6 Evidence from MR ROBIN TILBROOK
7 THE CHAIR: Mr Tilbrook, thank you for coming.
8 MR ROBIN TILBROOK: Thank you for having me.
9 THE CHAIR: Can I say some introductory things to you.
10 First of all, this is a notional — a meeting in public,
11 there will be a transcript taken which will be sent to
12 you for correction. When corrected, it will be put on
13 The Commission’s website.
14 MR ROBIN TILBROOK: Right.
15 THE CHAIR: Can I begin by asking you to tell us a little
16 about the origins and the character and the activities
17 of the English Democrats?
18 MR ROBIN TILBROOK: Yes certainly sir. Basically, we are —
19 we I suppose were founded out of the campaign for an
20 English parliament, which came into existence when we
21 had referenda on Scotland and Wales, in particular,
22 getting their own parliaments. Basically, by the time
23 the English Democrats came along, they had already
24 spoken to most of the decision makers it seems within
25 political circles and got the answer that they did
page 48
1 accept that an English parliament was the most logical
2 answer to the devolution conundrum, but nevertheless
3 were not interested in it because it affected their own
4 interests and careers.
5 We thought, those of us that were involved in
6 setting up the English Democrats, that basically we
7 needed a campaign with a bit more of a cutting edge, and
8 the way to do that was as a political party. So we
9 formed the English Democrats, initially I registered
10 with some friends, the English National Party, we had
11 a series of meetings with other parties that were
12 emerging at the time, and launched in August 2002 as the
13 English Democrats.
14 Since that time we have basically been campaigning
15 using the political system to campaign and standing in
16 elections and I think, as time has gone on, doing better
17 and better. I suppose, in a way, an example of our
18 progress is shown at the last EU elections where we
19 certainly spent less than any other party that was
20 seriously campaigning, probably no more in campaign
21 expenditure than about £25,000, obviously there’s
22 deposits on top of that, but £25,000 but we got 280,000
23 votes nevertheless which made us the party which got the
24 most votes without actually winning any MEPs;
25 significantly more than Plaid Cymru got.
49
1 So basically we feel that we are making progress,
2 the opinion polls I think show that people are becoming
3 increasingly aware of the kind of issues that we are
4 campaigning on, and we expect to make further progress
5 as time goes on.
6 THE CHAIR: Thank you. The question of fairness seems to be
7 the main spring of English reaction to the problems
8 thrown up by devolution.
9 It has taken a little while to manifest itself, and
10 some of the surveys, not all of the surveys, I must
11 immediately add, but some of the surveys that we have
12 seen show an increase in English awareness of themselves
13 and of the constitutional changes being made at the time
14 of devolution. But since then, according to some
15 surveys, the feeling has been not significantly
16 increased. Some of the figures, for example about
17 people who prioritise themselves as English not British,
18 are much the same in 1999 and 2009.
19 Now, that is not, I think, your experience.
20 MR ROBIN TILBROOK: No, it’s not.
21 THE CHAIR: What is your experience based on?
22 MR ROBIN TILBROOK: Obviously it’s basically contact with
23 people, talking to people, the kind of reactions that we
24 get. Just for instance, when I first started
25 campaigning, telling people the different spendings
50
1 within England Scotland and Wales, I occasionally got
2 somebody who would say that I was a liar, that it was
3 not happening because they had not read about it in the
4 papers. But that does not happen anymore. What happens
5 is usually as soon as you start talking about it
6 somebody wants to tell you why they think it’s totally
7 unfair.
8 I think we have got that message through, and the
9 IPPR report in January did show actually, from our point
10 of view quite interestingly, that there was a more or
11 less level flatlining of knowledge about the
12 differential spendings until we started campaigning. At
13 that point, there is a definite change to the angle of
14 the graph and that’s been going on and increasing ever
15 since.
16 I think that many of those that have been doing the
17 surveys that you refer to have their own agendas and
18 I do not think they have been completely scrupulous
19 about how they put those. I do think the IPPR report,
20 and many other surveys that have been done — opinion
21 polls that have been done before that, which showed
22 a fairly consistent level of support for doing something
23 about the English question — I think would perhaps be
24 the loosest way of putting it and the most neutral
25 way — did show that there had been a build up of
51
1 support for that for quite a long while. I do not think
2 our issue depends exclusively on feeling English, not
3 British. I think many people who feel both English and
4 British feel that the current arrangements are simply
5 unfair and something ought to be done about them.
