Legislation at Westminster – and how parliament matters more than many people think

The Westminster parliament is famous throughout the world, but often presented as relatively non-influential when it comes to making the law. Meg Russell and Daniel Gover‘s new book Legislation at Westminster is the most detailed study of the British legislative process for over 40 years, and challenges these assumptions. Here the authors summarise their findings on how different groups of actors at Westminster exercise subtle and interconnected influence, contributing to what they dub ‘six faces of parliamentary power’.

The Westminster parliament inhabits one of the most famous buildings in the world – emblematic both of Britain and of stable democracy. Yet when it comes to policy-making, and particularly to making the law, many see Westminster as relatively non-influential. In the popular media, parliament is frequently portrayed as a mere ‘rubber stamp’, where a docile Commons majority approves what government puts before it. Among academic authors views are generally more nuanced, but a mainstream public policy textbook nonetheless claims that ‘parliament plays only a limited role in decision-making in the British Westminster model’, while a recent British politics textbook suggests that ‘the House of Commons is misunderstood if viewed as a legislator’. Even scholars who celebrate parliament present the early stages of initiating and formulating legislation as ‘overwhelmingly a government-centred activity’. Despite the ostensibly central role of the ‘legislature’ in the legislative process, these specialists instead emphasise parliament’s other crucial functions, such as representation, scrutiny and legitimation.

Perhaps because it is thought likely to be fruitless, but also due to the painstaking work involved, until recently no large-scale study had been conducted on influence in the Westminster legislative process since Griffith’s classic 1974 Parliamentary Scrutiny of Government Bills. Griffith’s key finding was that many government amendments proposed to bills in parliament in fact responded to earlier proposals from non-government parliamentarians – showing that influence was more complex than it seemed. A major Constitution Unit project, funded by the Nuffield foundation, sought to explore how these dynamics may have changed, and specifically whether the ‘rubber stamp’ claim is correct. Our early quantitative results, based on study of over 4000 amendments to 12 case study bills passing through parliament during the period 2005-12, showed that it was not. The majority of government amendments with substance were traceable to parliamentary pressure, while the ‘failure’ of non-government amendments could not be taken at face value. Our newly-published book, Legislation at Westminster: Parliamentary Actors and Influence in the Making of British Law, tells a fuller story, drawing not only on amendment analysis, but also wider documentary analysis, and over 100 interviews with those closely involved in the passage of the 12 bills.

Part of the difficulty in assessing parliamentary influence is common perceptions of power. Looking for on-the-record changes wrought by parliament provides only a very narrow view. But it is often acknowledged in the politics and international relations literature that power takes many forms. One classic account suggests that it has three distinct faces, others that it has four or more; there are notions of hard and soft power, persuasive versus coercive power, and the ability to exercise power both positively and negatively. Such alternative conceptions have rarely been teased apart when discussing the power of parliaments.

Our study is organised by the various ‘actors’ in the policy process at Westminster, each of whom has a dedicated chapter. After introducing the basics of the legislative process and the case study bills, we go on to describe, using numerous quotations and examples, the diverse contributions that these actors make. This post provides a very short summary of our findings.

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EVEL won’t worry the new government – but the West Lothian question may well do

Following the election result some pundits have suggested that English votes for English laws might be an obstacle to the government, given its reliance on support from non-English MPs, whilst others have suggested the procedures might provide the government with an enhanced English majority. In this post Daniel Gover and Michael Kenny explain that neither of these possibilities is likely to occur. However, the territorial balance of the new Commons could cause the West Lothian question to come back to the fore – though not solely in relation to England.

Amidst the swirl of punditry and opinion unleashed by this month’s general election result, attention has once again turned to the ‘English votes for English laws’ reform (otherwise known as ‘EVEL’) recently introduced in the House of Commons. EVEL aimed to address concerns about the capacity of MPs from outside England to exercise a determining vote on England-only legislative matters. Some pundits have suggested that it may well represent an acute obstacle, of the Conservatives’ own making, to the prospects of Theresa May’s minority government given its reliance on support from MPs outside England. Others, by contrast, have wondered whether EVEL might give her the enhanced majority she needs to govern England. In fact, neither of these possibilities is likely to occur.

