Amending the Hunting Act: Would English votes for English laws make a difference?

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It is reported today that the Scottish National Party plans to vote against proposals to amend the Hunting Act 2004 so as to relax (but not remove) the prohibition on hunting wild animals with dogs. The Government’s proposal is that the Act should be amended through the enactment of secondary legislation which would require the approval of both Houses of Parliament. The issue is politically and constitutionally sensitive because the Hunting Act applies only to England and Wales. If the SNP and the other opposition parties were to vote against these changes, it would take only a modest number of Conservative MPs — given the slimness of the Government’s majority — to join with the opposition for the proposals to fail in the House of Commons. Indeed, this prospect has now caused the Government to delay the vote on these proposals.

A report on the BBC News website implied that the envisaged changes to the Hunting Act might be easier to implement if and when the Government’s English-votes-for-English-laws proposals are implemented. The BBC’s Assistant Political Editor, Norman Smith, was quoted as saying that EVEL could “change everything” and “tip the balance back in favour of David Cameron and changing the rules on fox hunting”. (The quote has since been removed from the article.) However, Smith’s assumption is wrong, thanks to a fundamental distinction drawn by the EVEL proposals between two situations.

The first situation is one in which a majority of all MPs wish to see a given law enacted but a majority of English (or English and Welsh) MPs do not. In such circumstances, the bill — or those parts of it that concern England (or England and Wales) — is in effect subject to a double-majority requirement. The bill (or relevant parts of it) cannot become law without the consent of both a majority of English MPs and a majority of all MPs. Equivalent provisions apply in relation to secondary legislation which is concerned (as is the statutory instrument relating to the hunting ban) entirely with England (or England and Wales).

This proposed rule, however, would be relevant only in circumstances in which English MPs wished to block the House of Commons as a whole from enacting or changing a law. In contrast, the proposed EVEL rules would play out differently in a second situation — which is the one in which we find ourselves in respect of the proposed amendments to the hunting ban. The second scenario is one in which a majority of English MPs do want to enact or amend a given law, but a majority of all MPs do not wish to do so. The difference, then, is between English MPs preventing all MPs from foisting a law upon England (the first situation) and English MPs going it alone and making a law for England even if there is no majority support for the new law amongst MPs as a whole (the second situation).

Crucially, the proposed EVEL rules address only the first issue: they allow English MPs to block legislation, but not to take the initiative by enacting legislation against the wishes of the House of Commons as a whole. If, then, the proposed changes to the hunting ban were being considered under the Government’s EVEL rules, what would happen? The statutory instrument could certainly be certified by the Speaker of the House of Commons as being subject to the EVEL rules. But this would, in the circumstances, make no difference. It could only be enacted if a double-majority could be mustered — in other words, a majority of all English MPs and a majority of all MPs would be required — but the existence of a majority of English MPs would not, on its own, be sufficient.

It follows that even after the introduction of the present EVEL proposals, a fundamental distinction would remain between the autonomy of English law-makers and the autonomy of devolved law-makers. Where a matter is devolved to the Scottish Parliament, the Welsh Assembly or the Northern Ireland Assembly, local legislators are free to do as they wish: English MPs cannot foist upon a devolved nation a law concerning a devolved matter, and nor can English MPs block local legislators from enacting a law dealing with a devolved matter. Compare this with the reverse situations under EVEL. On the one hand, it is true that non-English (or non-English and non-Welsh) MPs would not be able to foist a law upon England (or England and Wales) if that law concerned otherwise-devolved matters and affected only England (or England and Wales). In contrast, however, non-English  MPs would continue to be able to prevent English MPs from positively legislating for the purpose of introducing distinctive arrangements in England.

The upshot — subject one possible caveat — is that the EVEL proposals do not constitute a full answer to the West Lothian problem if (as it should be) that problem is understood in terms of the fundamental lack of reciprocity that has existed since the introduction of devolution. Even if the present EVEL proposals were introduced, England (or, where the matter was not devolved to Wales, England and Wales) would continue to find itself in a disadvantageous position because it would remain unable positively to pursue (as distinct from blocking) legislative initiatives in the absence of a pan-UK majority in the House of Commons.

The possible caveat mentioned above concerns the prospect of the emergence of a constitutional convention — that is, an embedded and accepted political practice — whereby MPs from unaffected parts of the country might be expected not to oppose England-only (or England-and-Wales-only) laws that have received the support of a majority of English (or English and Welsh) MPs. (Indeed, the McKay Commission did not go as far as the present EVEL proposals in that it relied upon the assumption that a convention would emerge in respect of the blocking of legislation, such that English (or English and Welsh) MPs’ opposition to a bill would be respected by the whole House without technically requiring English (or English and Welsh) MPs’ support for a bill having a separate and distinct effect in those parts of the country.) However, the present controversy surrounding the amendment of the Hunting Act suggests that there is little immediate prospect of the emergence of such a convention, given the apparent determination of SNP MPs representing Scottish constituencies to vote against the proposals notwithstanding the likelihood of their being supported by a majority of English and Welsh MPs.

None of this is necessarily a criticism of the EVEL proposals. If they were to be extended so as to address the issue highlighted by the hunting-ban episode, this would make the EVEL regime much more far-reaching. It would, in effect, create an English Parliament within the Westminster Parliament — a step, given the present fragility of the Union, that no-one would be wise to take lightly. It is, however, ironic that almost as soon as the EVEL proposals have been introduced, an issue has blown up that exposes what might, from one perspective, be regarded as their incompleteness. All of which perhaps goes to show why the West Lothian question has gone unanswered for so long. Lord Irvine of Lairg, Tony Blair’s Lord Chancellor, might have been wrong to say that the best thing to do about the West Lothian question was to “stop asking it”. But now that it is being asked, the intractability of the constitutional problems it raises is becoming painfully apparent.