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Barry Winetrobe: A Typical Westminster Up-EVEL

Now is a good time to reflect on some of the constitutional and parliamentary implications of EVEL (‘English Votes for English Laws’), or what used to be known, in its various manifestations over the last 40 years, as the ‘West Lothian Question’ and, more recently, the ‘English Question.’

Although I have long followed this issue – having written the first dedicated Commons briefing on the subject in 1995, and failed to persuade the McKay Commission in 2012 not to fall into the trap of trying to ‘answer’ the West Lothian Question – this blogpost is not about the procedural detail of EVEL (exhaustively discussed elsewhere) but rather about some significant issues thrown up by how the Government has gone about implementing its proposed ‘reform’ through changes in Commons Standing Orders.

The EVEL policy featured in the Conservative’s UK Manifesto (though the SO route was not expressly mentioned), and in the Queen’s Speech (where it was).  When challenged about using SOs rather than legislation to implement the policy, the Prime Minister said on 27 May: “What we will do, in terms of English votes and English laws, is exactly what is set out in our manifesto.  That will involve a vote here in the House of Commons, and I think that is right.”

Nevertheless, when the so-called Leader of the House, Chris Grayling, announced (in Business Questions, followed by an Oral Statement) on 2 July that the proposed SO changes (published that day) would be debated on 15 July, there was disquiet on all sides about the speed and method of implementation, as well as its potential political and constitutional impact.  These misgivings were aired more fully in an emergency debate on 7 July, when various senior MPs criticised the SO method, which had been justified by Ministers as being more judge-proof than legislation, and also the potential threat to the Union.

The speed of proposed implementation, and apparent absence of any meaningful prior consultation, has been a continuing focus of criticism.  The Conservatives’ English Manifesto had set out this process in more detail than had its national manifesto (p9):

“We can move quickly because changing how the House of Commons works does not require legislation. It will require changes to the Standing Orders… We will table our proposal within the first 100 days after the General Election [and] consult with the House of Commons Procedure Committee prior to seeking approval from the whole House to the proposed Standing Orders changes.”

Unfortunately, there was no operating Procedure Committee when the EVEL policy was announced and first debated - with only its Chair, Conservative Charles Walker, in place, and its full membership not appointed until 13 July, two days before the planned debate and vote on the SOs.  Ministers attempted to finesse this by writing to Mr Walker, inviting his Committee to review the new scheme’s early operation.  He said, during the 2 July statement, that his Committee would “do a quick and dirty technical review of the changes in the time that remains before recess, but it will take time for the procedural implications of the changes to Standing Orders to become apparent.”  He elaborated further during the 7 July emergency debate: “The problem we have, which afflicts the whole House, is that at this moment we have no Select Committees. Not a single Select Committee is meeting yet, because the relevant orders have not been laid.”

There was a swift ministerial partial retreat, announced during Business Questions on 9 July.  The proposed 15 July debate had morphed into a “general debate on English votes for English laws—the first of a two-day debate on that subject”.  Chris Grayling explained: “... on Monday I will, having listened to comments from hon. Members, publish a modified set of draft Standing Orders on English votes for English laws. We will debate those on Wednesday. Subsequent to that debate, I will table a final set of Standing Orders, which we will debate at an early opportunity once the House returns.”  The first day’s debate duly took place on 15 July, and we await the second day, if and when it comes, with bated breath.

Before the summer recess, both the Commons Procedure and the Public Administration and Constitutional Affairs Committees announced inquiries into EVEL; the Lords Constitution Committee announced a wider inquiry into the Union and devolution; and the Upper House (which has taken a very keen interest through a 2 July Statement and a 16 July Short Debate) passed a motion on 21 July for a Joint Committee of both Houses to examine the “constitutional implications” of the Government’s proposed EVEL SOs and report by 30 March 2016.

This sorry tale of parliamentary muddle is yet another example, not just of the usual Executive dominance over Parliament, but of this current Government’s hubris after being released from the shackles of coalition.  We had a foretaste of this on the final day of the last Parliament, when Ministers sprung a motion on the House to hold the election of the Speaker by secret ballot (perceived as a way of ousting the present incumbent) – a manoeuvre so blatant, it was soundly defeated.  A more recent example has been the curt dismissal on 4 June by the junior Leader of the House of any idea of a House Business Committee, as an undelivered coalition agreement pledge which can now be rejected.

Such hubris meant that Ministers thought they could adopt the usual Westminster reform path of steamrollering it through (especially if it can be trumpeted as a pledge fulfilled), then sort out all the inevitable problems later when the fuss has died down.  To do so over some technical aspect of House procedure or practice would be just another example of Executive arrogance towards the House.  For this new Conservative Government to try to handle such a sensitive and incendiary constitutional issue as EVEL in this way is just stupid politics.

It risks irreparable damage, not just to the sustainability of the Union (as several of its senior backbenchers have warned) but also to its own public reputation.  To ‘lose Scotland’ would be bad enough in the eyes of many of its supporters, but to be seen as using its temporary Commons majority to change the ‘rules of the game’ to ensure an inflated majority on future ‘English-only’ business will rightly be regarded as wholly unfair and improper.  If such a view took hold at the same time as it proceeds with a redistribution of parliamentary seats which would likely be to its electoral advantage, the Government may acquire a toxic reputation for gerrymandering that could haunt it at all future elections.

The other interesting aspect of the EVEL affair is the parliamentary role of the SNP.  The 56-strong parliamentary group has already shown – not least in the recent fox-hunting debacle – that it has a pivotal role in a House with such a fragile majority government.  For the Government to bring forward EVEL in the way they did either betrays a fatal miscalculation that the electoral results in Scotland provided an ideal opportunity to push it through (bolstered perhaps by a belief that the SNP were bound by their previous ‘self-denying ordinance’ on ‘English’ business) or that it was simply a good issue on which to embarrass all the Opposition parties early in the new Parliament.

We can now see that the SNP is more than just the third largest party in the House – either the largest minor party, or, as the Lib Dems used to say, the smallest major party – with all that this means for the parliamentary arithmetic.  It is also the ‘second largest Opposition party’, invested with all the procedural and other benefits that that position brings under Westminster practice, in terms of debating opportunities and so on (eg S.O. nos 14 and 47).  Along with the ‘Official Opposition’ and other non-government parties, it therefore has an important parliamentary function in holding the Government of the day to account for all its policies and actions, whatever part of the country it represents.

Notice also the appointment of an SNP member to various House committees.  Not just those dealing with ‘internal’ matters (from the Commission, through the Procedure Committee – with two members – to the Speaker’s Advisory Committee on Works of Art) or ‘reserved matters’ (eg Defence and Foreign Affairs Committees), but also those with remits largely or almost exclusively ‘English’ (eg the select committees on Communities & Local Govt, Home Affairs, Justice, Transport, Health etc).  I am not aware of any demands thus far for ‘English Members for English Committees’ (EMEC?), but perhaps they will surface once the committees finally get up to speed.

Party politicking aside, in the EVEL context, this institutionalised ‘Opposition’ role of the SNP may justify it in playing a full part in all parliamentary business, regardless of territorial extent, on behalf of the UK public as a whole.

It would be ironic if genuine changes in Westminster procedures and culture come through the catalyst of a territorial party dedicated to leaving the UK.

Barry Winetrobe has taught constitutional law and government for many years, and has written many articles and book chapters, and given evidence to parliamentary and other committees, on Scottish/UK constitutional developments.
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