Written evidence from the Mile End Institute, Queen Mary University of London
(EVE 08)

 

Executive summary

About us

  1. The Mile End Institute is a major new policy centre based at Queen Mary University of London. Its mission is to enhance public understanding of the challenges facing our systems of politics and governance, and to promote a richer debate about public policy issues and the UK’s role within the wider world.
  2. The Institute is running a major research project into English Votes for English Laws (hereafter EVEL), conducted by Professor Michael Kenny (Director of the MEI) and Daniel Gover (a Research Fellow; also a researcher at the UCL Constitution Unit). The project is analysing the introduction of EVEL in the House of Commons in the 2015-16 session, paying particular attention to its operational, political and wider constitutional implications. Professor Kenny has previously conducted research into the politics of English nationhood and the constitutional implications of the English Question. Our current research project is funded by the Centre on Constitutional Change and by the Economic and Social Research Council. Further information is available at http://mei.qmul.ac.uk/about/english-laws/.
  3. Our evidence is confined to Part 1 of your inquiry. We focus in particular on questions 1-3, although some of our responses touch on questions 5-6 insofar as they relate to EVEL.

Context for the current debate

  1. The current debate over EVEL has emerged at this moment for a number of different, but overlapping, reasons. Although governance arrangements in the four parts of the UK have long been asymmetrical, and the West Lothian question predates the devolution settlement of the late 1990s, the latter made asymmetry much more transparent and has become a focus for wider public concern. Whereas English MPs were no longer able to vote on devolved policy matters (for instance Scottish and Welsh education policy), MPs from territories with devolved governments could continue to vote on comparable English policy questions. This asymmetry has become steadily more pronounced over subsequent years, as successive rounds of devolution have gradually expanded the powers of the devolved bodies, and there were some notable examples during Blair’s second term of votes on matters that primarily affected England only (for instance on foundation hospitals and tuition fees) being passed without the support of a majority of English MPs.
  2. Alongside these constitutional changes, a battery of polling data has detected a noticeable shift in national identification in England in the last decade. In particular, the Future of England Survey has found evidence of a gradual strengthening of English national identity in recent years, and a growing correlation between this form of identification and a sense of discontent about England’s position within the domestic union. This data, and the findings of various qualitative studies (discussed in Kenny 2014), raise important questions about whether the absence of some form of devolution for England has become a significant source of instability for the union. Recent surveys suggest that a growing number of the English are concerned about the way in which England is governed. On the question of whether Scottish MPs should no longer be able to vote on legislation that affects only England, data from the British Social Attitudes and Future of England surveys record a steady increase in the proportion who strongly agree, from 18% in 2000 to 55% in 2012. A similar trend is apparent on the related question of whether Scotland gets its fair share of government spending: in 2000 around a fifth of respondents in England felt that Scotland received more than what was fair, rising steadily to over 50% by 2012 (Wyn Jones et al. 2013).
  3. The Scottish referendum campaign brought this shifting mood into a sharper focus. This was partly because of the very high-profile nature of the debate around new powers for Scotland, which threatened to accentuate the perceived sense of unfairness to England. But the referendum also brought to the fore larger questions about the long-term stability and viability of the United Kingdom. In the year since the referendum, the government has proceeded with work on legislation that will bring new, though different, powers to Scotland, Wales and Northern Ireland. There have also been demands for a broader examination of the British constitution. The current EVEL proposals need to be considered in the context of growing unease about England’s constitutional position, in relation to other on-going constitutional changes (notably the passing of further powers to Scotland and Wales) and a continuing debate about the future of the union itself.

