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Time to stop asking the “West Lothian Question”?

This article considers why the “West Lothian Question” has once again hit the headlines this month in the aftermath of the Scottish independence referendum, and discusses the potential solutions and their motivations. 

Written by Marianne Wood, 4th Year LLB and sub-editor of the Constitutional Law portion of the Review.



It is often said that one of the greatest advantages of the UK’s uncodified constitution is its ability to adapt to the changing needs and expectations of society. From the late 1990s in particular, we have seen a constant evolution of the principles by which we are governed: from the abolition of hereditary peers in the House of Lords[1] and the creation of the Supreme Court[2], to devolution settlements for the home nations[3] and the incorporation of human rights into domestic law[4], the benefits of having a flexible “norme suprême” which can be altered by normal legislative procedure have been felt in many areas of governance. However, in the aftermath of the Scottish independence referendum, the need for more urgent and fundamental constitutional reform across the whole of the United Kingdom has become abundantly clear. As well as being an incredible victory for democracy, the unprecedented levels of political participation and interest sparked by the question of whether Scotland should be an independent country have reignited the debate over Britain’s constitutional future. In his speech on the morning after the historic vote, David Cameron echoed the sentiments of many: “We now have a chance—a great opportunity—to change the way the British people are governed, and change it for the better.”[5]




Many, then, were surprised to see that that since 18 September, the Government’s focus appears to have been not on the promised negotiations for a stronger devolution settlement for Scotland, but on an old constitutional anomaly: the so-called “West Lothian Question”.  First raised by MP Tom Dalyell in 1977[6], the situation whereby MPs from Scotland, Wales and Northern Ireland may vote on laws which apply only in England, while English MPs have no reciprocal influence, has been periodically topical over the last 20 years. In the face of the demands for greater fiscal and legislative autonomy for Scotland, it has once again come to the fore. With the prospect that Scottish policy will be increasingly able to be decided at regional level, there is a growing feeling in England that laws which affect only England should be decided solely by MPs representing English constituencies[7]. Does impending further devolution mean that the West Lothian Question finally “requires a decisive answer”[8]? Or is it an opportune distraction from the real issues requiring constitutional reform?




Since the issue was first highlighted, there have been those who questioned its actual significance.  According to former Lord Chancellor Irvine, “the best thing to do about the ‘West Lothian question’ is to stop asking it.”[9] All of the Westminster governments in the aftermath of devolution have also enjoyed a majority in England: only twice since 1998 have they had to rely on Scottish and Welsh MPs to push through legislation affecting England alone[10]. But while the West Lothian Question may be of limited practical importance, it is becoming of increasing democratic importance in terms of how the constitutional settlement is perceived. The fundamental principle whereby elected representatives are publicly accountable for the decisions they make is thwarted by the ability of non-English MPs to vote for legislation which does not affect their constituents. Our governing bodies can only function effectively if all sides are happy with the division of political power.




What, then, is the solution? Perhaps the most immediately obvious answer is the creation of an English Parliament to sit alongside Westminster. Although much lauded by the Liberal Democrats in recent years, this form of federalism is clearly unworkable: symmetrical devolution is not the answer in an asymmetrical political system such as the UK[11], not to mention the fact that regional governance in England was met with a “swingeing rejection [12] in 2004. The more logical solution, and that advocated by the Conservatives, is “English Votes for English Laws”, which would exclude Scottish, Welsh and Northern Irish MPs from voting on English matters. However this option is not with its disadvantages either. A separation of voting privileges at Westminster would undermine the collective responsibility[13] of Parliament for the actions it takes.  Constitutional expert Vernon Bogdanor has described the proposals as “a logical absurdity”[14]: a potentially bifurcated central government would lead to devolution becoming party-political.  Even the more refined approach put forward by Sir Malcolm Rifkind MP, and supported by the McKay Commission, of creating an English grand committee with which the government would have to negotiate when pushing through English legislation, would have the capacity to become deadlocked over fundamental policies such as taxation. In practice, laws affecting England, by far the largest component of the United Kingdom, can have a decisive financial and political influence on the other nations. Perhaps, as some academics as argued[15], the West Lothian Question is a constitutional anomaly that we should just accept as a feature of our incrementally developing constitution, as opposed to an issue which need to be solved.




