23 October 2015

What does EVEL actually do?

What does the UK government's "English votes for English laws" scheme actually do? It makes Scottish MPs second-class citizens in the UK parliament. You might well think so, but how precisely do the new rules achieve this? EVEL violates the Act of Union. I'm really not convinced that it does, but I'll ask you again - even in outline - what difference will Chris Grayling's changes to the House of Commons' standing orders really make? They lock Scottish MPs out of decision-making. It is an outrage. Maybe, but what precisely is the outrage? What aspects of the new voting rules do you particularly object to? What key changes do you have a problem with?

A strikingly large number of folk talking - at higher and lower pitches of feeling - about yesterday's vote on English votes for English laws couldn't answer you any of these questions. In an earlier blog, I outlined the main practical effects of the changes Grayling proposed. And they are considerably more modest in scope than crowing Tories and outraged Nationalists are today claiming. I can't really improve on my earlier summary:
"There are a number of aspects to the EVEL proposals, but the most important is the idea of an English veto. On Bills and statutory orders which affect only England, the government wants to introduce an additional stage to parliamentary procedure. It all risks sounding a bit arcane and impenetrable. But consider this concrete example. Say a hypothetical Labour government enjoyed a majority in the Commons but only by dint of winning 56 of Scotland's 59 MPs. The majority of MPs returned for English constituencies were Tories. Say this Labour government proposed to abolish free schools in England, over the Conservative Party's profound objections. 
Under Grayling's new rules, if the Speaker certified this as an England only issue, MPs representing English constituencies would take an additional vote on the government's plan to abolish free schools. If the English majority supported the idea, MPs from all parts of Britain would then participate in the final vote on whether to accept or reject the plans. But if the majority of English MPs did not support the proposals, they fail. Notice: the attitude of English MPs is decisive only in a negative sense. They can veto England-only laws they don't like, but they cannot insist that England-only laws they approve of are passed. This is how the plans are intended to operate. All MPs, from every corner of the United Kingdom, will retain the last word on whether England-only laws reach the statute book."
So let's get one thing perfectly straight: Scottish MPs are not being excluded wholesale from voting on English only Bills and orders. You could be forgiven for thinking that this is what EVEL will do, given today's coverage, but you credit the UK government with more steel, more spine, than it possesses. This is essentially a feeble, milquetoast innovation. The whole-UK majority will still have the last word on English legislation, not English MPs. 

Take one very concrete, very controversial example: the SNP will still be able to block fox-hunting changes under the new rules. The point bears repeating. The power given to English MPs under this iteration of EVEL is asymmetric. The English majority can only block an England-only Bill it doesn't like. It can't insist that an England-only Bill it approves of is passed in the teeth of whole-UK dissent. Reason the implications of this through. Use the example cited by SNP MP Tommy Sheppard in his trenchant critique of yesterday's Commons vote. "The problem", he wrote:
"... is how you define what is a piece of England only legislation. The proposals say that it is where only England is affected geographically and is a matter where the Scottish (or Welsh) parliament can legislate separately. Sounds fair? But hold on a moment, sometimes things that happen in England affect people in Edinburgh. Let’s take the example of tuition fees. If there’s a proposal to increase tuition fees in England it would make it harder for students in Edinburgh to go to Newcastle or Manchester universities. It would also mean Edinburgh’s universities would have to put up fees for English students. Anyone telling me that the people who elected me wouldn’t want me to try to influence that decision?"
And as far as it goes, this is perfectly fair. It is argument I've made myself on previous occasions. You can't always just look at the "extent" section of an Act of Parliament to establish its impact. Some reforms have major financial consequences. Although money matters are voted on separately, an earlier Act can lay out the legal groundwork on which important spending decisions are built. You are unlikely to be able to persuade Tory MPs to vote down a chancellor's budget. You stand a much better chance of coaxing them into the rebel lobby on a narrower issue of educational policy. That's the animal politics of the thing.

But let's stick with Tommy's scenario. Say Nicky Morgan proposes to hike tuition fees to £20,000 per annum south of the border. She brings forward subordinate legislation to give effect to this policy. John Bercow gives it the nod: this is an England only matter. The House divides, twice. First, the English MPs vote on the policy. They are in favour. Scottish MPs are excluded at this stage. The proposal passes by a majority of 44.

