It’s time for a Balance of Competences Review of the UK

A piece for the LSE's British Politics and Policy Blog. 

Scotland’s vote to remain within the UK has triggered a pressing constitutional debate about the allocation of powers and competences in the UK. Meanwhile, the UK government has been busy reviewing the balance of competences of the EU. With attention now on the imbalances and inconsistencies in the distribution of competences within the UK, the recent EU review might offer lessons for approaching the UK’s constitutional conundrum.

Since July 2012 the UK government has been undertaking an audacious review into UK-EU relations called the ‘Review of the Balance of Competences’. Driven by a belief, especially within the Conservative Party, that the EU has taken too much power (to simplify the more technical term of ‘competences’) from the UK, the review set out to test this claim and publish its findings in 32 evidence based sectoral reports. By doing so the review provides evidence for a bigger political discussion that will follow it, and as such is noted intended to reach any clear political decisions itself. Those political decisions are likely to feed into whether to move forward in a renegotiation of the UK’s membership of the EU, something that could then be followed by an in-out referendum.

The constitutional distribution of powers within the UK – whether to areas such as Scotland or to local government – has been the subject of any number of reports and inquiries. Today, thanks to the Scottish referendum, the need to address the issue is more real than ever before. Indeed, how the UK approaches the issue is likely to either make or break it. This has led to various calls for constitutional conventions and Royal commissions. If the UK government is prepared to invest a great deal of time and effort into the matter of the EU’s balance of competences, should it not do the same for the UK? As historian Timothy Garton-Ash argued in the Guardian: “In what rational universe can [the EU’s balance of competences] be separated from determining the balance of competences inside the UK?” Could then a review of the balance of competences of the UK be undertaken? Does the EU review offer lessons or even perhaps a model – if the time is available – to finding a way to rebalance and sort the current constitutional mess the UK is in?

The Imbalanced Union

The list of problems with the UK’s internal balance of powers is a long and familiar one, one the debate in Scotland has once again thrown a light on. Devolution has been focused on certain areas such as Scotland and Wales, allowing them to develop as more distinct political spaces within the UK, building on existing differences that pre-date devolution. While this is to be welcomed as a move away from the over-concentration of power in Westminster, the lack of any clearly defined UK-wide agendas in health or transport means these areas can seem increasingly detached from the UK. Devolving further powers, as promised in a variety of ways by the main UK parties during the Scottish referendum debate, could form part of a solution to the flawed setup whereby Scotland spends money it has no responsibility for raising. But it then leaves open the problem of what it is that Westminster does for Scotland beyond foreign, defence and some tax and macroeconomic policies. Then there is the West Lothian question of why Scottish MPs can vote on matters that pertain to England while English MPs cannot vote on similar matters for Scotland as they have been devolved to the Scottish Parliament. This all adds to the impression that there is little strategic sense of how the UK as a whole is or should be changing together constitutionally.

Even if the Scots had voted to leave, the imbalances within the remaining UK would not have gone away. Questions already exist about the voting rights of Welsh and Northern Ireland MPs, and the dominance of Greater London over the rest of the UK is an underlying theme the management of which is arguably the most demanding challenge of all. The failure of Labour’s half-hearted attempt at English regionalism in the 2004 North East referendum has stalled further efforts at devolution within England. London’s place in the UK is often crudely taken to mean the government in Whitehall or the political elite in Westminster. This is an unfair description of Britain’s and the EU’s biggest city, the home to more people than live in Scotland and Wales combined, and a region with its own political institutions such as the Mayor, London Assembly, and ‘the City.’ Attempts to fill out the incomplete devolution settlement by granting further powers – perhaps even fully devolved powers – to London would also lead to questions about whether London MPs should be barred from voting on non-London English matters. Not that ‘English laws’ themselves are that clearly discernable, as the McKay Commission found. Proposals for an English Parliament immediately run into questions surrounding the balance of competences: what powers and competences should rest with it, which with local or regional government, and which at UK level.

