In what senses is devolution asymmetric? Is this sustainable and - if not - what should be done about it?

It seems fairly obvious that there are clearly differing reasons for which devolution has been brought about to each of the members of the United Kingdom ad this is reflected in the powers which are granted to the states under the devolution. Mccrudden views this ‘pragmatism’ as a traditional British approach in which disparate differences require disparate treatments. It would seem counter-productive and counter-intuitive to implement symmetric devolution to areas which are in fact completely asymmetric in aims and reasons for wanting devolution. It is clear that the measures taken in Northern Ireland to reconcile conflicting groups would have been wholly unnecessary in either Scotland or Wales where inter-conflict was not an issue.

It is now necessary, before assessing whether devolution is in fact asymmetric, to look generally at the powers which were given to each region in the individual acts which granted them devolved powers from UK Parliament. The main administrative feature of Scottish devolution was the implementation of a unicameral system of government which used the Additional Member System which is a proportional representation system. The new Scottish Parliament was also afforded broad powers of legislation, however, with certain limitations which only Westminster could legislate on such as defence of the realm, finance and the economy, trade, industry and employment. Another limitation upon the Scottish legislative body laid down in section 29(1) of the Scotland Act is that any Scottish legislation which goes beyond its competence and concerns ‘reserved matter’ should not be considered law. Financially too the Scottish Parliament was given benefits which applied solely to them such as the rules on taxation whereby the Scottish Parliament possess the power to raise or lower tax by three pence in each pound. Another financial feature which seems to concur with Winetrobe’s views that “the devolved institutions’ financial responsibilities are mainly restricted to expenditure issues, rather than income or revenue side of the public accounts” is that of the Barnett formula. This formula is the one which is used to calculate the grant which Westminster Parliament gives to the Scottish devolved Parliament who has discretion as to the spending of the money. It is for this reason that Scotland has the unusual power to offer social benefits such as free tuition fees for students or improved disability care.

Under the Wales Act 1998, similarly a national assembly was created, however this assembly lacked the legislative freedom which had been given to Scotland and indeed had no primary legislative powers and was only permitted secondary legislation under a framework enacted by Westminster Parliament – “the body was a single executive body, setting and implementing policies…within the frameworks created by…Westminster”. Whilst there are eighteen clear areas in which Wales holds responsibility such as agriculture, education and economic development, Hadfield still notes that the assembly is lacking a document listing the full range of the Assembly’s powers as well as clarity on what has been devolved and what will be.

Northern Ireland was similarly given its own Assembly however in this the proportional representation system of Single Transferable Vote was implemented. Similarly to the other regions there are exceptions to the devolution such as defence, immigration, elections and political parties; also, again similarly to Scotland, there is a clause which states that the assembly cannot legislate outside of its competence.  

It is not difficult to see that devolution is asymmetric in many respects; what is also clear is that the independence afforded to Wales is on a much lower scale than to Scotland or Northern Ireland. Sir Emyr Jones-Parry noted that “there was a general feeling that the differences in settlements of Scotland and Wales are unfair”. The powers allowed to Wales seem to reflect far more those given to local government than a separate Parliament. It is certain that Wales enjoys none of the features of the Scotland Act such as tax-variation powers, powers of primary legislation and in addition, executive powers in Wales cannot be exercised by ministers. Bradley and Ewing enhances this local government comparison in stating that the executive powers are afforded directly to the Assembly and are exercised by the committees. It could be viewed that this asymmetric nature is perfectly fair when one takes into account the “two countries’ very different constitutional and governmental history.” There is certainly, however, a justification for the imparity of powers between these regions. More powers in Scotland can be clearly traced back to the tide of nationalism which had to be stopped by affording greater powers. Similarly, the situation in Northern Ireland of civil politics and growing violence is incomparable with the pacifist situation in Wales where neither strong nationalism nor violence made extreme power devolution at all necessary.

It must be said, in contrast, that there are some similarities and symmetrical features which exist between the separate instances of devolution however they appear largely administrative in nature. One of these features is that Wales, much like Scotland, is funded by a grant from Westminster with a discretionary expenditure priority system. In addition the system of safeguards on legislation which exists for all of the regions shows a certain fairness whereby none of the regions is ultimately above or equal to the UK Parliament.

