Written evidence from Junade Ali[1] (EDE 05)

Public Administration and Constitutional Affairs Committee

The Evolution of Devolution: English Devolution

“Should there be comprehensive reform of the English devolution and local government system?”

1. Recent piecemeal constitutional reform, both vertical devolution and horizontal reform, in the United Kingdom has led to severe unintended consequences; for example:
1. In my view, the removal of dissolution power in the Fixed Term Parliaments Act 2011 and the replacement of the Law Lords with the UK Supreme Court in the Constitutional Reform Act 2005 undermined the ability of the United Kingdom’s constitutional settlement to respond to the 2019 constitutional crisis.
2. Whilst the UK Border Force is under the control of the Home Office, rules in relation to border control and self-isolation after international travel during the Coronavirus pandemic have been made by devolved administrations.
2. Whilst the absence of devolved administrations in England, outside London, is a constitutional injustice that must be rectified; it must be done with careful consideration to avoid further unintended consequences that could damage the Union of nations.

“How should decisions on English devolution be agreed?”

3. Implementation of devolution has ordinarily been done by Acts of Parliament, in some cases in implementation of a political decision by a referendum.
4. In statute, Parliament has recognised that the political decisions made by referenda should not be undone except on the basis of a referendum (Section 1 of the Northern Ireland Act 1998 and the Section 63A of the Scotland Act 1998).
5. Such statutory commitments are declaratory in nature and do not affect the sovereignty of Parliament. This is consistent with A. V. Dicey’s distinction between political sovereignty (which rests with the nation) and legal sovereignty (which rests with Parliament), where the legal sovereignty of Parliament must ultimately reflect the political sovereignty of the nation.
6. It is critical to note that should decisions be implemented by referendum, they are subject to political entrenchment and are therefore harder to revert and adapt later.
7. “English Votes for English Laws” (EVEL) is somewhat unique in the fact that it is implemented by the Standing Orders of the House of Commons instead of primary legislation. For reasons I’ll expand on further, this is an improper solution. Devolution by Acts of Parliament would offer political flexibility whilst still allowing proper implementation.

“To what extent should there be consistency in devolved and local governance within England, and to what extent is asymmetry necessary?”

8. In November 2016, the Centre on Constitutional Change published a report arguing there should be further entrenchment of the full-house veto of English laws in the EVEL settlement. An argument presented in favour of this is the impact of Barnett Consequentials.
9. This not only subjects English laws to restrictions not experienced by other devolved legislatures but neglects the fundamental difference between the devolved legislatures and the UK Parliament. Whilst devolved Parliaments are bicameral legislatures, the UK Parliament is a bicameral - this in effect means that even if only English (and Welsh) MPs approve legislation, the House of Lords must also approve such legislation.
10. This would create unnecessary roadblocks to legislation that other devolved legislatures are not subject to. This could cause particularly contentious issues where social issues are concerned.
11. If Barnett Consequentials are of a substantial impact to the passage of English-only legislation, the decision on funding should be abstracted away from the issues of regional legislation.
12. Another argument for asymmetric devolution is that local services can have national responsibility. A prime example of this is that whilst the Mayor of London has responsibility over policing in London, there exist significant national responsibilities assigned to the Metropolitan Police which could be served by the National Crime Agency:
1. Whilst counter-terrorism policing currently exists largely within the remit of the Metropolitan Police, Section 2 of the Crime and Courts Act 2012 provides the Home Secretary with the power to confer a counter-terrorism function on the National Crime Agency.
2. The Metropolitan Police officers have jurisdiction in Scotland and Northern Ireland within certain protection operations (Section 99 of the Police Act 1998) despite the UK Protected Persons Service (UKPPS) currently being led by the National Crime Agency.
13. This does not make the case for “asymmetric” devolution and instead highlights the need for national functions to be conferred to either existing UK-wide departments or the creation of new structures. Doing so leads to an outcome where conflict of interest between the local and national interest is removed.
14. It is critical to also note that the UK Parliament already has the power to pass legislation without representation of those involved (such as those affecting British Overseas Territories or Crown Dependencies).
15. A federal constitutional structure may be incompatible with the legislative flexibility and democratic accountability favoured by the British public, but as the public becomes accustomed to devolution, consistency is essential to know who is responsible for various legislations. This means a specific role should be reserved for the UK Parliament and a separate function for devolved administrations. This can be done without the need for federalisation.

On what basis should the form, geography and extent of devolved regions or areas be determined, and what should be the role of culture and identity?

16. The regions of England (as the NUTS Tier 1 regions, formerly the European Parliamentary constituencies) each contain significant numbers of people. They are broadly comparable in population to the devolved regions (indeed, seven of nine regions contain more people than Scotland). They are also relatively equally sized, culturally distinct from each other and don’t feature any one overly dominant region.
17. Unicameral legislatures headed by elected mayors have already become a tested form of regional representation within England. Expanding such areas to represent individual regions of England would prevent disenfranchisement of rural voters and ensure regions have a more equal playing field for economic development.
18. The elected members of the assemblies of these authorities may then come together to form an English Parliament without the expense of additional representatives. To do so, there must be a defined number of such assembly members across England, with allocation done using an approach like the Sainte-Lague system. This would ensure equitable assembly member distribution to both regional assemblies and an English Parliament on the basis of population. A defined electoral system for such assemblies (and the English Parliament in turn) would allow for consistent representation from region-to-region.
19. Finally; given the size of England as part of the United Kingdom, it is important to consider reform of the House of Lords as part of the solution to ensuring England does not outweigh the other nations of the United Kingdom in the UK Parliament. Given the scrutiny and revising role of the House of Lords, I do not believe that it should become a directly elected chamber, instead favouring an approach whereby weighting can be given on national political affiliations; I do however believe that representing regions with land area as part of the weighting (for example, on the basis of members place of birth) would act as a valuable counter-balance to England’s population. Allowing for there to be proportionality of different professional backgrounds would further improve representation within such a chamber towards the general public.

October 2020