By Mark Elliott and Stephen Tierney
The House of Lords Constitution Committee (‘the Committee’) today issues its report on ‘English Votes for English Laws’ (‘EVEL’). The report examines the new arrangements for the passage of legislation introduced by the Government in July 2015 and agreed by the House of Commons twelve months ago. The Committee was asked to review the constitutional implications of these procedures by the then Leader of the House of Commons, Chris Grayling MP, and to report in the Autumn of 2016, its conclusions feeding into the Government’s own review of the new system.
In this post we reflect upon the evidence gathered by the Committee and the report’s main conclusions. We do so in the context of the Committee’s recent reports on devolution, in particular its inquiry into the Union and Devolution, published during the last parliamentary session, where the Committee considered issues relating to the governance of England while also criticising the ‘ad hoc, piecemeal’ approach to devolution in the UK.
Reviewing the new ‘EVEL’ arrangements
The particular anomaly which the EVEL system is intended to address is of course the West Lothian question, whereby, in the words of the new report, ‘MPs representing the devolved nations are able to debate and vote in the House of Commons on laws only affecting England, while MPs for English constituencies cannot debate or legislate on devolved matters in the other nations.’ Various proposals have been put forward in recent years to deal with this issue, most nobably the recommendations of the McKay Commission which were in the end not implemented. It was not until the 2014 Scottish independence referendum that the issue of lop-sided parliamentary representation was addressed. Speaking on the day after the referendum Prime Minister Cameron declared: ‘We have heard the voice of Scotland – and now the millions of voices of England must also be heard. The question of English votes for English laws – the so-called West Lothian question – requires a decisive answer.’
The system given effect in 2015 does not, as some proposed, exclude MPs from constituencies outside England (or England and Wales) from debates and votes on matters that have been devolved. Instead it is a compromise solution, offering a double veto whereby the whole House of Commons can still reject matters agreed by English (and Welsh) MPs, but which also gives the latter their own veto over devolved matters affecting England (or England and Wales) that have been voted upon by the whole House.
The Committee draws attention to the provisional nature of the reform, calling it a ‘trial run’. The fact that the Committee is asked to review the procedures after only one year is both an indication of the contingent nature of the system and an impediment to arriving at a a conclusive assessment. Several witnesses argued that one year was too little time to allow for a proper evaluation of the impact of EVEL, particularly since the present Government has a majority of both the whole House and of members representing English or English and Welsh constituencies. The Committee tends to agree: ‘It is too soon to fully assess the impact of EVEL on the Union, and on Parliament’s role as the central representative chamber of the whole UK. Likewise, it is too early to judge whether the procedures are robust, given the short period of time during which they have been in operation.’ The Committee therefore recommends that if the EVEL arrangements are maintained they should be subject to an extended trial period for the remainder of this Parliament, with a final review taking place early in the next Parliament by a Joint Committee examining both the technical and the constitutional aspects of EVEL.
Despite the qualified nature of its findings, and the call for a further review, the report does nevertheless offer important insights into the relationship between the new procedures and, respectively, ‘the English question’ in the territorial constitution, and the structure and trajectory of devolution and the union.
The English Question
One consequence of our heavily asymmetrical devolution system is that very little account has been taken of England’s position within the Union. In its report on the Union and Devolution, the Committee suggested that in fact the issue encompasses a number of questions: ‘How, within the Union, should England be governed? Is there a way to allow England a separate voice within the UK without undermining the Union? Should power be devolved or decentralised, and if so how?’
English votes for English laws is of course designed to address only one aspect of the English Question. But even taking into account that the new arrangements only concern the issue of parliamentary representation, the Committee identifies a key weakness in the model. While giving English MPs an effective veto, EVEL is still arguably an incomplete answer to the West Lothian Question since it provides only a veto and not the capacity for distinctive English policy formation: ‘the capacity of English MPs to pursue a distinct legislative agenda for England in respect of matters that are devolved elsewhere does not equate to the broader capacity of devolved legislatures to pursue a distinct agenda on matters that are devolved to them.’