Greater London’s own current political and administrative setup raises questions about the rather pathetic, emaciated state of local government, especially in England. As the London Finance Commission noted, as a proportion of GDP Canada’s ratio of local and regional spending is nine times higher than that in the UK. In France the ratio is nearly three times greater. On everything from housing, tube lines, planning and schools, Whitehall and Westminster – and especially HM Treasury – call the shots in England, with knock-on effects for the other parts of the UK thanks to the way money is allocated. With local councillors largely powerless, and few people in England with access to any other level of representation, MPs are overwhelmed with local matters. Meanwhile the UK executive that MPs are sent to Westminster to hold to account goes about its business, albeit one where a centralised Whitehall itself is overloaded with work.

This growing inability to offer a UK-wide policy agenda is not a mere dry, technical issue. It means the UK can lack some common political themes or mechanisms to manage relation between its different parts. The United Kingdom is there to serve a purpose: for most UK citizens that purpose will be unclear if Westminster lacks any means of doing anything or behaving as a UK-wide government. The imbalances are felt even in foreign policy, one area Westminster retains powers. A study by the IPPR into Englishness found a strong link between Euroscepticism and English frustration at the imbalanced constitutional status of the UK.

A Balance of Competences Review of the UK?

Solving these imbalances will not be easy. As mentioned, there have been a large number of detailed and insightful reports, each putting forward proposals. There have been repeated calls for constitutional conventions, Royal Commissions or some meeting of representatives from the UK’s various parliaments to hammer out a deal. Whatever is chosen, a means will need to be found to provide an evidence based assessment of the current distribution of powers. The UK Government’s review of the EU’s competences offers some lessons, but nine points need to be taken into account.

First, while the EU review is a complex one, it is made more straightforward thanks to the EU’s competences being set out in its treaties. These treaties provide a constitutional map for the EU that the UK lacks with its uncodified constitution. The EU’s more limited competences also mean the review does not really have to tackle the thorny issue of tax raising powers and allocation of spending, something HM Treasury may be the most unwilling to see change. It has also not been a speedy one, the review having started in July 2012 and expected to conclude in the autumn of 2014. While a UK review could be more compact, we should be under no illusions that the scale would be much larger.

Second, would a UK review be about the effectiveness or the legitimacy of where powers should reside? When the initial findings of the EU review pointed to a balance that is about right for practical and administrative reasons, the findings were dismissed by Eurosceptics as irrelevant to the bigger question of whether they are legitimate.

Third, the EU review works on the assumption that subsidiarity means a competence should rest with Westminster unless it is shown to be necessary that it rests with the EU. Could a UK review take a position that upholds the idea of parliamentary sovereignty whereby all powers rest with Westminster unless proved to be necessarily otherwise? Would Westminster be prepared to consider the idea of sharing powers? The EU review has served as a reminder that Westminster has something of a zero-sum, majoritarian mentality about power: you devolve power within the UK, not share them; you sign over and can later, if necessary, repatriate powers from the EU, not pool them.

Fourth, even if Westminster is willing to share, as the British government may find with the EU, rebalancing competences could require some powers to be taken back while others are given. How willing would Westminster be to devolve further powers, and how willing would areas such as Scotland be to return some powers to Westminster if this was deemed necessary for an effectively functioning UK-wide system? How might this conflict with long-standing areas of devolution in Scotland, such as education and law where administrative devolution existed long before political devolution in 1999 (and some areas predate the union of 1707)? Some in Scotland would be as unwilling to return some powers to Westminster as some in Westminster would be to hand over powers to the EU, even if in both cases evidence was produced that showed this could improve the balance of competences and make for more effective governance.

Fifth, the balance of EU competences could change in the future, necessitating another review. This is hardly unusual. Federal systems such as Germany and the USA have ongoing debates and mechanisms for reviewing what competences should lie where. The UK would need to move from a situation where it has these debates in Scotland or Greater London to one where they are UK-wide and become a standard constitutional procedure.

Sixth, who is to undertake the review and who is it to serve? The EU review is overseen by the Cabinet Office and the FCO and implemented by individual Whitehall departments. It is unlikely a UK government led review would be seen as impartial by some in the UK. The EU review itself has run into this problem. The British government has been keen to present the review as being about EU reform, and not simply about the UK. Despite this it has been spurned by other EU states who view it as being about the UK’s national interests. Even in the UK, Eurosceptics have dismissed it as a government whitewash.

