English votes for English laws Standing Orders: interim report Contents

2 Certification by the Speaker

23.Under the Government’s proposals, Members representing constituencies in England or England and Wales are to be given the ability to consent to, or veto, proposed primary or secondary legislation which applies only to those parts of the UK.20 There are nevertheless many anomalies remaining in the devolution settlement. For example, the Government’s proposals do not address the issue of whether Members from Wales alone, Scotland and Northern Ireland should be able to consent to, or veto, proposed primary or secondary legislation in non-devolved areas which applies in only those parts of the UK.

24.The Speaker is to decide whether in his opinion Government Bills, elements of Bills, proposals to change Bills in the form of new clauses, new schedules and amendments (whatever their source, whether from Government or otherwise) and secondary legislative instruments are to pass through the new process. He is to do this through an act of certification. Certification may occur at a number of stages: in the primary legislative process, it may happen before Second Reading, after consideration on Report, and on Commons consideration of Lords Amendments.21 In the secondary legislation process it may occur once a motion for approval of an instrument has been tabled.22

25.A Bill, amendment, new clause, new schedule, motion relating to a Lords Amendment or affirmative instrument falls to be certified if, in the Speaker’s opinion, it passes two tests:

a)it must apply exclusively to England or to England and Wales (disregarding any minor or consequential effects outside the area in question).

b)it must be within devolved legislative competence: it meets this test if the following conditions are met:

i)for a clause, schedule or amendment relating exclusively to England,

Bills shall be certified as relating to England, or England and Wales, only if every clause and schedule of the Bill applies exclusively to England or England and Wales and falls within the relevant devolved legislative competences set out above.24

26.Certain Bills do not fall to be certified under this procedure, and therefore are not subject to the procedures set out in the Government’s proposals. These are:

27.In announcing his decisions on certification the Speaker would not be permitted under the terms of the proposed standing orders to give reasons for his decisions to the House.28 We interpret this proposal to mean that the Speaker could not make any statement about the reasoning behind his certification, either inside or outside the House, and that he could not respond substantively to any points of order on certification or any correspondence from Members or others on the matter. We discuss this matter, and the issue of pre-certification representations to the Speaker, further below.

Determining devolved competence

28.Whether a Bill or instrument applies only to England (or England and Wales) may appear on the face of it a relatively straightforward test to apply, though we have received evidence to indicate the challenges involved in applying this test. Determining whether the provisions of a Bill, or modifications proposed to a Bill, fall within the legislative competence of the devolved legislatures is a potentially more complex operation. The papers we received from the presiding officers of the devolved legislatures indicated the work which each service undertakes to determine whether proposed primary legislation to be presented in each legislature falls within each institution’s competence and is therefore within its legislative power. Legislation falling outside the competence of each institution, as provided for in the relevant Acts of Parliament, may be challenged in the courts and ultimately struck down.

29.Sir William McKay told us that the proposal that the Speaker should certify that a matter was within devolved legislative competence “appears to have a different rationale from that applicable to devolved legislatures”.29 Since their legislative authority is statutory and subject to the determinations of the courts as to their powers, Sir William thought it “only prudent [for devolved legislatures] to be certain so far as possible” that the legislation they passed was not likely to attract “hostile action in court”. The UK Parliament was not in this position: since the courts may not “’impeach or question’ proceedings in Parliament . . . these considerations do not affect the freedom of the House.”30 Sir William nevertheless considered that advice to the Speaker on devolved competence “may turn out to be the mirror image of—and can hardly be less thorough than—that given to the Presiding Officers”, and indicated that the parallel decisions to be made by the Presiding Officer of the Scottish Parliament were often “far from straightforward”.31 This view was corroborated by the note we received from the Solicitor to the Scottish Parliament, writing on behalf of the Presiding Officer.32

30.Professor Adam Tomkins indicated that there would be difficulties in applying both tests of certification. He told us that the tests of devolved competence in the corpus of devolution legislation “have not always been able to apply in practice”, not through any error in drafting, but simply because of the inevitability of border disputes at the boundaries of legislative competence. He pointed to the developing body of case law in the Supreme Court on the meaning and application of the relevant provisions of the Scotland Act 1998 and the Government of Wales Act 2006, and drew the following conclusion:

[D]etermining what legislation “relates exclusively” to England may not always be straightforward and may on occasion be contested and open to different reasonable interpretations.33

