48.We took evidence from a range of witnesses, both during our inquiry on the Union and devolution and separately during the current session, on the implications of English votes for English laws for the integrity of the Union and relations between the four nations of the United Kingdom.
49.Some witnesses were supportive: former leader of the Scottish Conservatives in the Scottish Parliament Baroness Goldie stressed the need to do something about the West Lothian Question and felt that EVEL was “as good as we can get at the moment”. Professor Jim Gallagher told us that he thought it needed to be refined but was “the basis of a stable solution”.
50.Others were rather more critical. Scottish Government Minister Fiona Hyslop MSP told us that it was “very dangerous territory” for those who believe in the Union. The First Minister of Wales, Carwyn Jones AM, told us bluntly that “I do not think it works”. Professor Richard Rawlings told us that, although there was “clearly a demand … for some recognition in our political process of England qua England and English national identity” he was “instinctively opposed to EVEL, because I think in the long term it will work to corrode the Union.” Some witnesses felt that EVEL was more likely to damage than strengthen the Union, noting that the new procedures would give ammunition to those who want to undermine the Union.
51.A number of witnesses felt that tackling the West Lothian Question at this juncture was simply a waste of time. Two key factors were cited. First, the very small number of occasions on which the outcome of divisions in the House of Commons would have been different were only English MPs allowed to vote. Secondly, the fact that EVEL becomes largely irrelevant when the UK Government also holds a majority of English seats. Mr Bryant told us that: “I do not suppose a single person has ever looked up the difference between a majority and double majority”. The British Academy stated that, “Normally, as in the current Parliament, the party forming a majority in the UK also has a majority in England, and therefore the West Lothian Question can arise only when the governing party is divided.” We recognise that a Government usually has a majority in both the House of Commons as a whole and among English MPs. Nonetheless, there is a long-standing demand for the West Lothian Question to be tackled—and given our long-standing view that constitutional change should not be rushed, there is merit in tackling this controversial question when it is not determining the outcome of votes on the floor of the House of Commons.
52.In addition to these more general comments, a number of specific concerns about the potential effects of the new EVEL procedures were raised. We cover these now in turn.
53.Significant concerns were expressed about ‘spillover’ effects: the impact of changes to public services in England on devolved areas with close links to England (for example Welsh users of English hospitals) and particularly the impact of English policy decisions on the funding of devolved services. Mr Andrew RT Davies AM, leader of the Welsh Conservatives in the National Assembly for Wales, gave us an example:
“In mid-Wales … there is no district general hospital, so virtually everyone would rely on an English district general hospital to provide their services. There are many other examples that you can highlight. In north Wales, cancer services, for example, are very often cross-border, as are maternity services and cardiac services in south Wales.”
54.The Mile End Institute noted that “If there is a perception that elected representatives from other parts of the UK are being unfairly prevented from intervening on matters that affect their constituents, this may well inflame territorial tensions.”
55.Several witnesses were concerned in particular about the effect of Barnett consequentials—the impact that decisions on spending affecting only England could have on funding for the devolved administrations. The First Minister of Wales told us that:
“we are concerned that we may see a situation where legislation is produced that affects only England, so the logic is that English MPs would vote but that legislation would have an effect on the Barnett consequentials that go to Scotland, Wales and Northern Ireland, which apparently would mean that Scottish, Welsh and Northern Irish MPs would not be able to vote even though there is a financial effect of that legislation going through.”
56.Two arguments, of varying strength, have been made against this criticism of EVEL. The first is that funding is not decided through ordinary primary legislation, but through appropriation Bills which are not subject to EVEL certification. The House of Commons Procedure Committee noted, however, that “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 view of this, it is clear that decisions on primary legislation affecting only England may affect the funding of the devolved administrations.
57.The second point relates to the double veto. As the Mile End Institute told us, criticisms based around Barnett consequentials “often overlook the fact that these [procedures] provide for a double veto, so that all legislation will continue to require the support of a majority of MPs from across the UK in order to pass.” For example, a change to higher education tuition fees in England would be subject to a double veto. MPs for the other nations could not have the change—and any potential implications for funding for devolved administrations—forced on them without the chance to speak and vote on the changes as the support of the majority of the whole House is required. Meanwhile English MPs could not have a change forced on them by a majority of the whole House if a majority of English members opposed it.
58.There is no doubt that funding decisions taken in relation to England, or England and Wales, can have consequential effects on the other nations in the Union as a result of the Barnett Formula. Accordingly, there is a strong case for MPs from the devolved nations to have a say in such decisions. The model of EVEL chosen, whereby the consent of all MPs is still required for any piece of legislation to become law, ensures that MPs from the devolved nations are still able to speak and vote on funding decisions that might have consequential effects for the funding of those nations.
