Public Law

This is the third and last post in a series on the UK Government’s ‘English Votes for English Laws’ proposals. You can find the first part, on the why and how of EVEL, here and the second part, on when the proposals would apply, here. This post covers what EVEL would and would not do.

What would the proposals NOT do?

Night view of Houses of Parliament.This is perhaps the easiest thing to explain, particularly given that much of the reporting has suggested that EVEL would stop Scottish (and/or Welsh and/or Northern Irish) MPs voting on laws that only affect England. However, while the proposals would change the existing role of MPs in one respect (noted below), they would not change the ability of any MP to:

  • Vote on any Bill, statutory instrument, motion or other measure;
  • Speak on any matter before the full House; or
  • Propose amendments to any Bill.

The proposals will therefore not empower English MPs to force through English-only legislation against the wishes of a majority of the House. So, taking this week’s hot-button issue as our example, the proposals (at least as presently constituted) would not prevent the SNP from voting to block a change to the hunting laws in England and Wales.

What, then, is the point?

What would the proposals do?

The principal change would be to prevent legislation from being ‘imposed’ on England (or England and Wales / England, Wales and Northern Ireland, as the case may be) against the wishes of a majority of its MPs.

Essentially, the proposals introduce a requirement for such legislation to be approved by a ‘double majority’ (i.e. a majority of the affected MPs in addition to a majority of the full House) before it can pass. It gives English MPs (or the MPs of the affected nations) greater power to block certain legislation, but no greater power to enact legislation. It would therefore make it harder to pass legislation than to defeat it. That would be a fairly novel development for the British system, where legislation has almost always been passed or defeated on a straight ‘up or down’ vote of the Commons (whipped where necessary), but it may not appear so unusual to other countries that have systems designed to favour inaction over action (the American system of checks and balances, filibusters and vetoes being a prominent example).

The precise process to be followed would differ depending on the measure under discussion, but the main proposals in summary are (Warning: extreme technicality ahead – proceed with caution!):

Bills

  • There would be no change to the First and Second Reading stages of a Bill. All MPs could therefore debate and vote on the general principles of the Bill at Second Reading.
  • Where an entire Bill were to be certified as relating only to England, its Committee stage consideration would take place in either a ‘legislative grand committee’ comprising all the English MPs or a Public Bill Committee reflecting the party’s proportions in England. This would be the main change to the existing powers and privileges of MPs, who otherwise at Committee stage are eligible to serve on any Public Bill Committee, or to vote as part of a Committee of the whole House, without regard to constituency. Non-English MPs would therefore lose the opportunity to vote on the provisions of England-only Bills on a line-by-line basis, including the ability to vote on amendments to particular clauses.
  • There would be no change to Committee stage for other Bills (e.g. Bills certified as applying to England and Wales / England, Wales and Northern Ireland, or Bills only parts of which have been certified).*
  • Report stage would remain the same for all Bills. All MPs, including those not in the nation(s) in respect of which a Bill has been certified, would therefore retain the ability to debate and vote on Bills, and to propose, debate and vote on amendments, at this stage.
  • The Speaker would have to review and re-certify each Bill following Report stage, to take account of any amendments made at Committee or Report stage.
  • A new procedure would then be introduced following Report stage, in terms of which a Legislative Grand Committee comprising the MPs of the relevant nation(s) would be formed to debate and vote on a Government ‘Consent Motion’ asking them to agree or disagree to the Bill or the certified parts in question. The Motion could be amended by the Committee so as to accept some clauses but veto others (though the text of the clauses themselves cannot be changed).
  • Where some clauses in a Bill related only to England and others to England and Wales, there would be a single debate but then a separate Consent Motion and Grand Committee in respect of each category.
  • If the Grand Committee approved the Bill (or the certified parts in question, as the case may be), it would go forward to a final Third Reading debate and a vote of the entire House.
  • If any part of a Bill were vetoed (i.e. there was a clash between the views of the Grand Committee and the views of the House at Report stage), it would go to a new Reconsideration stage to allow attempts to be made to resolve the disagreement by amending the Bill, with all MPs able to vote on any proposed amendments. If amendments were made, the Grand Committee would be reformed and another Consent Motion tabled. If the motion were again not agreed, the disputed parts of the Bill would be removed and the rest of the Bill would proceed to Third Reading (following a ‘consequential consideration’ stage if technical amendments were required to deal with the removal of the relevant clauses). If the Consent Motion covered the whole Bill and were not agreed, the Bill would simply fall.

Lords amendments

  • Where a Bill started in the Commons and was amended in the Lords, or was amended in the Lords at the ‘ping-pong’ stage, the Speaker would certify any amendments using the same test as for newly-introduced Bills. This would ensure that the MPs for the affected nation(s) would not lose the opportunity to veto changes made in the Lords.
  • In such cases, any vote on whether to accept a Lords amendment must be passed by both a majority of the full House and a majority of the relevant MPs. MPs would only vote once, with the votes of the relevant MPs included in both counts.
  • If either the relevant MPs or the full House voted against the amendment, it would be sent back to the Lords to reconsider.

Secondary legislation

  • Statutory instruments would be certified, and so would be voted on (where required), as a whole. There is therefore no provision for certain clauses to be accepted and others vetoed.
  • As with Lords amendments, MPs would only vote once but the votes of the relevant MPs would be counted towards both of the required majorities.

Finance motions

  • The motions that are traditionally made after the Budget, relating to the Provisional Collection of Taxes Act 1986 and motions authorising a Finance Bill to include the matters set out in the Budget, would also be subject to the double-majority vote procedure where they concern matters only applying to England, England and Wales, or England, Wales and Northern Ireland.
  • As with the procedure for Finance Bills, this is intended to reflect the existing and anticipated devolution of tax matters to Scotland.

So that wraps up an exhaustive look at the proposals for EVEL. Hopefully at least some of you will now feel enlightened on the matter (I certainly feel lighter now the exercise is complete!) and if so please do share these posts with anyone else you think might benefit. If you have any queries please do get in touch, and if you’d like to share your own thoughts on the proposals feel free to comment below.

*UPDATE: This and the preceding bullet have been updated to note that Committee stage is only varied for Bills certified as England-only, per Standing Order 83K. They previously said that an equivalent procedure would also apply for Bills certified as relating to England and Wales, or England, Wales and Northern Ireland, but this is not the case.

Charles Livingstone

Partner at Brodies LLP
Charles works with a broad range of commercial, public sector, charitable and individual clients, advising them on public law issues including judicial review, human rights, information law and the powers and duties of local and other public authorities. He is named by Chambers & Partners in both Competition Law and Administrative & Public Law.
Charles Livingstone

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