6 I think the question that arises is what, of course,
7 and part of your remit is to look into that. But it
8 seems to me that the wish list from the government as to
9 what should be done about it, which is as little as
10 possible it seems to me within the confines of the
11 Westminster system, will not answer the issue. It does
12 not answer the issue not only because the issue is not
13 only about representation within parliament, it’s also
14 about the way government works itself. So there is an
15 executive dimension to the West Lothian question, it’s
16 not just a representation question.
17 THE CHAIR: If you went in the direction in which you would
18 like to go and you had an English parliament with an
19 English executive, there would still be many important
20 issues which were UK issues and these would have
21 expenditure consequences attached to them. England
22 would still, you would still get a kind of dissonance
23 because England would still dominate these UK issues
24 because of — it’s simple numbers, 85 per cent of the
25 population.
52
1 MR ROBIN TILBROOK: The fact is, as is shown from the way
2 public money is spent, England does not dominate at the
3 moment; far from it, England is dominated and it’s
4 dominated through the operation of the party system and
5 it’s dominated through the way that the executive is
6 currently set up. It’s also dominated by the dynamic of
7 politics because the fact of the matter is if you have
8 one group that are fighting for their interests and
9 others who are not, within the political dynamic, the
10 ones that are fighting win, even if they are a tiny
11 minority.
12 THE CHAIR: Then my last question to you is: assume that the
13 House of Commons is, has its procedures adapted to give
14 a more conclusive voice to English opinion, whether it
15 is — it would be something short of what you are after
16 but it would give a better voice, you might think, to
17 English opinion. It would depend of course on
18 identifying the English bills. English Votes for
19 English Laws, you would first have to identify an
20 English bill.
21 Your concern is that the speaker would have
22 difficulty in doing that, difficulty in avoiding
23 politicisation. The speaker however does that every day
24 when he selects amendments, amendments which have been
25 carefully crafted and have great political weight and he
53
1 has so come to a conclusions saying, “Sorry, it’s an
2 order, but it is not going to be debated.” Surely there
3 is a way of, short of an English parliament, determining
4 what an English bill is without politicising the
5 speakership?
6 MR ROBIN TILBROOK: I think the first point is that, as one
7 would see from the way the SNP talk about English bills,
8 quite a lot of things that are in the main about England
9 still are not English bills in their sense because they
10 have an impact on spending in Scotland through the
11 Barnett formula. So it would be quite hard to say what
12 was an English bill in the way that things are currently
13 set up.
14 Secondly, I think that — what my point is really —
15 if we had the situation, which is often posited in this
16 kind of discussion, where there was a different party
17 that had a majority in England to the party that had
18 a majority overall in the UK, then the speaker’s role is
19 going to become absolutely critical to whether or not
20 the UK majority can get its way on English bills.
21 As you have already pointed out, that is 85
22 per cent — or I do not know if you actually use that
23 expression — but at any rate the majority of what the
24 government would be about. If they then find they have
25 a speaker who is not ruling the way they want him to
54
1 rule on a regular basis, it is going to become
2 imperative to the government of the day to do something
3 about that speaker, is it not? Otherwise they are not
4 going to get their bills through. The moment that that
5 happens, the speakership will have changed permanently
6 in the way that it operates because it will become
7 a part of — it will be important for the government to
8 retain control over the speakership and it will not be
9 an independent voice for the House of Commons in the way
10 that it has been for centuries; it will become much more
11 akin to what the House of Lords speakership was before
12 the latest batch of reforms on that with the
13 Lord Chancellor.
14 So I do think the speakership issue will matter in
15 terms of whether or not English Votes for English Laws
16 could work. But from my perspective, even if you were
17 able to devise, or the State was able to devise some
18 sort of system, whereby an English voice was heard,
19 admittedly through the imperfect medium of the political
20 parties, they would nevertheless not have answered, or
21 even touched, the key question which is the way the
22 actual government works. Because the importance of
23 parliament in a legitimacy sense is to provide a sort of
24 democratic framework and scrutiny of the government. It
25 is not an end in itself. So without a First Minister
55
1 for England, I do not see how we will have even scraped
2 the surface really of the issue.
