English Votes for English Laws: a federal perspective

English Votes for English Laws: a federal
perspective

21 July 2015

By Dr Andrew Blick, Lecturer in Politics and Contemporary History, King’s College London; and Senior Research Fellow at the Federal Trust

The rise of EVEL

The government has been forced to postpone its plans for ‘English Votes for English Laws’ (EVEL) in the United Kingdom (UK) Parliament. But this setback does not mean that this controversial and complicated issue is about to disappear from the political scene, and a change of potentially immense constitutional significance remains possible. It is therefore important closely to analyse the meaning and implications of EVEL. As part of the ongoing Federal Trust work programme on constitutional developments in the UK, this note deploys federal concepts to provide a fresh perspective on EVEL.

On the surface, the case for EVEL in the UK Parliament might seem strong. It appears to address a genuine anomaly in the post-devolution UK constitutional system, often known as the ‘West Lothian Question’. Since devolution, MPs in the UK Parliament, by convention, no longer vote on or debate matters that have become the business of devolved legislatures in Wales, Scotland and Northern Ireland. At the same time, MPs returned to the Westminster Parliament from constituencies in the devolved territories are able to take part in discussions and vote on bills in the same policy areas that impact directly only on England (or in some cases, England and Wales). The basic idea lying behind EVEL is that it would give a special role to MPs from English constituencies in specifically ‘English’ business. Though such a system, if implemented, has tended to seem likely to favour the political interests of the Conservative Party, given its strength in England relative to other parts of the country, EVEL has drawn support from beyond the Conservative Party. The collapse of Labour in Scotland in the 2015 General Election could potentially serve to weaken even the traditionally strong Labour resistance to the proposal. The idea of EVEL has certainly gained political traction in recent years, and its proponents often go as far as to state that the case for it is ‘unanswerable’.

But whether or not this assertion is true, it has proved difficult to develop a model of EVEL that can unite those who are sympathetic to the general concept, let alone win over the doubters. This problem alone could call into question the viability of EVEL. Moreover, it might be asked how real is the problem this proposed constitutional innovation seeks to address. While the problem certainly exists on a theoretical level, instances of the votes of MPs drawn from constituencies outside England securing the passage of a measure which a majority of English MPs opposed have proved difficult to identify. If asymmetrical devolution is not making much practical difference, why does it matter? And if it is not of great importance, might EVEL have a downside that exceeds its benefits?

Assessing EVEL: the federal dimension

How are we to assess both the potential benefits of EVEL and the problems it faces? EVEL has come onto the political agenda in the wake of a process whereby the UK has increasingly adopted features generally associated with federal systems, particularly in the form of devolution. It is reasonable, therefore, to at least to attempt to use federal principles and experiences as a yardstick against which to measure EVEL.

EVEL could be seen as according with federal outlooks in as far as it might allow elected representatives from a particular geographical area to determine matters pertaining to that area without outside interference (or at least with reduced outside involvement). It can in this sense be regarded as extending to England the self-determination provided to other nations and territories of the UK through devolution. Achieving this goal of extending self-government to England, while stopping short of establishing a fully-blown English Parliament and government, federal experience might suggest, is a wise and desirable move. A fully-fledged federal constitution containing within it a unit that is the relative size of England, accounting for more than 80 per cent of the total population, would be challenging proposition. It might well be inherently unstable, whatever institutional arrangements were designed to accommodate it into the whole.

However, it may be that even under EVEL the relative position of England would be a problem. A legislative proposal deemed on the face of it a purely ‘English’ measure might well unavoidably impact upon other parts of the UK, because of the scale of England relative to the other parts of the UK. Decisions about what was and was not an ‘English’ measure might then become the subject of intense controversy, challenging the legitimacy of the system. This outcome could provide fuel to the cause of those groups outside England intent upon departure from the UK – in particular Scottish nationalists. Moreover, under the so-called ‘Barnett Formula’, changes in funding allocations to Wales, Scotland and Northern Ireland derive partially from UK-level decisions about spending in England. Consequently, under EVEL, MPs from English constituencies might be given an enhanced role in decisions that would nonetheless impact upon the level of funding in other parts of the UK. This practice would hardly be compatible with federal principles of both self-government and inclusive central decision-taking. A more clearly federal – and perhaps more satisfactory – approach would be to differentiate between decisions that were for the entire UK, and those that ought to be taken at a lower level, rather than seeking to single out ‘English-only’ (or English and Welsh) business within the UK Parliament.

A related, and fundamental, weakness with EVEL if federal logic is applied to it, involves the role of the UK Parliament. The purpose of a federal legislature is to provide an outlet for the different groups and territories within a state, but ultimately to reconcile these diverse interests and forces with one-another, ensuring cohesion for the federation as a whole. Within this model, members of the legislature may belong to different parties and states within the federation but are also part of a collective entity that speaks for the country in its entirety. EVEL might be an obstacle to the UK Parliament fulfilling this function. Not only would it impose a new, inevitably controversial, territorial distinction upon MPs, but it would differentiate their rights of participation in accordance with the territorial definition applied to them. Some models of EVEL envisage extending this division to the executive, with English departments in areas such as health and education formed within the wider UK government.

This kind of constitutional modification would be difficult to bring about in a federal system, if it could be achieved at all. It would require adherence to whatever special constitutional amendment procedures existed, perhaps involving agreement from the states. Yet in the UK, the present government anticipates treating EVEL merely as a procedural matter, rather than the high-level constitutional matter it truly is, and hopes to achieve EVEL through changes to the House of Commons Standing Orders. This approach will curtail the detailed scrutiny that is surely merited. Perhaps the most important lesson we can derive from the federal example is that changes to the constitutional system should take place only after thorough consideration and subject to a heightened degree of consensus. Detailed scrutiny and wide agreement are essential if EVEL is to prove a workable system. If it cannot be introduced by this route, it might be better not to pursue at all.