Written evidences submitted by Paul Evans and Paul Silk*(TTC 03)
This paper responds to the Procedure Committee’s call for evidence in its inquiry into the procedure of the House of Commons and the territorial constitution. It proposes:
- The establishment of a permanent inter-parliamentary Body comprised of Members of the four UK legislatures to hold to account the Joint Ministerial Committee or any successor UK intergovernmental organisation.
- Changes to the standing orders of the House of Commons to enable joint working between all its committees and committees of the UK’s devolved legislatures.
- Rethinking the role of the territorial Grand Committees, and the establishment of an English Grand Committee to consider legislative consent motions relating to matters relating exclusively to England.
- A radical simplification of the standing orders relating to English Votes for English Laws.
- Integration of procedures relating to the operation of the Sewel Convention into the mainstream of the House’s legislative procedures.
- Other measures to enhance interparliamentary co-operation between Members of the UK’s legislatures.
We note that on 6 November the Committee announced its intention of focussing its inquiries on the procedural steps necessary to facilitate greater joint working between House of Commons committees and the relevant committees of other UK legislatures to ensure effective scrutiny of common frameworks. While the scrutiny of the common frameworks provides an immediate impetus for better interparliamentary co-operation, we consider that this should be the launching pad for enhanced and deeper interparliamentary working in the longer term.
*Paul Evans CBE is a former Clerk of Committees in the House of Commons. He retired in 2019. Sir Paul Silk KCB is a former House of Commons Clerk, Clerk of the National Assembly for Wales 2001-7 and Chair of the Commission on Devolution to Wales 2011-14.
The procedure of the House of Commons and the territorial constitution
- This is a timely and important inquiry. While the UK’s present constitutional arrangements continue, any steps that can be taken to foster cooperation between its legislative assemblies is highly desirable, and will contribute to maintaining the Union. Better cooperation between parliamentarians in Belfast, Cardiff, Edinburgh and London should be attractive both to those who support the continuation of the Union and to those, like Sinn Fein and the SNP, who do not believe in the Union: mechanisms established now, while the Union continues, could form the basis of structures that would be needed if the constitutional position of its component nations were to change.
- While we warmly welcome the Procedure Committee’s inquiry, we also agree with one of the conclusions of a recent report from the Institute for Welsh Affairs (IWA) on this subject – that mechanisms to improve cooperation will best be designed cooperatively, not unilaterally. In this context, while we also welcome the commitment to greater transparency and accountability on intergovernmental relations that the Chancellor of the Duchy of Lancaster has recently promised, that accountability and transparency is to the UK Parliament. It is unilateral, not multilateral.
Interparliamentary oversight of intergovernmental relations
- Better mechanisms for intergovernmental cooperation are being studied by the Cabinet Office and the devolved administrations, and the UK Government “remains committed to finalising a product at pace”. Before Brexit the mechanisms were unsatisfactory; post-Brexit they urgently need reform. If we optimistically assume that the Joint Ministerial Committee (JMC) will be reinvigorated, and that the process of cooperation and joint decision-making will be improved, it is imperative that there are complementary interparliamentary mechanisms for the oversight and scrutiny of that intergovernmental work.
- The Interparliamentary Forum on Brexit has been an example of what an informal body can achieve. However, for real accountability for intergovernmental action to emerge, there needs to be a more formal structure with a clearly recognised role, a transparent and accountable way of working and proper reporting mechanisms. In other words, there needs to be clear “buy in” from the governmental and parliamentary sides. We favour moving swiftly towards the creation of a formal interparliamentary Body of around 20 to 50 parliamentarians that would have responsibility for the scrutiny and oversight of intergovernmental working.
- Such a Body should –
- be drawn from the membership of both Houses of Parliament and the three devolved legislatures
- be funded jointly by the Houses/legislatures, and have a small, permanent secretariat provided by them jointly, the duties of which would include providing public information
- have powers akin to those of select committees to take evidence and report, to travel and to appoint sub-committees
- aim to work consensually
- be recognised in the Standing Orders of each House/legislature
- meet frequently enough that Body members get used to working together, but not so frequently that the commitment becomes too onerous: two-day meetings, four times a year would, we believe, be a minimum
- be clearly and directly co-ordinated with the JMC timetable and have a power to call Ministers from that body to give an account of its work and be questioned upon it
- use hybrid virtual and physical meetings as default
We have used the term “Body” to denote something more formal than a “Forum” – language is important. We see the Body as akin to an international parliamentary body that is more than just a place for parliamentarians from different institutions to meet and discuss, valuable though these things are – the Body needs to have teeth.
