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English Votes for English Laws — Motion to Take Note

– in the House of Lords at 7:15 pm on 21st October 2015.

Alert me about debates like this

Moved by Baroness Stowell of Beeston

That this House takes note of the Government’s proposals on English Votes for English Laws.

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Leader of the House of Lords and Lord Privy Seal 7:17 pm, 21st October 2015

My Lords, as always I am pleased to be able to open a debate in your Lordships’ House. The debate this evening is about the Government’s proposals for English votes for English laws. The last time we convened to discuss this subject, I made it clear that I was keen for the House to have a further opportunity to put its views on the record before the other place makes its decisions on the proposals, and that is what we are here to do. Noble Lords will know that the Government are passionate supporters of the Union. We are determined to strengthen it and secure its future, and greater devolution to all parts of the country is part of that plan. It runs alongside measures and the commitments and promises we have made to the people of Scotland and the other powers that we are devolving to other parts of the United Kingdom. We believe that for this settlement to be fair and lasting, it means giving English MPs a decisive say on matters that affect only their constituents.

That is what our proposals for English votes for English laws will do. It will give the English a strong voice on English matters while at the same time respecting the right of every MP from every part of the United Kingdom to debate and vote on every piece of legislation in the House of Commons.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

My Lords, I am sorry to intervene at such an early stage. The noble Baroness will recall that this House divided on a Motion to set up a Joint Committee of the Commons and the Lords. I wonder if she can tell the House what response we have had from the Commons to that proposal.

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Leader of the House of Lords and Lord Privy Seal

The noble Lord is quite right and I can assure him that I will come to that matter in my remarks. There is no way that I would seek to ignore that important point.

As I have said, our proposals will give the English a strong voice on English matters and we will respect the right of every MP from every part of the UK to debate and vote on every piece of legislation in the House of Commons. What we would argue is that our approach is pragmatic and proportionate. As noble Lords know, we do not propose to give English MPs a Parliament or the right to initiate legislation alone. What we are proposing instead is simply that where legislation affects England or England and Wales only, it cannot progress against the will of English or English and Welsh MPs. Just as the proposals are pragmatic, so they are flexible. Before the Summer Recess, Members of both Houses called for more time for reflection, and my right honourable friend the Leader of the House of Commons pledged to take the proposals away and consider them further, and that is what he has done. In that time he has listened to representations from a variety of sources, and has given evidence to and engaged with several committees in the other place. He has now come forward with his revised proposals which take account of the concerns raised. The end result is a workable and sensible model to deliver English votes for English laws.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat Leader in the House of Lords

My Lords, I have raised the question before of what happens when your Lordships’ House passes an amendment to a Bill which then goes, in the normal way, to the House of Commons and the House of Commons agrees with the amendment, but English, or English and Welsh, Members do not. As I understand the proposals, that would not then become law. However, we have a piece of legislation—a clause, perhaps—that has been passed by both Commons and Lords. What are the implications of the Government’s proposals for the sovereignty of Parliament; and what actually constitutes law?

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Leader of the House of Lords and Lord Privy Seal

Your Lordships are asking questions that I am going to cover: I can assure you that this speech will not take me long. We have all had a busy day and want to crack on. The simple answer to the noble and learned Lord is that this House will consider legislation in exactly the same way as we do now, and when the Commons considers our amendments it will send us a message. I will deal with the noble and learned Lord’s point in a moment, when I come to precisely how things are going to work.

This is the fourth time that we have debated these proposals. I do not want to go through them all again in great depth, but I will remind noble Lords of the four main stages where they bring about changes to the work of the other place. The first is the certification process, where Mr Speaker will decide whether these new provisions are engaged when a Bill reaches the House of Commons. In previous debates, some noble Lords were concerned about the burden that that might place on Mr Speaker, as well as the procedure in the Commons. In response, the proposals have been revised to allow him to draw upon the advice of two members of his Panel of Chairs, nominated for the purpose, enabling him to call on assistance where he thinks it is required.

The second significant element of these proposals is the introduction, for Bills which wholly affect England only, of an England-only Committee stage. We consider that to be a simple, effective way to strengthen the voice of English MPs in the legislative process and so that element remains unchanged.

The third is the inclusion of a new step in the legislative process—a legislative Grand Committee—for Bills affecting England, or England and Wales only, before Third Reading. This will ensure that such legislation can pass only where a majority of English, or English and Welsh, MPs agree to it. However, our revised proposals set out explicitly that although only English, or English and Welsh, MPs may vote in legislative Grand Committee proceedings on Report, all MPs will be able to speak and contribute in that Committee. Members of the other place were concerned to make it absolutely clear that that was the case and my right honourable friend the Leader of the Commons has revised the proposals to do just that.

Finally, returning to the point made by the noble and learned Lord, where our amendments are considered in the other place, and the English votes for English laws procedures are engaged, although all Members of Parliament will vote on them where they affect England, or England and Wales only, they will need the support of a double majority in the House of Commons of both the whole House and of English, or English and Welsh, MPs in order to pass. This too remains unchanged.

Under these proposals, MPs from across the United Kingdom will continue to vote at Second Reading, in most Committees, on Report and at Third Reading and when considering Lords amendments.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

My Lords, I am most grateful to my noble friend for giving way. Would the English issues which this English Grand Committee would deal with include English income tax?

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Leader of the House of Lords and Lord Privy Seal

That is something which we have clarified. The English votes for English laws procedures will relate to English tax measures. My noble friend asked this question last time we debated the subject. The amended procedures, which the other place will debate tomorrow, will clarify that English votes for English laws procedures will apply on taxation matters which relate only to England. The way in which MPs consider supply estimates remains unchanged: all MPs will be involved in supply estimates in the same way in the future as they do now. My noble friend rightly made the point about English taxation when we debated this last time, and the greater devolution powers that will be in place for Scotland. We have clarified this for those who quite rightly want to know that that is the case.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

What if a Government have to raise taxation through income tax? If we had a Labour Government who relied on Scottish MPs for their majority but did not have a majority in England, would they be unable to get their income tax proposals through the House of Commons because there would, in effect, be a veto from the English MPs? Does that not drive a coach and horses through the whole system?

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Leader of the House of Lords and Lord Privy Seal

What I would like to do, if my noble friend will allow me, is to finish laying out the basic provisions and propositions as they have been put forward by the Government and will be considered tomorrow. I will wind up this debate and will be absolutely clear in my closing remarks.

As well as being pragmatic and proportionate, these proposals are being introduced in a way which allows some flexibility. Should they be approved by the House of Commons tomorrow, they will be subject to a rigorous process of review to make sure they work as intended. That reflects just how much we want to get them right and how the spirit of careful consideration and reflection shown so far will continue as we move forward. That review process will not be a matter just for the House of Commons. I said before the summer—and I say again now—that these proposals are not intended to make any changes to the procedures of this House. The powers we have, and our role in the legislative process, will remain exactly the same. Yet our debates before the summer demonstrated the concerns of noble Lords, which were properly rooted in the desire to preserve the important role that this House plays in the legislative process. I see it as my duty to reflect that within the Government and that is why I am pleased to say that, after consultation with my right honourable friend the Leader of the Commons, he has invited the Constitution Committee of your Lordships’ House to feed in its views on these changes. I am pleased to hear that that committee has considered the invitation and intends to take up the opportunity. I note that my noble friend Lord Lang will speak this evening and he may want to expand on this in his contribution.

I know that some noble Lords hoped to set up a Joint Committee to examine these issues, as the noble Lord, Lord Foulkes, has highlighted. I recall that there were very strong feelings expressed in your Lordships’ House when we debated this in the summer. The House divided on the matter and that made it clear that noble Lords felt strongly about it. However, I see that an amendment has been tabled in the other place to the proposed English votes for English laws Standing Orders which proposes to agree to the Lords’ message about a Joint Committee. Whether that amendment is selected will be a matter for Mr Speaker, but the Government’s view about the Joint Committee could not be more clear. As I said during our previous debate, we were elected with a clear mandate to take forward English votes for English laws as part of a fair and balanced settlement in the United Kingdom. Just as we are getting on with devolution elsewhere, we believe that we have a clear mandate to get on with English votes for English laws as well. There will never be a perfect solution, which I said when we debated this previously. This matter has been around for a long time. It has been debated for many years and considered in many forms.

As I said in the summer, there has been a lack of political will to see progress in this area. That is no longer the case. This Government want to get on with the job that we have been elected to do. I assure noble Lords that the involvement of the Constitution Committee is a good part of the review process. It is clear that that contribution will be important to the review process taking place next year. No one will be more vigilant than me in ensuring that any potential effects of these proposals on this House will be considered when we look at that review process. I will be mindful of the responsibility on me, not just as a member of Her Majesty’s Government but also as the Leader of this House. I hope very much that I have been able to give noble Lords an opening. I will of course respond at the end of this debate with the assurance that noble Lords are looking for that we will have an opportunity to feed into the process of review in due course. I beg to move.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Shadow Leader of the House of Lords 7:31 pm, 21st October 2015

My Lords, I listened carefully to the noble Baroness and I have to say that I had a sense of déjà vu. I had heard a lot of the content of that speech before because it was similar to previous ones. I do not intend to raise all the constitutional arguments that I have raised before. Other noble Lords are far better qualified that I am to address such issues. Perhaps I may say that the concern of this House is not how these measures will operate in the House of Commons. A lot of the noble Baroness’s speech was devoted to how they affect how legislation is dealt with in the House of Commons. The concern expressed by your Lordships’ House is how it impacts on how we address issues and our role. I do not consider that that was addressed properly.

When the noble Baroness came to the end of her comments, she did not address the remarks made by the noble Lord, Lord Forsyth, which are of enormous concern. As she knows, any Government have a right to get their legislation through. They are unable to do so if they lose the right over their taxation powers for the UK. I suggest she comes back to that at the end of her comments because it was rather confused. She used the word “clarify” a number of times. She said that the proposal was pragmatic and proportionate, which has left me feeling rather puzzled.

The noble Baroness will recall our conversations in September just prior to the September sitting, for which this debate was originally scheduled. She made a decision to remove the debate on this issue from the September sitting and instead have a debate on the size of your Lordships’ House. We did not concur with the judgment on that but she explained that one of the reasons she did not want this debate during that sitting was because we had not yet had a response from the House of Commons to our request for a Joint Committee to look at this issue. Last Friday, I wrote to the noble Baroness—the letter was delivered to her office—to ask her whether I was right to assume that a response was now available since the debate had been rescheduled for today. I have not had a response. Neither am I aware of there having been any response from the House of Commons to your Lordships’ House on that request. I know that there is a debate tomorrow but that is not the issue. Why are we having the debate today? What has changed since September? Perhaps I can answer my own question: if we are very clear about it, the only reason we have this debate today is because tomorrow there is to be a debate in the House of Commons and the Government have tabled pages and pages of amendments to the Standing Orders to be voted on. Therefore, this convoluted and complicated measure will be voted on in the House of Commons tomorrow, without any response having been received by this House to our request for a Joint Committee.

I note what the noble Baroness said about Graham Allen’s amendment on the setting up of a Joint Committee and how that would inform this House, but that will be tomorrow. We will not have the benefit at all of knowing the view of the House of Commons on this debate. I ask her to explain why the debate was scheduled for today when we have no response from the House of Commons and it is not debating the matter until tomorrow. I do not think that her response was good enough. I presume that she talks and liaises with Chris Grayling, the Leader of the Commons. It is very unfortunate that the Government’s choice of timetable for debates in the House of Commons has not provided the opportunity before this debate to have the debate on the specific issue of whether it would have a Joint Committee with your Lordships’ House to look at the implications. Why could that not have been done before now and before our debate? It would have been very helpful for informing this debate.

As the noble Lords, Lord Butler and Lord Lisvane, have said previously, there is no urgency about these changes. That is what I do not quite understand about why there is this rush for the debate tomorrow. The changes proposed by the Government will not make any difference in this Parliament. It would have been courteous to this House, as well as for good governance, for the Government to have allowed the House of Commons a full debate at our request. That worries me because it appears that we have a Government who do not like scrutiny or challenge, which are very important in ensuring good governance and good legislation.

