So long, EVEL and the FTPA: one step forward, one step back?

Alex Walker
By: Alex Walker

The doctrine that the UK Parliament is sovereign and cannot bind its successors is at the heart of the UK constitution. It means that the government of the day can replace, amend or repeal with relative ease any constitutional legislation passed by its predecessors. This feature of the UK’s constitutional arrangements is often praised for enabling a pragmatic approach. Rather than being stuck with an ineffective and outdated political system, successive governments have been able to refine and improve it over many years. Furthermore, some important features of the UK constitution are not contained in statute, but in sources such as the ‘law and custom of Parliament’, aspects of which can also be easily changed. The House of Commons Standing Orders, for instance, can be altered by a simple Commons majority. If the UK had a codified constitution which included key features of the system these rules might be more difficult to modify. It is said that such a document would entail a loss of flexibility, denying the potential to shift with the times. However, two recent developments have highlighted that this flexibility can be used to roll back the clock, as well as move forward.

First, the government’s Dissolution and Calling of Parliaments Bill – which changes the way in which general elections are called – continues its passage through Parliament, and had its second reading on 6 July. Second, on 13 July the government’s motion to get rid of the ‘English votes for English laws’ (EVEL) process from the Commons Standing Orders was approved. What these changes have in common, aside from being rather niche concerns, is that they both revert to the situation as it was before the measures were introduced, leaving open again the questions to which they were supposed to provide an answer.

Although subject to the criticism that they were flawed solutions, both the Fixed-term Parliaments Act (which the Dissolution and Calling of Parliaments Bill repeals) and EVEL were intended to address genuine problems. To take the Fixed-term Parliaments Act (FTPA) first, there were both principled and practical reasons for its introduction. In the first instance, it was intended to ensure the stability of the 2010 coalition government. The Liberal Democrats wanted assurances that the Conservatives wouldn’t call an early election whenever the polls indicated they might win a majority. The Act transferred the power to call an early election from the Prime Minister to a two-thirds majority in Parliament, making it more difficult for then-Prime Minister David Cameron to pull the plug. The FTPA appeared to serve this purpose well, as the full five year ‘fixed-term’ was served. However, there was also wider principled support at the time for giving the legislature greater control over prerogative powers traditionally exercised on the advice of the Prime Minister alone. That the Prime Minister could decide on the timing of a general election was seen as conferring an unfair advantage on the incumbent, a notion for which the evidence offers some support.  

Moving to EVEL, the plan to introduce this procedure was announced in the immediate aftermath of the 2014 Scottish independence referendum, in what was widely seen as a move to placate English voters after further devolution had been promised to Scotland during the campaign. Changes to the House of Commons Standing Orders were made in 2015, and meant that English MPs would have to approve England-only legislation before it could be voted on by the whole House. While Cameron’s motivation might be seen as having a cynical aspect to it, EVEL was nonetheless also an attempted solution to the long-discussed West Lothian question (where Scottish, Welsh and Northern Irish MPs have a say on English matters but English MPs do not have a say over the same matters in Scotland, Wales and Northern Ireland).

Both of these Cameron-era constitutional changes have been a source of controversy. The EVEL procedures were complex, little-understood and never affected the outcome of a vote (which is unsurprising given that the Conservatives have had an English majority and been in government at UK level – though not always with a single party majority in the Commons – since EVEL was introduced). As Daniel Gover and Michael Kenny have argued, whilst the procedures themselves have been made to work smoothly, they haven’t led to the expression of a meaningful English ‘voice’ at Westminster, as some had hoped. Furthermore, for those who believe England needs its own devolved institutions, EVEL was never more than an insufficient procedural solution to a much deeper deficit of English representation.

The FTPA has also been maligned. By the 2019 general election, it had few friends. This was primarily a reflection of the developments of 2017 to 2019. The parliamentary deadlock over Brexit was blamed on the FTPA, with critics arguing that the UK would have gone to the polls much sooner had it not been for the barriers posed by the Act. This narrative has been contested, but there were no doubt problems with the legislation. The two-thirds majority requirement was eventually overridden by the Early Parliamentary General Election Act 2019, highlighting the provision’s ineffectiveness. Moreover, the FTPA’s statutory confidence measures were widely criticised for creating ambiguity and confusion.

However, rather than trying to improve these arrangements, in both these instances the government has simply opted to do away with them. Not only does this feel like a failure to put in the necessary intellectual effort, it also departs from the view of the UK constitution outlined above (one that is often defended by Conservatives): that it enables gradual adaptation and enhancement over time.

It has been suggested that getting rid of EVEL may be intended to make a wider point about legislative consent, one that reflects the UK government’s more ‘muscular’ approach to the Union. Repealing the FTPA would make it easier for Boris Johnson to bring about a general election when he judges he is most likely to win. These changes serve the political needs of the present, but they fail to consider the potential challenges of the future. A future coalition government may need similar assurances to those provided by the FTPA in 2011. The West Lothian question has not gone away. The government’s approach to these matters reflects a deeper problem in UK constitutional politics: a culture of short-term thinking.

Short-termism is a perennial problem in politics: governments tend to think one term at a time, to the detriment of problems that require long-term solutions. But this can raise particular problems when it comes to the constitution. To keep making changes in response to particular political circumstances can reduce trust in the political system, making it seem like the government of the day is altering the rules of the game to try and stay in power. It can also contribute to confusing and opaque constitutional arrangements that limit understanding. The UK system has the benefit of flexibility but this must be used wisely, to build a settlement that works effectively and commands legitimacy. In scrapping rather than reforming the FTPA and EVEL, the government has prioritised political expediency over constitutional improvement.

Alex Walker is The Constitution Society’s Communications Manager. He edits and contributes to the blog.

The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.