English votes for English laws Contents

Chapter 6: Impact on the work of Government

107.In addition the potential implications of EVEL for the Union and the two Houses of Parliament, we asked our witnesses what impact EVEL had had, or was likely to have, on the work of Government. In particular, we were interested to what extent Government was supporting and facilitating the use of the new EVEL procedures in the House of Commons.

Drafting of legislation

108.In their October 2015 report, the House of Commons Procedure Committee recommended that “Departments should as a matter of course instruct Parliamentary Counsel to draft legislation intended to apply to England or England and Wales only with the express intention of meeting the certification tests.”131 Professor Adam Tomkins told PACAC: “For EVEL to work effectively will require changes in the way legislation is drafted and changes in the way the House of Commons makes decisions.”132

109.When we heard from senior government lawyers, they told us that, to date, there had been no change in how the Government prepared draft legislation. Parliamentary Counsel are responsible for drafting primary legislation, based on instructions from departmental lawyers. The latter are responsible for drafting secondary legislation. Elizabeth Gardiner, First Parliamentary Counsel, told us: “The Government’s policy is that they are not drafting to the Standing Orders; they are continuing to draft Bills in the way they always have.” The only exception she identified was a provision in the Finance Bill, “where the structure of the rates of tax has been set out in such a way as to ensure that there is a vote here [in the UK Parliament] corresponding to the vote on the rate of income tax that will occur in the future in the Welsh Assembly and the Scottish Parliament”.133 Jonathan Jones, the Treasury Solicitor and head of the Government Legal Service, echoed Ms Gardiner’s comments in relation to the drafting of secondary legislation.134

110.Former Labour Deputy Chief Whip and Shadow Leader of the House of Commons Chris Bryant MP told us that he feared that EVEL would lead to the division of legislation into smaller England- or Wales-only Bills.

“One of the decisions [for the Parliamentary Business and Legislation (PBL) Cabinet Committee] under EVEL would now be that we should take all the Welsh parts out so that it is an England-only Bill. That will happen on contentious matters … [It] is difficult to tell whether that will happen, but that is my working assumption. That is bad, because the honest truth is that no MP or Member of the House of Lords can keep more than four or five Bills in detail in their head at any one time. Getting 35 Bills through Parliament every year rather than 25 is going to be a tall order.”135

111.In response, First Parliamentary Counsel was clear that “there has been no pressure to remove those provisions to create” England-only Bills. She told us that if more England-only bills were to emerge, they would be the result of further powers being devolved to Wales, Scotland and Northern Ireland, rather than changes to legislative drafting because of EVEL.136 Similarly, the Treasury Solicitor told us that it was a policy’s territorial extent, rather than EVEL, that drove the application of legislation: “In the end, the content of Bills, and indeed of statutory instruments, will be driven by the policy, and if the policy is that the Bill should apply solely or mainly in relation to England because that is the territory that is being legislated for, that will be the effect of the Bill.”137

112.There is no evidence that legislation is being drafted differently, or that the legislative programme has changed, following the introduction of EVEL.

Work of UK Government departments

113.In previous reports, we have expressed our concerns about shortcomings in how the UK Government engages with the devolved administrations. In our 2015 report Inter-governmental relations in the United Kingdom, we highlighted concerns about inconsistency of performance between and within Whitehall departments. We recommended that the UK Government address this issue through improved training, regular reviews of departmental concordats and guidance, and increased interactions and exchange of personnel between administrations.138

114.A year later, in our Union and devolution report, we welcomed signs of progress but stressed that they “must be seen as merely the start of a larger process” and called for a new mindset of co-operation and collaboration:

“Instead of a ‘devolve and forget’ attitude [the UK Government] should be engaging with the devolved administrations across the whole breadth of government policy: not interfering, but co-operating and collaborating where possible and managing cross-border or UK-wide impacts that may result from differing policy and service delivery choices. The UK Government should work to reach an agreement with the devolved administrations to ensure a constructive approach to this engagement is introduced and maintained for the long-term on all sides.”139

115.We were interested to know whether and how EVEL had affected the UK Government’s interaction with the devolved administrations. The evidence we received focused primarily on considerations of territorial extent and devolved competence, and on training and guidance.