I would be very happy to be corrected on this and I hope that the noble Baroness can do so but I am pretty sure that the Government will be whipping their MPs to vote against a Joint Committee when this is debated tomorrow. If she can tell me otherwise, I would be very grateful. I would give way instantly to allow her to correct me on whether the Prime Minister is whipping his Members to vote against a Joint Committee with your Lordships’ House.

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Leader of the House of Lords and Lord Privy Seal

The noble Baroness is asking me to provide information on whipping arrangements in the other place. The point I make to the noble Baroness and to the House—I have already made it—is that I was very clear when we debated this matter in the summer that we as a Government did not support a Joint Committee to look at the constitutional implications of these measures. We felt, and still feel, that there is no perfect solution to English votes for English laws, and that it is of great importance and goes to the heart of delivering fairness within the United Kingdom. We have come forward with a set of proposals which build on the many different debates that there have been on this matter. We want to implement them and ensure that they are properly reviewed after they have been tested in real time in this Parliament. That was our position then; it remains our position now. Clearly, it is for the House of Commons to consider the message that we sent and I am pleased that an MP has tabled an amendment in order for the House of Commons to consider that issue. But it is the Government’s position that we do not support a Joint Committee.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Shadow Leader of the House of Lords

I always like to be helpful to the noble Baroness and give way when she asks, although it might have been better for her if I had not given her the opportunity on that occasion. Without being too unkind, she consistently refers to “we” and the Government. I understand that. But in this case—the proposal for the Joint Committee—the “we” in question is her role as Leader of this House. I say that in all sincerity. All I was asking was whether the Government were whipping their Members to vote against a Joint Committee, which would be very helpful to know. It was not a party-political issue when it was raised. It was raised by all parties and no parties.

Photo of Lord Tyler Lord Tyler Liberal Democrat Lords Spokesperson (Constitutional and Political Reform)

I wonder whether this is the right moment to remind the House and the Leader of the House that what happened after she made that Statement by the Government about their lack of support for this proposal, was that this House, of which she is a servant, voted by 320 votes to 139 votes to express clear support for that mechanism. Is she now saying that she is ignoring a vote of this House?

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Shadow Leader of the House of Lords

I am not quite sure that that was an intervention on this speaker. The point I want to make to the noble Baroness is that, when a Motion is passed, it is the property of this body, of which she has the great opportunity to be Leader. I think she is probably not the only person in your Lordships’ House who aspires to that.

I want to go back to this. If there had been such a debate in the House of Commons, it would have given some comfort to the noble Lord, Lord Butler, that it had been properly considered by Members of the House of Commons, even if it had been rejected. It would have given us some confidence that it had been considered and that it was their considered judgment that they did not think it necessary. If it had been rejected, the House of Lords would have been able to say, “Right, what should we do? What processes should we go through to reassure ourselves that we can properly investigate and assess whether those measures have any impact on how we operate?”. That is all that was being asked. It would have been preferable to work together, for both Houses to examine this, rather than just one House—your Lordships’ House—looking at it alone. A debate in the other place on this issue prior to today would have helped inform our deliberations and discussions this evening. Very important constitutional issues are being raised. If any constitutional issue is rushed when it is not essential or necessary to do so, every opportunity should be taken to consider it properly.

I ask the noble Baroness a very specific question: has she at any time raised the request from the House of Lords for a Joint Committee directly with the Leader of the House of Commons or the Prime Minister, either in Cabinet or in a Cabinet committee? I appreciate that it is not always straightforward and easy. As the noble Baroness indicated, she has a responsibility as a Cabinet member, as a member of the Government and as the Leader of the Government in your Lordships’ House. However, she also, as she has been reminded by noble Lords, has a role as Leader of your Lordships’ House across the parties. I appreciate that it can be difficult; every Leader has to navigate that. However, the point was made by the noble Lord, Lord Tyler, that the majority in favour of a Joint Committee was 101.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Shadow Leader of the House of Lords

Sorry, it was 181. I am glad to be corrected on that. When the noble Baroness commented, she said that “some” noble Lords would have preferred a Joint Committee. More than 300 Lords wanted a Joint Committee. It was a massive majority. I do not recall another majority like that. She should have heard those voices loud and clear. All she said at the Dispatch Box today was, “We in the Government don’t think it’s a good idea”. Actually, we in the House of Lords think that it is a very good idea.

The Government are suggesting a significant and unprecedented change to Standing Orders. As a House, we should not comment on the effect of the Government’s proposed changes on the other place other than on how it affects the Government as a whole, not on how it affects debates in the other place. I know that the noble Baroness used the word “clarity”, but there is a distinct lack of clarity as to how it affects us and in what way.

I listened carefully to what the noble Baroness said when she said that Chris Grayling, as Leader of the House of Commons, has invited our Constitution Committee to, in I think her exact words, “work with” the Commons Procedure Committee to monitor the working of the new Standing Orders in the first year. What does that mean? If he wants the committees to work together, what is so wrong about having a Joint Committee to look at these issues? If she is talking about looking at how the new Standing Orders work in the first year, can she tell the House which Bills the Government expect to be affected in the first year so that the committees will have an opportunity to evaluate how they will work?

I am disappointed to say this, but this whole saga is becoming symptomatic of the Government’s approach more generally. It is not good government to rush such matters through without proper consideration. I would like to see much greater analysis of the constitutional position, as well as examination of the consequences, intended and unintended, so that any potential problems and difficulties are addressed now. As I said to her before, I would much rather know early on whether there are potential difficulties and problems so that they can be dealt with and addressed, rather than, two or three years down the line, having a constitutional crisis that nobody has thought how to address.

In raising this issue, as in others, it seems that the Government see any opposition as a threat or challenge, not as an opportunity to improve legislation or to get things right. I am convinced that the only reason why your Lordships’ House raised this is because it was concerned that the Government should make good legislation and not get into a constitutional crisis over this. All Governments have the right to get their promised legislation through Parliament. That is an absolute. However, we have seen half-baked and half-formed legislation put before this House. I understand that that happens. I was a government Minister myself; we all know that these things happen. However, my serious concern, which is relevant to this debate and to the wider operations of your Lordships’ House, is that the Government either seek to ignore what we do or overreact to the House of Lords expressing a different view and offering advice or suggestions to the Government.

On Monday evening, we had the Government briefing journalists that if this House voted against the tax credits statutory instrument then the House would be “suspended”. That is nothing short of outrageous and appalling. Parliament does not belong to the Government and the Government cannot dictate how Parliament acts, just as the House of Lords does not and should not dictate to the Government how they act. We know our role—you could say we know our place—but we have a duty and a responsibility sometimes to get the Government to think again or look at something again. There needs to be a much greater understanding of our respective roles and respect for them.

Your Lordships’ House made a simple, moderate request to the House of Commons that a Joint Committee be established to examine any possible effects of the proposed changes they are considering in the other place on the way we operate our business. That does not stop the Government proceeding with the proposals or hinder them from going ahead with them. It merely asks that we work together, in a Joint Committee, to find a way through any potential problems. What could possibly be so dangerous or difficult about that?

I have raised this simple question to the Leader of the House before in a different way: can she tell us what action she has taken to advocate and express the views of this House on this issue of how English votes for English laws affects the House of Lords? Can she tell me what response we have had, in the absence of any response to our request to the Commons so far?

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

The noble Baroness made a very passionate speech, much of which I agree with, explaining the importance of maintaining the conventions between the two Houses of Parliament. Should that not extend to the convention that we do not vote on secondary legislation?

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Shadow Leader of the House of Lords

If the noble Lord looks at the various documents in your Lordships’ House from the committee on conventions, he will find that there are circumstances where it is appropriate to vote on secondary legislation—not many, I grant him; it is not something that should be done easily, regularly or without great thought. This is the point I am making: these are things that we have to look at, consider and not ignore in looking at our respective roles. I can assure him that we remain signed up to the Salisbury/Addison convention, but we also look for opportunities where we should act within those conventions and the guidance we have to challenge the Government to say, “Think again, look again; you do not always get it right first time”.

Photo of Lord Tyler Lord Tyler Liberal Democrat Lords Spokesperson (Constitutional and Political Reform) 7:47 pm, 21st October 2015

My Lords, I can respond directly to the noble Lord, Lord Forsyth, because I served on the Cunningham committee on conventions. There is no such convention on secondary legislation. Indeed, I recall a number of occasions when the Conservatives moved fatal, wrecking amendments to SIs during a Labour Government. His point can be dealt with quite quickly.

Normally my noble and learned friend Lord Wallace of Tankerness would lead for these Benches, but as Members will know he took a leading part on the previous debate on the Energy Bill. Since he has unique experience in this House, the other House and Holyrood—and in government at both ends of the country—I have benefited from his wisdom in preparing my contribution.

I and my colleagues have long argued that we need proposals for devolution within a federal constitutional framework, so we accept that there is a question to answer. We are not people who think that the English question is best not asked. Indeed, we gave evidence to the McKay commission on that basis—I was involved in that myself. We also acknowledge that the Leader of the Commons and the Procedure Committee in the other place have attempted to meet some of the concerns expressed in debates both in this House and in the other place during July. However, a number of other, very fundamental concerns remain. I shall touch on them speedily. Whether this is the only or best way to resolve them is still a matter for debate. I share the concerns of the noble Baroness, Lady Smith, and I will return to this point later.

Meanwhile, we should dispel some of the myths that grew up during the summer and were expressed in your Lordships’ House. First, there was an illusion that somehow these proposals affect only the House of Commons, are entirely discrete to that House and are appropriately dealt with by a simple introduction of new Standing Orders. Frankly, that has been blown to smithereens, not least in your Lordships’ House but also in the other place. I illustrate that by the fact that the revised proposals from the Leader of the Commons have now expanded the consideration of certified Motions or amendments relating to Lords amendments and other messages from one page to two. The proposed Standing Order 83O—not 830—which the Commons will consider tomorrow, is now very extensive. Page 27 of the new Explanatory Memorandum contains this firm statement:

“Paragraphs (2) to (6) ensure that English, or English and Welsh, MPs have the opportunity to veto Lords amendments that may make changes to the bill or parts of the bill that relate to England or England and Wales”.

Colleagues will recall that we were told there was no veto. It is now very firmly there. As the noble Lord, Lord Forsyth, has already indicated, this could relate to some extremely important decisions of Parliament. But what this does is to provide for a veto by a subset of that House. For the first time, one House of Parliament is to be overruled by a devolved mechanism in the other. Members of your Lordships’ House will note that there is now no hesitation in using the word “veto”. Members of the Government are fond of quoting the core importance of the sovereignty of the full Westminster Parliament—that is, the full House of Lords and the full House of Commons. Here we have an example of where a subset has a veto over the full Westminster Parliament. If that does not raise important constitutional issues, what does? Indeed, perhaps we should reflect that, topically, Holyrood, Cardiff and Stormont could ask: “What are the implications for us of this change?”. That brings me to my second major concern.

These proposals alter the delicate balance of power and responsibility between the two Houses of Parliament. Ministers have suggested—and it has been suggested again this evening—that in addition to monitoring and review undertaken by the Commons Procedure Committee at the end of this process, not in preparation for it, our own Constitution Committee might be involved in some way. I am the first to respect the work of the noble Lord, Lord Lang of Monkton, and his colleagues on our Constitution Committee. I just ask: what would happen if there were two quite separate investigations, monitoring and reviews of these processes, and they came to different conclusions? What do we expect will happen then? The Constitution Committee of our House reports to our House. The Procedure Committee reports to the House of Commons. What happens if they are not clearly in complete agreement? The noble Baroness has said that there will be a rigorous attempt to look at what has happened. I suggest that this is just a recipe for duplication, confusion and conflict between the two Houses.

I see that the noble Lord, Lord Young, is present. I am not sure what his new title is. He and I have sat on a number of Joint Committees. I think that they are an extremely important vehicle for the two Houses to reach sensible conclusions on all sorts of matters. Here is a classic case for this. The case for a Joint Committee of Peers and MPs proposed by the noble Lord, Lord Butler, and endorsed by a huge majority of your Lordships on 21 July, to which I have already referred, is clearly the sensible parliamentary way to approach this issue, with the whole of Parliament in mind, and to avoid the confusions that could otherwise occur.

