The 'West Lothian Question'.

Public Law 1

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The ‘West Lothian Question’

The infamous ‘West Lothian question’ was raised by Tam Dalyell, M.P. for the former constituency of West Lothian in contemplation of the Scotland Bill 1978. Mr. Dalyell asked how it was, following devolution, that a Scottish M.P. at Westminster could vote on, say, health or education affecting English constituencies while he could not vote on health or education affecting his own constituency, because these are matters among those devolved to the Scottish Parliament. It is the flip side of this contentious issue that has caused the most controversy: it has been criticised in the context of the unfairness of the ability of Scottish M.P.s at Westminster to continue to vote on English issues, while English M.P.s are no longer able to vote on devolved Scottish matters. It is said that “[i]t has become a political cliché to say that there is no answer to the ‘West Lothian question’”.

The Scotland Act 1978, which was repealed following an unsuccessful Referendum, attempted to address the conundrum. Section 66 of the Act provided, subject to approval by a resolution of the House of Commons, that where a Bill concerning a non-devolved matter obtained a majority vote on its Second Reading as a result of Scottish M.P.s’ votes, a second vote would be necessary no less than 14 days later. If a majority vote was again received the Bill would then be considered to have completed its Second Reading. Earl Ferrers stated the reason behind this provision was “to give time for people to think again”. In reality, however, it has been suggested that M.P.s are restricted by their parties and Whips as to how they vote, therefore it would have been quite probable that any second vote would have been a reflection of the original. This could have led cynics to remark that the provision was merely a token gesture and in practice would have resulted in needless delay in the law making process.

The Scotland Act 1998 also endeavours to lessen the effects of the ‘West Lothian question’, but neglects to focus on the essence of the problem because Scottish M.P.s continue to vote on English matters. Parliament addressed the problem as being a matter of Scottish over-representation at Westminster. At present the average Scottish Westminster constituency has an electorate of approximately 55,000 members, while the English counterpart has about 70,000 members. Section 86 of the Act provides for the reduction of Scottish seats in the U.K. Parliament, though this will not occur for some time. The requirement for Scotland to have at least 71 constituencies has been removed and the first report of the Boundary Commission for Scotland is to utilise the English electoral quota rather than the Scottish quota. This will result in a reduction of representation from 72 seats to around 57 seats. However, it has been argued that this solution is flawed. John Curtice envisages that by the middle of the next century, Scottish representation could have grown back to its present size. Himsworth and Munro suggest that “such an adjustment does not address the question in principle, but merely mitigates its effects.”

The following solutions to the ‘West Lothian question’ have been discussed:-

Federalism

The Liberal Democrats are partisans of this solution which would result in England and Scotland having distinct Parliaments legislating for themselves alone. The outcome could be an English Grand Committee, comprising the present Westminster M.P.s elected by English constituencies. This is not a likely solution as it would result in the breaking of the Acts of Union which have prevailed since 1707: the Government are adamant that the Union be strengthened rather than weakened.

Exclusion of Scotttish representation

In the absence of Federalism or Independence, this solution is arrogant and would not be tolerated. Although the Scottish Parliament is concerned with a significant number of devolved affairs, there are many important matters which are reserved to the U.K. Parliament. The Scottish nation would never sanction having no voice in reserved matters such as defence or foreign affairs or anything else for that matter.

The ‘in and out’ solution

This would be the most plausible solution to the ‘West Lothian question’. Its history goes back to the Irish Home Rule Bills of the nineteenth century when it was discussed in relation to Irish representation at Westminster. The solution would require legislation to be categorised into issues relating to (1) the whole of the U.K.; (2) Scotland (such matters being reserved to Westminster) or (3) England or England and Wales. Scottish M.P.s would find themselves barred from voting on matters classed as applying only to England or England and Wales. The reason for this being that there are M.S.P.s at Holyrood to deal with the equivalent Scottish matters which are now devolved to the Scottish Parliament. This principle could be realised either through legislation or the voluntary agreement of Scottish M.P.s. William Hague, former leader of the Conservatives was in favour of this solution and affirmed that his party’s manifesto for the next election would state that “English M.P.s should have exclusive say over English laws.”

