Devolution: Scotland

The Scottish Labour Party and Scottish Liberal Democrats participated in the Scottish Constitution Convention which produced its final report in November 1995. The Convention's proposals for a devolved Scottish Parliament form the basis of both parties' policies.

The Parliament would have powers to vary the level of income tax (3p more or less than the standard national rate) and authority to legislate in a number of policy areas including education, criminal justice and health. The primary matters to be retained by the UK Parliament would be defence, foreign affairs, immigration, social security policy and central economic and fiscal responsibilities.

Two Questions

In the Joint Labour-LibDem Statement of March 1997, the Liberal Democrats indicated that despite their disagreement with Labour's intention to hold a pre-legislative referendum, they "would not seek to frustrate or delay the referendum legislation." Both parties would campaign for a double "yes" vote in the referendum. However, Tony Blair later said that the Labour Party's promise not to raise income tax over the course of this Parliament would also apply to the Scottish Parliament.

The Conservative Party is opposed to devolution on the grounds that "the development of new assemblies in Scotland and Wales would create strains which could well pull apart the Union" and could create rivalry and conflict between these parliaments or assemblies and the parliament at Westminster. It also points to "serious questions" about the level of representation of Scottish and Welsh MPs at Westminster following devolution (the 'West Lothian Question').

However, the Tories' electoral rout north of the border is forcing them to think again about the issue.

The SNP's central policy platform is the creation of an independent Scotland. It did not take part in the Scottish Constitutional Convention. It has argued that any referendum should include a third question offering the option of independence, but Labour has steadfastly resisted this. Recently, the SNP has implied that if no third question was included, it might nevertheless be prepared to campaign for a double yes.

Timing

The major obstacle to an early poll is that referendums need authorising legislation. It seems fairly certain that for the devolution referendums, the legislation will be concerned solely with the referendum. The option of 'generic' legislation authorising a number of referendums has been discussed by Labour frontbenchers, but given the timing constraints is unlikely to gain support from business managers.

The other option would be to authorise the referendum in substantive legislation, with its implementation dependent on the outcome of the referendum. But Tony Blair has made clear that he intends the referendum to be pre-legislative.

Because of the time needed to draft legislation, the rules governing intervals between different stages in parliamentary procedure (both in the Commons and the Lords), and the likely opposition to the bill, it seems unlikely that referendum legislation will reach the statute book before August. Even then, it would mean the House of Lords sitting into August, an unprecedented move.

The only alternative is to negotiate a 'fast-track' timetable on the back of the manifesto commitment. Either way, the Government will be using up stocks of parliamentary goodwill early on. The Conservatives have indicated that they would resist attempts to take the bill in a standing committee, rather than on the floor of the House; but Labour has not said that it intends to do so - indeed, it is unlikely to do so, as any new procedures will arise from the recommendations of a new select committee, which are unlikely to be in place before the referendum bill is introduced.

It might be up to nine months after Royal Assent before elections could take place. The first meeting of the Parliament could be held shortly thereafter, with a further three months of running-in operations - settling standing orders, committee structure, dry-running operations with the Scottish Office - before full powers are transferred.

Referendum Rules

Moreover, the outcome of the 1979 vote was controversial because of another rule, adopted against the wish of the then government. There was a majority for devolution: 51.6% for, and 48.4% against. However, during the Parliamentary proceedings on the Scotland Act, a clause had been inserted on the initiative of a Labour backbencher, George Cunningham MP. This provided that, unless 40% of all those entitled to vote voted in favour, the Government had to lay an Order before Parliament which, if passed, would repeal the Act.

With a turnout of only 62.9%, the 'Yes' vote was only 32.9% of the total electorate. The Labour Government accordingly tabled an Order repealing the Scotland and Wales Acts (Parliament did not vote on an Order repealing the Act until after the change of Government in May 1979). The outcome of the referendum produced lasting resentment; it was felt that the rules had been biased against advocates of a Scottish Assembly.

However, the Labour manifesto says that a simple majority of those voting in Scotland will be the requirement, and this is intended to ensure that at least in the House of Lords (whose members by convention do not seek to amend legislative provisions foreshadowed in a party manifesto) no attempt is made to reproduce the threshold clause.

More Complications

The independent Commission on the Conduct of Referendums, which reported in November 1996, recommended that for future referendums there would be advantage in establishing a clear framework of rules in advance. The most effective way of achieving his would be to give responsibility for the conduct of referendums to an independent body.

Its functions might include: advising on the wording of the question(s); ensuring adequate provision of public information; liaising with and acting as moderator between any campaign groups; allocating their funds; acting as an ombudsman to deal with any complaints; monitoring fair access to the media; and giving guidance on the organisation at each polling station.

