Evidence from Professor Vernon Bogdanor 7 December 2015

BK: We’ll kick off, if we can. Thank you very much for coming to present to us this afternoon. I’d like to start with quite an open question. You wrote this very excellent report before the election, which set out the crisis in the constitution. If you were taking stock now, post the election, what would you say? Would you feel more or less optimistic?

VB: I have taken stock and there is now a second edition of my pamphlet, `The Crisis of the Constitution’, published in February 2016. I am more optimistic to the extent that there is now a broad general policy of devolution and decentralisation in England which I welcome. But there are some fundamental problems that have not been fully confronted. I still hold very strongly to the view that to confront them, we need, if not a constitution, at least a charter, laying out what policy areas are suitable for devolution and decentralisation, and which need to remain at the centre. That is crucial not just for devolution in England, but also for devolution in the non-English parts of the . We do need a clear criterion of what is suitable for devolution and decentralisation and what is not.

BK: One of the phrases you use in this document is that ‘asymmetry is the price we pay for the Union’ which is a very striking phrase.

VB: There has been a lot of loose talk about a federal system for Britain. Federalism could take two alternative forms, first a Parliament in England, or second regional authorities in England with roughly similar powers to those of the Scottish Parliament or Welsh Assembly. Now, as to the first, an English Parliament does have some support, but not, I believe, majority support. I know of no federal system in which 85% of the country live in one of the units. I believe it would annoy the non-English people in the UK by replicating English dominance. It would be a bureaucratic nightmare if one imagines an English Parliament sitting in, shall we say, Bristol or Newcastle, and the various conflicts of jurisdiction that would occur with a United Kingdom Parliament sitting in Westminster.

I believe that the last thing the public want is another set of politicians and officials staffing an English Parliament. said once, ‘If the answer is more politicians, you’re asking the wrong question.’ Now, as regards a regional system, that would not solve the West Lothian question because no one proposes regional governments with legislative powers, so that there would be different laws in Newcastle from those in Bristol. Even with the sort of scheme that John Prescott proposed in 2004 for the North East, the area thought to be most sympathetic to devolution, no one was particularly interested. I think the trouble is that, in England, regions do not attract the kind of emotional allegiance as do Scotland, Northern Ireland and , or regions on the continent. If you were to ask somebody in Bristol or Canterbury what region they belong to, they would look at you rather oddly and say they live in Canterbury which is a town, and in Kent, which is a county. They do not think of themselves as living in a region. So I do not believe that regional devolution is really an option. This means that federalism in either form is not really suitable for England. The right approach is that adopted by the government of combining local authorities or in some cases devolving to unitary local authorities. Asymmetry is the price we pay for a union. England is the naturally dominant nation with 85% of the country, and 85% of the MPs. Anything it wants it can get. The problem is to reconcile non-English people, a permanent minority, to the United Kingdom. We refused to give devolution in the form of Home Rule to Ireland, in the late 19th century with disastrous results. We failed to keep Ireland within the United Kingdom and of course that exacerbated the community problem in Northern Ireland. We do not have a community problem in Scotland, but I hope we do not repeat the mistake there that we made with Ireland. We must do all we can to keep Scotland within the United Kingdom. That is what I mean by saying asymmetry is the price we pay for the Union.

BK: That’s very clear. Introduce yourselves as you ask a question. Barbara?

BJ: I’m from the . I’m the former leader of Bristol. I did quite a lot of work with core cities on the current proposals. I hear what you say about a federal system and there are two points I’d like to make. On the one, there’s a very strong belief that unless we have something that much more resembles a federal system, the union will cease to exist and Scotland will become independent. On the point you made about regional assemblies, I take the point that people don’t necessarily have local allegiance, but the big problem with the regional assemblies was that they had no powers. Do you not think if powers were to be devolved to a much greater degree there would be much more interest in it? If you take places like Cornwall, I was in the South West, which I think is one of the areas where everyone argued about whether they were in it or not, but the need for partnership in terms of equalisation of funding and resources was really important. If you have no powers, there’s no obligation to cooperate or form any sort of local government.

VB: In Cornwall, there will be devolution to the county, rather than to the South West as a region. I do not wholly agree that the main reason for the rejection of devolution in the North East was the inadequacy of the powers proposed. I believe there was a general disinclination to support another layer of politicians and officials. It is worth saying perhaps that devolution does not necessarily mean decentralisation. In Scotland, the government has centralised. It has for example centralised the police force. It is up to the devolved government whether there is decentralisation or not. Decentralisation is not a necessary concomitant of devolution. As regards the Scottish question, in general, I believe that the problem is as much social and economic as constitutional, and it is a problem that England faces as much as Scotland. The problem is that of skills. If one looks at the outcome of the referendum in Scotland in 2014, the strongest yes areas were Labour voting areas such as Strathclyde and Dundee. SNP middle class areas such as Perthshire, Angus and Aberdeenshire voted no. The skills problem also gives rise to the UKIP vote in England. It is the problem facing those who are left behind by globalisation. Those people are saying, both in England and in Scotland, that government is not doing very much for them. They are also objecting to immigration which, so they believe, keeps wages low.

