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 2017 election manifestos and the constitution

Over the past two weeks the political parties have published their manifestos for the snap general election. In this post Chris Caden and Fionnuala Ní Mhuilleoir summarise the constitutional content, covering proposals relating to Brexit, the possibility of a constitutional convention, devolution, House of Lords reform, electoral reform, human rights and freedom of information.

Theresa May’s surprise election announcement left the political parties with the challenge of putting together manifestos in a matter of weeks. The Conservatives, Labour, the Liberal Democrats, the Green Party and Plaid Cymru all published their manifestos in the week beginning 15 May. UKIP followed on 25 May and the SNP on 30 May. With much of the election debate centring on whom the public trust to lead the country through the biggest constitutional upheaval in recent history, Brexit is unsurprisingly covered by all the parties. Attention on other constitutional issues has wavered somewhat as a result, but Labour and the Liberal Democrats both propose a constitutional convention to review aspects of the UK’s constitutional arrangements. The manifestos also lay out a variety of options in areas such as House of Lords reform, devolution, electoral reform and human rights.

Brexit

Negotiating Brexit is a major theme for all parties. The Conservative Brexit commitments include ending membership of the single market and customs union so that a greater distinction between ‘domestic and international affairs in matters of migration, national security and the economy’ can be made. This means negotiating a free trade and customs agreement between the UK and EU member states and securing new trade agreements with other countries. Theresa May’s party aims for a ‘deep and special partnership’ with member states. A successful Brexit deal would entail regaining control of borders, reducing and controlling net migration, but maintaining a ‘frictionless’ Common Travel Area for people, goods and services to pass between Northern Ireland and the Republic of Ireland. The manifesto controversially maintains that ‘no deal’ is better than a bad deal for the UK.

Labour also accepts the referendum result, but rejects ‘no deal’ as a feasible option and envisages something more akin to a ‘soft Brexit’. The party would scrap the Conservatives’ Brexit white paper and replace it with an agreement maintaining the benefits of the single market and customs union; the government’s proposed ‘Great Repeal Bill’ would be replaced with an EU Rights and Protections Bill to ensure no changes to workers’ and consumers’ rights, equality law or environmental protections. The party pledges to immediately guarantee existing rights for all EU nationals in the UK and UK citizens in EU countries, and would also seek to remain part of various research and educational projects such as Horizon 2020, Erasmus and the European Medicines Agency. Additionally, membership of organisations like Eurojust and Europol would be retained. Labour commits to no hard border between Northern Ireland and the Republic of Ireland.

Unlike the Conservatives and Labour, the Liberal Democrats and Greens pledge a second referendum after a Brexit agreement is concluded, which in each case would include an option on the ballot paper of staying in the EU. Preventing a hard Brexit is the first priority for the Lib Dems and as a result the party promises to fight for the continuation of UK membership of the single market and customs union. It also pledges to protect the rights of EU citizens living in the UK and UK citizens abroad, to maintain UK participation in the Erasmus+ programme and other EU-funded schemes, and to retain the European Health Insurance Card. The Greens set out a similar agenda.

The SNP wishes to mitigate what they see as the damage of Brexit with the proposal that Scotland should remain in the single market. The party seeks additional powers for the Scottish government including powers that will be repatriated from Brussels to the UK like agriculture, fisheries, environmental protection and employment law. Plaid Cymru, meanwhile, pledges to make sure ‘every penny’ of European funding for Wales is replaced by the UK government and that the Welsh share of the money promised by the Leave campaign (referring to the £350 million for the NHS) is delivered. It also demands that the UK government seeks the endorsement of each UK devolved legislature before any trade deal can be signed.

UKIP supports leaving the single market, the customs union and the European Court of Justice. The manifesto outlines that no ‘divorce’ bill should be paid to the EU and that Brexit negotiations will be complete by the end of 2019.

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Devolution in England: a review

On Monday 10 April Professor Tony Travers of the London School of Economics (LSE) spoke at a Constitution Unit seminar on devolution in England. The talk covered the history of English devolution, international comparisons, and some thoughts for the future amidst the current Brexit-dominated political landscape. Kasim Khorasanee reports.

English devolution – the delegation of powers, responsibility, and accountability from central Whitehall/Westminster government to sub-national levels – has had a fitful and uneven history. Its inevitable comparators are the devolution processes to Northern Ireland, Scotland, and Wales which took place from the late 1990s onwards. All three received national devolved governments and legislatures. More recently, Scotland and Wales have been the subjects of significant fiscal devolution. England, on the other hand, appears to have been left out in the cold – having no devolved government outside London, and both fewer MPs and lower public expenditure per head of population than other parts of the UK. Professor Travers explained that historically this trade-off was seen as necessary to maintain the Union – it was felt that an assertive England would dominate any federal union, for example its budget would be significantly larger than a federal UK government’s. However, devolution to the other UK nations had stirred something of a burgeoning sense of English identity.