3 So our point would be, although we would certainly
4 talk about an English parliament as being a key issue,
5 which we do think it is, nevertheless the foundation,
6 and the most important issue of all, really is an
7 English government, in particular an English First
8 Minister.
9 I think if we wind up with an English First
10 Minister, then everything else will flow from that, that
11 will necessarily lead to all the various other changes
12 that we are campaigning for, because obviously an
13 English First Minister is going to be a major political
14 figure. One of the dynamics of politics is that once
15 you have a major political figure they are looking to
16 increase their position and basically do the sort of
17 things politically that they want to be able to do in
18 order to secure reelection. So I think that’s the key
19 issue to us.
20 THE CHAIR: One last question: this would presumably benefit
21 from a written constitution?
22 MR ROBIN TILBROOK: We are definitely in favour of a written
23 constitution. We also think the best way forward
24 really, in order to get from where we are, is to follow
25 a model similar to what the Scots did with the Scottish
56
1 Constitutional Convention, and that we ought to have an
2 English Constitutional Convention. And possibly, as
3 this does have implications for the way the whole UK
4 works, perhaps there ought to be not only an English
5 Constitutional Convention but also a UK Constitutional
6 Convention.
7 SIR EMYR JONES PARRY: Thank you very much indeed. You just
8 asserted the priority is to have an English First
9 Minister.
10 MR ROBIN TILBROOK: Yes.
11 SIR EMYR JONES PARRY: There is an English Health Minister,
12 effectively. Isn’t the test how you make that minister
13 accountable? Do you need an English parliament to make
14 the English Health Minister accountable?
15 MR ROBIN TILBROOK: We did a demonstration on April 1st
16 because we have English prescription charges going up
17 when everybody else is free. We were standing outside
18 Richmond House, the sort of headquarters of the English
19 Health Ministry, and Richmond House is flying the union
20 jack; you would not find the Welsh Health Ministry or
21 Scottish Health Ministry flying the union jack. But
22 I think it shows where the loyalties lie; it does not
23 lie towards England, and indeed I think much of the cuts
24 and so on that are being done, which tend to focus
25 unfairly on the English National Health Service, again
57
1 suggests the kind of dynamic at play that I was talking
2 about earlier of those that have the voice and mouth to
3 protest getting preferential treatment within the
4 political system. So I am not sure I would agree with
5 you, but I see the point.
6 SIR EMYR JONES PARRY: The test is whether Mr Lansley is
7 accountable. At the moment he is a Secretary of State,
8 answerable to the Queen; Secretary of State of the
9 British Government. But if you could set up a system
10 where his responsibilities, obviously, are to England;
11 if you can make him accountable in some way within the
12 House of Commons, do you need a parliament to be able to
13 hit that little nut?
14 MR ROBIN TILBROOK: Well, when we say an English parliament
15 we do not necessarily mean to have a completely separate
16 entity. For instance, one proposal that was made a few
17 years ago by, as he was then Lord Cranborne, now Lord
18 Salisbury, was that the House of Commons should be
19 reformed to be the English Parliament and you then have
20 Holyrood and Senate being the respective parliaments for
21 Scotland and Wales, but they would be the lower chamber.
22 Then the upper chamber would be an elected UK Senate
23 where the UK government would have its powers. We are
24 not necessarily saying separate buildings, but we are
25 saying it does involve quite significant constitutional
58
1 change. My personal preference would be for a separate
2 parliament in the same way as we have Holyrood and the
3 Senate, but I do think that that is something that does
4 need to be resolved as much as possible by consensus
5 through a constitutional convention.
6 SIR EMYR JONES PARRY: In either case it tends to be
7 a federal outcome.
8 MR ROBIN TILBROOK: Federal, yes, definitely. Therefore,
9 once you say federal you have to also say written
10 constitution, because there has to be demarcation of
11 where the powers lie. That of course is one of the
12 weaknesses with the current arrangements whereby England
13 is directly ruled by the British government, whereas
14 Scotland and Wales are indirectly and they have their
15 own governments.
16 What that means is of course that if you have
17 pressure on spending, as we have at the moment, the cuts
18 are likely to fall disproportionately in England, and
19 I think the proof of the pudding on that is in the
20 eating, it is happening.
21 SIR EMYR JONES PARRY: Would you accept — you demonstrated
22 prescription charges — that they are actually
23 a consequence of devolution, that legislatures and
24 governments in the devolved areas take decisions on
25 expenditure, which they feel are their priority; if they
59
1 want to go for prescription charges or no university
2 fees in Scotland, that’s perfectly fair. But they will
3 have to make commensurate savings elsewhere to actually
4 afford the luxury of what they are doing in certain
5 policy areas.
