedure for altering them: two-thirds majorities in both Houses of Parliament or a majority in a referendum. Call that a written constitution if you like, I call it a collected and protected constitution.

But these are distant gleams. Unlike many of you here tonight, I do not believe that an effective campaign demands a once-and-for-all New Constitutional Settlement. I fancy that if we attempted such a thing, we would be unlikely to achieve it; and if we did get it, I suspect we should find that we were unhappy with a good deal of what we landed up with.

What I think we need is a sustained dedication to the subject: a dedication assisted perhaps by a standing Constitutional Commission as they have in Australia - or on the lines of our own Law Commission. That, I think, would induce all political parties to keep their own eyes focussed more steadily on the subject, instead of those jerky and intermittent glances which betray allegiance to the main chance; I want British politicians to look at constitutional matters more like enquiriers after truth and less like cocktail-partygoers gazing over one another's shoulders. In other words, I say to politicians: ask not what your Constitution can do for you, but what you can do for your Constitution.

You may think that is a lot to ask, but I can only say that if we don't knock and knock hard, the door will not be opened.

As Tim Montgomerie points out, David Cameron has avoided antagonising the Scots (personally I would have inserted the word 'unnecessarily' before antagonising):

If Cameron enjoyed Miliband's discomfort at the collapse of Scottish Labour, he won't relish the prospect of going down in history as the prime minister who presided over the end of the Union. Despite pressure from some quarters in the Conservative camp, the Tory leader has carefully avoided antagonising the Scots. He has opposed the idea of an English parliament and any review of the Barnett formula, which determines the funding allocated to the devolved administrations.

But in doing so Cameron has antagonised the English, as the Sun's YouGov poll on Scottish independence illustrates (see attached). More people in England and Wales (41%) support Scottish independence than oppose it (40%), and 54% think Scotland benefits more than England and Wales from the Union (£4.5billion is a lot of money).

My earlier suggestion that the referendum on Scottish independence would in itself be the transformational event (rather than the result) looks like it needs revising. The mere prospect of a referendum in 2014 (on the anniversary of Bannockburn and timed to coincide with Glasgow's Commonwealth Games) appears to have focussed minds on the left and the right. About time too.

We can only hope that the cross-party "Stronger United" group, trailed by Marcus Booth, takes on board these views, and isn't just a Gordon Brown-esque "Britishness" campaign that extols the tired old trope of Westminster sovereignty - power devolved is power retained - in an era 'whose leitmotif is the sovereignty of the people' [Bogdanor].

Deputy Prime Minister, Nick Clegg, defended the principle of Scottish popular sovereignty in Parliament yesterday, when he rejected demands that the English should have a referendum on the future of the Union:

"I think it is right to say that any nation within the UK, in a sense, if it seeks to express a view about its own future, that that is primarily their prerogative to do so.

"It's equally right to say that that debate and the outcome of that debate has a knock-on effect on the rest of the UK. But do I think that, therefore, this parliament should somehow try to pre-empt that debate in Scotland? That's a separate debate.

Clegg also informed the constitutional reform select committee that he had delayed plans for a commission into the West Lothian question.

The indispensable Malvern Gazette informs me that Harriett Baldwin has dubbed her Legislation (Territorial Extent) Bill "The English Question".

Regular readers of Toque, or indeed anyone who takes more than a passing interest in the identity politics of the United Kingdom, will know that the phrase 'The English Question' tends to encompass a broad sweep of constitutional, political and cultural questions. However, it would appear that the Conservatives have been trying to make The English Question as narrow as possible.:

Of course, calling the problem the West Lothian question makes it sound somewhat obscure to most voters. We had a go at rechristening it the English question, but that never seemed to work, so I shall use the old nomenclature. - Mark Harper

I acknowledge that the issue that my hon. Friend the Member for West Worcestershire has highlighted through her Bill is important and that the Government want to tackle the West Lothian question or, as she rechristened it on the ConservativeHome website, “the English question”—we have been trying to do that for some time, but we have never quite managed to make that name stick. - Mark Harper

This rechristening could lead, no doubt, to the eventual claim that Conservative MPs have answered The English Question. Such a claim would be poppycock. British parliamentarians can find a parliamentary solution to the West Lothian Question but they cannot answer the English Question because they have no mandate to do so. Only the people of England can decide how England should be and how it should be governed, and we have not been asked.

But good luck to Baldwin in her attempt to mitigate the asymmetry and unfairness of the multinational UK constitution from within Parliament, because if she is successful it will undoubtedly lead more urgent attempts to answer The England Question outwith Parliament.

My advice to Baldwin and Harper is to try rechristening the West Lothian Question as The British Question. Because on this I am for once entirely in agreement with Jack Straw.

The West Lothian question is not an "English question," a "Welsh question," a "Scottish question" or a "Northern Ireland question"--it is a union question.