Next, EVEL envisages that every MP, wherever they come from, whichever constituency returned them, will take the final decision. At this stage, say the government is defeated by one vote. What happens? The will of the whole-UK majority prevails. Fizzing, perhaps disgruntled, perhaps increasingly resentful, the English Commons majority will have to lump it. Tommy will have his say. All he is prevented from doing is participating in the English veto vote. If he can strong-arm, cajole and persuade enough Tories to rebel - he can still prevail. No fees hike.

Artistotle understood that virtue often sits between two extremes.  The courageous man is neither rash, nor cowardly. The generous person is neither a spendthrift, nor a miser. Sometimes, the same is true of the truth. The UK government hope to persuade us that this change will soothe ragged and increasingly resentful English spirits. A radical change, they say, curbing Scots assertiveness and restoring equity to our post-devolution kingdom. EVEL can only better secure the Union. This is cobblers. But so too is the alternative extreme, determined to depict this oh-so-mild EVEL scheme as the beast rising up out of the surf of the sea, fanged, horned and crowned, with the words "better together" branded on its seven monstrous heads. 

EVEL is a constitutional innovation which looks backwards, which is aimed at the now flyblown and forgotten Blair and Brown governments, propped up by their Scottish MPs -- not the politics of today. But -- whisper it -- EVEL is essentially a toom tabard. It is empty symbolism. Ah, you say, but symbolism is important. I agree. Disrupting the equality of parliamentarians in the Commons seems difficult to reconcile with sturdy unionist arguments about the sharing of common institutions on the basis of equality. But that's their problem. 

If you are scandalised by EVEL, you are almost certainly scandalised by this symbolism, or are labouring under a serious misapprehension about what the new rules will and will not do. You almost certainly don't give a damn about the procedural changes and their striking limitations. Forgive me, but the indivisible equality of members of the House of Commons is not a cause I'm prepared to pop a kidney over, however politically expedient or entertaining it might be to do so.

47 comments :

  1. This post hits the nail right on the head. EVEL is outraging Scottish politicians but I suspect that most ordinary Scots, like me, couldn't care less as it can only have negligible influence on everyday affairs. If this shuts up English Tories, I think we can put up with it.

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  3. Very fair honest and honest. So good to see a Nat with the intellectual honesty not to jump on the grievance bandwagon. It does seem to me that the whole thing is irrelevant to Scotland, and largely to the UK too, except in the future hypothetical scenario of a Labour government with an English minority. In that event we might have a constitutional conundrum set by a Tory trap - but at that point you'd also have a Labour government able to legislate further constitutional changes to rescue itself. The only way this is an outrage is if you're looking to be outraged.

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  4. Thank you, that's the clearest explanation I have read

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  5. If I understand correctly. A UK Lab govt with a minority of MPs in England, could be stopped by the Tories from introducing a single piece of England only legislation. England in effect would have no govt, but the UK, Scotland, Wales and Northern Ireland would?

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    1. Well that's an interesting point - would a UK labour govt without English majority actually be able to repeal EVEL or would it count as an English only matter? It appears it is essentially a device by which the Tories seek to hammer home their English advantage and as unseemly as it is, it should really be most concerning to the English not Scots.

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    2. One easy answer to that: these changes were introduced by a bare Commons majority. I am sure any future UK Labour government will simply pass a motion to get rid of the new standings orders, agreed yesterday.

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    3. Yes, in 2020 a majority Labour government could get rid of the new standing orders, but meantime, for 5 years, it appears that England is potentially in a worse situation than it was, with the West Lothian Question. Now the will of the specifically English voting group could actually be overturned by the UK majority - which could happen 2015-2020 with the help of a few Tory rebels or a by-election reduced overall majoirty.

      I daresay the media would be happy about that one, down in England.

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    4. "any future UK Labour government will simply pass a motion to get rid of the new standings orders" But could they? That might be easier said than done since it might well split the Labour vote. Or would they want to? If they campaign on mainly English matters they might have to commit to NOT doing that. I think you are making some very risky assumptions.

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  6. Good article LPW but I'm not so sure about the Act of Union (let alone the Treaty of Union):

    http://www.legislation.gov.uk/aosp/1707/7/section/III

    "That the United Kingdom of Great Britain be Represented by one and the same Parliament to be stiled the Parliament of Great Britain "

    Arguably perhaps that was broken in 1998 / 9, let alone by EVEL.

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    1. Precisely. As I argued in my earlier post, if we are going to be fundamentalist about it, and insist that the Act of Union must be unheld in all time coming -- the indyref would have been unlawful too. I don't know about you -- but that isn't an argument I'd want to insist on.

