Bingham Devolution Report Prelims 13/5/15 09:38 Page i A Constitutional Crossroads: Ways Forward for the United Kingdom Bingham Devolution Report Prelims 13/5/15 09:38 Page ii Bingham Devolution Report Prelims 13/5/15 12:15 Page iii A Constitutional Crossroads Ways Forward for the United Kingdom May 2015 Bingham Devolution Report Prelims 13/5/15 09:38 Page iv Published and distributed by The British Institute of International and Comparative Law Charles Clore House, 17 Russell Square, London WC1B 5JP © BIICL 2015 British Library Cataloguing in Publication Data A Catalogue record of this book is available from the British Library All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, or stored in any restricted system of any nature without the written permission of the copyright holder, application for which should be addressed to the distributor. Such written permission must also be obtained before any part of this publication is stored in a retrieval system of any nature. Typeset by Cambrian Typesetters Camberley, Surrey Printed in Great Britain by Polestar Wheatons Ltd Cover design by Nick Clarke Bingham Devolution Report Prelims 13/5/15 09:38 Page v THIS REVIEW WAS UNDERTAKEN BETWEEN DECEMBER 2014 AND MAY 2015 BY A COMMISSION* CONSISTING OF: PROFESSOR SIR JEFFREY JOWELL KCMG QC (Chair), Director of the Bingham Centre for the Rule of Law PROFESSOR LINDA COLLEY, Shelby MC Davis 1958 Professor of History at Princeton University GERALD HOLTHAM, Managing Partner at Cadwyn Capital LLP. Cardiff Business School PROFESSOR JOHN KAY, Visiting Fellow, Nuffield College, Oxford SIR MAURICE KAY, Former Vice President of the Civil Division of the Court of Appeal PROFESSOR MONICA MCWILLIAMS, Professor, Transitional Justice Institute, University of Ulster PROFESSOR EMERITA ELIZABETH MEEHAN, Professor at the School of Politics and International Relations at University College, Dublin PHILIP STEPHENS, Chief political commentator, Financial Times PROFESSOR ADAM TOMKINS, (Rapporteur) Professor of Public Law at the University of Glasgow PROFESSOR TONY TRAVERS, Director of British Government at the London School of Economics ALAN TRENCH, (Advisor) Devolution expert, author of ‘Devolution Matters’ blog Committee Secretary: SANDRA HOMEWOOD Assistance is acknowledged from conversations with: Toby Fenwick, Professor Robert Hazell, Lord Lester QC, Lord Lexden and Professor Richard Rawlings. And for administrative assistance from Charlotte Lazarus. * For fuller biographies see Chapter 8. Bingham Devolution Report Prelims 13/5/15 09:38 Page vi Bingham Devolution Report Prelims 13/5/15 09:38 Page vii CONTENTS Foreword ix Executive summary of main recommendations xiii 1. Introduction: the development of devolution 1 1.1 Scotland 1 1.2 Wales 4 1.3 Northern Ireland 6 1.4 Implementing the new proposals 7 2. The architecture of the union state 9 2.1 Inter-governmental machinery 9 2.2 Whitehall and the civil service 11 3. Devolution and federalism 13 3.1 Permanence 14 3.2 Secession 15 3.3 Judicial review 15 3.4 Shared rule and solidarity 16 3.5 A reformed Upper House 17 3.6 England 17 3.7 The content of devolution and the extent of diversity 18 4. A Charter of Union 19 4.1 Principles of union constitutionalism 20 4.2 The principle of consent and secession referendums 22 5. The English question 25 5.1 Representation: English votes for English laws? 26 5.2 Making English votes for English laws work 29 5.3 Devolution within England 31 6. Funding devolved governments: fiscal devolution, public services and the ‘social union’ 35 6.1 Social solidarity in the Union 35 6.2 Principles for funding devolution 36 6.3 The block grant and the working of the Barnett formula 40 6.4 Tax devolution and its implications 41 6.5 The block grant and fiscal devolution 43 6.6 England within the Union: the implications of English choices for the rest of the UK 45 6.7 How to reform the system 46 7. Chronological summary of conclusions and recommendations 49 8. Biographies of Commission Members 55 Appendix: the case law on devolution 59 vii Bingham Devolution Report Prelims 13/5/15 09:38 Page viii Bingham Devolution Report Prelims 13/5/15 09:38 Page ix FOREWORD The United Kingdom has reached a constitutional support. A settlement is therefore urgent to crossroads. Scotland’s vote last September to create a sense of security among our own remain part of the Union was made in the light of citizens, who need to comprehend the basic an offer by political leaders of an unprecedented rules of our domestic territorial arrangements degree of home rule. Much greater transfer of and to know that they are “coherent, stable and power to the Scottish Parliament will transform workable”.2 A settlement is urgent too because relationships between the four parts or nations1 the present lack of clarity conveys an impression of the Union. The urgent task of the new United of instability which can harm our dealings with Kingdom government is to craft a renewed the outside