Michael Kenny and Daniel Gover consider the constitutional implications of parliament's approval of English Votes for English Laws
23 October 2015
MPs voted yesterday to approve controversial changes to the House of Commons Standing Orders that implement the principle of ‘English votes for English laws’ (EVEL).
This attempt by the governing party to address the ‘West Lothian Question’, and to frame its response as a key part of its answer to the question of English devolution, is a watershed moment in the history of parliamentary government in the UK.
The ethos underpinning the development of devolution in non-English parts of the UK has now been applied to the largest territory within the UK, and the Conservative party has moved away from the unionist assumption that England rests content to be governed by British institutions.
This effort to identify and institutionalise an English dimension to the workings of the UK parliament has attracted a good deal of procedural comment and political controversy.
But whatever the political calculations and interests it reflects, the constitutional significance of this attempt to offer some form of devolution for England should not be overlooked.
English votes for English laws: a recap
Under the new procedures, the Commons Speaker will be required to ‘certify’ bills, or clauses within them, that meet two criteria: first, they relate only to England (or England and Wales); and second, comparable policy decisions are devolved elsewhere in the UK.
On such legislation, MPs representing English (or English and Welsh) constituencies will have the opportunity to give their ‘consent’ to the provisions, through two new mechanisms: first, a Legislative Grand Committee of English (or English and Welsh) MPs will vote on a ‘consent motion’ prior to the bill’s Third Reading; and second, a ‘double-majority’ voting system will apply when MPs consider Lords amendments (which will also apply on secondary legislation).
The effect of these reforms is a ‘double veto’: to pass, certified legislation will require the support both of UK-wide MPs and those representing English (and/or English and Welsh) constituencies. (Detailed discussion of the government’s original proposals can be found here).
These changes will come into effect immediately, and will affect the passage of a number of bills, even though there is no immediate threat of a ‘West Lothian’ situation in the House of Commons.
Greater scrutiny – but still no consensus
When the government’s proposals were initially published on 2nd July, the intention was for MPs to vote to approve them just two weeks later.
By pushing this vote back to October, the government has allowed significantly more time for them to be scrutinised and debated.
Most importantly, the delay has enabled the Commons Procedure Committee to conduct an initial assessment of the proposals’ procedural implications, the conclusions of which were published on Monday.
The committee identified the potential for EVEL to put greater pressure on parliamentary time and resources, and made a series of recommendations for how to improve and simplify the process.
In its response the government rejected the committee’s most substantive recommendations – notably that EVEL should only be applied to specific bills following a vote on the floor of the Commons, and that the initial Legislative Grand Committee stage prior to Third Reading should be effectively replaced by double-majority voting on Report.
However, ministers did agree to make several less substantive revisions in response to the committee’s other recommendations, including clarifying that the Speaker may consult two senior MPs during certification and that all UK MPs may speak in the Legislative Grand Committee debates.
But the government's revised timetable, and its willingness to make some limited concessions, has not produced any greater political consensus around the changes.
Speaking in the debate, Labour’s Shadow Leader of the Commons, Chris Bryant, warned that the proposals were ‘a charter for breaking up the Union, not keeping it together’.
His SNP counterpart Pete Wishart went further, claiming: ‘Never has such massive and significant constitutional change been undertaken on the basis of plans that are so meagre, so threadbare, so inept, and so stupid’.
That only one party is advocating these particular reforms is a problem, giving these changes the look of partisan political interest, and offering a new opportunity for the SNP to critique the indifference of Westminster to Scottish interests.
Aside from the issues on which the Procedure Committee made recommendations, other ambiguities and complications need to be carefully monitored and may yet need to be addressed.
One concern relates to ‘spillover’ effects – the real possibility that decisions that primarily affect one part of the UK may have consequential effects in other parts.
The most high-profile example of this concerns funding arrangements, given that the block grant to the devolved administrations is adjusted by reference to spending in England via the Barnett formula.
Controversy over spillover is likely to emerge quickly: although it seems unlikely that EVEL will affect the outcome of many (or any) Commons votes in the current parliament, the Speaker’s certification of legislation will begin immediately, and his decisions will be subject to intense scrutiny.
Criticisms of EVEL that focus upon spillover often overlook the fact that all legislation will continue to require the support of UK-wide MPs to pass.
Nevertheless, such issues should be properly examined, and one important potential innovation here would be the establishment of a Devolution Committee to monitor spillover effects and to enable on-going, UK wide discussion about these kinds of issues, as recommended by the independent McKay Commission.
Another major area of concern that barely figured in Thursday's debate relates to the ill-conceived decision to apply the procedure to Finance Bills, which legislate for taxation such as income tax (on which certain new decisions are expected to be devolved to Scotland).
As former civil servant Jim Gallagher has highlighted, because (unlike most legislation) income tax must be regularly re-approved by parliament in order to remain in force, the provision of a veto to a subset of MPs could potentially allow them to hold the UK government to ransom.
Such a scenario is most likely in the event that a UK government lacked a majority in England.
Wider constitutional implications
In political terms, the sound and fury of the Commons debate has occluded one potentially important long-term shift: Labour appears to have moved, quietly, towards acceptance of some of the principles informing the government's reforms, even if it has doubts about this way of implementing them.
Whereas until recently Labour had set its face against any form of EVEL, Labour’s Chris Bryant has continued the direction of travel that began under Ed Miliband’s leadership, expressing his support for the idea of giving the English a clearer 'voice' in parliament while refusing to sign up for a 'veto'.
This shift points towards a new division of political opinion that may well become highly significant.
If the two main parties in British politics now accept some of the principles underpinning EVEL, it increases the likelihood that a future government in which Labour figured might choose to retain these changes, or some revised version of them.
There is another sense – as yet mostly unnoticed – in which the current debate may carry major, unforeseen consequences.
This concerns the dynamic that has now been given to the idea of delineating and giving recognition to an English dimension of parliamentary government.
For while EVEL has drawn all the attention towards aspects of legislative scrutiny in the lower chamber, legislation is only one of the ways by which government shapes the lives of individuals through its decision-making.
Minister for England?
As this debate gains a foothold in public consciousness, how long before advocates of a greater English dimension (or what John Redwood MP calls 'English justice') point to the anomalies associated with the absence of an English tier of government, or the lack of a Minister for England - the introduction of which was recently advocated by the Local Government Association?
Already it has been suggested that Whitehall departments that deal almost exclusively with English policy matters (for example health and education) be labelled more explicitly and accurately as English-focused departments, and this could also be reflected in non-legislative aspects of the Westminster parliament’s work.
There are different ways in which the logic of EVEL might in future be applied to other facets of Westminster, including that government ministers appointed to such departments might require the ‘consent’ of MPs representing English constituencies, or that select committees scrutinising such departments be composed only of English MPs.
It is highly unlikely that the current government will go near these issues in the short term.
But it may well be that the normative principles and underlying logic of the reforms they have introduced mean that they will inevitably enter public discourse.
More immediately, the implementation of EVEL is very likely to impact upon debates about the future constitutional character of the UK.
Some of its advocates see this reform as one further piece of the jigsaw associated with a more federal UK settlement.
Others remain sceptical, anticipating that EVEL may create headaches for the business managers in government but will disappear from public view.
This latter expectation is very unlikely to be fulfilled.
As Thursday's debate in the chamber showed, there are now some powerful territorial passions and conflicts at work in British politics.
This particular attempt to institutionalise an English dimension to parliament's work is unlikely to quell or resolve them, and feels more like the start, than the end, of a process of constitutional innovation.
This article was first published on the Constitution Unit blog.