The Government have argued that this solution would weaken the Union with Scotland. They intend that Scottish M.P.s retain their present roles in Westminster business. With regard to the Irish Home Rule Bills, Gladstone abandoned the ‘in and out’ remedy as impractical. The feeling is that if it was impractical in the nineteenth century, it would certainly not be practical in the twenty first century. A theoretical criticism of this solution has been discussed in relation to governments holding a small majority. It has been remarked that a government may be reliant on the votes of the Scottish representatives and that being the case, the government could be defeated in certain circumstances where legislation concerned an English or English and Welsh matter. Furthermore where that government did not enjoy the support of Scotland it “could be held to ransom by Scottish representatives who support alternative policies”. This would not be a topical problem today as the Labour Government currently have a strong majority on both sides of the border.

In conclusion, it is evident that there is no easy answer to the ‘West Lothian question’, aside from Federalism, which does not receive support outside the Liberal Democrat party. The present Government went some way towards alleviating its effects without weakening the Union by way of Section 86 of the Scotland Act 1998, however that provision has also received criticism from M.S.P.s (to whom the ‘West Lothian question’ is not a central issue) who feel that the Scottish Parliament may not be able to work efficiently with a reduced number of members. The devolved Parliament relies heavily on committees ...

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The Electoral System Used to Elect the Scottish Parliament

The Government stated in their White Paper, ‘Scotland’s Parliament’ that “[a] constituency link will be the essential foundation of the new Scottish Parliament. However it is also important to provide for greater proportionality to build stability into the overall settlement.” The provisions of the Scotland Act 1998 which deal with the electoral process attempt to satisfy these objectives. The Act provides that Members of the Scottish Parliament will be elected in accordance with the Additional Members System, which is a combination of the Simple Majority and List Proportional Representation systems. This will have the effect of Scotland gaining benefits from the advantages found in each system, but not suffering the disadvantages recognised in using either of the systems exclusively. The Scottish electorate therefore have the luxury of casting two votes each.

Section 1(2) of the Act determines that single members are to be elected from each constituency using the Simple Majority System, better known as ‘First Past the Post’. Section 1(5) refers to Schedule 1 which states that Orkney and Shetland are to become independent constituencies, the remainder of Scottish constituencies will remain in line with their Westminster counterparts: thus there are 73 constituencies in Scotland which will return 73 Members of Parliament. First Past the Post (FPTP) is a straightforward system which results in the constituency seat being won by the candidate with the most votes in the election. No account is taken of his or his opponents’ proportion of the votes registered. Candidates stand as individuals, however in the majority of cases they are members of a political party and the likelihood is that the electorate are voting for the party rather than the individual. Section 7(1) declares that the constituency members must be determined before the additional members are returned. One explanation for this is that individuals may stand both as constituency and regional candidates. If such a candidate is elected by his constituency he will be removed from his party’s regional list. This is a belt and braces method used by candidates to ensure a seat in the Scottish Parliament. In the 1999 election, the leaders of the Labour Party, Scottish Conservative Party, Scottish National Party and Scottish Socialist Party all adopted this approach. The principal reason for returning constituency candidates first is that additional seats are alloted to parties to correct imbalances resultant from the FPTP system in an attempt to overcome the ‘winner takes all’ situation.

Section 1(3) of the Act introduces the Proportional Representation element of the Additional Members System (AMS). These supplementary members are to be known as “regional members”. Schedule 1 establishes that there are eight regions which will each return seven members, thus the Scottish Parliament will be made up of 129 members: 73 constituency and 56 regional. These regional boundaries are at present identical to the European Parliamentary constituencies, however the Act makes allowance for these to be altered in accordance with recommendations by the Boundary Commission for Scotland. Sections 7 and 8 set out the formula for awarding these seats to the relevant parties. Individuals independent of a registered political party may stand as regional candidates, however in most cases candidates will be on a party’s regional list, which may not include more than 12 names. AMS should result in the allocation of constituency and regional seats overall in proportion to the number of votes cast for each party. Therefore if a party has won two constituency seats, but in proportion to its votes should have won five, the first three candidates on its list are returned as regional members.

