English votes for English laws: a rich diet of political fudge

Robert Henderson

The Leader of the House of Commons, William Hague, launched  English votes for English laws into  the Commons on 16 December with the publication of  the command paper  The Implications of Devolution for England

The paper’s proposals  include three from the Tories and  one from the LibDems. Labour is absent from the  paper having refused to join in discussions with the Tories and LibDems .

Despite not taking part in the discussions Labour has stated its position on England within a devolved UK : they offer only devolution to local and possibly regional government  (either way the Balkanisation of England)  and their proposal  for a Constitutional Convention to produce an agreement is  a transparent device to kick the question of England having a voice into the long grass for as long as possible. If they form a government whether on their own or in a coalition they will probably drop the Constitutional Convention idea.

The Tory and LibDem proposals are messy with two of the three  Tory options  (P22 of  The Implications of Devolution for England ) fudging  matters by not restricting the voting on English-only legislation to English-seat MPs . The  LibDem proposal  is a blatant attempt to smuggle in proportional representation by the back door by suggesting that an English Grand Committee be set up with its members selected to represent the proportion of votes each party . They also have a superb recipe for Balkanising England by allowing various  levels of  representation with differing  powers  if a city,  council or region seek them.

The Tories  provide one proposal  (option 1) which  excludes all but English seat MPs  from  voting on  laws which affect only England, but  leaves  Welsh MPs to vote on some matters which are deemed to  affect both   England and Wales.  This  means that England would still not have parity with Scotland and Northern Ireland because there would be issues which the Scots and the Northern Irish  deal with  in their own assemblies  which English MPs will not solely decide.  In addition, the creation of what in effect  would be  a three classes  of legislation at the Westminster level – that affecting England only, that effecting England and Wales combined and UK legislation –  would further complicate the position of  the UK government , because there could conceivably be different majorities for all three classes of legislation.  For example, there might be a Labour/SNP  majority for UK legislation, a Tory Majority of English legislation and a Labour majority for English and Welsh legislation.

The second Tory option restricts the Committee  and Report stages  to either English seat MPs only or English and Welsh seat MPs, but allows the whole House of Commons to vote on the Third Reading . This would effectively allow a government with a UK  majority  but a minority of seats in England to vote down a Bill which had been approved by English or English and Welsh  seat MPs.

The third Tory option  restricts the Committee stage to English seat MPs or English and Welsh seat  MPs  but the Report stage is taken  by the whole House of Commons.  Amendments can be made at the Report stage so a government with a UK majority but a minority of seats in England would be able to radically alter a Bill.  However, that  would  not the end of the matter.  After the Report Stage an English Grand Committee would  vote on a Legislative Consent Motion which would either accept the Bill or parts of the Bill or reject it entirely.  If the Legislative Consent Motion is passed the Bill moves to a Third Reading  where it cannot be amended but it can be voted down.  Hence, kit would be possible for a majority of the House to outvote a majority of English seat MPs.

The fact that two out of the three Tory proposals allow much less than English votes for English laws  suggests that the Tory leadership wants to go  for less than full blown English control of English laws. It is a  well practised trick of those who set the terms of any debate with a practical outcome guaranteed to offer options which offer an extreme option with one or more less extreme options. (By extreme I do not mean something impractical or unreasonable,  but simply something which moves further from the status quo than other options)  For example, had the recent  Scottish referendum offered DevoMax as well as independence on the ballot,  it is a fair bet that there would have been a strong vote for DevoMax.

That leaves the LibDem proposal. This is designed  to reduce the power of Parliament by engaging in a piecemeal Balkanisation:   “By empowering England in this way we would significantly reduce the policy areas in which the so called “West Lothian Question” applies – as powers currently resting with Westminster for England but not Scotland would be devolved away from Westminster for much or all of England too.” P28 of  The Implications of Devolution for England

The LibDem’s want “Devolution on Demand” . This would be arranged by passing an   “English Devolution Enabling Bill”.  The Bill would list powers  and  areas would  be able to demand “from Westminster and Whitehall the powers that they want from a menu of options.”  The areas would be “ cities, counties, regions and other appropriate geographic entities  [which would] develop their own elected bodies with their own suite of administrative, legislative and taxation powers which worked for the people and communities in their area.” This would create a chaotic postcode lottery throughout England of both services and administrative shape.

But the LibDems recognise that not everything could be devolved in this fashion because there would still have to be some things requiring a decision to be taken by all English  seat MPs. The LibDems’ solution is  “for measures which unambiguously affect England only and which are not devolved below the Westminster level, there should be a new parliamentary stage before third reading or equivalent, composed of MPs proportionately representing the votes cast in England to allow them to scrutinise proposals and to employ a veto if they so wish.”

Note the “composed of MPs proportionately representing the votes cast in England”. That would mean far more LibDems  in this “new parliamentary stage”   (this would be a committee,  probably an English Grand Committee)  than were warranted by the number of their English seat MPs.  Indeed, because of the way LibDem voters are distributed across the country (more evenly than any other Westminster represented party) it is even conceivable they might not be able to muster enough MPs to reach the number which their  votes in England warranted,  because under the first past the post system the more evenly distributed the voters the fewer seats won. However, that would require LibDem seats in the Commons to fall hugely (suppose they won, say,  15%  of the English  vote but only held  six English seats).

