Brexit and its potential implications saturate British politics. But attention has lately shifted away from some of the complex constitutional questions which were aired in the days and months before the UK’s negotiations with the EU began. These include the thorny issue of how the UK government will handle the very different perspectives on Brexit which are held by the governments of Northern Ireland, Scotland and Wales – which will move back to the foreground when the government formally requests the consent of the Scottish and Welsh parliaments for the European Union (Withdrawal) Bill currently passing through the Westminster parliament. Whether Labour in Wales and Scotland opt to oppose Brexit will be of particular importance in political terms.
A related, but distinct, issue which all of the main parties will have to consider soon is how those parts of the complex body of coming legislation which affect England in distinct ways, will fare. And this in a context where it is still taken as given, in Westminster at least, that the UK government can represent the interests of the entire UK and England at the same time, even when the current administration depends for its survival upon a small party that is based in Northern Ireland only.
The previous Conservative government introduced a complex and convoluted system – known as ‘English Votes for English Laws’ (or EVEL) – to handle such legislation, and sought to make political capital out of its ability to answer the English Question – one of the great Cinderella issues of British politics.
Whether these opaque rules will be enough to deal with the increasingly political character of English national identity is a moot point. But in EVEL and the patchwork model of metro mayors and newly created combined authorities it has created, the government at least has something to say on the subject of English devolution (even if what Theresa May herself thinks about these changes remains a well-kept secret).
Labour, in contrast, seems to have little to say in this area – aside from promising a constitutional convention which feels like a fig leaf, rather than a signal of intent.
Were an election to happen in the near future, and were Labour to emerge as the largest party in the House of Commons, it would be required to take a stance and make some tough decisions. It would, in particular, have to take a view on EVEL. Arcane and technical as the question of voting rights in the Commons may appear, it has the potential to come to the boil in sudden and unexpected ways – as happened in 2003 and 2004 when Tony Blair’s second government passed controversial legislation introducing university tuition fees and foundation hospitals in England, despite the opposition of most English MPs.
EVEL now forms part of the ‘rules of the road’ governing how the House treats those parts of bills that apply to different parts of the UK. At present, the Conservatives have a majority of around 60 seats in England and a majority of around 70 over Labour. It is quite possible that the next election could see a UK Labour majority, but without a Labour majority in England. Another plausible outcome would see the Conservatives losing their overall majority but with Labour only able to form a government with the support of MPs from other parties and from non-English parts of the UK. Under either scenario, some of the most totemic parts of the Corbynite programme could be directly affected by the existing EVEL procedures, for instance legislation abolishing tuition fees in England.
Three broad options could be taken in this situation. Labour could choose to play by the current rules, on the grounds that there is little incentive, in political terms, to change them. Yet the party voted against them in 2015 and has criticised them consistently. And, if it did not change them, it might well find itself seeking to work around these new procedures, raising difficult questions about its own legitimacy. And if it did not change them it would almost certainly not be able to implement all its manifesto.
A second option would simply be to revoke these rules by using the same mechanism used to introduce them: a vote to change the standing orders of the House. This relatively straightforward procedure might escape the attention of an electorate often unmoved by issues of parliamentary process. But what if the idea of Labour tearing up the rules that protect the English does resonate – particularly if it had some kind of arrangement with the SNP? Would it be wise or indeed right to take this option? One way of responding here would be to head off criticism by starting to develop a more wide-ranging democratic argument for a more federal UK-wide system, a stance that would help Labour shift from being the party of the status quo to being the architect of a more durable, post-Brexit settlement for the UK. The party’s decision to call for a new Minister for England points the way towards a more positive, democratically inclined, agenda in this area.
At present Labour is a long way from grasping these issues, let alone coming up with a vision for them. So it might well plump for a third option – accepting the principle of English MPs consenting to legislation on English issues, but trying to change and improve the current system. There are, Daniel Gover and I have argued, different ways in which this might be done.
One well-known pro-Brexit Labour MP declared at a recent British Academy conference that EVEL is irrelevant, and that now that they have got the UK out of the EU, the English are about to demand their own parliament. The claim is striking; the evidence for it meagre. But he was right about one thing. Labour needs a vision and a story about the UK as a state and the national groups that reside within it. It needs also to start thinking harder about what kinds of devolution could work for England and the UK as a whole.
Michael Kenny is Professor of Public Policy at the University of Cambridge and Director of the Cambridge Institute for Public Policy. He is also one of the co-founders of Project EVEL.
Note: This article originally appeared on the Project EVEL website and is reproduced here with the kind permission of the author.
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