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It has taken a while, but we have a solution to the West Lothian question, so we are told. English votes, on English law. By amending the Standing Orders of the House of Commons, English (or, where appropriate, English and Welsh) MPs will have to approve English (or English and Welsh) only provisions in Grand Committee before the Third Reading in the House of Commons. The amendments (available here) do not make for easy reading. I confess, however, I could not really concentrate on the detail after I had read the first provision:
“83J Certification of bills etc. as relating exclusively to England or England and Wales and being within devolved competence
(1) The Speaker shall, before second reading –
(a) consider every public bill presented by a Minister of the Crown or brought from the Lords and taken up by a Minister of the Crown, and
(b) certify any such bill, or any clause or schedule of any such bill, which, in the Speaker’s opinion –
(i) relates exclusively to England or to England and Wales, and
(ii) is within devolved competence.”
That is a remarkable provision. Rule 83J(1)(b)(ii) alone produces a number of questions. Is it really now a matter for the Speaker of the House of Commons to ascertain the boundaries of devolution? Many a lawyer (not to mention judge) has wrestled with where exactly those boundaries lie. It is an issue that has, on occasion, divided the Supreme Court (see: Martin v Most  UKSC 10). Lord Hope reminded the House of Lords of that the day before the Commons voted. It is also remarkable given the value placed on certificates from the Presiding Officers of the devolved institutions when they certify the competence of Bills that are before their chambers. The value to be given to them, according to the Supreme Court, is precisely nil: there is no presumption that a provision is within the legislative competence of a devolved institution because the Presiding Officer has certified it to be so (Imperial Tobacco v Lord Advocate  UKSC 61 at para.7). But in case the task facing the Speaker was not challenging enough, it is further complicated by Rule 83J(6):
“(6) In deciding whether a bill relates exclusively to England or to England and Wales, the Speaker shall treat any clause or schedule whose only effects are minor or consequential effects outside the area in question as relating exclusively to that area.”
So, there appears to be a de minimis provision so far as the devolution boundaries are concerned. That is unlikely to make the Speaker’s task any easier. He can, however, call upon the assistance of two MPs who have been appointed for this purpose (Rule 83J(8)).
There appears to me to be an obvious difficulty with the task that has been conferred upon the Speaker. The devolution boundaries are, at their margins, contested. For example, the Welsh and UK governments have already disagreed on a number of occasions during the very short period that the Assembly in Cardiff has possessed law making powers (for example, Agricultural Sector (Wales) Bill Reference  UKSC 43). The task that the Speaker must now perform is likely to politicise the limits of devolution, limits which were hitherto most certainly legal. Practical problems also arise. Suppose the Speaker certifies that a provision is within devolved competence (thus invoking the new Grand Committee procedure) whilst the Presiding Officer in Edinburgh reaches the view that the equivalent provision in a Bill before Holyrood is outwith devolved competence? How is that to be resolved? It is that sort of question that gives me greatest concern about this measure. It appears that, yet again, piecemeal reform of the constitution risks causing much wider constitutional issues.
The concern is this: the boundary of devolution is ultimately a legal, not a political, question; thus far, it is a question that has been entrusted to the courts; given the relative infancy of devolution, and limited number of cases testing the boundaries of devolution, there is a limited jurisprudence to guide us in this area. Asking the Speaker to enter the debate about the boundaries of devolution appears inevitably to invite judicial challenge sooner or later (a point made by Lord Hope which was dealt with rather dismissively in the House of Commons). And that takes us to the landmark decision in Jackson v Attorney General  UKHL 56. One of the issues that arose in Jackson that is often overshadowed by what was said about the continuing sovereignty of Parliament is the very fact the House of Lords entertained the appeal at all. After all, on a straightforward application of the ‘enrolled Bill rule’ (Edinburgh and Dalkeith Railways v Wauchope (1842) 8 Cl. & F. 710) the court should have thrown it out. But it did not and Lord Bingham explained why:
“The appellants have raised a question of law which cannot, as such, be resolved by Parliament. But it would not be satisfactory, or consistent with the rule of law, if it could not be resolved at all. So it seems to me necessary that the courts should resolve it, and that to do so involves no breach of constitutional propriety.” (at para. 27, emphasis added)
Lord Nicholls agreed:
“This question of statutory interpretation is properly cognisable by a court of law even though it relates to the legislative process. Statutes create law. The proper interpretation of a statute is a matter for the courts, not Parliament. This principle is as fundamental in this country’s constitution as the principle that Parliament has exclusive cognizance (jurisdiction) over its own affairs.” (at para. 51)
Of course determining whether a matter is within devolved competence is simply an exercise in statutory interpretation. That the Speaker has been asked to perform it as part of the legislative processes of the House of Commons does not change that fact. And Jackson appears to provide clear authority for the proposition that any decision taken by the Speaker on what does and does not fall within devolved competence is a matter that can (and should) be resolved in court. There is no suggestion anywhere within the explanatory notes that accompany the new Standing Orders that they were intended to invite judicial scrutiny of the legislative process. But it appears they may have done exactly that. Should that happen, whilst that challenge works its way through the courts (destined, one would expect, for the Supreme Court) it is unlikely that the impugned measure(s) could be brought into force.
And this occurs as we await the UK Government’s proposals to replace the Human Rights Act, which, in part at least, are said to be motivated by a desire to protect the sovereignty of Parliament (and which might be law in fairly early course). That gives rise to another problem: the limits of “devolved competence” are not just those contained in schedules of reservations. They include EU law and Convention rights. So to ascertain what is within devolved competence the Speaker not only needs to interpret Acts of Parliament but he will also need to determine questions of EU and Convention law. When that is appreciated, the logic of a court (and dare I say it, possibly a European court?) being the final arbiter of the issue becomes apparent. It also threatens a quite peculiar outcome if Convention rights remain part of the devolution settlement but are otherwise expunged (as has been suggested). For if that were to happen, the Convention would still play a role in determining the appropriate parliamentary procedure in the House of Commons. I doubt that was the intention of many of those voting to amend the Standing Orders (let alone those who drafted them).
Of course, as I wrote in the aftermath of the referendum last year (available here) English Votes on English laws is not inherently objectionable. Quiet the reverse. The democratic case for it is unanswerable. But the problem is English voters have been consistently uninterested in the idea of having a separate English parliament. Accommodating them within the UK Parliament, however, risks doing more structural damage to what appears to be an increasingly fragile constitution. More concerning, however, is the continual piecemeal tinkering with the constitution. The constitution worked (the past tense is used deliberately) because of a series of checks and balances and intricate weaving together of the different strands of the state. It is impossible to alter one piece at a time and in isolation from the rest. The constitution does not operate is silos. English votes on English laws (as we now have) is just another example of a running repair to a constitution that is in desperate need of a full service.
Paul Reid is an Advocate with Ampersand Stable, a member of the Edinburgh Centre for Constitutional Law and the author of the third edition of Green’s Concise Guide to Public Law, which was published in October 2015.
(Suggested citation: P. Reid, ‘‘English votes on English law’: Just Another Running Repair’ U.K. Const. L. Blog (28th Oct 2015) (available at https://ukconstitutionallaw.org/))