As has already been said, tomorrow MPs will be invited to respond positively to the Motion of 21 July in your Lordships’ House, which was carried by a large majority. Sadly, this will not take the form of a proper response from the Leader of the Commons on behalf of the Government. No doubt the Leader of this House will be able to explain in her response at the end of this debate why we have not had the courtesy of a proper response from the other House. Instead, as has again been referred to, there will be an amendment endorsed by, I gather, several Members of several parties. I have counted six who have signed up to this amendment in the name of Mr Graham Allen, which reads as follows,

“this House concurs with the Lords Message of 21 July, that it is expedient that a joint committee of Lords and Commons be appointed to consider and report on the constitutional implications of the Government’s revised proposals to change the Standing Orders of the House of Commons in order to give effect to English Votes for English Laws, and that the committee should report on the proposals by 30 March 2016”.

That is not kicking the issue into the long grass but is a very sensible approach, not least, of course, because the Government have already said that there is no huge urgency for this. They are not anticipating in the immediate future that there will be any Bill which raises these particular concerns and different issues for different parts of the United Kingdom. That brings me to my third point.

This is a classic case of the dangers of piecemeal, ad hoc attempts to deal with apparent anomalies in our only partially written and codified constitution. Remove one anomaly and you create a potential host of others. If any Member of your Lordships’ House still thinks, after listening today, that this can be resolved in isolation, I suggest they look back at the debates in your Lordships’ House and, indeed, the other place in July which contain a wealth of practical experience. I refer to just a few who contributed in your Lordships’ House—the noble Lords, Lord Butler of Brockwell and Lord Lisvane, the noble Baroness, Lady Boothroyd, the noble Lord, Lord Reid of Cardowan—I hope I have pronounced that name right—and my noble and learned friend Lord Wallace, all of whom have a right to be heard by the Government, given their past responsibilities in Parliament and in government. If any Member still has further doubts, they should read the contribution of the former Attorney-General, Mr Dominic Grieve, in the debate in the Commons on 15 July. That leads me to my fourth point.

There is such a head of steam now for a constitutional convention of some sort. I am not suggesting that there is any one model. It is supported on all sides of your Lordships’ House and is evidenced by the Bill introduced by my noble friend Lord Purvis of Tweed. Surely the Government must agree to see these proposals in their wider context. I confess that in the past I have been something of a sceptic of the sort of all-purpose constitutional convention—put it all in the pot, stir it around and hope consensus comes out at the other end—but the confusion over these proposals over the past few months surely adds strength to the argument heard regularly from the other side of the House that too many of these ad hoc piecemeal attempts to update our constitution are neither coherent or comprehensive. My noble friend Lord Purvis, whose service here and in Holyrood, and in the Scottish body politic generally, gives him special experience, will deal with this aspect in more detail later.

Therefore, I believe that there is some urgency now for agreeing to set up some form of constitutional dialogue which looks at the relationship between the different parts of the union and their various political institutions. I accept that to make it a success we should be clear about how that convention—whatever form it might take—should begin its work. There are all too often false parallels drawn between vague ideas about a constitutional convention for the United Kingdom and what happened in Scotland in 1996, but, as both my colleagues here will confirm, the Scottish convention was a process which started with some measure of agreement on the outcomes that the parties wanted. Indeed, the Conservative and Scottish National parties refused to take part precisely because neither would commit to that level of agreement, so we should seek some agreement on principles before setting up a convention. It is, of course, no coincidence that many Conservative Members are now ardent advocates of EVEL, when so much of their support comes from England, while, on the other hand, it is no particular coincidence that Labour Members are more prone to cavil about EVEL, when so much of their historic support was in Scotland. Therefore, a public element of any such discussion, or any other form of widespread consultation, must involve putting these political prejudices on a sort of jury trial. It could then be hoped that the outcome would command public confidence.

But if the Government are to achieve any consensus—indeed, any unanimity—in their own ranks, they cannot continue to adopt a narrow, partisan, piecemeal approach to these great issues. Today, I have reread Command Paper 8969, The Implications ofDevolution for England, introduced by the now much regretted departed Leader of the Commons, William Hague, who claimed:

“Both the parties to the coalition wish to continue this major process towards decentralisation in England”.

The present proposals do not meet that challenge.

I note that my right honourable and honourable friends in the Commons have today tabled a further amendment to the Leader’s Motion as follows:

This House believes that a constitutional convention should be established to report by the end of 2016 to ensure the legitimate demand for English voices to be heard on English matters is delivered within the context of a carefully considered settlement for the UK, Scotland, Wales, Northern Ireland, England and the authorities participating in the Government’s devolution agenda”.

That should surely be the context for these discussions, not a little bit of ad hocery. It is certain that the proposals that will go before the other House tomorrow simply do not rise to the challenge of the White Paper of Mr Hague, as he then was. As a result, they will satisfy nobody. Those who favour an English Parliament—with the inevitable English Executive that would be required to implement its decisions—will attack them as a weak and weedy bureaucratic jungle. Incidentally, I do not know how many Members of your Lordships’ House have looked at the revised proposals but it is significant that the Leader of the Commons has not dared to produce a revised flow chart this time—I think it would look like somebody’s inadequate attempt at knitting. Those others, like many Members of your Lordships’ House, who identify constitutional hostages to fortune will plead for a more considered, comprehensive and consensual approach.

I think many Members of your Lordships’ House will join us in appealing to Ministers to listen to your House; to agree to a Joint Committee to examine these proposals more fully before experimenting with the current draft; to incorporate a sunset clause in the eventual changes to the Standing Orders; and, most important of all, to accept in principle the case for some form of convention to discuss the future of our part-written constitution in this era of post-devolution settlement.

Photo of Lord Butler of Brockwell Lord Butler of Brockwell Crossbench 8:02 pm, 21st October 2015

My Lords, I apologise to the Leader for having missed the first moment or two of her speech. I contribute to this debate more in sorrow than in anger—but with an element of anger. The Leader promised that the House should have an opportunity to express views. This debate is providing that opportunity; I welcome that. What I do not welcome is that the Government are going ahead with their Motion for changes in the Standing Orders tomorrow, when they will hardly have had the opportunity to read in Hansard what has been said in this evening’s debate. Nothing could make it more clear that the Government do not propose to take any serious account of your Lordships’ views on this matter.

As has been pointed out, on 21 July this House passed by a very large majority a Motion inviting the Commons to set up a Joint Committee to look into the constitutional aspects of these proposals. We have not had a reply from the Commons to that proposal. As she has said, the Leader made it very clear in that debate on 21 July that the Government were opposed to a Joint Committee. But this is not just a matter for the Government. This was a message from the House of Lords, which the House of Lords passed by a large majority, to the House of Commons—and the House of Commons has not replied to it. The Leader said that such a reply might be provided tomorrow as a result of the House of Commons voting on an amendment put down by Mr Graham Allen, a Back-Bencher. But that is not adequate. The Leader herself said that the amendment might not be selected by the Speaker. The House of Commons should have replied to this proposal from the House of Lords. It is a gross discourtesy that it has not and that the Government have not made sure that it replied.

There is a precedent for the House of Commons to go ahead without taking any account of a Motion from the House of Lords proposing a Joint Committee. The precedent was in 1911. Not for 104 years have the Government proceeded without taking any notice of a proposal such as this from the House of Lords. Why are the Government treating your Lordships’ House with such disregard? Mr Grayling has made clear his reasons on a couple of occasions. In reply to a question in the other place on 15 October, he said that,

“this is a debate about the Standing Orders of the House of Commons and it would be quite a big step for us to take a move towards inviting the House of Lords to rule, consider and act on our own Standing Orders”.—[ Official Report , Commons, 15/10/15; col. 506.]

That is an obtuse answer and I am afraid that it is deliberately obtuse. These proposals are about the constitutional relationship between different parts of the United Kingdom. As the noble Lord, Lord Reid, said, that is a matter on which the Government should proceed with extreme caution—and they are not doing so.

However, blessed is he who repents. We hear tonight that the Leader of the House of Commons has asked the chairman of the House of Lords Constitution Committee to take a part in monitoring the constitutional aspects of the operation of the Standing Orders. The Leader has played some part in achieving that repentance—but it is merely satisfactory as far as it goes, and the discourtesy to this House has not been removed.

The Government propose to go ahead tomorrow regardless with their changes to the Standing Orders. I have said from the outset that I welcome the Government’s seizing the nettle of the West Lothian question. I advised the Conservative Party’s task force under the right honourable Kenneth Clarke, which proposed one of the three solutions rehearsed in the White Paper of Mr Hague, as he then was, at the end of the previous Parliament. That solution was better, in my view, than the one now put forward. I note that in addition to the comments of the noble Lord, Lord Tyler, about a diagram that would look like knitting, even the Procedure Committee in the other place described the Government’s proposals with adjectives such as “complex”, “rococo” and “over-engineered”. For that reason, the Select Committee had great reservations about them.

The Government have not explained why a simpler solution has not been proposed. My objection to the Government’s proposals is, as the noble Lord, Lord Tyler, said, that for the first time it gives a veto to a group of MPs in the Commons—English or English and Welsh MPs—over legislation that Parliament as a whole wishes to pass. That is unprecedented. The proposal of Kenneth Clarke’s Democracy Task Force put it the other way round. It gave English or English and Welsh MPs the opportunity to amend a Bill in Committee and on Report and then the whole House the final say on accepting or rejecting the result. That seems both simpler and more in line with our parliamentary traditions than a veto.

Why does the difference matter, apart from a veto being a constitutional innovation? I suggest it matters for this reason, among others. If a veto is to be given to English MPs, or English and Welsh MPs, over legislation affecting only their areas, is a similar veto to be given to Scottish MPs on legislation in the Westminster Parliament that affects only Scotland? There is such legislation. An example which was brought to my notice is the Partnerships (Prosecution) (Scotland) Act 2013. If such a veto is not going to be given to Scottish MPs, why not? What is sauce for the English and Welsh goose should be sauce for the Scottish gander. If the Government do not give similar rights to Scottish MPs to those that they propose to take for English and Welsh MPs, they are giving Scotland a legitimate grievance. In the current state of the union, that is a dangerous and unwise thing to do.

There are many other questions about the Government’s proposals, which other noble Lords have raised. The Hansard Society has produced a paper entitled Five Early Questions about them. Why are the Government rushing into these proposals without waiting for the Public Administration and Constitutional Affairs Committee, the Scottish Affairs Committee and the final report of the Procedure Committee in

another place to give their advice on these issues? It is very unwise of the Government to be doing so. Their answer is, “Let’s give our proposals a try and review them in a year’s time”. We have heard that sort of argument before. It is like saying, “We will jump over the cliff and grab a bush on the way down so that we can review our decision about whether we were right to do so”.

As has been pointed out, there is no need for this impetuous rush. The current position is that there is both an overall majority for the Government, and a majority in England and Wales for the Government, in the House of Commons. The Government can easily afford to allow their proposals to be properly considered by both Houses of Parliament. They are acting like a bull in a china shop—if that is not an inappropriate analogy in this particular week. However, it is clear that whatever we say tonight, the Government will push ahead with their proposals in the Commons tomorrow. There is only one chance that prudence will prevail and that this House’s invitation to the House of Commons to set up a Joint Committee will be adopted, which is that the House of Commons passes Mr Allen’s amendment tomorrow and accepts our proposal for a Joint Committee. The matter is now in their hands.

Photo of Lord Lang of Monkton Lord Lang of Monkton Chair, Constitution Committee 8:13 pm, 21st October 2015

My Lords, I hope your Lordships will forgive me if I do not enter into the heat of this debate this evening, tempted though I was by the intriguing announcement by the noble Lord, Lord Butler, that he has discovered that rare nugget, a new Scottish grievance—I thought we had mined them all pretty well. I will not even rise to that particular fly because there are other Scottish Members of this House to speak later, and the noble Lord, Lord Foulkes, for example, does grievance far better than I can.

