Last Thursday the government published its technical review of the operation of the ‘English votes for English laws’ (EVEL) procedures in the House of Commons. The review concluded against making ‘any substantive changes’. Daniel Gover and Michael Kenny argue that this is a missed opportunity. The decision to close down this chance for parliament to engage in meaningful debate about the EVEL system is regrettable, and may prove to be short-sighted.
Last week the government published the conclusions of its long-awaited technical review of the operation of ‘English votes for English laws’ (EVEL). This system, designed by the government and introduced in the House of Commons in October 2015, provides English (and sometimes English and Welsh) MPs with a veto over certain legislation that applies only in that part of the UK. (For a reminder of how the EVEL process works, see here.) The government’s review is 12 pages in length, and provides a fairly perfunctory response to some of the main criticisms made of this system. Ultimately, however, it concludes against making ‘any substantive changes’ to the procedures.
That the government has decided to stick with this largely unloved set of procedures is no real surprise, given the defensive stance it has consistently taken on the matter. But the decision to publish its review findings on 30 March – the morning after the triggering of Article 50, the day of the publication of the Great Repeal Bill white paper, and on the final day of Commons business before recess – ensured that its appearance was barely noticed by media and political parties, and suggests a desire to avoid reopening political debate about EVEL. The government’s unwillingness to commit to making even small adjustments, including those recommended by the cross-party Commons Procedure Committee, is also regrettable, and will do little to reassure those already suspicious of the Conservative Party’s motives on this score.
Ever since the idea of introducing special procedures to deal with English-only legislation emerged on the political agenda, in the aftermath of the Scottish independence referendum, it has been the source of extensive debate and some controversy. Unlike other critics, we have ourselves set out the case for attempting to introduce measures of this kind. As we put it in our recent report, Finding the Good in EVEL, ‘the system introduced by the government can be regarded as a positive innovation’. We have also argued that many of the criticisms commonly made of this scheme are less persuasive than they first appear, in large part due to the specific way in which the government has designed the new system.
However, we also highlighted several weaknesses in the current scheme, including its complexity, its failure to give England a meaningful ‘voice’, and its lack of legitimacy. And the research we have undertaken leads us to conclude that the government’s review has not succeeded in rectifying these problems.
Government’s response to criticisms
Take, for example, the criticism that EVEL has not improved England’s ‘voice’ at Westminster. In its review conclusions, the government repeatedly states the opposite position, for instance claiming that EVEL has ‘strengthened England’s voice, just as devolution has strengthened the voices of Scotland, Wales and Northern Ireland’. Yet this assertion lacks foundation, and is at variance with other recent assessments.
We showed in our report that the new EVEL ‘legislative grand committee’ stages introduced by the government have been almost entirely perfunctory, with most lasting an average of around two minutes each. And we concluded that, while EVEL has been successful in providing a right of veto for English MPs, it has done very little to achieve any meaningful sense of ‘voice’. The influential cross-party Commons Procedure Committee similarly concluded that the new processes ‘are not effectively serving the broader objective of [providing … ] a separate voice’. The government insists otherwise, but does very little to explain why.
Just as importantly, its insistence that EVEL can be seen as an equivalent of sorts to devolution elsewhere in the UK lacks plausibility, and is an instance of the kind of ‘over claiming’ in relation to EVEL which has been a consistent feature of the government’s presentation.
A second familiar criticism of EVEL is that it is far too complicated in character. The procedures create the potential for up to eight additional stages within the legislative process when votes might be held. In its review the government acknowledges complaints about complexity, but responds that ‘In the absence of any incident where [EVEL …] failed to ensure that the Parliamentary process is delivered, the Government does not believe a redraft is required’. This also looks like an attempt to wish away a genuine problem, rather than meaningfully address it.
The opacity of the current procedures is a weakness, for different reasons. For a start, it heightens the likelihood that MPs will not understand the system, and this might become a significant problem should the rules become implicated in a major political disagreement, or a wider constitutional crisis. And second, the complexity of the rules threatens to make parliamentary practice less accessible to the public – something that conflicts with the very purpose of EVEL.
