It would be easy to undertake a nit-picking, petulant reading of the long-awaited Final Report of the Commission on Scottish Devolution chaired by Professor Sir Kenneth Calman, which was finally published yesterday. The report does not review the Scottish devolution settlement in the round, either in relation to its effects on the UK-wide tier of governance that provides government for England, nor on devolution in Wales and Northern Ireland. This was explicitly not the remit of the Commission; therefore, it cannot be reproached for not making explicit recommendations about devolution for or within England, or for how Scottish devolution can be made more compatible with the interests of England alongside ‘serving Scotland better’: the actual title of the report.
However, it is legitimate, I think, to criticise the Commission on grounds of inconsistency. The essence of its approach to devolution is to arrive at improvements to the way the reserved and devolved powers, governments and parliaments interact and complement each other in practice. Consequently, to be consistent, the Commission should have considered the effects of Scottish devolution on the workings and legitimacy of national-UK governance just as much as it reviews in depth the way the Scottish Parliament and Executive work and interact with the UK government, and how their accountability to the people of Scotland can be enhanced.
In its omission of any review of the broader consequences of devolution for the UK as a whole, and particularly for its largest constituent part (England), the Commission perpetuates and entrenches the asymmetrical approach that has been taken towards Scottish devolution from the Scottish Constitutional Convention of 1989 onwards: considering only what is in the best interests of Scotland-within-the-Union, not a more equitable and accountable constitutional settlement and system of governance for the whole of the UK.
Indeed, the issue of asymmetry is integral to Calman’s conception of the Union itself, and the concept is frequently referred to in the report. The way Calman seeks to circumvent the criticism that devolution for Scotland, Wales and Northern Ireland has brought about an egregious asymmetry in the governance of the UK – with England being the only UK nation that is denied any political expression of its national identity – is to suggest that this asymmetry has always been a fundamental characteristic of the Union: “The territorial constitution of the United Kingdom is therefore radically asymmetrical. This reflects the history and geography of these islands, and like many other aspects of the UK constitution has grown and developed rather than being designed”.
But elsewhere, the report makes it clear that the present-day asymmetry of the UK constitution has very much been brought about – or, at the very least greatly extended – by the deliberate design of the devolution settlement: “The creation of the Scottish Parliament was part of a larger policy of devolution instituted by the Labour Government after its election victory in 1997. This was applied in different ways to Scotland, Wales and Northern Ireland . . . . The result is that the United Kingdom now has a quite distinctive form of partial and asymmetric devolution – partial in that there has so far been no devolution to the largest component nation of the UK, England (other than to London); and asymmetric in that devolution differs in nature and extent in each of the nations and territories to which it has been applied.”
Notice the subtle but significant semantic shift here: according to the report, the fact that there has been no national-level devolution for England is not what makes the present devolution settlement asymmetric, but rather this asymmetry is in relation to the differing nature and extent of devolution in each of the nations to which it has been applied. As if the fact that it has not been applied at all to England is not the epitome of the asymmetry and the difference described! But no, this just makes devolution ‘partial’.
On the contrary, it is the partial nature of devolution, in both senses (biased and unfinished), that makes devolution asymmetrical. And the raison d’être for the Calman Commission is to examine ways in which devolution can be extended and enhanced – but for Scotland only, making it by definition more partial (limited to one part of the UK only, and hence one-sided in both senses) and asymmetrical. The work of the Commission is therefore directly and deliberately engaged in making the political Union that is the UK itself more asymmetrical in its structures of governance.
The report deploys a classic rhetorical trick to suggest that this intolerable asymmetry is not just ‘organic’ to the Union (having evolved in some sense naturally over the course of history, rather than having been deliberately engineered at a particular point in history, such as the passing of the 1998 Scotland Act) but that it reflects the distinct needs and aspirations of the different nations of the UK, including England:
“Although the Government’s programme of devolution marked a substantial change from the earlier Westminster-based status quo, it can also be seen within a longstanding tradition in the UK of making constitutional change organically in response to particular pressures, rather than by sweeping reforms. It is a means for the UK to provide varying degrees of regional autonomy to match the differing needs and circumstances of its component parts, without the more fundamental restructuring of the constitution that a move to a fully federal structure would entail.”
The report tries to make out that the fact that there is no distinct national layer of governance for England – that the UK government is also the de facto English government – has evolved organically and historically in this way out of the separate relationships England has had with the other UK nations, and that the present situation is somehow adequate to the needs and wishes of the English people. Indeed, the report goes so far as to suggest that:
“This unique asymmetry is not a problem [my emphasis]. If anything, it is something to be proud of – Scotland’s constitutional arrangements have grown or evolved in response to need, like many other aspects of the constitution of the UK. Their asymmetry reflects the underlying reality: Scotland is a small nation sharing islands, and a Union, with a much larger neighbour. The UK’s territorial constitution reflects the radical asymmetry of its geography and demography. Not only do the smaller nations in the UK each have different levels of decentralised power; but there is no equivalent of devolved institutions for England. The UK Parliament at Westminster is also England’s parliament, and the UK Government is England’s government too.”
There you have it: the ‘UK-is-England-is-the-UK’ moment. Historic, organic, set in stone: the UK parliament is England’s parliament, and the UK government is England’s government; the one perfectly adequate to the other. No difference, no disconnect. A ‘territorial constitution’ that makes the territory of England, in political terms, none other than the (vestigial) unitary UK, while devolution for the ‘nations’ is defined in terms of the degree of political difference and divergence that they, and only they, enjoy from the central power, i.e. effectively from England. No asymmetry of devolution, then, from England’s perspective, because England is one and the same as the UK: the founding symmetry that counterbalances the asymmetry; the centre of the system that assures its continuing unity and coherence even within a framework of increasing divergence from that centre on the part of the periphery. In short, England’s non-differentiation from the UK is what assures the continuing existence and identity (sameness, continuance) of the UK across difference and across history; and it is what prevents the presence of radical asymmetry – the absence of any constituent part and nation of the UK that actually is the UK in any fundamental sense.