The House of Commons are elected solely by the FPTP system. Wade stated that “[i]f it is accepted that a democratic Parliament ought to represent so far as possible the preferences of the voters, this system is probably the worst that could be devised.” The Labour Government have committed themselves to holding a referendum in relation to changes to this system. However they have stated that before they consider any modifications they wish to review the new systems that have been implemented in Britain. It could be inferred from this that the Scottish Parliament and the other devolved administrations are acting as Westminster’s guinea pigs.

The Westminster electoral system is praised for its simplicity, both for voters to understand and electoral officials to administer. Election results can be obtained much faster in comparison with AMS because regional seats do not have to be calculated. The principal advantage, however, has been stated to be the link retained between constituents and M.P.s: the “tendency to produce representatives beholden to defined geographical areas.” The people of Scotland benefit from a measure of geographical representation by way of their constituency M.P.s, however they may feel no connection to their regional M.P., whom they did not vote for by name, only by party. The Independent Commission on PR, set up by the Constitution Unit to research the new Proportional Representation voting systems, claim that regional members may invest less in constituency service because their “electoral fate depends more on securing a high position on the party list than on securing the vote of their constituents.” However, their research in Scotland has indicated that both constituency and regional M.S.P.s regard constituency service as more important than policy making, though it is noted that the latter hold fewer surgeries and spend less time on individual cases than constituency M.S.P.s.

The beauty of AMS is that proportionality is gained, while geographical representation is not completely lost. Proportional Representation is important in a democracy. It allows access to representation by minority parties, which would not exist under FPTP. Statistics show that the Liberal Democrats have suffered considerably at Westminster. In the 2001 general election they received 18.3% of the vote, but only won 7.9% of the seats, while the Labour Party received 40.7% of the vote, but won 62.5% of the seats. In comparison the Liberal Democrats’ Scottish counterparts received 14.2% of the constituency vote and 12.6% of the regional vote, and won 13.2% of the total number of seats (see Annexation 1). This may be a reason why the Labour Party appear to be stalling with proposals for electoral reform. It has been forecasted that had a system of Proportional Representation been implemented in the U.K. Parliament for the 2001 general election, the results would have been very different: Labour would have won 286 seats compared to the 412 seats they actually won (see Annexation 2).

In conclusion, the system employed by the Scottish Parliament has a definite advantage over the U.K. Parliament’s present system: it gains the proportionality benefits of Proportional Representation while retaining voters’ geographical representation and associated links, which are one of the principal advantages of FPTP. Furthermore, far less votes are wasted which may encourage voters to attend polling stations during elections in the knowledge that their vote does count. The Scottish Parliament’s electoral system is superior to Westminster’s and the Government should collate the facts and figures and allow England to decide for themselves which is the better system as they promised to do in their 1997 manifesto.

The Sewell Convention

Section 28(7) of the Scotland Act 1998 makes it clear that the U.K. Parliament will remain sovereign and can continue to make laws for Scotland following the creation of the Scottish Parliament. This subsection was superfluous as the sovereignty of Parliament cannot be extinguished. The subsection was thought to have been added not only for the “avoidance of doubt”, but also “for its symbolic and defining characteristics” ensuring that the purpose of the Act was understood to be the creation of a subordinate body to the U.K. Parliament. In effect the provision has led to much more than was anticipated by the drafters of the Bill. In the White Paper, ‘Scotland’s Parliament’ the Government envisaged that there could be cases where, for the sake of convenience, it would be best for Westminster to legislate in devolved matters. The late Donald Dewar observed “a possibility, in theory, of the U.K. Parliament legislating across those [devolved] areas, but it is not one which [the Government] anticipate or expect”.

A mechanism named the Sewel convention, after Lord Sewel who contrived the system, provides a means for the Scottish Parliament to permit Westminster to legislate in devolved matters. So long as the Scottish Parliament consents, Westminister may institute legislation in affairs devolved to Holyrood and has done so on many occasions. It can only be imagined that Mr. Dewar would have been surprised at the extent to which this convention has been employed. As at 4th September, 2002, 38 Sewel motions had been exercised, while 45 Bills had been enacted by the Scottish Parliament.

