Today’s announcement by William Hague of a range of options for English Votes for English Laws should be seen as the start of a wider process, says Charlie Jeffery. That process is likely to include, at least, a clearer separation of England and Wales as jurisdictions and reform of how Westminster and Whitehall – not to mention the electorate – think about the territories of the UK.
On the early morning of 19th September David Cameron spoke to acknowledge his victory in the Scottish referendum – and to open up a debate about England. He had, he said, ‘long thought’ the English question needed to be addressed by introducing English Votes on English Laws (EVEL) in the House of Commons.
It would be fair to say Cameron himself had shown little sign of such long-term thinking, though his party had flirted with some version of EVEL since the 2001 general election, with various grandees – Ken Clarke, Sir Malcolm Rifkind, Andrew Tyrie – suggesting how this might be done. And then the Conservative-Lib Dem coalition committed to a formal exploration of the issue, setting up the McKay Commission (of which I was a member) in 2012 to explore the ‘consequences of devolution for the House of Commons’. The McKay report followed in 2013, but was then parked on the highest shelf in the long grass – until September 2014.
Since then it appears to have been widely consulted, and indeed reflected in Labour’s tentative EVEL-lite proposals of last week and in the alternative options for EVEL published in William Hague’s Command Paper today.
Hague’s paper is intended to lay the terrain for a debate rather than favouring a particular course of action. It presents different grades of EVEL, ranging at one end of the scale to options (like Labour’s) which would provide a forum for MPs from England to present a collective English view in the legislative process, but with final decisions reserved to the membership of the Commons as a whole. At the other end are options that would give English MPs a veto over some legislation or would more generally exclude MPs from outside England from voting on English matters. The latter might be called the form of deep EVEL favoured by the likes of John Redwood.
So now we have a debate. But is it the right one? Some have made the point – correctly – that there are very few Bills that have an England-only reach. That is a correct point, but not the right point. The right point is that what Hague, his fellow party grandees, Labour last week and the McKay Commission have all set out are possible ‘downstream’ reforms to the very final stage of the legislative process. They each propose adaptations of parliamentary procedure to deal with England-only bills.
What they don’t do is propose what would need to happen ‘upstream’ to ensure that bills came forward that would fit a sensible ‘England-only’ definition. Some variant of EVEL would only really work if the following upstream changes were also to happen:
- Establishing Wales as a jurisdiction distinct from England. Wales and England are a common legal space, though decreasingly a common political space. That common jurisdiction produces endless formulations in McKay and elsewhere about ‘England’, then, in brackets, ‘(or England and Wales)’. This is neither accessible language to communicate constitutional reform nor really tenable given the realities of Welsh devolution. So England and Wales need to be established as discrete legal entities, as Scotland and Northern Ireland already are.
- Getting Whitehall departments to be systematic and transparent about policy responsibilities they have which are England-only and those which have a wider reach in the UK, and on that basis to develop a clearer language for speaking about England’s policy needs and any legislation that follows from those needs.
- Drafting such legislation in clearly defined territorial terms (and stopping the practice of piggy-backing clauses into bills which cover different parts of the UK, don’t really belong there, but are introduced as a convenience to save parliamentary time).
- Parties contesting elections in England producing a manifesto for policies in England (or a dedicated section of their UK-wide manifesto) so that voters might identify, compare and vote on different party priorities for England (parties and voters do this for Scotland and Wales already so it really shouldn’t be hard to do the same for England).
And then there is probably also a case for replacing the Barnett formula, which determines annual changes to devolved budgets on the basis of spending decisions in England approved by the UK Parliament. In that sense English laws affect devolved budgets, and this is often used as an argument against EVEL: Scottish MPs need to vote on English laws so as to protect the budget of the Scottish Parliament. While this argument has merit in theory, there is very little sign in practice that the vast majority of MPs outside England take any account whatsoever of devolved budgets when deciding how to vote in the Commons. But it would certainly be neater if Barnett were replaced by a more rational system of UK-wide resource allocation.
So, if all that happened there would be a public policy debate about England’s interests and needs generated by manifesto discussion and feeding into government legislative programmes, transformed into legislation by Whitehall departments acting transparently as English departments and producing clearly drafted English bills, without the complications of the shared Anglo-Welsh jurisdiction and the budgetary spillover effects of Barnett. In those circumstances EVEL might work well. But it is perhaps a bigger job than Hague and others have envisioned.