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EVEL Proposals May Be the Beginning of the Road

Published: 7 July 2015
Author: Michael Kenny
The government’s detailed proposals for introducing English Votes for English Laws (EVEL) into the House of Commons are a significant moment in our constitutional history, say Michael Kenny and Daniel Gover, but there is good reason to think that EVEL is unlikely to represent a sufficient answer to the English question.
The Government's plans to introduce English Votes for English Laws (EVEL) reflect the acceptance of the need to institutionalise a collective English interest in the legislature, and the conviction that there is a growing and legitimate sense of grievance concerning England’s position within the UK and growing devolution to Wales, Northern Ireland and, particularly, Scotland. There is significant support for the principle of EVEL: the 2014 Future of England Survey found that 62% of people in England agreed that Scottish MPs should be prevented from voting on England-only legislation. The independent McKay Commission recommended that there was now a clear imperative for England’s voices to be heard. 
For the new proposed procedure to be set in motion, legislation must relate exclusively to England (or England and Wales) and comparable areas of policy must be devolved elsewhere. This is somewhat narrower than the McKay Commission’s ‘separate and distinct’ test, and consequently might be expected to apply to fewer bills and clauses. The change is designed to prevent the kind of egregious case of the passage of controversial legislation applying only to England against the wishes of a majority of England’s MPs (as for instance when the second Blair government introduced foundation hospitals and top-up fees).
The decision to hold a major review after a year leaves the door open for advocates of more radical thinking, and reflects the political imperative to keep alive the hopes of those Conservative backbenchers who wish to see a more wholehearted, and perhaps simplified, model of EVEL. 
Opposition parties, notably the SNP, have made an issue of process and scrutiny – as well as the risk of politicisation of the Speaker and whether EVEL creates ‘two tiers’ of MPs. The government can credibly argue that a lengthy review process has presaged this proposal – both in the form of the McKay Commission and a cabinet committee led by William Hague in the last parliament. But MPs will vote on the proposals on 15 July, less than two weeks after they were published, and this timetable leaves the government open to the charge that it is seeking to move with undue haste, and without allowing sufficient time for proper scrutiny. 
The most substantive point of controversy, however, will concern the criteria for identifying English-only legislation. Judging the territorial effect of legislation is far from straightforward. As the McKay Commission observed, there are various forms of cross-border ‘spillover’ whereby decisions in one part of the UK have effects upon others, for instance on the question of where citizens in border areas choose to go for health care.  
But the most contentious form of spillover concerns spending. Under the Barnett formula, the block grant to Scotland, Wales and Northern Ireland is adjusted with reference to spending in England. It is therefore argued by some – for example Nicola Sturgeon – that voting on England-only spending provisions necessarily has substantive consequences for other parts of the UK. But various experts – for instance former civil servant Jim Gallagher – disagree, arguing persuasively that questions about policy can and should be treated differently from questions of supply, with only the latter voted on by MPs from across the UK.
While incremental and modest in some respects, the government’s proposals will be painted as radical, even reckless, by their opponents and they do raise wider points of constitutional principle. MPs need to be provided with the opportunity to reflect upon and debate these, as well as the chance to consider the more detailed, operational ramifications of EVEL. 
What may ultimately turn out to be most significant about these proposals, in constitutional terms, is that they may create the impetus for a broader reformist agenda around the question of a more clearly delineated ‘English' dimension within the UK’s system – as this applies to both Westminster and Whitehall. As this debate progresses EVEL may turn out to the start, not the end, of a much longer process of finding viable answers to the English Question.