59.Policy decisions taken in relation to England can also have spillover or knock-on effects in the devolved nations. Indeed, the reverse can also be true. Yet such effects can be difficult to determine and measure, and we are less convinced that they should entitle representatives from one nation to have a say on policy that applies exclusively in another. We note that, at present, there is no mechanism for English representatives to have a formal say on policy decisions taken by the devolved nations.
60.Some witnesses were concerned about the problems that could arise if a Government with a UK-wide majority did not also have a majority of MPs in England (and Wales) and was therefore unable to pass legislation relating to England (and Wales). In such a situation, the Federal Trust noted that English MPs would have “the ability to destabilise a government that had a parliamentary majority within the UK as a whole, but not in England.”
61.Professor Jim Gallagher highlighted a particular problem when it came to taxation:
“This is to do with the extent to which English tax decisions determine the overall tax framework and the overall funding framework of the United Kingdom. A Government who, ex hypothesi, had to rely on Scottish or Northern Irish votes, or who could not get their English income tax legislation through, would not be able to deliver their Budget and would no longer be stable.”
As the Mile End Institute noted, citing Professor Gallagher, “given that income tax must be reapproved by parliament each year in order to remain in force, the provision of a veto to a subset of MPs could potentially enable them to hold the government to ransom.”
62.The risk of deadlock under the current arrangements is minimal given that the procedures are set out in Standing Orders which can be repealed, amended or suspended by a majority vote of the whole House of Commons. The Mile End Institute felt that the procedures ought to make explicit provision for the whole House to overrule English (and Welsh) MPs in the event a compromise could not be reached:
“There is a debate to be had about whether it is preferable to suspend standing orders in this situation or whether the reforms themselves should explicitly recognise that they may be exceptionally overridden. Our own view is that it would be better for the term ‘normally’ to be introduced in relation to these proposals.”
The Mile End Institute’s proposal mirrors the provisions of the Sewel Convention under which the UK Parliament does not ‘normally’ legislate with regard to devolved matters.
63.The risk of deadlock under these proposals is reduced so long as they are contained in Standing Orders which can simply be suspended or repealed by a single majority-vote of the whole House of Commons. Should the EVEL procedures in future be placed in statute (see paragraph 135) then careful consideration would need to be given to including a mechanism that would ensure that deadlock could be avoided.
64.One prominent criticism of EVEL is that the procedures create two classes or tiers of MPs. Mr Bryant told us “that the fundamental principle of all MPs being equal is important … We have ended up with two, three or four tiers of MPs.” We were told that EVEL created a symbolic ‘us and them’ distinction between MPs representing seats in different nations. It could, the Mile End Institute told us, create a dangerous “perception that elected representatives from other parts of the UK are being unfairly prevented from intervening on matters that affect their constituents, [which] may well inflame territorial tensions”, although such a perception, they noted, overlooks the continued voting rights of all MPs on all matters before the House. Some were concerned that attempting to use the House of Commons to express the views of England might undermine Parliament’s role as the legislature for the whole of the UK.
65.EVEL does create points in the legislative process where only members whose nation is affected by the legislative provisions in question may vote. The English (and Welsh) Bill Committee is one vehicle for nation-specific voting, but it has not yet been used. English (and Welsh) Legislative Grand Committees have been used; they are intended to provide an additional vote for English (and Welsh) MPs, while allowing all Members to vote as usual at Second and Third Reading and Report stages of all Bills, and the Committee stage of all Bills other than those that are certified in their entirety. Similarly, MPs for nations with devolved legislatures are able to vote on all matters where the double-majority system is used (for example on secondary legislation and on consideration of Lords amendments).
66.Daniel Gover told us that what “the procedures themselves affirm is the right and the legitimacy of all MPs, from everywhere in the UK, to speak and to vote on all legislation that comes before the Commons.” The Leader of the House of Commons told us that this was one of the considerations that led to the adoption of the current form of EVEL. Mr Gover told us that any change to what was deemed legitimate business for members to speak and vote on was, therefore, more a matter of attitudes and politics than the procedures.
67.Devolution has created greater democratic representation for Wales, Scotland and Northern Ireland, and primary legislative powers now reside in the devolved legislatures. It has, however, left the UK Parliament as England’s sole legislature.
68.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.