6 MR ROBIN TILBROOK: Obviously one of our points, as a party,
7 is that more money per head is being spent in the
8 devolved nations than it is in England, so those choices
9 are made in the context of where English tax payers are
10 helping to pick up the bill for that. I have not got
11 any objection to the idea that the Scottish government
12 and the Welsh government should be able to make the
13 decision to have no prescription charges, I am fully
14 happy and endorse that. But where is the English voice
15 deciding the same? All we have is a British in
16 position.
17 SIR EMYR JONES PARRY: Should public expenditure from the
18 different parts of the United Kingdom all be directly
19 related to population in order to get equity?
20 MR ROBIN TILBROOK: I think if you are going to be fair
21 about it, it would have to be to need not population.
22 It’s need.
23 SIR EMYR JONES PARRY: If you applied need, for example in
24 the case of Wales, and applied the criteria used by the
25 Department of Communities, et cetera, Wales would be
60
1 getting substantially more than she currently gets. So
2 would you support that?
3 MR ROBIN TILBROOK: If that was the case, possibly.
4 SIR EMYR JONES PARRY: I think it’s been established as
5 being the case.
6 MR ROBIN TILBROOK: My understanding from the Hotham Report
7 was that that was not the case, that actually Wales was
8 getting more than it would get vis-a-vis England. What
9 it was not getting was as much as Scotland is getting or
10 Northern Ireland.
11 SIR EMYR JONES PARRY: I suggest you re-read the Holtham
12 Commission because the criteria as applied to Wales
13 would produce more money. If you look at the
14 expenditure per capita in London for example it’s
15 probably four times that per capita in Scotland. Is
16 that fair?
17 MR ROBIN TILBROOK: I do not think that’s true.
18 SIR EMYR JONES PARRY: If you look at the Treasury
19 figures —
20 MR ROBIN TILBROOK: In any case, what’s happened to make
21 those figures even remotely stand up is that the cost of
22 central government, the cost of the monarchy and so on,
23 have been added to the spending in London. The fact of
24 the matter is there are many boroughs in London which
25 are far poorer than anywhere in Scotland and do not get
61
1 the same amount of money.
2 SIR EMYR JONES PARRY: The biggest capital project in the
3 construction sector in Europe is Crossrail in London.
4 If you add the Olympics and various other things you
5 would find the public expenditure per capita in London
6 is at least four times that in Scotland. Is that
7 equitable?
8 MR ROBIN TILBROOK: The result of the Crossrail budget is
9 that there is then an additional amount of money under
10 the Barnett formula going to Scotland and Wales when
11 they have not got a need for a project.
12 SIR EMYR JONES PARRY: Not to Wales because it’s not
13 devolved.
14 MR ROBIN TILBROOK: I think both are getting some money out
15 of the Barnett formula on the Crossrail.
16 SIR EMYR JONES PARRY: Railtrack is not devolved.
17 MR ROBIN TILBROOK: There’s been quite a lot of discussion
18 in Welsh papers about the fact there is this money
19 actually.
20 SIR EMYR JONES PARRY: We can talk about this separately but
21 it’s not the case.
22 PROFESSOR CHARLIE JEFFERY: Thank you very much. Good
23 morning. You are clearly a proponent of an English
24 parliament and government in a federal UK. There are
25 attractions in the symmetry of that proposal.
62
1 We are receiving evidence, which I think more or
2 less uniformly, with the exception of your evidence and
3 that of the Campaign for an English Parliament, that
4 suggests a federal UK with such a big component would
5 not be a stable UK. How would you respond to that
6 suggestion?
7 MR ROBIN TILBROOK: We are not in a stable UK anyway. If
8 England isn’t sorted out, you are going to get the same
9 kind of reaction as happened with Russia.
10 PROFESSOR CHARLIE JEFFERY: So we move into a situation
11 where we do have four more or less equal jurisdictions
12 within the UK. What about the charge of instability?
13 MR ROBIN TILBROOK: The way a federal system operates,
14 usually it seems to me, is you weight the arrangements
15 to try and produce some form of equality in certain
16 respects.
17 If you take for instance the American constitution,
18 the lower chamber is based on population, but the upper
19 chamber, each state gets two senators. So there’s no
20 reason why a similar arrangement should not be at the
21 root of the way the federal system works within the UK.
