English Vetoes for English Laws: The Problem of EVEL

House of Commons 2

On Thursday plans to allow English MPs to veto laws affecting England were passed in the House of Commons. Backed by the Conservative government, the measure gained the support of 312 MPs, with 270 voting against. A series of amendments tabled by Labour and Liberal Democrat MPs were defeated.

A form of the policy, frequently referred to as ‘English votes for English laws’, has been contentious for the best part of forty years: first raised back in 1977, what became known as the ‘West Lothian question’ asks why Scottish MPs in the House of Commons can vote on legislation which applies to England, Wales, and Northern Ireland, while MPs from those three countries are unable to vote on legislation which applies to Scotland and comes before the Scottish Parliament.

The Scottish Parliament is made up of 129 MSPs, all of whom represent Scotland. The House of Commons is the lower house of the Parliament of the United Kingdom, made up of 650 MPs, of whom 533 represent England, 59 Scotland, 40 Wales, and 18 Northern Ireland. There is no English Parliament, although one has been mooted by some of the keenest supporters of ‘English votes for English laws’.

The debate around ‘English votes for English laws’ intensified following last year’s Scottish independence referendum. Though the Scottish people voted to remain part of the United Kingdom, this came only after the leaders of the United Kingdom’s major political parties had promised more devolution to the Scottish Parliament.

The process of granting Scotland greater devolution is ongoing. The Smith Commission was established immediately following the independence referendum, and the Scotland Bill 2015-16 – largely based on the commission – was announced in May in the Queen’s Speech. The bill aims to devolve additional powers from the UK to the Scottish Parliament, most notably the ability to set income tax rates and bands.

Currently, the Scottish Parliament can alter the rates of income tax established by the UK Parliament by up to 3p in the pound. The Scotland Act 2012 – which amended the Scotland Act 1998, which established the devolved Scottish Parliament – increased this to 10p in the pound, but this change will be implemented next April at the earliest, presuming it is not superseded.

Otherwise the Scottish Parliament already legislates for Scotland’s health and social services, justice, education, housing, transportation, agriculture, fisheries and forestry, environment, arts and sport, tourism, and economic development. Reserved matters – those which remain the preserve of the UK Parliament in Westminster – include the constitution, foreign affairs, national security and defence, and wider economic and energy policy.

The measure that passed on Thursday can properly be described as ‘English vetoes for English laws’. When bills passing through the House of Commons are determined to affect England only, members representing English constituencies will meet and be allowed the right of veto. If a bill passes this new phase of the law-making process, then all of the UK’s 650 MPs will be able debate, propose amendments, and vote as previously.

The Speaker of the House of Commons, a role currently occupied by John Bercow, will be responsible for deciding whether a bill affects only England or the rest of the UK. He will be entitled to explain his reasoning, and can call for aid upon two senior MPs.

Establishing for English MPs a pivotal say over laws affecting England seems intuitive, an obvious course of action especially in light of ever-greater Scottish devolution, and significant devolution also to Wales and Northern Ireland. Dismissing objections the Leader of the House of Commons, Conservative Chris Grayling, said that Thursday’s measure would bring ‘fairness to our devolution settlement and it is fairness that will secure the future of our union.’ Conservative MPs who have previously called for more thorough action, such as John Redwood, declared themselves content with the measure, at least as a starting point.

On the other hand, Labour had called for a new phase of all-English debate and revision, which stopped short of allowing English MPs the right of veto. Shadow Leader of the House of Commons, Labour’s Chris Bryant, called Thursday’s measure an ‘incomprehensible bureaucratic mess that will create confusion and division in Parliament.’

Labour’s Gerald Kaufman, the longest-serving member of the House, described the debate which led to the vote as ‘one of the nastiest, most unpleasant I have attended in 45 years,’ encouraged by ‘a government with no respect for the House of Commons.’ And the Scottish National Party’s Pete Wishart warned, ‘Scotland is watching this and the mood is darkening. If this is an exercise in saving the union you could not have contrived of a more inept way to save the union.’

Even if they are convoluted and counter-intuitive, there remain rational and worthy reasons why even an English veto over what are ostensibly English laws stands as a disagreeable concept, one which threatens rather than upholds democracy and the healthy course of honest legislation.