Substantive Legislation

The 1978 Act sought to define with great precision the legislative competences of the devolved Assembly by reference to statutes then in force in Scotland. Many commentators believe that this was a mistake. No allocation of powers is without its grey areas - but the Act failed adequately to acknowledge this. As a result it was impossible to understand without reference to other legislation, would have been difficult to use in practice, and would have required frequent amendment.

The Constitution Unit and others have argued that the Act should instead list only the powers retained at Westminster rather than those devolved. Express provision should be made for Westminster to legislate outside its areas of retained competence in certain circumstances eg to comply with international obligations, or when the Scottish Parliament requests Westminster legislation; and for the Scottish Parliament likewise to be able to encroach on Westminster's retained powers when necessary - with their consent.

However tightly the legislation is drawn, disputes about the precise scope of the Scottish Parliament's competence would arise. They might be resolved, or avoided, by a number of means:

• Scrutiny of bills in advance of introduction by the Scottish Law Officers and the Speaker of the Parliament.

• Provision for a direct challenge to Scottish Acts on the grounds that they go beyond the scope of the devolution laws, following Royal Assent but before entry into force.

• Provision for indirect challenges - where devolution points occur in the course of other cases - to be referred to the final court of appeal for an opinion.

• Provision for the direct challenge of executive acts of the Scottish Executive at any time.

Taxation powers

The financial arrangements proposed by the SCC are a sensible basis on which to establish the Parliament, but do not promise stability in the longer term. The Barnett formula, which determines changes in the Scottish Office budget each year by reference to changes in equivalent English spending plans, is under pressure in any event and could not provide a basis for financing eventual English regional government. The bill could aim to promote greater stability (and longer term applicability throughout the UK) by specifying mechanisms for keeping the funding formula under review and making adjustments when necessary.

West Lothian Question

The question might be remitted to a Speaker's Conference, perhaps to set political guidelines for subsequent review by a UK Electoral Commission. It might prove impracticable to reach a conclusion with a referendum on change in the Westminster electoral system in prospect. It is clear that the Electoral Commission asked to produce a PR system to put to a referendum will have to consider the implications of devolution. [ Back to party policies. Back to Wales. ]

Public Support for Devolution

"Over twice as many still say they would vote for a devolved Scottish parliament as say they would vote against. But at 63%, the proportion saying they will vote yes is six points lower than in January. Support for the tax varying power is down by the same amount, and now receives the positive endorsement of only just over a half of Scots."

He also points out that devolution is still not an important issue for many voters. Just one in ten says it is one of the two or three most important issues.

The following week, ICM's poll for the Scotsman suggested that the number of Scottish voters backing the status quo had risen to 31%. This contrasted with 20% support in May 1996. By comparison support for devolution within the United Kingdom was 44% a year ago, rising to a peak of 48% in the middle of March 1997 and in the April 29th poll was down to 39%. Support for independence within the European Union has gone from a high of 33% in May 1996 but has been steady for most of this year, finishing on 27% in the 29 April poll. The forces for change are split between those who support devolution and those who want independence.

Most important of all, however, support for the status quo continues to grow while support for "change" diminishes steadily. Thus, a year ago, only 20% of those asked resisted reform; the figure at the end of April was 31%. In parallel, 77% wanted change in May of last year; at the end of April this year the figure was down to 66%.

Devolution: Wales

The question of Welsh representation at Westminster cannot be ignored, even if the Parliament has no law-making powers, particularly since Wales is already theoretically over-represented (40 seats, when its share proportionate to population would be 33). As in Scotland, the only two genuine answers - no representation at all, and 'in and out' (Welsh MPs taking no part in Commons business dealing only with the rest of the UK) - are considered unjust or unworkable.

One response may be to offer a review of Scottish and Welsh representation once the devolved Assemblies are established; another would be to consider the matter in the context of any change to the electoral system for the House of Commons.

Quangos and Finance

The creation of a Welsh Assembly would provide the opportunity to review the whole framework and accountability of quangos. They have caused public concern in Wales because of their inadequate accountability; the people appointed to their boards; and lapses in their internal management. But it is only a few high profile executive bodies which have given rise to that concern.

In many areas there may be sound reasons for retaining quangos with a degree of operational independence. The majority are specialist bodies operating in technical fields where the Assembly and its Executive would need independent expertise and advice.

In the long term, devolution may require a change to the whole system of determining public expenditure in Wales. The current system whereby the Treasury determines the Welsh block (the 'Barnett formula') might not survive the greater scrutiny involved in an external transfer mechanism between different administrations. If it does come under pressure, it might need to be replaced with a regular needs assessment exercise conducted by an independent Commission.