31.The Scottish Government, in its submission, indicated its direct interest in the process whereby the Speaker would form his opinion on certification, particularly around “what may be difficult legal issues about the interpretation of the Scotland Acts”.34 The Scottish Government was also concerned to know whether the UK Government would have “any role or influence” in advising the Speaker on its views on devolved competence or the effect of legislation in Scotland, and whether there would be a role for the Scottish Government or the Presiding Officer of the Scottish Parliament to advise the Speaker of their views on such matters.35

Role of the Speaker

32.The requirement for the Speaker to certify legislative provisions which may pass through the proposed procedures is on the face of it not inconsistent with the present powers of the Speaker to make decisions which have a substantive effect on the passage of public business in the House. In the course of the parliamentary day the Speaker is called upon to make many judgments which affect the ability of Members to participate in proceedings: on the selection and grouping of amendments, new clauses and new schedules to Bills to be considered on report, on the Members to be called to participate in debates, on the Members to be called to ask supplementary questions of Ministers, on the admissibility of urgent questions and on whether applications for emergency debates under Standing Order No. 24 should be put to the House for decision.

33.The Speaker already has powers to affect the passage of certain Bills through the legislative process through the issue of a certificate:

34.The certification powers over Bills in the Parliament Acts are of constitutional significance, enabling as they do the elimination of the House of Lords from consideration or amendment of certain legislation. The new powers of certification proposed by the Government would nonetheless be a new departure in giving the Speaker the power routinely to exclude classes of members of the House of Commons from voting for or against already present elements of primary and secondary legislation (as opposed to changes proposed to such legislation) or from securing amendments to Bills which have been supported by a majority of the House. These powers, it seems to us, are of a different order to the already considerable powers enjoyed by the Speaker in terms of selection of amendments. Moreover, unlike the procedures consequent on certification of Scotland, Wales or Northern Ireland-only legislation, the procedures proposed by the Government give the House as a whole no opportunity to determine whether legislation certified as England or England and Wales-only should be subject to the proposed procedures.

Restrictions on the Speaker

‘Minor or consequential’ effects

35.Under the proposed Standing Orders, the Speaker must treat any clause or schedule whose only effects outside England, or England and Wales, are “minor or consequential” as relating exclusively to that area.40 The interpretation of ‘minor effects’ may be considered straightforward. The interpretation of ‘consequential effects’, in the overall context of the devolution settlement, is much less clear cut.

Cross-border effects

36.England-only legislation may well affect constituencies in Wales adjacent or close to the border with England. Legislation for the NHS in England which has an effect on the structure or services provided by NHS Trusts or Foundation Trusts near the border with Wales will inevitably affect people in Wales referred to such services. Members with constituents likely to be affected by such changes may wish to argue for the right to vote on such measures. On a strict interpretation of the proposed standing orders, as drafted, the Speaker is not able to consider such effects in deciding whether to certify.

Effects on public expenditure

37.Similar issues may arise in consideration of the consequences of England-only legislation on the operation of the Barnett formula, whereby the block grant allocation from the Treasury to the devolved institutions is set with reference to proposed public expenditure on services in England. The Scottish Government, in its submission to our review, argued that changes to levels of public expenditure in England are consequential on legislation implementing Government policy in England, and therefore have a consequential effect on the arithmetical formula used by the Chancellor of the Exchequer to calculate the level of block grant to be provided to the Scottish Parliament for allocation to public services in Scotland.41

38.Professor Adam Tomkins explained why he believed the argument advanced by the Scottish Government and others was, in his view, erroneous:

[L]egislation itself does not change departments’ budget provision. The House of Commons votes on this as part of the estimates process, not as part of the ordinary business of debates on legislation.42

However, he cast doubt on the idea that the estimates process gave Members the means to carry out full scrutiny of any “Barnett consequentials” for public expenditure of legislation applying to England or England and Wales only.43

39.It is possible to interpret the procedure in the House and in the Treasury relating to public expenditure as supporting the position outlined by Professor Tomkins. It is highly uncommon for public bills—other than Consolidated Fund or Appropriation Bills—to make direct provision for levels of public expenditure. The Government’s revision to the proposed Standing Orders, published on 14 July, introduced a provision which made it clear that the certification process would not affect the right of any Member to vote on the consideration of estimates or on ways and means motions or money resolutions (save for certain Budget resolutions on which Finance Bills are to be founded), nor would it apply to Consolidated Fund or Appropriation Bills (more accurately to be known, when the Standing Orders have been revised in accordance with our predecessors’ recommendations, as Supply and Appropriation Bills).44

40.However, in reality, the estimates and supply procedures of the House validate prior decisions about policy, including those which have been given effect through primary legislation. In practice, there are extremely limited opportunities for Members to have any substantive effect on departmental spending plans through the Estimates approval process (not least because of the rule of Crown initiative, which restricts Members who are not Ministers to making reductions and forbids them from proposing increases in Estimates). The House cannot reverse its previous legislative choices by tampering with the Estimates, except in the bluntest way by removing the resources to give effect to those choices.

