Parliament at night

EVEL – Five Early Questions

Today the House of Commons will debate the government’s proposed revisions to Standing Orders to introduce its plan for English votes for English laws.

The draft Standing Orders and explanatory documents can be found here.

There won’t be a vote today – that will come at a date to be confirmed in the Autumn, following a further round of debate. In the interim hopefully the Procedure Committee will have time to conduct an inquiry.

We’ll be issuing a detailed briefing in advance of the final debate and vote – once we’re sure the government has finalised its proposals – they’ve already revised them once since publication at the beginning of this month and its possible they will revise them again before the vote. That will cover some of the wider constitutional issues.

In the meantime, below are five issues with the draft Standing Orders themselves where some clarification would be helpful.

  1. The government proposes that the Speaker will certify legislation in relation to a legislative competence test – whether or not a matter has been devolved. But this is not as clear cut as it might be, particularly in relation to Wales where a number of cases have been taken to the Supreme Court because the UK Government and the Welsh Government have taken a different view about what powers have been devolved. Some powers are also held concurrently by Ministers in Whitehall on the one hand and Edinburgh and Cardiff on the other. If the boundary between areas of responsibility is a matter of dispute between the governments, how is the Speaker to police this? What are the legal and policy implications?
  1. The proposed SO 83J(6) states: ‘In deciding whether a bill relates exclusively to England or to England and Wales, the Speaker shall treat any clause or schedule whose only effects are minor or consequential effects outside the area in question as relating exclusively to that area.’ The juxtaposition of the words ‘minor or inconsequential’ seems discordant. Elsewhere in Standing Orders, (for example in SO 97(1) in relation to the Scottish Grand Committee), reference is made to ‘minor and consequential’ or ‘minor consequential’ effects. The government should clarify whether the ‘or’ is indeed intended here or whether it is a drafting error; and if the former it should explain why it is ‘minor or consequential’ and not ‘minor and consequential’.
  1. The Government compares the process for certification of England or England and Wales only bills to that for certification of money bills. However, in the case of money bills the Speaker can consult two members of the Panel of Chairs appointed for the purpose at the start of each session by the Committee of Selection. The approach to certification is also supported in law under Section 3 of the 1911 Parliament Act which makes clear that the Speaker’s decision is conclusive and cannot be challenged in court. Neither of these elements of the certification process is provided for in the EVEL proposals. Given the comparison the government itself has made, it would be useful if it explained why this is the case. Would it, for example, be useful for the Speaker to have the option of formally involving the Deputy Speakers in reaching a decision and if so does this need to be provided for in the Standing Orders?
  1. In amending the proposed Standing Orders to include a new SO 83J(11) as published on 14 July, the government appears to be reinforcing the message implicit in the original draft that because Estimates and Supply votes will not be subject to the EVEL proposals then there need be no concern about the potential spillover financial impact of English only legislation on the block grants to the devolved governments. However, MPs can only vote to reduce estimates not to increase them and MPs don’t vote on the block grants separately. So what difference does this make?
  1. An implication of EVEL certification is that programming motion provisions may have to be arranged differently. Programming motions set out both the order in which the legislation is to be considered and the internal deadlines for consideration of the different sections of a bill. They set a fixed end time for proceedings and within this the chair must therefore group amendments and clauses for debate and division where required. How these work in practice can have a significant effect on whether particular amendments are reached for debate and division. What consideration has the government given to the implications for programming of bills with mixed English only, England and Wales or UK provisions? It is not difficult to see how programming motions could once again become an area for guerrilla warfare between the parties in the future with significant amounts of time in the Chamber wasted debating the timetabling issues rather than the detailed principles and content of a bill.

This is just an interim look at the proposals. There are, for example, lots of other questions about how Lords amendments will be considered, how time in the Chamber will be managed as it shifts from sitting as the UK Parliament to a Legislative Grand Committee at the late stages of bill consideration. We’re exploring these in more detail and will publish a paper in advance of the debate in the Autumn.

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