Given Tuesday’s Commons debate and vote against the Government (also reported in a Guardian liveblog here), I thought it was worth reposting here an amended version of a short piece which appeared earlier on the Democratic Audit blog.
Chris Grayling’s proposals for English votes for English laws (EVEL) should not be much of a surprise. They are very largely a straightforward implementation of ‘option 3’ set out by the party in the December 2014 Command paper, endorsed in a speech by William Hague in February 2015 and set out in the party’s election manifesto. The Conservatives will claim credit for having done what they said they would.
In doing so, they have not addressed some key problems. First, they have abandoned the McKay Commission’s test of provisions having a ‘separate and distinct’ effect for England. That had the merit of principle. Instead, the test is whether a provision ‘relates exclusively’ to England. But, second, that test is mis-applied; provisions may relate to England in a legal sense but have a major effect on devolved governments, whether through the Barnett formula and consequential changes in funding, or their effects across a border (a major issue for Wales if not Scotland). This means, third, that the problems arising from a piecemeal approach to constitutional change have been maintained and aggravated, not resolved.
There are ways of implementing EVEL that would give England the distinct voice in the Union that it badly needs. That needs a much further-reaching reconstruction of how legislation works, and perhaps the machinery of government too. We canvassed these issues in the recent Bingham Centre devolution review, and set out a path to achieve it. (The report can be downloaded here.) Instead, the Conservatives have ticked a box on their to-do list, but stored up yet further constitutional problems for the future. To work properly, EVEL needs to form part of a much broader programme of reform in Westminster and Whitehall, not be a one-off revision to Commons procedures.