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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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 triumph of EVEL: What next for the English Question?

akfBTj4-_reasonably_smallDan Gover

Yesterday MPs voted by 312 to 270 to adopt changes to the House of Commons Standing Orders that will allow ‘English votes for English laws’ to take effect. In this post Michael Kenny and Daniel Gover highlight some of the issues that will need careful monitoring and reflect on the wider implications, arguing that the implementation of EVEL is very likely to impact on debates about the future constitutional character of the UK.

MPs voted yesterday to approve controversial changes to the House of Commons Standing Orders that implement the principle of ‘English votes for English laws’ (EVEL). This attempt by the governing party to address the ‘West Lothian Question’, and to frame its response as a key part of its answer to the question of English devolution, is a watershed moment in the history of parliamentary government in the UK. The ethos underpinning the development of devolution in non-English parts of the UK has now been applied to the largest territory within the UK, and the Conservative party has moved away from the unionist assumption that England rests content to be governed by British institutions. This effort to identify and institutionalise an English dimension to the workings of the UK parliament has attracted a good deal of procedural comment and political controversy. But whatever the political calculations and interests it reflects, the constitutional significance of this attempt to offer some form of devolution for England should not be overlooked.

English votes for English laws: a recap

Under the new procedures the Commons Speaker will be required to ‘certify’ bills, or clauses within them, that meet two criteria: first, they relate only to England (or England and Wales); and second, comparable policy decisions are devolved elsewhere in the UK. On such legislation, MPs representing English (or English and Welsh) constituencies will have the opportunity to give their ‘consent’ to the provisions, through two new mechanisms: first, a Legislative Grand Committee of English (or English and Welsh) MPs will vote on a ‘consent motion’ prior to the bill’s third reading; and second, a ‘double-majority’ voting system will apply when MPs consider Lords amendments (which will also apply on secondary legislation). The effect of these reforms is a ‘double veto’: to pass, certified legislation will require the support both of UK-wide MPs and those representing English (and/or English and Welsh) constituencies. Detailed discussion of the government’s original proposals can be found here. These changes will come into effect immediately, and will affect the passage of a number of bills, even though there is no immediate threat of a ‘West Lothian’ situation in the House of Commons.

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In order to sustain itself, the UK must become a new and different Union

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Jim Gallagher reflects on what the Scotland Bill tells us about the Scotland-UK relationship and devolution more broadly. He argues that the Bill presents a challenge to the unwritten constitution, and that now is the time to clarify and codify the territorial aspects to make a statement about how and why the Union hangs together.

The Scotland Bill calls to mind, irresistibly, the aphorism of Lampedusa: if things are to stay the same, they’ve got to change. If it is to sustain itself as a Union, the UK must become a new and different one. The Scotland Bill should be the catalyst for change, but this isn’t only about Scotland.  It is about how the UK understands itself as a territorial state. Like Scotland, Wales and Northern Ireland understand the UK as a voluntary association bound together by common interests and shared experience, in many ways like a federal country. But too many at the centre of the UK see a unitary state with some untidy territorial edges. In essence this understanding is based on a half-baked notion of parliamentary sovereignty. If the UK wants to stay together, this has to change.

The Scotland Bill makes the nature of Scotland-UK relationship more explicit, and implies similar things about Wales and Northern Ireland too. The UK is a multinational state, an association whose membership is voluntary, and that is now very explicit for both Northern Ireland and Scotland. Scotland has always had its own institutions, separate from the UK’s. For first three centuries after the union, these were Scottish, but undemocratic. For the last 15 years, Scottish institutions have been accountable through the Scottish Parliament. The Scotland Bill puts it beyond doubt that this is irreversible. Devolution is permanent, and the Scottish Parliament is master in its own house: its power is paramount in devolved matters, and it controls its own composition. That is the point of the constitutional provisions of the Bill: statements of the obvious if you like, but that will be true of many constitutions–if you know how the institutions work in practice, you will find the constitutional legislation almost banal.

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The Scotland Bill so far: Major constitutional legislation proceeding at the speed of an express train

Jim-Gallagher

Plans for expanding the powers of the Scottish Parliament have developed rapidly since the Scottish referendum. Jim Gallagher takes advantage of the pause afforded by Parliament’s summer recess to take stock of the Scotland Bill’s progress, and consider the stability of increased decentralisation in the longer term.

Parliament’s summer recess is a good time to catch breath and reflect on the breakneck process of the Scotland Bill. This is constitutional legislation, but proceeding at the speed of an express train.

Express delivery of new powers for the Scottish Parliament was promised during the referendum campaign. The pro-union parties promised – in what was to become the Smith commission – to agree plans in very short order; then they made ‘The Vow’ about what those plans would contain (in, of all places, the Daily Record). The timetable demanded draft legislation before the general election, and a bill introduced immediately thereafter. All of this has duly happened.

The Scotland Bill is very similar to the pre-election draft, with changes to address points of criticism. It is faithful to the Smith recommendations: Virtually complete devolution of income tax – Check. Assignment of half of VAT – Check. Declaration of constitutional permanence for the Scottish Parliament, and legislative basis for (what we must still call) the Sewel Convention – Check. Devolving £2.5 billion of benefits – Check. So from any perspective this is major stuff.

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