Seventh, who might dominate and shape the work of a UK review? With the EU review a large amount of evidence and opinions have so far been received from businesses, academics, NGOs, charities, lobby groups, lawyers, political activists, political parties, local and devolved government, a few foreign governments and organisations, and some individual UK citizens. It may end up being viewed as one beholden to well-organised groups such as businesses or political activists. The same could happen in a UK review, where some well organised an resourced areas, such as Scotland or London, could dominate the findings.

Eighth, the EU review has been driven in part by growing political pressure from the emergence of UKIP. What political backing or campaigns would push a UK review? So far most such campaigns have been geographically focused on Scotland, Wales, London, and to a lesser and more vague way in England. Thanks to the Scottish referendum there might now be growing pressure for a constitutional convention, but this has yet to grab much public attention or backing although this could emerge.

Ninth, an emerging problem with the EU review is that it shows a disjuncture between popular feelings about what the EU does and what it actually does. The EU review can provide evidence to help counter such views, but the review cannot do this on its own. A UK review could find that some of the distribution of competences within the UK is contrary to popular opinion or opinions held in certain local area or regions. Changing that opinion will then be for whatever follows the review. How this is to be done would be for whatever that is, for example would a UK balance of competences review serve a constitutional convention that is then followed by a referendum? Or would it be for a general election to settle? The referendum could fail or deepen divisions if an area of the UK rejected it. In a UK review this could become more likely if the review was seen as unfair. Getting the balance right from the start will be important, but this could run into a problem of appearing to prejudice the impartiality of a review if it is intended to gather evidence.

A Rebalanced Union?

We should be under no illusions that the UK faces a series of growing problems about its internal distribution of powers. The UK may move towards a federal union, or continue its current quasi-federal arrangements, become a confederation, or perhaps outline a series of arrangements guaranteeing some form of UK-wide commonwealth. Whatever is the end result, a way will need to be found to review and report on the current distribution of competences. While the issue of the EU is important, obsessions about the UK becoming a part of a federal Europe too easily distract from the need to think more carefully about the UK’s own internal balance of competences. The current EU review shows how difficult a similar review – or indeed, any form or review – of the UK would be.

Scotland and the EU: At the Braveheart of Europe or a Little Britain?

A piece published by the DGAP's IP journal.

Will the EU accept a breakaway Scotland seeking to maintain the exclusions granted it in the United Kingdom? While we must not project onto Scotland expectations and hopes borne of frustration with the UK, we must equally be careful not to predict the policies of an independent Scotland based entirely on its current place in the UK.

The debate about Scotland and the EU focuses almost entirely on whether an independent Scotland could become a member of the EUand whether Scottish independence might encourage other breakaway regions in the EU to follow suit. As a result the debate largely overlooks three equally important questions: First, what would it mean for the EU to agree to the Scottish government’s aim for Scotland to keep the same terms of membership as the UK with assorted opt-outs and exclusions? This leads to a second question of how an independent Scotland might behave as a EU member. Finally, almost entirely overlooked with rare exceptions, is what Scottish independence could mean for the remaining UK’s relations with the EU.

An independent Scotland would be a positive, pro-European country determined to take its place at the heart of Europe. This was the message Scotland’s First Minister Alex Salmond delivered at the College of Europe in April. Britain’s leading euroskeptic party, UKIP, has traditionally lacked much support in Scotland. Scottish politics and political parties have tended to stay clear of the more hostile euroskeptic debate prevalent elsewhere in Britain. Remaining in the EU is seen as an integral part of the idea of an independent Scotland, a country long accustomed to playing a smaller part in a larger union. However, while an independent Scotland would lack a euroskepticism that wants to leave the EU, it could place itself in the slow lane of a multispeed Europe and by doing so make such a Europe more likely.

More often than not, Scottish opinion on the EU – as with so many other issues – is measured against opinion elsewhere in the UK. This creates a simplistic view of pro-European Scotland versus euroskeptic England when opinion varies across the UK – and within England. Polling shows voters in London – the UK’s economic heart and home to a population equal to that of Scotland and Wales combined (one-third of whom were born overseas) – are just as likely as the Scots to support EU membership. Polling also shows areas such assouthwestern and northwestern England are less hostile to continued EU membership. England is undeniably home to some of the strongest levels of support for UK withdrawal, a development seenincreasingly in connection with the rise of English nationalism. Then again, Wales – that other Celtic nation with a devolved government – has also seen growing support for UKIP.