69.The First Minister of Wales, Carwyn Jones AM, and Scottish Minister Fiona Hyslop MSP both suggested that EVEL might make it difficult to have a Prime Minister representing a constituency in one of the devolved nations, as he or she would be unable to vote on the whole of the Government’s legislative programme. This issue rose in prominence during the summer of 2016, when MPs reportedly briefed journalists that a Welsh MP standing in the Conservative Party leadership election could not become Prime Minister because of EVEL. More recently, an MP representing a Welsh constituency, Owen Smith, stood for the leadership of the Labour party.
70.Our witnesses from the Mile End Institute told us that any restriction on who could become Prime Minister was political, not procedural. Professor Kenny told us that:
“There is nothing within the remit of these procedures that directly inhibits the selection of a party leader or Prime Minister who is from a territory outside England. Ultimately, that would probably be a question about politics and the decisions that the parties wanted to make, and would, I suspect, be only one of a number of considerations that would bear on that judgment.”
71.Despite the voting restrictions an MP representing a constituency in one of the devolved nations might face under the EVEL procedures, there is no constitutional reason why a future UK Prime Minister should not represent a constituency in Wales, Scotland or Northern Ireland. It remains the Sovereign’s prerogative to invite whomsoever she chooses to be Prime Minister, albeit in accordance with the constitutional convention that she invite the person who appears most likely to be able to command the confidence of the House of Commons.
72.Mr Gover told us that EVEL could have an impact on ministerial appointments:
“it makes it marginally more challenging for an MP from outside England or England and Wales to be appointed to certain other ministerial posts that would require them to take through legislation that would have England-only or England and Wales-only provisions, particularly if the whole Bill were England only. Even in those cases, there are ways around it. “
73.This feeds into a wider question of whether ministerial posts whose remit pertains largely to England could, in practice, be filled by an MP whose constituency lies in one of the devolved nations. This issue arises from the advent of devolution, rather than EVEL, but has been brought into sharper relief by the new procedures. The Leader of the House of Commons told us that:
“These are matters that can and should be left to the judgment of the Prime Minister of the day. … The Blair and Brown Governments had Members from the majority of seats in Scotland, but they chose not to appoint Members from Scottish constituencies in the Health Department, for example, once health had been devolved to the Scottish Parliament. Clearly, there are political judgments that will weigh in the mind of any Prime Minister, but making it mandatory would introduce an unnecessary bit of inflexibility to the system.”
74.There is no constitutional reason why an MP representing a constituency in one of the devolved nations could not be appointed to a ministerial post whose remit pertains largely to England (or England and Wales). Likewise, there is no constitutional reason why an English MP could not be appointed to a ministerial post in a territorial department. However, in practice it is likely that the Prime Minister will take into account such issues when appointing his or her ministerial team.
75.Some have suggested that EVEL creates a quasi-English Parliament within the House of Commons. In some senses, this is already the case: Professor Tomkins told us that it is important “to recognise that the UK Parliament is both the legislature for the United Kingdom and England’s legislature. This is what English votes for English laws does, by making it clearer which of these two roles the House of Commons is playing at any one time.” Similarly, Professor Arthur Aughey told PACAC of the need to reconcile Westminster’s role as the Parliament of the UK and of England.
76.The continued right of all MPs to debate and vote on all matters before the House of Commons clearly demonstrates the continued UK-wide nature of the House. It is, however, an inevitable consequence of the devolution of power to the devolved nations (but not England) that the UK Parliament now legislates on a wider range of matters for England than for the other nations within the Union.
77.Concerns were expressed about the power given to the Speaker of the House of Commons to certify provisions in Bills and secondary legislation as within or without devolved legislative competence. Some witnesses drew attention to the risk of serious political disagreements arising over the certification of provisions—for example, where it was felt that a provision certified as English in practice seriously affected other nations, or where an issue appeared solely English and was devolved elsewhere but was not certified under EVEL. Some witnesses warned that this might ‘politicise’ the role of the Speaker.
78.In addition, questions have been raised about the interaction between those certifications and the already-established role of the courts—and particularly the UK Supreme Court—in judging the extent of devolved competence.
79.The Electoral Reform Society told the Commons Public Administration and Constitutional Affairs Committee that they were concerned that the Speaker’s judgement could have “unintended knock-on effects” by creating a norm or precedent in Parliament over devolved competence, particularly in relation to the evolving Welsh devolution settlement. They were also concerned about the interaction of the certificate and the Supreme Court’s subsequent judgments. So too were the Constitution Reform Group.
80.Lord Wallace of Tankerness, who as Advocate-General for Scotland in 2010–15 could refer Acts of the Scottish Parliament to the Supreme Court for judgments on legislative competence, also warned about potentially conflicting decisions on competence. A situation in which the Speaker certified a matter as devolved but the Supreme Court judged it to be outwith devolved competence, he told us, could cause great aggravation and potentially affect people’s rights. The Leader of the House of Commons told us that the Speaker’s decisions on certification would be based on his or her best understanding of the law at that time, and that if the decision were contradicted by a later Supreme Court ruling, that judgment would inform any future certification decision.
