4 Devolution and the House of Commons
80. Speaking in Downing Street on 19 September, shortly
after the announcement of the referendum result, the Prime Minister
said:
It is absolutely right that a new and fair settlement
for Scotland should be accompanied by a new and fair settlement
that applies to all parts of our United Kingdom. In Wales, there
are proposals to give the Welsh government and Assembly more powers.
And I want Wales to be at the heart of the debate on how to make
our United Kingdom work for all our nations. In Northern Ireland,
we must work to ensure that the devolved institutions function
effectively.
I have long believed that a crucial part missing
from this national discussion is England. 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—he
so-called West Lothian question-requires a decisive answer.
So, just as Scotland will vote separately in
the Scottish Parliament on their issues of tax, spending and welfare,
so too England, as well as Wales and Northern Ireland, should
be able to vote on these issues and all this must take place in
tandem with, and at the same pace as, the settlement for Scotland.[111]
81. While the Prime Minister's remarks indicated
a willingness to review devolution settlements for Wales and for
Northern Ireland, they were taken by many to mean that the further
devolution to Scotland under the Smith Commission process would
be linked to the timetable of progress in implementing changes
to House of Commons procedures to achieve 'English votes for English
laws'. The Leader of the Scottish Conservative and Unionist Party,
Ruth Davidson MSP, clarified the meaning of the Prime Minister's
remarks in evidence to us:
The Prime Minister has given both public assurance
to the country and private assurance to me personally that looking
at English votes for English laws will not affect the timetable
for the Smith commission.[112]
This position was also confirmed by the Parliamentary
Under Secretary of State for Scotland, Rt Hon David Mundell MP.[113]
82. The Government has nevertheless proceeded with
work on introducing changes to the procedures of the House on
'English votes for English laws'. This formulation is a convenient
shorthand for a procedure to resolve the conundrum most commonly
known as the 'West Lothian question', namely the situation under
devolution where a Member elected to represent a constituency
in Scotland is able to vote on legislation affecting England only,
whereas a Member with an English constituency is not able to vote
on corresponding legislation in Scotland since the legislative
competence has been devolved.[114]
83. Addressing the West Lothian Question was a commitment
in the Coalition Agreement,[115]
and a commission, chaired by Sir William McKay, was established
in January 2012 with the remit "to consider how the House
of Commons might deal with legislation which affects only part
of the United Kingdom, following the devolution of certain legislative
powers to the Scottish Parliament, the Northern Ireland Assembly
and the National Assembly for Wales."[116]
84. In its report in July 2013, the McKay Commission
recommended that the approach to procedural reform in the House
of Commons should be founded on two principles, set out by Sir
William in his memorandum to us:
· decisions
at UK level which have a separate and distinct effect for England
should normally be taken only with the consent of a majority of
Members for constituencies in England, obtained before the final
decision on any relevant matter is made; and
· Members representing
all parts of the UK need to have the opportunity to participate
in the final adoption of legislation, whatever its territorial
effect.[117]
The effect of this approach would be that devolution
for England "would be localised within the House of Commons,
replicating in intention if not in detail statutory devolution
in the rest of the UK."[118]
85. The McKay Commission produced a menu of proposals
for procedural reform, inviting the Government to choose those
which might best satisfy "the demand in England for a voice
in the making of legislation." The proposals were not formally
addressed by the Government until after the Scottish referendum.
86. In December 2014 the Leader of the House presented
a Command Paper on The Implications of Devolution for England,
which addressed, among other issues, the question of devolution
and the House of Commons. Then paper set out a number of policy
and technical choices related to the implementation of 'English
votes for English laws', including how the principle of giving
English MPs a greater say over English issues (or English and
Welsh MPs a greater say over English and Welsh issues) could be
achieved under Commons procedures, which legislation should be
subject to such procedures (and how the determination should be
made), and how a government might change its approach to legislation,
particularly if it could not necessarily command a majority in
England on an issue: for instance, whether Governments might have
to implement legislation they disagreed with, or whether Governments
might explore the scope for greater non-legislative activity.
87. The Government itself offered no view on the
implementation of changes to Commons procedures, but published
the proposals for implementation made by the Coalition parties.