Also, opinion in Scotland should not be taken for granted. When the UK held a referendum on whether to remain in the then EEC in 1975, the Scots were amongst the least enthusiastic with only 58.4 percentvoting to stay in compared to a UK average of 67.2 percent, and an England average of 68.7 percent. Today polling shows support in Scotland for staying in the EU hovers between 53-61 percent, not far from what it was in 1975.

Even the differences between England and Scotland can be exaggerated. Analysis from “What Scotland Thinks” shows the proportion who would vote to leave the EU is six points lower in Scotland than in England. This is a difference, but as John Curtice, professor of politics at Strathclyde University, argues, it is not enough to suggest a groundswell of support for the EU in Scotland. For example, the euro is just as toxic in Scotland as it is in England, with one recent poll finding only four percent of Scots support the idea of an independent Scotland joining the euro. This is one of the reasons why Scottish nationalists are keener to retain a currency union with the rest of the UK than go near the euro.

There is also evidence that Scottish opinion on Europe might be hardening. In the 2014 European Parliament elections UKIP secured their first Scottish MEP. Despite this success UKIP’s overall support in Scotland might be relatively weak, but one wonders how a left-wing euroskepticism – one that attacks the free market, deregulatory, austerity agenda that dominates the EU – would be received in Scotland where left-of center politics tends to be more popular. The Scots might not want to leave the EU (although a majority support the idea of the UK holding a referendum on the issue), but they don’t currently seem in a rush to be at the heart of it.

It is therefore no surprise that the Scottish government has put some limits on its aspirations for an independent Scotland in the EU. “Scotland’s Future: Your guide to an independent Scotland,” the Scottish National Party (SNP) government’s manifesto, makes clear that in joining the EU an independent Scotland would seek the UK’s exemptions from the euro, Schengen, and some justice and home affairs legislation. Edinburgh also expects to secure Scotland’s share of Britain’s budgetary rebate that is much resented elsewhere in the EU. The Scottish government argues it would be impractical to reopen budget negotiations. But as others have made clear, the rest of the EU will be quick to try and ditch a rebate that could see them paying Scotland €354 million a year. The twist for Scotland is that if it does not secure its share of the UK’s rebate then it too will have to pay a €55 million share of the rebate to the remaining UK. More importantly, for some in the EU scrapping Scotland’s share of the rebate will be a way of limiting the potential for Scottish independence to spread a culture of opt-outs and exclusions in the EU.

But we should be careful before concluding that Scotland is destined to play the role of a Little Britain in Europe. Even as a part of the UK, Scotland has developed a distinct approach. Long accustomed to sharing its sovereignty within a larger union, debates in Scottish politics lack the absolutism that often dominates Westminster’s debates about parliamentary sovereignty and the EU. Despite the UK being one of the most centralized systems of government in the developed world, Scotland has long maintained distinct political, social, and economic institutions.

In pushing for independence the SNP, once opposed to the EU, has long since embraced the idea of EU membership and ideas of shared sovereignty, even if the latter is more vividly demonstrated in their desire to share the pound sterling with the rest of the UK than the euro. Scotland’s political parties lack the deep divisions over Europe that have plagued parties at a UK level. On immigration, Scotland’s need for people and its sparsely populated spaces has meant a less unpleasant debate about immigration compared to that of England (although Scottish opinion on immigration may be hardening).

An independent Scotland would also likely set out to distance itself from the UK, perhaps developing distinct policies over energy, fisheries, or the environment. In England, Europe has become a source of resentment, something that holds Britain – or England – back. Any politics of resentment in Scotland tend to be toward the UK and Westminster. The EU and Brussels could eventually take their place in an independent Scotland, but currently the EU is seen more as a way forward and part of a fresh start. This would be helped by the tone of Scotland’s independence referendum debate, which has been more wide-ranging than the narrow one of trade and sovereignty we can expect should the UK ever hold an in-out referendum on the EU.