82.One criticism has been that English votes for English laws has not been accompanied by ‘Welsh votes for Welsh laws’ or ‘Scottish votes for Scottish laws’ in the House of Commons. Pete Wishart MP told us that during the passage of the Scotland Act 2016 amendments proposed by the SNP and, therefore, supported by the vast majority of Scottish MPs had been voted down by English MPs. The suggestion appears to be that an equivalent to EVEL would be for any laws affecting Wales or Scotland to require the consent of a majority of MPs for those nations.
83.We do not accept the argument. EVEL allows an English veto on matters that, in relation to Scotland and Wales, are devolved. If Westminster legislation affects devolved matters or—as in the case of the Scotland Act—devolved competence, the consent of the devolved legislatures is sought through the legislative consent process. To some extent EVEL mirrors the practice of seeking legislative consent from the devolved legislatures. On reserved matters, the UK Parliament acts, as it always has, as the sole legislature for the whole of the UK. Giving MPs for Scottish, Welsh or Northern Irish seats a veto over reserved matters affecting those nations would thus go considerably beyond the veto granted to English MPs by the current form of EVEL.
84.As with all constitutional reforms, it is important that they strengthen, rather than weaken, the Union as a whole. The Mile End Institute told us that “the government also needs to strike a careful balance. Specifically, it needs to present EVEL as a pro-Union–and not as a narrowly pro-English–measure.”
85.In that regard, several witnesses criticised the manner in which the policy was announced by the Prime Minister the morning after the Scottish independence referendum. Professor Hazell felt that it struck the wrong tone, “when a statesmanlike approach would have been to reach out to the people of Scotland and be generous in victory.” Similarly, Scottish Minister Ms Hyslop told us that, “Politically, it was very dangerous for the Prime Minister the day after the referendum to respond to the articulation of the will of the Scottish people by immediately reflecting on the situation regarding England.” This view was echoed by other witnesses when we took evidence in Edinburgh.
86.Other witnesses suggested that EVEL was viewed as a partisan reform brought forward to benefit the Conservative Party, rather than as a pro-Union measure designed to allay public concern about England’s voice in the Union. It has been a manifesto commitment of the Conservative party since 2001 and—given the historical Conservative dominance of English seats in the House of Commons—has been seen as a way of increasing the power of the party in Parliament, particularly when Labour held a majority of constituencies in Scotland prior to the May 2015 general election. The Government’s decision to introduce the reform by means of Standing Orders contributed to this view since it meant the proposals received far less scrutiny than they would if introduced through legislation. The final proposals were subject to a single three and half hour debate in the House of Commons, and to a two and three quarter hour long debate in the House of Lords—significantly less time than would be afforded to the scrutiny of legislation.
87.We also heard wider concerns expressed about the lack of cross-party consensus. Mr Wishart noted that only the Conservative Party’s MPs voted for the adoption of the EVEL procedures. Professor Neil Walker told us that the reforms required a better, less adversarial forum for their development than UK Government proposals being brought forward to which people responded in an adversarial way. There needed to be, he said, “agreement across the political parties—because there is a partypolitical divide on this—and across central and Scottish government and Welsh and Northern Irish assembly government.” Similarly, Councillor Robert Brown told us: “Constitutional change has to be done on a broad basis. Done by a Government, apparently in a partisan way, it is a different proposition. However it is done, whether it is a wider UK constitutional convention or some narrow arrangement, we have to try and get a bit more signup to this than we have already.”
88.EVEL attempts to address specifically English concerns about their voice within the Union. Yet if EVEL is to strengthen rather than weaken the Union, every effort must be made to develop cross-party support and to ensure that the procedures have no demonstrably negative effects on Parliament’s role as the centre of the political union, representing the interests of all parts of the United Kingdom. We trust that, when EVEL is reviewed by a Joint Committee in the next Parliament, it will consider the effect that EVEL has had on public opinion across all four nations of the UK, and not just within England.
89.In our report, The Union and devolution, we stated that:
“The English Question encompasses both concerns about the representation of England within the Union, and about the devolution or decentralisation of power within England.”
90.By addressing the West Lothian Question, EVEL attempts to answer some of the concerns encompassed in the wider English Question as regards the representation of England within the Union. Yet it is worth noting that the double-majority requirement means that English MPs cannot get Bills or provisions through the Commons in the absence of the support of the whole House. As a result, English MPs’ ability to enact legal changes does not mirror their capacity, under EVEL, to resist legal changes. Viewed thus, EVEL is arguably an incomplete answer to the ‘West Lothian Question’ because 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.
