English votes for English laws Contents

Chapter 2: The English Question and the West Lothian Question

5.In our Union and devolution report, we set out in brief the range of questions that form the English Question:

“The ‘English Question’ encompasses a number of questions about England’s governance. How, within the Union, should England be governed? Is there a way to allow England a separate voice within the UK without undermining the Union? Should power be devolved or decentralised, and if so how?”5

6.English votes for English laws is designed to address one aspect of the English Question: the ‘West Lothian Question’. The West Lothian Question gained its name6 through its articulation in the 1970s by the MP for West Lothian, Tam Dalyell, who asked in a debate on Scottish and Welsh devolution proposals:

“For how long will English constituencies and English Honourable members tolerate  … at least 119 Honourable Members from Scotland, Wales and Northern Ireland exercising an important, and probably often decisive, effect on English politics while they themselves have no say in the same matters in Scotland, Wales and Northern Ireland?”7

7.The West Lothian Question now arises from the difference that the creation of the devolved legislatures in 1998 has made to the responsibilities of MPs from each of the different parts of the UK. It can be illustrated by way of an example of a policy area that is devolved to all three devolved legislatures, such as education. MPs representing Scottish, Welsh or Northern Irish constituencies are able to debate and vote on laws affecting education in England, where it is not devolved. Meanwhile MPs for English constituencies (as well as MPs representing seats in the devolved nations) cannot debate or legislate on education in the other nations because the devolved national legislatures are responsible for the policy.8

8.Where votes are close, this situation can create—and has on a small number of occasions created—circumstances where proposed laws affecting England alone are passed (or rejected) against the wishes of a majority of MPs for English constituencies.9

9.The issue was first pointed out during debates on Irish Home Rule from the 1880s. Various proposals were put forward and rejected, including simply not having MPs for Ireland in the UK Parliament and having ‘in and out’ MPs only able to debate and vote on UK-wide issues.10 During the first period of devolved rule in Northern Ireland, from 1921, that nation returned a smaller number of MPs per head compared with Great Britain. Even then, their involvement in matters only affecting Great Britain was occasionally controversial. When, in 1965, Northern Irish MPs voted against the Labour Government’s policy of renationalising the steel industry, the then attorney-general was asked to explore how to avoid such a situation occurring again. He concluded that it was too difficult.11 By the time Enoch Powell coined the phrase ‘the West Lothian Question’ in the 1970s, the issue had once again become a hotly contested subject of debate within the House of Commons. In recent years, as the number of powers devolved to Northern Ireland, Scotland and Wales has grown, the issue has once again risen up the political agenda.

Proposals for English votes for English laws in the House of Commons

10.English votes for English laws attempts to address the West Lothian Question by changing the procedures that govern how the House of Commons legislates. There have been different proposals put forward over time as to how this might be achieved. Some have proposed excluding MPs from constituencies outside England (or England and Wales) from debates and votes on matters that have been devolved. Others have suggested allowing MPs for English (or English and Welsh) constituencies to express a separate view, or to exercise a veto on matters which only affect England (or England and Wales).

Prior to the 2015 General Election

11.Resolving the West Lothian Question has been a Conservative Party manifesto commitment in every general election since 2001.12 Under the Coalition Government, a Commission was appointed to scrutinise the issue.13 The McKay Commission, led by former Clerk of the House of Commons Sir William McKay, investigated “the consequences of devolution for the House of Commons”. The Commission reported in March 201314 and recommended the adoption by the Commons of the principle that:

“decisions at the United Kingdom level with a separate and distinct effect for England (or for England and Wales) should normally be taken only with the consent of a majority of MPs for constituencies in England (or England and Wales)”.

12.No action was taken to implement the McKay Commission’s recommendations.