world. settlement that at once meets the pledges made to Scotland; maintains the essential fabric of the The late Lord Bingham, commenting on our Union; and is fair to all nations of the Union in a lack of a codified constitution, said that spirit of mutual respect. To say this will be not be “constitutionally speaking, we now find ourselves easy is an understatement. in a trackless desert without map or compass”. He was therefore attracted to the notion of a The informal, asymmetric nature of the UK sparely drawn constitution, dealing with a few constitution does not lend itself to balanced, neat governing principles regarded as fundamental adjustments. Nor does England’s preponderance and indispensable. This would enable “any within the Union. Any new settlement will citizen to ascertain the cardinal rules regulating necessarily be complex. It will be impossible to the government of the state of which he or she banish all inconsistencies and anomalies. The is a member” and also inculcate a constitutional Union has great advantages for reasons of awareness which is particularly important in the security, economic efficiency and social solidarity increasingly polyglot, multi-cultural, religiously as well as shared history and culture. Yet there diverse, plural society that this country has are also great virtues in decentralised sources become3. of governance. We believe that in the context of devolution, This review seeks to assist the mapping of a path a written constitution would most securely to a new settlement for the UK government. provide the advantage of clear ground-rules to Although the devolution arrangements are often serve as a framework for our territorial referred to as a ‘settlement’, this is far from the arrangements and to secure their permanence. case and there is now a growing sense of unease Its realisation however, will, rightly, take time. that the Union is at risk of becoming unstuck. In the meantime, because the issue is urgent, Indeed, in 2014, the United Kingdom was on the we suggest that we would benefit now from a verge of breaking up on the authority of an inter- Charter of Union which would lay down the government arrangement without the proper underlying principles of the UK’s territorial underpinning of parliamentary enactment or the constitution and of devolution within it, from consent of the other constituent nations. Contrast which flow a number of changes to existing the position in most federal countries, where a institutional arrangements and practices, written constitution provides with clarity that including financial arrangements under the transfers of power can be achieved, if at all, only existing ‘Barnett formula’ (from which, we with unanimity or a high threshold of popular suggest too, we should progressively depart). 1 We know that there are reservations in some quarters 2 The words of Lord Hope, Deputy President of the UK about describing each of England, Scotland, Wales and Supreme Court, in Imperial Tobacco v Lord Advocate [2012] Northern Ireland as ‘nations’ but, for ease, this is the UKSC 61, 2013 SC (UKSC) 153, at [13]. nomenclature we adopt throughout this review. 3 Tom Bingham, Lives in the Law (OUP, 2011), chap.6. ix Bingham Devolution Report Prelims 13/5/15 09:38 Page x FOREWORD This review (carried out over five months, In Chapter 3, we set devolution in the United and inevitably selective) examines devolution, Kingdom in the context of an understanding of the UK’s union state, and our territorial federalism. We explore the similarities between constitution in the context of the United Kingdom devolution and federalism and we note where they as a whole. UK devolution has been undertaken in may be contrasted with one another. We note that a piecemeal fashion and has only occasionally any degree of permanence of our devolved been viewed in the round – both in the light of the structure requires a written constitution and UK’s fundamental constitutional values (such as propose other ways to enhance a combination of the rule of law, the protection of individual ‘shared rule’ and ‘home rule’. liberties and human rights, and representative government) and in the light of how each In Chapter 4, we identify the constitutional constituent nation relates constitutionally to principles which, we argue, should shape our each other and to the centre, and the interacting understanding of the UK’s territorial state. points of influence between them. The House of We examine the idea of union and ask what Lords Constitution Committee stated in a report animates it: from a range of sources we identify published in March 2015 that they were a series of ‘principles of union constitutionalism’ “astonished that the UK Government do [sic] not which, we argue, should now be codified in a new appear to have considered the wider implications Charter of Union to help us understand the state for the United Kingdom of the proposals” agreed of the union and its likely future.