English Votes for English Laws: The new threat to our Union

Michael Drewett UK

The nature and role of the British Parliament is in crisis. Not least among its problems is the fact that the theory of parliamentary sovereignty (essentially, whatever the Queen-in-Parliament does is law) no longer comes close to what is possible in practice. The British Parliament would never consider deliberately reversing legislation passed by the Scottish, Welsh or Northern Irish devolved administrations. It is further constrained by the primacy of EU legislation and by the European Convention on Human Rights (whether that be entrenched in domestic law by the Human Rights Act or by a forthcoming ‘British Bill of Rights’). This gap between power in principle and in practice is compounded by problems of legitimacy; one chamber, the House of Lords, still includes ninetytwo hereditary peers and twenty-six Anglican bishops. Meanwhile, the other chamber, the House of Commons, is elected on a first-past-the-post basis that distributes seats between parties in a manner highly disproportionate to votes (UKIP, for example, won 12.6% of the popular vote in May’s general election and only one of the 650 seats, i.e. 0.15%). Since voters tend to identify with parties rather than individual candidates, this system looks increasingly difficult to sustain.

Each of these problems deserves, and some have received, several books’ worth of debate. The problem that the Conservative government is treating as most urgent, however, is in fact arguably more important than any other, since it threatens the very existence of the British state. This unexploded bomb, or hornet’s nest, or sleeping dog (select the preferred metaphor for danger of your choice), is normally known as the mundane-sounding West Lothian Question, so called because it was frequently posed by the MP for West Lothian during the 1970s. It concerns the fact that Scotland (like Wales and like Northern Ireland) has a devolved administration as mentioned above. This Scottish Parliament can pass its own laws with respect to certain policies. England does not have such a parliament; all legislation relating to England comes directly from the British Parliament at Westminster. The British Parliament is made up of MPs from the whole of the UK. Given these facts, the gist of the West Lothian Question is obvious, and it usually goes something like this: how can it be right that Scottish MPs at Westminster can vote on exclusively English issues while English MPs cannot vote on devolved Scottish issues? This matters because it’s possible in principle for a majority of English MPs on a piece of legislation only affecting England to be overridden by the votes of Scottish MPs representing constituencies where the new law will not apply. The issue is becoming more acute as further powers are devolved to the Scottish Parliament; it would soon be possible, for example, for the votes of Scottish MPs to make up a majority for raising a tax in England while Scotland exempts itself from the tax through its own Parliament. There is a broad consensus that this is unfair and inconsistent with the democratic ideal of equality of representation. Actually addressing the West Lothian Question, however, is difficult and potentially dangerous for the British state.

The alleged solution that the Conservative government has chosen to pursue is called ‘English Votes for English Laws’, otherwise known by the dubious acronym ‘EVEL’. EVEL is intended to rule out the worst inequalities of representation simply by altering the procedures of the House of Commons to allow English MPs to veto legislation concerning only England (or English and Welsh MPs for legislation concerning only England and Wales). What is particularly neat about the government’s proposals is that the whole of the Commons, Scottish MPs included, would still vote to approve a given bill. The difference would be that only English/Welsh MPs would sit on committees amending England/Wales-only bills, and a ‘Legislative Grand Committee’ of all English or English and Welsh MPs would need to consent to such a bill before the whole House approved it. The Speaker of the House would decide which bills were applicable. Hence, no relevant bill or provision could enter into law without an English/Welsh as applicable majority in favour. At first glance, this seems like a reasonable solution; a mere procedural change that eliminates a possible injustice. It could in fact, however, prove disastrous to the UK.

Firstly, EVEL doesn’t even fully address the West Lothian Question. It prevents Scottish MPs imposing an England-only law against the wishes of a majority of English MPs. It does not, however, prevent Scottish MPs from blocking an England-only law with the support of a majority of English MPs. This is fair from hypothetical; the government intends to allow a free vote on repealing the existing fox-hunting ban in England Wales (it is not yet banned in Scotland). It is likely that there will be a narrow English and Welsh majority in favour of repeal, but the SNP intends to vote against and thereby block the repeal, a measure that has no effect on Scotland. This would not be prevented under EVEL. In this sense EVEL is too weak.

Secondly, however, EVEL has the potential to create paralysis of government; supposing the party or coalition commanding a majority at Westminster does not also command a majority of English MPs, it would find that any legislation relating solely to England could be vetoed. If most powers besides those over defence and foreign policy were no longer reserved and came under the remit of the Scottish Parliament, thereby increasing the number of England-only issues, the British government would find itself unable to legislate for England without additionally holding an English majority. In this sense, EVEL is too strong; it allows too much opportunity for legislative gridlock. Having faced strong criticism concerning EVEL over the summer, the government is expected to bring forward revised proposals to the Commons (though presumably ones similar in broad terms) at some point before the end of October. It is difficult to see, however, how any proposal along the lines of EVEL could strike such a balance that it is strong enough to reduce inequality of representation without being so strong as to allow legislative gridlock.

