Why should Scottish MPs vote on English issues, when the same matters are devolved to the Scottish Parliament in Edinburgh? The famous “West Lothian question” became a major theme for the Conservative Party during an election (2015) that might have seen SNP MPs holding the balance of power. Following its victory, the Conservative government produced proposals for “English votes for English laws”.
The question needs to be kept in perspective. England usually gets the government that it votes for, and Scottish MPs only make a difference if England is split down the middle. There are in fact remarkably few occasions in which Scottish MPs make a difference on English matters. The government has proposed new House of Commons Standing Orders, and a new Committee to give English MPs a vote on English issues. This is the right approach.
The government’s plans, however, are for a system that gives English MPs substantial veto powers, under a so-called “dual majority”. The attraction of this principle is that it stops change being forced though against an English majority, but does not allow that majority to control the government. But the government’s plans have no opt out for exceptional circumstances. Like the convention which restricts Westminster legislating on devolved matters, these rules should apply “normally”.
Ministers propose to extend the idea of English votes into secondary legislation. This has not been properly thought through. Much secondary legislation is really part of the executive responsibility of ministers, and unlike Acts of Parliament some of it needs to be made every year. The example given by the government, the distribution of local council finance, is apt. If no Order is made, councils get no money. This could allow an English majority to hold an executive to ransom, exercising the powers of government but not taking its responsibilities. It would not be not a dual majority system in practice.
Similar issues arise in relation to taxation. All the detailed work which has been being done on English votes, such as the McKay Commission, relates to ordinary law making, not tax. But the government proposes extending the consent regime to English taxes, such as rates of income tax. This may seem obvious, but it creates substantial problems. Income tax has to be renewed every year. So, once again, an English majority would be able to hold a government to ransom – income tax is a quarter of total revenue.
Because there is no separate English budget, there is no mechanism for English tax decisions to be reflected in spending that affects England only. This is not because of the Barnett formula, but because there is no separately identified English-only spending budget.
English votes is a real issue, even though its importance may have been exaggerated by the recent election campaign. It should be seen not through party political but constitutional spectacles. It would be a mistake for the Conservative party to assume that this could only constrain a future Labour government, and wrong in principle for any government to write the rules of this game on the assumption that they could only ever play one role in it. Devolution has changed the British constitution, but Westminster has sailed on as if nothing has happened. So something does need to be done, and some form of English votes is the right answer.
England does have to be recognised in the territorial constitution of the United Kingdom, but its position as the dominant partner in the union requires a quite different approach from the others. The UK will never be a fully and formally federal state. Westminster will remain England’s Parliament, and the UK government will remain England’s government. The trick in designing an English votes procedure is not to undermine that, and not to make the government of England, or the United Kingdom, impossible in some, infrequent, circumstances. The government’s present proposals do not take that trick: they carry the risk that in these circumstances, England might have no effective government at all.
As with constitutional changes generally, it would be better if the development of English votes proceed by consensus, for which there does seem to be political scope in a number of possible formats. Such a constitutional change should be made in a way that it can be expected that the procedures do not change if there is a change of government.
This blog first appeared on the Centre on Constitutional Change site and is republished here with permission
A longer paper on the same issue can be read here