13.Following the Scottish independence referendum in September 2014, Prime Minister David Cameron announced that, alongside the promised further devolution to Scotland, the Government intended to address the West Lothian Question:

“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–the so-called West Lothian question–requires a decisive answer.”15

After the 2015 general election

14.A Conservative Government was elected in May 2015 with an explicit manifesto commitment to bring forward a form of EVEL that required the consent of English (or English and Welsh) MPs for legislation affecting only England (or England and Wales).16

15.On 2 July 2015, the Government published its proposals for EVEL, which it proposed would be implemented by changing House of Commons Standing Orders. The proposals were debated by the House of Commons on 15 July, and the Government announced that a motion to implement the proposals would be put to the Commons for a vote after the summer recess.17 The House of Lords debated the proposals on 16 July and, on 21 July, voted by 320 to 139 to support a motion to establish a Joint Committee “to consider and report on the constitutional implications” of the proposed new EVEL procedures.18 In October 2015, following a report from the House of Commons Procedure Committee, the Government brought forward revised amendments to Standing Orders. These were approved by the House of Commons on 22 October.

How the new EVEL procedures work19

16.The new procedures broadly reflect the consent principle proposed by the McKay Commission, but with an express ‘veto’ for English (and Welsh) MPs over legislation affecting only their nation(s).20 Professor Roger Scully told us that the changes were “broadly in line with the McKay Commission recommendations”,21 although others have stressed the differences, most notably the use of a veto rather than the expression of a ‘voice’.22

17.A Bill or provisions within it may be certified as English or English and Welsh (or less frequently English, Welsh and Northern Irish23) in their application. The criteria for certification is that a provision (or Bill) applies only to England (and Wales), and is within devolved legislative competence in Scotland and Northern Ireland (and Wales for England-only provisions), and that any spill-over impact on the devolved nations would be “minor and consequential”.24

18.Where entire Bills apply only in England (or England and Wales) their Committee Stage is carried out only by MPs for English (and Welsh) seats. Committee stage for other Bills, including those with certified provisions, takes place as normal. After Report stage, an English (and Welsh) Legislative Grand Committee must approve provisions applying only to England (and Wales). If approval is withheld, a whole-House ‘reconsideration’ stage may take place followed by a further vote of the Legislative Grand Committee; a second disapproval results in the fall of the Bill or clauses in question. Members from nations other than those to which the provisions apply are able to attend Legislative Grand Committee meetings and speak, but are not able to table motions or vote.

19.When Lords amendments or messages are being considered, those that are certified under EVEL are subject to a double majority, meaning that they require a majority of both the whole House and of English (or English and Welsh) MPs. Without both majorities a motion to agree or disagree with a Lords amendment is deemed to be disagreed to. Similarly, statutory instruments that are certified under EVEL require a double majority to be approved (under the affirmative procedure) or for a motion to annul to be agreed (under the negative procedure).

20.Neither the new procedures nor the McKay Commission’s proposals prevent Scottish, Welsh or Northern Irish MPs from voting on matters that only affect England. All MPs are still able to debate and vote on all legislation before the House, but the new procedures allow for some consideration to be conducted only by English (or English and Welsh) MPs. They also create a double veto, whereby the whole House has a veto over matters agreed by English (and Welsh) MPs, while the latter also have a veto over devolved matters affecting their nation(s) that have been voted upon by the whole House.25

Alternative solutions to the West Lothian Question

21.Before we turn to consider the operation of the new EVEL procedures in detail, we note that alternative solutions to the West Lothian question have been proposed. These include:

22.We considered the first two options in some detail in our report The Union and devolution. Neither, at present, provide a solution to the West Lothian Question. In our report, we concluded that an English Parliament is not a viable option for the future governance of England. Meanwhile, English regional assemblies are not currently being considered and are generally thought to be unlikely to gain any political traction in the near future. Our report also considered the extent to which recent ‘Devolution Deals’, which create Combined Authorities led by directly-elected mayors and with powers that extend beyond those of individual local authorities, could address the English Question more broadly (although they cannot offer a solution to the West Lothian Question in particular). We consider briefly the third and fourth options below.

