The September 2014 vote on Scottish independence put a spotlight on the UK’s untidy constitution. Most attention has focused on the so-called West Lothian Question and its companion idea that only MPs who represent people in England should vote on matters that only affect people in England.
The idea that only those who are affected by a law should have a say in making that law has sound philosophical credentials. Artlessly, it is often called ‘the affectedness principle’ but it makes sense. A traffic-calming measure in Dumfries does not affect my life, so on what basis could I claim a right to a say in the matter?
Of course, philosophers like to complicate things. What, after all, does it mean to be ‘affected’ by something? Is a virgin monk affected by an abortion law? Not in any personal sense but Catholics do feel their voice should be heard in this debate. Or let’s take climate change. This definitely affects everyone, and as traffic calming measures increase emissions (due to speeding up and slowing down), perhaps I should have a say in the Dumfries matter.
Putting these difficulties aside, we will focus on the substance: is ‘English votes for English laws’ the best way to realize the affectedness principle and so address our constitutional problem? Table 1 can help us here.
Table 1: Percentage of votes and seats (in parentheses) in the 2010 general election
|England||28.1% (191)||39.6% (298)||24.2% (43)||N/A|
|Scotland||42% (41)||16.7% (1)||18.9% (11)||19.9% (6)|
|Wales||36.2% (26)||26.1% (8)||20.1% (3)||11.3% (3)|
The table shows why the Labour Party is wary of English votes for English laws. The Conservative Party has a massive majority of England’s MPs.
But a closer look tells us something else. The Labour Party has by far the most MPs in Scotland (41 versus 18). Why aren’t they in control of Scotland’s parliament? One answer is that if you ask people a different question, they will give you a different answer. When electing people to Scotland’s Parliament voters were asked who should make Scotland-only laws? But in a general election they were asked something like who should make UK-wide laws? For Scotland-only laws the Scots prefer the SNP, for UK-wide laws they prefer Labour.
By analogy, just because voters in England elected a majority of Conservative MPs at a general election, it does not follow they would do the same if they were asked who should make England-only laws. Of course, they might but, to find out, we would have to ask them. In short, while some laws only affect people in England, it does not follow that England’s MPs are the people best-qualified to make those laws.
One objection is that ‘English votes for English laws’ is a less bureaucratic and more efficient solution than, say, creating an English parliament. But this won’t wash. If it is not clear that an English parliament would return a Conservative majority, the fact that Conservative rule would be more efficient is no argument. Efficiently governing in ways that don’t represent the people’s views is worse than representing the people inefficiently.
An English Parliament?
None of this is an argument for an English parliament but it is relevant to the constitutional problems the UK faces. Jeremy Waldron (Chichele Professor of Social and Political Theory at Oxford University) describes the general problem here as the problem of authority: who should make the law? And, why should they make the law rather than some other group of people?
Waldron notes that we profoundly disagree about what the law should be and who should make it. We live, as he says, in the ‘circumstances of politics’. In Waldron’s view, this implies that we cannot legitimately appeal to partisan considerations when addressing constitutional problems like the UK’s.
Several points follow. First, the circumstances of politics implies that no political party should address our constitution problems through solutions that just happen to make it more likely that they will get the laws they want.
Second, any constitutional changes must stand the test of time and adequately address problems that have not yet arisen or been imagined (Donald Rumsfeld’s ‘unknown unknowns’). This is one of the remarkable features of the US constitution; it is still going strong after more than 225 years whereas Scottish devolution is fraying after a little over 15. In large part this is because, up until now, the anomalies which Scottish devolution created have been ignored.
Finally, ‘English votes for English laws’ is not the only democratic problem in the UK. For instance, many local councillors are of low quality and most council officials are yet to accept the principle of public accountability. We should take this constitutional opportunity to reform our democracy more systematically and thoroughly.
This will take time and (in my view) implies that politicians who have to keep supporters onside, and worry about the next election, are best excluded from the process. There is little chance of this happening and as we lack a Madison, Jefferson or Franklin, we are in a little trouble. Where does this leave us? To quote the proverbial local when asked for directions ‘if I were you, I wouldn’t start from here …’