BJ: I think the point I was making was it’s not necessarily local identity that is generating the wish for devolution. It is the whole issue of self-interest, lack of funding, the idea that everything done at arm’s length, whether regeneration or investment. People want more local economic leadership and the ability to prosper within their own area, whatever that might be.

VB: I agree with that. There is a huge imbalance between London and the rest of the country. The further you go from London the more strongly it is felt.

BK: The reasons for devolution vary. In Scotland, it’s the notion of national identity. In other parts of England it’s about economic balance and tackling social issues. There are different drivers.

VB: Absolutely, and I think there is a sense of alienation, a feeling that people in London do not understand the problems of, shall we say, Cornwall, Newcastle, Liverpool or Manchester. I think that is felt quite strongly. BK: What’s your sense about the mayor? You say you were supportive of it at the time.

VB: We need clarity on when a mayor is needed, and when it isn’t. Cornwall, which is a unitary authority, is not required to have a mayor as long as it has suitable arrangements for accountability i.e. the council leader model. I do wonder under what circumstances a mayor is required and when a mayor is not required. Directly elected mayors were rejected by many of the northern cities in 2011. One may argue that to impose a mayor when the voters do not want it is itself a centralising measure. It is being said that local government can have whatever structure it likes as long as it is one of which central government approves! I would like to know, and I think the government should be clearer, about the circumstances under which a directly elected mayor is required. In addition, it is important to know what the scrutiny arrangements are to be. In Greater Manchester, there seems no equivalent to the Greater London Assembly. Combined authorities can make accountability very difficult. A directly elected mayor has a great deal of power. It is important that he or she be accountable.

BK: It’s combined authorities that hold the mayors to account.

VB: Combined authorities are some degrees away from the voter. One does not vote for a combined authority.

BK: They are part of the executive as well.

VB: Indeed.

DW: JB Priestley said that decentralisation by centralisation is a contradiction, you agree?

VB: In a way it is, but perhaps there is no other way that we can get it under current circumstances. The important thing is that the government makes clear the principles under which it is operating. I would like to see a constitution which limits central government power, but we are a long way away from that. We could begin with a charter laying down the principles behind devolution. Devolution has been particularly fraught in Wales where the principles seem less coherent than in Scotland and Northern Ireland.. This is why some matters from the Welsh Assembly have come to the Supreme Court for settlement because the dividing line beween what is devolved and what is not is not very clear. I think we might begin with a charter laying down principles. Although it is true that Parliament can override them, and this means that central government can override them, it is more difficult to do that when there is a Charter laying down principles.

talking about principles, are you talking about portfolios and subject areas, but is not the most basic principle the question of political aspiration? Political aspiration in Scotland and Wales has been non-Conservative, whereas in England it’s overwhelmingly Conservative. How can you let those aspirations grow?

VB: It is absolutely right that on certain matters that pertain to Scotland and Wales, people there should be able to make their own decisions. What are the matters that pertain to Scotland and Wales only? I have no objection if Wales decides on free prescriptions charges, or Scotland free university places, but suppose that the Scottish Government were to say, ‘We are strapped for cash at the moment, we want to charge for a visit to the doctor.’ Is this something that should be within the hands of the Scottish Parliament, or the hands of Westminster? There are some fundamental matters which need to remain at the centre to maintain the social union. Aneurin Bevan, who was, of course, Welsh, did not want to create a separate Welsh health service because he said that one’s need for healthcare does not depend on where one lives but on how ill one is. Should pension rates, for example, be different in parts of the country? DW: You could say that’s equality valid across the whole of Europe. Surely the social aspiration should be what drives the thing more than just geographic or historical factors. If those vary so much, one has to have a mechanism. Defence and foreign affairs, those clearly would be reserve matters for any system but then if Scotland wants to add a certain amount of taxation to get a certain amount more social benefit, why should anyone else be concerned?