Independence would also mean that as a smaller state, Scotland cannot expect to wield the same degree of power and weight as the UK. The UK struggles to balance a desire to lead Europe in the world with unease at leading in Europe. Scotland’s focus will largely be on leading in Europe. Public opinion could soften thanks to a political debate that loses Westminster’s more negative tone. Relations with the EU could also develop if relations with the remaining UK become difficult, for example over sharing the pound sterling. Scotland may give up its share of the budgetary rebate if membership negotiations demand it. It may also make a written commitment to aspiring to join the euro in the long run, although any such agreement will not be made on a Scotland-Brussels basis but emerge from ongoing tensions between the eurozone (i.e. Germany) and other non-eurozone members committed to joining such as Poland and Sweden. These states will have clear ideas and wordings in mind for what Scotland should commit to.

The question then arises whether public opinion can keep pace with such diplomatic necessities. Scotland could be less antagonistic diplomatically, but still be home to a people uneasy with the idea of further integration. Supporters of Scottish independence often look to Scandinavia as a model, and Scotland may find it fits into the varying degrees of membership and cooperation with European organizations. Norway, for instance, is part of NATO and the Schengen area, outside the EU but deeply bound by it; Sweden stands outside NATO, but is part of the EU, while not using the euro, but required to join eventually; Finland, outside NATO, is a member of both the EU and the euro. Scotland could take an approach similar to Denmark, a country outside the euro area but deeply connected with the EU, with mainstream political parties strongly pro-European and popular support lukewarm.

However, Edinburgh might also be drawn back to a UK approach of seeking opt-outs, especially if the remaining UK stays in the EU on the basis of a new relationship that grants it more exemptions. Scotland might, like some other EU member states have done in the past, hide its own unease about the EU behind London’s willingness to veto or say no to EU proposals.

Too often we have heard politicians from the UK promising to put their country at the heart of Europe only then to see them failing to do so. Salmond’s commitment to the heart will be popular with those who think that in Scotland they have found the pro-European part of the UK. But we should be careful not to project onto Scotland expectations and hopes borne of frustration with the UK. Equally we should be careful not to predict the policies of an independent Scotland based entirely on its current place in the UK.

The rest of the EU should also remember they will play their part in shaping Scotland’s attitude. A difficult membership process would poison relations. An independent Scotland will, like all other states – including the UK – play an active role in Europe. But as with other states, there will be distinct limits to this. Scotland’s limits couldreinforce of the idea of a multispeed Europe, one where Scotland positions itself in one of the slower lanes, even if it is slightly faster lane than that chosen by the remaining UK.

If Scotland leaves the UK, will England leave the EU?

A recent piece for E!Sharp on the forthcoming Scottish referendum. 

If Scotland leaves the UK, will England leavethe EU?

Recent debates about the future of Scotland’s place in the UK and the UK’s future in the EU have highlighted the less sceptical view the Scots take of EU membership. As the FT’s Philip Stephens warned: ‘If Britain leaves Europe, Scotland leaves Britain.’ So what happens if in September’s referendum on Scottish independence the Scots vote to leave the UK? Would a Scottish exit make the remaining peoples of the UK – and by this the focus will be largely on the English – think twice about exiting the EU, or embolden them to push ahead?

While we should not resign ourselves to the idea the UK is destined to leave, the loss of Scotland would mean the loss of a section of the British population more likely to vote in favour of remaining within the EU. London and Wales are also highly likely to vote to stay in, and sometimes polling suggests other areas of England outside London might also support continued membership. However, these may be unable to tip the balance against an out vote, or change a largely one-sided debate that favours Euroscepticism. It is also worth remembering that even the Scottish, Londoners and Welsh are not overwhelmingly pro-European. Scotland itself has seen growing levels of Euroscepticism. Support for membership hovers between 53-61%, not far removed from the 58% level of support the Scots registered in the 1975 UK-wide referendum on membership of the then EEC. This was then the second lowest regional vote, below the UK average of 67%. Recent polling revealed only 4% of Scots want an independent Scotland to join the Euro. And the Scottish Government made clear in ‘Scotland’s Future: Your guide to an independent Scotland’ that in joining the EU an independent Scotland would seek to retain the UK’s opt-outs from the Euro, Schengen and some justice and home affairs legislation. They also aim to retain Scotland’s €354 million share of the British budgetary rebate that is deeply resented elsewhere in the EU. Salmond himself threatened the EU with retaliation on fisheries if Scotland struggled to secure EU membership. An independent Scotland might be keener to remain a member of the EU, take a less antagonistic line than the UK, and could set out to distance itself significantly from the UK’s Eurosceptic reputation. But it currently looks set to start out as a member that sits in the slow-lane of a multi-speed Europe. Nevertheless, remove Scotland from the numbers and the remaining UK tips further in favour of those who support getting out altogether.

