This post asks: what, if any, impact is a hung Parliament likely to have upon the relatively new House of Commons procedure known as ‘English Votes for English laws (EVEL)’? Will a minority Conservative Government, propped up by the DUP, find its England-only legislative plans disrupted? And what of England’s constitutional position more broadly?
EVEL was introduced to the House of Commons in 2015 as a non-statutory modification to parliamentary procedure. The Cameron Government’s intention was to address the West Lothian question, whereby: ‘MPs representing the devolved nations are able to debate and vote in the House of Commons on laws only affecting England, while MPs for English constituencies cannot debate or legislate on devolved matters in the other nations.’ The system, which has operated for two years, in effect creates a double veto whereby the House of Commons as a whole can still reject matters agreed by English MPs, but where bills certified by the Speaker to be English-only matters must be approved by a majority of all MPs from English constituencies at Committee stage.
The current EVEL system falls a long way short of formal devolution for England. The House of Lords Constitution Committee observed in a report on the system published in November 2016 that, while the system prevents laws being passed in England-only areas without the support of a majority of English MPs, it does not create a route for the formation of specifically English policies: ‘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.’
The fact that legislation for England, even though dealing with matters otherwise devolved to Scotland, Wales or Northern Ireland, must still be approved by the whole House was not problematic while the Conservative Government from 2015-17 not only controlled a majority of seats in the House of Commons in England and Wales but an overall UK majority too. But the Conservative party now has a minority of UK MPs among whom are 13 from Scotland and eight from Wales. In practice this in itself should not be a major problem for the EVEL system. The Conservatives have a majority of English MPs. But it is the case that to secure England-only policies it will require the support not only of these MPs in the England-only Committee stage, but also of Conservative MPs from outside England as well as the DUP at Third Reading. If there is dissension among ‘English’ Conservative MPs in relation to any measure, it is not inconceivable that the bill could be pushed through Parliament with the support of Scottish and Welsh Conservative MPs, together with the DUP, even where the bill had not secured an England-only majority in Committee.
This scenario is unlikely, but it does highlight that the new EVEL arrangements are somewhat flimsy, dependent for their efficacy upon the vagaries of each general election. For example, had Labour been able to form a government with the support of SNP MPs and Welsh MPs from Labour and Plaid Cymru, the issue of EVEL would have become very prominent indeed.
None of this however, I would submit, constitutes an argument to alter the 2015 model which hitherto has worked fairly well. In is in fact a reasonable compromise that tries to accommodate the wishes of the English electorate within the deeply (and unavoidably) asymmetrical nature of our territorial constitution. In a report on the Union and Devolution, the House of Lords Constitution Committee took the view that: ‘the English Question remains one of the central unresolved issues facing decision-makers grappling with the UK’s territorial constitution.’ This is undoubtedly true, but it seems inevitable that it will remain an unresolved issue. England is too big for the kind of devolution that the other territories of the UK enjoy. Nor is EVEL an area that lends itself easily to legislation. A statute to regulate legislative procedure would potentially embroil the courts in the internal workings of Parliament itself, endangering the very legislative supremacy that undergirds our unwritten and flexible constitution. The Commons should carry on as it has, carefully tacking across volatile electoral winds, and adjusting its procedures to give the best effect possible to a distinctive English voice within one national Parliament.
Stephen Tierney works at Edinburgh Law School where he is Vice Dean, Professor of Constitutional Theory and Director of the Edinburgh Centre for Constitutional Law. He served as Legal Adviser to the House of Lords Constitution Committee in relation to both reports mentioned in the blog. The post is written in his personal capacity.