- The Committee is considering international examples, and there are some worth studying in this context. The British Irish Parliamentary Assembly and the Parliamentary Assembly of the Council of Europe are familiar. However, the Benelux Parliament is an interesting example in terms of its composition (its Belgian members come both from the national parliament and from the other legislatures in Belgium); and the ways of operating of the Nordic Council (where the autonomous regions of Greenland, the Faroes and Aland are represented in addition to Denmark, Finland, Iceland, Sweden and Norway) and the Baltic Assembly, both of which really do seem to hold Ministers to account, are also worth considering.
Commons Committee Powers and Structures
- At present it is a formal responsibility of the Welsh Affairs and Scottish Affairs committees to consider relations with the Senedd and Scottish Parliament respectively. There is not a parallel responsibility for the Northern Ireland Affairs Committee. Only the Welsh Affairs Committee has formal powers to invite Senedd Committees to participate in proceedings, though any Commons Committee can exchange evidence with Committees of the other legislatures.
- There is no logic in this. We recommend that the Commons Standing Orders be amended so that the powers of the Welsh Affairs Committee are extended to all Committees with PPR powers. Joint inquiries by Committees would, as the IWA Report argued, “build understanding across multiple political parties and legislatures, and lend legitimacy to any findings and recommendations”. These should not be confined to the “territorial” Committees – an inquiry by, say, the Environment, Food and Rural Affairs Committee into water might well benefit from joint working with a Senedd committee, or an inquiry into proposed criminalisation of an activity could be done along with committees from the Scottish Parliament and Northern Ireland Assembly. The present inquiry of the Procedure Committee could itself have benefitted from being done in concert with Scottish, Welsh and Northern Irish Committees.
- The Commission chaired by the former Clerk of the House, Sir William McKay, in 2013 proposed the creation of a Devolution Committee of the House of Commons. Partly this Committee would deal with Legislative Consent Motions, which we consider separately. But the Commission also saw the Devolution Committee having a wider remit of holding UK Ministers to account for cross-border spill-overs, as well as having the responsibility of looking at devolution policy more widely than the territorial committees could. The Commission mentioned England in the latter context, and the need to scrutinise devolution policy in England is even more pertinent in 2020 than it was in 2013. The Commission also believed that the functions of a Devolution Committee would evolve over time. We believe that the proposal for a Devolution Committee should be revived, and that it may be of particular value in helping rationalise the system of devolution in England. There would be a case for making it a joint committee potentially, and it would be desirable to integrate it with the existing territorial committees in some way.
- The Committee’s call for evidence did not directly refer to them, but any rationalisation of the House’s procedures relating to devolution should probably take into account the three Grand Committees and the Regional Affairs Committee which still have a rather shadowy existence in the Standing Orders of the House and which (with the exception of Regional Affairs) have not been seriously reconsidered since 1999. They may have the potential to trial some ways of enhancing interparliamentary work. They could also be given power to invite members of other legislatures to participate in their proceedings (and members of the Lords). The model of the Standing Committee on the Convention/Inter-Governmental Conference on the Future of Europe (of 2002-04) might offer some useful options for consideration. The possibility of creating an English Grand Committee for the purpose of considering legislative consent motions separately from the standard proceedings on bills is considered below in the section on English Votes for English Laws.
- The Sewel convention (that Parliament will not normally legislate with regard to devolved matters without the consent of the devolved parliaments) found statutory expression in the Scotland Act 2016 and the Wales Act 2017. Despite this, the Supreme Court in Miller decided that it was not its role to enforce this statutory expression of a constitutional convention, fundamental though such conventions might be. The Court might in any case have had difficulty in interpreting what is an unsatisfactory statutory recognition of Sewel. When the Wales Bill was going through the Lords, the former Lord Chief Justice, Lord Judge expressed this succinctly:
The word “normally” in Clause 2 is a weasel word. It does not mean anything very much in legislative terms. I am perfectly well aware that it is in the Scotland Act, but what is this supposed to mean: “the Parliament of the United Kingdom will not normally legislate”? Who decides what is normal? If the Parliament of the United Kingdom decides, the Assembly is ruled out.
