by Professor Adam Tomkins, John Millar Professor of Public Law at the University of Glasgow
MPs return to Westminster in a couple of weeks. Among the constitutional matters competing for their attention will be “English votes for English laws”. This has been a contested and troublesome area of constitutional reform for the Government. Here are my thoughts on the way forward.
The Government are right to recognise that the United Kingdom’s asymmetrical devolution arrangements for Scotland, Wales and Northern Ireland have opened up an English question which requires to be answered. Academic research such as the annual Future of England Surveys have amply illustrated this. These have found – over several years – that there is dissatisfaction with the way England is governed, that there is a perception in England that devolution in the UK has conferred advantages on Scotland, Wales and Northern Ireland that are unfair to England, and that people in England see a democratic deficit.
The Government are also right – as was the McKay Commission in 2013 – that the answer to the English question lies in making it more transparent that the Westminster Parliament is both England’s legislature and the legislature for the whole of the United Kingdom. Neither the creation of a new English Parliament nor the division of England into regions, each with a directly elected assembly, is an apt answer to the English question at the moment or for the foreseeable future. Devolution in the United Kingdom has been and should continue to be “on demand” rather than imposed “top down”. There is no widespread demand in England either for a new Parliament or for regional assemblies.
The Government’s proposals as to English votes for English laws (“EVEL”) are an attempt at doing what requires to be done: namely, making it more transparent that the Westminster Parliament is both England’s legislature and the legislature for the whole of the UK. This attempt should be welcomed.
The McKay Commission (an independent commission that examined these issues in 2012-13) identified the following as a constitutional principle on which its recommendations and options were based: “decisions at the United Kingdom level having a separate and distinct effect for a component part of the United Kingdom should normally be taken only with the consent of a majority of the elected representatives for that part of the United Kingdom”. Building avowedly on the well-established Sewel convention, this principle makes for an excellent basis from which to proceed.
Applied to England-only laws made by the United Kingdom Parliament it would suggest that such a law should normally be passed only with the consent a majority of Members of Parliament representing constituencies in England.
This, I would submit, is the right constitutional principle on which proposals for EVEL are and should be based. The Government have tweaked the principle in their proposals – but they have done so in the interests of clarity. (The main clarification in the Government’s tweaking is that “separate and distinct effect” has been defined as “relating exclusively to England” and falling “within devolved legislative competence”.) It is clear that the Government’s proposals are based on this “McKay principle”. This, too, I welcome.
The Government’s Proposals
EVEL is not a mere tidying-up measure. It is, on the contrary, likely to have profound constitutional consequences. Whilst the Government’s proposals are confined to law-making, if the principle of EVEL takes root, it could in due course lead to a desire for other aspects of parliamentary business with a separate and distinct effect in England becoming subject to the need for explicit English consent. There are Departments of State, for example, whose business directly affects only or mainly England (or England and Wales) (the Departments of Education, Communities and Local Government, and Health are examples). Should the Secretary of State (and Ministers of State?) of these departments be required to represent English constituencies? Or, as a lesser measure, should their appointments be subject to the consent of a majority of MPs representing seats in England? Should the select committees that scrutinise these departments be composed only of MPs representing constituencies in England (or England and Wales)?
I am not advocating these reforms: I use them merely as illustrations of where the constitutional logic of EVEL may lead. Scottish, Welsh and Northern Irish devolution have each grown and developed since the Acts of 1998: there is no reason to think that the demand for aspects of English self-rule will necessarily and for the long term be satisfied by the Government’s current proposals.
More immediately, 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. Legislation will have to be drafted not only with its territorial extent in mind (this already happens) but also with the question in mind of whether the legislation “relates exclusively” to England (or England and Wales) and whether it falls within “devolved competence” (as defined). The former test asks whether the legislation “applies only” to England (or England and Wales). Clearly, the application of legislation is not the same as its territorial extent (e.g. the territorial extent of the Wales Act 2014 is the whole of the United Kingdom, but its main effects will be felt in Wales only). Whether application and effects are the same as one another may be an open question.
In the devolution legislation the legislative competence of the devolved legislatures is limited by provisions that use the language of “relating to”. For example, section 29 of the Scotland Act 1998 provides that a provision of an Act of the Scottish Parliament is outside competence if it “relates to reserved matters”. Section 29(3) provides that this is to be determined “by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances”. Similar language may be found in section 108 of the Government of Wales Act 2006.
As is entirely to be expected these tests have not always been easy to apply in practice. This is no error on the draftsman’s part: it is inevitable that there will be “border disputes” at the boundaries of legislative competence (as there are in any federal country). There is now a growing body of UK Supreme Court case law on the meaning and application of section 29 SA and section 108 GOWA. The case law is not always easy to follow, and the matter has divided the Supreme Court in at least two of the leading cases. The point here is this: determining what legislation “relates exclusively” to England may not always be straightforward and may on occasion be contested and open to different reasonable interpretations.