VB: Europe, contrary to what some nationalists suggest, is highly centralising. For example, in the devolution settlement for Scotland, agriculture is devolved. But 98% of agricultural policy is decided at European level so that the devolution of agriculture does not really mean anything. The greater the powers at European level, the less the powers both at national and devolved level. On the question of aspirations and a different tax mix, I would reluctantly agree with you. There need to be limits to the devolution of taxing powers. I am very worried about devolving income tax to Scotland because it is the main tax that people pay, and it means that Scottish MPs at Westminster no longer have responsibility for that main tax. What, therefore, are they doing there? We need to be much clearer on what is suitable for devolution and what is not.

BK: Whatever your principles might be, the NHS stays free at the point of use?

VB: I believe it is a fundamental principle of the welfare state that the benefits one receives depend on one’s needs and not on where one lives. Before the war, before we had a national system, the health service was broadly in the hands of local authorities. One of the worries that people had about that was that you would get a better service in Surrey than you would say, in Burnley, because Surrey could afford to pay doctors more. I think most of us believe that was unfair. That was why Bevan insisted on a National Health Service. That does not mean that some parts of the NHS cannot be devolved, but we need to consider how much we can devolve. I am not sure that the government has really thought this through. Lady Williams, the minister in charge of the legislation in the Lords, has said that the legislation yields not so much devolution but partnership. Does that mean that the government is only delegating to local authorities the power to implement policies decided at the centre?. Real devolution means giving other bodies the power to do things central government may not want you to do. One example which has come up in Kent is that of building a new grammar school. Is that allowed? The government may be against it, but perhaps the local people want it, What about charging for a visit to the doctor?

BK: That’s true both in terms of devolved nations and devolved regions.

VB: The principles are the same.

JK: I’m the former leader of Brighton and Hove City Council. The public are well behind on this conversation about what the fundamental principles are as well. I have many residents saying it’s a fundamental principle they can park their car anywhere in the city for free, but not all of us agree. You’ve set out a programme for what would be ideal, you mention maybe a charter as a midway point. From a pragmatic point of view it doesn’t seem imminent that these things are going to happen because of the politics of the day. It’s the same for proportional representation and so on. How long could you argue a process of change should take? Should we be setting out a 10-year programme of change to get from where we are to where we should be? What should come first?

VB: The question of the charter is very important to clarify the principles behind devolution – what has to remain at the centre and what is suitable for devolution. I do not think that would take a long time to decide. But the problem of renewing local government is a more long-term problem. It needs a great deal of thought and an alteration of popular attitudes, because people do often say when something goes wrong locally, ‘What is the government going to do about it?’ They said that about the alleged infiltration of schools in Birmingham by Islamic militants. That is fundamentally the reason why government has become more centralist. It is not due solely to wicked politicians seeking power. It is we, the people, who have caused it. The trend towards centralisation in education began in the 1970s when James Callaghan famously called for a great debate on education. That led to centralisation. The reason for that was that many parents were saying that their Johnny was not learning to read and write properly at school. They asked - what is the government going to do about it? They were not mollified by being told, ‘See your local education officer or your councillor.’ They said that the government had a responsibility to improve educational standards. Politicians, if they are held responsible, will take the power to match these responsibilities. That is why we have centralisation in education. Were are now inventing regional commissions to replace the local authority role in education. Health and skills and social care are being devolved, but education, a key function of county councils, is being centralised. That no doubt is anomalous, but it resulted from public dissatisfaction with how schools were operating.

BK: Just to build a bit on what Jason said. There are two ways of thinking, one is process and one is (?). If you were to read your report, you’d say we were in a bit of a mess constitutionally. There seem to be so many interconnected problems in the way we work as a country. What would you start with?

VB: Drawing up a charter of where we are and what the principles are behind where we are. Only when we have got that can we move forward to where we want to be.

BK: What were on the list of changes? Would you put that at the front?

VB: There are reasons to believe that proportional representation would increase turn out, I believe that it has done so in Scotland. One of the problems that local government faces is that there are too many one party councils. The Electoral Reform Society declared in 2014 that there were 21 million people living under 104 councils where one party had over 75% of the seats without getting anywhere near 75% of the vote. That does not happen to the same extent at Westminster. A one party council is not good for democracy. It is a commonplace that all governments benefit from effective scrutiny. With a good system of PR, such as the single transferable vote, electors could choose between councillors of their favourite party. Now, when there is a national swing against a particular party, the good councillors are defeated along with the bad. If you have a multi member system, you can say, ‘I am unhappy with the Conservative party but Bloggs, a Conservative councillor, has been good, so I will give him a preference but my other preferences will go to Labour.’ The single transferable vote builds a primary election into a local election.

