A briefing paper on the legal issues surrounding a Scottish independence referendum
Documents to download
English votes for English laws (1 MB , PDF)
On 22 October 2015, the House of Commons agreed to changes to its Standing Orders to allow members from England or England and Wales to give their consent to legislation that affected only England, or England and Wales, and that was within devolved legislative competence. The new procedures apply to Government bills and to statutory instruments.
The new Standing Orders require the Speaker to certify bills in their entirety, or provisions within bills, and statutory instruments that relate exclusively to England or to England and Wales and are within devolved legislative competence. Different arrangements then apply to legislation that was certified. For bills there would be additional stages in the legislative process so that the consent of Members representing countries affected could be obtained. If a bill applied exclusively to England, the committee considering it at committee stage would only include Members representing seats in England. For motions relating to Lords amendments, a double majority would be required, of all Members and of those Members representing countries affected. Votes on delegated legislation and other instruments would also be subject to double majorities, when the instruments related entirely to England or England and Wales matters.
The Conservative Party’s UK manifesto for the 2015 General Election included a commitment to “introduce English votes for English laws, answering the longstanding West Lothian Question in our democracy”. The way in which EVEL would be implemented was detailed in the Party’s English manifesto.
The Government’s initial proposals for Standing Orders were published in July 2015. However, there was criticism of the proposals and the speed with which the Government intended to introduce them.
A debate, on 15 July 2015, scheduled to be on a motion to implement the changes became a general debate.
Reviewing the proposals for EVEL
The delay allowed three select committees (Procedure Committee, Scottish Affairs Committee and Public Administration and Constitutional Affairs Committee) time to take evidence on the issue, with the Procedure Committee producing a report and recommending changes.
The Procedure Committee announced that it would examine the likely practical operation of the Government’s proposals. It took evidence on 8 and 9 September 2015, and the Chair wrote to the Leader of the House on 10 September. He suggested that the new procedures be piloted by express application rather than be introduced in full and then subject to review. The Committee also suggested that bills and statutory instruments be subject to the EVEL procedures only when the House so decided; suggested that consent be given to amendments, new clauses and new schedules at Report stage (through double majorities, rather than in a legislative grand committee (or committees) considering consent motions); and that Standing Orders should specify that all Members could participate in the deliberations but not decisions of Legislative Grand Committees.
The Committee told the Leader of the House that it expected to publish a fuller report in the week of 12 October 2015. In the event, the report was agreed on 14 October 2015 and published on 19 October. The Government tabled motions to implement the Standing Order changes on 19 October. On 20 October, Chris Grayling made a written statement in which he set out the Government’s response to the Procedure Committee’s report. He noted that the Government had made amendments to the proposed Standing Order changes published in July, in line with some of the recommendations from the Committee. He said that the Government did not wish to pilot the changes in the way the Committee recommended nor would the Government agree to the Committee’s recommendation that the House should decide whether or not bills and instruments should be subject to the EVEL procedure.
The Government did not accept the Committee’s recommendation that double majority voting be used at Report stage – it noted that certified amendments made before Report stage would still need consent.
Reviewing the operation of the Standing Orders
Unlike the plans in the English manifesto, the changes were implemented in full at the outset, not piloted. However, when he brought forward proposals for EVEL, Chris Grayling, then Leader of the House of Commons, said that he would invite the Procedure Committee to undertake a technical review of the operation of the new rules and that the Government would review the process once bills subjected to the process had received Royal Assent.
On 26 October 2016, the Leader of the House of Commons, David Lidington, announced the launch of the Government’s technical review. The review was available online only and closed on 2 December 2016. It sought views on:
- The impact of the Standing Orders on the legislative process
- The operation of the certification test
- Any suggestions for how the process could be further improved, or how understanding of the process could be further supported.
The Procedure Committee took further evidence once the Standing Order changes had been implemented. In December 2016, the Committee published its technical review of the Standing Orders on 19 December 2016. It concluded that its evaluation was provisional and that it would undertake further evaluation later in the Parliament. It found that the role of the Speaker had not been politicised. However, it expressed concerns about legislative grand committees: they had not provided a voice for those that were affected by certified legislation and there was a need to ensure that time was always allocated for them.
The Government published its Technical Review of the Standing Orders Related to English Votes for English Laws and the Procedures they Introduced, on 30 March 2017. The Government proposed no substantive changes to the EVEL Standing Orders, although it identified some minor and technical changes that could be made as part of wider changes to Standing Orders. It undertook to keep the provisions under review.
In November 2016, Daniel Gover and Michael Kenny published “an in-depth academic research project into EVEL”. They evaluated the procedures; considered arguments for and against such a reform; and made “a series of constructive proposals to improve the current system”.
Documents to download
English votes for English laws (1 MB , PDF)
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