41.Members representing constituencies outside England or England and Wales are therefore likely to demand to vote on legislation which they consider will have a direct (or even indirect) effect on levels of public expenditure in their local jurisdictions or constituencies. This may give rise to representations to the Speaker asking him to take consequential matters into account when considering certification. Neither money resolutions nor ways and means resolutions are, in modern practice, used as instruments for fine-tuning public spending. Indeed, we suspect that few Members regard them as having any significance whatsoever in determining either policy or spending levels, and most regard them (if they register them at all) as a quaint constitutional relic. We discuss below the implications of this situation for the future of supply procedure.

42.The drafting of proposed Standing Order No. 83J removes the Speaker’s discretion to determine the extent to which the legislation before him for certification may affect the interests of Members representing constituencies to which the proposed legislation does not directly apply. We note that the proposed Standing Orders do not allow the Speaker discretion to take into account unstated, yet potentially substantial, consequential effects elsewhere in the UK of bills, clauses and schedules relating to England or England and Wales only. We therefore draw the attention of the House to the drafting of proposed Standing Order No. 83J(2) and (6). We will keep the operation of this Standing Order under close review, with particular attention to the issue of Barnett consequentials.

Representations to the Speaker

43.The proposed Standing Orders make no specific provision for the Speaker to receive representations prior to his decision on certification. Nor do they prohibit him from receiving representations from Members or non-Members on certification, or from discussing such representations. The representatives of the two largest opposition parties indicated that their front benches would be prepared to make representations to the Speaker on certification45, and the Leader of the House indicated that Ministers would likewise be prepared to make representations.46 It is highly likely that Members for Welsh constituencies adjacent to the English border would make representations if they considered that certification of legislation would exclude them from voting on matters affecting the interests of their constituents. The evidence we have heard is that under the proposed Standing Orders the Speaker would not be entitled to take into account cross-border effects, even if representations were received from Members for constituencies in Wales.47 The Scottish Government has also called for a “clear process” for the Speaker to have “access to advice agreed by the UK and Scottish Governments” on the extent of devolved competence and the likely effect on Scotland of any legislation passed at Westminster.48 We consider it likely that Ministers, opposition front bench Members pursuing their territorial or policy portfolios, back bench members with a particular local interest, and Ministers in devolved administrations, will all be likely to make representations to the Speaker on certification. We recognise that there is a case for the Speaker to establish and publish a procedure for how he would handle such representations.

Publication of reasons

44.Under the proposed Standing Orders the Speaker will not be allowed to give reasons for his certification decisions in the House. We received evidence arguing both for and against the principle. Professor Adam Tomkins argued strongly that the reasoning behind certification decisions should be published, in the interests of transparency.49 The Speaker of the Northern Ireland Assembly indicated firmly that his decision on whether a Bill was within the legislative competence of the Assembly was final and that he would give no reasons for his decision.50 Sir William McKay saw risks to the Chair in requiring the Speaker to give the reasoning behind a non-partisan and legally-informed opinion on certification:

Once you start making the Speaker explain to the House, or other than very privately to a Member, the two planes do not meet: the Speaker’s legal, practical view and the House’s or the complaining Member’s political views do not meet and it involves the Chair in a political row that he did not really want to get into.51

45.There is one precedent for the proposed restriction in Standing Orders already: Standing Order No. 24 requires the Speaker to announce whether he is satisfied that a request for an emergency debate is on “a matter proper to be discussed”, without giving the reasons for his decision to the House. On the whole, however, it has been the House’s custom to give the Speaker the discretion to provide explanations for his decisions where he sees fit, while respecting the authority of the Chair in not questioning the Speaker’s decisions. The Speaker has always had the right to publish rulings indicating the general principles underlying decisions taken from the Chair, and these are invariably helpful to the House. In the experimental phase following the introduction of any new Standing Orders, we consider that the Speaker should not give the reasons for his decisions on certification to the House. We nevertheless consider it inappropriate that the role of the Speaker should be confined in this way through Standing Orders proposed by the Government, and we recommend that the matter should be left to the Speaker’s discretion, so that he may choose to enter into the spirit of this experiment by being himself free to experiment.

