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Duncan: Making devolution work

Conservative Policy Forum lecture

Introduction

"In the wake of the 1997 devolution referendum, the Scottish Conservatives faced a political crossroads. We could continue to oppose a Scottish Parliament and the overwhelming majority of the Scottish people who had just voted for it. Or accept that the Scottish Parliament was here to stay and commit ourselves to making it a success for Scotland and a success for the United Kingdom.

I have no doubt that we were correct to choose the second option and ignore the siren voices of those who saw merit in dying in the last ditch for their political principles. Those who took this decision are to be commended because it took real courage, as many of our activists and supporters would have preferred us to follow the latter course. However, this would have been a betrayal of our heritage as the ability to adapt and move on is what made us the oldest and most successful political party the world has known. It would also have been the real betrayal of the Conservative and Unionist cause in Scotland because it would have been the final nail in our political coffin north of the border.

That would have been a disaster because it is vital that the principles for which we stand are put forward by Conservatives at Westminster and in the Scottish Parliament and are made relevant to the issues of the day. Continuing blindly to oppose devolution would have left us as an irrelevant voice crying in the political wilderness. Accepting the reality of devolution has created the foundation on which we are building our recovery in Scotland and shows we are serious in our aspiration to be a party of government in Scotland once again.

It acknowledges that there are now only two shows in town - a devolved Scottish Parliament within the United Kingdom or an independent Scotland. As unionists, we therefore have a duty to make devolution work because if it fails we will not go back to the status quo ante, but forward to a separate Scotland with all the dangers that entails.

This does not mean we were wrong to oppose devolution in the past, we rightly pointed out the potential instabilities and damage it could cause to the union. However, because we recognised those dangers we are well placed to ensure that they do not come to pass. Our job is not to debate Scotland's past, but to shape Scotland's future.

As Conservatives, we can see only too clearly why devolution has failed to live up to expectations. But we should remember that this is not a failure of the Scottish Parliament as an institution. Devolution has disillusioned even some of its most ardent supporters largely because of the political priorities and approach of the Labour/Liberal Democrat Executive - in short it is a failure of overmighty government, constantly interfering and trying to direct our lives and therefore crowding out the initiative and compassion of the Scottish people.

Changing this will require a change in the political composition of the Scottish Executive and I leave it to David McLetchie and his team to make the case for just such a change as he did in his Scottish CPF lecture on reform of our public services last November.

However, there is still plenty that a Conservative Government in the United Kingdom can do to improve the working of the devolution settlement and strengthen the United Kingdom and it is these areas which I will address this evening.

Strengthening the United Kingdom

This is all based around the premise of making the Scottish Parliament work. We have always understood that devolution requires a new relationship between the constituent countries of the United Kingdom. The truth is that Labour has ignored many of the wider constitutional issues raised by devolution because it can rely on the fact that it has a large majority at Westminster and is the dominant partner in the coalition running the Scottish Executive. But instead of brushing these difficult questions under the carpet, we need to accept that for devolution to be successful it must be capable of working when different parties are in charge at Westminster and Holyrood.

Even with this Labour dominance, there are clear problems with the way the devolved settlement is working. There have been numerous conflicts between the Westminster Government and the Scottish Executive and Parliament. Clear differences in policy have emerged on free personal care, foundation hospitals and higher education funding to mention just a few. Whilst such differences are a legitimate expression of political devolution, there have been plenty of examples of a lack of communication in relation to policy making. The most recent concerned the proposed creation of a Serious Organised Crime Agency which was announced by the Home Secretary on 9th February. Despite claiming to have been involved in consultation on the creation of this body, Scottish Executive ministers seemed remarkably vague on its remit in Scotland. This is all the more strange when the fact that David Blunkett called this new body a UK-wide agency and logic would dictate that this was the case as organised crime does not respect borders and many of the crimes, such as drug trafficking and people smuggling, cover reserved areas.