Jack Straw (2007), Prospect Magazine

Iain Stewart MP (Milton Keynes South, Conservative):

Potentially we face a situation in which the Conservatives could command a majority in England but would not form the Government, and the will of Scotland could effectively override the will of England. I am not saying that that issue is topmost in people’s minds at the moment, but it does raise its head. People do write and say, “Why is this happening?” It will gradually gnaw away at the bonds that hold the Union together if we do not address the issue.

Potentially? The Conservatives have a majority in England now but could not form a government. They won 56% of the seats in England but need the hired muscle of the Liberal Democrats in order to govern England on issues such as Health and Education.

Chris Bryant MP has proposed some amendments to Harriett Baldwin's Legislation (Territorial Extent) Bill.

The bill as originally published is here and Bryant's amendments are here.

Clause 1 original

The Secretary of State must, when publishing draft legislation, ensure that the legal and financial effect of that legislation on each part of the United Kingdom is separately and clearly identified.

Clause 1 as amended by Bryant

Any Member of either House of Parliament may, when presenting legislation, ensure that the legal, social and cultural and financial effect of that legislation on each region of England and on each part of the United Kingdom is separately and clearly identified

Chris Bryant is the Labour MP for Rhondda, born in Cardiff to a Scottish mother and a Welsh father, he was a cheerleader for regional assemblies in England, and, when they were rejected, he helped force through Labour's undemocratic and unrepresentative English regional committees with the help of Scottish and Welsh MPs.

Lord Forsyth and the Daily Mail suggest that Scottish voters could force AV on the English. The New Statesman disagrees. And David Cameron tells us that the AV referendum won't end the coalition, which suggests that it could.

Andrew Rawnsley, The Observer, 17th April 2011:

The double nightmare scenario for David Cameron is that the result is swung in Scotland and Wales where there is a higher turn-out because the referendum coincides with the elections to the Edinburgh Parliament and Cardiff Assembly. Elements of the Conservative party will go demented with fury if England says no but a Celtic yes vote wins it for AV. The Thatcherite former Scottish secretary, Michael Forsyth, has already described such a outcome as "rigged", which implies he and other Tories might try to resist the introduction of AV on the grounds that the result was not legitimate. One senior Conservative MP on the right predicts that Tories will go "completely mad" if they lose the referendum – to the extent that they might even jeopardise the coalition.

I have sympathy with Forsyth's argument. When it was announced that AV referendum would be held on the same day as Scottish and Welsh national elections, I voiced my protest. But I'm afraid that Forsyth, who opposes any English dimension to politics at Westminster, will be hoist by his own petard if Scottish votes decide the outcome.

Martin Ivens, Sunday Times, 17th April 2011:

On past experience turnout will be dismal, except in Scotland where the vote coincides with a national election. A narrow no vote in England on a low turnout could therefore be overturned north of the border. "That would be a disaster for the Union," warns Forsyth gloomily, adding: "People in England will say their voting system has been changed by votes north of the border, and that the entire referendum has been rigged so that it is held on a date when turnout would be higher in Scotland." But will the English really care milord? We Sassenachs barely squeaked when our wholly separate health and education systems were changed by Scottish MPs' deciding votes.

Martin Ivens is wrong, the English were outraged when Scottish MPs overturned English democracy to change our health and education systems. Outwardly many Tory MPs shared that public outrage but inwardly they were less concerned about democracy, more concerned about the fact that with devolution to Scotland and Wales Labour had managed to retain a disproportionately large numerical Westminster advantage when it came to legislating on English domestic matters. For the general public it was about democracy and fairness, for the Tories it was about partisanship and power.

When the immediate public anger subsided Tory MPs fell silent on the West Lothian Question, it wasn't worth upsetting the Union applecart for a point of democratic principal. Instead - told that they shouldn't 'fan the flames of English nationalism' in the name of democracy and fair funding - they bided their time, and continue to do so to this day. Their timidity was rewarded when the Tories were prevented from exercising power in England, despite a plurailty of votes in England at the 2005 general election. And rewarded again in 2010 when, despite winning a majority of votes in England in the general election, the Tories were prevented from forming a government due to their lack of Scottish and Welsh MPs.

If the Tories now lose the AV referendum because of a West Lothian Question effect, it will be no less than they deserve for failing to represent England. For once I hope that Scottish votes do overturn the result in England, and I hope that the Tory backbench rebellion will fan the flames of English nationalism in spite of their feckless government - it's time that English Tories grew a collective backbone.

The following is a partial transcript of Radio Four's Beyond Westminster programme, broadcast 16th Apr 2011.

Richard Wyn Jones: The elephant on the doorstep is the fact that the UK Government for many areas of domestic policy is now the English government and the Westminster parliament - especially after the referendum vote in Wales a few weeks ago that has led to the emergence of a legislative parliament in Wales - is also an English parliament to all intents and purposes, in many policy fields. And if and when we get a repeat of the election results in 1964 and 1974, which is Labour forming a government overall but without a majority of seats in England, there's going to be a huge problem here.

Sheena McDonald: Are you still sanguine about the Union, Robert?