The Conservative Party published three options for consultation,
and the Leader of the House has since set out the Conservative
Party's preferred option.[119]
The Liberal Democrat proposals differed from Conservative Party
proposals largely in the reckoning of composition of any committees
representing English opinion in the House: they have contended
that allocation of seats on such committees should be in proportion
to votes received by each party in the general election in England,
rather than in proportion to seats won.[120]
The Leader of the House has indicated his intention to publish
draft Standing Orders illustrating his favoured option,[121]
but a draft has not been published in time for us to consider
it before Dissolution. Although proposals from the Labour Party
were not published in the Government's report on the implications
of devolution for England, Rt Hon Hilary Benn MP and Rt Hon Sadiq
Khan MP have also called for English MPs to have a greater say
over English laws. They called for one of the options set out
by the McKay Commission—that there be a committee stage
made up of only English MPs who would scrutinise and amend legislation
that applies only to England—to be looked at, stating: "Done
in the right way, this would be a sensible reform which would
strengthen England's voice without ending up creating two classes
of MP".[122]
88. The proposals announced by the Leader of the
House differ from the McKay Commission proposals in one crucial
respect: while the latter allow for English-only legislative proposals
without the support of a majority of English members to proceed—at
an acknowledged cost to the Government in political reputation
and parliamentary time—the Leader's proposals enable English
Members to veto England-only legislation with which they disagree.
Is procedural change necessary?
89. The Institute for Government told us that as
far as MPs for Scottish constituencies are concerned it has, since
1999, been 'very rare' for their votes to make a difference on
legislation which does not apply in Scotland, and suggested that
pressure to introduce procedural change has never therefore achieved
"significant momentum."[123]
They did, however, indicate that conditions had changed: the Prime
Minister's remarks on 19 September had created an "expectation
of reform", the increase in powers to be devolved to the
Scottish Parliament would increase the number of issues in England
over which Scottish MPs had no direct interest; and recent surveys
had indicated that English voters were not satisfied with current
constitutional arrangements and favoured the introduction of 'English
votes for English laws'. [124]
90. Sir William McKay noted the findings of his Commission
on the issue of parliamentary majorities in the UK and in England:
[E]ver since the First World War, the party or
coalition forming the UK government has nearly always had a majority
in England. The exceptions were the short-lived Parliaments of
1964-66 and February-October 1974. Secondly, there have been occasions
where members of the governing party representing English seats
voted against their front bench, which survived only on the votes
of non-English Members. These too are rare. Finally, a party with
a clear majority in England but without a majority in the UK might
opt to form a minority government. Such circumstances have however
never arisen.[125]
91. Professor Jim Gallagher, of Nuffield College,
Oxford, thought that it was 'the right and proper thing' to find
a way for English opinion could have a voice and a vote on English
legislation, subject to two key principles: that the UK Parliament
is the parliament of England, and that the government formed in
the UK Parliament is the government of England.[126]
He though the challenge would be to ensure that any proposal for
English votes in the House of Commons was consistent with the
Union and coherent with the UK's territorial constitution.[127]
92. In evidence we received, the Conservative Group
of Cornwall County Council was strongly in favour of introducing
English votes.[128]
South East Strategic Leaders told us that "English votes
for English laws […] in Parliament is an essential, but also
a minimum next step" to devolution in England.[129]
93. Alexandra Runswick of Unlock Democracy told us
that public attitudes to measures such as English votes for English
laws was often favourable because the proposed measures seemed
simple and fair, though the outcomes would not necessarily be
what the public intended.[130]
Is procedural change desirable?
94. Objections we received to the implementation
of procedural changes in the House of Commons fell into a number
of categories.
95. Some considered that the introduction of a separate
decision-making system on English-only legislation in the House
of Commons risked establishing two classes of MP, an outcome the
McKay Commission had been keen to avoid in its original proposals:
this would especially be the case if English MPs had a veto over
English-only legislation. Unlock Democracy suggested that in a
situation where a UK government had a majority in the UK but not
in England, this could "effectively establish a rival English
government at Westminster […] the UK government would be
able to deliver its policies in reserved policy areas, but would
have to defer to the majority party in England on devolved issues.
This would set up an English Parliament in all but name. […]
English voters would not be able to hold the UK government and
the English majority to account separately."[131]
In cases where English MPs did not have a veto over legislation,
a UK government without an English majority "would regularly
need to overrule English MPs in order to ensure the effective
delivery of its policies", leading for demands for greater
powers for English MPs and "heighten[ing] separatist tendencies."