Indeed, some of the more outlandish claims in circulation about EVEL supply yet more evidence of how poorly understood this set of procedures still is. In our in-depth analysis of its first year of operation – Finding the Good in EVEL, published in November 2016 – we argued that the EVEL procedures should be simplified, made more transparent, and be better explained by government. But, although EVEL itself is unlikely to greatly hinder this minority government in parliament, some of the wider issues underpinning the ‘West Lothian Question’ (to which EVEL was a very belated answer) may well resurface, and it is worth pondering those at this particular moment.

EVEL and the West Lothian Question

The arithmetic of the new House does mean that questions of territorial representation could well become divisive and difficult for Theresa May, and these may add to the formidable set of challenges ahead of her. But to understand these, we should first remind ourselves of the iconic West Lothian Question posed by the late Tam Dalyell in response to proposals for devolution in the 1970s. Dalyell raised two distinct issues. His central complaint was that, were devolution to be implemented in only certain parts of the UK, MPs who represented seats where devolution applied could, in principle, determine outcomes for those who lived in non-devolved parts of the UK, whilst MPs representing the latter could not do the reverse. Implicit within this, however, was a second observation: that devolution might legitimise the idea that any UK administration needed a ‘mandate’ to introduce legislation for territories where it was not the majority party.

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The government’s ‘English votes for English laws’ review: an assessment

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.

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English votes for English laws one year on: a critical evaluation

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On 28 November the Constitution Unit hosted a seminar in parliament to mark the publication of a major new report by Professor Michael Kenny and Daniel Gover evaluating the first year of the new English votes for English laws procedures in the House of Commons. Kenny and Gover summarised their findings before two respondents, Roger Gough and Oonagh Gay, offered their thoughts on the report and the EVEL system. Dominic Walsh reports.

In his speech in Downing Street following the Scottish independence referendum David Cameron drew attention to the ‘English question’. ‘We have heard the voice of Scotland’, the then Prime Minister said, ‘and now the millions of voices of England must be heard’. With this in mind a set of procedural changes to the workings of the House of Commons, known as ‘English Votes for English Laws’ or EVEL, were proposed by the Conservatives at the last general election. These were implemented through changes to standing orders in October 2015.

There was great fanfare about the introduction of EVEL at the time. Over a year on, however, it appears to have faded almost entirely from the public view. How has the procedure worked in practice during its first 12 months? Has it been a success so far, or have criticisms of it been vindicated? These questions are addressed in a new report published jointly by the Centre on Constitutional Change, the Mile End Institute and the Constitution Unit, supported by the Economic and Social Research Council. This was launched at a Constitution Unit seminar held at Westminster on 28 November. What follows is a summary of the event; the authors, Daniel Gover and Professor Michael Kenny have written a separate blog post outlining their report in more detail.

Overview of the report

Michael Kenny introduced the event by outlining the aims of the project. These were to evaluate EVEL’s first year of operation, to examine whether the evidence bears out the criticisms made of EVEL, and to explore options to make EVEL more legitimate and transparent. He also gave some background by summarising recent historical trends which gave rise to the adoption of EVEL as policy by the Conservatives.

By and large, Kenny argued, EVEL has worked as intended thus far. However, major issues of legitimacy remain. The partisan division in the Commons vote introducing the measure was stark: every single MP who voted in favour was a Conservative, and all who voted against belonged to an opposition party. This may raise concerns that EVEL will not survive a change of government – particularly as the procedure was introduced through changes to standing orders rather than legislation, meaning that it could be repealed or suspended through a single vote. Kenny also added the caveat that the current Conservative government has a larger majority in England than in the UK as a whole and so the system has not yet been ‘stress-tested’ in circumstances where different English and UK majorities on pieces of legislation are likely.

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One year of EVEL: evaluating ‘English votes for English laws’ in the House of Commons

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A major report on how the new ‘English votes for English laws’ (EVEL) procedures in the House of Commons have operated since their introduction in October 2015 is published today. The authors, Daniel Gover and Michael Kenny, argue that the current version of EVEL has avoided many of the problems predicted by its critics. However, they recommend changes to facilitate greater expression of England’s voice (as opposed to simply a veto right), to apply the ‘double veto’ principle that is central to the reform more consistently, to reduce the complexity of the system and to improve its legitimacy. The report is summarised here.

finding-the-good-in-evelIt is now just over a year since the House of Commons adopted a new set of procedural rules known as ‘English votes for English laws’ (or EVEL). Put simply, EVEL provides MPs representing constituencies in England (or England and Wales) with the opportunity to veto certain legislative provisions that apply only in that part of the UK. (For a reminder of how the process works, see here). Introduced with some fanfare by the Conservative government following the 2015 election – and criticised heavily by its political opponents – these procedures have quickly faded from public view. But, one year on, what lessons can be drawn from how EVEL has operated so far?