JK: Brighton has been in overall control for thirteen years now, and I think it benefits from the challenge that anyone can be in charge next time. On the charter, people saying, ‘The government must do something,’ is interesting. Is it because there’s a clear written delineation say, between the government and the provinces in Canada or the Federal Government and the states in Germany that when that happens, a member of a national government can say, ‘Clearly that’s not our responsibility. That’s down to the state,’ because it’s so demarcated. Do you think a charter would change that culture? The media are in that culture and Whitehall are in that culture now, aren’t they? Do we need to change the culture before they agree to the charter?

VB: This is the crucial point. The advantage of decentralisation and devolution is that you build a sense of local patriotism and pride in what is happening. I used to live in Oxfordshire where people said, ‘Oxfordshire is very cash strapped, we do not get much from central government, but nevertheless we have done wonders with our local schools.’ People in Berkshire no doubt would say, ‘We are very cash strapped, we are much worse off than Oxfordshire, but we’ve done wonders with our local schools.’ If you compare that with a national service like the health service, like the old nationalised industries, they institutionalised grumbling because if they said that things were going well, the government would shift the budget to some other service. Grumbling is not good for the morale of a service. That is the basic argument for decentralisation. We have a strongly centralist culture, but it may be that devolution has begun to undermine it in Scotland. I believe that in Scotland people are beginning to blame the Scottish government, not Westminster, for faults in Scottish services. That is what we need, a sense of local responsibility. I believe that a charter would help to achieve that, so that people would say ‘It’s not the government that is to blame, it is our local council.’ Perhaps the same may happen in England. People might start to hold Greater Manchester or Cornwall responsible rather than central government.

BJ: For example, Cornwall, which is extremely poor, has great aspirations for devolution. How do you see the equalisation (inaudible) makes it much more difficult to devolve?

VB: You have to have an equalisation mechanism. I think it is made more difficult by otherwise beneficial changes that the government is introducing – the removal of central grant by 2020 so that councils rely solely on Council Tax and Business Rates. Westminster council does very well on business rates. Cornwall, I suspect, not very well. Cornwall can try to be more competitive by lowering its business rate, but not enough to make up the difference. So, you will need a strong equalisation mechanism. I think you’re right.

BK: It already exists with top up tariffs.

GR: I’m a Member of Parliament for East Belfast. Apologies for nipping out when you joined us. You’ve mentioned a charter a number of times as a vehicle through which we would achieve sensible or workable constitutional change. Could I invite you to give your reflections on amending standing orders?

VB: I have written on that in the second edition of my pamphlet. I believe that EVEL creates an appalling precedent because one could in future amend the standing orders to deprive MPs whom one does not like of powers. Suppose you say that UKIP MPs, should not be allowed to vote on European Union matters. EVEL is a major and radical constitutional change which solves an almost non-existent problem because the amount of legislation affected by this, the number of bills is very small. The worst thing of all, which I think has not been noticed, is that, for the first time, the Speaker is being asked to adjudicate on a question of law. The question of whether a bill is a money bill or not is not a matter of law. But the question of whether a bill relates only to England or is within the competence of one of the devolved legislatures is a question of law and indeed some cases from the Welsh National Assembly have gone to the Supreme Court as to whether the issues lie within the competence of the Welsh Assembly. These matters are not for a layman such as the Speaker. Despite Article IX of the Bill of Rights, I think there could be an appeal against the Speaker’s judgment. EVEL is a pointless reform which will have little practical effect and sets a dangerous precedent. Harold Wilson vaguely threatened to do something similar in the 1960s when he had a small majority and when Northern Ireland MPs, almost all Unionist, voted with the Conservatives in the Commons. I believe that EVEL, at least in the form in which the government has proposed it, is absolutely wrong.

GR: Thank you for that. I think our friends in the House of Lords have felt similar threats for constitutional change following the vote in the last month or two.

VB: In Northern Ireland, both now and in the earlier period of devolution - the old Stormont system - people did hold the decentralist view that if something went wrong in a local service, they would blame the government of Northern Ireland rather than Westminster. I think something similar is happening in Scotland. GR: I wondered if I could just pick up on a point in your, what I assume now to be the first edition of your pamphlet. The Bill of Rights, the prospect of a UK Bill of Rights, and the impact, particularly for Northern Ireland and Scotland in relation to the commitment for the European Charter of Human Rights with the Human Rights Act in the devolved settlements Belfast agreement. Have you seen the exchanges in Parliament from government to indicate there would be no requirement for legislative consent notion and that to proceed with the Bill of Rights as they outlined would not necessarily alter the agreements of 1998?