A self-denying ordinance

23.Pete Wishart MP, the Scottish National Party’s (SNP) Shadow Leader of the House of Commons, told us that he would have preferred to continue to rely on the self-denying ordinance that the SNP observed prior to the 2015 general election:

“I propose that we could get together at a business level where shadow Leaders of the House, with the Whips, could look at the legislation. It would be an arrangement whereby, if there was clearly no Scottish interest, we would not take part. It would be an agreed and consensual process.”26

24.While this approach may have some appeal, not least because of its simplicity, it is hard to see how it could provide a lasting solution to the West Lothian Question. If Mr Wishart’s proposal is intended to apply to all MPs for Scottish (and indeed Welsh and Northern Irish) constituencies, it is hard to see why a future Government (or indeed official Opposition) reliant on the votes of MPs from the devolved nations would continue this informal practice. If it is meant to apply only to the SNP, then it does not prevent non-SNP MPs representing seats in the devolved nations from voting on matters only affecting England (or England and Wales).

25.Any such arrangement would be subject to the ongoing goodwill of whichever parties held seats in the devolved nations. Indeed, we note that the SNP are currently prepared to vote on matters that affect England only, on the basis that EVEL was “imposed … without consensus and agreement”.27

26.At present, the SNP hold the vast majority of Scottish seats, but—just as it was not the case prior to May 2015—this will not necessarily be the case in a future Parliament. There is no guarantee that parties with Scottish seats would agree on whether the MPs for those seats should or should not vote on a particular issue. It also seems unlikely that agreements made behind closed doors in meeting rooms in Westminster would satisfy public discontent in England with the lack of a distinct voice for England within the Union.

Reduced representation in the House of Commons

27.Two of our witnesses suggested that the number of MPs representing the devolved nations could be reduced in light of the devolution of powers to the devolved legislatures. Alun Evans, a former Director of the Scotland Office, told us that it was a better solution than EVEL: “If you have a much higher level of devolution/home rule, you will lose a proportionate number of seats at Westminster. That seems to me to be defensible logic.”28 Similarly, Donald Shell warned of the difficulties of implementing EVEL and offered a reduction in the number of MPs as an alternative that “should help to provide some reassurance to the electorate in other parts of the UK that Scotland is not in a position to exert unreasonable influence within the UK parliament.”29

28.Such an approach has been tried before: it was the solution chosen in the 1920s following the devolution of power to Northern Ireland. Consequently, for the first 50 years of devolution to Northern Ireland, it had fewer MPs per head than the other nations of the UK.

29.Yet it is hard to see why MPs representing constituencies in a devolved nation should collectively have a diminished say over reserved matters such as foreign policy or defence simply because policy areas such as health or education have been devolved. This problem was illustrated by Professor Philip Booth of the Institute of Economic Affairs: “Imagine that there was a vote to go to war … and Scottish MPs were underrepresented and the UK Parliament voted to go to war.”30. A more pertinent example might be a vote in the House of Commons on reserved matters relating to Brexit. In such a situation, and more broadly on reserved matters, the voice and power of the devolved nations (or regions) would be unjustifiably diminished. Given that Scotland voted to remain part of the EU while England voted to leave, a solution which diminished Scottish representation in the House of Commons during such votes would surely place significant, and understandable, strain on the position of the UK Parliament as the centre of the UK’s political union.

30.On a more practical level, it would be difficult to determine what proportion of MPs should be removed to be equivalent to each nation’s devolved legislative powers. For example, should Northern Ireland have fewer MPs on the basis of the devolution of power over social security and welfare, when a policy of parity with the British welfare system is broadly followed—and particularly when, as at present, Westminster has the power to legislate for welfare reform in Northern Ireland?31 Moreover, this solution would not address the issue at the heart of the West Lothian Question: MPs from the devolved nations (or regions) would still be able to vote on matters affecting areas without devolved institutions.32

5 Constitution Committee, The Union and Devolution, para 352

6 The name ‘West Lothian Question’ was applied to it by Enoch Powell. See PACAC, The Future of the Union, part one: English Votes for English laws, para 11.