And there are other examples such as the Government's plans for a new UK Supreme Court, where, according to BBC reports, Scottish ministers were not consulted despite the obvious implications for the Scottish legal system. The fact that most of these politicians come from the same party does not seem to have aided communication. If the relationship between Scottish Labour's MPs and MSPs is anything to go by, familiarity really does seem to have bred contempt. This can only weaken the relationship between Scotland and England and so threaten the future stability of the United Kingdom.

With different parties in charge, there will be no room for such complacency. Relationships must be better and that is something we in the Conservative Party recognise. It was also recognised by the House of Lords Select Committee on the Constitution, chaired by Lord Norton which stated that 'we are concerned by the sheer extent of the reliance on goodwill as the basis for intergovernmental relations within the United Kingdom. We are also concerned that good will has been elevated into a principle of intergovernmental relations: it is used to explain the avoidance of disputes and to justify maintaining the present informality of the system.' And went on to state that 'we have an unresolved concern that these mechanisms may not prove adequate to the challenges arising from a highly-charged political dispute, especially if the parties are accustomed to informal rather than formal dealings with each other.'

I will set out further details of how a Conservative Government intends to strengthen relationships between Westminster and the Scottish Parliament at our UK Conference in Bournemouth - almost certainly the last before the next General Election.

The key relationship is clearly that between a Conservative Government and a Labour/Liberal Democrat Scottish Executive. In such a situation, I think that the role of Secretary of State for Scotland in resolving any potential conflicts becomes far more important as that person should be the link between the two administrations. This does not necessarily mean that we would move away from Labour's decision to give the Scottish Secretary an additional UK role within the Cabinet. Simply that the emphasis may need to change. At present, Alistair Darling seems to be Transport Secretary with his Scottish responsibilities tacked on as an afterthought. But Secretary of State for Scotland needs to be more than a subtitle on his business card and an enhanced role as Scottish Secretary might require a more even balance or a less onerous additional role.

It is clearly important that a future Conservative Government sends out the right signals about its willingness to work constructively with the Scottish Executive and Scottish Parliament. Quite frankly, I find it bizarre that the Scottish Secretary or other relevant UK ministers have not appeared more often before the Scottish Parliament's committees - no Secretary of State for Scotland has ever appeared and only Peter Hain and Ben Bradshaw have done so since the Scottish Parliament was established. Alistair Darling has even spoken of devolving more power to the Scottish Parliament in relation to rail, but seems remarkably coy about doing so at a meeting with members of the Scottish Parliament's Transport Committee.

Whilst the Scottish Parliament cannot demand attendance, Conservative ministers would be willing to attend when appropriate matters are being discussed. In this respect, we also need to examine how to ensure Scotland's interests are best represented within the EU and whether the Concordats and Joint Ministerial Committees set up by Labour perform a useful role or can be improved. Events such as the fishing fiasco of the last few years cannot be allowed to continue.

This same openness to means of improvement will be applied to the Scotland Act governing the relationship between Westminster and the Scottish Parliament. We know it is not perfect which is why we tried to amend it when it was debated at Westminster. The question of the division of powers between Westminster and the Scottish Parliament will continue to rear its head and we will not shy away from it. The use (or misuse) of Sewel motions shows that there are still outstanding issues here. This was a mechanism initially designed so that the Scottish Parliament could agree to let Westminster legislate for the whole UK on matters which were technically devolved but on which a UK solution was deemed to be preferable. We have no problem with this principle. However it was supposed to be the exception rather than the rule with only a couple of such motions being brought forward annually.

Yet over 50 such motions have been lodged by the Executive in the last 5 years which has prompted Lord Sewel himself to complain that the system is being abused, with more than a hint that the Executive is using it to avoid difficult debates on contentious issues such as civil partnerships. This shows that the issue of the respective powers of the two Parliaments has not been definitively answered. In areas such as transport there are clearly problems and we do not rule out changes to the Scotland Act in the future or the setting up of a Joint Transport Committee of the two Parliaments to examine issues which are of shared concern. The two Parliaments must learn to work together and it is bizarre that the only institutional context in which MPs and MSPs can discuss transport issues is the British Irish Inter-Parliamentary body.

