English Votes for English Laws and the Future of the Union inquiry

It is highly regrettable that the 1997 Parliament voted to proceed with devolution to Scotland and Wales without proper consideration being given to the well- rehearsed West Lothian Question. It was a failure to do so then that has led to the difficulties that the present Government is now seeking to address through EVEL.

As devolution from the UK level to Scotland, Wales and Northern Ireland continues to develop, there is a growing body of evidence that suggests an increasing impatience with the constitutional anomalies to which this gives rise in England. This was amplified during the 2015 General Election campaign, in which the Conservatives focused voters’ minds on the possibility of SNP MPs holding the balance of power. Of all the potential remedies to the “English Question” that have arisen from devolution, the principle of English Votes for English Laws commands consistent and substantial popular support. Put simply, there appears to be a strong English demand for English Votes for English Laws. As we heard from Professor Wyn Jones, “on balance, [the data suggest] that there is support for the principle of English votes for English laws in Scotland and in Wales.” As yet however, we have very little evidence about whether this support extends to the present scheme and its effects. Nor, as is explored later in this Report, does this support extend to any political party in the House of Commons other than the Conservative Party.

The new Standing Orders do require further consideration and evaluation if they are to be anything more than a short-term experiment in the House’s internal procedures. That former Clerks of the House of Commons, individuals steeped in decades of learning about Parliamentary procedure, should have difficulty in discerning what these Standing Orders mean should raise serious further doubts about how sustainable they are. It is regrettable that the new Standing Orders have been drafted like legislation, by Government Parliamentary draftsmen. Never again should Standing Orders be drafted by the Government, rather than Clerks. In taking forward any amendments to the Standing Orders, a different approach to drafting will be required. The revisions made to the Standing Orders, to make them more coherent and transparent, should be made by the House, for the House.

The stridency of the opposition to the new Standing Orders from the Opposition Benches underlines their vulnerability. With only the Conservative Party in favour of the new arrangements, these Standing Orders face a high risk of being overridden as soon as there is a non-Conservative majority in the House of Commons. Mr Bryant noted in his evidence to the Committee, “it is certainly feasible, if not probable” that a future Labour administration would revoke the new Standing Orders. That the Standing Orders have attracted such hostility and can be removed on the basis 26 The Future of the Union, part one: English Votes for English laws of a simple majority must raise doubts as to whether they can ever be more than a temporary expedient, and currently they cannot be considered to be part of a stable constitutional settlement that will endure.

While we note that the Procedure Committee will continue to pay close attention to how the new Standing Orders impact upon the consideration of the financial consequences of the Barnett Formula, we draw attention to concerns that, as a result of the new Standing Orders, there may be “decisions made that will have implications for funding levels in Scotland, Wales and Northern Ireland.” It is difficult to reconcile the implementation of EVEL and the continued retention of the Barnett Formula and PACAC notes the Justice Committee’s conclusion, in its 2009 report Devolution: a Decade on, that a “change [in the funding system for Scotland, Wales and Northern Ireland] would be a necessary pre-requisite to any system of English votes for English laws.” The Barnett Formula has been subject to a considerable degree of scrutiny and we draw no conclusions, at this stage of our inquiry, on its continued retention. The implications of constitutional change for the Barnett Formula, and alternative schemes of territorial funding, will be examined in a later stage of our inquiry.

The Supreme Court referrals of Welsh legislation represent a worrying portent of the potential controversy that may arise from attempts to adjudicate both where the devolution boundaries lie and working out what minor or consequential effects on devolved competence might be.

The devolution test for certification is not a “very simple test” and, alongside the instruction that “minor or consequential effects” be disregarded, risks putting the Speaker in an unnecessarily controversial position. At the very least, it is highly likely that interested parties from inside and outside the House will want to make representations to the Speaker on how he adjudicates: a) where the devolution boundaries lie, and b) whether the effects of a Bill, or a clause or schedule of a Bill, are more than minor or consequential. PACAC therefore agrees with the Procedure Committee that there is a case for the Speaker to establish and publish a procedure for how he would handle such representations. While we note that the Speaker has issued a statement that outlined how the new Standing Orders would be implemented and recommended that representations should be made to the Clerk of Legislation, we nonetheless feel that a more thorough set of guidelines regarding representations would be beneficial for Members.

It is too soon to say with any certainty what the constitutional implications of the new Standing Orders will be. The ad-hoc approach to change in the constitution of the Union, that dates back to the devolution reforms initiated by the then Labour Government in 1997, and has treated each of Scotland, Wales and Northern Ireland in different ways at different times, has been characteristic of constitutional reform since the 1990s. This Report illustrates the need for Government to abandon this ad- hoc approach and to explore a comprehensive strategy for the future of relationships between the Westminster Parliament and the component parts of the United Kingdom.

The Government should be working towards a new and durable constitutional settlement for the United Kingdom that reflects the scale of constitutional change since the 1997 devolution referendums. This will be the subject of our continuing inquiry into the Future of the Union and of our subsequent Reports on the subject.

While there is evidence that the principle behind EVEL commands popular support, including, as we heard from Professor Wyn Jones, in Scotland and Wales, we have significant doubts that the current Standing Orders are the right answer or that they represent a sustainable solution. They may be unlikely to survive the election of a Government that cannot command a double majority of both English and UK MPs. The Government should use the remainder of the twelve month period in the run-up to their promised review of the Standing Orders to rethink the issue and to develop proposals that are more comprehensible, more likely to command the confidence of all political parties represented in the House of Commons, and therefore likely to be constitutionally durable.