That “minor or consequential effects” are to be disregarded when considering whether a measure relates exclusively to England (or England and Wales) serves only to amplify the point. Adjudicating on these matters will require fine judgement and may on occasion be controversial.
The “consequences” of legislation may include consequences as to public spending, sometimes referred to as “Barnett consequentials”. The Barnett formula is, of course, the formula used to determine the size of the block grant from the Treasury to the devolved administrations. It pre-dates devolution and is regarded by very few independent commentators as fit for purpose. None the less, for political reasons we are stuck with it for the time being and, if EVEL is to work, it needs to be made to work in the light of, and taking into account the operation of, the Barnett formula.
In short, the Scottish block grant is calculated by reference to certain departmental spending in England. If such spending is cut in England, so too is the block grant. Now, legislation itself does not change departments’ budget provision. The House of Commons votes on this as part of the estimates process, not as part of the ordinary business of debates on legislation. This has been forcefully pointed out by Professor Jim Gallagher and was carefully explained by the Leader of the House on 15 July (HC Deb, 15 July 2015, col 942). The Leader of the House revised the Government’s EVEL proposals in July to make them explicit in providing that all Members of Parliament will continue to be able to vote on all aspects of the Supply process. This is welcome but, of itself, may not go far enough.
The Supply process is not well understood, attracts very little public attention, and is largely formal (rather than substantive). Its operation empowers neither Parliament nor the public, but the Treasury. As the Treasury explains in its document, Supply Estimates: A Guidance Manual (2011), “the Standing Orders of the House of Commons place limitations on the timing and extent of debate over the Estimates and provide for the proceedings on the related legislation to be progressed formally and without further debate”. Scrutiny of individual departmental Estimates is mainly undertaken by select committees rather than by the House as a whole, with the Liaison Committee normally selecting only one or two departments’ Estimates to be debated in the House. Further, when the Estimates are approved by resolution, Members of Parliament may table amendments to reduce supply but not to increase it.
Whether these procedures give MPs the means fully to scrutinise any “Barnett consequentials” of England-only (or England and Wales only) legislation may be doubted. If they prove to be inadequate, it may be that one (unintended?) consequence of EVEL will be to reform the House of Commons’ Supply process. From the perspective of parliamentary openness and effective parliamentary scrutiny, that would be no bad thing. The Treasury, however, may take a different view.
On one level the Government are right that their proposed Standing Orders are “a relatively modest step”, as the Leader of the House has put it. All MPs will continue to be able to vote on all Bills. All that is being done is to ensure that England-only measures (or England-and-Wales only measures) proceed only with the consent of a majority of MPs representing seats in England (or England and Wales). But even relatively modest steps can have profound consequences – the ripple effect of these proposed Standing Orders may be significant, and may not yet be fully understood.
Proceeding by means of changing the House’s Standing Orders (rather than by enacting primary legislation) is the correct route, constitutionally. It is ever more difficult for legislation effectively to exclude the possibility of judicial review. Even where statute evinces a clear parliamentary intention that judicial review should be excluded, the courts are apt to set this aside and to adjudicate regardless: the recent UK Supreme Court ruling (in R (Evans) v Attorney General  UKSC 21) on section 53 of the Freedom of Information Act 2000 is a potent illustration of this.
I am less confident, however, that the certification process as provided for in the Government’s proposals is fit for purpose. It risks politicising the office of Speaker. It requires the Speaker to have very full legal advice about matters the like of which have repeatedly divided the Supreme Court (in its devolution case law). And, most worryingly of all perhaps, the Speaker will be prevented from giving reasons for his decisions. This is in marked contrast to the position under the devolution statutes, where sometimes very detailed reasons may be given both by ministers and, of course, by the courts in any subsequent case law, explaining their views as to why a measure is within or outwith devolved competence. The constitutional value of transparency and openness in decision-making is hardly enhanced if Parliament and the public are prevented from seeing and understanding the reasons for decisions.
Finally, it needs to be said that the process of constitutional change is often as important as its substance. Given that the Government have a majority of English (and English-and-Welsh) seats, as well as an overall majority in the House of Commons, EVEL is a matter in respect of which there is currently no need to rush. Perhaps the Government would be wise to follow the advice of the House of Lords Constitution Committee which, in its 2011 report on The Process of Constitutional Change recommended that constitutional change be accompanied by careful consideration of: the impact of the proposals on existing constitutional arrangements; the importance of seeking consensus; the importance of public engagement and consultation; the importance of robust, internal scrutiny through the Cabinet Committee system; whether a Green Paper should precede the setting of Government policy; and whether a White Paper should precede the enactment of constitutional change.
If the Government want their “relatively modest proposal” to stand the test of time, they would be well advised to proceed with less haste and more care. I welcome the idea of English votes for English laws. I would welcome it more enthusiastically if I thought that its consequences and constitutional importance had been fully thought through.
[This blog post is based on written evidence submitted to the House of Commons Procedure Committee, which is undertaking an inquiry into the Government’s EVEL proposals and was originally published on Professor Tomkins own blog Notes From North Britain on 21st August 2015]