However, I thought it would be helpful to the House if I sought to explain the context of the Constitution Committee’s proposed involvement in monitoring, for a period, the operation of the reformed Standing Orders for the other place, which I understand are to be brought forward tomorrow—assuming, of course, that they will be passed. I do so because it is an unusual matter for our committee to become involved in, and it is not a task that we would have sought. Normally, we never comment on the internal procedures of the other place. However, when one is expressly asked by the Leader of the House of Commons to undertake this task—reflecting, I suppose, the fact that this House had sought, through the Motion it passed in the summer, to be involved in further scrutiny and consideration of EVEL through a Joint Committee with the other place—that changes things. It would, I believe, be wrong to refuse such a request. So in the expectation that the Joint Committee will not now materialise—and conditional on that and on the other place approving the proposals of the Leader of the House of Commons—our committee agreed at its meeting this morning to accept the task. The Procedure Committee and the Committee on Public Administration and Constitutional Affairs in the other place will also, I understand, be involved, although separately from our committee.

We will not of course be involved in assessing or commenting on the merits either of the amended Standing Orders or indeed of the policy of English votes for English laws itself—that is not our function. We value the independent, non-partisan nature of our all-party committee. We will, however, proceed with our inquiry over the next few months in our usual way—calling for evidence and interviewing experts and practitioners, including, very possibly, Members of your Lordships’ House—as the new arrangements start to deliver legislation or other business to this House through the use of EVEL. We shall seek to identify any constitutional implications and anomalies that may emerge and, in our usual way, we will draw them to the House’s attention as deserving of further consideration in a report that we will publish thereafter. I hope that my giving that background and clarifying what I see as our role in this business has been helpful to the House.

Photo of Lord Reid of Cardowan Lord Reid of Cardowan Labour 8:16 pm, 21st October 2015

My Lords, first, I will say that I understand the strategic objective of the Government, which is to enable a fairer system of sharing decision-making throughout the United Kingdom. Indeed, the statement that was made by the Prime Minister, with the support of the other leaders, the week before the referendum—which in my view had no purpose and no effect—made the discussion of these issues inevitable. That is my starting point, but I have grave concerns about the Government’s approach in addressing those objectives, especially the political implications. I will put my concerns as simply as I can.

The Government are rushing this issue when there is no need to do so. They have five years ahead of them—if you believe some of the more cynical commentators, perhaps an extended length of time in government even beyond that. As result of rushing, they are avoiding the reflection and consultation that are necessary, in absence of which they will inevitably produce a flawed solution. This in turn will lead to dispute and to grievances where none existed before. As the noble Lord, Lord Lang, said, grievance is the platform on which the Scottish nationalists produced almost every strategic objective they have. But if he believes that it is not possible for them to discover new grievances, I say to him that we should not help them in that task by mass-producing potential grievances out of a flawed scheme such as this. That is the politics of it. If I am right, in attempting to solve one political dilemma—the West Lothian question—the Government will introduce another more dangerous one, satisfying neither the English nor the Scottish, and further prising apart the union. In short, where they set out to establish a level playing field, they are actually laying a potential minefield, politically. That is my concern.

I will just deal with a couple of those issues. I cannot for the life of me understand the haste with which the Government are trying to rush this through. Indeed, if anything, they are increasingly dealing with the issues presented in an offhand fashion. Several other noble Lords have mentioned this as well. I welcome the involvement of the Constitution Committee but the reality is that, a few months ago, as the noble

Lord, Lord Butler, pointed out, this House voted by an overwhelming majority for the consideration by the Commons of a Joint Committee on these issues. That would have been a wise course in my view, yet the Government did not even deign to respond to that advice from this Chamber, as has been pointed out. I would like to believe that they were too busy. I would like to believe that it was delayed in the post. I would like to believe that there was some serious reason why they found it impossible over those few months to respond to us. I suspect, however, that their position was more influenced by the old adage that it is easier to seek forgiveness after the event than to ask permission before it.

Everything that the Government have done suggests to me that that is not only discourteous but extremely unwise, because consideration of this issue would benefit from the wisdom and experience of those of us who have for 40 to 50 years been through the question of the British constitution and the politics of nationalism —including English nationalism.

Photo of Lord Tyler Lord Tyler Liberal Democrat Lords Spokesperson (Constitutional and Political Reform)

As the former Leader of the other place, will the noble Lord confirm that the Government could redeem themselves now if they ensured, as they are in a position to do, that Mr Graham Allen’s amendment, which is supported right across all other parts of the House, is not only tabled but accepted for debate in the House tomorrow and they persuade people to vote for it?

Photo of Lord Reid of Cardowan Lord Reid of Cardowan Labour

Indeed, that would be extremely helpful. It is no coincidence that the potential alibi has been presented tonight, but we may well discover tomorrow that it is a non-existent alibi.

I make no personal attacks on the Leader of the House. She assured us tonight that she would be ever vigilant in monitoring what was going on. I believe her. I recall that some 50 years ago, we had a Scottish goalkeeper called Frank Haffey who was ever vigilant. He carefully monitored the ball as it entered the Scottish net nine times in a game against England. There is a difference between monitoring and vigilance on the one hand and action on the other. The action is necessary to address the questions that arise.

I will raise only a couple of the questions on the current proposals tonight. The first is on stage 1, the certification procedure, which was mentioned by the Leader of the House. The new procedure is intended to apply to government Bills, individual provisions and secondary legislation which are certified by the Speaker as containing English and Welsh provisions only. Under the revised Standing Orders, the Speaker of the House will have an important role in certifying whether a Bill or part of a Bill relates exclusively to England or to England and Wales.

I have to say that that is an enormous, onerous responsibility. In the interests of good governance and public transparency, it would seem appropriate that the Speaker in that case should be obliged by Standing Orders to publish the criteria, the principles and the legal advice that he will apply in reaching such determinations. However, no such provision is presently made. Anyone who is experienced in deciding such issues from a Scottish point of view knows that they are extremely complicated and will be more complicated when it comes to deciding on this provision.

On the question of whether the Speaker has the necessary advisory resources to address such a task, I have grave doubts. I have to say that they are not dispelled by the most recent revisions to the proposals, which were mentioned by the Leader of the House. She mentioned the revised proposals after consultation on the question of certification: how the resources and expertise available to the Speaker would be enhanced. Let me just read from the briefing on what the proposals amount to. I will not go through all the clauses, but it states:

“These new additions enable the Speaker”— it says here with authority—

“to consult two backbench MPs to assist him in the process of certifying bills, clauses and schedules as relating exclusively to England or England and Wales, should he wish to do so”.

So the action after the consultation on the vital issue of resources is to extend to the Speaker the facility of the advice of two Back-Bench MPs—should he wish to do so. Well, there you are. We can all expect that that will add definitive expertise to the Speaker to make such decisions. That does not hearten me that the Government have learned from anything that has been said.

Secondly, on the test, of course revised Standing Order 83J sets out the consideration and certification to be given by the Speaker but, as I said, it is not an easy task to determine that a Bill, clause or schedule relates exclusively to England or to England and Wales and is within devolved competence. Whether a Bill applies only to England is not determined simply by looking at the extent provisions. It requires a significant constitutional and legal assessment of the measure, how it may operate in practice and what its legal effect may be.

At present, the proposal contains two tests: a territorial test and a content test. A number of serious questions arise even before we consider the omission, which is the purpose test, because the purpose is a third area that ought to be an essential element in deciding whether or not the proposals apply. Let me ask the question simply: would it include an English Bill or clause analogous to a Bill, or a clause which concerns a reserved matter but which applies, whether exclusively or not, to Scotland? The example was already given by the noble Lord, Lord Butler, of the Partnerships (Prosecution)(Scotland) Act 2013. Would it exclude all Bills or clauses which, under the current definition of the Sewel convention, would require the consent of the Scottish Parliament, such as the Scotland Bill, which affects the competence of the Scottish Parliament or Government?

I confess that I am not a lawyer. I am not complaining about that, nor am I boasting about it, but as far as I can see the revised Standing Orders do not clarify those essential questions, nor do they set out the criteria and principles by reference to which the Speaker will determine whether a Bill or clause falls within the proposals. As I said, these are elementary questions which are outside the omission of the purpose test, which is essential, as the noble and learned Lord, Lord Wallace of Tankerness, outlined in our July debate.

The Government have obviously decided that it is worth countenancing all those risks: that they will lay the minefield and then we will all walk through it for years to come. I hope that they will weigh those risks heavily, because it is at least questionable whether the game is worth the candle as regards these proposals.

A House of Commons Library standard note of 4 December entitled England, Scotland, Wales: MPs & Voting in the House of Commons observed the statistics on voting on Bills in the House of Commons. Of approximately 3,600 Divisions between June 2001 and September 2014, a total of 22—that is, 0.6%—would have concluded differently had the votes of Scottish MPs not been counted. It may be proper to address this question, as I said at the beginning, but to rush ahead with the present proposals and all the risks when there is no major practical problem to face on the basis of those statistics seems irresponsible for a Government who supposedly stand for the retention of the United Kingdom. You cannot discuss the constitutional aspects of this without the context of the politics. Do not wittingly mass-produce grievances which could otherwise be avoided.

I will not say much about scrutiny but, at the very least, the Government should provide for the utmost scrutiny of the operation of this through the Procedure Committee of the House of Commons. That should be done in a more formal fashion. Even before that the Government should be willing to embark on the widest possible consultation so that these proposals are placed within the wider constitutional objectives.

The Government may consider all these matters trifling details. They may consider them small mines in the minefield, but their potential number is so huge that it will produce the political basis for the grievance politics of the SNP and friction between England and Scotland over an extended period of years. If we are going to address the question of fairness to the English, no one in this House would object, but we need to do it in the context of the wider constitutional settlement and the political implications of what we are doing. I hope that even at this stage the Government may be persuaded to change their approach because the constitution of this country, the country itself—the United Kingdom—and its unity deserve better than we are being provided with at present.

Photo of Lord Brown of Eaton-under-Heywood Lord Brown of Eaton-under-Heywood Chair, Sub-Committee on Lords' Conduct 8:31 pm, 21st October 2015

My Lords, the principle of EVEL was not only was a specific manifesto commitment of this Government; it appears to command widespread popular support. Like the noble Lord, Lord Butler, I support the principle, but I support it only if it is implemented in an appropriate way. That surely must be by way of primary legislation after full debate, in both Houses, of all the various matters that we have brought up today, not merely by rule changes in the House of Commons, as is now proposed. To create, as the Government propose, two classes of Members of Parliament, one with more extensive powers than the other—essentially a power of veto over the other in certain circumstances—is a measure of such obvious constitutional importance and sensitivity as to demand legislation.

There are basically two different ways to resolve the long-outstanding West Lothian question to reflect the fact that, logically, in devolved areas of law, Scottish MPs should have a lesser input than English MPs or, as the case may be, English and Welsh MPs, given that legislation in these devolved areas has no effect—put aside the possibility of some purely incidental effect through the operation of the Barnett formula—on their constituents. Scottish MPs’ constituents’ interests in these devolved areas are taken care of by Members of the Scottish Parliament. One possible approach is that which has been advocated in earlier debates by, as I recall, the noble Lord, Lord Forsyth, and, I think, also the noble Lords, Lord Lawson and Lord Cormack. It is based on the Irish precedent and is to reduce the number of Scottish Members of Parliament to reflect the fact that, because of a measure of devolution, their constituents have fewer interests being decided by the Westminster Parliament. The intended reduction of Westminster MPs from 650 to 600 and the existing requirement for a new Boundary Commission report surely offer a good opportunity to deal with the problem in that way. Clearly, as in the past in the case of Northern Ireland devolution, this would need, as it attracted in Ireland, primary legislation.