91.It is also important to note that EVEL is not being pursued in isolation, but alongside a new development in asymmetrical devolution or decentralisation within England that may address some of the concerns about the centralisation of power within England. The EVEL reforms were introduced alongside a series of ‘devolution deals’ between the UK Government and groups of local authorities, largely proposing Combined Authorities led by directly-elected mayors and with powers that extend beyond those of individual local authorities. Whether these changes were co-ordinated with the EVEL reforms or simply occurring in tandem is a matter of debate. We explored the potential benefits and problems of this approach in our Union and devolution report, and concluded that:
“It is too soon to know whether EVEL and the ‘devolution deals’, separately or in combination, will provide an answer to the English Question. What is clear is that the English Question remains one of the central unresolved issues facing decision-makers grappling with the UK’s territorial constitution.”
61 See UDE (Kirsty Williams AM), (Jessica Blair), (Willie Sullivan), (Peter Riddell) and (Willie Sullivan)
62 See (Pete Wishart MP)
64 UDE Written evidence from the British Academy ()
65 For example, see UDE (Professor Jim Gallagher and Alan Trench), (Fiona Hyslop MSP), (Claire Baker MSP), (Carwyn Jones AM) and (Kirsty Williams AM), and written evidence from the Mile End Institute ()
67 UDE Written evidence from Mile End Institute ()
68 UDE , see similar comments by Scottish Minister Fiona Hyslop MSP (UDE )
69 See written evidence from the Society of Conservative Lawyers ()
70 Procedure Committee, , para 40
71 Written evidence from the Mile End Institute ()
72 For example UDE (Jim Gallagher), UDE (Peter Riddell) and written evidence from the Mile End Institute ()
73 Written evidence from the Federal Trust for Education and Research ()
75 Written evidence from the Mile End Institute ()
76 UDE written evidence from the Society of Conservative Lawyers ()
77 Written evidence from the Mile End Institute ()
78 For example, see UDE (Professor Philip Booth) and (Claire Baker MSP)
80 UDE (Brendan Donnelly)
81 Written evidence from the Mile End Institute ()
82 Written evidence from the Mile End Institute () and from Christopher Luke ()
84 EVE (David Lidington MP)
86 UDE (Fiona Hyslop MSP) and (Carwyn Jones AM); see also UDE (Dr David S Moon)
87 ‘Politicians are furious at claims senior Tories are briefing Stephen Crabb can’t become PM because he’s a Welsh MP’ WalesOnline (5 July 2016): [accessed 22 July 2016]
88 See [accessed 19 October 2016]
91 As Shadow Secretary of State for Health in 1992, Robin Cook said that he did not think he (a Scottish MP) could be Health Secretary after devolution to Scotland; however, John Reid (another Scottish MP) did hold the latter post in 2003–2005; see Guy Lodge and James Mitchell, ‘Whitehall and the government of England’, The English Question (Manchester: Manchester University Press, 2006), p 103
93 UDE (Claire Baker MSP) and (Pete Wishart MP)
94 UDE supplementary written evidence from Professor Adam Tomkins ()
95 Written evidence to PACAC’s EVEL inquiry ()
96 EVE (Elizabeth Gardiner). See also written evidence to PACAC from Dr Andrew Mycock and Dr Arianna Giovannini, University of Huddersfield (), and Professor Arthur Aughey of the University of Ulster ()
97 UDE (Alexandra Runswick)
98 This risk was suggested by several speakers in the 22 October 2015 debates in the House of Commons, including by Shadow Leaders Chris Bryant MP ( ) and Pete Wishart MP ( )
99 Written evidence to PACAC’s EVEL inquiry ()
100 Supplementary written evidence from the Constitution Reform Group ()
101 Under of the Scotland Act 1998; referral is also included in Government of Wales Act 2006, and Northern Ireland Act 1998, .
104 See UDE (Leanne Wood AM)
106 Written evidence from the Mile End Institute ()
107 Written evidence from Professor Robert Hazell ()
108 UDE (Fiona Hyslop MSP), see also (Councillor Robert Brown) and (Claire Baker MSP)
109 Written evidence from the Federal Trust to PACAC’s EVEL inquiry ()
110 EVE (Pete Wishart MP)
113 Constitution Committee, , para 428
114 See the contradictory positions taken in our supplementary written evidence from Professor Adam Tomkins () and written evidence submitted to PACAC by Dr Mycock and Dr Giovanni ()
115 See Constitution Committee, , Chapter 8