VB: I strengthen my argument I hope in the second edition. The Human Rights Act is incorporated into the devolution settlement in Scotland, Wales and Northern Ireland, but in Northern Ireland, it is also part of an international treaty. In response to the agreement by the British Government to incorporate the Human Rights Act into Northern Ireland and seek additional rights in the province, in response to that, the Irish government altered its constitution to repeal the claim to Northern Ireland that had been there since 1937. Although a government can legislate to break an international treaty, I think it would be seen as bad faith to alter the Human Rights Act insofar as it affects Northern Ireland without the consent of the government of Northern Ireland, let alone the consent of both communities in Northern Ireland. By convention, important issues in Northern Ireland require the consent of both communities. I think that to alter the Human Rights Act raises grave problems for the union both in Scotland and in Northern Ireland.

BK: Is it a big issue being able to deliver this change?

VB: There could be an English Bill of Rights. So you would have different standards in England, Scotland, Wales and Northern Ireland. An English Bill of Rights would not be accepted by the SNP. The Irish Government would regard it as a breach of faith. Repeal of the Human Rights Act would not help to bring the country together. It could have the opposite effect.

BK: Going back to your point about a charter and principles. Is the guiding principle not to have definite Human Rights?

VB: One cannot really alter the Human Rights Act without the consent of the devolved bodies. My own private speculation is that the government is trying to find ways to get off the hook because it has realised that its policy is not practical.

BJ: Would the charter you’re talking about address some of the difficulties about the way the government is going at the moment, that it’s only the leaders that are somewhat distant from the people through lack of engagement and direct culpability? Also the issue of peripheral areas, which on an ad hoc basis where people are inclined to give authorities certain bits of the country are left out of it.

VB: I would like the charter to be a statement of where we are now and what principles, if any, lie behind where we are now. As you say, there are huge problems, in particular that of accountability. Also what will happen in areas where there are no real city regions or areas without unitary local govenment? They may well want devolution for themselves. The policy has been adopted in a pragmatic and ad hoc manner. I do not criticise that. If one tried to legislatve for the whole country at once, little progress would be made. But there are problems that need to be thought about.

DW: There has been argument about whether the charter should be a commission. We’ve talked about a convention. There’s a fairly tight timescale for a convention. Do you believe a convention would be an appropriate body to draw up the specification of the charter, which is a pretty important question of how the charter moves forward? VB: The charter could be drawn up by Parliamentarians and representatives of the devolved bodies. There is a case which I believe is very compelling for a constitution to be preceded by a constitutional convention. As I say in my pamphlet, people in England have only just begun to think about constitutional issues. Some kind of Royal Commission of the great and the good needs to precede a constitutional convention so that one can draw up an agenda. The Royal Commission would travel the country, taking evidence, and seeing what issues people would like to be considered by the convention. But the charter cannot wait for that. In addition, the Welsh settlement does seem to me particularly incoherent.

DW: You’ve mentioned that three times now. The argument is that the models in Northern Ireland and Scotland are starting to appear in the way that the Wales bill as drafted is doing that. It goes around the same square the other way and arrives at the some point. There has to be some clear principle about what is reserved and not reserved before we can come to the model, whether that’s a Scottish model or a Welsh model that will work without challenging the courts. Does that bring us back where we were?

VB: I agree, there needs to be a basic principle in Wales. It is not just a question of moving from a transferred powers model to a reserve powers model. The original settlement in Wales just took bits of secondary legislation and devolved them. One feels that since then the Wales Office just asked other departments what they are prepared to let go,. That is not the right way to do it.

DW: Exactly how we started in 1964.

JK: Why doesn’t Wales take on the same powers as Scotland?

DW: Is the existence of Scottish law making the models different?

VB: There is obviously a case for creating a Welsh judicature now.

BK: We’re going to have to close very soon.

JK: The devolved nations have built up a body of politicians and experts able to think through some of these issues of reserve and transferred power. Do you think local government are ready for those kinds of debates? Do they need to skill up? Are there recommendations we should be making to local government to change their workforce, their skill base?

VB: I don’t think so, Local government leaders have thought about this for a long time and argued for devolution and decentralisation. We have already got some impressive local government leaders in this country. The deal with Manchester came in part as a result of the initiative of local government.

BK: You could argue that this country has muddled along for a long time. Could we just not muddle on for longer?

VB: I am rather against that!. We do not live any more in a deferential society. People want to know how they are governed and the powers of the various bodies that govern them. We have had a plethora of constitutional changes since 1997. We ought to have a statement of where we are precisely, and the principles on which our system is based. If we had a Rip Van Winkle who had gone to sleep in 1997 he would not recognise it now, since we have altered our system of government so rapidly and so radically.

BK: That’s very helpful, thank you.