96. Some who favour greater devolution of powers
to English localities from Westminster were wary of the proposals
for changing Commons procedures, fearing that it would do nothing
to devolve power away from London. The North East Party said that
proposals for procedural change in the Commons "would compound
our current difficulties […] doing nothing to address the
remoteness of Government and Parliament from daily life in North
East England."[132]
The North East Chamber of Commerce thought that the question was
"largely an irrelevance to the issue of North east economic
growth".[133]
Unlock Democracy thought that it was no substitute for "wider
decentralisation of power within England",[134]
and a submission from academics at York University and the University
of Manchester argued that "an English Parliament (even within
the confines of Westminster) would mean that without some form
of proportional representation or wider forms of devolution, the
cities of Northern England and elsewhere would find themselves
governed by rulers they did not elect."[135]
Willie Rennie, Leader of the Scottish Liberal Democrats, told
us that procedural change at Westminster was no substitute for
further devolution within England:
We need to make sure we have a proper devolutionary
system. […] Unless we can resolve that, it is difficult to
see how you can get far-reaching change that will meet the needs
and aspirations of people. I think they will be deeply disappointed
if the only response in Westminster is to have EVEL based on first
past the post. If that is the limit of the change, I think people
will think, "Westminster has not got the message."[136]
97. The Mayor of London, Boris Johnson, submitted
written evidence to us which stated "it is important that
the debate around devolution does not entirely focus on the issue
of English votes for English laws—while this is an issue
that is worthy of serious discussion, it ultimately will not resolve
the urgent need to devolve powers and freedoms to cities to allow
them to grow."[137]
98. The McKay Commission report identified a number
of practical challenges to the implementation of unsophisticated
forms of "English votes for English laws", and other
submissions to us focused on the practical difficulties of implementation.
Unlock Democracy suggested that because of the operation of the
Barnett formula, legislation in England which affected public
spending levels in England would also affect public spending in
the rest of the UK, limiting the scope of "English votes
for English laws".[138]
A similar conclusion was also drawn by the Justice Committee in
the last Parliament, which observed that
the current system of territorial financing in
the UK post-devolution means that the levels of public finance
decided for England determine levels of resource allocation to
Scotland and Wales. […] [T]he system could be changed in
order to remove this effect, [but] such a change would be a necessary
pre-requisite to any system of English votes for English laws.[139]
99. Although the Parliamentary Under Secretary of
State for Scotland, Rt Hon David Mundell MP, told us that "it
is pretty obvious what pieces of legislation are essentially English
or English and Welsh", the evidence before us indicates that
the issue may not be so straightforward. We refer above to the
complications relating to the operation of the Barnett formula
which mean that many bills which appear on the face of it to be
England-only have effects on the devolved nations. Professor Derek
Birrell, of the University of Ulster, suggested that "total
England-only territorial jurisdiction of legislation is somewhat
rare", and that "frequently what appears to be largely
England-only legislation contains a number of clauses that apply
to Northern Ireland."[140]
The Justice Minister of Northern Ireland, David Ford MLA, told
us that:
it is very difficult to see how you could have
Bills that are [purely England-only], if nothing else because
of financial implications. There will always be some implications
that will flow from one region to another, especially if they
are Westminster Bills that purport to only apply to England. Once
you propose a change in the education system or the health system
in England, it may technically only be applying in English facilities
but financial implications will flow from that. […] There
are a number of Bills in Westminster at the moment where relatively
late amendments […] have put us into the position where we
have had to consider parallel legislation here or LCMs [legislative
consent motions] at very short notice. […] I am not entirely
sure that those who work in the Home Office and the MoJ fully
understand the consequences for Scotland and Northern Ireland
about what they propose.[141]
100. Professor Charlie Jeffery, a member of the McKay
Commission, has indicated that bills are often not drafted in
clearly territorial terms, and that several changes upstream in
the legislative process would be necessary to produce legislation
which could be differentiated adequately for the purposes of determining
an 'English law'.[142]
One prerequisite would be establishing a separate legal jurisdiction
for Wales—a matter now to be addressed under the Secretary
of State for Wales's recent proposals for further devolution to
the Assembly. Another is requiring Whitehall departments to be
more systematic about identifying their policy responsibilities
for England and for the UK, and to be clearer about the policy
and legislative needs for England. Similarly, political parties
contesting elections in English seats ought to be clearer about
their policy priorities for England (as opposed to the UK).