The alternative way of implementing EVEL is essentially the one now proposed by the Government—although inappropriately proposed by way of rule change—limiting in some ways the powers of Scottish MPs in respect of such legislation as following devolution will apply only in England or, as the case may be, in England and Wales. For simplicity’s sake, let us just call the dichotomy England/Scotland. Logically, on this approach, Scottish MPs’ powers should surely be limited no less in respect of their ability to vote down fresh legislative proposals affecting only England—for example the proposed modification of the existing fox hunting laws, as was proposed earlier in the year—than in respect of their ability to promote legislation which is otherwise opposed by a majority of non-Scottish MPs. The rule change currently proposed would limit Scottish MPs’ powers only in this latter respect. In other words, it would give non-Scottish MPs what effectively amounts to a veto over legislation proposed by a majority which is dependent on the votes of Scottish MPs. Perhaps that is because the proposal was originally devised in order to combat what seemed during the election campaign to be—as some certainly saw it—the threat of a Labour Government dependent upon support from Scottish MPs. It must be recognised that the current proposal would not enable a Government to pass legislation which Scottish MPs could help to defeat. There seem to be obvious pros and cons to each of these two basic ways of limiting the powers of Scottish MPs in respect of devolved matters—respectively, reducing the number of such MPs or reducing their ability as Members to influence certain new legislation. The latter method is more nuanced and targeted to particular cases, but it is of course hugely more complicated.

The latest Cabinet Office document from October 2015 extends to no fewer than 31 pages, seeking to set out and explain the proposed revised changes to the House of Commons rules. Indeed, this scheme still leaves a number of unresolved problems, many of them identified today, including of course that canvassed earlier by the noble Lord, Lord Forsyth. I wonder whether the answer to his question is that if these changes are indeed achievable simply by a rule change, as proposed, then a Government in the position that he postulates would simply change the rules to revert to where they are, so we would not at all have the permanence that we would hope to get with primary legislation.

For my part, because of these obligations and difficulties, I prefer the solution, imperfect though it is in turn, of limiting the numbers of Scottish MPs, as happened in Northern Ireland. Crucially, though, whichever of these solutions is adopted, it really should be by way of legislation. I, too, deplore the fact that the Government seem simply to have discourteously presented us with a fait accompli. In common with others, I hope that the House of Commons may in fact thwart the Government’s desires in that tomorrow.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative 8:39 pm, 21st October 2015

My Lords, this is probably going to be the only occasion in my lifetime when I can get up and say that the person who has just made the speech that I was going to make is a former distinguished member of the judiciary. The noble and learned Lord, Lord Brown, has made all the points that I would have made. Indeed, so has everyone else; I agree with all the speeches that have been made so far.

I confess to a sense of weariness because I am running out of new things to say. I am also coming to the conclusion that it does not matter a damn what I say or what this House does; it is just going to be ignored and the Government will charge on regardless. The fact that it is more than 100 years since the House of Commons failed to respond to a Motion from this place—and a Motion that was passed by such a majority—is a scandal of the first order. I just wonder why we are here and what we are doing at 8.40 pm. What is the point?

The annunciator says, “The Government’s proposals on English votes for English laws”. These proposals are not about English votes for English laws; if you want English votes for English laws, you need to set up a Scottish Parliament. I am sorry, I meant an English Parliament. Of course, by setting up a Scottish Parliament, we provoked the situation that we are in today. However, English votes for English laws imply an English Parliament, an English First Minister and an English Executive. So if the point of all this is to satisfy the feelings of resentment that have occurred in England because of the existence of the Scottish Parliament, a false prospectus is being sold to the British people and to the English people.

For me, it is really quite weird that a Conservative Government with a majority—in the past I could have blamed the Liberals, but this is a unionist Government—are bringing forward proposals of this kind. If on the annunciator we had proposals for “Scottish votes for Scottish laws”, I suspect that people would be a little more careful in considering the implications for the United Kingdom as a whole—a point that was made by the noble Lord, Lord Tyler, and others.

The last time we debated this, my noble friend the Leader of the House denied that there was an English veto—but the word “veto” has now been accepted. I would be opposed to a Scottish veto in the United Kingdom Parliament, and I can see what Mr Salmond and his colleagues will argue when this goes through: that the Sewel convention—which we probably need to rename, in the circumstances—should actually be enshrined in statute, and that the Westminster Parliament should not be able to do anything that would be covered by the Sewel convention. That would be a very retrograde step.

I have been sitting for some weeks now on the Economic Affairs Committee; we have had extra sessions. We are taking evidence on the implications of devolution for the fiscal and other arrangements of the United Kingdom as a whole. I have to tell the House—I am sure that the noble Lord, Lord Kerr, who is also on the committee, will confirm this—that the advice we are getting from academics has on occasion reduced the committee to laughter because of the incoherence with which all these constitutional changes are coming together, and the inability of our expert witnesses to give assurances.

For example, one distinguished professor pointed out, on the subject of the impact of the changes that are proposed in the forthcoming Scotland Bill:

“If you do that, changes to English taxes affect the Scottish block grant, which I think is appropriate. However, if that is the case, you cannot possibly tell Scottish MPs that they are not allowed to vote on English income taxes, because there is no such thing as an English income tax that does not affect the Scottish block grant”.

In other words, the combination of the new powers being given to the Scottish Parliament, the retention of the Barnett formula and this new proposal to allow an English vote on English income tax will create a problem if you have English votes for English laws, in so far as the Scottish MPs who are not allowed to vote on English income tax will be able to say, “But that affects the block grant and so the Barnett formula, and therefore we are being disenfranchised”. That is a very important grievance of the kind that the noble Lord, Lord Reid, suggested.

I have been trying to think of an analogy to explain the Government’s piecemeal approach to constitutional reform and the difficulties and complexities it is creating. It is a bit like having an Uber driver without a sat-nav. We are going from one destination to another, not sure of where we are trying to reach and without the road map that is required—which could be produced if we had had a constitutional convention, and which might be available if we had agreed to a Joint Committee of both Houses to deal with some of the anomalies that would have arisen.

For example, my old constituency in Stirling, which I used to represent, is now represented by a Scottish nationalist MP. I have had him here for tea in the House so that he could be made aware of the excellent work that we do here, and a very fine chap he is. However, under these proposals, we will get to a situation in which he is elected and not allowed to vote on matters on which I am allowed to vote as an unelected Member of this Chamber. I feel a bit uncomfortable about that—it seems slightly anomalous. A lot of my former constituents who went to the polls to get me out—albeit that was many years ago; those of them who are still alive—might feel a sense of grievance that I am voting on matters which their elected Member is excluded from voting on.

I therefore say to the Leader of the House: I know that we do not have much of a majority here, but is the proposal that I should abstain on all these matters—that all Peers who come from Scotland should not vote on matters which have been determined in the other place? There is no such thing as a Scottish Peer—constitutionally that is right—but try telling that to people in Scotland if these proposals go ahead: you will get short shrift. That may be a narrow debating point. But we are faced with a situation where, in Scotland, thanks in part to the way we fought the general election campaign, almost all the seats are now occupied by one party, which every day sets out to find a reason why Scotland is being damaged by its relationship with the United Kingdom as a whole.

I do not want to go repeat arguments that were made by others or that I put previously. However, I recall that the noble Baroness, Lady Boothroyd—who is not in her place—whom I voted for as Speaker, who did a fantastic job in the House of Commons and who has a very good understanding, warned about the difficulties that would be created for the Speaker. My noble friend says that this has been addressed, because she will be able to talk to two other MPs. What happens if those elected MPs have different and perhaps opposite views? The Speaker will have to take a decision, and the very position that the noble Baroness, Lady Boothroyd, referred to, of putting the Speaker in a position where they are politicised, comes into being.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench

I agree, but it is even worse than that, because it is clear that the certification decision that the Speaker is required to take will be justiciable. That seems to make an enormous change, which will affect not just the House of Commons but the constitution as a whole.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

I remember the days when the noble Lord used to tell me what to do at European Council meetings. As always, he sees the wood when I could only see the trees. That is a very important constitutional change. It is a diminution of the status of the High Court of Parliament.

All the issues may seem to be anorak issues for constitutionalists but I say to my noble friend that this is not something of little importance, and it is a matter of great distress to me that the House of Commons should rush ahead with it by amending Standing Orders. In an earlier intervention, I pointed out the implications for income tax and what would happen under a Labour Government. I suppose that, as was said earlier, if things were done just by Standing Orders, then if a Labour Government had a majority in the House of Commons, they could simply alter the Standing Orders to remove the position that had been established in order to create a constitutional balance as a result of the extra powers being given to devolved institutions. That is wholly and absolutely unsatisfactory, especially in the context of a situation where there is no consensus among the parties as to how this could be achieved.

That is my final point, which I think I made on a previous occasion. I really do think that constitutional change should carry consensus. If we proceed on the basis that we think it would be a good wheeze to make a constitutional change or that it might advantage one party or another, then other parties will do the same when they are in power. As a result, people will lose faith in the integrity of the institution and it will be greatly damaged.

The Constitution Committee is going to look at these proposals and apparently we will have a year to consider whether they work—although, given our legislative programme, quite how we are going to do that remains to be seen. Will my noble friend consider once again whether it would be a good idea to set up some kind of body—we do not have to call it a constitutional convention—to look at all these issues? Will she also look at the implications of the Scotland Bill, which will be coming to this House, and how that will be affected by English votes for English laws, as they are being dubbed? All the evidence that I have seen indicates that there will be real and serious problems, which have not been resolved and which will do great damage to the relationships between the countries of the United Kingdom.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour 8:52 pm, 21st October 2015

My Lords, I had better not start by saying that I agree with almost everything that the noble Lord, Lord Forsyth, has said, because we will both then get attacked by the cybernats. Incidentally, that is a word that I coined, although the Oxford English Dictionary has not yet got round to including it. I keep telling these people who tweet obnoxious things from time to time that even a Tory can get it right sometimes, and the noble Lord, Lord Forsyth, has it absolutely right today.

I want to start off by not disappointing the noble Lord, Lord Lang: I have a wee grievance, which he anticipated I might raise. It is a great pity—I am very glad to see the government Chief Whip here because this refers to him—that we are discussing a major constitutional issue such as this at this hour, following a major debate on energy. This is a matter of great importance. It was listed on our business programme as being the subject of a whole day’s debate, but for some reason or another the Government took it off the agenda and put in a debate on the size of the House. I was here for that debate and it was the most useless waste of a debate that we have ever had. We could have had a proper debate on English votes for English laws.

The Leader of the House said that the whole purpose of this debate is to inform the debate that the House of Commons will be having tomorrow. I am not sure how that will happen. The noble Lord, Lord Butler, said that Members of the other place will be able to read Hansard. However, I do not see all 650 of them scurrying up in the morning to get copies of our Hansard and reading them assiduously. I noticed that my honourable friend Chris Bryant was here earlier for a large part of the debate, so he will be well informed, but perhaps the Leader of the House can tell us how she, as Leader, is going to make sure that the House of Commons is informed in its debate tomorrow about what has happened here today. If not, as the noble Lord, Lord Forsyth, said, we will begin to feel very frustrated and wonder whether we are wasting our time.

However, there is genuine concern. It has been coined by some people, because of Tam Dalyell’s concern, the West Lothian question. I call it the English democratic deficit. I really sympathise with people in England; whereas we in Scotland, along with the Welsh and the Northern Irish have had genuine devolution—it is nice to see the Welsh nationalists here—the English have not. Many years ago, my noble friend Lord Prescott suggested the setting up of English regional government. That was one of the right solutions but before its time, and he was not able, because of other Secretaries of State, to give it the right kind of powers. However, that is something that needs to be looked at properly. As so many people have said, we do not need to do it in this piecemeal way.

The Leader of the House said that a grievance had existed for many years. There is certainly a grievance, and it has existed for about 16 years, since 1999. But for more than 300 years, peculiarly Scottish legislation—on Scottish education, the Scottish health service and Scottish local government—was decided here by English votes. It was English votes that decided the poll tax. I am sorry to find a little bit of disagreement with the noble Lord, Lord Forsyth—although perhaps it is a good thing—but it was he and his colleagues who imposed the poll tax on Scotland against our will and a year earlier than in England. Look at local government reorganisation. To take one small example, the majority of Scottish Members wanted an all-Ayrshire authority, and yet it was imposed upon us to have three local authorities for Ayrshire.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

The noble Lord will recall that the poll tax was created in Scotland as a direct result of Scottish legislation that required a revaluation, which sent valuations sky high, and was driven by Scotland. If it was imposed on anyone, it was imposed on England in order to sort out a Scottish problem. I am very distressed that the noble Lord should be using nationalist arguments at this stage, given that his party has been wiped out north of the border.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

That was the argument that the noble Lord put forward at the time. It did not go down very well then and it is not going down very well now. However, I am glad that we have disagreed, because that will show the cybernats that we do not agree on every occasion.