The crux behind a Sewel motion is in concluding whether matters are devolved to the Scottish Parliament or reserved to the U.K. Parliament. This will inevitably lead to differences of opinion. The Government anticipated this possible conflict and stated in their White Paper that procedures would be adopted to resolve any disagreement “quickly and amicably”. They have taken the view that, in order to settle any potential dispute, their approach will be that the Scottish Parliament’s consent is required. Since the Labour Party are in power at Westminster and lead the Holyrood coalition it has been predicted that clashes should be rare, however it has been remarked that in the event of different political parties being in power in the respective Parliaments they may be more frequent.

The media have often criticised the Sewel convention. They have accused the Scottish Parliament of being too reliant on Westminster and effectively using them as a “good ideas catalogue”. There are, however, often instances where there is a requirement for uniformity between the two Parliaments. Page and Batey discuss the need to avert the exploitation of legal distinctions between England and Scotland. They use the example of fur-farming to make this point: if England and Wales prohibited fur-farming and Scotland did not, because there are no farms, fur farmers would simply move to Scotland. Westminster has on many occasions legislated in devolved matters in order to avoid such loopholes, stating that comprehensive U.K. legislation is more effective. Critics of the Sewel convention, however, are not persuaded by this argument and regard it as no excuse for the Scottish Parliament not enacting the legislation itself in these areas when it has the ability to do so. A response to this feeling is that the Scottish Parliament simply does not have the time to draft and enact the equivalent legislation, especially when it is urgent. In defending the Sewel motion on the Anti-terrorism, Crime and Security Bill, Iain Gray, Deputy Justice Minister stated that “[t]he people of Scotland … would not appreciate the constitutional niceties of an approach that could leave Scotland behind in time or in the rigour of the measures. [They] would prefer us to compromise on our powers of legislation rather than risk compromise on their security.” Furthermore, Holyrood’s own legislative agenda would suffer as a result of time spent dealing with legislation bringing Scotland into line with England. Thus the Scottish Parliament would not be able to concentrate on purely Scottish matters, which was the principal reason for its creation.

A major criticism of the Sewel convention relates to the lack of scrutiny by the Scottish Parliament of amendments to Bills as they pass through the law making stages at Westminster. The S.N.P. state that the system is “unacceptable as it does not allow the Scottish Parliament any effective means of commenting upon, amending or opposing any change made to a Bill in Westminster that may fundamentally affect Scots Law.” Legislation can be modified several times before it reaches the final draft and therefore the consequent statute may not be what Holyrood consented to. The S.N.P. would like to see changes made to the current system whereby Bills are submitted to the Scottish Parliament before being presented at Westminster and if any subsequent changes are made to a Bill it should be recalled to Holyrood for the revision to be debated. However, in light of the great likelihood that Bills will be regularly amended, this suggestion harks back to the debate on the expenditure of the Scottish Parliament’s time.

In conclusion, some may say that the Scottish Parliament is not what the people of Scotland envisaged when they voted “Yes”, however if the people looked beyond the media’s unfavourable coverage of Sewel motions they would note that in the majority of cases the U.K. Parliament has had good reason for legislating in devolved areas. Good reasons include the necessity for the U.K. to meet the terms of international obligations and also the benefits gained by implementing legislation on a U.K. wide basis. The Food Standards Act 1999 which established a U.K. Food Standards Agency means greater access to scientific resources among other advantages.

Bibliography

Barnett, Hilaire, Constitutional & Administrative Law, (4th ed, London: Cavendish Publishing Limited, 2002), Ch 12,13

Bradley, A.W. & Ewing, K.D., Constitutional and Administrative Law, (13th ed, 2003), pp. 34-48

Current Law Statutes Annotated 1978, ‘Scotland Act 1978’, c.51, (Edinburgh: W. Green & Son, 1978)

Himsworth, C.M.G. & Munro, C.R, The Scotland Act 1998, (2nd ed, Edinburgh: W. GREEN/Sweet & Maxwell, 2000)

McFadden, Jean, ‘The Scottish Constitutional Convention’, [1995] PL 215

McFadden, Jean & Lazarowicz, Mark, The Scottish Parliament - An Introduction, (2nd ed, Butterworths, 2000) Ch. 1 – 7

