Alex Morton is Head of Policy at the Centre for Policy Studies, and was a member of David Cameron’s Downing Street Policy Unit.
In the wake of the 2017 election, the received wisdom is that the Conservative Party cannot put forward any truly radical policy proposals. Because we lost our overall majority, we can only pass legislation where each and every line can get through the Commons. Within government, there is a neuralgic twitch whenever the words “primary legislation” are mentioned.
But something is happening which might change all that – and it’s not Brexit.
The Brexit process has obscured the implementation of a major constitutional change: English Votes for English Laws, or EVEL. I say obscured because almost all Brexit-related legislation is essentially UK-wide, as it is reversing provisions in legislation relating to the UK and the European Union.
Therefore, since the referendum last June, we have got used to the parliamentary arithmetic of the United Kingdom – where the Conservatives have just 317 MPs out of 650 and rely upon the DUP to get key Government votes through.
But in England, the Conservatives have 296 MPs out of 533, a majority of nearly 60 over all the other parties, who have 237 combined. This means that they are the overwhelming force in instances they can bring forward measures that deal with English-only affairs. The list of these is a long one, comprising at least the following: health and social care, education and training, planning, housing, local government, DCMS, economic development, the environment, prisons and rehabilitation, agriculture, forestry and fisheries, transport. Many other areas are partially covered though not all – all defence and most of welfare are still UK-led.
The complications of EVEL
EVEL is a fairly complex process, even by parliamentary standards. But the key points are that if the Government introduces a Bill which is purely English, then amendments cannot be made to it without the majority of English MPs supporting them. (See here and here for more details about how exactly this works).
Essentially, all MPs can amend the Bill at report stage, which continues to involve all MPs from all parts of the UK. But for English-only legislation, any amendments made at this stage also have to be signed off by a Legislative Grand Committee of English-only MPs (a fancy way of saying that English MPs get to block any such amendments).
Where the Commons as a whole disagrees with those English MPs, the House of Commons library notes, the Legislative Grand Committee (or in plain English, English MPs) “can, at this point, either withhold consent to the whole bill: consequently the bill may not be given a third reading and shall not pass; or withhold consent to particular provisions: in which case they are removed from the bill that proceeds to third reading…”
Third reading is essentially the Commons approving the Bill in its entirety (or rejecting it). This means that where UK MPs try to change Government legislation but English MPs reject their changes, they cannot try again: the only possibility for the Commons is to throw the entire Bill out. Similarly, the whole House votes on second reading – but all this does is allow the Bill to proceed. So you have to throw out the whole thing.
As should be immediately clear, throwing out a whole Bill is a much bigger deal for a Conservative rebel MP than simply voting with Labour and the SNP on a particular amendment to tweak part of the legislation.
Consider an Education Bill which makes serious improvements to the way in which apprenticeships and technical education are managed in this country, but also contains provisions for selective education to be expanded across the country. MPs unhappy with the expansion of grammars could, once it had got past the grand committee stage, only vote to throw out the entire Bill – losing the provisions they support about apprenticeships and technical education.
EVEL also applies to the Lords. They can still make amendments – but again, they have to be approved both by English-only MPs and the Commons as a whole. This again gives English MPs control (indeed, it may be that this actually gives Government more control than with most legislation). Only on secondary legislation (regulations and statutory instruments) does EVEL not operate in the same way – but there is no reason this could not be amended by the Conservatives and DUP.
A fundamental transformation
EVEL, in other words, could fundamentally switch the way backbench power operates. If a dozen MPs wanted to, they could effectively bring all legislation to a standstill, by simply throwing out Bill after Bill. But this would be deeply unpopular with voters, constituents and activists. On individual proposals, the strength of MPs may become much weaker. It’s easier to imagine Tory MPs dissenting on specific proposals and trying to amend a Bill’s provisions than being prepared to wreck an entire piece of legislation.
The future of EVEL
The constitutional issues EVEL raises between now and 2022 pale in comparison to what the future may bring. A Jeremy Corbyn Government which had, either alone or in coalition, a narrow UK-wide majority but no majority across England would be prevented – blessedly – from passing many of its more radical proposals. On English matters, you would have a Government that could initiate legislation but not pass it, and an Opposition that could amend legislation but not pass it either.
Of course, such a Government might try to reverse EVEL, but while in theory you might be able to do this via a standing order of the whole House, this assumes that the procedure creating EVEL is not itself subject to EVEL (the Speaker would have to decide). The politics here would mean even if the Speaker agreed this was acceptable, Labour MPs from the rest of the UK would have to vote to again be able to overturn English legislation even if a majority of English MPs disagreed. So if Labour do not win a majority in England, the aftermath of the next election could get very messy.
Greater scope to be radical
By next spring, the Conservative Party will be deeply battered by Brexit – and looking for new ideas to recapture the agenda. The paradox of EVEL is that a bold, positive agenda is in some ways more likely to get through than a narrow, timid one – because MPs may swing behind the agenda as a whole, even if not every item is to their taste, as this means their particular ideas and objectives will get through. So when focusing on what we as Conservatives can actually achieve, we need to think EVEL.