Only Tony Blair, a second-division legal brain and a man for whom the headlines counted a great deal more than the substance of anything, could have presided over the mess that was the initial settlement of devolved powers to Wales, Northern Ireland and Scotland.
For a start, the settlements created legal and constitutional entities within what had – at least in theory, been a an integrated united kingdom. We all know just what were the unintended consequences of that.
The overarching problem, however – and now a very live issue indeed, is that this Blairite hash-up was the point where England, by default, became synonymous with the United Kingdom.
There was no devolution settlement whatsoever for England or its regions.
English business was and remains United Kingdom business in every possible way: discussed and voted on by the full House of Commons in which the entire United Kingdom is represented; and, unlike the unscrutinised legislation enacted by each of the three unicameral ‘national’ bodies, is also subject to the scrutiny of the House of Lords.
While England was originally and long quiescent in accepting that it was indeed synonymous with the United Kingdom, it has now woken up to the fact that it has been, in fact, hugely disadvantaged by the ragged incompleteness of the devolution excursion.
England is now angry, concerned, feeling hard done by, neglected and taken for granted [all of which is true] – and listening keenly to UKIP, with a May 2015 General Election on the near horizon.
It is no surprise that the members of the mainstream political cadre are now less interested in the intricacies of the devolution resettlement than in their own survival.
The dog’s dinner of devolution
The imperative in 1997-98 was simply to get something done quickly that could be seen to be a major political change enacted by a ['new'] Labour government. Consequences and consistency were not issues of any great moment. Each settlements simply had to deliver something that its area would accept as fitting its perceived needs.
The three individual settlements are powerfully asymmetric, each struggling to take account of context-specific needs and risks; and with no attempt to standardise the terminology in which the settlements were described. The titles of powers [matters] differ, are grouped differently - and even the matters retained by Westminster and matters given to the devolved areas are differently described. There has been no attempt to standardise even the titles of the enabling Acts governing each settlement.
The summary of the settlement for Wales is astonishingly casual, listing simply the matters devolved and saying that everything else is reserved. It was, however, deemed necessary in the case of Scotland to be specific on these reserved matters, even in summary; and, in the case of Northern Ireland, to create two separate classes of reserved matters whose title, in relation to the ‘reserved’ matters in the other two settlements, confuses the definition of ‘reserved’.
The Northern Ireland Assembly’s powers are ‘Transferred’, not devolved – which implies a rather more permanent arrangement. Certain powers there are ‘Excepted matters’, which are bottom-line immovables retained in Westminster. Then there are ‘Reserved matters’, which in Northern Ireland alone, describes powers retained at Westminster – but ‘where the Northern Ireland Assembly can legislate with the consent of the Secretary of State’ [not of the United Kingdom]. For the other two settlements ‘Reserved’ is an electric fence.
Settlements to herd cats
Northern Ireland – The Northern Ireland settlement starts with a stand-out contradiction in terms – designed simply to provide a pragmatic way of avoiding the perpetuation of the historic and bloody divisions in that area: ‘The Executive is headed by a First Minister and a Deputy First Minister who have equal status and must act jointly’.
The Northern Ireland variety of semi-’Reserved’ matters, open with consent to local legislation, includes: financial services and pensions regulation; international trade and financial markets; import and export controls; the foreshore and seabed; broadcasting; navigation and civil aviation.
Some of these ‘available’ matters are clearly tuned to the specific situation of Northern Ireland, alone amongst the members of the United Kingdom in sharing a land border with a state outside the Union – and where, together, both comprise a single small island.
The differences between the Norther Ireland settlement and the other two seem often to arise from creating a situation which would facilitate the later separation of that region; while some [like 'currency' being a named 'excepted matter'] give it short term shelter from the pressure to be part of a single Irish state.
The Northern Ireland Assembly has never sought consent to legislate on any of the ‘Reserved matters’.
An amusing footnote is that alone amongst the three devolution settlements, it has here been felt necessary to specify that the ‘Royal Succession’ is a matter for Westminster. This oddity is born of the religious division that characterises Northern Ireland, where a vocal Protestant faction would have opposed the reform of the royal succession to accept Roman Catholic monarchs.
Wales – By 1542, following the series of Acts under Henry VIII, the jurisdiction of England operated in Wales; and since then England and Wales have operated under a common jurisdiction.
This will be part of the reason why the devolution settlement for Wales is the simplest, making it unnecessary for some matters to be specified – and why ‘justice and policing’ is not devolved to Wales as it has been to the other two areas, each of which has their own historic legal system. Fire and rescue services are, however, separately devolved to Wales, as an eminently practical measure.