7 HC Deb, 13 November 1977, col 123

8 Self-denying ordinances prevent both Houses from debating devolved matters; see House of Lords, Companion to the Standing Orders (2015), paragraph 6.18; House of Commons Resolution, HC Deb 25 October 1999, col 772

9 Divisions in 2003 and 2004 on higher education tuition fees, foxhunting, and foundation hospitals are widely-cited examples. A recent division on Sunday trading hours (which did not extend to Scotland but was not subject to the EVEL procedure) was controversial as the result would have been different if Scottish MPs’ votes were not included: see Daniel Gover and Michael Kenny, ‘Sunday trading and the limits of EVEL’, Constitution Unit Blog, (10 March 2016): https://constitution-unit.com/2016/03/10/sunday-trading-and-the-limits-of-evel/ [accessed 28 April 2016]

10 See House of Commons Library, The West Lothian Question, 1995, Research Paper 95/95, pp 13-14.

11 Jim Gallagher, England and the Union: How and why to answer the West Lothian Question (April 2012), p 4: http://www.ippr.org/files/images/media/files/publication/2012/04/west-lothian-question_Apr2012_
[accessed 31 October 2016]

12 UDE Q 17 (Professor Robert Hazell); see Conservative Party, Time for Common Sense (2001), p 46; Conservative Party, The Conservative Party Manifesto (2005), p 22; Conservative Party, Invitation to join the Government of Britain (2010), p 84; Conservative Party, The Conservative Party Manifesto 2015 (2015), p 70

13 See ‘Full Text: Conservative-Lib Dem deal’, BBC News (12 May 2010): http://news.bbc.co.uk/1/hi/8677933.stm [accessed 27 July 2016]

14 McKay Commission, Report of the Commission on the Consequences of Devolution for the House of Commons (March 2013): http://webarchive.nationalarchives.gov.uk/20130403030652/http:/tmc.independent.gov.uk/wp-content/uploads/2013/03/The-McKay-Commission_Main-Report_25-March-20131.pdf [accessed 9 May 2016]

15 Prime Minister’s office, Scottish Independence Referendum: statement by the Prime Minister (19 September 2014): https://www.gov.uk/government/news/scottish-independence-referendum-statement-by-the-prime-minister [accessed 27 June 2016]

16 Conservative Party, The Conservative Party Manifesto 2015 (2015) p 70

17 See House of Commons Library, English votes for English laws, Briefing Paper 7339, 2 December 2015, Chapter 3.

18 HL Deb, 21 July 2015 cols 1007–1031

19 The detail of the provisions is set out in Standing Orders 83J-83X. See House of Commons Library Briefing Paper, English votes for English laws, CBP-7339, December 2015, for a description of the process

20 For further details, see Cabinet Office, English Votes for English Laws: Revised Proposed Changes to the Standing Orders of the House of Commons and Explanatory Memorandum – October 2015: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/468329/english-vote-english-laws-revised-explanatory-memorandum.pdf [accessed 9 May 2016]

21 UDE written evidence from Professor Roger Scully (UDE0069). See also Professor Adam Tomkins’s written evidence to PACAC’s EVEL inquiry (EVE0007)

22 EVE Q 13 (Professor Michael Kenny)

23 Pete Wishart MP noted in his written evidence to the Procedure Committee the lack of any combination in which certification could include Scotland (see EVL 12).

24 House of Commons Standing Order 83J(2)

25 UDE Q 317 (Oliver Letwin MP)

26 EVE Q 2

27 EVE Q 6 (Pete Wishart MP)

28 UDE Q 97

29 Written Evidence from Donald Shell (UDE0030)

30 UDE Q 103

32 UDE Q 103 (Professor Philip Booth)

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