English devolution – a brief history

Taking us on a canter through the history of English devolution, Travers began with Labour’s aborted attempts in the 1970s. The Kilbrandon Report (1973) recommended regional devolution within England, as well as legislatures for Wales and Scotland. The Layfield Report (1976) emphasised the importance of local accountability and responsibility for financial matters. Both failed to be implemented, and attempts at Scottish and Welsh devolution played a key part in the fall of the Labour government. The ensuing Conservative government in the 1980s brought to an end a number of significant devolved entities – metropolitan counties, the Greater London Council, and the Greater Manchester County Council. It was under Tony Blair’s Labour government that devolution received its new life. However, while Scotland, Wales and Northern Ireland received devolved assemblies, regional devolution within England was stopped short by the North East referendum (2004). But the North East was offered ‘nothing like’ the powers devolved to Scotland and Wales. An opposition campaign, illustrating their point with a life-sized white elephant, convincingly defeated the devolution proposal by 78 per cent to 22 per cent. This left the idea of regions ‘doomed – possibly forever’. In terms of new elected bodies, the only significant change was hence the resurrection of London-wide government, with the establishment of the Greater London Assembly and London Mayor in 2000.

City regions and fiscal devolution

Travers flagged that ‘city regions’ have since taken over as the focus of English devolution efforts. He drew a parallel between Tony Blair’s presidential governing style, and his push for city regions to be led by further directly-elected mayors. This enthusiasm was carried on by David Cameron, who continued to build on his predecessor’s policy. City regional mayors were made a condition of greater devolution to combined authorities. Travers emphasised that the current legislative framework for English devolution envisaged highly ‘bespoke’ devolution across the country. In doing so he highlighted that this could result in wide – seemingly random – disparities in the functions devolved to different city regions. One area which appeared quite resistant to change, however, was fiscal devolution. Although the aforementioned Layfield Report, and more recently the London Finance Commission’s reports (2013 & 2017), called for localised responsibility for taxation, central government has traditionally been highly reluctant to implement this. Travers acknowledged that responsibility for local business rates was being devolved to local government by 2020, but pointed out that it was being offset by the phasing out of the central grant to councils.

To put the UK’s lack of fiscal devolution in context Travers drew on international comparisons. He cited OECD statistics setting out the UK’s sub-national tax-raising as 1.6 per cent of GDP. By comparison Sweden, Canada, and Germany all had figures of over 10 per cent, the OECD average sitting at 8.8 per cent. The UK was very much an outlier in this respect (see below).

Similarly there are far fewer taxes devolved to London when compared with other capitals such as New York, Berlin, Tokyo, and Paris. In sum there would have to be far more radical change than currently envisaged to bring the UK into alignment with OECD trends.

Current government policy

From speaking to civil servants, Travers identified that Theresa May’s Conservative government intended to shift its emphasis away from devolution. The current ongoing processes for the May 2017 elected mayors, the 2018 mayoral election in Sheffield, and the potential for a ‘North of Tyne’ combined authority and mayor, were the extent of the devolution policy horizon. In a piece of analysis which drew chuckles from the audience he cited the number of UK budget mentions of the phrases ‘devolution’, ‘Northern Powerhouse’, and ‘mayor’ between March 2013 and March 2017. There was a spike in mentions after the coalition – between 2015 and 2016 the average number of mentions of the three phrases per budget document was 31, 14, and 13 respectively. However this dropped sharply in Philip Hammond’s March 2017 budget to eight, one, and zero mentions respectively.

Mayors and communal identities

Travers suggested that the experience of London indicated that the introduction of directly elected mayors for city regions across the UK could have significant implications. As well as having a generally higher turnout compared to local elections, London’s mayoral elections have helped cement the idea of London as a political unit in people’s minds. Devolution can reinforce a sense of difference from the whole, and Travers drew attention to the fact that the three significant ‘Remain’ regions in the EU referendum – Greater London, Northern Ireland, and Scotland – were also the subjects of significant devolution (though the balance of votes in Wales was for ‘Leave’). In the case of London this sense of civic identity had not yet gained enough momentum to push for Scottish or Welsh-style devolution. However, Travers did note an increase in the number of news articles discussing London independence. He suspected that the incoming 2017 elected mayors would – as London’s mayor had historically done – lobby for increased powers once in office. As a body the mayors could hence potentially become a lobby for English devolution. Given the consistent electoral popularity of London’s mayors, and some of the high profile candidates for the incoming May 2017 mayoral elections, these positions might also increasingly prove a staging ground for national political careers.