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  7. All very reasonable and correct, but as m'learned colleague Mr Douglas Daniel puts it:

    "It also means that there can never be a UK government that doesn’t have a majority in England. Imagine Labour somehow managing to win back Scotland, gaining a slim UK majority thanks to 50-60 Scottish and Welsh MPs, only for every single bill on “English-only” matters to be vetoed because the Tories have more English MPs. It would be ludicrous. The same would be true if we’d had the result many folk expected in May – a Labour minority backed up by the SNP when required."

    That the new English veto can only be used to block bills rather than force them through is undoubtedly a fact worth noting, but the blocking bit is surely still a potential problem?

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    1. Has there ever been a UK government that didn't have a majority in England?

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    2. Yes, for 18 months in 1964.

      http://wingsoverscotland.com/why-labour-doesnt-need-scotland/

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    3. My point exactly. Once in a blue moon.

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  8. "Forgive me, but the indivisible equality of members of the House of Commons is not a cause I'm prepared to pop a kidney over"

    I can't help but disagree: disenfranchisement is disenfranchisement no matter how you dress it up. As bad as the Westminster system is, there are still depths to which it can plunge, and this was a little paddle further down to the pelagic abyss. It doesn't matter how minor the vote is, or whether it can end up being failed on a UK-wide level in the end: the fact of the matter is that certain UK MPs elected to the UK parliament are prevented from participating in a UK vote based purely on their constituency. It's a dangerous precedent.

    "What happens? The will of the whole-UK majority prevails. Fizzing, perhaps disgruntled, perhaps increasingly resentful, the English Commons majority will have to lump it."

    And what happens next? MPs will be demanding that EVEL be strengthened. They could point out that a bill which passed a stage where only English MPs could vote might defeated by another stage where other nation's MPs could (i.e. foxhunting). They could easily gerrymander it so the English-only stage is packed with loyal Tories, so that the rebellion/abstention necessary to defeat a Tory majority in the final reading could be pinned to Scottish, Welsh and Northern Irish MPs' "interference." Having successfully passed this standing order, outraged Tory MPs would then be pressing to strengthen the legislation, emboldened by fostered resentment and pointing to concrete examples of Scots/Welsh/NIrish MPs "overruling" the will of the English electorate.

    You said it yourself: you can't always just look at the "extent" section of an Act of Parliament to establish its impact.

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    1. I've some sympathy with the "thin end of the wedge" argument. I agree -- the current weak, weak, weak EVEL rules are incapable of satisfying the Oscar the Grouch tendency.

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  9. I can only say I understand why our political parties are trying to make hay with it - we don't exactly get a fair press, and sometimes even I find that hard not to get angry at

    Truthfully I think Scotland has just been gifted her independance, can you imagine the outrage when the English realise they have been duped - we have just been gifted an insight into the rebels - their numbers, their arguments, their reasons ...all on display before we raise a finger.


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  10. Whilst your examples appear to hold water, based on the paper thin difference between Tories and Labour of late, and the current parliamentary make up I think it is almost inevitable that this ill conceived hash WILL be used to lock out Scottish MPs.
    On the plus side, anything that hastens the final end of this political dodo bird...

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  11. Sorry, but the basis of my fury is the effective disenfranchisement of the electorates of Scotland, Wales and Northern Ireland, whose votes are rendered as being less worthy and effective than those of English voters in the UK parliament.

    It may, as you say, not be something to require renal dialysis, but it remains an attack on the political viability of the people of the nations/regions of this UK parliament who don't happen to be English.

    If the English, as a nation, want to be autonomous and have an equal voice, they need to set up a devolved English parliament and not co-opt Westminster as their sad mechanism. The Tories AND the Labour parties believe Westminster is the English parliament, and see no need to set up a separate institution, to the detriment of the entire electorate of the UK.

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  12. Peatworrier, as I've said to you previously on this matter, you grossly underestimate how symbolic EVEL is. It is an admission the union is over.

    Dividing a UK parliament into separate voting blocs for English, Welsh, and Scottish MPs, is no less than the unravelling of the union. EVEL is a deadly threat to the union, it strikes at the unity of this island, and unionists of yesteryear would recognise this clear and present danger that EVEL presents.

    Symbolism is important. By changing the Scottish executive to the Scottish Government, the SNP pulled the trick of making Scotland sound like a sovereign nation in its own right. That unionists didn't cotton on to this at the time, still amazes me.

    Symbolism. When people start sending their tax money to Edinburgh, and not London, the union erodes once more...

    When people wonder why their MPs can vote on this, and not that, we may well wonder why they bother sending them to London at all...