Our view
101. Detailed
and definitive proposals for implementation of English votes for
English laws have not been made available to the House, or to
this Committee, in time for any proper consideration in this Parliament.
While the Leader of the House has now set out the scheme which
he would like to implement, there has been no opportunity for
the House to examine the means he proposes to give it effect.
Any such proposals would have wide-ranging implications for many
aspects of the House's business, and the procedural and practical
implications would require detailed examination before implementation.
We recommend that the Procedure Committee in the new Parliament
give detailed scrutiny to the procedural and practical implications
of any proposal to introduce 'English votes for English laws'.
102. Providing a means for English MPs alone to vote
on legislation which has a separate and distinct effect on England
now appears to be a political imperative, although evidence we
have received indicates that for many citizens it is not a political
priority.
103. As further competences are devolved to Scotland,
Wales and Northern Ireland, it is likely that more primary legislation
to be passed at Westminster will apply to England only, and will
be drafted to enable unambiguous certification as such. Nevertheless,
the legislation for England may well have implications for the
funding to be allocated to Scotland, Wales and Northern Ireland
under the existing Barnett formula, and Members representing constituencies
outside England will consider they are entitled to have their
say. If any system of English votes for English laws is to be
implemented, Government departments must provide comprehensive
and unambiguous justification, in a memorandum accompanying a
Bill, that primary legislation for England affects no jurisdiction
other than England (or England and Wales).
104. All three major parties at Westminster now appear
to be committed to introducing a form of 'English votes for English
laws' in the new Parliament. The differences between the parties
are around whether the procedure should involve a veto by English
Members, and how the party proportion of seats on any committee
of English Members should be determined. We
note the proposals made by each of the major parties for implementation
of English votes for English laws. The implementation of any proposals
will be a matter for the new House, and such proposals may of
course be varied in the light of that House's composition and
the composition of the Government. It
is not for us to seek to bind a new House; but we invite the new
House, when examining any proposal to implement 'English votes
for English laws', to consider the potential impact on the United
Kingdom of a situation where an administration, in order to govern
effectively, must demonstrate it has the confidence not only of
the whole House but also of English Members.
111 Scottish Independence Referendum: statement by the Prime Minister,
HM Government, 19 September 2014 Back
112
Q230 Back
113
Q579 Back
114
In this part a reference to English only legislation can be taken
as a reference to legislation affecting only England and Wales,
with corresponding effect on the Members entitled to vote on such
legislation. Back
115
The Coalition: our programme for government, HM Government, May
2010 Back
116
Report of the Commission on the Consequences of Devolution for the House of Commons,
The McKay Commission, July 2013; Sir William McKay (PRD 0073) Back
117
Sir William McKay (PRD 0073), paras 5 and 7 Back
118
Ibid., para 8 Back
119
The Implications of Devolution for England, Office of the Leader
of the House of Commons, Cm 8969, December 2014, and speech by
William Hague on English votes for English laws, 3 February 2015 Back
120
Implications of devolution for England, Office of the Leader of
the House of Commons, Cm 8969, 16 December 2014 Back
121
Q572 Back
122
We need to give English MPs a greater say over English laws, PoliticsHome,
12 December 2014 Back
123
Institute for Government (PRD 0083) Back
124
Ibid Back
125
Sir William McKay (PRD 73) para 11 Back
126
Q68 Back
127
Q73 Back
128
Conservative Group on Cornwall Council (PRD 0025), para 1 Back
129
South East Strategic Leaders (PRD 0072), para 1.1.1 Back
130
Q117 Back
131
Unlock Democracy (PRD 0057), para 13 Back
132
North East Party (PRD 0038), para 14 Back
133
North East Chamber of Commerce (PRD 0044), para 16 Back
134
Unlock Democracy (PRD 0057), para 17 Back
135
Dr Sandra León, Professor David Richards and Professor
Martin J Smith (PRD 0080), para 12 Back
136
Q285 Back
137
Mayor of London (PRD 0081) Back
138
Unlock Democracy (PRD 0057), para 16 Back
139
Justice Committee, Devolution: A Decade On, Fifth Report of Session
2008-9, HC 529, para 194 Back
140
Professor Derek Birrell (PRD 0062) Back
141
Qq447, 449 Back
142
"Thinking of England", Centre on Constitutional Change
blog, 16 December 2014 Back
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