We need to look at how we can solve the English democratic deficit. Incidentally, one thing I did agree with the noble Lord, Lord Forsyth, on is that it is going to be difficult for us as Scottish Peers. There is a Scottish Peers Association, and all of us who are Scottish Peers are members of it. We have a territorial designation, although we do not represent a Scottish constituency. People know that there are Peers who come from Scotland and have Scottish designation. It is strange that I would be able to vote on English laws and Ian Murray, or whoever is elected to the House of

Commons, would not. The House of Lords has no democratic legitimacy, but we would be taking part in a greater way than elected Members of Parliament. For them to have less say is really quite wrong.

As my noble friend Lord Reid rightly said, we are playing into the hands of the SNP. I do not think it does any harm to spell out to people south of the border that we will be building up resentment in Scotland because there will be two classes of MP. It beggars belief that Members of Parliament would be elected and then put into two classes, with some having more responsibility than others. That undermines the whole principle of our elected democracy.

I could understand that this might be forced upon us or something be done to deal with the democratic deficit—although as noble Lords have said, it is not urgent and does not need to be done for next month or next year—if there was no alternative. But there are alternatives, and there is one in particular. Again and again, I have taken part in debate after debate—with the noble Lord, Lord Forsyth, others who have spoken today and some who are sitting quietly—where the support for a UK constitutional convention has been growing and growing. The clamour has been getting louder and louder. Things are moving. The noble Lord, Lord Purvis, has introduced a Bill to set up a constitutional convention. An all-party committee has been set up, and an all-party panel chaired by a Member of this House—the noble Lord, Lord Kerslake, a former head of the Civil Service who is now president of the Local Government Association. That panel—the noble Lord, Lord Wigley, is also a member—is going to work out what the noble Lord, Lord Forsyth, would call a road map towards a constitutional convention, to set up a structure that will deal sensibly with the English democratic deficit.

Whether the result is an English Parliament, or regions of England, or the cities and the counties, or a combination of any two of those, is something that should be decided by the people of England. That is what a UK constitutional convention would do. Would it not be much better to put all this EVEL talk on ice and take the initiative?

To take another example, the leader of the Opposition, my right honourable friend Jeremy Corbyn, has appointed a shadow Cabinet member with specific responsibility for the constitutional convention. Would it not be better to grasp this opportunity, to take advantage of these initiatives and move in that direction, instead of down the cul-de-sac of EVEL, which will cause so many problems and threaten the United Kingdom? I fear that if we take the course of action proposed by the Government, we shall be like lemmings going unthinkingly towards the cliff. That is the last thing we should be doing.

Photo of Lord Hope of Craighead Lord Hope of Craighead Convenor of the Crossbench Peers 9:02 pm, 21st October 2015

My Lords, I should like to contribute a few words in the gap. One or two others may wish to do so as well, so I shall be as brief as I can. I am sure that the Government are right to address the West Lothian question—or the English democratic deficit, as the noble Lord, Lord Foulkes, called it—but what has puzzled me all along is why they seek to do it in this way and not by primary legislation, or at least under the cover of primary legislation. I should be grateful if the Leader of the House would explain why primary legislation is not being resorted to.

It seems to me that if the Government are to step outside the established procedures for legislation, which have the protection of the principle of the sovereignty of Parliament, they will do so at their peril. There are people outside here—we know who they are—who will seek to undermine, by means of judicial review, legislation that does not have the security of the established procedures. The noble Lord, Lord Kerr, hinted at that point a moment ago.

The problem that I see goes back to a point that the noble Lord, Lord Forsyth, raised about taxation. I do not see how a Government can rely on legislation passed by this new procedure, which is subject to the risk of challenge in the courts, until the procedures have worked their way through the courts. I do not say that anybody who seeks to challenge the legislation is bound to succeed; that is not the point. The point is that so long as there is the risk of challenge, and the delay of waiting for the courts to resolve the issue, the legislation cannot be brought into effect, because of the risk of having to unravel everything if, by some mischance, it is declared to be invalid.

Leaving aside the problems of conventions and so forth, it has always seemed to me that if the Government wish to proceed now, and if they want to take the safest course, they should do so by means of primary legislation. I shall not elaborate on that, but it is an absolutely fundamental point. I should be grateful if the noble Baroness would explain why that route has not been taken, in view of the risks to which the present solution seems to give rise.

Those risks were highlighted by what the noble Lord, Lord Reid, said about the problems of certification. I know from sitting in such cases how difficult it sometimes is to determine whether something is a devolved issue or a reserved issue. These are tricky points of law, and to solve the problem in the way that is being proposed seems to increase the risk of challenge, which is the last thing one would want in the case of legislation that the Government wish to pass to enable them to run the country according to the established procedures.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench 9:04 pm, 21st October 2015

The noble and learned Lord, Lord Hope, has just made the main point that I wanted to make and did so much more authoritatively than I could have done. But I will take the opportunity to add two more: first, I would not want your Lordships to think that there is unanimity on the Cross Bench that the West Lothian question needs to be addressed. In my view, the West Lothian question should be looked at and left. I profoundly believe that it does not need an answer. In any unbalanced—in population terms, not in talent terms of course—union like ours, the 85% needs to remember the maxim that magnanimity in politics is not seldom the highest wisdom.

My only other point is that I want to spring to the defence of the Leader of the House. I know her well. It is an almost impossible task to combine these two functions. She does it extremely well. I have absolutely no doubt that she very clearly delivered the message that we sent in July by such a large majority and that she advocated at least that we get the courtesy of a reply. I would like her to know that what is being said critically of the Government and of their handling of the House of Lords is in no way personally addressed to her.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Health), Shadow Deputy Leader of the House of Lords 9:06 pm, 21st October 2015

My Lords, I must apologise, too, that I shall speak in the gap. This has been an excellent debate and I hope that the Leader will be able to respond to the substantive points raised.

Like the noble Lord, Lord Kerr, I pay tribute to the Leader—I do not think that she has an easy job—but she needs to convince us tonight that the Government are at least paying some attention to the points raised by your Lordships, because, so far, there is scant evidence of it.

I do not want to go into the circumstances of the failure to respond to our request that a Joint Select Committee be established, but it is a very serious matter that there has been no response. The Leader has prayed in aid Mr Allen’s amendment. Although it may be considered tomorrow, there is no guarantee that the Speaker in the other place will choose it. The noble Baroness prays in aid the amendment as a reason for not responding to your Lordships, but of course her colleagues in the other place will then do everything they can to determine that, even if it is called, it will be defeated. That is not a satisfactory response.

I have noted the point that Chris Grayling made, that he wishes to see our Constitution Committee work with the Commons Procedure Committee, but what does this mean and what if the two committees disagree? If he wants the committees to work together, why on earth not establish a Joint Select Committee?

Of course, we are very grateful to the noble Lord, Lord Lang, who made a helpful intervention informing us that his committee has agreed to accept the task that it has been asked to do.

Photo of Lord Lang of Monkton Lord Lang of Monkton Chair, Constitution Committee

It is not being suggested that we work together with one of the committees in the other House; we all work independently and we would be more concerned with the output that came through to this House rather than what goes on down there.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Health), Shadow Deputy Leader of the House of Lords

My Lords, I fully understand that, but the question I am raising is: what happens if the two committees reach different conclusions? That is why I think it would have been much better if there had been a Joint Select Committee. From what the noble Lord has said—and I hope that Leader will agree with me on this—it is clear that accepting this proposition and agreeing to do the work does not mean that the committee is saying that it endorses EVEL or the way in which the Government have chosen to do it.

So many risks are involved in the changes—so many risks to our constitution and so many risks to the union—yet the noble Baroness describes them as simply a matter of procedure and the property of the other place. It is a terrible precedent to use Standing Orders in the other place to make what is a huge constitutional change. We have heard that the contrast between the position of Scottish Members here—the noble Lord, Lord Forsyth, was very clear on this—and in the other place is not simply a matter of procedure, and nor is the role of the Commons Speaker. The noble Baroness, Lady Boothroyd, spoke eloquently about the problems of a Speaker being embroiled in hugely controversial political decisions. The 31 pages of memorandum from the Cabinet Office that we have seen are mostly about the Speaker’s role. There are dangers in involving the Speaker—even with the aid of two wise people, as the health docs used to say—in sharing that decision does not fill one with confidence.

The noble and learned Lord, Lord Wallace, raised an important point. A Bill passed by your Lordships’ House goes to the Commons and is passed there, but is vetoed by English MPs because of the lack of a double majority. The constitutional implications of that are profound.

The noble Lord, Lord Butler, made a pertinent point on whether Scottish MPs are to be given a veto in the circumstances he described. My noble friend Lord Reid gave us wise words about the dangers of establishing a series of grievances that put the union at risk, and they should be a warning to us all.

My time is up. I would simply ask the noble Baroness to really convince us that the Government are going to listen. The profound threat to our union and the integrity of the United Kingdom is very apparent in the debate tonight. Procedures in the Commons are not the way to do it.

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat 9:11 pm, 21st October 2015

My Lords, I agree with the noble Lord, Lord Hunt of Kings Heath, that this has been an interesting debate—if for nothing less than the fact that, in the two years to the week that I have been a Member of your Lordships’ House, I have not seen a government debate led by the Leader of the House which has not had a single member of her own party speak in support of the position of the Government. In fact, if it had not been for the noble efforts of the noble Lord, Lord Kerr of Kinlochard, in the gap saying that this was not a personal reflection upon her, there would have been no support from this House in the entire debate for the position of the Government. That is worth the Government Front Bench reflecting on too.

The noble Baroness, Lady Smith of Basildon, made a strong case of complaint, illustrated by my noble friend Lord Tyler, that this House made its view clear that very careful consideration of the implications of the Government’s proposals should be done in a Joint Committee. There are implications for the wider constitution, but there are implications for this House as well. We have heard quite a bit of bluster in the press this week about how mandates should be respected and the apocalyptic consequences if they are not. This

House gave the Leader quite a considerable mandate in a majority of 181, and it is disappointing that a Joint Committee will not be considering this, which I will return to in a moment.

Equally to be reflected upon is a good article published during the summer, on 21 August, by Professor Adam Tomkins, who will be known to some noble Lords. He based the article on evidence he submitted to the Commons Procedure Committee. He said that:

“On one level the Government are right that their proposed Standing Orders are ‘a relatively modest step’ … But even relatively modest steps can have profound consequences—the ripple effect of these proposed Standing Orders may be significant, and may not yet be fully understood”.

I agree. He went on to refer to the potential consequences for the Select Committees of Parliament which cover areas of jurisdiction that apply only to England or to England and Wales, such as health, education and so on. Adam Tomkins’s views should be taken into very careful consideration because he was the Conservative nomination for the Smith commission and he is the constitutional adviser to the Secretary of State for Scotland. This is not simply our Benches saying that we need to consider it carefully. He went on to say in his article that:

“If the Government want their ‘relatively modest proposal’ to stand the test of time, they would be well advised to proceed with less haste and more care”.

I agree with him entirely. It is therefore reasonable for us to argue the case for more care and less haste.

I say with respect to the Leader of the House that these are not proposals which should be, as she put it in her opening remarks, tested in real time. This is not a software program; it is the British constitution. We should not be creating a beta form of Parliament where we only see it operate in real time. As I will comment on later, the legal consequences should also give the Government pause for thought.

I understand the politics: we saw clearly the day after the referendum that Professor Tomkins and others should be heeded. How do we monitor success in this real-time evaluation? Is it about opinion polls or the views of voters in England about English votes for English laws; or is it about the proper functioning of Parliament and its impact on legislation? The impact on Parliament is under strong consideration. My noble and learned friend Lord Wallace of Tankerness made the point that if this House amends a measure which goes to the other place and is vetoed by only one part of that House, what status does that give to legislation that should be from all parts of Parliament? I use, as an example, our consideration of the Energy Bill today. There are parts of that Bill which, under the Government’s proposals, would be certified as English-only. If, on considering English wind farms, for example, and seeing the wider impact of the proposals on other parts of the United Kingdom, this House amended the legislation because it believed that the whole of the United Kingdom should be taken into consideration, that would change the whole aspect. That could be vetoed—using the Government’s language—by only one part of the House of Commons. If that would not create constitutional friction, I do not know what would.

