In the wake of the devolution settlements of the Blair years, political pressure to answer the ‘West Lothian Question’ persisted. In 2015, the proposed answer was ‘English Votes for English Laws (or EVEL). Today, on its fifth anniversary, Daniel Gover and Michael Kenny assess how EVEL has worked, during one of the most volatile political periods in living memory.
On 23rd October 2015, the ‘English Votes for English Laws’ (or EVEL) procedures came into force in the House of Commons. Introduced by David Cameron in the aftermath of the Scottish independence referendum, these new rules were designed as an answer to the notorious ‘West Lothian Question’ – the late Tam Dalyell’s resonant enquiry about why Scottish, Welsh and Northern Irish MPs should continue to be able to vote on matters that only affected England after devolution, while MPs in England were not able to reciprocate in devolved areas.
When EVEL was introduced, the procedures were sharply criticised by opponents. For some, the reform would not only be logistically difficult to implement – likely to be ‘incomprehensible’ to MPs and the public alike – but would also threaten the UK’s constitutional makeup. In particular, it was argued that EVEL would establish ‘two classes of MP’ at Westminster, undermining the ability of non-English MPs to represent their constituents’ interests. Others, meanwhile, criticised the procedures as too tame, and falling short of providing adequate representation to England.
The five-year anniversary provides an opportune moment to review how this contentious reform has fared in practice. Yet the wider territorial politics of the UK have also undergone significant changes in the intervening period. The questions to which these complicated rules were a response have become ever more pressing, but whether EVEL can provide a sustainable response to the increasingly fraught question of English devolution is increasingly doubtful.
Veto but little voice
The EVEL procedures give English MPs (and English and Welsh MPs) the right to ‘veto’ legislation certified by the Commons Speaker as applying only in England (or England and Wales). This veto right comes as a supplement to the enduring ability of the whole House to reject a bill at other stages. As such EVEL has been referred to as a ‘double veto’ system, meaning that both English (or English and Welsh) and UK-wide MPs must support legislation for it to pass. A more detailed explanation of these processes is available here.
The experience of the last five years indicates that EVEL has largely succeeded in instituting a veto right for English MPs. It has also done so in a way that has avoided the main objections levelled against it. While it is true that EVEL has added to the complexity of parliamentary processes, the system has generally operated relatively smoothly. Since 2015, provisions of 51 bills, and almost 250 statutory instruments, have been certified by the Speaker. This veto right has never actually been applied, meaning that EVEL has not so far altered the outcome of any Commons vote – which is unsurprising, given that the Conservative governments since 2015 have always been better represented in England than across the House. Even if the veto had been applied, however, the ‘double veto’ design means that MPs from the whole House are in no weaker position than before to block legislation – thus lessening arguments that it has created ‘two classes of MP’.
But some proponents of this reform hoped for more than this. One dynamic that fed into the introduction of EVEL was a contention that England’s interests needed to be more clearly recognised and protected within Westminster – as the Conservative Party put it, enabling ‘English MPs to express their voice’. In theory, the EVEL ‘legislative grand committee’ stages – which meet at the end of a bill’s Commons passage to ‘consent’ to certified provisions – achieve this goal. But they have not facilitated any meaningful ‘voice’ in practice. Since 2015 there have been 42 such consent stages, on 35 separate bills. Yet these have been almost entirely a formality: only on four bills did the stages last longer than 10 minutes. Convening these committees has thus added considerable additional bureaucracy and disruption to Commons proceedings, but with little tangible benefit for English representation.
Brexit and COVID-19
In the five years since EVEL was introduced, the Westminster parliament has been engulfed by two major crises: the implementation of Brexit, and more recently responding to COVID-19. Both of these, in different ways, have shed light on EVEL’s vulnerabilities.
The system of ‘consent’ motions within these rules deliberately mimics the ‘legislative consent motions’ operating in the three devolved legislatures, which signal their agreement for Westminster to pass legislation that intrudes upon their areas of competence. Under the Sewel convention, Westminster will not usually proceed on devolved matters if this approval is not forthcoming.
However, recent events have cast significant doubt on whether this convention is as meaningful as was previously assumed, with the UK parliament twice overriding the devolved legislative bodies in order to pass legislation required for Brexit. The UK Internal Market Bill – currently before parliament, and which is likely to be opposed by the Scottish and Welsh parliaments – may well encounter the same fate. The breakdown of the legislative consent process raises important questions about EVEL. While the latter provides a similar mechanism for English MPs, the processes it involves are – in contrast to those elsewhere – opaque, poorly understood and unloved. At the same time, however, these recent episodes around Brexit have highlighted that Westminster does retain the constitutional authority to override the withholding of consent in any part of the UK – and this too may in the future become relevant on EVEL.
Meanwhile, Westminster’s response to COVID-19 may make such a scenario more politically feasible. Many of the public health measures passed by Westminster have applied only in England. Yet, since late April, the EVEL procedures have effectively been suspended due to the pandemic. As a consequence, when MPs voted on secondary legislation such as that implementing the ‘rule of six’ in England, English MPs were not given a veto opportunity – despite the fact that the Speaker confirmed that it met the certification criteria. The reason for the suspension was that it would be difficult for the votes of English MPs to be quickly counted separately within the Commons’ temporary new voting arrangements. While this may be understandable in practical terms, it raises a profound and difficult question about EVEL’s durability. If this government finds these rules impractical in current circumstances, what is now to prevent a future government finding its own reasons to set aside the rules?
EVEL and the future of UK territorial politics
Since EVEL was introduced in 2015, much has changed within the broader territorial politics of the UK. Indeed, the very future of the Union is looking increasingly uncertain, while attitudes in England on constitutional issues are deeply divided. That has been apparent in relation to Brexit, but is also true on the emergent question about Northern Ireland’s future, and the rising possibility of another Scottish independence referendum. Most people still express a preference for the maintenance of the UK in its current form, when asked directly, but over the last decade there is a growing belief in some quarters that the largest part of the UK may have been disadvantaged by devolution elsewhere.
EVEL was intended, in part, to assuage such feelings within England. Yet whether it can provide a sustainable answer in the long term is an increasingly open question. While EVEL may have introduced an English veto right, this remains a long way short of the forms of devolved representation enjoyed by other parts of the UK. It is unclear for how long such a limited set of reforms will be able to satisfy those with concerns about England’s governance within the UK.
Most notably, were a UK government to be elected in the near future that did not carry the support of a majority of England’s MPs, and which is also reliant upon the support of the SNP – a situation which is entirely conceivable in 2024 – the question of EVEL, and the wider problem of English consent to which it was supposed to be an answer, could well become incendiary. And, in a context when there are growing disagreements between the UK government and its devolved counterparts, and where support for independence is growing in Scotland and Wales, this could well add a highly fissile element into an already tense situation.
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About the authors
Dr Daniel Gover is a Lecturer in British Politics at Queen Mary University of London and co-author (with Unit Director Meg Russell) of Legislation at Westminster: Parliamentary Actors and Influence in the Making of British Law (Oxford University Press, 2017).
Professor Michael Kenny is Director of the Bennett Institute for Public Policy at the University of Cambridge.