English votes for English laws Contents

Chapter 7: Standing Orders vs legislation

123.The introduction of English votes for English laws was a significant constitutional development. One of the most controversial elements of the introduction of the new procedures was the Government’s decision to use House of Commons Standing Orders, rather than primary legislation, to implement the change.

124.The Government’s decision to introduce EVEL by means of House of Commons Standing Orders rather than primary legislation meant that they could be introduced by a single vote in the Commons rather than having to pass through the full scrutiny afforded (by both Houses) to primary legislation. As we noted earlier in this report (paragraph 87), EVEL was introduced without a cross-party consensus.

125.Some witnesses pointed out advantages to using Standing Orders rather than legislation to implement EVEL—particularly given the Government’s stated intention that the new procedures were to undergo a trial period. Standing Orders can be amended by a simple majority vote in the House of Commons. This means that the Commons may easily amend the procedures, for example following a review or an event that highlights an unforeseen shortcoming in the process.149 This argument was not accepted by all our witnesses: Baroness Smith told us: “I suspect the reason it was done by Standing Orders was not to give flexibility, but to get it through as quickly as possible with as [little] fuss as possible.”150

126.In the longer term, the use of Standing Orders makes it less likely that EVEL will survive under a Government of a different political persuasion. As Professor Kenny noted, a future Government wishing to repeal the EVEL procedures would face only political, rather than practical, restraints.151 The Leader of the House of Commons stated that any Government wishing to repeal EVEL would have to calculate the political costs of doing so—and that “any Government who sought to do that would pay a political penalty”.152

127.A future government might have to pay a political price for repealing EVEL. But a Government that found itself with a UK majority but not a majority of English MPs—i.e. a situation where the EVEL procedures are likely to make the most difference—could, and most likely would, simply repeal the procedures rather than face the prospect of embarrassing defeats in the House of Commons.153 Otherwise, as we note earlier in this report (paragraphs 60-63), English MPs could hold a Government with a UK-wide majority to ransom, with a significant risk of the legislative programme finding itself in deadlock.

128.The Society of Conservative Lawyers agreed that, while EVEL is set out in Standing Orders, it will always be possible for a majority of the whole House to over-ride English (and Welsh) MPs by changing those Standing Orders again. They advised that an explicit mechanism should be included specifically allowing the whole House to over-ride the English (and Welsh) veto, replacing the unofficial mechanism of suspending the Standing Orders and providing parity with the Sewel Convention that the UK Parliament does not normally legislate on devolved matters without the consent of the relevant devolved legislature(s).154 This would be more in line with the recommendation of the McKay Commission (see paragraph 11).

129.One of the most significant distinctions that arises between the use of Standing Orders and legislation is the question of justiciability.155 If the EVEL procedures are set out in primary legislation, there is a risk that the courts would be asked to scrutinise and assess whether the process set out in statute was followed.156 Similarly, there may be scope for any errors—for example the miscounting of MPs in a division—to be challenged and the legality of the resulting Act of Parliament questioned. While Article 9 of the 1689 Bill of Rights generally prohibits the courts from questioning proceedings in Parliament, setting out the procedures in statute could arguably bring them into the purview of the courts.157

130.Notwithstanding this concern, a number of witnesses saw benefits in implementing EVEL through legislation rather than Standing Orders. Several witnesses were unhappy with the idea of a major constitutional reform being carried out using Standing Orders and thus avoiding the enhanced scrutiny given to legislation. Bringing forward the proposals as legislation would allow a significantly greater degree of scrutiny and, potentially, amendment. Chris Bryant MP was very clear that he thought that using Standing Orders was insufficient:

“it was inappropriate. It was a major constitutional change. The checks and balances of a bicameral Parliament are important… There are few countries in the world where the Standing Orders of parliament can simply be changed on the whim of the Government. … [I] believe that sometimes being able to apply the brakes to constitutional change is an important part of any system; otherwise, the danger is that you lead to autocracy. “158

131.Similarly, the Society of Conservative Lawyers told us that: “We see a substantial argument for the embodiment of EVEL in primary legislation on the basis that EVEL will be an important constitutional arrangement.”159 Mr Wishart felt that, “If the Government are serious about this, and if it is a constitutional issue, as it seems to have been presented to us, they should have the courage of their convictions and bring forward legislation so that it can be tested in both Houses of Parliament.”160 Our Liberal Democrat witnesses, Lord Wallace and Mr Brake, both told us that it was reasonable to implement EVEL through Standing Orders for the trial period, but that if the procedures were to be made permanent then legislation might be a better option for a long-term reform.161

132.The Leader of the House of Commons told us that the decision to introduce the change by means of Standing Orders reflected both principle and practicality. On the practical side, he told us that the ease with which the reform could be made was part of the consideration. He also thought it was “perfectly proper” to use Standing Orders, as the reforms affected only the House of Commons. He noted that other important changes to the Commons had also been brought about through Standing Orders, such as the creation of select committees and the election of those committees’ chairs.162 We recognise the parallel drawn by the Leader of the House, although we note that those changes were the result of extensive deliberation by a select committee, and delivered on a cross-party basis.

133.As we note above, there is no cross-party agreement on whether and how EVEL should be implemented. While it is indeed possible, as one of our witnesses acknowledged, “to deliver successful constitutional change in the United Kingdom, even in circumstances where you do not have immediate cross-party support”, it is not preferable.163 Mr Gover echoed the sentiments of several witnesses when he concluded that: “Ultimately, if this reform is to survive, it will need to be perceived as legitimate, both in popular opinion and through some sort of cross-party consensus.”164

134.It is regrettable that cross-party support was not secured for EVEL prior to its introduction. Given the ease with which Standing Orders may be repealed, there can be no certainty as to the reform’s longevity. 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 may provide more widespread political backing for the reform.

135.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.

136.Finally, we recognise concerns that should the EVEL procedures be set in statute they would be opened up to challenge and interpretation in the courts. In that event, we recommend that the legislation be drafted in a way that protects the operation of Article 9 of the Bill of Rights, which prevents the courts from questioning proceedings in Parliament.

149 EVE Q 4 (Tom Brake MP)

150 EVE Q 37

151 EVE Q 17

152 EVE 49

153 EVE Q 3 (Pete Wishart MP)

154 Written evidence from the Society of Conservative Lawyers (UDE0028)

155 EVE Q 4 (Pete Wishart MP), and QQ 37, 39 and Q 44 (Lord Wallace of Tankerness)

156 See, for example, EVE Q 4 (Pete Wishart MP)

157 A parallel could be drawn to the Jackson case and the courts’ willingness to judge whether the Parliament Act 1949 was “validly passed by Parliament” under the Parliament Act 1911 (that question then having a bearing on whether the Hunting Act 2004, passed under the 1949 Act was lawful). See also written evidence submitted by Professor Adam Tomkins to PACAC’s EVEL inquiry (EVE0007)

158 EVE Q 19

159 Written evidence from the Society of Conservative Lawyers (UDE0028)

160 EVE 4

161 EVE Q 4 (Tom Brake MP)

162 EVE 49

163 UDE Q 7; Professor Tomkins was talking about the idea of a ‘Charter of the Union’ rather than specifically about EVEL.

164 EVE Q 17

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