7 October 2015
Article by Alys Thomas, National Assembly for Wales Research Service
Before the UK Parliament broke for recess the Leader of the House, the Rt. Hon. Chris Grayling MP made a statement in the House of Commons of the UK Government’s intention to implement “English votes for English Laws” [“EVEL”]. The UK Government’s intent had been flagged up by a statement by the Rt. Hon. William Hague MP in the last Parliament outlining the favoured approach, following on from the proposals of the Mackay Commission.
The Leader of the House published draft Standing Orders and a policy paper. The new process will apply to Government bills introduced in this parliamentary session that have a Second Reading in the Commons after the new rules are agreed. It will then apply to all parts of Government bills which are certified by the Speaker as containing English, or English and Welsh, provisions. It will not apply to routine bills that implement the House’s spending decisions contained in the Estimates. It will also apply to secondary legislation.
- When a bill has been introduced in the Commons, the Speaker will certify whether the bill, or parts of it, should be subject to the new process. When making this decision the Speaker will decide whether the legislation relates exclusively to England, or England and Wales, and concerns matters which are devolved to Scotland, Wales or Northern Ireland.
- Once the Speaker has certified a bill it continues to Second Reading and committee stage as normal.
- Any bills that the Speaker has certified as England-only in their entirety will be considered by only English MPs at committee stage. The membership of this committee will reflect the numbers of MPs that parties have in England.
- After this the bill continues to Report Stage as normal.
- For bills containing English or English and Welsh provisions, there is then a process for gaining the consent of English or English and Welsh MPs. A legislative Grand Committee considers a consent motion for any clauses that the Speaker has certified as English or English and Welsh only. This is a new stage which will allow all English or English and Welsh MPs either to consent to or to veto those clauses. At this stage no amendments to the text of the bill can be made but specified clauses can be vetoed by amendments to the consent motion. In the case of a bill which is England-only, or England and Wales only, this stage allows those MPs to consent to or veto the whole bill.
- If clauses of the bill are vetoed by the legislative Grand Committee there is a reconsideration stage when further amendments can be made, to enable compromises to be reached. The whole House can participate in this stage, which is, in effect, a second report stage for disputed parts of the bill. This is followed by a second legislative Grand Committee at which all English or English and Welsh MPs are asked to consent to the amendments made by the whole House. If no agreement is reached at this point, the disputed parts of the bill fall.
- Following report stage and any consent motions the bill continues to Third Reading, in which as now all MPs can participate. It then progresses to the House of Lords. If there are any consequential amendments to the rest of the bill required as a result of disputed parts of the bill falling, there will be an additional stage before third reading to allow this.
The legislative process in the House of Lords is unchanged.
Several Westminster Committees are in the process of holding inquiries on the EVEL proposals. The House of Commons Procedure Committee began an initial review of the UK Government’s proposals in July. The Public Administration and Constitutional Affairs Select Committee also launched an inquiry in July and the Scottish Affairs Select Committee has held two evidence sessions.
The Presiding Officer’s evidence
The Chair of the House of Commons Procedure Committee wrote to the Presiding Officer of the National Assembly for Wales, and her counterparts in Scotland and Northern Ireland, inviting them to submit evidence on the certification of legislation within devolved competence. The Presiding Officer provided detailed evidence in response.
Within the Assembly, the Presiding Officer is required by law to state, when a Bill is introduced, whether or not, in her view, it would be within the Assembly’s legislative competence. Part 1 of the evidence sets out the factual details of the procedure involved in this, including:
- The duties of the Presiding Officer in relation to determining legislative competence of Assembly Bills;
- A detailed description of the procedure followed, legislative tests applied, scale and complexity of the task and resources/expertise required; and
- The potential for dispute or disagreement in relation to determining legislative competence for proposed Bills, and also in relation to Assembly consideration of Legislative Consent Motions.
Part 2 of the evidence highlights some concerns and queries identified in relation to the potential for unintended consequences of the EVEL proposals – in particular the role of the Speaker in determining legislative competence.
The evidence highlights as an area of particular concern the potential for perceived conflict between the Speaker and the Presiding Officer – and indeed the Assembly – should there be disagreement as to whether a Bill, clause, schedule or statutory instrument is within legislative competence. There is also the potential for conflict between the opinion of the Speaker and a judgment, or judgments, of the Supreme Court.
The evidence states that possibly the most concerning aspect is how the proposals draw the Speaker into debate about what is devolved across the UK. This has potentially far-reaching consequences and may exacerbate difficulties across what is already an uneven playing field, a point raised during evidence to the Assembly’s Constitutional and Legislative Affairs Committee by Professor Thomas Glyn Watkin on 22 June.