However, we are Conservatives and there should be no rush to judgement on these matters - but mature reflection in the light of experience. The ink is barely dry on the last Scotland Act, yet already people are trying to change it. Ironically though it is Labour, the architects of that Act, who have opened it up. And this in order to preserve 129 MSPs and in so doing break the link between the number of Westminster constituencies and the number in the Scottish Parliament. I can't say I have noticed a huge public outcry in favour of preserving the current number of politicians in the Scottish Parliament at 129. We oppose this Bill as we see no need for it since 108 could do the job perfectly well, if not better. Let us not forget that we only have 129 MSPs because we started with 73 constituencies. If we had started with 60, then we would only have had 108 from the outset of devolution.

Indeed, we have not given up hope of defeating this Bill as we know that our position is supported by many Scottish Labour MPs. They know as well as we do that it is being done in order to satisfy the political interests of the Scottish Labour Party, and Jack McConnell in particular, and will do nothing to restore the reputation of the Scottish Parliament or politicians in general. And Alistair Darling has now set up a ludicrous commission to consider anomalies created by a mess of Labour's own making. It is ridiculous and should be left well alone.

More importantly, it will do nothing to strengthen the United Kingdom. Indeed, ensuring that we have different constituencies for UK and Scottish elections, will in fact weaken that relationship and simply further confuse the electorate.

Rebalancing the Constitution

In deciding to address this issue of the number of politicians, Labour has also deliberately ignored the biggest anomaly thrown up by the devolution settlement - the famous West Lothian question first posed by Tam Dalyell. Labour's attitude was best summed up by Derry Irvine when as Lord Chancellor he said 'now that we have devolution up and running, I think the best thing to do about the West Lothian question is to stop asking it.'

This sums up the naked political self interest which lies behind the Government's refusal to address this issue. This has been highlighted by the recent votes on foundation hospitals and top-up tuition fees, neither of which apply in Scotland, when the Prime Minister was quite happy to use Scottish Labour MPs to force his legislation through.

For a party which claims to be a unionist party, Labour is playing fast and loose with the Union because it is stirring up resentment in England and, make no mistake, this is a serious threat to the future of the United Kingdom. Labour politicians need to wake up to the fact that the Union can be undermined by English resentment just as much as by the separatists in Scotland and the Prime Minister and his Labour colleagues need to recognise that they are providing the biggest boost to English nationalism ever seen.

Conservatives genuinely care about the future of the United Kingdom which is why we recognise why this issue needs to be addressed. Above all, it is an issue of fairness, something that in the past was recognised by Labour politicians. Tam Dalyell may have first recognised this unfairness in the 1970s when he identitifed that once a Scottish Parliament was established Scottish MPs would be able to vote on issues that affected only England and Wales, whereas English and Welsh MPs would not be able to vote on the same issues in Scotland as they were now decided by the Scottish Parliament.

However, he was far from alone in the Scottish Labour Party as Robin Cook also accepted the logic of this position when he said in the 1970s that 'It would be wrong for those of us from Scotland to interfere in English domestic affairs after that watershed (devolution) has been reached.'

Presumably, they were sensible enough to see the potential problems that could arise. For example, it is not difficult to envisage a situation in which a British Government without a majority of English MPs relied on Scottish MPs to pass legislation only applying to England or to England and Wales. Indeed, thanks to a rebellion that's what happened in relation to tuition fees. Some of this legislation might be deeply unpopular and further fuel English resentment.