46.The Parliament Act 1911 makes provision for the Speaker to consult, before certifying any money bill, two members of the Panel of Chairs. Sir William McKay thought that there was merit in making express provision for the Speaker to consult other Members on difficult issues around certification.52 We agree, though we note that nothing in the proposed Standing Orders prevents the Speaker from consulting others on a certification decision. We recommend that provision should be made for the Speaker to consult two senior members of the Panel of Chairs, to be appointed by the Committee of Selection, if he chooses before determining his opinion on certification, but should not be obliged to do so. This provision would, we believe, help underpin the House’s confidence in the Speaker’s decisions.

Risks of judicial challenge

47.The Government’s proposed procedure will direct the Speaker, when issuing his certification, to form an opinion on the existing state of the law in respect of territorial application and devolved competence. The decision on certification arising from that opinion will have an effect on the legislative procedure to which Bills, amendments, new clauses and new schedules are subject, as well as Lords Amendments and affirmative instruments. Some commentators have suggested that such opinions on the state of the law could be challenged in the courts, or might be shown by later court judgments to have been erroneous.

48.Sir William McKay thought that the Speaker’s certification was unlikely to be challenged in the courts, as it was a parliamentary proceeding protected by Article IX of the Bill of Rights 1689:

When the House tells the Speaker in the Chair to make a certain decision about parliamentary procedure, if that is not a proceeding in Parliament, it is difficult to tell what is.53

He did recognise the difficulties of requiring the Speaker to apply the certification tests:

Although the courts cannot get into Parliament, you are asking the Speaker to give an almost unchallengeable definition of what the law says. Is something devolved or is it not? The devolution statutes try to be clear, but in the nature of things they may occasionally want judicial review to see what they mean. That is the hard bit for the Speaker, but it is not impossible. He has a lot of legal assistance—he can have his Counsel, the Clerk of the House and [Parliamentary Counsel], who work in absolute good faith. So the Speaker will be taking his decision on behalf of the House with the best possible advice he can get.54

Professor Adam Tomkins also thought that decisions on certification by the Speaker would require him to take expert constitutional and legal advice.55

49.In making the certifications on legislation required by the House under the proposed Standing Orders, the Speaker may be considered to be ruling on matters of devolution law which will have an effect on the legislative process. Certifications by the Speaker, in pursuit of Standing Orders of the House, must be considered proceedings in Parliament and therefore should not, as our constitutional conventions and statute law currently stand, be subject to any form of review in the courts. But since, rightly, it is for the courts to determine the ambit and application of Article IX of the Bill of Rights, we cannot rule out the prospect that a determined challenger to a certificate issued by the Speaker might be granted leave to apply for judicial review, or might be successful in such an application. We bring this matter to the attention of the House.

Resource implications

50.We note from the memoranda we have received from the devolved legislatures that the workload involved in examining legislation for compatibility with devolved competence is substantial, and requires a number of expert legal professionals to advise presiding officers. As we have already noted, the circumstances are not precisely analogous: the devolved institutions operate under a statutory framework and are subject to judicial review. But, as Sir William McKay noted, the procedures for certification at Westminster can hardly be less thorough than those which apply in similar circumstances in Cardiff, Belfast and Edinburgh.56

51.The Speaker will have available to him advice from the Clerk of the House, his principal procedural adviser, from the Clerk of Legislation, his principal adviser on certification of legislation, and from Speaker’s Counsel. He will also have the benefit of explanatory material about Bills and instruments provided by the Government which will set out the Government’s view of the territorial application of proposed legislation and whether such legislation falls within the competence of any devolved legislature.

52.Nevertheless, the workload involved in certification is likely to be considerable. Certification requires the following actions:

a)Consideration before second reading of all Government bills falling within the scope of the proposed Standing Order which are introduced in the Commons or brought from the Lords, and consideration of each clause of and schedule to such bills; 57

b)Consideration after Report stage of all bills eligible for certification, any amendments made to them and any new clauses or new schedules added to them;

c)Consideration of motions relating to Lords Amendments, or Lords Messages, in respect of most Government bills

d)Consideration of most instruments subject to affirmative resolution58

e)Consideration of all Budget resolutions.