The Supreme Court did, however, recognise the important role played by the Sewel convention “in facilitating harmonious relationships between the UK Parliament and the devolved legislatures”. If the Convention is not to enforced in the courts, then, in our view, the enforcement duty falls on Parliament. We therefore agree with the views of the Welsh Government in its 2019 Paper Reforming our Union that “when faced with a Bill for which devolved consent has been refused….Parliament should have a specific opportunity to consider the constitutional implications of allowing the Bill to proceed to Royal Assent without consent”.
- The recent report from the Institute for Government (IfG) on the operation of the Sewel Convention (which is an excellent analysis) recommends that, where one or more of the devolved legislatures has declined to give its consent to legislation, there should be an additional stage in the House of Commons in which it decides formally whether or not to continue with the legislation. This would be a fairly simple requirement to embody in a standing order as a requirement before the question on third reading of a bill could be proposed by the Speaker. The IfG also recommend that any such refusal of consent should be considered and reported on by the proposed Devolution Committee, which also seems a sensible way of ensuring that such a decision is carefully considered.
English Votes for English Laws (EVEL)
- In October 2015, the printed edition of the Standing Orders of the House of Commons relating to public business grew overnight from a length of 197 pages to 232, almost certainly the largest single expansion in their history. That 18% growth was accounted for almost entirely by the new standing orders relating to EVEL. The first problem with those standing orders is therefore that they are almost incomprehensible. They are written in the style of statute law, as if they were to be picked-over by armies of future lawyers, rather than as a guide to how to do procedure. They are not just disproportionate to the problem they were trying to solve, they are positively counterproductive. The standing orders may have grown by almost a fifth in length but they probably doubled in opacity. The arrangements for EVEL have provided an over-engineered and entirely technocratic answer to what was essentially an emotional and political problem.
- They are not just a sledgehammer to crack a nut; they are ineffective. The length of debate in the Legislative Grand Committees created by the EVEL standing orders has been minimal. As Michael Kenny and Daniel Gover said in their review of the first year of their operation, they have failed to give a voice to England in Parliament. That 2016 report, which made a number of recommendations to the Procedure Committee, is worth revisiting again.
- EVEL has also introduced an unhelpful further level of asymmetry into the devolution settlement. While English MPs can veto laws proposed in the UK Parliament relating exclusively to England, the devolved legislatures can only rely on a convention – the Sewel Convention discussed above – which is not a veto but a means of registering objection which can be overridden at Westminster without any special procedure. Gover and Kenny suggested that an English Grand Committee would be a better way of giving England a voice over legislation relating exclusively to England. Such a proposal is broadly consistent with a recommendation of the McKay Commission (cited above) for such a committee to approve (or reject) legislative consent motions for provisions in a bill relating exclusively to England before it reaches its final stage of consideration in the House. The implication would be much the same as legislative consent motions decided by the devolved legislatures – the cost of overriding a refusal of consent would be political, not procedural, and the debate, if any, might be more likely to concern principles rather than technicalities. It would look fair, and the complex belt-and-braces, anticipating all possible options, of the current EVEL standing orders could be abandoned. The procedure might become comprehensible and clear, and need be applied only where there was real evidence of controversy.
Explanatory Memoranda to Bills
- The jagged edge of devolved responsibility has been lessened in recent years, but still remains. That means that legislation passed at Westminster often has implications for Scotland, Wales and Northern Ireland even when it does not directly apply there. For example, a Bill to privatise an aspect of education in England would have implications for the Barnett formula. One way to remedy this would be for Explanatory Memoranda to Public Bills to be required to contain a Statement by the Member in charge as to the Bill’s relevance, applicability and effects in Scotland, Wales and Northern Ireland. Ideally, a reciprocal practice should be adopted by the other legislatures.
Independent funding for legislatures
- Since 1978, the House of Commons has had responsibility (through the House of Commons Commission) for determining its own budget and deciding its own spending priorities. The Welsh Government has proposed that the running costs of the four legislatures should in future be provided for together on the same basis as those of the UK Parliament are currently; that is, through a specified funding line (but one covering all four legislatures), ‘top-sliced’ from the total of budget provision for the UK. Under their proposal, the four legislatures would, on the basis of a memorandum of understanding between them, determine the distribution of funding between them. We believe that this idea has considerable merit, emphasising as it would the distinction between parliamentary expenditure and government expenditure. We hope that the Committee may consider this further.