Sadly, the current leadership of the Labour Government does not care about such problems. Tony Blair himself has dismissed the whole issue with the bogus argument that under Conservative Governments English MPs voted for measures that only applied in Scotland, most famously the Poll Tax. But that was all before devolution. Then we had a unitary Parliament and all laws throughout the UK were voted on by all MPs from across the UK. The rules of the game changed with the advent of the Scottish Parliament and, conveniently, he seems to forget that he is the one who changed them. Things have moved on, the structure of the union has moved on and it is high time Labour moved on.

This government has abdicated its responsibility by failing to address the serious imbalance in our constitution which their own policies have created. A future Conservative Government will right this imbalance because doing nothing is not an option. It is unsustainable and threatens the very existence of the United Kingdom.

So how do we answer the West Lothian Question?

The SNP will say that Scottish independence is the answer. Indeed, it is an answer, but one which poses many more unpalatable questions for Scotland and which has been comprehensively rejected by the Scottish electorate at successive elections.

Based on the Northern Ireland experience, another option often suggested is to reduce even further the number of Scottish MPs at Westminster. We know the number of Scottish MPs is to be reduced from 72 to 59. This would bring the size of Scottish constituencies into line with those south of the border - this was in the Scotland Act. However, some wish to go further and introduce a replica of the Stormont system under which Northern Ireland had fewer MPs than its population would justify. Whilst superficially attractive, it doesn't address the fundamental issue as it fails to tackle the West Lothian question. Although there would be fewer of them, Scottish MPs would still be able to vote on English and Welsh domestic issues and their votes could still prove crucial in forcing through unpopular legislation.

Scotland would also be under represented on vital Westminster issues such as foreign affairs, defence and pensions. Two wrongs don't make a right and addressing the problem in this way would deny Scotland a fair say on these issues and play into the hands of those who wish to break up the United Kingdom.

Another possible option is the creation of a federal United Kingdom either through the creation of regional assemblies in England or an English Parliament. For this to work the regional assemblies or English Parliament, together with the Welsh and Northern Ireland Assembly, would have to have equivalent powers to the Scottish Parliament.

English regional government is at present simply a twinkle in John Prescott's eye and so cannot form the basis of any solution in the near future. Only three regions of England are to have a referendum on whether to create such an assembly - the North East, the North West and Yorkshire and Humberside - and it is far from clear that they have much support.

Regional assemblies are an attempt to create artificial regional identities where none exist and to supplant the legitimate and longstanding powers of local authorities. They would only exist to suck up power from councils, thus taking power further away from the people - the opposite of devolution. Even if they were desirable, no one has as yet proposed giving regional assemblies primary legislative powers as the Scottish Parliament has so they cannot answer the West Lothian question.

That is why many have turned their attention to an English Parliament with all the powers and responsibilities of the Scottish Parliament. On paper, this is a logical solution to the imbalances thrown up by devolution. However, it ignores the fact that there doesn't seem to be much public demand for one at present and it would be wrong to force a Parliament on England simply to solve a problem caused by Scottish devolution.

In any event, the UK is not the United States. In the USA, there are 50 states of varying size and no one state dominates. 83 per cent of the UK population live in England so the English Parliament could become more important than Westminster which would lead many to question why we need it at all, so speeding up the break up of the United Kingdom rather than preventing it.

Of course, other possible answers to the West Lothian question have been put forward. It is just that none of them answers the fundamental question.

I think it highly likely that demands for a Parliament in England will grow unless an alternative solution to the West Lothian question can be found. Fortunately, I believe that such a solution exists. English-only or English and Welsh-only legislation answers the West Lothian question, rebalances the constitution and commands public support across the United Kingdom. It is not perhaps surprising that such a measure is popular in England, however a February 2004 YouGov poll for the Telegraph found that 78 per cent of Scottish voters thought that Scottish MPs should not be allowed to vote on matters that affect only England and Wales. This is a testament to the Scottish sense of fair play and shows that public opinion is ahead of Labour politicians on this issue.