Looking to the future
Given the additional legislative burden that Brexit is very likely to place upon parliament in the next two years, these are serious concerns. The legislation associated with the repatriation of powers from Brussels may throw up unanticipated scenarios that call into question some of the key features of a scheme that has not as yet been properly ‘stress tested’. In EVEL’s first year of operation, the government has generally been able to command a majority both among English MPs and across the whole House. But Brexit could well bring to the surface new tensions and disagreements within the Conservative Party, and the EVEL procedures may become an additional site where such conflicts are played out.
In particular, events may well shine fresh light upon the limits of EVEL. Although English MPs have obtained a veto right in certain circumstances under these procedures, legislation continues to require the backing of the whole House to pass into law. This means that the votes of non-English MPs can continue to be decisive on England-only policy matters, as occurred last year on Sunday trading (in relation to England and Wales). Similar episodes could plausibly arise in the near future, for example on the question of grammar schools in England. In a context where there is growing sensitivity among the largest populace within the UK about the deal that England receives within the Union, such a scenario could have far-reaching constitutional consequences.
Ultimately, this review represents a missed opportunity to revise and improve this set of rules. EVEL is now an important part of the ‘rules of the road’ used to conduct legislative business at Westminster. And, in a context where those rules may well be severely tested, the decision to close down this opportunity for parliament to engage in meaningful debate about them is regrettable, and may prove to be short-sighted.
You can view Daniel Gover and Michael Kenny’s report, Finding the good in EVEL: An evaluation of ‘English Votes for English Laws’ in the House of Commons, at this link.
About the authors
Daniel Gover is a Research Fellow at the Mile End Institute, Queen Mary University of London.
Michael Kenny is a Professor in Politics at Queen Mary University of London, and Director of the Mile End Institute.
It is a pleasure to find I agree with a whole article on this site, a rare circumstance. My first observation is that the perfection that is sought may not be possible. There is hardly anything that England does that does not also, sooner or later, affect the other parts of the UK. The converse is also true but to a lesser extent. The economies can never be truly separate. Defence and security is agreed to be whole-UK business. What is left that can be said truly to have no impact on any of these areas and would therefore be capable of independent governance by the constituent parts of the Union? The basic choices are subordination of one or more to the majority, total independence or compromise and agreement on the extent of variance or divergence between the component parts. Since this last is supposed to be the basis of parliamentary democracy, its raison d’etre in the first place I wonder whether the right problem is being addressed. Why is Parliament failing to achieve this fundamental purpose? Is it failing? Why is there a need to change anything at all? Is this meant to be a one-off change to correct a long-standing problem or to set a path towards some destination, such as full independence? Is there broad agreement on the purpose of the exercise? Is the real problem one of party representation?
In the context of Brexit, I would have thought powers being returned from the EU were all UK powers in the first place and so would and should be returned to Westminster, unless the powers originally differentiated between the components of UK. Did any? Some EU ‘competences’ are shared between the EU and the member state, so perhaps they did. Further the basis of such variation may have changed between the dat of transfer to the EU and its return. But surely this is easily traceable, without controversy?
Powers are distinct from EU legislation. All EU legislation applies to all parts of the UK and where variation is allowed it is specified in an EU directive. Enactment in UK would have taken into account variations within UK at the time of the enactment in UK law. EU regulations can be maintained, amended or repealed according to the existing distribution of powers among legislatures of the UK but first consideration would be in the Westminster Parliament. In some cases Parliament may delegate powers to ministers to implement, further amend or at some stage repeal such regulations, but this can be done in such a way as to comply with the distribution of powers at the time.
It is hard to see why, apart from the potential work-load, any of this ‘return of powers to UK’, should necessarily pose a fundamental problem necessitating a different approach to solving the West Lothian Question. There is a practical argument for not changing the rules on the distribution of powers and the operation of parliament during the bulk of this process. And I can see that some of the issues, once powers are returned to UK can significantly raise the importance of policies and regulation in some ares. Fisheries come to mind. But again, that is distinct from the principles involved.
The greatest danger, it seems to me is that UK would engineer a system on the basis of short term considerations rather than principles that can be expected to endure – something of a British habit. The last thing we want is a constitution organised around a political argument between the SNP and the Tories on things such as oil revenues or regulation of North Sea fisheries. We need a solution that can operate well in all circumstances and endure, as Parliament has done over the centuries.