22 It’s just that we have already moved to a partial
23 federal system, it’s just an illogical and incoherent
24 federal system we have at the moment. The question is
25 where we go from here rather than can we stay where we
63
1 are, it seems to me.
2 Certainly we intend to continue campaigning on these
3 kinds of issues. As I say, I expect that we will get
4 more and more attraction as time goes on with this.
5 Obviously what’s happening in Scotland, with the move
6 towards having a referendum on independence, is raising,
7 within English minds, the idea of English independence.
8 For instance, there was a big parade yesterday in
9 the West Midlands for St George’s Day and people up
10 there were reporting back to me that quite a lot of
11 people were simply saying, “let’s go for independence”;
12 they are fed up with the way the current system operates
13 and they move straight from thinking unitary Britain,
14 not via a federal state, which is a complicated idea,
15 but straight to the sort of notional simplicity of
16 independence.
17 PROFESSOR CHARLIE JEFFERY: Just imagine one more thing, if
18 I may: how the Daily Mail might respond to the idea that
19 England would be weighted equally to Northern Ireland
20 when Northern Ireland does not have many people in it
21 and England has 50 plus million.
22 MR ROBIN TILBROOK: You have to bear in mind what we are
23 saying is that England should have its own First
24 Minister, government and parliament with at least the
25 same powers as the Scottish ones. The unionist parties
64
1 are all in agreement, and have more or less got through
2 a new Scotland Act, have they not, which will in fact
3 grant yet further powers.
4 So what we would be saying is England should have at
5 least the same, and therefore the constitutional
6 arrangements would be based on at least the same
7 across-the-board. So what you are probably left with,
8 by the time the current process with Scotland has ended,
9 is a situation where the UK is dealing with foreign
10 affairs, dealing with defence and one or two other
11 issues that are still not devolved.
12 I do not see the problem with, even for the Daily
13 Mail, those matters being dealt with on the basis of
14 a sort of weighted representational legislative system.
15 Because that would not be dealing with the sort of day
16 to day things that most people who come into contact
17 with the State would experience. So most normal things
18 would be dealt with through the English political
19 system.
20 PROFESSOR CHARLIE JEFFERY: Thank you.
21 SIR GEOFFREY BOWMAN: Mr Tilbrook, you mention the
22 Barnett formula I think. You are saying that that would
23 present difficulties in trying to identify an English
24 bill.
25 MR ROBIN TILBROOK: Yes.
65
1 SIR GEOFFREY BOWMAN: You have been dealing with some rather
2 heady topics, I am dealing with a very narrow technical
3 issue, nevertheless an important one. I think the
4 suggestion is that the Barnett formula has the
5 inevitable effect, that if you change expenditure on
6 a given subject in England then it has an effect in
7 Scotland, Wales and Northern Ireland. Is it so
8 inevitable? For example the Barnett formula isn’t set
9 in legislation, it’s merely a practice. What determines
10 the level of expenditure is the House of Commons supply
11 procedure through the appropriation act?
12 All that the bill does is generally speaking give
13 power to spend money, it’s the actual spending of the
14 money that makes the Barnett formula operate, as
15 I understand it.
16 Why is it so difficult, why is the Barnett formula
17 such a problem? There’s no inevitably about it, is
18 there?
19 MR ROBIN TILBROOK: Well, it’s become sort of a convention,
20 has it not? After all, before the Barnett formula we
21 had the Groshun (?) Convention, as it were, so there has
22 been a series of conventions going back into the 19th
23 century, and probably arising out of any difficulties
24 with home rule in Ireland.
25 I think the idea that the British government would
66
1 change its approach to allocation between the nations,
2 although I think constitutionally proper, is in fact
3 quite unlikely. David Cameron, before he became Prime
4 Minister, did set his face against changing the
5 Barnett formula and we would quote him for the way he
6 put it because what he said was that he was not going to
7 change it because, “I am a Cameron and there’s plenty of
8 Scottish blood flowing in these veins”, which we thought
9 was a rather peculiar way of putting it for somebody
10 representing an English seat. But if he is not going to
11 change it, then — and there is no move afoot to change
12 it — bills that have a spending element to them are
13 going to remain caught by the Barnett formula, and
14 therefore it’s going to be perfectly reasonable and
15 sensible for politicians representing Scotland, Wales
16 and Northern Ireland to get involved in discussing
17 those, and they are going to want to do it.
