In July 2015, the Government introduced its proposals for English votes for English laws (EVEL), which aim to provide English MPs with a separate and distinct voice in the House of Commons on laws which affect only England. Those proposals were agreed by the House of Commons in October 2015 on the understanding that they would be reviewed by the Government after a year, in the autumn of 2016. We were asked by the then Leader of the House of Commons, Chris Grayling MP, to review the constitutional implications of the EVEL proposals and to feed our conclusions into the Government’s review.
The devolution of powers to Northern Ireland, Scotland and Wales means that 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 (as well as MPs representing seats in the devolved nations) cannot debate or legislate on devolved matters in the other nations. This issue is known as the West Lothian Question. It forms part of a larger ‘English Question’ which encompasses public concerns in England about its representation and governance within the Union.
The EVEL procedures introduced by the Government address, to some extent, the West Lothian Question. They provide a double-veto, meaning that legislation or provisions in bills affecting only England (or in some cases, England and Wales, or England and Wales and Northern Ireland), can only be passed by the House of Commons with the support of both a majority of MPs overall, and of MPs from the nations directly affected by the legislation.
Yet English MPs’ ability to enact and amend legislation does not mirror their capacity, under EVEL, to resist legislative changes. The capacity of English MPs to pursue a distinct legislative agenda for England in respect of matters that are devolved elsewhere does not equate to the broader capacity of devolved legislatures to pursue a distinct agenda on matters that are devolved to them.
The public’s desire for England to have a voice and decision-making capacity equal to the devolved nations’ in relation to matters which affect only England is understandable. And there are, currently, no viable alternatives other than to provide that voice through the House of Commons. However, attempting to provide a separate voice for England through the membership and institutions of the UK Parliament carries risks. Parliament is a unifying body at the centre of the political union, where all citizens, regardless of where they live, have the same say in the laws and policies that govern them. Using the same institution to provide a separate and distinct role for England could risk undermining Parliament’s position as a UK, rather than English, institution—a position which is already under threat given the growth of distinct and separate political party systems and political discourse within each of the devolved nations.
It is too soon to fully assess the impact of EVEL on the Union, and on Parliament’s role as the central representative chamber of the whole UK. Likewise, it is too early to judge whether the procedures are robust, given the short period of time during which they have been in operation.
We recommend that, following the Government’s review in autumn 2016, the EVEL procedures—if they are retained—should be subject to an extended trial period for the remainder of this Parliament, with a final review taking place early in the next Parliament. The next few years will see a series of votes on matters relating to the UK’s exit from the EU which may well provide a ‘stress test’ for the procedures. Following the extended trial period, the revised procedures should be subject to scrutiny by a Joint Committee examining both the technical and the constitutional aspects of EVEL.
Since the EVEL procedures are at least partly a response to public perceptions of unfairness about England’s ‘voice’ within the Union, the Joint Committee should try to establish whether the introduction of EVEL has by then affected public perceptions in England of a ‘democratic deficit’. It should also consider the impact EVEL has had on public attitudes in the devolved nations.
It is regrettable that cross-party support was not secured for EVEL prior to its introduction. A prolonged trial period, followed by detailed scrutiny on a cross-party basis by a Joint Committee and combined with evidence of public support for the policy, both in England and in the devolved nations, may provide more widespread political backing for the reform.
Consideration must be given in the longer-term as to whether, and if so how, to secure English votes for English laws as a permanent fixture of the UK’s territorial constitution. We trust that the review by a Joint Committee, in the next Parliament, will consider the relative merits of Standing Orders and statute in this regard and recommend a way forward that secures cross-party support.
EVEL creates distinctions between MPs at some points of the legislative process. This may be seen as justified in the attempt to create some degree of parity between England and the devolved nations in relation to devolved issues, but clearly presents risks to Parliament’s position as a unifying body representing the UK as a whole. By opting for the double-veto form of EVEL, the Government has attempted to balance the need for a separate English ‘voice’ in the House of Commons with the need for Parliament to remain a sovereign chamber representing the whole of the UK.
EVEL does not create any constitutional restrictions on the ability of any member of the House of Commons to hold any ministerial office.
There is, to date, little evidence of any impact of EVEL in the House of Lords either procedurally or politically. While we will keep this matter under review, we anticipate that adverse consequences are unlikely and should be resolved by the conventional deference shown by the House of Lords to the elected chamber.
We have found no evidence that legislation is being drafted differently, or that the legislative programme has changed, following the introduction of EVEL. A welcome consequence of the reforms is the additional consideration being given by civil servants to the territorial extent and application of UK Government policies. We were impressed by the steps taken by the civil service to prepare for EVEL, and we trust that a continued focus on the interaction between the UK Government and the devolved administrations will continue as EVEL and the recent and forthcoming changes to the devolution settlements bed in.