Preparatory analysis of Bills and instruments may of course take place some time in advance of their introduction. Nevertheless there are stages in the proposed procedures where certification will be required at short notice:

53.Further tasks will fall to the Speaker in the course of any procedure to resolve differences between a legislative grand committee and the House. The proposed standing order stipulates that this procedure shall only be used for the purpose of considering changes to the Bill to resolve matters in dispute between the House and the Committee:60 this will require the Speaker to examine all proposed amendments and select only those which meet this test. Should elements be removed from the Bill following a second consideration by the Committee, a consequential consideration stage may be required in the House, solely to consider any minor or technical changes required to the Bill as a consequence of its passage through Grand Committee.61 Again, this process will require the Speaker to examine and select amendments to ensure they are within the scope of the Standing Order. This provision will potentially require detailed and complex amendments to be considered for selection to a tight timescale.

54.The Government should not underestimate the time required to undertake proper and robust certification of legislation under its proposed procedures, especially given what is potentially at stake politically. It would be prudent for business managers to allow for the possibility that decisions on certification may not be possible immediately after Report stage on a bill is concluded. It is equally important that the Speaker be given adequate time to take decisions on certification of any motions arising from Lords Amendments and any other stages in the new process.

20 The Government’s proposals for voting on Budget resolutions and Finance Bills contemplate procedures which will involve the consent of MPs from constituencies representing England, Wales and Northern Ireland. We have not explicitly considered these proposals in this initial review.

21 Proposed Standing Order Nos. 83J, 83L and 83O..

22 Proposed Standing Order No. 83P. Certification may will also occur if an instrument subject to negative resolution which has been prayed against is referred to a delegated legislation committee for consideration or if the prayer is set down for debate in the House.

23 Proposed Standing Order No. 83J.

24 Proposed Standing Order No. 83J(5)

25 Standing Order No. 97(1) (Scottish Grand Committee (bills in relation to their principle, Standing Order No. 106(1) (Welsh Grand Committee (bills)), and Standing Order No. 113(1) (Northern Ireland Grand Committee (bills in relation to their principle))

26 Proposed SO No 83J(10)

27 Proposed SO No 83J(11)

28 Proposed SO No 83J(9)

29 EVL 07, para 4

30 Ibid.

31 Ibid., para 6

33 EVL 02, para 13

34 EVL 04, para 13

35 Ibid., para 14

36 Parliament Act 1911, s. 1(1)

37 Defined in the 1911 Act as “a Public Bill which in the opinion of the Speaker of the House of Commons contains only provisions dealing with all or any of the following subjects, namely, the imposition, repeal, remission, alteration, or regulation of taxation; the imposition for the payment of debt or other financial purposes of charges on the Consolidated Fund, the National Loans Fund, or on money provided by Parliament, or the variation or repeal of any such charges; supply; the appropriation, receipt, custody, issue or audit of accounts of public money; the raising or guarantee of any loan or the repayment thereof; or subordinate matters incidental to those subjects or any of them”

38 Parliament Act 1911, s. 2

39 Standing Order No. 97; Standing Order No. 106; Standing Order No. 113.

40 Proposed Standing Order No. 83J(6)

41 EVL 04, paras 4–7

42 EVL 02, para 16

43 Ibid., para 18

44 Proposed Standing Order No. 83J(11); Procedure Committee, Sixth Report of Session 2014–15. Revision of Standing Orders, HC (2014–15) 654.

45 Q 77 (Pete Wishart); Q 92 (Angela Eagle)

46 Q 141

47 Q8

48 EVL 04, para 14

49 EVL 02, para 21

51 Q 9

52 Q 9

53 Q 5

54 Q 6

55 Q 49

56 EVL 07, para 6

57 The classes of Bill excluded from certification are set out in proposed Standing Order No. 83J(10).

58 The classes of affirmative instrument which self-evidently apply to England only, and therefore do not require certification, are set out in proposed Standing Order No. 83R. They are: reports laid before the House pursuant to Chapter 2 of Part 5 of the Local Government Finance Act 1988 (revenue support grant: England); reports laid before the House under section 52ZD of the Local Government Finance Act 1992 (referendums relating to council tax increases: principles); reports laid before the House pursuant to section 46 of the Police Act 1996 (police grant); and motions for resolution under section 26(2)(b)(ii) of the Higher Education Act 2004 (student fees).

59 Proposed Standing Order No. 83L(7)

60 Proposed Standing Order No. 83N(2)

61 Proposed Standing Order No. 83N(9)