A further manner in which devolution of powers in the UK can be seen to be wholly asymmetrical is the failure to implement any plans for the devolution of powers to England when every other member state has, at least, some measures in place. Calls for a devolved English Parliament would certainly not lack justification when the 85% of the population of the UK who live in England are currently underrepresented with regard to a separate assembly. One definite explanation for this could be the lack of any strong English nationalism of the kind experienced throughout either Scotland or Northern Ireland; this, however, was the case in Wales yet devolution was still allowed to them perhaps for balance and so why not England? There are proposals as to ways which this imbalance could be reconciled yet these seem, on the whole, to be ineffective. The first of these is to form an English Parliament and whilst this would pacify the criticisms relating to the imbalance and establish England’s position in the UK, it would also create a UK which was “so unbalanced as to be unworkable. It would be dominated by the overwhelming political importance and wealth of England”. Another proposed solution is the splitting of England into separate regions with devolved bodies; whilst this would prevent the centralisation of power, it would still not be effective enough in repairing the asymmetry of devolution. England’s position seems to be a relatively stable one without the kind of need for any change which was presented by other regions and so perhaps it is satisfactory and sustainable to allow this position to continue. In any case, it is often considered by many British people that Westminster is the English Parliament and so this reinforces the lack of any real need for separatist aims with regard to powers.

It has now been established that the devolution of powers in the UK is clearly asymmetric as a result of both major differences and finer details which distinguish each region. However, asymmetry does not necessarily equate to ineffectiveness. It is necessary to assess whether there are defects which make this position unsatisfactory and so, by extension unsustainable, or whether these can be overlooked as minimal in the face of the overall benefits. It can be argued that the present position is unsustainable as it can be easily undermined on the grounds that it does not follow a principle of equal rights for all UK citizens. Devolved areas such as Scotland and Wales are clearly enjoying benefits of a grant from Westminster whereas England has no devolved Parliament whatsoever and so cannot benefit from these additional features. Again, this means that Scotland for example can afford to pay the fees for its University students whereas England cannot; based upon this, the UK is left in a position where people are treated differently or afforded different privileges based on their place of birth. Devolution does not account for the fact that, within one unitary state, there should be parity of opportunity or at least no deliberate disadvantages. The counter-argument to this, however, is that it is unreasonable to expect all of the regions to follow the same legislation to prevent this. If each region were forced to legislate in the same way this would completely undermine devolution and present it merely as an empty façade of self-governance.

The Barnett formula is also an issue which raises contest, again around the problem of equal rights in many cases. The formula aims to compensate devolved regions of the money which they spend in England. However, the method has often been seen to be quite flawed and disparate towards devolved regions with Scotland receiving 20% extra per-capita than England. Again this is an affront to equal rights because, if Scotland is being allowed this extra money, it can afford favourable policies which England, for no reason, cannot.

Another extremely contentious issue with regard to devolution’s sustainability is what has been termed the West Lothian Question. This issue relates to the feature of UK Parliament in which Scottish MPs have the right to vote on issues which concern only England however, on the contrary, English MPs are forbidden from voting on secondary legislation relating to Scotland, Northern Ireland or Wales as these are dealt with in the home territories of each of the regions. This is such a large issue as it raises serious doubts as to the legitimacy of several decisions of the UK Parliament. It is certainly possible, as was seen in the implementation of an Act creating Foundation Hospitals in England, that Acts may succeed solely through strong Scottish support on issues which do not regard their constituency, constituents or even country. Whilst there are several proposed measures to counteract this unfairness such as an English Parliament, ‘English Votes on English Laws’ and devolution to local regions, there is a consensus that all are ill-advised and would be ineffective.

On the other side of the coin to these finer criticisms, however, it must be remembered that England has always existed in an asymmetrical manner. Bogdanor writes that “there have, after all, always been asymmetrical elements in British government, even before devolution...” It seems unreasonable therefore to expect that devolution would present any kind of symmetry. McCrudden’s idea of a pragmatic approach to devolution certainly seems to be one which would be largely sustainable. If a fluid element to devolution could be maintained and so issues could be addressed and dealt with reasonably and without regard for any broader symmetrical pattern, the position of the UK at present could foreseeably continue successfully. There is little point in forcing a harmony without any real reason – to force Wales to conform to the same model as Northern Ireland would be futile; Wales simply is not the same. Individual solutions ought to continue to be found to individual problems and England’s traditional lack of symmetry ought to be maintained not out of principle but out of pragmatism.

In determining if the present situation is sustainable it seems reasonable to assess whether it is satisfactory. With regards to Scottish and Welsh devolution 35% of Scots and 18% of Welsh consider their new Assembly to have improved government compared to 10% and 4% respectively who think that it has worsened the situation. These figures do not overwhelm but they are conclusive; there is certainly a trend in which more people view the current situation of devolution to be an improvement and this satisfaction is a good indicator of sustainability. “Devolution was the outcome of democratic choice” and so there is no call for criticism of its validity of existence. Whilst there are issues which can be highlighted with the implementation of devolution it seems that the improvement and benefits which it creates should overshadow these practical or minor complaints. It is true that improvements can always be made yet that does not reasonably mean that the current position is not satisfactory for the moment, improvements would be preferable but are not, as yet, a necessity.

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