Constitutional update
Constitutional law update: English votes for English laws revisited
Neil Parpworth considers the latest developments concerning the issue of English votes for English laws.
About the author
Neil Parpworth is principal lecturer in law at Leicester De Montfort Law School.
In previous articles published in CILEx Journal, the present author looked at the issue of English votes for English laws (or EVEL as it is often referred to). Initially, the author sought to discuss how the coalition parties proposed to deal with the subject, and then latterly the then new Conservative government’s plans to introduce reform via the medium of amending the House of Commons’ Standing Orders (see (2015) CILExJ April p42 and July 2015 p36 respectively). Those amendments have now been effected, with the result that, on 12 January 2016, history was made when the first legislative grand committees for England and Wales and for England only were addressed by a government minister in respect of the Housing and Planning Bill. In the discussion which follows, attention will focus on how this change to the legislative process was greeted in the House of Commons, and on some of the practical issues that arose or may arise as a result of its use.
The Speaker of the House of Commons, John Bercow, plays a very important role in relation to the new procedural arrangements since whether or not they apply depends on him having certified that, in his opinion, a bill or parts thereof relate either solely to England, or to England and Wales only, and that they are within devolved legislative competence. In order to satisfy the latter criteria, therefore, the relevant provision or bill must be within the legislative competence of the Scottish Parliament or the Northern Ireland Assembly to make corresponding provision for their own territory. In helping to make his decision, the Speaker may consult two members of the panel of chairs (of public bill committees and other general committees) appointed for the purpose by the committee of selection (Standing Order 83J(8)( a)) .
The Speaker’s certification role under the EVEL arrangements is not unprecedented. Thus, for example, for the purposes of the Parliament Act (PA) 1911 and the PA 1949, the Speaker has the power to certify a bill as a Money Bill, or that the requirements of PA 1911 s2 have been met, so that a bill may be presented for royal assent even though the House of Lords has not agreed to it. In either case, the Speaker’s certificate ‘shall be conclusive for all purposes, and shall not be questioned in any court of law’ (PA 1911 s3). In other words, the certificate is beyond legal challenge. The House of Commons procedure committee has rightly described these certification powers as being ‘of constitutional significance’ , and therefore different to other decisions which the Speaker makes on a daily basis, such as the grouping of amendments to a bill or deciding which MPs speak in a debate.1
In the case of the new EVEL procedure, the committee regarded the Speaker’s certification powers as ‘a new departure in giving the Speaker the power routinely to exclude classes of members of the House of Commons from voting’ (para 34). Given the important consequences which flow from certification, the inevitable question must be whether it is possible to challenge the Speaker’s decision where it is believed that an error has been made. After all, whether provisions in a bill relate solely to England or to England and Wales only will by no means always be a straightforward matter to decide, with the result that differences of opinion may occur. Indeed, this is precisely what happened in relation to the Housing and Planning Bill.
Following the report stage of the bill, the sitting of the House of Commons was suspended for approximately five minutes while the Speaker made a decision on the issue of certification. On its resumption, the Speaker informed the house that he had made no changes to the provisional certificate which had been issued the previous evening. There followed a joint debate on the consent motions for England and Wales only and for England solely, as required by Standing Order 83M.2
It would be fair to say that there was a mixed reception for the new procedure from those who spoke in the debate. On behalf of the government, Brandon Lewis, the lead minister on the bill, was keen to proclaim that the new procedure was evidence of his party ‘delivering on a manifesto pledge’ (col 795). Moreover, he expressed himself to be ‘very proud to be the first minister to stand at the dispatch box to address the very first legislative grand committees for England and Wales and for England only’ (col 795). He then proceeded to acknowledge that while parliament had ‘heard fears that it would or could create a class system within the chamber’ , he was, nevertheless, ‘happy to report that that has not been my experience’ (col 795). However, given that Brandon Lewis is MP for Great Yarmouth, this was of course never likely to be his experience since, under the new arrangements, he is able to participate in each stage of every bill’s progress, regardless of whether it relates to England and Wales alone or England only matters. For MPs representing Scottish and Northern Irish constituencies, however, the position is rather different. The minister was soon made aware of the feeling on the other side of the argument, when Pete Wishart, the Scottish National Party (SNP) member for Perth and North Perthshire, rose to his feet and observed:
So, this is what an English parliament looks like. It looks pretty much like the unitary UK parliament to me. This is a remarkable day. It is worth noting how signiÿcant and historic this is. For the ÿrst time in the history of this House and this parliament, members of parliament will be banned from participating in divisions of this house, based on nationality and the geographic location of their constituencies (col 797).
Like the minister, therefore, Pete Wishart regarded it as an ‘historic’ occasion, but for a rather different reason. In his opinion, ‘nothing has infuriated the Scottish people more than the measures on English votes for English laws’ (col 797). Moreover, he regarded himself and his fellow SNP MPs as being ‘on the wrong side of a banishment and a bar that denies us our right as legitimately elected members of parliament from participating fully in the house today’ (col 798). Echoing the fears that had previously been expressed about addressing the EVEL issue in the way that has been chosen, he asserted that ‘[ w]hat has been done with this legislative grand committee is the creation of two types of member of parliament of this house’ (col 798).
