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A touch of EVEL

17 Aug 15

Engaging with the controversial “English Votes for English Laws” proposals to try to separate the actual provisions from some of the misconceptions surrounding the debate

by Charles Livingstone

The UK Parliament’s end of term discussions featured much debate on the Government’s policy of English Votes for English Laws (EVEL). It was already proving controversial, with some critics complaining it goes too far and others that it does not go far enough. The Government’s last-minute postponement of a debate on fox hunting legislation applying only to England & Wales, after the SNP declared an intention to oppose it, brought tempers to the boil. The House of Lords then joined in by calling for the proposals to be considered by a joint committee of both Houses.

But, for all the controversy, the proposals themselves do not seem well understood by the media or even by some parliamentarians. This update therefore provides a technical outline of the plans, in the (perhaps forlorn) hope of avoiding disputatious territory.

Why EVEL?

The Government’s plans are intended as at least a partial solution to the (in)famous “West Lothian question”, which concerns Scottish, Welsh and/or Northern Irish MPs voting on matters that are devolved to those nations. This is often discussed as if it were a legal question, but it is not. In law Parliament can still legislate on all matters, including devolved issues, but MPs will in practice not vote on devolved matters unless the relevant Parliament/Assembly consents. That is the point of the (perhaps shortly to be renamed!) Sewel convention. The question actually concerns the legitimacy of MPs having a potentially decisive say on matters for which they are not answerable to their constituents. The debate on whether EVEL would create different “classes” of MP, or recognise a difference that already exists (de facto if not de jure) hinges on that question.

How would the proposals be implemented?

The Government plans to implement its proposals via a change to the standing orders of the House of Commons, which govern how the House deals with its business. The Government resisted calls to proceed via primary legislation instead, but did allow more time for discussion. It also updated the proposals shortly before the last debate, to make clear that spending bills and other financial measures would generally not be covered.

When would the proposals apply?

To implement any variation of “English votes for English laws”, one must first define “English laws”. The Government’s proposals use a two-stage test:

  1. A measure applies only to England/England & Wales; and
  2. It relates to a matter within the legislative competence of the Scottish Parliament, the Northern Irish Assembly or, for England-only legislation, the Welsh Assembly (ignoring minor or consequential effects, in line with the various devolution Acts).

The Speaker of the House of Commons would have to certify whether a bill meets those criteria, in whole or in part, when it is introduced. If any part of secondary legislation meets the criteria then the whole instrument would be certified. A similar process would apply to amendments sent back from the Lords.

For Finance Bills and related motions, there is the additional possibility of certifying legislation as applying to England, Wales and Northern Ireland and as being within the legislative competence of the Scottish Parliament. Clearly this is intended to apply to measures relating to taxes devolved to Scotland (e.g. stamp duty land tax, and the aspects of income tax to be devolved under the current Scotland Bill).

However, one curious aspect of the proposals is that legislation could not be certified as relating to England, Wales and Scotland, notwithstanding that Northern Ireland has some control over issues not devolved elsewhere, such as aspects of welfare and gambling regulation, and that corporation tax is in the process of being devolved. Assuming the rationale for certifying certain financial measures as not applying to Scotland is that taxes should not be varied against the wishes of the MPs representing those who will pay them, there seems no reason in principle not to also limit Northern Irish MPs’ ability to have a decisive say over the corporation tax rates applying in Great Britain.

Their much smaller number (18 MPs, compared to Scotland’s 59) does of course make such an outcome less likely, but since the statistics suggest Scottish MPs have only rarely made a difference on “English” issues (albeit some of those votes were on significant issues, such as tuition fees and NHS reforms), the question of principle remains. Northern Ireland’s new tax powers appear unlikely to take effect until at least 2017, but an update may prove necessary when they do.

In any event, the certification requirements would put a significant responsibility on the Speaker to determine whether a matter is within the competence of one of the devolved institutions. While that wouldno doubt be a tricky task in some cases, it would not be dissimilar to the Presiding Officer’s job of assessing whether a Scottish Parliament bill is within competence (though the Speaker would of course have to grapple with more than one piece of devolution legislation).

However, as a decision by the Speaker could determine how and even whether a bill is passed, some mechanism for resolving difficult questions may be necessary. Though the draft orders prohibit the Speaker from giving reasons for his decisions, presumably to keep them from becoming matters of political debate, or even legal challenge (whether parliamentary privilege would be undermined has featured heavily in the parliamentary debates), a process for referring a competence question to the courts may ultimately be necessary.

No doubt the Speaker will be making clear to the Government that he would require significant additional resources to discharge these new obligations.

What would the proposals NOT do?

Much of the reporting has suggested that EVEL would stop Scottish, Welsh and/or Northern Irish MPs voting on laws that only affect England. However, every MP would retain the ability to:

  • vote for or against any bill, statutory instrument, motion or other measure;
  • speak on any matter before the full House; or
  • propose amendments to any bill.

English MPs could therefore not force through English-only measures against the wishes of the whole House. So, to choose an example entirely at random, the proposals would not prevent the SNP from blocking a change to the hunting laws in England & Wales. What, then, is the point?

What would the proposals do?

The chief purpose is to prevent legislation being “imposed” on England (or England & Wales, or England, Wales and Northern Ireland) against the wishes of a majority of its MPs. The chief aspects of the new procedure would be:

  • Bills only parts of which have been certified would be dealt with as now, but where an entire bill is certified, its committee stage (where bills are voted on and amended section by section) would take place in either a public bill committee reflecting party proportions in the nation(s) in question, or a “legislative grand committee” comprising all the relevant MPs. This would be the key change to the existing powers and privileges of MPs, who are otherwise all eligible to serve on any public bill committee. The Government has said that "ineligible" MPs would still be able to attend and speak at any committee, but not vote (consistent with current committee rules).
  • Report stage would be unaffected, meaning all MPs can debate and vote on all bills, including proposing and voting on amendments.
  • Following report stage, a legislative grand committee of the MPs from the relevant nation(s) would debate and vote on a “consent motion” to approve the certified parts of the bill. They could approve some clauses but veto others.
  • If the grand committee approved all the relevant parts, the bill would go forward to third reading and a vote of the entire House.
  • Otherwise, a new reconsideration stage would allow for further amendment, with all MPs voting. The grand committee would then be reformed, but if there was still no approval then the disputed parts of the bill would be removed. The remainder would proceed, if possible (a “consequential consideration” stage could make amendments to cope with the removal of certain clauses).
  • A bill amended in the Lords would be re-certified on its return, to ensure MPs for the affected nation(s) could still veto changes made in the Lords.
  • Certified Lords amendments and secondary legislation would have to be approved (in their entirety) by a majority of both the full House and the relevant MPs. MPs would only vote once, however, with the relevant MPs included in both counts.

As this summary (hopefully!) makes clear, the proposals would introduce a “double majority” requirement for certified legislation, with a majority of the affected MPs having to approve it as well as a majority of the House. MPs of the affected nations would therefore have greater power to block legislation, but no greater power to enact it. This would not appear so odd to many other countries whose systems are designed to favour inaction over action (such as the American system of checks and balances, filibusters and vetoes), but would be an innovation for the UK. While the powers of individual MPs may change only slightly, the potential for cumulative systemic change is significant.

A final Commons debate and vote is scheduled for September, when we will discover whether EVEL will triumph.

Charles Livingstone is a partner in the public law & regulatory team of Brodies LLP,and a member of the Law Society of Scotland’s Constitutional Law Subcommittee

 

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