This post is the second in a series of six updates for the 2015-16 academic year. The posts in this series are co-written by Mark Elliott and Robert Thomas, the authors of Public Law, published by Oxford University Press. Further information about Public Law can be found here. Our focus in these updates is on six key areas in which the constitution is undergoing, or is likely to undergo, change. We have taken as our reference point the outcome of the 2015 general election, and its likely implications for the future of the British constitution. In this second post in the series, we consider the Government’s proposals for “English Votes for English Laws”, formulated in the wake of the Scottish independence referendum.
Immediately following the outcome of the Scottish referendum, the Prime Minister, David Cameron MP, announced that reform was needed to deal with the “West Lothian” question — that is, the position whereby English MPs cannot vote on matters that have been devolved to other parts of the UK, but Westminster MPs representing constituencies in Northern Ireland, Scotland and Wales can vote on those same matters when the UK Parliament is legislating solely for England. Whether it was politically or strategically wise for the Prime Minister to make such a statement in the immediate aftermath of the referendum result is debateable. However, it is hard to deny that strengthening devolution to Scotland, Wales, and Northern Ireland raises acute questions concerning constitutional balance, fairness and reciprocity — and that England’s position cannot be overlooked when such questions are addressed. Since the UK Parliament is the only Parliament that England has, and given that there is no appetite (at least at present) for a devolved English legislature and government separate from the UK Parliament and Government, what can been done as regards England?
The Government’s Proposals
In July 2015, the UK Government published its proposals for English Votes for English Laws (EVEL). The Government stated:
These proposals change the process by which legislation is considered by the House of Commons so that MPs with constituencies in England (and where relevant England and Wales) are asked to give their consent to legislation that only affects England (or England and Wales), and is on matters that are devolved elsewhere in the UK. Those MPs will therefore have the opportunity to veto such legislation. The change will strengthen England’s voice, just as devolution has strengthened the voices of Scotland, Wales and Northern Ireland within the Union, so that the legislative process is fair for everyone. All MPs will continue to be able to amend and vote on all legislation, as they can now.
How, then, would these proposals work? The following is a summary of their intended operation, based on the Explanatory Guide published by the Cabinet Office. (For simplicity, we refer only to English Bills and English provisions in Bills, although the same points apply to Bills and provisions that extend to England and Wales.)
- Certification by the Speaker The Speaker of the House of Commons would certify a Bill as an English Bill (or provisions in a Bill as English provisions). This would happen if the Speaker judged that the Bill or the provisions in question (a) related exclusively to England and (b) concerned matters that were devolved to Scotland, Wales or Northern Ireland.
- Committee stage The legislative process would then continue as normal until after the second-reading stage. At that point, Bills certified as England-only in their entirety would be considered by only English MPs at the Committee Stage. The Committee’s membership would reflect the numbers of MPs that parties have in England. The process would not apply to Bills that, as distinct from being England-only in their entirety, merely contained certain clauses pertaining to England. Bills of the latter type would be considered at Committee Stage in the normal way (i.e. by a Committee consisting of MPs from England and elsewhere). The Bill would then continue to Report Stage.
- Legislative Grand Committee A novel procedure would then occur. A Legislative Grand Committee would consider a Consent Motion. Approval of the Consent Motion would signify English MPs’ approval either of the Bill as a whole (in the case of a Bill certified as relating exclusively to England) or (in relation to a Bill not certified as relating exclusively to England) of individual clauses that have themselves been certified as relating exclusively to England. English MPs would not be able to amend the Bill at this stage: they would simply be able (by amending the Consent Motion) to withhold their consent to the Bill or to provisions within in. In this way, they would have a veto power.
- Reconsideration stage If the Bill, or provisions in it, were vetoed by the Grand Committee, a Reconsideration Stage would then be triggered. At this stage, the Bill would return to the whole House of Commons. It would be possible for the whole House to agree on amendments to the Bill with a view to meeting the concerns of English MPs so as to achieve a compromise. The amended Bill would then return to the Legislative Grand Committee. Any re-vetoing of the Bill or of particular clauses at that point would cause the Bill or the relevant clauses to fail.
The legislative process in the House of Lords would remain unchanged.
The changes would be introduced by way of Standing Orders rather than primary legislation (on the ground that this would invite the possibility of judicial challenge and scrutiny of the internal workings of Parliament).
Objections and Concerns
Various objections and concerns have been raised in relation to these proposals. An important procedural issue was that the Government published its proposals in July 2015 wanting them to be approved quickly by the House of Commons. The concern was that the Government was seeking to rush through complex and wide-ranging constitutional changes without adequate scrutiny and debate — and doing so for partisan reasons given that, in the light of the UK electoral map, the Conservative Party would be the principal political beneficiary of the proposed changes. The Government subsequently accepted the need for more detailed consideration. The matter is currently being scrutinised by the House of Commons Procedure Committee, the Commons Public Administration and Constitutional Affairs Committee, and the Commons Scottish Affairs Committee.
On matters of substance, there is a variety of concerns.
First, the proposals envisage a situation in which the House of Commons as a whole cannot in any circumstances overrule the votes of English MPs. The concern is that there will be two classes of MP, with non-English MPs being “second-class” MPs.
Second, the Speaker would assume a pivotal role in determining which Bills affect England only. It is debateable whether or not the Speaker should be obliged to take such important decisions given that some MPs will be dissatisfied with a decision either way. The Speaker is not supposed to be party political, but taking these decisions would make the Speaker’s role more controversial and place him or her in a much more contentious position.
Third, there may well be practical difficulties with the progress of legislation because of the complexity that would be introduced with the added stages.
Fourth, The Government’s proposals are likely to have wider political ramifications, especially as regards the political perceptions in Scotland vis-à-vis the objectives of the UK Government. Following the 2015 general election, the UK Conservative Government relies for its control of the House of Commons almost exclusively on English MPs. (There is one Conservative MP in Scotland and 11 Conservative MPs in Wales.) Given the success of the Scottish National Party in the 2015 general election, it is likely that the EVEL plans could simply increase pressure within Scotland for independence.
Fifth, the proposals may actually deliver less than proponents of EVEL desire. While they would permit English MPs to veto legislation that could otherwise be enacted thanks to the support of MPs from other parts of the UK, the proposals — at least as they presently stand — would not equip a majority of English MPs to push through legislation against the wishes of a majority of all MPs. It would therefore remain possible for English MPs opposed to a Bill to join with MPs from other parts of the country in order to thwart the wishes of a majority of English MPs.
Public Law for Everyone 