But what the LibDems really want is to kick into the longest grass  possible the question of  how to fit England into a devolved UK . Their favoured method of doing this is, like Labour,  to call for a Constitutional Convention  which at best would be unlikely to produce an agreed  settlement by the end of the next Parliament and at worst might never reach a conclusion.    To make certain the matter would drag on interminably and probably end in stalemate with no agreement, the LibDems want  a Constitutional Convention “composed of representatives of the political parties, academia, civic society and members of the public. The Convention should be led by an independent Chair agreed by the leaders of the three main political parties. The remit of the Convention should be decided by parliament through legislation, if possible on a cross party basis. The Liberal Democrats believe this should include the consideration of the appropriate level for political decision-taking in the UK, the powers of the devolved administrations, the interactions between the different institutions of the UK and the voting rights of MPs. The working practices and way in which it chose to approach the remit should be decided by the Convention itself.”  The breadth of the remit would allow infinite opportunity to prevaricate.

Both the Tory and LibDem proposals rely on  English or English and Welsh seat MPs to form a committee.  How they would be selected would be of great importance. If they are simply stuffed with the placemen of the  leaders of the  various Westminster parties with English seats,  they could and almost certainly would be seriously unrepresentative of  backbench feelings  with the consequence that they would  end up pushing through the ideas of what we know are increasingly out of touch political elites.

What of the House of  Lords? The Implications of Devolution for England  paper leaves this matter untouched.  That is ridiculous. The Lords may have lost much of their power ,  but they can delay matters by rejecting Bills or amending them heavily so that they have to go back to the Commons to be either represented in their original form or with some but not all of the Lords amendments accepted.  The Commons could also change the original Bill.  (Under the 1949 Parliament Act the Lords can block Commons Legislation for two sessions spread over one year ).

The  composition of the Lords,  which pays no attention to geographical  representation, has no fixed number of members  and increasingly consists  of political appointees,   is patently unfitted to act as a revising chamber for  English only laws.  Moreover, English votes for English laws under the Tory and LibDem proposals would leave England as an anomaly  in that they would be the only one of the four home nations to have legislation specific to it alone subject to a revising chamber.  To give England parity with Scotland, Wales and Northern Ireland  the Lords (however reformed unreformed)  would have to be cease to consider English only laws.

Finally,  there is the  vexed question of who initiates legislation. This is also ignored by the Tory and LibDem proposals.  Bearing in mind the strong possibility that a UK government would  be formed every now and then from a party or parties which could not command a majority of English seats, who exactly would initiate English only legislation in such a situation?  It could scarcely be a UK government which could not command an English seat majority. Not only would this seem unjust to the English, but  an English seat majority  in the Commons would under most of the proposed schemes be able to block the legislation.   Permanent deadlock could  be the result  over a  great deal of the legislative programme of   a UK government without a majority of English seats.

But if it was not the UK government initiating English only legislation, who would?  The party with a majority of English seats? A coalition of parties drawn from English seats?  Whoever it was making it would in effect be an English government.  But to  get to such a de facto English government there would have to be radical changes to Commons procedures because it is the UK government which controls the business of the Commons.  But it is doubtful if any UK government would willingly relinquish such control. This practical and political difficulty would more than any other thing point to the need not for English votes on English laws but an English Parliament. (This could be created at little extra expense simply by letting the House of Commons sit as an English Parliament to deal with English business. The rest of the time the House would sit with non-English seat MPs as well as the UK Parliament).

Where does all this leave us? Even in its  purist form with only English seat MPs voting on English laws this would not be  a permanent solution.   Once established it would  quickly become clear that there would be perpetual dissent over what are English-only laws, squabbles over the continuing existence of the Barnett Formula and the practical difficulty of having a House of Commons where the majorities for UK business and English business might be different, for example, there could be  a  UK wide  majority for Labour  or a Labour led coalition which was reliant on  MPs from seats outside of England for their majority and a Tory majority in England.

Unsatisfactory as it would be  English votes for English laws would be a staging post on the way to the only clean solution to the English Question, an  English Parliament.   An immediate move to an English Parliament would be ideal but support for it at the moment is most unlikely. A decent wedge of Tory MPs would probably vote for it but the other Westminster Parties would be more or less universally against it. But the sheer impracticality of the proposal would rapidly become apparent and support for an English Parliament would increase amongst MPs. The English public would also be provoked into more and more dissatisfaction if English interests were ignored because English seat MPs could not control English legislation effectively.  In addition, the fact that there was a body such as an English Grand committee and  a constitutional principle of English seat MPs having as their first priority English matters  would cause a change in the cast of mind of MPs and incite the passions of the English public to demand a Parliament.

Whether we will get  any the options put forward by the Tories and LibDems  will depend on whether the Tories form a government after the 2015 General Election.  A  Labour government or  a coalition formed by Labour/LibDem/SNP  would probably do nothing while the likely outcome of  another Tory/LibDem coalition would be a Constitutional Convention dragging interminably on and coming to no conclusion before the General Election after the 2015 one.