18 I do think quite a lot of academics have talked
19 about trying to get rid of the Barnett formula and have
20 criticised it, but that does not mean it’s actually
21 going to change because it’s too convenient and at
22 a time when the Westminster/Whitehall establishment
23 think that Scotland and Wales are — there’s a potential
24 risk of them becoming independent, they are hardly going
25 to cut the spending to those nations.
67
1 I do think that the rattling the sabre of
2 independence, which has been done by both SNP and by
3 Plaid Cyrmu, has worked very well in terms of getting
4 lots of extra money out of the UK Exchequer, and
5 I cannot see that changing either.
6 SIR GEOFFREY BOWMAN: We will have to live with the
7 Barnett formula as it is and take the consequences, but
8 would it nevertheless be possible for the speaker to
9 identify a bill as predominantly English? If we cannot
10 say that it is entirely English, we could say of a given
11 bill that it’s more or less English, that the effects of
12 Scotland, Wales or Northern Ireland would be de minimis
13 and therefore we can certify the bill as English?
14 MR ROBIN TILBROOK: Well, obviously the answer to that
15 question would be yes, that the speaker could so
16 certify.
17 SIR GEOFFREY BOWMAN: But legitimately obviously.
18 MR ROBIN TILBROOK: Whether that would be the end of the
19 discussion might be a different question, bearing in
20 mind what’s being talked about at the moment isn’t
21 primary constitutional legislation, but simply
22 a development of some sort of convention. After all,
23 conventions only work for as long as politicians feel
24 that they work as far as they are concerned in the way
25 that they want to react to events.
68
1 After all, Tony Blair’s government showed quite
2 a lot of conventions simply evaporated the moment the
3 government didn’t think they were convenient anymore.
4 So I think whereas constitutional lawyers used to
5 spend a lot of time talking about conventions within the
6 British constitutional system, I do think they are a lot
7 more ephemeral than we used to be taught. I cannot see
8 a convention which was trying to exclude, say, Scottish
9 MPs from getting involved in a discussion which could
10 mean a substantial additional payment, or even worse
11 a substantial reduction in the amount of money that was
12 going to … I cannot see them being willing to be
13 excluded from discussing that.
14 SIR GEOFFREY BOWMAN: Thank you.
15 PROFESSOR YVONNE GALLIGAN: Good morning Mr Tilbrook.
16 I would like you to expand a little bit on what
17 institutions you would see representing the Westminster
18 or federal part of this relationship. I think I heard
19 you say that it would constitute a senate of some kind
20 but I didn’t quite follow exactly what you have in mind
21 in this regard.
22 MR ROBIN TILBROOK: What I was talking about there was
23 something that Lord Cranborne said when he was the
24 Conservative leader in the Lords under William Hague.
25 What he said was — or proposed — was that the English
69
1 parliament should be the House of Commons and the House
2 of Lords should become an elected UK Senate, with all
3 the lower chambers in the same kind of relationship to
4 it as the House of Representatives in America for
5 example. So a slightly complicated arrangement.
6 I am not necessarily proposing that, but that was
7 what he suggested. I will give you an alternative model
8 that was put forward by Tony Benn in the Commonwealth of
9 Britain bill. What he suggested was that there should
10 be an upper and lower chamber for each of the nations
11 with an elected president for each of the nations, he is
12 a republican.
13 A number of different models have already been
14 proposed. I do not think, as far as the English
15 Democrats are concerned, we have really gone beyond
16 saying there needs to be an English parliament, First
17 Minister and government, with at least the same powers
18 as the Scottish ones, and then we say the way to get
19 there is to try and build some sort of consensus through
20 an English constitutional convention.
21 We have not been very specific as to what exactly
22 the constitutional structure would be, and that is
23 simply because I do not think there’s been sufficient
24 consideration of how that all fits together.
25 One of the advantages of the Scottish Constitutional
70
1 Convention was that by the time Labour had adopted the
2 idea, most of the interplay as to how the system would
3 work had already been worked out, so they were able to
4 adopt, more or less intact, a proposal that had been put
5 to them by the Scottish Constitutional Convention. At
6 least that’s my understanding of it.
7 PROFESSOR YVONNE GALLIGAN: The other element of English
8 Democrat position is that there would be a written
9 constitution codifying and clarifying all of these
10 institutional arrangements and the relationships between
11 them.