Access and courtesy
- There are a number of non-procedural steps that could be taken to build better relations with the non-Westminster legislatures. First, Members of those legislatures should have passes that allow them to access the Palace of Westminster. Secondly, UK Ministers should treat correspondence from Members of the legislatures in the same way they would correspondence from MPs. Thirdly, there should be a presumption that UK Ministers should accept suitable invitations to give evidence to committees of the devolved legislatures. All these measures should, of course, also be taken reciprocally in Scotland, Wales and Northern Ireland.
- The United Kingdom may be a quasi-federal state - Lady Hale has even described it as a federal state - but its territorial constitution is unusual, if not unique. The largest territory in the Union has a piecemeal system of non-legislative devolution but no distinct national legislature, while the territories with legislative powers all have different powers but exercise them subject to the concurrent right of the United Kingdom Parliament to legislate in the areas for which those territories have responsibility. This governance model is inherently unstable, and the tensions within it are exacerbated both by (at worst) chronic power-hoarding and (at best) benign indifference from Whitehall – and Westminster – towards Wales, Scotland, Northern Ireland and, indeed, the regions of England.
- This inquiry is an opportunity to make a small contribution to addressing these issues. But the challenge is to convince all MPs, especially those representing English seats and those representing the SNP, that this is worthwhile. We agree with the sentiment of the IWA’s report:
An important factor in making progress will be the buy-in of individual parliamentarians, and their recognition that good inter-parliamentary relations contribute to effective governance for the whole UK, not just the devolved nations. In the future, inter-parliamentary collaboration should become a routine part of each Member’s role.
- We hope that this view will be echoed by the Procedure Committee, and that interparliamentary cooperation should no longer be regarded as a peripheral issue. However, we are well aware that the call for greater interparliamentary cooperation has been made many times – by the Richard, Calman, McKay, Silk and Smith commissions as well as by parliamentary committees in Lords, Commons, Scotland and Wales – and that little has been done. If that happens again after this inquiry, that will only help to corroborate the view that the House of Commons is indifferent to these issues and so help chip away at the Union.
 https://www.iwa.wales/wp-content/media/Missing-Links-Past-present-and-future-inter-parliamentary-relations-in-the-devolved-UK.pdf page 51
 Written Ministerial Statement, 10 November 2020
 It would be very difficult to agree a voting system that would be acceptable to all parties
 But it is noticeable that MPs and Peers attend the annual four weeks of the Parliamentary Assembly of the Council of Europe in Strasbourg without complaint, as well as the plenaries of the parliamentary bodies of the OSCE and NATO.
 The term “Council” has a relatively clear, internationally-recognised status. Perhaps if the JMC were to be renamed the Council of the United Kingdom it would be clearer that it was a democratically accountable, inter-governmental body. The “Body” we propose would then become the parliamentary assembly of the Council.
 Standing Orders should be amended so that they refer to the Senedd, not the National Assembly for Wales
 https://www.iwa.wales/wp-content/media/Missing-Links-Past-present-and-future-inter-parliamentary-relations-in-the-devolved-UK.pdf page 52
 Report of the Commission on the Consequences of Devolution for the House of Commons, March 2013, paragraphs 259ff
  UKSC 5 para 151
 HL Deb 31 October 2016 col. 465
 https://gov.wales/sites/default/files/publications/2019-10/reforming-our-union-shared-governance-in-the-uk.pdf. This view was reflected in IWA Report’s recommendation that “the passing of a law by Westminster after consent has been withheld should require formal processes in the UK Parliament and potentially formal inter-parliamentary dialogue”.
 Akash Paun and Kelly Shuttleworth, Legislating by consent: How to revive the Sewel convention, Institute for Government, September 2020, p33.
 Daniel Gover and Michael Kenny, Finding the good in EVEL: An evaluation of ‘English Votes for English Laws’ in the House of Commons, Centre for Constitutional Change, November 2016.
 This was a recommendation (in respect of Wales) of the Commission on Devolution in Wales Legislative Powers to Strengthen Wales pages 161-2
 Speech to Legal Wales conference, 12 October 2012
 https://www.iwa.wales/wp-content/media/Missing-Links-Past-present-and-future-inter-parliamentary-relations-in-the-devolved-UK.pdf page 51