Some devolved matters are specific to Wales – like ‘water and flood defence’. The relative strengths of the nationalist movements in each of the two countries at the time can be seen in the fact that the settlement for Wales specifically devolved, up front, ‘Welsh Language’; where Gaelic was not specifically mentioned in the Scottish settlement. This was around the time of the Welsh nationalist activists’ actions against holiday homers, memorialised in the Not the Nine o’Clock News‘ spoof on the National Coal Board advertisements of the day: ‘Come home to a real fire. Buy a cottage in Wales.’
The summary of the settlement for Wales builds in the means for ‘Enhancing Legislative Competence’ of the Welsh Assembly, choosing to mention the possible variation of Schedule 7 of the enabling Government of Wales Act 1998 – to add to, remove or modify matters open to legislation by the Welsh Assembly.
Scotland - the summary of the settlement for Scotland is the most specific about matters reserved to Westminster and the most efficient in its uninflated account of the matters devolved to Scotland.
Interestingly, the Scotland settlement is the only one which specifically reserves to Westminster the authority to legislate over the Civil Service. ‘Public administration’, is the term used in the settlement for Wales, presumably referring to the devolution of authority for the Civil Service in Wales; and the settlement for Northern Ireland specifically includes ‘the Northern Ireland Civil Sevice’.
This situation is ironic in the light of the wholesale politicisation of the Civil Service in Scotland by the SNP Scottish Government during the long preparation for and operation of the campaign for Scottish independence. It does, though, make clear where the authority resides for the long work to redress the effectively unaccountable situation of subjectivity which currently obtains in the Civil Service in Scotland.
Broadcasting is specifically reserved to Westminster in the settlement for Scotland; but open, with the consent of the Secretary of State, to legislation by the Northern Ireland Assembly [a facility unused to this day].
The so-called ‘Reserved matters’ in the settlement for Northern Ireland – which are only ‘semi-Reserved’ in that case – include many specifically precluded from the Scottish Parliament’s authority, a continuing burr under the saddle here in Scotland.
These anomalies were designed to limit the impact of a potential separatist thrust by any future nationalist government, which has, of course, been in power in Scotland since 2007 and has been thrusting determinedly towards separation.
The situation today
Since the 1998 Acts, various revisions to the devolution settlements have already been made, some already in the pipeline for Scotland in the revision of the Scotland Act to come into force in 2015; and with enhanced powers promised just before the independence referendum, to be decided under the aegis of the Commission led by Lord Smith of Kelvin. The deadline for submissions to Lord Smith’s Commission is five days away, 10th October 2014.
All three mainstream United Kingdom political parties have made suggestions for what these enhanced powers might be, with a certain territory shared by each and with the Liberal Democrats’ proposition being the most extravagant.
There are two issues in this situation:
- the specific matters to be added to the Scottish settlement and yet to be decided;
- the impact of these new powers in driving a now dangerous, no longer just bizarre, asymmetry in the relative self-governing authority of the member areas of the United Kingdom.
The Prime Minister, a man repeatedly hit by express trains coming down a long straight behind him but never seen or heard until just before the impact, declared unilaterally the morning after the pro-union result of the independence referendum, that he was wise to the aggravated asymmetry the additional powers to be given to Scotland would bring to the other three partners in the Union – and to the innate unfairness of this.
He pledged publicly that all of this would be resolved in a unified address to the situation and completed within the avowed timescale of the new settlement for Scotland.
He appeared to have given no thought at all to the massive complexity of the issue, which is effectively no less than the reform [or the creation] of the constitution for the Union; and with federalism now a notion voiced across the board as a credible, workable and contemporarily respectable new set of relationships.
Mr Cameron underscored this position by declaring a few days ago, at the Conservative Party Conference, that he would deliver ‘English votes for English matters’.
These repeated one-handed volleys have caused a political brouhaha driven by frankly immoral political vested interest by the Labour party under its equally lightweight leader, Ed Miliband; and with interventions from, in terms of lightweight-ness, the helium balloon that is Nick Clegg. Clegg has unilaterally declared himself ‘the guarantor’ of the delivery of the additional devolved powers to Scotland, yet to be specified.
This and related matters are covered in a companion article, now published: Conundrums and codswallop on United Kingdom constitutional reform.
Note: Here is the United Kingdom government summary on the original devolution settlements.