No wonder, then, that it is at this point in the report (sections 2.12 to 2.15, to be precise) that it touches upon the only sort of devolution for England that it is prepared to countenance: “It is not for us to discuss where or how power might be decentralised or devolved in England – whether, as has been proposed in the past, to regional level, or by giving more power to local institutions”. Well, by very virtue of describing devolution for England in these terms, the report is prescribing the form it should take: not national but regional or local, as there can by definition not be any devolution and divergence of England as a nation from the UK if the basis for the UK’s supposed unity as analysed above (England’s non-differentiation from the UK) is to be preserved.
Having said this, and to its credit, the report does acknowledge that England is a nation, and that the governance of the UK (and of England as the cornerstone of the UK) cannot remain unchanged in the context of devolution:
“Devolution to Scotland (and Wales and Northern Ireland) created political institutions that exercise many of the powers of central Government for a significant proportion of the UK. That inevitably has meant that the governance of the rest of the UK cannot continue unchanged.
“It is not sufficient for Scots (or indeed Welsh or Northern Ireland citizens) to dismiss this as simply a problem for the English: the internal arrangements of the Union are a matter for all of us. The UK now has a territorial constitution, and it needs, in our view, to be more fully and clearly set out.”
This idea of making a new constitutional statement regarding the basis for the union between the different nations of the UK in the context of devolution has its fullest expression in the Calman Report in the idea of the UK as a ‘social Union’. In particular, this pertains to shared ‘social rights’:
“The most important of these [social rights] are that access to health care and education should be, as now, essentially free and provided at the point of need. And when taxes are shared across the UK they should take account of that need. Our first recommendation is therefore that the Scottish and UK Parliaments should confirm their common understanding of what those rights are, and the responsibilities that go with them.”
This statement, which is indeed the first recommendation the report makes, is implicitly a criticism of the failure of the UK to put these principles into practice, in particular through the inequitable distribution of the UK’s tax revenues via the Barnett Formula that has meant that the other nations have been able to deliver these ‘social rights’ (e.g. free access to expensive life-prolonging drugs, no tuition fees in higher education, free social care for the elderly, etc.) far more comprehensively than has the UK government acting supposedly in the interests of England. The Report notably does not recommend that the Barnett Formula should be scrapped until a fair determination of a more needs-based system for distributing tax revenues in pursuit of these social rights can be made. But in principle, the report recognises that the Barnett Formula does not adequately reflect real social needs across the UK.
Up until now, devolution may well be said in practice to have undermined this social Union that the Report describes as an integral characteristic and purpose for the political Union that is the UK itself. By recommending a stronger commitment to implementing the social Union across the UK, the Report is seeking to strengthen and reaffirm that political Union. However, it is far from self-evident that the Report’s principal recommendations – much greater fiscal autonomy for Scotland; in particular, a substantial reduction in Scotland’s block grant from the UK Treasury linked to an enhanced ability to vary the level of income tax in Scotland – will advance these goals without reform of the Barnett Formula, and without political reform for England.
In essence, Scotland will have even greater freedom to pursue these social objectives, which will still be inequitably cross-subsidised by the English taxpayer. The block grant and the Barnett Formula that underpins it are not being abolished. If the Scottish Government decides not to change the level of income tax that Scots are currently paying, Scotland will get absolutely the same deal as now: about 25% higher per-capita public expenditure. In fact, the Scottish government could, if it chose, now cut its income tax – procuring a significant competitive economic advantage over the rest of the UK – and only have to reduce its public expenditure to the same level as England, thanks to the Barnett consequentials. More likely, the Scottish government will only tinker with tax rates: why rock the boat when it’s worked so well to Scotland’s advantage up till now?
The primary avowed purpose of Calman’s recommendation of greater fiscal autonomy for Scotland is to improve the accountability of the Scottish Parliament for the revenue it raises and spends on the country’s behalf. Fair enough. But what is fundamentally unfair and inequitable – over and above the unequal distribution of public expenditure – is the fact that there is no such accountability on tax and expenditure in England. Decisions on expenditure in departments that now deal with England only (in devolved areas such as education, health and transport) are made by the whole UK parliament and government, including MPs not elected in England. Here we have the asymmetry of devolution that really aggravates people and undermines the standing of the Union in England: if Calman’s recommendations are implemented, Scotland will be able to make its own decisions not just on how to spend the public finances but how to raise them, free from the participation of English MPs; but England has no such freedom, and Scottish MPs support and vote through measures that result in the relative under-funding of England to the deliberate benefit of Scotland.
Yes, as the report says: devolution has indeed succeeded for Scotland and is ‘serving Scotland better’. Further enhancement of Scottish self-government may well result in an even stronger Scotland. But if this is done by continuing to serve England so ill, then it will not result in a stronger Union. England will not for ever sustain asymmetrical devolution by accepting to be governed as the UK and for the UK. But devolution as presently constituted relies on this asymmetry and inequality: allowing Scotland to both have its own cake and eat England’s.
But what happens to a ‘United’ Kingdom built on such uneven foundations when the people of England demand their own slice of the cake and a form of government best suited to their needs?