12 MR ROBIN TILBROOK: Yes. I think that necessarily follows
13 from saying it’s a federal system. I do not think you
14 can have a federal system without a constitutional
15 arrangement. The nearest that I am aware of that didn’t
16 have a constitution framework, a written constitutional
17 framework in that way, was probably the Austro-Hungarian
18 empire, which in fact, although I think people tended to
19 think it was going to fall apart on its own accord, it
20 really did not fall apart of its own accord. It was not
21 until Wilson made it clear they were not prepared to
22 talk to the Austro-Hungarian empire and wanted it
23 dissolved, that it dissolved, or was dissolved, in order
24 to get to the point where the First World War could be
25 brought to an end, with quite unfortunate consequences
71
1 in many respects in that part of the world.
2 PROFESSOR YVONNE GALLIGAN: Fair point, but would you not
3 consider that constitutional arrangements in fact do not
4 really legislate for relationships? By and large
5 constitutional arrangements do set out the parameters
6 within which relationships are conducted, but in actual
7 fact when it comes down to the hard politics of it,
8 constitutional arrangements are as much dependent on
9 give and take and dependent on convention and dependent
10 on rules and procedures that grow as things evolve. So
11 it’s not a certain …
12 MR ROBIN TILBROOK: Up to a point. Obviously one of the
13 things you also accept by accepting the idea of
14 a written constitution is that there has to be a proper
15 Supreme Court, which does actually determine what the
16 powers will be when there is a dispute. Because, yes,
17 there will be a question of relations but in the end
18 there would have to be a final legal determination of
19 what was constitutionally proper.
20 Obviously then, one of the issues that would present
21 politicians within the constitutional framework would be
22 the appointment of judges within the Supreme Court.
23 I do not think you would necessarily want to have judges
24 who were merely career lawyers; you would want judges
25 who had a wider experience of life in the same way as
72
1 many of the American Supreme Court justices have.
2 I think you would have to have some form of way in
3 which they were appointed that had a democratic input,
4 again in the same way, perhaps an indirect scrutiny of
5 the appointment process held in public.
6 From where we are at the moment, all I am really
7 saying is that we would have to go down the federal
8 route, I do not see any — it seems to me there are
9 really only two long term practical outcomes to where we
10 are at the moment. One is federal system of the UK and
11 the other is the UK breaks up into the constituent
12 nations.
13 PROFESSOR YVONNE GALLIGAN: One last question: would you
14 envisage that the English parliament and government
15 would have their own tax raising powers?
16 MR ROBIN TILBROOK: Well, our position is that that would
17 depend on whether the Scottish Parliament had those
18 powers. Because we are not saying that we want more
19 than Scotland’s got, we are simply saying at least what
20 they have. Therefore, we set our benchmark by what
21 Scotland has. Obviously Scotland does look to me as if
22 it is moving towards having its own tax raising powers.
23 If that is the case, then the same would have to apply
24 to England. We would of course be saying that Wales
25 should have the same and Northern Ireland should have
73
1 the same. Although we focus on England, we are not
2 trying to say that other parts of the UK should have
3 a lesser arrangement than England gets; we are simply
4 saying everybody should get the same.
5 PROFESSOR YVONNE GALLIGAN: The consequence of that would be
6 that the UK, the federal parliament, would to some
7 extent lose control over fiscal policy and economic
8 policy?
9 MR ROBIN TILBROOK: It might do, yes. After all, if you go
10 back to the model of the United States, although the
11 federal part of that has been growing in power, from the
12 middle part of the 20th century onwards really,
13 nevertheless each state still has its own tax raising
14 powers, it hasn’t presented insurmountable difficulties
15 as far as the states are concerned. The problem at the
16 moment I think that’s been identified with what’s
17 happening with the devolved government is that they are
18 not really sufficiently answerable to the electorate for
19 their spending decisions because of the Barnett formula,
20 too much of a block grant and too little they have to
21 raise themselves from their own people.
22 Obviously if we did wind up with a devolved
23 arrangement for tax, there would still have to be
24 something that was federal. So you might have some
25 federal taxes and you might have some national taxes.
74
1 PROFESSOR YVONNE GALLIGAN: Thank you.
2 MR ROBIN TILBROOK: It’s probably what would happen, the
3 same as does happen with the States.