Although it may be going a little too far to say that the Westminster parliament is now made up of two types of MP, ie, those with - and those without - full legislative powers, it cannot be denied that under the new arrangements, MPs for Scottish and Northern Irish constituencies are now unable to vote during a legislative grand committee stage relating to English and Welsh only or English only provisions. Indeed, the prohibition reaches further, as Eleanor Laing, the first deputy chairman of ways and means, reminded the House, in that it also applies to ‘expressing an opinion by calling out ‘aye’ or ‘no’ when the question is put or acting as a teller’ (col 805). Patently, however, as Pete Wishart’s own contributions demonstrate, MPs for Scottish and Northern Irish constituencies remain able to participate in the relevant debates.
It is unclear as to what would be the consequence if an ineligible MP were to mistakenly or deliberately attempt to vote in a division relating to a consent motion. Presumably, they would not get so far as to actually cast a vote since their presence in the ‘aye’ or the ‘no’ lobby would be likely to be spotted before they passed through. Pete Wishart thought that the matter might be dealt with by the sergeant at arms, who would ‘come chasing after me with his little sword, telling me that I cannot participate in this vote, and he would chase me out’ (coI 799).
An issue of greater practical importance relates to the Speaker’s decision regarding certification. Lady Hermon, MP for North Down, requested of the minister: ‘[ W]hat evidence he has that not a single person from Northern Ireland is a landlord in England and Wales and therefore that there is no particular Northern Ireland interest in the bill?’ (col 795).
Although it was not contended thus in reply, Lady Hermon’s interjection misses the point in that EVEL is concerned with the territorial reach of proposed laws, not the nationality of those to whom they apply in the relevant countries. Lady Hermon appeared to have a stronger point, however, when she later drew attention to the fact that although clause 62 of the bill had been certified as an England-only provision, it may also apply in Wales since ‘Wales’ was expressly referred to in the clause itself.3
As it turned out, however, and as the Department for Communities and Local Government’s own assessment made clear, the reference to ‘Wales’ in the clause had been included to make it clear that the provision did not apply in Wales. With respect to Lady Hermon, certifying the clause as an Englandonly provision was therefore an entirely appropriate and logical course of action for the Speaker to have taken. Despite this, however, her questioning of the Speaker’s decision does give an insight into how such challenges may be dealt with in practice. Thus, the first deputy chairman of ways and means responded by observing that ‘the procedure committee has assured the House that it will be looking at the procedure and how it works in practice’ (col 805). This suggests, therefore, that in the longer term a more formal process for questioning or challenging certifications may emerge. In the short term, however, it would seem that MPs will need to have their wits about them so that any issues relating to certification are raised while the Speaker’s decision remains provisional. Thus, the first deputy chairman offered the following advice:
What I can say to the [honourable] lady is that Mr Speaker did make available in the vote office , and in other ways, several days ago his provisional decision on this matter, and there have been several days during which the [honourable] lady, and indeed any other [honourable] member, had an opportunity to make representations to Mr Speaker exactly along the lines that she has just done. Perhaps if this happens in future and the [honourable] lady has similar concerns, she will have ample opportunity to take those concerns up with Mr Speaker before we get to this point in the proceedings (col 806).
Although it is possible to have some sympathy for the position adopted by the first deputy chairman, there is a case for arguing that the timing of a challenge to the Speaker’s certification ought not to be the determining factor. Provided that such a challenge is clearly not being used as a delaying tactic, surely what matters most is whether or not the challenge has merit. If it does, then it ought to be considered regardless of the point in time at which it is made. In the case of Lady Hermon’s query, it ought to have been made clear that it could be rejected on the basis that it lacked merit rather than because it ought to have been made earlier.
Although it may be overstating the case to suggest that the new EVEL arrangements have experienced teething problems, there are clearly important practical and procedural issues which will need to be addressed in the light of experience, especially those relating to the Speaker’s certification decision. In this regard, it does seem likely that, in addition to consulting the two panel chairpersons as per Standing Order 83J, the Speaker will make much use of the team of professionally qualified lawyers, who collectively form the Office of Speaker’s Counsel and give legal advice to Mr Speaker, the clerk and all the departments of the house. Their advice will be much informed and valuable on issues relating to extent. Nevertheless, it need not necessarily be the last word on the matter. With the procedure committee maintaining a watching brief, it is unlikely to be too long before there are further developments. Certainly, it is the case that the committee intends to report its findings early in the 2016/17 session, and that these are likely to be influential when the government conducts its own planned review of the EVEL arrangements. While it is far too early to speculate on the likely findings of this review, undoubtedly, certification decisions will feature, and conventions for making or challenging them which emerge between now and then will be discussed and, perhaps, even formalised.
1 Government proposals for English Votes for English Laws Standing Orders: interim report. First report of session 2015–16, HC 410, paras 32–34, available at: http://tinyurl.com/jlr9zwf
2 Hansard, HC Debates cols 706–828, 12 January 2016
3 See note 2, cols 802 and 805