Scotland’s decision could embolden those in England who believe a union with Europe can be broken just as easily, if not more so. Scotland and England have been bound together for over three hundred years. A shared crown and some religious, social, trading and military links go back much further. It is a union that has been bloodied by innumerable wars that have shaped the world, including one for shared survival still within the living memory of the oldest generation and recalled in memorials throughout the UK. The union has also been bound together by a shared politics, currency, economics, laws, welfare, social policies, language, and popular culture. These might have frayed and varied in application across the UK, but they are more substantial than those that bind the EU together. If the Scots are prepared to break such a union then expect English Eurosceptics to ask why England cannot be given a similar (and from their perspective, long overdue) say on whether to break a union with the EU that is only forty years old. That Scottish nationalists would have won a vote most polling had long said was unwinnable will further embolden English Eurosceptics. To this must be added growing levels of Euroscepticism throughout the EU that have added to feelings in Britain that a vote is necessary and a win possible. If Scotland finds it difficult to get into the EU then this will provoke a backlash in Scotland, the remaining UK and from across the EU. A Scottish vote to leave the UK should be a reminder that political arrangements that seem permanent can change, something the EU should not think itself exempt from.

A Scottish exit from the UK will also not settle internal political issues within the UK that help fuel Euroscepticism and support for parties such as UKIP. Imbalances and divisions between the UK’s different regions and nations have become increasingly contentious and play a part in Euroscepticism. Scotland’s exit would remove one of these areas, but not solve the problem. The issue of London would remain unsettled. Scotland’s First Minister, Alex Salmond, recently called London ‘the Dark Star,’ and Vince Cable, the UK’s Business Secretary, described it as a ‘giant suction machine draining the life out of the rest of the country.’ Without Scotland London will loom even larger over the remaining UK. Nor will it settle tensions over immigration. Take away Scotland, Wales and Northern Ireland, with their beautiful if sparsely populated large areas such as the Scottish Highlands, and England becomes Europe’s most densely populated country, ahead of the Netherlands. England’s population of 53 million is growing, with the UK predicted to close with Germany by the middle of the century. In some areas of England there is a growing level of frustration and anger over immigration, crowded services, inadequate infrastructure, a perception that areas such as Scotland and London get preferential treatment, and a declining faith in the overall UK political system. As research by the IPPR into English nationalism found, the more English a person is the more Eurosceptic they are likely to be. The outcome, as Ben Wellings recently argued, is that: ‘Euroscepticism is the most formed-up expression of English grievance and an ideology that provides the political content for English nationalism.’

It may be that the shock of losing the Scots and negotiating a new relationship with them could lead enough people in England to pause and reflect on whether an exit from the EU is a good idea. The complexity of a Scottish exit and Scotland’s continued interdependence with the remaining UK could reveal the limits of both Scottish sovereignty and the likely limits of English sovereignty outside the EU. Without Scotland the remaining UK would undergo another reduction in economic and military power prompting some reassessment of British-English power and national identity. This could serve as part of a larger critical juncture in England’s development, an event akin to the disaster of Suez. It would trigger a reappraisal of British-English identity and the country’s place in the world and Europe. The outcome could be a greater acceptance of the EU.

Such hopes have long been present in Britain’s debate about its relationship with the EU, and recent debates have shown no signs of this changing. At a time when a core part of the UK is preparing to vote on whether to leave the UK, some of Westminster’s political elite instead obsess about the EU as the greatest threat to the UK’s future. Europe has for too long been used as a source of resentment. Europe, Eurosceptics argue, holds Britain – or England – back. In Scotland this politics of resentment is directed at the UK or Westminster. With or without Scotland it will not be easy for some in England to give up this deceptively simple argument. And the Scots themselves may find they are indeed held back by England. A British exit from the EU deeply worries Ireland, heavily linked as it is to the UK. For Scotland, independent or not, there would similarly be no easy escape.