In any case, the “English Votes for English Laws” debate is arguably a simplistic cover for what is, on closer inspection, a much more complex problem. It has been contended that the West Lothian Question is a convenient surrogate for a more serious post-devolution issue: financial fairness[16].  Traditionally, funds have been allocated among the regional governing bodies according to the Barnett Formula - a complex system which many feel results in a disproportionate allocation of resources in favour of the devolved parliaments and assemblies. The public unease is double edged: the procedural inequality of voting rights, and the more serious perceived financial inequalities created by the Barnett Formula, have been “conflated into a single alleged grievance”[17]. Yet Westminster are attempting to address both aspects with a single, politically-motivated solution. The sudden Conservative concern for the West Lothian Question seems to be borne out of  fear that Labour will secure a majority by virtue of its non-English MPs in 2015‘s general election, which looks to be closely fought. Constitutional change should be the result of negotiations between all parties, not a stop-gap measure to win votes or manipulate legislative procedure[18]. Any reform of the way English laws are voted upon should be in tandem with increased transparency of spending allocation within the UK, and, indeed, the British constitution as a whole.




The West Lothian Question cannot be seen as a stand-alone constitutional dilemma to be solved in isolation. All of the contended solutions involve the break-up of the Union in some way, whether it be the fracturing of the collective responsibility of the UK parliamentarians, or the creation of a devolved body for England. More fundamental constitutional reform is needed, and it should be given the due consideration required of such an important legal reorganisation. The sudden urgency attached to finding an answer to what is a long-standing problem is driven by party-political considerations and serves as a convenient surrogate issue for the Conservatives to get behind post-referendum.  It should instead be considered in conjunction with revised devolution settlements and the perceived financial inequalities that exist between the different governing institutions - if indeed it should be considered at all.  Whatever the outcome of the current debate, it would appear that the UK’s uncodified constitution, so often celebrated for its flexibility in times of change, has a lot of adapting to do in a very short space of time.




[1] House of Lords Act 1999

[2] Constitutional Reform Act 2005 s. 23-60

[3] Scotland Act 1998; Government of Wales Act 1998; Belfast Agreement 1998; St Andrews Agreement 2006.

[4] Human Rights Act 1998

[5] Statement by the Prime Minister David Cameron, 19/09/14. Full text at (last accessed 15/10/14)

[6] Tam Dalyell MP, House of Commons, debate on devolution, 14 November 1977, Hansard source ( - last accessed 10/10/14)

[7] The Mckay Commission, “Report of the Commission on the Consequences of Devolution for the House of Commons: Executive Summary”, March 2013, available at : (last accessed: 15/10/14)

[8] Statement of the Prime Minister, supra note 5.

[9] House of Lords Debate, 25th June 1999, col. 1201

[10] Namely the setting up of foundation trusts in the English NHS in 2002; and the introduction of tuition fees in England in 2004

[11] Scottish Constitutional Futures Forum, “Adam Tomkins: A West Lothian Answer?” 28 March 2013 (available at (last accessed: 15/10/14)

[12] McKay Commission Report, supra note 7, para 70

[13] V. Bogdanor, “The New British Constitution”, (Hart Publishing, Oxford, 2009), p99

[14] V. Bogdanor, “Why English votes for English laws is a kneejerk absurdity, The Guardian 24/09/14 (available at (last accessed: 15/10/14)

[15] B. Winetrobe, ‘The West Lothian Dead End: Asking the Wrong Question after the Scottish Referendum’ U.K. Const. L. Blog (23rd September 2014) (available at (last accessed: 15/10/14)

[16] Ibid.

[17] Ibid.

[18] Rowena Mason, “English votes plan is ‘most un-prime ministerial thing Cameron has done” The Guardian online edition (available at: (last accessed: 15/10/14)



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