4 SIR STEPHEN LAWS: Good afternoon. The question you have
5 just been asked covered some of the ground I wanted to
6 cover but I wonder if I could come at it from
7 a different angle. You are in a favour of a federal
8 United Kingdom.
9 MR ROBIN TILBROOK: (Nods)
10 SIR STEPHEN LAWS: I think if I have understood you rightly,
11 you are holding out to us the prospect of a break up of
12 the union as a risk rather than something that would be
13 in itself desirable.
14 MR ROBIN TILBROOK: Yes, I think that’s probably right.
15 SIR STEPHEN LAWS: If you are in favour of the union, could
16 you tell me what it is that you see, from the point of
17 view of the English Democrats, as the advantages of the
18 union?
19 MR ROBIN TILBROOK: Yes. I think I probably ought to say
20 first of all that one of the issues that was current at
21 the time the English Democrats was being formed was the
22 whole question of regionalisation of England. We sort
23 of observed with some interest that people like Charles
24 Kennedy, then leader of the Liberal Democrats, was
25 saying he liked the idea of regionalisation because it
75
1 was calling into question the idea of England itself.
2 So we did regard regionalisation as an attack on the
3 idea of England, and to the extent it still has any
4 attraction at all we still consider it to be an attack
5 on England.
6 If I have to choose between maintaining the
7 integrity of the UK and the integrity of England, then
8 I choose England. So the UK is sort of extra rather
9 than a bedrock item for us, I think.
10 That being the case, at the moment we still think
11 that the UK could be an acceptable constitutional
12 arrangement for the English nation to continue to
13 operate within. But if the UK — it becomes more
14 fixated on the idea of trying to break England up, it
15 may be that that view would change. So I suppose my
16 support for remaining within the UK is a bit conditional
17 rather than unconditional, and it is not a visceral
18 support. I would not say, if you asked me whether I was
19 British, you would not get me to talk about being
20 British until we were on to passports or benefits or
21 whatever.
22 So I would place myself as being an English
23 nationalist, but being an English nationalist does not
24 necessarily mean you have to immediately say you want to
25 break up the UK, I do not think. I am not sure I have
76
1 fully answered that question.
2 SIR STEPHEN LAWS: I think the reason I am asking you is in
3 case it sheds more light on what you think the role of
4 the federal, the UK parliament, would be under your
5 system, because presumably you would want it to do the
6 things that make the union necessary and desirable. So
7 I am asking you why you think the union is necessary and
8 desirable.
9 MR ROBIN TILBROOK: If we for instance think about why the
10 union came into existence in the first place, part of it
11 was foreign affairs and defence, was it not; admittedly
12 at that time in an imperialist context. But obviously
13 foreign affairs and defence may still be better dealt
14 with through the UK structure.
15 I am sure there are other things that could be best
16 dealt with at that level but I have not come equipped
17 with a checklist of items that I would say ought to be
18 dealt with at that level. We are not for instance
19 campaigning to change the way that the Queen and
20 monarchy operates, so that’s obviously a UK issue.
21 We start really from the perspective of fairness,
22 but we are looking at it from fairness for England’s
23 point of view. At the moment we do not think the
24 arrangements are fair so we want to see them changed.
25 If they were reordered so that they became fair, then
77
1 I think our view of things would be that that was
2 satisfied, and therefore not want to go to the, more
3 loosely speaking, revolutionary point of actually
4 breaking the UK up if it was not necessary.
5 SIR STEPHEN LAWS: A passive preference to the union as long
6 as it’s fair rather than a …
7 MR ROBIN TILBROOK: Yes I suppose that’s right, yes.
8 SIR STEPHEN LAWS: Thank you.
9 THE CHAIR: Thank you Mr Tilbrook. Can I simply conclude by
10 wishing you a happy St George’s Day.
11 SIR MALCOLM RIFKIND: Thank you very much. Happy St
12 George’s Day to everybody as well.
13 THE CHAIR: Thank you very much.
14 (12.46 pm)
15 (Mr Robin Tilbrook withdrew)
Thank you for giving evidence to the Commission on the consequences of devolution for the House of Commons on Monday, 23 April 2012. I attach a transcript of your exchanges with the Commission. This is now being prepared for publication on the Commission’s webpages shortly.
The McKay Commission Secretariat
To: secretariat
Subject: Re: Transcript of evidence session
I believe that the reference on page 66 of the transcript should be to the “Goschen Formula”.
Thank you for your comment on the transcript, which I will put in hand, and for the references to both the Barnett formula and Viscount Goschen.
Yours sincerely
Olaf Dudley
