With the Queen’s Speech due tomorrow, we continue our series of blogs about devolution and its consequences, drawing on the Unit’s latest report Devolution and the Future of the Union. Here Robert Hazell analyses the commitment to English votes on English laws, looking first at its history, and then at its prospects.
Cynics might assume that the Conservative policy of English votes on English laws was an opportunistic slogan designed to garner votes in England, but never intended to be implemented in practice. Some attribute the commitment to David Cameron, who flourished it in the aftermath of the Scottish independence referendum. But the policy goes back much further than that, having appeared in the last four Conservative manifestos, from 2001 onwards. In the 2015 manifesto it was given added emphasis by being repeated four times, and spelt out in unusual detail in chapter 7.
The details were developed by the outgoing Leader of the House of Commons, William Hague, who chaired a Cabinet Committee which produced a White Paper published last December. It now falls to the new Leader of the House, Chris Grayling, to implement the policy in the new Parliament. What are his objectives; what are the main obstacles to introducing EVEL; and what would be a sensible way forward?
The logic of EVEL
The case for EVEL rests upon principles of fairness and accountability. Now that issues such as education and health are devolved to the Scottish Parliament and Northern Ireland assembly, it seems wrong that Scottish and Northern Irish MPs should continue to have a vote on such issues in England, or England and Wales. They have no accountability to the people of England; while the only people to whom they are accountable, their constituents in Scotland and Northern Ireland, are no longer affected by decisions made in relation to England. The conclusion is that English matters should be determined by English MPs alone.
That is the logic of EVEL, but it throws up a political difference between Labour and Conservatives. In the run up to the election there was much speculation about a Labour-led Government having a working majority in the House of Commons but no majority amongst English MPs. Such a government would be hampered by EVEL. In contrast, it is unlikely for a Conservative-led Government to win an overall majority without also having a majority in England. The incentive for the Conservatives to find a way forward on the issue is thus stronger than for Labour. But for Labour the political calculation may start to shift now that Scotland is an SNP rather than Labour stronghold. Their 2015 manifesto for the first time acknowledged the need for some form of EVEL (p.64).
The obstacles to introducing EVEL
Growing cross party support should be encouraging for Chris Grayling, but first he must overcome a daunting series of technical difficulties. What counts as an English law? Who will decide which laws are English? What separate procedures should be introduced for English laws? And can those procedures be entrenched? Each will be examined in turn.
What counts as an English law? Who would decide which laws are English?
The McKay Commission argued the test should be based primarily on the practical application of a law, not its technical extent. The test should be, laws having ‘a separate and distinct effect in England (or England and Wales)’. In such cases the whole House should make a decision only after knowing what English opinion is. The Speaker would decide, on advice, just as he now decides on money bills. So long as the new procedures were not enshrined in statute, his rulings could not be challenged in the courts. In giving his rulings, the Speaker would in effect be deciding, what should count as an English division? This could apply to voting on tax changes as well as legislation.
What separate procedures should there be in the Commons for English laws?
The McKay Commission offered a menu, rather than a specific new process. They proposed a Legislative Consent Motion before Second Reading, to test English opinion on the principle of a new law; and then English only MPs for the Committee stage. But on Report or Third Reading the whole House would be able to overrule English opinion. It would be transparent that this had been done, and the government might pay a political and electoral price.
The coalition government’s White Paper in December 2014 highlighted the difficulties in agreeing a new procedure. The Cabinet Committee chaired by William Hague came up with three Conservative options and a separate Liberal Democrat option. In subsequent discussions the Conservative party still could not agree, so instead of putting the matter to a vote in the Commons, on 3 February Hague simply announced what would be Conservative policy in their manifesto. After a Committee stage involving only English MPs, English laws would require a Legislative Consent Motion from all English MPs. This would amount to an English veto: English parts of a bill could not proceed without an English LCM. The manifesto extended this principle of English consent to financial matters such as how spending is distributed within England, and to taxation, when the equivalent decisions have been devolved to Scotland (p.70).
How should these procedures be introduced? Can they be entrenched?
Parliamentary officials advise this should be done by Resolution, defining the principle to be followed, accompanied by Standing Orders. It should not be done by legislation, because that could lead to the courts getting involved. There would be nothing to prevent a future government or Parliament from reversing the Resolution or Standing Orders. But even if the new procedures were introduced by statute, there is nothing to prevent a future government from seeking to repeal or amend the statute.
The political consequences of EVEL
It is not only the technical difficulties which are daunting. In opposition to EVEL, it is claimed that it would create two classes of MP, with different voting rights; that over time it would lead to the creation of an English parliament within the Westminster Parliament; and that it would require an English government within the UK Cabinet. In reply, proponents say that there are already more than two classes of MP. It would not require an English government, or parliament; nor would it prevent non English MPs from holding senior positions in the government.
