House of Lords Constitution Committee reports on ‘English votes for English laws’

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The House of Lords Constitution Committee reported on the first year of the House of Commons’ ‘English votes for English laws’ procedure last week. The committee took the view that it is as yet too early to fully evaluate the impact of EVEL, especially as the current government has a majority of both the whole House of Commons and constituencies in England and Wales. It is therefore recommended that an extended trial should take place for the remainder of this parliament, with a final review by a joint committee early in the next parliament. Mark Elliott and Stephen Tierney offer an overview of the report.

The House of Lords Constitution Committee issued its report on ‘English votes for English laws’ (‘EVEL’) last Wednesday. The report examines the new arrangements for the passage of legislation introduced by the government in July 2015 and agreed by the House of Commons twelve months ago. The committee was asked to review the constitutional implications of these procedures by the then Leader of the House of Commons, Chris Grayling, and to report in the autumn of 2016, its conclusions feeding into the government’s own review of the new system.

In this post we reflect upon the evidence gathered by the committee and the report’s main conclusions. We do so in the context of the committee’s recent reports on devolution, in particular its inquiry into the Union and Devolution, published during the last parliamentary session, where the committee considered issues relating to the governance of England while also criticising the ‘ad hoc, piecemeal’ approach to devolution in the UK.

Reviewing the new ‘EVEL’ arrangements

The particular anomaly which the EVEL system is intended to address is of course the West Lothian question, whereby, in the words of the new report, ‘MPs representing the devolved nations are able to debate and vote in the House of Commons on laws only affecting England, while MPs for English constituencies cannot debate or legislate on devolved matters in the other nations.’ Various proposals have been put forward in recent years to deal with this issue, most nobably the recommendations of the McKay Commission which were in the end not implemented. It was not until the 2014 Scottish independence referendum that the issue of lopsided parliamentary representation was addressed. Speaking on the day after the referendum Prime Minister Cameron declared: ‘We have heard the voice of Scotland – and now the millions of voices of England must also be heard. The question of English votes for English laws – the so-called West Lothian question – requires a decisive answer.’

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Theresa May’s ‘Great Repeal Bill’: some preliminary thoughts

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On Sunday Theresa May announced that a ‘Great Repeal Bill’, repealing the European Communities Act 1972 and providing for EU law to be translated into UK law post-Brexit, would be included in the 2017 Queen’s speech. Mark Elliott offers some preliminary thoughts on what this will mean in practice. He writes that it is likely that the legislation will seek to confer upon ministers substantial powers to carry out the process of deciding which aspects of domesticated EU law are to be retained, which are to be amended and which are to excised from UK law altogether. This fits with the overarching message from the speeches on Brexit at the Conservative conference – that the government is committed to an executive-led withdrawal process, and is unprepared to tolerate interference in that process by either parliament or the devolved institutions.

‘Brexit means Brexit’ was only ever going to cut it for so long. And although, in her first speech to a Conservative Party conference as Prime Minister, Theresa May has repeated that well-worn phrase, she has evidently come to the view that Eurosceptics – or Brexiteers, as we must now call then – now require more by way of red meat. Such nourishment was, on the face of it, supplied in abundance in May’s speech – by way not only of the announcement that the government plans to trigger the Article 50 withdrawal process by the end of March 2017, but also by means of signalling that the next Queen’s speech will include a ‘Great Repeal Bill’. Since the primary object of the proposed ‘great repeal’ is the European Communities Act 1972 (ECA) itself – the bête noire of the Europhobic right – the announcement of the new bill is undoubtedly a clever piece of political theatre, the aim being to satisfy those who have grown weary, not to say sceptical, of May’s tautological mantra. But does the announcement of the Great Repeal Bill amount to anything more than this?

