29 February 2016
‘English Votes for English Laws’ [EVEL] has become a reality. The changes to the House of Commons Standing Orders that put EVEL into effect were passed by the House by 312 votes to 270 on 22 October 2015. We blogged on earlier developments in in autumn 2015.
The Speaker of the House of Commons must now determine whether in his opinion whole UK Government bills, elements of bills and proposals to change bills in the form of new clauses, new schedules and amendments are to pass through the process. The Speaker is advised by the Clerk of Legislation and Speaker’s Counsel, and may also consult two Committee Chairs appointed for the purpose.
If the Speaker decides that the process applies to all, or part of a bill it is given a Speaker’s Certificate.
Certification may occur at a number of stages during the passage of a bill. It may happen before Second Reading, after Report stage, after a new stage called Reconsideration, and on Commons consideration of Lords Amendments.
Bills subject to EVEL will go through First Reading, Second Reading, Committee stage and Report stage as for other bills.
If a bill is certified as England-only in its entirety the members of a public bill committee will be chosen only from MPs representing constituencies in England. A bill or provisions in the bill may also be certified as England and in which case Welsh MPs may be included.
There are now three new stages that a bill could go through between Report stage and Third Reading. These are Legislative Grand Committee, Reconsideration and Consequential Consideration. Whether a bill needs to go through all these stages depends on decisions made during its progress.
Legislative Grand Committee (LGC)
After Report Stage the Speaker considers the bill again for certification, if it has been amended. If the whole bill or certain provisions of it, are certified by the Speaker as relating exclusively to England and Wales, and/or England a consent motion must be passed by MPs representing constituencies in England and Wales, and/or England, either in relation to the whole bill or particular parts of the Bill concerned, before it can proceed to Third Reading. The Legislative Grand Committee can sit as an English only committee but also as an England and Wales one.
All MPs can take part in debates in the Legislative Grand Committee, but only those MPs representing constituencies in England, or England and Wales, can vote on the Bill or the relevant provisions.
If consent is not given to particular provisions by any of the Legislative Grand Committee, a reconsideration stage is held (like report stage, all Members take part). The reconsideration stage is for the sole purpose of considering amendments to the bill to resolve matters in dispute as a result of the withholding of consent.
When reconsideration stage is complete, the Speaker must consider for certification any changes made to the bill. The Legislative Grand Committee then meets again to consider the certified changes. It may withhold consent to the whole bill and will not be passed. If particular provisions are not passed they are removed from the bill that proceeds to third reading. At this point, a ‘consequential consideration’ stage may occur if minor or technical amendments to the remaining parts of the bill are required as a consequence of provisions being removed.
A further round of certification will take place if a bill is amended in the House of Lords The amendments will require a “double majority” – in other words, a majority of all MPs voting and a majority of MPs from England or England and Wales.
The process begins
The first bill to be certified by the Speaker was the Housing and Legislation Bill. The House of Commons website provides links to the certificate and to a UK Government Memorandum to the public bill committee which scrutinised the Bill in the first instance. Following the amendment of the bill in the public bill committee the Speaker issued a revised certificate.
The Speaker ruled that most of the Bill relates to England only. However, some clauses were ruled to relate to England and Wales. However, these were agreed without a division. Following the conclusion of the Report stage on 12 January 2016 the House resolved itself into the Legislative Grand Committee for England to provide consent for the remaining clauses.
A point of order was raised by a Northern Irish MP, Lady Hermon, who sought clarification as to why a clause which referred to Wales was certified as England only by the Speaker. The following day she raised a point of order with the Speaker:
‘On a point of order, Mr Speaker. I wondered whether, overnight, you have had an opportunity to reflect on the point of order that I raised at the end of last night’s debate. The certification process is a new procedure, so it is very, very important that we get it right, particularly as it has such negative and adverse effects for MPs from Northern Ireland and Scotland. I intend no criticism of you, Mr Speaker. However, I hope that you will accept that when the Government table a new clause, which mentions both England and Wales, and then a designation is made in a certificate that it applies exclusively to England, it is inherently ambiguous and contradictory. That is the point that I was making. I should like clarification on how we correct a certificate that is designated apparently incorrectly.’
The Speaker replied that:
‘[…] It is understandable that she initially surmised that new clause 62 should have been certified as relating to Wales as well as to England, but the reality is, as close examination testifies, that the application to Wales falls into the category of minor or consequential as, crucially, it makes no change in the law applying in Wales. So, in the view of the Chair, which was informed by the combined advice of the Clerks and the Office of Speaker’s Counsel, it was rightly certified as relating exclusively to England.’
The Public Administration and Constitutional Affairs Committee of the House of Commons held an inquiry into the operation of EVEL and published its report on 26 January 2016. The report notes that the Supreme Court referrals of Welsh legislation ‘represent a worrying portent of the potential controversy that may arise from attempts to adjudicate both where the devolution boundaries lie and working out what minor or consequential effects on devolved competence might be’. It concludes:
‘The devolution test for certification is not a “very simple test” and, alongside the instruction that “minor or consequential effects” be disregarded, risks putting the Speaker in an unnecessarily controversial position. At the very least, it is highly likely that interested parties from inside and outside the House will want to make representations to the Speaker on how he adjudicates: a) where the devolution boundaries lie, and b) whether the effects of a Bill, or a clause or schedule of a Bill, are more than minor or consequential. PACAC therefore agrees with the Procedure Committee that there is a case for the Speaker to establish and publish a procedure for how he would handle such representations. While we note that the Speaker has issued a statement that outlined how the new Standing Orders would be implemented and recommended that representations should be made to the Clerk of Legislation, we nonetheless feel that a more thorough set of guidelines regarding representations would be beneficial for Members.’
Other Bills that have been certified are the Childcare Bill which was England only and the Charities (Protection and Social Investment) Bill, which was certified England and Wales.
The Leader of the House has committed the UK Government to a review of the new Standing Orders twelve months after they come into operation. The Procedure Committee will also be undertaking a technical evaluation of the new Standing Orders to feed into this review.