Consideration of territorial extent and devolved competence

116.One clear indication of how UK Government officials’ consideration of devolution has developed is the introduction of a new Annex to the Explanatory Notes of bills indicating the extent and application of each part or clause of the bill.140 We were told that this was planned prior to the introduction of EVEL,141 but it was brought into use with the first bills subject to EVEL certification.

117.The Annex requires the Government to set out: whether each part or clause extends to the jurisdiction of England and Wales and to which of those nations it applies; whether it extends and applies to Scotland or to Northern Ireland; whether making corresponding provision there is within the competence of the devolved legislatures; and whether Legislative Consent Motions (LCMs) are required. The Annex is explicitly set out to be a guide to the Government’s interpretation of devolved competence, which affects both whether each provision should be certified under EVEL and whether an LCM is required. Where applicable, the Annex also sets out where there are provisions relating to England (or England and Wales) with effects on other nations that the Government deems “minor or consequential for the purposes of” EVEL certification.142 This assessment “relate[s] only to the application of the legislation”, not to any wider impact of the policy.143 We were told that this assessment was done within the UK Government by policy and legal teams, in co-operation with a dedicated EVEL team in the Cabinet Office-based UK Governance Group.144

118.The officials from whom we heard told us that devolution had become a more prominent part of officials’ thinking on policy and legislation. Jonathan Jones, the head of the Government Legal Department, told us that,

“the requirements of the new procedure mean that officials, including lawyers, have actively to turn their minds to the precise devolution effects of any given provision. In a way, that is helpful. Whatever the policy may be, officials have to think about the devolution effects and cross-border implications of a given bill.”

119.Adam Pile, Head of the Parliamentary Business and Legislation Cabinet Committee Secretariat, agreed, telling us: “It has ensured that devolution is brought to the front sooner and we are more open about our analysis of whether it is reserved or devolved and how it applies to different parts of the UK.”145

120.We welcome the additional consideration being given by civil servants to the territorial extent and application of UK Government policies. A continued focus on the interaction between the UK Government and the devolved administrations will be required as EVEL and the recent and forthcoming changes to the devolution settlements bed in.146

Training and guidance

121.Mr Pile told us that there was a range of new training for policy and bill team officials relating to EVEL and the territorial extent of legislation. This included updates to the published Guide to making legislation to include information on the new territorial extent annex and to incorporate other guidance on EVEL;147 “a workshop for policy officials, bill teams and the wider array of policy officials who feed into the policy in the bill”; an online Civil Service Learning module; and a training module for lawyers joining the Government Legal Service. He also stressed that officials have ongoing support “from the specialist team in the Cabinet Office, from the Office of the Advocate-General for Scotland, from the three territorial offices—the Scotland Office, the Wales Office and the Northern Ireland Office—from my [the PBL Committee Secretariat] team in the Cabinet Office, from parliamentary counsel and from the Whips’ Office”.148

122.It was incumbent upon Government to respond to the introduction of EVEL by taking steps to inform, advise and support those officials who would be dealing with the results of the new procedures. We were impressed by the range of training, guidance and support being offered to officials dealing with EVEL. We hope that this represents a wider move within the civil service to embed consideration of devolution and engagement with the devolved institutions into its work across the breadth of government policy.

132 Written evidence to PACAC’s EVEL inquiry (EVE0007)

133 EVE 25

134 EVE Q 25

135 EVE Q 22

136 EVE Q 27

137 EVE Q 28

138 Constitution Committee, Inter-governmental relations in the United Kingdom (11th Report, Session 2014–15, HL Paper 146)

139 Constitution Committee, The Union and Devolution, paras 301-305

140 Other than where a Bill applies to the whole of the UK, such as the Intellectual Property (Unjustified Threats) Bill 2016–17.

141 EVE 33 (Adam Pile)

142 The annex sets out that the assessment is of devolved legislative competence and minor or consequential effects in accordance with Standing Order 83J.

143 EVE 34 (Adam Pile)

144 EVE Q 26 (Elizabeth Gardiner)

145 EVE 28

146 With the commencement of relevant parts of the Scotland Act 2016, Corporation Tax (Northern Ireland) Act 2015 and the Wales Bill 2016–17.

147 The current Cabinet Office, Guide to making legislation (31 July 2015) is available at: https://www.gov.uk/government/publications/guide-to-making-legislation [accessed 28 July 2016]

148 EVE Q 28

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