English votes for English laws: not as easy as it sounds
The proposal that only English MPs should vote on English laws sounds simple. But there are some big hurdles. A Lexington analysis of legislation before Parliament shows that:
- Very few Bills – and no current government Bills – are ‘English only’
- At the very least, most legislation covers both England and Wales
- Many Bills contain clauses that cover different territories
- Bills covering one territorial area can nonetheless impact on another
- Separating out different classes of legislation may produce conflicting parliamentary majorities
During the Scottish referendum the Westminster party leaders vowed to devolve more powers to the Scottish Parliament and to retain the Barnett formula, which gives Scotland a healthy share of UK funding. Those pledges have aroused English disquiet and prompted the Conservative Party to resurrect its policy of ‘English votes for English laws’. As David Cameron explained: ‘Just as Scotland will vote separately in a Scottish Parliament on their issues of tax, spending and welfare, so too England as well as Wales and Northern Ireland should be able to vote on these issues…The question of English votes for English laws…deserves a decisive answer.’
William Hague has been tasked with drafting a detailed scheme for ‘English votes for English laws’ (EV4EL), with the intention that it be introduced in tandem with the devolution of new powers to Scotland. On the face of it, the proposal that only English MPs should be able to vote on English legislation sounds straightforward. But an analysis of draft Bills currently before Parliament raises some difficult questions:
How many English laws are there?
The first problem is that there are very few Bills which extend to ‘England only’. As figure 1 illustrates, of the 15 Government Bills before Parliament (16 if we include the hybrid HS2 Bill) none can be categorised as purely English. Almost all extend to the whole of the UK.
Even if we add in all the current Private Members’ Bills that have been published, only 10% (6 out of 60) of draft legislation has a territorial extent that only covers England.
Do some laws have more than one territorial extent?
A further issue comes from the fact that some Bills contain clauses with varying territorial reach. Indeed a third of the Government Bills currently on the table extend to different territorial areas. The Infrastructure Bill is a case in point (Fig. 3), with multiple sections applying to different combinations of England, Scotland, Wales and Northern Ireland. This raises the problem, which some Parliamentarians have previously highlighted, of a policy of EV4EL leading to legislative ‘hokey-cokey’ as MPs have to jump ‘in and out’ of the scrutiny process as different parts of a Bill are covered.
What about Wales?
Lexington’s analysis highlights a further problem: Wales. One of the reasons why so few pieces of legislation extend only to England is because, whereas Scotland has its own legal system, England and Wales share a common framework. So even if further devolution to Scotland would remove that territorial dimension from much Westminster legislation, most Bills would continue to cover both England and Wales – not to mention Northern Ireland.
William Hague appreciated this when he recently expanded on the ‘English votes’ formula and told the Conservative Conference that ‘…when Parliament makes decisions affecting only the people of England, or only the people of England and Wales, then those decisions should be made only by the MPs elected to represent them.’
So ‘English votes for English laws’ could more often be a policy of ‘English and Welsh votes for English and Welsh laws’. That would make for a lengthy acronym but more seriously would throw up difficult complications as Wales itself is given more devolved powers whilst retaining the fundamental common basis of law.
Does the ‘territorial extent’ of a Bill accurately define its full territorial impact?
One of the difficulties in isolating legislation on the basis of geography is that Bills can have consequences that apply beyond their immediate territorial coverage. This financial concern had previously been acknowledged by a 1973 Royal Commission on the constitution, which stated that: “Any issue in Westminster involving expenditure of public money is of concern to all parts of the United Kingdom since it may directly affect the level of taxation and indirectly influence the level of a region’s own expenditure.”
Probably the most famous example of this interrelationship was the Higher Education Bill, in 2004, which introduced tuition fees in England and Wales. This only became law with the backing of Scottish Labour MPs, whose own constituents were not going to be directly affected by the policy. The Conservative Party objected to that and instructed their one Scottish MP to abstain when the matter was before the House of Commons.
Yet the Scottish National Party, which ordinarily abstains in Commons votes on non-Scottish matters, took part in the debate and voted on the Bill. They argued that although it did not technically extend to Scotland, the changes in expenditure on higher education in England and Wales would impact on Scotland’s block grant – and so warranted their participation in its scrutinty.
Can the UK Parliament and Government live with conflicted majorities?
Even if the technical difficulties associated with EV4EL could be overcome, a final fundamental constitutional obstacle would remain: how could the current system of UK Parliament and Government be sustained if the House of Commons had one majority for reserved UK matters and another for devolved English matters, and potentially another for English and Welsh matters? It could give rise to multiple shifting majorities inside the same House of Commons, producing forked government and different classes of MP. For critics of EV4EL, that would undermine the basis of Cabinet Government and make the current UK political system untenable.
The question of how to respond to the challenges posed by devolution within the UK is not new. It first arose with the demand of Home Rule for Ireland and has confounded politicians ever since. No less a figure than Gladstone abandoned his own attempts to introduce a version of ‘in and out’ votes during the Irish Home rule debates in 1893.
He concluded that it ‘passed the wit of man to frame any distinct, thorough-going, universal severance between the one class of subjects and the other’. Lloyd George struggled to develop procedures to deal with the problem at the start of the twentieth century; and in more recent times Harold Wilson was forced to give up on attempts to exclude Ulster Unionist MPs from parliamentary votes on Steel nationalisation in the 1960s.
It remains to be seen whether the current generation of political leaders can produce a solution to this constitutional conundrum where their predecessors failed.