Announcing the repeal of the ECA is doubtless a sensible tactical move by the Prime Minister given the demands she faces from her right-wing. The ECA gives not only effect to EU law in the UK, but also priority to EU law over UK law – including over acts of parliament. Focusing on the proposal to repeal the ECA fits very neatly with the narrative developed by the Prime Minister in her speech about making the UK a ‘fully-independent, sovereign country’. Or, as David Davis put it in his speech , repealing the ECA will deliver ‘what people voted for: power and authority residing once again with the sovereign institutions of our own country’.

There are, however, two caveats that make the announcement of the ECA’s repeal far less legally significant than might at first be assumed. On the one hand, although the Great Repeal Act (as it will by then have become) will be on the statute book before Brexit day, it will not take effect and repeal the ECA until Brexit day. This announcement does not, therefore, amount to the sort of immediate, shock-and-awe ECA repeal that was floated by some on Brexit’s extreme fringes. That was a suggestion that was never likely to be implemented, given that it would have placed the UK in breach of its EU treaty obligations pre-Brexit. On the other hand, however, repealing the ECA upon Brexit is hardly a big deal. Indeed, a natural assumption would be that the ECA would inevitably be repealed upon Brexit, given that it would make no sense, after leaving the EU, to retain legislation providing for EU law’s effect and priority in the UK. However, we can in fact go further and say that repealing the ECA post-Brexit is legally unnecessary, and will in fact amount to nothing more than a tidying-up exercise. That is so because the ECA only gives effect and priority to such EU laws as are, at any given point in time, binding upon the UK thanks to its EU treaty obligations. Post-Brexit, the UK will have no such obligations, and the ECA will therefore give effect and priority to no EU law whatever.

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The government must fundamentally reassess its approach to devolution to safeguard the integrity of the Union

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Last week the House of Lords Constitution Committee published a major report on ‘The Union and devolution’. Mark Elliott and Stephen Tierney summarise the report, in which it is suggested that the government should fundamentally reassess its approach to devolution and that, in future, any new proposals for devolution ‘should be considered within an appropriate framework of constitutional principles that safeguard the integrity of the Union’.

The House of Lords Constitution Committee’s report on ‘The Union and devolution’, published last week, declares the Union to be ‘under threat’, and recommends that the United Kingdom government ‘needs fundamentally to reassess how it approaches issues relating to devolution.’ The report is the culmination of a major inquiry which began taking evidence in October last year. The committee heard from 66 witnesses including academics, think tanks, the chairs of commissions on devolution, the UK and devolved governments, as well as party representatives from across the UK and a wide range of civil society groups. The committee also held evidence sessions in Cardiff and Edinburgh.

In its 142 page report the committee takes stock of the United Kingdom’s territorial constitution. Its assessment of the lack of vision with which devolution has been allowed to develop is particularly hard-hitting:

‘Power has been devolved to Scotland, Wales and Northern Ireland in an ad hoc, piecemeal fashion. Successive Governments have taken the Union for granted. Proper consideration of the cumulative impact of devolution on the integrity of the Union itself has been lacking.’

Nor does the committee see any convincing evidence that the UK government has now come to appreciate the difficulties inherent in this casual approach to constitutional design. It concludes that Oliver Letwin, the minister responsible for constitutional reform, ‘does not recognise the concerns expressed by this Committee and many others at the pressures being placed on the UK constitution by the manner in which the devolution of powers has taken place’. The committee is clear that this approach must end:

‘An inattentive approach to the integrity of the Union cannot continue. Following the significant changes that the territorial constitution has undergone in recent years, the time has come to reflect and take stock. While the constitution should reflect the wishes and interests of the nations and regions, that must not be at the expense of the stability, coherence and viability of the Union as a whole. Should any proposals for further devolution arise in the future, they should be considered within an appropriate framework of constitutional principles that safeguard the integrity of the Union.’

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The 2016 Queen’s speech and the constitution

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Last week’s Queen’s speech included proposals to bring forward a British bill of rights and a commitment that ministers would ‘uphold the sovereignty of Parliament and the primacy of the House of Commons’. Mark Elliott suggests that if action was taken to implement them these measures would be highly significant. However, there is no sign of developed government thinking in these areas at this stage and so, in practice, they may amount to very little.