Over the past year, we have been conducting an in-depth academic investigation into the implementation of EVEL. This work has been supported by the Centre on Constitutional Change and the Economic and Social Research Council. It has involved a detailed analysis of the main arguments for and against this reform, and a full assessment of how the procedures have worked in practice during their first 12 months in operation (October 2015–October 2016). Today we publish our findings in a new report, Finding the Good in EVEL, which also includes a number of proposals for how this system could be significantly improved.

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Sunday trading and the limits of EVEL

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Yesterday MPs defeated the government by 317 votes to 286 on its proposals to relax Sunday trading rules. But although the policy would have applied only in England and Wales, the votes of Scottish MPs proved decisive. In this post Daniel Gover and Michael Kenny discuss the territorial dimensions to this episode, and why the recent ‘English Votes for English Laws’ reform did not help the government to pass its legislation.

Yesterday’s decision by MPs to reject government proposals in the Enterprise Bill to devolve Sunday trading rules to local authorities was a rare example of a government defeat on the floor of the Commons. But what makes yesterday’s vote contentious and important is that it brought to the fore a territorial angle to British politics that has already risen in prominence since 2014’s Scottish independence referendum. Earlier this week the Scottish National Party announced that its MPs would vote against the Sunday trading provisions – even though the policy would only have applied in England and Wales (while responsibility for comparable legislation in Scotland is devolved to the Scottish Parliament). In yesterday’s division, MPs voted by 317 to 286 to delete the provisions from the bill. Had Scotland’s 59 MPs not participated in the division, the government would have won by 21 votes.

The Sunday trading vote highlights an anomaly in Westminster representation post-devolution that many assume the current government has resolved. In the 1970s, Tam Dalyell, the Labour MP for West Lothian (and a staunch opponent of devolution), posed his now-famous ‘West Lothian Question’: why should Scottish MPs continue to vote on matters affecting only England, when English MPs cannot participate in comparable decisions affecting Scotland? Following the 2015 general election, Chris Grayling, Leader of the House of Commons, announced that the government was now ‘answering the West Lothian question’ through a package of reforms known as ‘English Votes for English Laws’ (EVEL). He explained to the Commons that the change would give English (and English and Welsh) MPs ‘a decisive say on matters that affect only their constituencies’.

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The Lords, financial privilege and the EU referendum franchise

Meg-RussellDan Gover

The House of Lords amended the government’s European Union Referendum Bill in order to allow 16 and 17-year-olds to vote in the referendum. Last week the Commons overturned the Lords amendments claiming ‘financial privilege’. Ahead of fresh votes in the Lords on the topic, Meg Russell and Daniel Gover explain this much misunderstood term.

Hot on the heels of the argument over tax credits, this week sees a new row over the constitutional propriety of the House of Lords challenging government policy. This time the topic is the rights of 16 and 17-year-olds to vote in the EU referendum. On 18 November the government was defeated in the Lords on this question, with peers agreeing an amendment to give young people the vote. On 8 December the House of Commons overturned this proposal, citing ‘financial privilege’ because the extension of the franchise would have cost implications. The Lords is due to debate the matter again tomorrow, and there are accusations on both sides: on one hand that the claim of Commons financial privilege is somehow improper, and on the other that it would be improper for the Lords to press the matter any further. These are murky and little-understood constitutional waters, but having specifically completed a research project on financial privilege last year, we hope that we can offer some clarity.

Since last week’s Commons decision there have been many incorrect statements about financial privilege. For example, there have been claims that ‘the government has had it declared a “financial” matter’ in a show of ‘political chicanery’ in order to ‘ra[m] its agenda through’ parliament, and that as a consequence the Lords would be ‘prevented from voting against it’ because the move ‘takes away the right of the Lords to intervene’. It is exactly these kinds of misunderstandings that our project sought to clear up: through publication of a detailed report, as summarised in a journal article and a previous post on this blog. The shortest and simplest summary of our conclusions is contained in the presentation slides for the report’s launch in the House of Lords. A key conclusion was that the rules in this area are insufficiently clear, and that they need clarification because arguments over financial privilege are likely to become more common. This week’s events appear to prove us right.

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