So is there an answer to the West Lothian Question? An obvious alternative response would be to give England representation on an equal basis to Scotland, i.e. set up an English Parliament with the same powers as the Scottish Parliament. If the Welsh and Northern Irish Assemblies were also given the same powers, this would be similar to the American federal system; each of the UK’s constituent parts would have its own legislature to decide matters concerning only that region, while the British Parliament would only deal with the policy areas not addressed in the lower legislatures. Hence no MP would ever have an opportunity to vote on a policy that only concerned another part of the UK. This sounds viable; the American political system, Donald Trump notwithstanding, works fairly well. There is an important difference between the American states and the UK, however, which is that the US has no dominant state. The states vary significantly in size and population, but none of them accounts for more than an eighth of the total US population. England, by contrast, accounts for 84% of the UK population and a similar share of economic output. No federation in history has had one state that has so much larger a population than the others; Prussia in the Second German Empire, with about 60% of the total German population, probably comes closest. In the Second German Empire, though, Prussian domination of the federal government was built-in; the Prussian king was also the German Emperor (who played a decisive role in government), and the head of the German government was also the head of the Prussian government (not the least of the differences between late-19th century Germany and 21st century Britain). Such measures are not viable for a liberal democracy, which raises the possibility that the English and British governments under federalism might come from different parties. It is not difficult to imagine a Conservative majority in a hypothetical English Parliament in the 2030s combined with a Labour-SNP coalition controlling the federal British government. In such a case, a debilitating power struggle between the English and British governments can also be imagined. This is just an alternative version of the struggle that would at some point surely be played out within the Commons under EVEL. The likely result, total paralysis of government, is surely to be avoided at all costs.

This alone doesn’t mean federalism is fatally flawed. Instead of a single English Parliament, a federal system could divide up the country and create regional parliaments of a manageable size; one for the North-East, one for the West Country counties of Devon and Cornwall, etc. None of these parliaments would govern such a large area as to challenge the primacy of the British government. Such a proposal would certainly be more viable than the creation of a single English Parliament, yet it is also flawed. Firstly, the establishment of so many parliaments would be expensive and complicated; all the new MPs would have to be housed and paid, and demarcating the powers of the regional governments and the federal one would surely require a codified constitution, something that the UK currently and uniquely lacks. This dramatic change would require a government’s full attention; the history of House of Lords reform suggests that constitutional change registers so little with voters that it would be a useless campaigning platform. This indicates the second objection to such a proposal, which is that the electorate simply isn’t interested in having regional parliaments. In fact, a 2004 referendum in the North-East on devolution to the region met with overwhelming opposition (78% opposed). Federalism of any form, then, doesn’t look like a promising path.

EVEL is clearly flawed, and no other proposal seems viable. Surely, though, it’s better for the government to make an attempt to solve the West Lothian Question than just accept the status quo? Not really. The problem is that any attempt to answer the Question, much like trying to defuse a bomb, carries the risk of bringing about what you’re trying to prevent. In the case of the West Lothian Question, this is the break-up of the Union between England and Scotland. On the English side, the West Lothian Question plays into a narrative whereby England concedes too much to Scotland in an attempt to keep the Scots within the Union, to the point where the English now suffer unequal representation at Westminster to satisfy the Scots. Bringing forward EVEL highlights the existence of the West Lothian Question and also creates a distinctive ‘English’ grouping within the British Parliament. This risks encouraging the formation of a stronger sense of English identity, one that can only do damage to the British Union; historically British identity has been so resilient partly because English identity has been largely submerged within it. On the Scottish side, bringing forward EVEL plays into a Scottish Nationalist Party narrative that the Conservatives are a party concerned primarily with English middle-class right-of-centre interests. They do not represent the Scots, who not only tend not to vote Conservative but also are more likely than the English to identify as socialist. That the Conservatives appear to prioritise English concerns is a particularly sensitive accusation only a year after Scotland voted against independence from the UK; that vote was won partly on a pledge by all the main Unionist parties to devolve more powers to the Scottish Parliament. If the Conservatives are slow to complete this process they will be charged with deceiving the Scottish people, allowing the SNP to claim a mandate for a new referendum. Focusing on the West Lothian Question can only make matters worse. Most importantly, any legislative gridlock arising out of EVEL is only likely to reinforce arguments on both sides that the British Union is not worth the costs involved.

So, can the Conservatives fix the British constitution? It seems very unlikely, and certainly not worth the risks involved in the attempt. Given that the process for putting EVEL into practice is well underway nonetheless, a better question would be whether the UK can survive their failure. Unexploded bombs, hornets’ nests and sleeping dogs all have something in common; they should be left alone.