Robert Hazell: We're talking now about the English Question, and that's a heading for English reactions to devolution. Broadly speaking there are two possible solutions. One is the one propounded by the last Labour government, to divide England 8 or 9 regions and give them all regional assemblies, and I think that policy is dead following the defeat of the North East referendum, but not necessarily forever. Remember, the vote in the north east was four to one against, Richard will remind us that the vote in Wales in 1979 was four to one against devolution for Wales, and within eighteen years that policy was reversed. So I don't think it's inconceivable that in 10-20 years time people might revive talk of regional government in England. But for now the policy solution that might be propounded by the Coalition Government is to set up a commission on the West Lothian Question, which was in the coalition agreement - that's something they haven't yet done but they are discussing how to do that. My guess is it might be quite limited in its terms of reference. I think if I were asked to advise them, I would say: set it up as a parliamentary commission and keep its terms of reference quite narrow; this is essentially a Conservative policy that you're trying to resolve, so have it chaired by a senior backbench Tory, and; get them to advise on the feasibility of testing the EVoEL on just a few bills at Westminster, do some experiments, see how it goes.

Sheena McDonald: The hoary old West Lothian Question...it hasn't ever been answered, is a commission the best idea, Alan?

Alan Trench: A Commission is the least bad approach, it is inherently an unanswerable question...

So Robert Hazell's 'two possible solutions' to the West Lothian Question are regional assemblies and a commission on the West Lothian Question, which he suggests should have 'limited terms of reference' [should not discuss an English parliament] and should be parliamentary commissions [should exclude the public]. My opinion of Robert Hazell is unchanged, he is a prize twat, and a pompuous condescending one at that.

Alan Trench - the expert who 'dissuaded' the Power2010 deliberative panel from adopting the proposal for an English parliament - seriously expects us to believe that he thinks the WLQ is unanswerable? Well, if you dissuade people from the obvious and natural answer then I suppose that it is unanswerable.

Trench went on to say that the Barnett Formula was "overgenerous to Scotland" and "undergenerous to Wales". The problem with reforming the Barnett Formula on a UK-wide basis, said Trench, was that "it would mean a very substantial cut in public spending in Scotland...something in the order of £4.5bn a year or possibly more". An alternative solution, mused Trench, was to reform the Barnett Formula not on a UK-wide basis but to reform it for just the "main loser, which is Wales". In other words, continue to overfund Scotland but overfund Wales too.

Six years ago today, I covered the following stories on the CEP Blog.

From the Daily Star, 11th April 2005:

Patriotic Englishman and women will march on Downing Street to demand an annual public holiday to celebrate St George's Day. More than 600,000 people have already swamped a Daily Star backed website calling for a special hol to honour the patron saint. Now the delighted chief of www.stgeorgesday.com will deliver a petition to Tony Blair to make the Government sit up and take notice.

From the Conservative Party manifesto:

"Conservatives believe that the Union of England, Scotland, Wales and Northern Ireland brings benefits to all parts of our United Kingdom. We remain strongly committed to making a success of devolution in Scotland, so that it delivers for the Scottish people. In Wales we will work with the Assembly and give the Welsh people a referendum on whether to keep the Assembly in its current form, increase its powers or abolish it. But devolution has brought problems of accountability at Westminster. Now that exclusively Scottish matters are decided by the Scottish Parliament in Edinburgh, exclusively English matters should be decided in Westminster without the votes of MPs sitting for Scottish constituencies who are not accountable to English voters. We will act to ensure that English laws are decided by English votes."

From the Conservatives 2005 Election Manifesto (pdf file). Hat tip to Englishman's Castle.

And Andrew Neil's Banana Republic article on Business Online:

Strike three against British democracy has been the governmen'ts refusal to deal with the so-called West Lothian question, whereby Scottish MPs (who are predominantly Labour) are allowed to vote on English domestic matters, even though, since a devolved Scottish parliament was created in Edinburgh in 1999, English MPs now have no say on purely Scottish domestic matter.s This anomaly has already led to several undemocratic absurdities, with Mr Blair using his Scottish legions in Westminster to force through unpopular reforms to English public services (such as university tuition fees and foundation hospitals) even though the reforms do not apply to Scotland, where such matters are the preserve of the Edinburgh parliament.

This insult to democracy will become all the more pronounced if on 5 May England votes Tory but Labour still forms the British government because its Scottish and Welsh lobby fodder give it an overall majority. In that case England would be ruled by a government which did not have the consent of the English people. None of this much mattered when Britain voted as a unitary United Kingdom: the constituent parts of the country had to accept the overall result. But devolution has changed that and England will rightly resent Scottish intrusion in its domestic matters when England does not intrude on Scottish domestic matters The simple and democratic answer to the West Lothian question - that Scottish MPs in Westminster do not vote on purely English domestic legislation - has been steadfastly resisted by the Blair government (again, for purely self-serving reasons).

As far as England is concerned, nothing has changed in the intervening six years. But Wales now has more devolved powers, while Scotland is set to vote for more devolved powers and has St Andrew's Day as a designated public holiday.