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    1. I don't disagree with this. But as I say, this is the unionists' problem and their misstep.

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  13. What about English-only legislation that proposes tinkering in substantial ways with the NHS in England that has Barnett consequentials for Scotland?

    And it still doesn't address another assymetry - English MPs could still vote on Scottish only bills, for example, foisting an unwanted nuclear power station on us.

    Again, it raises the issue of what is Scotland-only, or England-only.

    The only positive for me is that it blows away the legal argument made last year that UK is a unitary state.

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  14. And there is the further point that Chris Grayling said that this was just the start, and that he saw it as a work in progress....

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  15. Naive question, perhaps, but doesn't EVEL preclude Scottish MPs from becoming Prime Minister or Ministers of State?

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    1. Yes, but not technically, just politically. If a party had a Scottish leader and then became the government, the Scottish PM would be unable to vote for their own English-only bills, as would Cabinet members who also had Scottish seats. That would be a bit of a political handicap. Would the party be willing to have Scottish MPs in such prominent positions? They could of course get round that, by making exceptions to the general rule in the case of the PM and Cabinet, by passing some kind of bill, but realistically that's not going to happen. The English will not tolerate a Scottish PM. Look what they did to Brown. I am no fan of his, but even I could see that he wasn't hounded out of office for his personality flaws, but for being Scottish, and unacceptable politically to an English electorate. Quite why he has continued to believe in Britain is a mystery to me, given the way he was treated by the English media and political establishment. Has the penny dropped now, I wonder?

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  17. There is not a Scotsman alive that is against EVEL in principal but the way things have played out over the last few years leaves a seriously bad taste. Let's start with the refusal of the 2nd question at the Indy ref only to throw an offer in a week before votes were cast. Then we had the sham of Smith. This is then watered down in the Scotland bill with every amendment thrown out, the majority of English MPs never bothered to sit through the debate only turning up for the vote, a utter disgrace. I have said this before on other sites but at start of Indy ref I would have preferred a proper federal UK. This would have included an English parliament maybe in Manchester for example, ditch the house of Lords and have a proper elected UK senate based in Westminster. With good will this new modern Union may have lasted another 300 years but its went too far now it has to be full indepence. At the end of the day England gets what England wants because of the numbers in HOC, what percentage of bills are really shot down because Welsh, Scottish or N.Irish MPs voted no. Devolution was a complete fudge from the start and without totally ripping it up which will never happen the union is on borrowed time. In many ways the Tories are doing a lot of the work for the cause of Scottish indepence. I know maybe about 30% no voters are hardcore unionists no matter what but the soft no,s are watching and from what I can gather lots are regretting their decision and are crossing over, there is none going the other way

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  18. "... if the majority of English MPs did not support the proposals, they fail." And therein lies the problem. If a party or coalition managed to command a majority in the UK but not in England the government would in effect not command a majority in the legislature for part of the country it is supposed to govern. The government's legislative programme would be scuppered. EVEL is designed to give the Tories permanent control of England without the inconvenience of regional assemblies elected by proportional representation. A system under which the Tories would unlikely ever achieve a majority.

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    1. And this is the key point that the author of this blog fails to address, which will with certainty come back to bite him in the arse

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    2. But EVEL precisely *can't* give the Tories permanent control. Parliament can no more bind its successors on procedure, than it can on the law. If a UK majority can be formed hostile to these EVEL rules, they can be abolished or altered.

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    3. Wouldn't abolishing or altering EVEL be an England only matter that would require a majority of MPs from English constituencies to achieve?

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  19. Andrew 'EVEL is a constitutional innovation which looks backwards, which is aimed at the now flyblown and forgotten Blair and Brown governments, propped up by their Scottish MPs -- not the politics of today.'


    I predict in 5 years no one will bother their arse about EVEL and its symbolism / application. Like a homeopathic salve you can apply it or not apply it - to the same effect it seems.


    Jamie Saxt believed that presbyterianism was incompatible with monarchy - well, fast forward a few centuries past a decapitated son and a war of three kingdoms, into our own time, and the monarch is head of a COE which retains bishops, while in Scotland she is an attendee at Kirk services, a Kirk she has sworn an oath to defend. There are more anomalies there than you can shake a black rod at, yet at the end none of it matters very much.

    No system of govt bears close examination, just look at Periclean Athens or Mathesonian Glasgow: constitutional anomalies are the least of it. We can live with EVEL.