This was not sufficiently addressed in the Leader’s speech, nor in the proposals for the Standing Orders. However, it draws into focus the complexities to which noble Lords have referred in this debate. The real difficulty will be when it comes to certification. The noble and learned Lord, Lord Hope, the noble Lords, Lord Reid of Cardowan and Lord Foulkes, and many others have commented on this difficulty. It is not going to be at all straightforward to easily separate out measures that the Standing Orders suggest are,

“relating exclusively to England or to England and Wales”.

The fact is that no reasoned arguments for the certification need to be forthcoming and it will not be sufficient for there to be some form of reflection for only two individual MPs. This will add even more pressure to the concern, expressed by the noble and learned Lord, Lord Hope of Craighead, that this is now opening up a new approach where the decisions of the Speaker could be challenged. They will certainly not be exempted under this area.

When the Scottish Parliament was established as a primary legislature, it was no accident that the certification process was given a statutory footing and clarity in the Standing Orders under Section 32 of the Scotland Act and in other areas. The Government should reflect very carefully on the response of the Scottish Parliament’s lawyers to the Commons Procedure Committee. Their argument was that, even under the 1999 agreement—which had a statutory footing and clarity—there remain areas where it is not easy to distinguish between the two. It is not going to be a purely benign area and if the Leader of the House thinks it is not going to be subject to challenge then, with the greatest respect, the Government are naive. I was a Member of the Scottish Parliament; I have been a Borders MSP. My whole political experience has been involved in cross-border, cross-competence and cross-jurisdiction areas. My home town of Berwick has changed hands between England and Scotland 13 times. Perhaps as a Berwicker I have a genetic disposition to be warning the Government, but it will not be straightforward.

The position held by the noble and learned Lord, Lord Hope, should be heeded very carefully because of the significant transfer of powers to the Scottish Parliament that will be coming by 2018. I am strongly in favour of these unprecedented welfare and tax powers. They may not be universally supported across the House but, whether you are in favour of them or not, this is what the Government are proposing and the Leader mentioned it in her opening remarks.

If I may offer any advice from a humble, newish Member of this House, it is to take care and to pause until the implementation of these powers is in place. As the noble Lord, Lord Forsyth, indicated, the tax powers will be significant. It may mean that the Finance Bill in the Commons will have to be stripped out; there are specific aspects as regards the ways and means measures in the Finance Bill. The decisions on the rate of personal allowance will effectively be UK-wide decisions—one may wish to call it a federal tax—but the rates and the application will be applicable to England. I think that the splitting of the income tax between the areas that cover the Scottish rate for income taxpayers and others has not been considered in any great detail and there needs to be additional clarity. If the Government think that an area of certification or simply Standing Orders that are lifetime-tested, which the Procedure Committee in the Commons considers to be an experiment, are not vulnerable to tax law and potentially to cross-border fraud and tax competition issues, with the greatest of respect, they are naive.

I do not think that the Leader of the House appreciates that we are entering a new constitutional era with welfare. The Government’s own measures being debated in the Scotland Bill in the other place—they will be coming here—propose that UK Ministers will be exercising powers concurrently with Scottish Ministers. I would be interested to know how the Leader of the House can believe that powers that will be exercised concurrently with Scottish Ministers under legislation, and will explicitly cross competence between the two, can be certified straightforwardly.

In conclusion, the time is right for this to be looked at within the wider context of the constitution through a convention. As the Commons Procedure Committee called this “an experiment”, I do not believe that it is appropriate enough to be governing primary legislation in this Parliament. Surely it is better to approach it through a constitutional convention. I would even welcome amendments proposed by the Government to make the specific remit of this issue to be part of such consideration.

I have mentioned my home town of Berwick, which was famous for giving one word to the English language from when the Scots landowners gave their fealty to John Balliol as the protector of Scotland. They had to sign the Ragman Rolls. Over the centuries, “Ragman Rolls” has become “rigmarole”. As they stand at the moment, the proposals of EVEL are a rigmarole and they should be put on a better footing through a convention where we all debate a much more coherent way forward.

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Leader of the House of Lords and Lord Privy Seal 9:23 pm, 21st October 2015

My Lords, this has been a very good debate with a lot of serious contributions by serious Members of your Lordships’ House. I scheduled this debate to allow for views to be expressed before tomorrow’s debate in the other place. Normally we do not refer to individuals who are not in the Chamber and may be standing below the Bar, but the noble Lord, Lord Foulkes, highlighted that Mr Bryant had been listening to the debate. I do not know whether noble Lords noticed, but the Leader of the other place was also sat on the steps of the Throne for a good part of the debate. I know that, by coming here tonight, he was keen to hear what noble Lords had to say on this very important matter.

Many sincere views are held and many serious points have been made. In responding, I will approach the debate in two parts: I will address the substance of the proposals put forward by the Government and then come to the relationship between this House and the other place. First, I just want to say that, as much as I acknowledge the serious and sincere contributions that noble Lords have made tonight, we as the

Government are also very sincere about this matter and how serious this issue is. As I have already said, but it stands up to repetition, there is currently a sense of unfairness among many people in England and a desire for that unfairness to be addressed and addressed sooner rather than later.

As we have heard acknowledged several times, this matter has been around for a long time. We have tried collectively, in different ways, to come up with an answer to the West Lothian question. As I said at the start of the debate, I am not sure that there is a perfect solution and answer to that question. We feel, having been clear in our manifesto that this is something we will address and get on with addressing, that our approach in amending Standing Orders in another place and allowing for a review in a year’s time allows us to do so in a way that addresses the important substance of the matter, but also means that we can start to look at it in practice, not just in theory. The noble and learned Lord, Lord Hope, asked why we are not using primary legislation, and that is one of the reasons why we are not doing so at this time. However, we think that one of the things that we should look at when this is reviewed is whether primary legislation should be used. One of the benefits of addressing this matter by amending Standing Orders rather than through legislation—this has not been raised tonight, but was in earlier debates on this, I think by the noble Lord, Lord Lisvane—is that parliamentary privilege is protected.

I will move on to the substance of the proposals put forward by the Government, starting with the points raised on the role of the Speaker. The noble Lord, Lord Reid, my noble friend Lord Forsyth and others questioned whether the Speaker would be put in a very difficult position in terms of the responsibility added to his role in the other place. I argue that the Speaker is already required to take some often complex decisions and apply a judgment in a political environment and in difficult situations. Our revised proposals—we have adapted them since the summer, having listened to points made by Members of this House and the other place—give the Speaker discretion over whether to provide reasons for his certification. The judgment is his to make.

On the addition that the Speaker can consult members of the Panel of Chairs, these are not random Back-Benchers. They are Members who can already advise him on things such as money Bills. These are Members of the other place who already exist for a specific purpose. They would offer that advice and additional advice should the Speaker need it in this context.

My noble friend Lord Forsyth raised questions on spending and taxation matters, as did other noble Lords. I shall run through some of the specific issues in this regard. As I have already said, all MPs will be able to vote on all legislation, the Budget and supply estimates. MPs from across the House will continue to make all legislation together. The process for deciding the level of the block grants awarded to the devolved Assemblies will remain unchanged. All UK MPs will continue to vote on the Budget and all aspects of income tax but, additionally, English MPs will be able to approve changes to some taxes in the future. That is the same as for MSPs, who will have the final say on the relevant income tax after the Smith agreement has been implemented.

The noble Lord, Lord Butler, and the noble—

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

I am sorry to interrupt my noble friend, but will she deal with the following point? If English MPs are going to vote on English tax, and if they decide to reduce income tax, that will have implications for the block grant because, if they reduce income tax, less money will be available for the programmes; and the Barnett formula, which the Government wish to retain, would mean that they would get a proportion of that. So it is not true to say that decisions taken by English MPs on English tax have no effect on Scottish MPs’ constituents, or, indeed, on the decisions which the Scottish Parliament would then have to take. So how will that be resolved?

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Leader of the House of Lords and Lord Privy Seal

The process for deciding the block grant remains unchanged. All Members of the other House will continue to have the same powers as they have now in deciding that matter.

Photo of Lord Reid of Cardowan Lord Reid of Cardowan Labour

I am grateful to the noble Baroness. Following on from that, and with great respect, I do not think that she understands the question or the formula. The Barnett formula will allocate a proportion of government moneys to the Scottish Parliament. If, as a result of a decision of English MPs on English taxation, that reservoir is reduced, then the block grant by the formula under Barnett will be reduced. Therefore, the money going to the Scottish Parliament, and through it to the various constituencies, will be reduced. So here is an example of what appears to be an English decision that has direct financial implications for the Scottish Parliament and the Scottish constituencies. How is that to be resolved?

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Leader of the House of Lords and Lord Privy Seal

The noble Lord is not being unfair when he says that we are now going beyond my level of knowledge of the way in which the Barnett formula works. While I am on my feet, I will see whether I get any additional information to assist me in responding to the noble Lord on this matter. For the moment, it is probably best for me to move on from that rather than try to guess at an answer to the specific point.

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat

I am conscious of the time, but before the Leader moves on from tax, perhaps I may ask whether the consequence of what she has just said is that, going forward, all taxes will have to be certified. If there are to be separate votes for English MPs on taxes—which are equivalent to those to be devolved to the Scottish Parliament, on the rates of income tax and all the other taxes within the Smith agreement that the Scotland Act is delivering—the consequence is that every single tax will have to be certified by the Speaker as to its competence; otherwise the system cannot work. Will that be the position?

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Leader of the House of Lords and Lord Privy Seal

The process that the Speaker has to follow in order to certify Bills will apply. As regards Bills being subject to the certification process, there is no separate arrangement for a separate kind of Bill. Each Bill that is introduced into the House of Commons will be subject to that certification process. If there are aspects of a Bill which concern only England or England and Wales, they will follow the respective process which will allow for the English, or English and Welsh, MPs to have a greater voice and say on the decisions that affect only their constituents. That is what the English Votes for English Laws arrangements mean.

This is probably a good time for me to move on to the point raised by the noble Lord, Lord Butler, and others about the veto of English MPs and other matters of that kind. The important thing to stress is that what these provisions do is give a stronger voice to English MPs. We are not removing power from any Members of the other place. It is about giving a greater voice to English MPs. As far as a veto is concerned, the point that I have made in previous debates, and I stress again, is that what English MPs will not be able to do is initiate something without the approval of the whole House. They cannot overrule the whole House but neither can the rest of the House overrule them. It is about a power to stop something which directly affects their constituents and nobody else’s. It is not about them having a power to introduce something which would be for the benefit of their constituents only, without the support of the rest of the House.

Photo of Lord Tyler Lord Tyler Liberal Democrat Lords Spokesperson (Constitutional and Political Reform)

Dancing on the top of pins at this time of night is not a happy experience. What is the basic difference in principle between a veto that stops something happening and, in the terms that the Leader has been explaining, one that prevents something from being initiated by a group? It is playing with words. It is semantics. If there is a veto, there is a veto, and that veto is going to be exercised—for the first time ever in the Westminster Parliament—by a smaller group than the whole Westminster Parliament, including, as we discovered earlier today, matters that come from this House to the other place.

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Leader of the House of Lords and Lord Privy Seal

I will come in a moment to ping-pong and how amendments made by this House are considered by the other place, but I disagree with the noble Lord about his interpretation of what I am saying. I am very clear that there is a difference between somebody having the power to stop something and somebody having the power to force something through that others are not in agreement with.

