Bogdanor on “English votes for English laws”: A response

In his recent trenchant piece in The Guardian, Vernon Bogdanor argues that “English votes for English laws” — a possible response to the West Lothian Question — would be a “logical absurdity”:

English votes for English laws seems at first sight a logical response to the English Question. But it is in fact incoherent. It means that whenever a government depended on Scottish MPs for its majority, as could occur if Labour were narrowly elected in 2015, there would be a UK majority – Labour – for non-devolved matters such as foreign affairs and economics, but an alternative majority for devolved matters. But a bifurcated government is a logical absurdity. A government must be collectively responsible to parliament for all the policies that come before it, not just a selection of them.

There is something in this point — the implications of reforming how Parliament works would have consequences that would need to be worked through in relation to the administration — although Bogdanor arguably overstates it. A different — and more measured — view is advanced by Carl Gardner:

We might at one extreme end up with a new kind of Anglo-British coalition, one or two ministers from an “opposition” party running English policy departments. More likely, the government would take a bipartisan or compromise approach to English policy, while perhaps preparing for a new election. Much would depend on the particular balance of forces in the Commons, and the relative policy stances of the parties. A Labour government without an English majority of its own might actually find it very easy to achieve comfortable English majorities for its English programme with the support of LibDem MPs.

Bogdanor goes on to critique the proposals of the McKay Commission. He writes:

A modified form of the proposal has been put forward by Malcolm Rifkind, the former Conservative foreign secretary, and the McKay commission, which reported last year. This proposes sending all English legislation to an English grand committee, with membership proportional to the strength of the parties in England. A government without an English majority would have to negotiate with the committee and sometimes accept defeat – analogous, says Rifkind, to the position of a minority government such as the Wilson government of 1974. But under this proposal a government would regularly be unable to secure whole swaths of its legislation – on education, health and other matters devolved to Scotland. Moreover, the English grand committee would in effect seek to legislate on matters such as health and education, which have revenue-raising implications, without having control over taxation. A government would not agree to alter taxes for policies with which it fundamentally disagrees. So bifurcated government would become deadlocked government.

As well as being subject to the kind of challenge articulated by Gardner (above), Bogdanor’s argument is based upon what appears to be a technical misunderstanding of McKay’s proposals. He seems to be suggesting that McKay envisages that English MPs would be able to veto government bills. This is not, however, what is proposed. What is actually proposed by McKay is that English MPs should be able separately to consider and render their view upon laws affecting only England without actually vetoing them.

The Commission characterised this procedure as a “double-count” rather than a “double-lock”: relevant bills (or parts of bills) would be considered and voted upon by the whole House of Commons and by a committee of English MPs, but the latter would not be able to overrule the former. In a post published on the UK Constitutional Law Blog in 2013, shortly after the publication of the Commission’s final report, I noted that this proposal could be understood in the following way:

In preferring double-count over double-lock, the Commission cites its own guiding principle—that decisions “should normally be taken only with the consent of a majority of the elected representatives for that part of the United Kingdom” (emphasis added). The Commission’s defence of this position rests upon the principle of reciprocity. Devolved legislatures’ wishes with respect to incursions by Westminster into areas of devolved competence are normally respected (via the use of legislative consent motions under the Sewel convention), but are not necessarily respected (because Westminster could, at least in theory, override their wishes by asserting its legislative supremacy, which is undiminished by devolution).

The McKay proposals thus import a degree of reciprocity by placing non-English MPs in a position vis-a-vis the UK Parliament equivalent to the position occupied by that Parliament vis-a-vis the devolved legislatures.

One final point. Bogdanor’s preferred approach is

devolution in England – not to new regional authorities, which few want, but to localities. The trouble is that local authorities, as at present organised, are unloved, and few of us bother to vote in local elections. So a precondition of devolution must be a system of local government that inspires the enthusiasm needed for a radical transfer of power from the centre.

While I am sympathetic to the view (which I advanced in a Cambridge Law Journal article co-authored with Stephen Bailey) that localism and local government must be taken more seriously, Bogdanor’s position arguably conflates two quite distinct matters. It presupposes that stronger local government within England is capable of filling the void left by the present absence of a pan-England tier of government. Whether the one can substitute for the other is, however, far from clear. What is, however, clear is that “devolution” to cities or regions within England would be a pale shadow of the kind of devolution applicable in Scotland and elsewhere. Whether the former type of devolution would be sufficient in the English context is a matter that turns upon questions of identity that cannot be resolved by recourse to constitutional law or theory alone.

It is notable that whilst calling for a “national conversation”, Bogdanor appears already to have prescribed (at least in broad terms) what its outcome should be. This highlights the risk that any grand-sounding “constitutional convention” would merely consist of “experts” talking to one another. In his recent post, referred to above, Carl Gardner warned of the “folly” of a “huge constitutional talkfest”. Bogdanor’s recent article reinforces that argument eloquently, if unintentionally.