Page, Alan & Batey, Andrea, ‘Scotland’s Other Parliament: Westminster Legislation about Devolved Matters in Scotland since Devolution’ [2002] PL 501

Winetrobe, Barry K., ‘Counter-Devolution? The Sewel Convention on Devolved Legislation at Westminster’

Internet Sources

Administration and Cost of Elections Project (Ace Project), ‘Electoral Systems’

http://www.aceproject.org/main/english/es.htm

BBC Online Network, BBC News, ‘UK Politics: Talking Politics, The West Lothian Question’, June 1, 1998

BBC Online Network, BBC News, ‘UK Politics “English votes on English laws”’, July 15, 1999

Electoral Reform Society, ‘Voting Systems’

http://www.electoral-reform.org.uk/votingsystems.htm

Edinburgh Evening News, ‘Scots set to keep 129 MSPs’ March 8 2002

http://news.scotsman.com/archive.cfm?id=261192002

Independent Commission on PR, ‘Issues and Questions Consultation Paper’

http://www.prcommission.org/files/publications/iq.pdf

Scotland Office, Consultations, ‘The size of the Scottish Parliament – a consultation’

Scottish Office, ‘Scotland’s Parliament’ (July 1997)

http://www.scotland.gov.uk/government/devolution/scpa-00.asp

Scottish Constitutional Convention, ‘Scotland’s Parliament. Scotland’s Right’ (1995)

http://www.almac.co.uk/business_park/scc/scc-rep.htm

Select Committee on Modernisation of the House of Commons, Appendix 22 ‘The SNP Position’

http://www.parliament.the-stationery-office.co.uk/pa/cm200102/cmselect/cmmodern/1168/1168ap25.htm

Vacher Dod Publishing, Parliamentary Summary, ‘Dod’s Notes on the Review of the Boundary Commission for Scotland 2002’

Mr. Dalyell claims that Enoch Powell first raised the question.

BBC Online Network, BBC News, ‘UK Politics: Talking Politics, The West Lothian Question’, June 1, 1998

ibid.

s.66(2)

Current Law Statutes Annotated 1978 c.51 (Edinburgh: W. Green & Son 1978)

ibid.

Scotland Office, Consultations, ‘The size of the Scottish Parliament – a consultation’, 1.3

Expected to take effect after the 2007 election. ibid., 1.10

s.86(2)

s.86(4)

supra, note 7, 1.7

‘Reinventing the Yo-Yo? A Comment on the Electoral Provisions of the Scotland Bill’, Scottish Affairs, Issue No. 23, p.1

This would be the result of the Boundary Commission reverting back to the Scottish electoral quota in subsequent reviews.

C.M.G Himsworth & C.R. Munro, The Scotland Act 1998, (2nd ed, Edinburgh: W. GREEN/Sweet & Maxwell, 2000) p.xix

supra, note 2

Jean McFadden & Mark Lazarowicz, The Scottish Parliament - An Introduction, (2nd ed, Butterworths, 2000) p.21

The 2002 Queen’s Speech consisted of predominantly English Bills: of the 19 Bills announced, only four affect Scotland. It has been remarked that the UK Parliament is already starting to turn into an English Parliament.

Hilaire Barnett, Constitutional & Administrative Law, (4th ed, London: Cavendish Publishing Limited, 2002) p.383

Royal Commission on the Constitution, Cmnd. 5460-I (1973)

supra, note 18

BBC Online Network, BBC News, ‘UK Politics “English votes on English laws”’, July 15, 1999

“4.5 Scotland’s Members of Parliament will continue to play a full and constructive part in the proceedings of the House of Commons. This is right both for Scotland and the United Kingdom because devolution is about strengthening the United Kingdom.”