The Government’s current proposals

  1. In this context, the government’s EVEL proposals can be seen as an attempt to address three distinct, but related, problems. The first is the need to give the English a greater sense of “voice” in policymaking, specifically in relation to legislation that relates solely or primarily to England. This was the justification for reform offered by the McKay Commission, and was echoed in the prime minister’s commitment on the morning after the independence referendum to ensure that “the millions of voices of England must also be heard”. This focus follows the widespread acceptance of a more self-aware and salient sense of English national identity. The second is to address the specific sense of unfairness surrounding voting arrangements in the House of Commons, by providing a “veto” to prevent legislation from being imposed on England without the support of a majority of its MPs. By offering answers to these two major challenges, it is intended that a third can also be adequately addressed. This concerns the growing imperative to place the union on a more stable footing and, specifically, to remove a growing source of grievance among the English. This ambition is reflected in the Leader of the House of Commons’ recent statement that EVEL will “ensur[e] that our constitutional settlement is fair and fit for the future” (Commons Hansard, 02/07/15, c1648).
  2. The government’s proposals contain three main changes to the procedure for primary legislation applying exclusively to England: an English public bill committee stage, a Legislative Grant Committee, and double-majority voting on Lords amendments. These changes are being introduced with the intention of addressing the first problem identified above, by giving a greater measure of “voice” to English representatives. An England-only public bill committee will provide a new forum for English MPs to consider issues and questions arising from legislation that affects only the peoples of England. The introduction of new voting procedures that count English MPs separately – whether in the form of England-only consent motions or the double-counting of votes – also enables an English voice to be more clearly articulated and formally recorded (itself an important innovation within these proposals). But some of the changes also address the second challenge (that of “veto”), by ensuring that the majority decision of English MPs is, in some circumstances, binding. This is achieved by requiring that the decisions of the Legislative Grand Committee cannot be overridden by a UK-wide majority,[1] and by ensuring that votes subject to double-majority counting must receive the support of both groups of MPs in order to pass. The question of whether the government will achieve its third goal – securing the union – is much harder to assess, as it depends to a great extent on how EVEL is implemented over the coming years, whether the “voice” given to English MPs is deemed meaningful by English publics, and whether the “veto” accorded to their national representatives can be introduced without destabilising the delicate territorial balance at the heart of the constitution.
  3. It is also worth noting that there are several anomalies – which have been highlighted by campaigners, commentators and politicians alike – that the government has not sought to address in formulating these proposals. While the current proposals would prevent legislation from being imposed on England against the wishes of its MPs (and so are likely to prevent some obvious kinds of territorial injustice), they do not enable English MPs to initiate and pass legislation against the wishes of parliament as a whole. In making the decision not to pursue a demand which is advanced by some parts of its own party, the government is observing the principle that England, as the largest territory within the union, does need to be treated differently to other territories, and will not be granted either its own legislative assembly or an English layer of government. This reflects its continuing adherence to the idea of the UK as a union state, but is increasingly being challenged by arguments from different parts of the political spectrum for the UK to be placed on a federal footing.
  4. One consequence of this stance is that these proposals do not eliminate some of the perceived inequities that underpin the demand for EVEL. They do not provide for a separate English executive, instead maintaining the current position in which England is governed by a UK government dependent on the support of a majority of UK-wide MPs. This means that the policy preferences of a majority of English MPs may well be impossible to translate into UK-wide policy on certain questions. But the government believes, with some justification, that meeting the demand to rectify this situation carries a significant risk of undermining the union given England’s hugely dominant position within it.