Under my preferred model, the Speaker would designate some bills as English-only which would build on existing procedures which allow the Speaker to certify bills as relating exclusively to Scotland. Bills would be considered as at present, with Scottish MPs allowed to participate in the debate. However, they would not be allowed to vote on these Bills. Initially, we would seek to establish this by voluntary convention. And to those sceptics who say that this couldn't possibly work, I say look at the Maybury Convention which prevents the House of Lords from overturning manifesto commitments endorsed by the electorate and the House of Commons and has operated for many years.

It is ironic that the Labour leadership is so hostile to this solution because it has strong Labour antecedents. It was first proposed by Harold Wilson in relation to Northern Ireland MPs in 1965 and Jim Callaghan introduced a clause in the 1978 Scotland Act that acknowledged the principle of English-only bills. In 1999, it was also the preferred option of the House of Commons Procedure Committee, which has a Labour majority.

Labour now has produced a range of arguments against it, yet they are far from conclusive. Labour MPs claim that it is hard to define bills as English-only as many, such as the recent Health and Social Care Bill, contain a small number of clauses which also relate to Scotland. However, Speaker certification of Bills would get around this by requiring a clearer territorial division of legislation introduced by the Government. That is why it is our strong preference. However, where this is not possible, the Speaker would certificate on different parts of the Bill, identifying parts as devolved or not.

Then they argue it will create two classes of MPs, but the Government's constitutional changes have already done that as Scottish MPs are accountable to no one in relation to English and Welsh education or health.

Or they say it is wrong that a Government without a majority of English MPs could not guarantee to get its English legislation through. But why should a Government without a majority in England be able to force unwanted laws on the English or the Welsh. Governments would have to work harder to win the support of the English MPs and so get its legislation through, which would act as a welcome check on the power of the Executive.

Sadly, even Tam Dalyell has fallen for the argument that Scottish MPs need to vote on Bills such as that on top-up tuition fees, as these have knock-on consequences for Scotland. However, that is to ask the wrong question. The relevant constitutional question is not whether an issue has consequences for Scotland, but whether a subject is devolved to the Scottish Parliament as it then has the power to deal with any consequences. The logic of devolution dictates that we do not have the right to prevent something being done in England and Wales purely because it may affect Scotland.

By voting on this issue the Nationalists were also guilty of gross hypocrisy. They accept the logic of not voting on English and Welsh domestic issues, yet voted on tuition fees because of the consequences for Scotland. Yet how would the Nationalists have felt if English and Welsh MPs had interfered with the devolved autonomy of the Scottish Parliament in relation to tuition fees because it affected their constituents. An independent Scotland would have no power over what England and Wales did on this issue and would still be affected by what they decided. Just as we have no say over decisions made in Ireland, which may still have consequences for Scotland.

And Labour MPs even claim that English-only legislation will encourage English nationalism which is the opposite of the truth as it is the current situation which is causing resentment and destabilising the United Kingdom.

The Conservative solution of English-only legislation will prevent this and is more practical than having special English-only days at Westminster which would pose logistical problems and reduce the necessary flexibility in the timetable.

In time, if the Northern Ireland and Welsh Assembly acquire the power to make primary legislation it would have to be extended to cover MPs from Wales and Northern Ireland. However, that is for the future. We must address the situation in relation to Scotland as a matter of urgency and this is an elegant solution which requires a minimum of change to address the problem, whilst working within the conventions and traditions of the Westminster Parliament. It restores the essential balance to the constitution and is fair to all parties concerned.

That is vital because the United Kingdom is founded on a partnership between four nations. Each with its own separate culture and identity, but each better off in a British nation which is infinitely greater than the sum of its parts. That is an inheritance which we should not discard lightly because it has brought us so many benefits.

Labour has created the current imbalance in our constitution, but refuses to sort out its own mess. One of the most important tasks of the next Conservative Government will be to find a way to deal with this situation which strengthens the Union. As the Conservative and Unionist Party we must be willing to take the hard decisions which this entails. I assure you that we will."

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