It is difficult to adjudicate between these competing claims, because it all depends on how EVEL played out politically under a government which lacked a majority in England. That would depend critically on whether Conservative MPs wanted to make mischief, using EVEL to harry a Labour government; and whether a Labour government abided by the spirit of the new rules, or sought to avoid or minimise scrutiny by English MPs by gaming the new system.
It is also difficult to judge how much difference EVEL would make in practice. Applied retrospectively, EVEL would not have made much difference, for two reasons. First, there are relatively few English laws, in the sense of whole Bills that are English. In the 2014-15 session there were just two – The Social Action, Responsibility and Heroism Bill, and the Modern Slavery Bill. The second reason is that, had EVEL been in force in the past, very few votes would have had a different outcome. A crude analysis suggested that only 21 out of nearly 5,000 divisions in the House of Commons since 1997 would have produced a different result if the votes of Scottish MPs had been excluded. The most controversial issues were the introduction of foundation hospitals in 2003 (when 61 Labour MPs rebelled), and the raising of student tuition fees to £3000 in 2004.
But the past is not necessarily a guide to the future, in two respects. This analysis covers a period when the Blair governments enjoyed a comfortable majority in England as well as across the UK, and did not need the votes of Scottish MPs. If we have more hung Parliaments in future, we may see more governments which depend upon Scottish or Welsh or Northern Ireland MPs to get their legislation through. The second respect in which EVEL may be more important in future is that, with further devolution, more legislation at Westminster may apply wholly or mainly to England: the proportion of ‘English laws’ may increase.
Whether EVEL proves to be a major roadblock to a future Labour government, or just another factor in the legislative process, depends also on wider changes in Westminster and Whitehall culture. What it would require is more compromise over some government bills, more bargaining with the other parties to get legislation through. That represents a big change for the major parties at Westminster, with its strongly majoritarian culture where the government almost always gets its bill. A government with a minority of English MPs would need to adjust its majoritarian mindset. It could learn from the experience in Scotland, where the SNP minority government managed to pass plenty of legislation from 2007 to 2011 by seeking cross-party support. Or it could look to continental Europe, where for most governments it is the everyday reality, part of the ordinary business of parliamentary government in countries like Denmark or Germany.
Can EVEL be delivered?
The big conundrum for Chris Grayling is to work out how EVEL might best be introduced. The Conservatives gave up trying to develop a cross-party consensus on EVEL, and even gave up trying to reach agreement within their own party. The 2015 manifesto contained a strong commitment to introduce EVEL, so they can certainly claim a mandate. But now the Conservatives are in power, will they go to the trouble of trying to introduce EVEL? They risk re-opening the divisions within their own party, who will not see the immediate need for EVEL when the Conservatives have a majority in England anyway. With a majority of only 12, they will not wish to provoke unnecessary rebellions. So what are Chris Grayling’s options, to push the policy forward without provoking an unnecessary rebellion on his own backbenches?
The first would be to refer the whole matter to the Procedure Committee, whose chairman may stake a claim: he was upset when Hague ignored him before trying to change the voting procedure for the Speaker. The Procedure Committee recommended EVEL back in 1999, but did not have the detailed analysis of the 2013 McKay report or the 2014 White Paper to guide them. The committee tend to move rather slowly, but that may be just what Chris Grayling wants.
The second would be to seek to build a cross-party consensus by inviting other parties to join in cross-party talks. This would be a better forum for involving the SNP, and the DUP, both of whom expressed doubts about EVEL in the run up to the election. It would be a way of enabling them to express their doubts, and tying in the leaders of their party groups to any compromise procedure.
The third would be to announce some limited experiments with non-controversial bills, to test out the technical aspects of English only bill committees, and English Grand Committees debating legislative consent motions, etc. The discussion about EVEL has involved grappling with so many unknowns, it would be good to test some of them out, and the experiments could provide useful evidence for the Procedure Committee or for cross-party talks.
The fourth option would be take a leaf out of Labour’s book, and refer the matter to a citizens-led constitutional convention (p.64). This would only happen if the government decided to refer other tricky devolution issues to a convention, such as further powers for Scotland (‘Smith plus’), and decided to throw in EVEL as well. It would not gain much, save possibly public endorsement for the policy. Public opinion surveys have repeatedly shown strong public support for the principle of EVEL, in Scotland as well as in England. But the devil is in the detail, and the details can only be worked out in the House of Commons, not in a citizens’ convention.
The final option would be to seek the advice of the Speaker. John Bercow has shown himself to be a reformer and an independent minded Speaker. He would play a key role in any form of EVEL, since the Speaker would have to rule on which divisions will count as English only votes, and his rulings may be liable to challenge. It would make sense for Chris Grayling to include EVEL as an agenda item for one of his first meetings with the Speaker. The Speaker’s support could make all the difference. Without it, EVEL could well become a further example of the problems inherent in House of Lords reform – namely that everyone agrees that ‘something must be done’, but there is no consensus of what should be done.
About the Author
Robert Hazell is Professor of Government and the Constitution & Director of the Constitution Unit.