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  20. I know this is a legal blog, but in this case legality is irrelevant. The political symbolism is relevant, and is huge. It would be perfectly in line with the 'rules' such as they are for a Scottish MP to be Prime Minister. But would it be politically possible now. I would say no. And that symbolic wedge will only grow. Say, the Labour Party, were to put rescinding of this measure in a future manifesto. The Tory press would crucify them.

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    1. I'm sorry Derick -- but I have to insist what the rules do and don't do are relevant. I've seen countless memes and tweets in the last few days, which completely misrepresent what EVEL actually does. I sympathise with confusion around this. It is complicated. But criticising EVEL for locking Scottish MPs out of all decision making is just peddling falsehoods. The arguments you make are distinct - and perfectly defensible. But let's get the indictment right.

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  21. The Tory's have been down to the beach and lifted a settled stone. Now we will see what nasty beasties crawl out.

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  22. A much better explanation than I have seen elsewhere. I don't agree that Westminster and equality of the members of the House of Commons doesn't matter as you conclude in the last paragraph, but a good explanation, none the less.

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  23. But what will this legislation become, where will it lead to, what will it ultimately do to Westminsters beloved union?

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  24. The veto at the England-only stage could, and probably would, be used to make legislation either redundant or unworkable. The ultimate power of UK-wide MPs to vote on legislation afterwards will mean very little if those parts of the legislation that actually have any import are removed. This will prove to be an exceptionally powerful means by which to delay/undermine/scupper legislation.
    As for revoking the introduction of this stage in the voting procedure, now it's in it will be very difficult for any government to remove it.

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  25. How many bills are there that are England-only? And how many bills are there that are UK wide but have an English dimension which can be used as a pretext for embellishing more constraints on the rest of the UK?

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  26. A bill is certified as England-only -

    Q1: Would a Scottish MP be able to get an amendment tabled, where he/she believes that a bill does impact on something devolved to Scotland, or is likely to lead to financial consequences for Scotland?

    Q2: Would the amendment to the bill would be blocked by English MPs?

    I'm not sure about the answer to Q1, but I assume the answer to Q2 is Yes.

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  27. Am I right in thinking that the Speaker of the House is the one who decides which bills are English only? Is that in itself not a scary thought? Should it not be a committee of cross party MPs from the constituent parts of the UK who scrutinise a bill to see who it affects?

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  28. The thought occurs to me that we may be looking at this bill from the wrong angle,its fine for only English MP,s to have the final say on bills that affect England only.The part that comes to my mind is this do the Scottish MP,s have veto over bills that may only affect Scotland similarly with the Welsh and N.Ireland MP,s i.e. the nuclear warheads were chased out of Greenham Common,and parked here in Scotland Scots MP,s had no say,Trident and the Trident replacement will Scots MP,s have veto as it will only affect us especially if somebody press' the button to attack the base! or an accident not the minor ones,that have happened, but a big one that contaminates the central west coast of Scotland,we don't have a say but EVEL should be implemented here as SVSL ,WVWL ans N.I.VN.I.L equality for all,and of course an English Assembly.Tongue is firmly in my cheek.

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  29. Isn't the main issue as the Scotland bill and rejection of amendments made clear: the lack of a reciprocal arrangement for Scotland? SVSL?

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  30. Scottish MPs should not be allowed to vote on English policing, education, health or other matters that are devolved to the Scottish, Welsh or Northern Ireland parliaments.

    The problem with EVEL is not the democratic principle but the chosen solution. Westminster is the UK Parliament, not the English Parliament. The solution to the West Lothian question should be a separately elected, devolved, English parliament. That way each nation of the UK would have an agreed level of devolution and Westminster would deal with matters that are not devolved. The EVEL solution passed by the Conservatives doesn't do this. Instead, it hijacks the UK parliament for English matters and potentially gives a greater level of devolution to England than the other nations of the UK enjoy. English MPs will potentially have power over matters that indirectly, and sometimes directly, affect the other nations of the UK. There is also a possibility that decisions by the Speaker about what constitutes an English only matter will end up being challenged in the courts.

    So, in summary, I completely support the concept of EVEL but the solution chosen by the Tories is flawed.

    I suspect that the reason why the Conservatives don't want a devolved English parliament is because it would need to be elected by proportional representation under which their domination of English politics would most likely come to an end.

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  31. Interesting to compare the Evel debate with this one on a change to standing orders of the Scottish Grand Committee held in 1981. How things have changed!
    http://hansard.millbanksystems.com/commons/1981/jun/16/scotland-government

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