Moving on to this House, and to pick up the point raised by the noble Lord, Lord Tyler, as I have already said, our powers remain exactly the same and our procedures are not affected. We will be able to consider legislation in the future in exactly the same way as we do now. When we amend legislation and we send a Bill back to the other place, the Speaker will have to certify our amendments again. He will certify whether the amendments that have been made—

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Health), Shadow Deputy Leader of the House of Lords

The Leader says that what has been proposed does not change anything in this House. My question is: why not? I go back to the point raised by the noble Lord, Lord Forsyth. This is a most extraordinary situation, where his MP will not be allowed to take part in key decisions, whereas he, as a Member residing in Scotland, is. We have yet to hear any convincing argument about why the two Houses are being treated differently.

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Leader of the House of Lords and Lord Privy Seal

Although my noble friend does not agree with the reason why the two Houses are being treated differently, he answered his own question, which is that we are all Peers of the United Kingdom. We do not represent any particular part of the United Kingdom. As I said when I first repeated the Statement that introduced these proposals a few months ago, as much as I am proud to come from Beeston and wanted to take Beeston in my title, I do not represent Beeston. None of us represents any particular part of the country, so that is why we are treated differently.

When our amendments go to the other place, the Speaker will be asked to certify whether they apply only to England or England and Wales. The other place will consider our amendments in the Chamber in exactly the same way as they do now: the whole House of Commons will consider the amendments made by your Lordships’ House. When MPs come to vote on any such amendments, the votes will be counted for a double-majority. If the amendments that we have made to legislation affect only England or England and Wales, it will be necessary for those MPs to approve our amendments as well as the whole House of Commons.

The noble Lord says, from a sedentary position, that that is a veto. But we have to take a step back for a moment and remember that what we are introducing here is English votes for English laws. We are saying that we want Members of Parliament who represent English constituencies to have a stronger voice. It would make a mockery of that if MPs from those constituencies were not able to have a stronger voice when asked to consider amendments that affect only their constituencies.

This is not the process for amendments that apply to the UK as a whole, but for those that apply to England or England and Wales only. If the House of Commons as a whole votes in favour, but the English or English and Welsh MPs do not support measures that apply only to their constituencies, we will receive back a message that says the House of Commons does not agree with the amendments that we have made. The key point is that we will receive a message in exactly the same way as we do now, with a reason why the House of Commons has decided not to accept the amendments. It will be up to the Government, as they are now, to consider very carefully what has been said by the House of Commons and to consider what we might want to put forward to this House. This House will then decide what it wants to do. If this House still does not agree, it will send the message back again—so our amendments will be considered in exactly the same way. But we cannot introduce English votes for English laws without the MPs who represent English or English and Welsh constituencies having the stronger voice that they deserve when this House wants to introduce something that will affect only those places.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Shadow Leader of the House of Lords

I apologise for detaining the House and to the noble Baroness for intervening—which I rarely do—but I want to make sure that I understand this for the sake of clarity. She talks about the voice of English MPs being heard, but it seems to me that this is about significantly more than that. An amendment passed by your Lordships’ House, whatever the size of the majority—such as the one on a Joint Committee which passed by 101 votes—would go to the House of Commons. It could be passed by the House of Commons, but a subset of MPs—the English MPs—would then have a veto. It is not just a voice—that would be an extra Committee stage, a discussion or a debate. This is a veto, and they would be able to say, “No we do not accept that”, even though it would have gone through the House of Lords and the entire House of Commons, and send it back to the House of Lords. So it does impact on your Lordships’ House. It is not just a case of being sent back by the whole House of Commons to be reconsidered; it is a subset of MPs who have a veto—not a voice—who send it back. It does impact on how we work, as we would be asked to reconsider something that we would not otherwise have been asked to reconsider.

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Leader of the House of Lords and Lord Privy Seal

The House of Commons as a whole clearly needs to consider what this House has put forward, and I am sure that we will want to know, when we are considering what comes back to us, not just what the English are saying. We will want to hear.

I come back to what I said earlier. We have come forward with a set of proposals which build on the many different forums that have considered how to implement English votes for English laws. We believe that it is a pragmatic proposal that will allow that to happen. We will review it once it has been operating; we cannot wait for ever to find a perfect solution—I am not sure that one exists—but I believe that we have come up with a clear way forward.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

I promise my noble friend that this is my last intervention. It is on this point and the point made earlier by the noble and learned Lord, Lord Hope. I am not a lawyer, but it seems to me a serious point that if a matter has been passed without the support of both Houses of Parliament, where one part of Parliament has created whatever outcome it is, it loses the protection of sovereignty and is open to legal challenge. Can my noble friend deal with that point?

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Leader of the House of Lords and Lord Privy Seal

I just do not accept that argument. The House of Commons will consider our amendments. If we have decided to make amendments that affect only a certain group of constituencies, the English MPs, it will be for them to be able to send them back to us. The key thing which addresses the sovereignty point is that, in the end, both Houses have to agree. We will keep ping-ponging until we reach agreement.

Please let me make some progress, because I think that noble Lords want me to move on. On the issue of a Joint Committee, I fully accept and understand that when this matter was debated earlier, in the summer, this House was absolutely clear in its view that it wanted a Joint Committee of both Houses to look at the constitutional implications of English votes for English laws. As has been highlighted, I am the Leader of the House as a whole as well as the leader of the party in government and a member of the Government. I assure noble Lords that of course I made it clear that that was a firm view, resoundingly expressed by your Lordships’ House but, as I said earlier, and as I said when we debated this matter a couple of months ago, the Government are clear in their view about not wanting to delay the implementation of English votes for English laws.

My right honourable friend Chris Grayling has replied by approaching the Constitution Committee, as was outlined. Several committees in another place have been looking at the Government’s proposals: the Procedure Committee, the Public Affairs and Constitution Committee, and the Scottish Affairs Committee. The Government do not feel it necessary to create yet another committee to examine the matter, but I am grateful that the chairman of the Constitution Committee in your Lordships’ House, my noble friend Lord Lang, and his colleagues, have agreed to consider what the constitutional implications of the proposals may be and to feed in to the review to which I referred. I am grateful to my noble friend for what he said this evening about that work.

Photo of Lord Tyler Lord Tyler Liberal Democrat Lords Spokesperson (Constitutional and Political Reform)

I think that all Members of your Lordships’ House appreciate the difficulties with which the Leader of the House is faced on this issue. I have one very small suggestion. In my experience, if the Government were to say that they wish the particular amendment which responds to the Motion from your Lordships’ House, the Speaker would be bound to ensure that there was an opportunity to vote on it. That is surely the very minimum that we should be asking the Leader of the House in the other place to do: simply to make sure that there is a proper response by the whole House of Commons to the whole House of Lords.

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Leader of the House of Lords and Lord Privy Seal

That matter now sits in the House of Commons. I am the Leader of the House of Lords. I am not the Leader of the House of Commons, as is very clear. That is something that we will now have to leave with the House of Commons and see how it wishes to consider it.

I shall draw to a conclusion and make a couple of brief points. Several points were made this evening about noble Lords feeling that this House is being ignored by this Government and that we are not taking seriously the need for our legislation to be properly scrutinised and debated in your Lordships’ House. I absolutely reject that opinion. Although we are no longer in coalition and this is a new Government, it is worth remembering that in the previous Parliament 21,000 amendments to government legislation were tabled in this House and 6,000 of them were passed or accepted. That is a measure of how seriously this House is taken and of the importance of its work. In the past few weeks, acknowledging the need for greater time to be applied for debating government legislation, we recommitted parts of the Energy Bill when we wanted to bring forward government amendments to it. The Government responded to the Secondary Legislation Select Committee when it asked for more information on a piece of secondary legislation. So I can assure noble Lords that I take very seriously indeed the role of this House and the need for it properly to scrutinise government legislation, and I will continue to do that—and I am very grateful to the noble Lord, Lord Kerr, for his remarks.

Points were made about the need for a constitutional convention for this and other matters to be considered. Noble Lords will have heard other members of the Government say from this Dispatch Box that we do not believe that a constitutional convention is the right way forward. We were very clear in our manifesto about the changes we want to make to provide greater devolution to all parts of the United Kingdom, and we made much of that during the general election campaign. Having been elected, we are seeking to deliver those commitments in our manifesto—and they include English votes for English laws.

Photo of Lord Reid of Cardowan Lord Reid of Cardowan Labour

I am very grateful to the Leader of the House, and I do not want to prolong this. She said that she would come back on the question raised by the noble Lord, Lord Forsyth, and me. I do not know whether the cavalry has arrived with the answer to that question or whether the answer arrived but was unintelligible. I say that with great sympathy. It has not been a habit in my life to feel sorry for Conservative Ministers, but I do. I think that she has been given what in sport is called a hospital pass on this one. So I quite understand if she, or indeed the Government and the Civil Service, cannot answer tonight. However, will she write to all those who have spoken today, not just the noble Lord, Lord Forsyth, with the definitive answer to that specific question? Although it is specific, it has huge implications for the politics of the relationship between the two major countries, in terms of population, of the United Kingdom.

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Leader of the House of Lords and Lord Privy Seal

The noble Lord, Lord Reid, is always very timely in providing opportunities for me to respond, and by intervening when he did he gave me the opportunity to quickly read the note that had come to me from the Box. I shall share with him what I have learned this evening. English MPs will not be able to reduce the income tax rate in England without the approval of the whole House. English MPs can only prevent the whole House imposing an English rate without their consent, not the other way around. All MPs are involved in all legislation, including on tax. I hope that that has clarified the matter, but it looks as if it has not.

Photo of Lord Reid of Cardowan Lord Reid of Cardowan Labour

I am very grateful, although this may extend the discussion. I did not quite understand the noble Baroness’s reply. It may be a lack of mental capacity on my part, but I think that the second thing the noble Baroness said was that English MPs would be able to stop an increase in English income tax. Did I understand that correctly? I was not aware that there was such a thing as English income tax; I thought that there was just income tax. Perhaps she could explain that to me or have a quick word with her officials later.

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Leader of the House of Lords and Lord Privy Seal

What I shall do is read out the note a little more slowly, and then I will happily commit to sending the noble Lord and others a letter. The noble Lord actually has huge mental capacity; I have read this note and I understand it, so if I understand it then I know for a fact he will.

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Leader of the House of Lords and Lord Privy Seal

He has no idea how much of an idol he is to me in terms of his mental capacity, so I do feel that this is not a concept that he cannot cope with. Let me try again. English MPs will not be able to reduce the income tax rate in England without the approval of the whole House. This is about all MPs being involved in legislation, including on tax. English MPs can only prevent the whole House imposing an English rate without their consent.

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Leader of the House of Lords and Lord Privy Seal

The noble Lord, from a sedentary position, shouted the word “veto”. I am afraid that that brings me back to the beginning.

Photo of Lord Reid of Cardowan Lord Reid of Cardowan Labour

The second sentence is exactly what I am questioning—that they can prevent an increase in the English rate of income tax. That slightly confuses me since I assumed that the rate of income tax was a UK rate, and I do not quite see how we are now envisaging a potential increase in the English rate of income tax.

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Leader of the House of Lords and Lord Privy Seal

Because once we have implemented the full Smith proposals, some tax powers will be devolved to Scotland in future. So as far as income tax is concerned, in Scotland they will have devolved power in future, so what English MPs will have will be the power to change rates of income tax that affect only England. This will be a result of the greater devolution. I will give way one last time and then I think the House’s patience will probably have been exhausted.

Photo of Lord Reid of Cardowan Lord Reid of Cardowan Labour

I think that the noble Baroness had better write to me, because I disagree with her on the second part of what she said. A power will be extended to Scotland to increase or decrease its rate of tax, but that will not in any way relate to the power of England to set the basic rate of tax on which the Scottish adjustments will be empowered. However, I will be happy for the noble Baroness to write to me.

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Leader of the House of Lords and Lord Privy Seal

I will write to the noble Lord but will say one last thing. Income tax and budget provisions will be considered by all MPs in the House of Commons in the future, as they are now. This is about changes to specific income tax rates as a result of greater devolution. We will have a situation in the future in which, because of greater powers being devolved to other nations, when there are changes to rates of income tax that apply only in England, English MPs should be able to prevent changes being made that they do not agree to. But I will stop now. I have enjoyed this evening, even if no one else has. I thank all noble Lords once again for their contributions on what is a very serious matter, and I am grateful to them for their contributions this evening.

Motion agreed.

House adjourned at 10.02 pm.