To some extent these reasons fall along party lines. Until May’s general election, Labour had been the dominant force in Scotland within the context of Westminster: back in 2010, of the 59 House of Commons seats available north of the border, Labour had taken 41. In May they were routed by the Scottish National Party, who won 56 seats, leaving Labour with just 1.

But whether it is Labour or the SNP taking up Scotland’s Commons seats, adding a phase to the law-making process which is the preserve of English MPs plays into the hands of the Conservatives. It affords them a numerical advantage, the opportunity to veto legislation without having to face all of their parliamentary opponents.

If Labour were to recover in Scotland, and came to form a government based partly on those seats, or if Labour and the SNP formed a coalition government, the result could be parliamentary gridlock, with a Labour or Labour/SNP majority throughout the UK, but a tighter margin and potentially even a Conservative majority throughout England. The Conservatives could then effectively block all of the government’s proposed legislation.

And beyond marginalising Scottish MPs, an English veto for English laws serves more narrowly the Conservative south of the country. Across England in May, the Conservatives took 319 of 533 seats, while Labour managed just 206. But in the north of England, in the North East, Labour took 26 of 29 seats; in the North West, 51 of 75; and in Yorkshire and the Humber, 33 of 54: a total of 110 seats from a possible 158.

Dividing the country in this way, refusing to hew to the nationwide results, may feel undemocratic, tantamount to denying the very idea of an English nation. But when it comes to politics, the north of England is ideologically and economically closer to Scotland than it is to much of the south of England, particularly the prosperous and populous South East. An English veto for English laws is not in the interests of the north, neither in terms of real power nor balanced debate; and in addition to favouring the Conservatives, it arguably deepens the case for devolution to the regions.

This presumes that Thursday’s measure – which will be phased in gradually over the coming months – works as intended. But even the Commons Procedure Committee, which is chaired by Conservative Charles Walker, has labelled it ‘over-engineered and potentially burdensome.’

Delving into the details, in some cases MPs from both England and Wales will be given a veto over bills perceived not to affect Scotland or Northern Ireland. More complex still, a ‘Legislative Grand Committee’ will be tasked with picking apart and ratifying bills which are not England-only in their entirety, but contain individual parts seen as relating just to England.

So an English veto for English laws will add an intricate and time-consuming new phase to an already tight parliamentary schedule. And it is unclear whether the measure will prove even broadly fit for purpose, given the difficulty the Speaker will face in determining what constitutes England-only legislation.

Condemning the proposals as they stood in July, the leader of the SNP, Nicola Sturgeon, suggested ‘Of the 20 bills listed by the UK government as not extending to Scotland, no fewer than 13 of them did.’ While the proposals were subsequently redrafted, the point persists, not least because there can be no definite answer regarding what affects England only and what also affects the rest of the UK.

Many bills will be open to interpretation: with the English economy by far the largest in the UK, there are solid grounds for asserting that many ostensibly English spending decisions, as well as decisions concerning housing, transportation, and the environment, will have a wider knock-on effect.

The SNP are already concerned about being excluded from a vote on the expansion of Heathrow Airport. If other parts of the UK feel that consequential decisions on spending and infrastructure are being taken out of their hands by the new veto, they may demand additional funds from the Treasury by way of compensation.

The House of Commons Library, responsible for providing impartial information to MPs, accepts that whatever method is used for arriving at a determination, ‘there are relatively few bills that unambiguously affect England only’. The McKay Commission, which ran from February 2012 to March 2013, helped to pave the way for Thursday’s measure, without clearing up many of the difficulties with which the Speaker must now tangle.

There is finally the concern that owing to these new obligations, the role of Speaker will find itself increasingly politicised. The Speaker determines which member of the House will speak at any given moment, and bears responsibility for maintaining order and punishing members who break House rules. The role therefore demands impartiality: upon taking office, the Speaker must renounce all former political affiliation.

Chris Grayling argued on Thursday that Speaker John Bercow will not be compromised by the new measure. Yet in all it seems to pose more problems than it solves, a burden which satiates nobody while increasing the sense of a divided and divisive UK.