Reflections

In considering why England was so centralised Professor Travers reflected on a variety of explanations – the historic power of the Crown, the end of Empire, and the conflicts with local government across the 1970s and 80s. Ultimately, he expressed uncertainty about the reason, but suggested that national politicians in the UK appear to instinctively have little faith in sub-national government. Ultimately the future of English devolution is tied up with wider forces – the fate of the Union, austerity and the financing of the state, and the Brexit process.

About the speaker

Professor Tony Travers is a Professor at the LSE, and Director of the LSE London research centre

About the author

Kasim Khorasanee is a Research Volunteer at The Constitution Unit

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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Options for an English Parliament: lessons from existing decentralised states

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Last year the Constitution Unit began work on a project exploring the options for an English Parliament. As part of this research we are examining arrangements in other decentralised states, particularly those which are federal, to draw out lessons for the design of political institutions were an English Parliament to be established. Jack Sheldon and Meg Russell summarise some early findings.

Last autumn we began work on a research project exploring the options for an English Parliament. As outlined in a previous blog post, calls for an English Parliament have long existed, but frequently been dismissed by academics and mainstream politicians. However, in recent years the salience of questions concerning England’s constitutional status has increased and as a result the idea has gained new supporters. Despite this no detailed analysis of the design options for an English Parliament – including key questions such as its possible powers, structure and location – has previously been undertaken. We are aiming to close this gap and plan to publish a report in late 2017.

As part of our research we are examining constitutional arrangements in existing decentralised states, including those which are federal. In this blog post we present some early findings from a survey of arrangements in the 22 states that are listed as federations by the Forum of Federations. The establishment of an English Parliament would not necessarily imply a federal arrangement for the UK, but certainly something like it – with separate legislative institutions for the four historic nations. When drawing out comparative lessons, looking at existing federal states is therefore an obvious place to start.

What are federations and when are they established?

The term federalism covers a wide range of political systems in which legislative powers are divided between state and sub-state levels (see Dardanelli and Kincaid, 2016, for further discussion of the definition). Among the 22 federations listed by the Forum of Federations there are 11 parliamentary systems, nine presidential or semi-presidential systems and two that fall into none of these categories. Even within these categories there is great variation in institutional structures.

The classic early federations – the United States, Australia and Canada, for example – were comprised of existing autonomous political systems. ‘Coming together’ federations of this type remain more numerous than ‘holding together’ federations formed from previously unitary states (for discussion of this distinction see Stepan, 1999). However, the latter category has grown in the post-1945 period. Examples of ‘holding together’ federations include Belgium and India, whilst Spain – though not strictly a federation – has moved in an increasingly federal direction. Were it to move in the direction of a more federal structure the UK would not, therefore, be out of step with developments elsewhere.

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Brexit, federalism and Scottish independence

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As the UK withdraws from the EU, is this the opportune moment for a restructuring of the Union along (con)federal lines? On 13 February, the Constitution Unit hosted a panel discussion on ‘Brexit, Federalism, and Scottish Independence’, to explore this question further. The panel, chaired by Kenny Farquharson, consisted of Professor Jim Gallagher, Kezia Dugdale and Baroness (Jenny) Randerson. Seema Syeda reports.

Opening the Constitution Unit’s seminar on ‘Brexit, federalism and Scottish Independence’ on 13 February, Kenny Farquharson declared that ‘Brexit is a painting that has not yet dried’. After the EU referendum result exposed a nation fractured along the lines of geography, age, wealth, and education the full consequences are yet to become apparent. The divisions now manifest in UK society are troubling enough to satisfy the worst of cynics – yet, in the greatest constitutional upheaval the UK has seen in decades, some have spied an opportunity.

Might the transfer of wide-ranging powers from Brussels, not only to Whitehall but also to the devolved administrations, provide an opportunity to revitalise our democracy through a newly federal UK? Important competencies relating to agriculture, fisheries and the environment will, unless the UK government legislates otherwise, return to the Scottish Parliament and to the Welsh and Northern Ireland Assemblies. Both the devolved and central governments will therefore see a dramatic increase in their powers. Brexit, as ‘wet paint on canvas’, in a continuation of Farquharson’s vividly imagined metaphor, might be an opportunity to restructure the relationship between the UK’s four constituent nations.

These possibilities were discussed by a panel which consisted of Professor Jim Gallagher, Scottish Labour leader Kezia Dugdale and former Liberal Democrat Welsh Assembly member and Wales Office minister Baroness (Jenny) Randerson. Kenny Macaskill, Cabinet Secretary for Justice in the Scottish government under Alex Salmond, was also due to attend but unfortunately could not make it due to unavoidable business in Scotland.

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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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