Scottish Office, ‘Scotland’s Parliament’ (July 1997)

http://www.scotland.gov.uk/government/devolution/scpa-00.asp

supra, note 18

supra, note 18, p.384

Vacher Dod Publishing, Parliamentary Summary, ‘Dod’s Notes on the Review of the Boundary Commission for Scotland 2002’

Scottish Office, ‘Scotland’s Parliament’ (July 1997) , 8.1

http://www.scotland.gov.uk/government/devolution/scpa-00.asp

Scotland Act 1998, ss. 1-10

Section 6(2) and (3)

Jean McFadden & Mark Lazarowicz, The Scottish Parliament - An Introduction, (2nd ed, Butterworths, 2000) p.21

C.M.G Himsworth & C.R. Munro, The Scotland Act 1998, (2nd ed, Edinburgh: W. GREEN/Sweet & Maxwell, 2000), p.14

supra, note 29, p.22

Schedule 1, 2(1)

Schedule 1, 2(3)

Schedule 1, 2(2)

Schedule 1, 3

The formula is too complex to describe concisely in this essay, however a succinct explanation is found in Jean McFadden & Mark Lazarowicz, The Scottish Parliament - An Introduction, (2nd ed, Butterworths, 2000) pp. 22-23

Section 5(3), (4) and (6)

Electoral Reform Society, ‘Voting Systems’ http://www.electoral-reform.org.uk/votingsystems.htm

Wade, 1989, p.9 quoted in Hilaire Barnett, Constitutional & Administrative Law, (4th ed, London: Cavendish Publishing Limited, 2002) p.445

Labour Party Manifesto 2001 “The government has introduced major innovations in the electoral systems used in the UK for the devolved administrations, the European Parliament and the London Assembly. The [Jenkins] Commission on the Voting System made proposals for electoral reform at Westminster. We will review the experience of the new systems and the Jenkins Report to assess whether changes might be made to the electoral system for the House of Commons. A referendum remains the right way to agree any change for Westminster.”

Independent Commission on PR, ‘Issues and Questions Consultation Paper’

http://www.prcommission.org/files/publications/iq.pdf

Administration and Cost of Elections Project (Ace Project), ‘Electoral Systems’

http://www.aceproject.org/main/english/es.htm

ibid.

Independent Commission on PR, ‘Issues and Questions Consultation Paper’

C.M.G Himsworth & C.R. Munro, The Scotland Act 1998, (2nd ed, Edinburgh: W. GREEN/Sweet & Maxwell, 2000), p.37

4.4 “There may be instances (e.g. international obligations which touch on devolved as well as reserved matters) where it will be more convenient for legislation to be passed by the UK Parliament.” Scottish Office, ‘Scotland’s Parliament’ (July 1997)

http://www.scotland.gov.uk/government/devolution/scpa-00.asp

“we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament” (Hansard, H.L. Vol. 592, col. 791)

supra, note 44, “when Bills are introduced at Westminster which touch upon matters within the legislative competence of the Scottish Parliament, that Parliament is invited to indicate its consent by approval of a “Sewel motion” to that effect.”

The Herald, September 4, 2002

Page and Batey note that “[t]he test has become: “[c]ould the Scottish Parliament enact this legislation?” If the answer is yes, its consent is sought.” Alan Page & Andrea Batey, ‘Scotland’s Other Parliament: Westminster Legislation about Devolved Matters in Scotland since Devolution’ [2002] PL 501, p.506

supra, note 45, “4.15 The Scottish Executive and the UK Government may from time to time take different views of the Scottish Parliament’s legislative powers. There will therefore be procedures for identifying and resolving any such difficulties. The Government believe that, given an open and constructive relationship between the UK Government and the Scottish Executive, problems will usually be resolved quickly and amicably.”

supra, note 49, p.507 “It should be noted that where the Scottish Executive takes the view that a provision in a Westminster Bill relates to a devolved matter but the Whitehall Department does not agree, then the requirement for a Sewel motion is triggered.”, ‘“The Sewel Convention”: Westminster Legislation in Devolved Areas’, para. 27

Jean McFadden & Mark Lazarowicz, The Scottish Parliament - An Introduction, (2nd ed, Butterworths, 2000), p.83

Scotsman, October 29, 2001

supra, note 49, p.514

supra, note 49, p.516

Select Committee on Modernisation of the House of Commons, Appendix 22 ‘The SNP Position’

http://www.parliament.the-stationery-office.co.uk/pa/cm200102/cmselect/cmmodern/1168/1168ap25.htm

ibid.

supra, note 45

supra, note 49, p.511