Key factors to consider

  1. The government’s key objectives have therefore been to provide for an English voice and veto, and to do so in a way that strengthens rather than weakens the union. The constitutional and political effects of EVEL, and their potential ramifications for the territorial politics of the UK, will to a large extent depend upon the manner in which they are presented and introduced, and on how quickly they become accepted as a legitimate part of the procedures of the House. A large number of different objections to EVEL have already been registered, and some of these reprise very familiar complaints.
  2. We believe that the most important issues that the government and your committee should consider lie in three broad areas: how EVEL operates in practice; its effects upon the behaviour of MPs and the political parties; and how it is perceived outside parliament.
  3. Many of the current objections to EVEL focus on how it will operate in practice. A particularly important consideration here concerns “spillover”; namely that decisions taken in one part of the UK may have consequential implications in other parts. Consequently, identifying issues that are genuinely England (or England and Wales) only may be virtually impossible. Given England’s highly dominant position within the UK, it seems especially likely that decisions in England will have effects in other parts of the UK much more frequently than vice versa. The most high-profile example of spillover concerns funding to the devolved administrations through the Barnett formula, although spillover also takes other forms.
  4. In this context, it is important to recognise that, under the government’s proposals for a double veto, UK-wide MPs will continue to have the power to block all legislation that comes before the House. Nevertheless the question of whether (and the extent to which) spillover should be taken into account when certifying legislation needs to be carefully investigated. Here the government’s own position remains less than clear. The Conservative party’s English manifesto stated that “the Speaker will have regard to any cross-border effects” (p8), but the Standing Orders state that the Speaker should discount “minor or consequential effects outside the area in question” (83J(2)). It is important that the Speaker’s remit here is made more transparent. If it is decided not to include spillover within certification, serious consideration should be given to establishing a Devolution Committee to consider such matters, as recommended by the McKay Commission.
  5. There is another, less noticed form of spillover that arises from the government’s decision to apply EVEL to financial legislation. Under the proposals, English, Welsh and Northern Irish MPs may vote separately on tax decisions that have been devolved to Scotland. However, as former civil servant Jim Gallagher (2015) has noted, there is no mechanism in place to ensure that the spending consequences of these decisions are limited only to matters that affect England, Wales and Northern Ireland alone, rather than to UK-wide spending. This raises the possibility that tax decisions taken by a subset of MPs could spill over into UK-wide spending projects, with implications for all four parts of the UK. This has the potential to provoke political and constitutional complaints and to weaken the legitimacy of these proposals. This issue needs to be thoroughly investigated.
  6. The second area of concern to which the government should attend concerns the political effect of the veto within parliament. Although the government intends that the veto should stabilise the union, there is a danger that the proposals could instead serve to promote territorial rivalries or accentuate tensions. The most serious dangers are likely to arise where a UK government lacks an English majority – particularly if a single opposition party has a majority of English MPs instead – potentially providing the basis for rival claims of legitimacy in governing England. Another scenario is where non-English MPs feel that the veto has been used to overrule them on a matter that (indirectly) affects their constituents.
  7. Avoiding such tensions will require all parties to respond with a willingness to compromise, bargain and negotiate over policy – suggesting a rather different and less oppositional culture from that which often dominates in the Commons. And the nature and extent of this culture shift should not be underestimated. It will also be difficult to achieve unless the broad principles behind EVEL are accepted as legitimate by the main political parties, and so the reforms need to be seen as something other than a package reflecting the interest of the governing party. It is, therefore, concerning that the government has not so far succeeded in building any kind consensus across the Commons for its proposals. It must now demonstrate its willingness to develop proposals that might credibly be taken forward on a cross-party basis (or partially cross-party basis), and be willing to compromise on some aspects of its original proposals where necessary. It must also ensure that the formal review process is comprehensive and transparent, and provides a serious opportunity to modify the current proposals. There is a danger that, although the current government may be able to introduce these changes with a vote in the current parliament, the failure to build cross-party consensus may store up much bigger and more destructive constitutional problems for the future.
  8. A key third area of concern, which has been given very little attention in debates on EVEL so far, is how EVEL is perceived by English audiences outside parliament. As suggested above, there is clear evidence that the English are becoming more dissatisfied with England’s constitutional position within the union. Some political parties have sought to capitalise on this sentiment for electoral reasons, and this will have been the primary frame through which many people will have engaged with debates over EVEL in recent months. But is is important that EVEL is now communicated and presented clearly as a pro-union, rather than a narrowly pro-English, policy.
  9. To England, the message should be that EVEL will put the UK on a fairer footing by giving greater prominence and voice to English representatives on issues that only affect England. But it is also necessary to communicate clearly why a fully symmetrical constitutional settlement would destabilise the UK. Otherwise, it seems likely that political episodes that highlight the continued asymmetry – such as the recent foxhunting debate – may fuel further dissatisfaction and leave the government open to being outflanked on this issue. Similarly, to those outside England, the message must be that EVEL is not intended to pander to English nationalism, but rather to ensure that the British constitution is put on a fairer footing all-round. The available evidence suggests that people from across the UK may be open to such an argument. Indeed, the Scottish Social Attitudes survey found in 2013 that 53% of Scots agreed that Scottish MPs should not vote on England-only laws, compared to 18% who disagreed. The government therefore must reflect very carefully on how to present this procedural change to the wider population, and not assume that this is an intra-parliamentary change that matters only to those who work within the institution.


Wider constitutional implications

  1. The longer-term constitutional implications of EVEL are difficult to predict. Unless this reform is handled carefully, it could lead in directions that ultimately undermine the government’s goal of securing the union. One possible scenario is that it becomes a staging-post on a journey towards a more substantive form of EVEL. In this event, it might be necessary to develop new institutional structures to ensure that England’s dominant position within the UK is offset by mechanisms designed to protect the position of the other territories. Another possible scenario is that these changes might spur a wider conversation about devolution within England, not least because the government is committed to passing significant powers to some cities and combined authorities within it. Finally, some of the operational issues identified above, particularly concerning spillover, might be best resolved through creating additional mechanisms, such as an independent commission tasked with determining the principles for allocating funding across the different parts of the UK. For these reasons, EVEL should not be hived off from other constitutional and governance problems, but must be considered as part of a wider discussion about the next steps for UK constitutional reform.

 

September 2015

 

Sources referenced

Gallagher, Jim. 2015. The Problem of EVEL: English Votes and the British Constitution. Oxford: Gwilym Gibbon Centre for Public Policy. <http://www.nuffield.ox.ac.uk/News/Documents/The Problem of EVEL-Final-GGCPPwp140715.pdf>

Kenny, Michael. 2014. The Politics of English Nationhood. Oxford: Oxford University Press.

Wyn Jones, Richard et al. 2013. England and Its Two Unions: The Anatomy of a Nation and Its Discontents. London: IPPR.

 

 

             

 

[1] At least within the rules of the Standing Orders. However, it is presumably possible for the Standing Orders to themselves be suspended for specific votes.