This year’s Queen’s speech touches on two possible constitutional reform measures. (I pass over the Wales Bill, which was published in draft in October 2015). The first concerns the replacement of the Human Rights Act 1998 with a ‘British Bill of Rights’, while the second concerns the sovereignty of parliament and the ‘primacy’ of the House of Commons. If implemented, these measures would be highly significant. But the signs are that, for the time being anyway, they may amount to very little in practice – not least because the Government’s thinking in relation to them appears to be undeveloped to say the least.

A British bill of rights

The Conservative Party has for some considerable time said that it wants to replace the Human Rights Act (HRA) with a bill of rights (albeit that exactly what would thereby be entailed has been, and remains, shrouded in uncertainty). Any attempt at reform in this area was stymied in the last parliament by the politics of coalition, the Conservatives’ Liberal Democrat partners being staunchly committed to the retention of the HRA. The most that could be managed then was a Commission on a Bill of Rights, whose proposals, such as they were, came to nothing.

Freed from the shackles of coalition, the Government promised in last year’s Queen’s speech to bring forward ‘proposals for a British Bill of Rights’. This year’s speech contained an almost identically worded undertaking promising ‘proposals’ but not a bill as such. The fact that little, if any, progress appears to have been made in this area is testament to the legal, constitutional and political difficulties that arise (matters that I consider further here). In political terms, the government appears to be divided on the question of whether the UK should remain a party to the ECHR – the Home Secretary thinks not – while the politics of devolution represent a major complication.

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Parliament, government and secondary legislation: Lords select committees respond to the Strathclyde Review

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Two House of Lords select committees have this week published reports that are highly critical of the recommendations of the Strathclyde review into the Lords’ powers in relation to secondary legislation, published in December. Mark Elliott summarises the committees’ findings and welcomes calls for a consensual, reflective approach to be taken.

I wrote in December about the Strathclyde Review, which took place at great speed in the autumn against the backdrop of the House of Lords’ refusal to allow the enactment of secondary legislation on tax credits. The Review – set up by the government – recommended stripping the Lords of its power to veto statutory instruments by investing the Commons with statutory authority to override the Lords in the event of opposition to secondary legislation. Two House of Lords select committees – the Constitution Committee and the Delegated Powers and Regulatory Reform Committee – have now published reports that are highly critical of the Strathclyde proposals.

The report of the Constitution Committee

In its report, the Constitution Committee rejects the notion that the tax credits affair amounted to a ‘constitutional crisis’ and says that a ‘single Government defeat … does not seem a sound foundation upon which to base significant and lasting reform’ in this area. Indeed, the committee argues that the Strathclyde Review ended up – as a result of the terms of reference set for it by the Government – asking the ‘wrong questions’ and framing the issues inappropriately. In particular, the committee takes the view that while the Strathclyde Review approaches the matter in terms of the relationship between the two houses of parliament, the underlying, and far more profound, issue concerns the relationship between parliament and the executive:

Delegated legislation is the product of a delegation of power from Parliament to the Government. Parliamentary scrutiny of secondary legislation is the mechanism by which Parliament assures itself that the Government is exercising that delegated authority in an appropriate way, and in a manner which accords with Parliament’s intentions. Yet Parliamentary scrutiny of delegated legislation is less intensive and arguably less effective than its scrutiny of primary legislation. Statutory instruments cannot be amended, so there is little scope or incentive for compromise. Far less time is spent debating delegated legislation than is spent debating primary legislation. And … it is established practice that the House of Lords does not vote down delegated legislation except in exceptional circumstances. The result is that the Government can pass legislative proposals with greater ease and with less scrutiny if it can do so as delegated, rather than primary, legislation. It is in this context that proposals to weaken the powers of the House of Lords should be considered.

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