The Committee is therefore highly sceptical of any notion that EVEL adequately deals with the general dissatisfaction felt in relation to England’s place in the constitution. In the report on the Union and Devolution the Committee stated: ‘the English Question remains one of the central unresolved issues facing decision-makers grappling with the UK’s territorial constitution.’ In the new EVEL report the Committee confirms that this remains its view and concludes that the proposed Joint Committee ‘should try to establish whether the introduction of EVEL has by then affected public perceptions in England of a “democratic deficit”.’
EVEL and the Union
As we observed in our blog last week on the Wales Bill, the Committee has previously argued for an approach to the territorial constitution that is focused upon the Union, and in particular upon ensuring that reforms operate in a manner that does not threaten its stability or viability. In this context, the Committee voices concern about the new EVEL arrangements. One consequence of ad hoc changes to the territorial constitution has been unintended consequences. A possible risk with EVEL is that an attempt to provide more balance to a lop-sided system may in fact have the perverse effect of further unsettling the Union. As the Committee observes: ‘Parliament is a unifying body at the centre of the political union, where all citizens, regardless of where they live, have the same say in the laws and policies that govern them. Using the same institution to provide a separate and distinct role for England could risk undermining Parliament’s position as a UK, rather than English, institution’.
Despite this concern, the Committee does not in general see the new arrangements as posing a significant threat to the Union. The Committee is not convinced of the salience of spill-over effects (e.g. decisions on health in England having an impact on Welsh people who use English hospitals). It does think ‘Barnett consequentials’ in funding decisions are of significance, but observes that the model of EVEL that has been put in place takes account of this question. The fact that the consent of all MPs is still required for any piece of legislation to become law ‘ensures that MPs from the devolved nations are still able to speak and vote on funding decisions that might have consequential effects for the funding of those nations.’ The Committee was aware of a perception that EVEL creates different classes of MPs which might present risks to Parliament’s position as a unifying body representing the UK as a whole. But again the modest form of the arrangements in place offers a counterbalance: ‘By opting for the double-veto form of EVEL, the Government has attempted to balance the need for a separate English “voice” in the House of Commons with the need for Parliament to remain a sovereign chamber representing the whole of the UK.’
A number of issues remain for further consideration: public perceptions of the system; the building of cross-party consensus; and the resilience of the system in the face of controversial and important legislative initiatives.
A consequence of a system still in its infancy is that there is as yet little evidence of any shifts in public attitudes brought about by the new procedures: are English voters, thanks to EVEL, now more content with devolution, or do they at least consider it to be less lop-sided than before? The Committee believes that this should be a key question for consideration by the proposed Joint Committee in the next Parliament. The haste with which the system was introduced meant that there was also little attempt to build cross-party support for EVEL, which the Committee considers ‘regrettable’. In this respect, evidence of public support could be crucial in helping foster broader consensus over time; again something a Joint Committee could address in an attempt to gauge wider political, as well as popular, support for the system.
The most significant observation however seems to be that the system has not yet been seriously tested. This could be set to change as Parliament turns to the complex and controversial task of dealing with the UK’s withdrawal from the European Union and determining the destination of the repatriated powers. The Committee talks about the forthcoming votes on matters relating to the UK’s exit from the EU as a possible ‘stress test’ for the procedures. This relates to another question: the constitutional status of the procedures. The current system has of course been established by Standing Orders which although offering flexibility are also easily repealed. An issue for further consideration is whether the system should be placed on a statutory footing. This is doubtless something a future Joint Committee would look at.
Such a move would of course see the further formalisation of the constitution, potentially bringing parliamentary procedure itself within the purview of the courts. The Committee is alive to this risk and warns that any legislation should be drafted in a way that protects the operation of Article 9 of the Bill of Rights, preventing the courts from questioning proceedings in Parliament. But even with such a safeguard in place, it seems that legislating on EVEL would be a venture fraught with difficulty and risk, potentially further embroiling judges in the tense environment of Brexit where the boundaries between devolved and reserved matters will be of immense political sensitivity. It may well be wiser for the House of Commons to continue to manage its own procedures by way of Standing Orders, adjusting these to the delicate political conditions of the day. The tentative and contingent nature of the new arrangements may, even in the longer term, offer the most sensible approach to handling a constitutional issue so overlain with subtle and volatile political considerations.
Mark Elliott is Professor of Public Law at the University of Cambridge. Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh. They serve as Legal Advisers to the House of Lords Constitution Committee. This post is written in their personal capacities.