Bob Morris, of the Constitution Unit at UCL, has provided this guest post on the latest constitutional fall-out from the Scottish referendum/devolution debate. He would welcome reactions from L&RUK readers.

Yes, from Evel (ie English Votes on English Laws), not evil as in sin.

But, surely, now there is devolution all round except in England it must be right that Scottish, Welsh and Northern Ireland MPs should not be able to vote in Parliament on matters affecting only England when English MPs cannot vote on issues devolved to the other assemblies. As part of the reaction to the politics of the Scottish referendum, the government is accordingly considering again how Evel might be encompassed.

England only laws are relatively rare but one example currently before Parliament – Bishops and Priests (Consecration and Ordination of Women) Measure – would permit the appointment of women bishops in the Church of England. There could hardly be a more obvious example of an English law since the Church of England is disestablished in Ireland and Wales and was never established in Scotland. The Ecclesiastical Committee of Parliament, set up under the Church of England Assembly (Powers) Act 1919, in its 233^rd Report on 30 September declared that the relevant Measure was ‘expedient’ and it will come before both Houses accordingly for a final vote.

If by then Evel were – say – in place, should only English MPs be allowed to vote on the Measure? By convention the 15 Commons members of the Ecclesiastical Committee are all English MPs and it would seem right to keep it that way. (In the Lords things are, of course, different: peers do not sit for territorial constituencies and, indeed, not all their 15 members of the Ecclesiastical Committee are English – two are Welsh-born and one of those also a stipendiary Methodist minister.)

But is this drang nach Englischismus quite right? Some counter-indications include the following:

• The Measure contains important gender equality provisions and exceptions which touch on UK-wide preoccupations. One provision amends the Equality Act 2010 to make it clear that appointments under the Measure will not be ‘public appointments’ in the sense of the Act – a point difficult to comprehend at first sight when all nominations pass through the Prime Minister and are approved by the Queen. Further, in practice male and female bishops will not have equal authority.

• Some MPs sitting for non-English constituencies may have special knowledge and cogent views on the Church whose contributions could be particularly well- informed – Chris Bryant (MP for Rhondda and a former Anglican priest) comes to mind.

• There are Anglican Communion Churches in Ireland, Wales and Scotland on whose behalf MPs for those countries might wish – legitimately? – to comment and vote on a matter with potential implications for those Churches.

• There is also a number of senses in which the Church of England is dominant in the public religion of the UK as a whole and not just limited to England. The Church officiates at a number of UK-wide events such as coronations, war remembrance, funerals and memorial services for the UK great and good. In those senses it is a UK body.

• There is also the point – for those keen on ‘fairness’ – that 26 bishops of the Church of England sit in the House of Lords with full UK-wide voting rights and are not shy in using them.

• The wider Anglican Communion – in parts of which priestly gender-equality is intensely controversial – has no direct voice but it could contribute to and enrich Parliament’s consideration if that constituency’s concerns were articulated by an MP (and not necessarily by one from an English constituency).

• Scottish, Welsh and Ulster MPs all made interesting and worthwhile contributions to the debates on the Succession to the Crown Bill’s religious dimensions.

Admittedly, the Succession to the Crown Bill could never have been regarded as an England-only Bill. The point, rather, is that the ability of non-English MPs to participate illustrates the extent to which our union state with all its anomalies is nonetheless a collective entity not to be carelessly sundered by some narrow – and politically self-interested? – notion of ‘fairness’. If even a Measure of this kind struggles to be classified as an England-only project, then it may be understood how infrequently the ‘unfairness’ is likely to arise. But for dealing with this rare eventuality it appears proposed that different classes of MPs should be created in the same chamber – hardly a recipe for binding the union together.

Yet, ‘Remember 1927/1928’, it might be said of events during the Conservative Baldwin government. Then, a Measure to introduce a revised prayer book in England was twice voted down, on the first occasion – but not the second – by the votes of Scottish, Welsh and Irish MPs. They – and large numbers of Conservatives (160 opposing in 1927 and 162 in 1928, including more than a quarter of the Conservative front bench in 1928) –thought they had reason: the majorities on both occasions considered that they voted to protect a British Protestant identity.  [See Maiden J. (2009) National Religion and the Prayer Book Controversy, 1927-1928 (Woodbridge, Boydell).]

Preserving the possibility of repeat in different circumstances may be no bad restraint on the possibility of the Ecclesiastical Committee becoming captured by a client with whom it is normally in close sympathy. The 1919 Act’s unique arrangement does not mean that Parliament granted an unlimited free pass to statutory privilege for the internal regulation of what was even by then, in practice, a voluntary society.

All that said, on this occasion it seems very unlikely that Parliament – collectively – would wish to impede the change sought. There is, of course, more – much more – to be said on Evel. Some of it may be found here and here.

This has been cross-posted on the Constitution Unit website.