English Votes for English Laws

Lord Lisvane Excerpts

Thursday 16th July 2015 Lords Chamber

[Lord Lisvane (CB)]

My Lords, the Leader of the House told us on 2 July that this issue was fundamentally a domestic one for the House of Commons. Might I very respectfully disagree with her for three reasons? First, as my noble friend Lord Butler said, this is fundamentally a constitutional problem. It is simply that one of the possible solutions to that problem has been presented in terms of changes—extraordinarily complex changes—to Commons Standing Orders.

Secondly, the amendments made by this House will be subject to certification by the Speaker of the Commons, so what we send back may influence the outcome. For example, it will be possible for this House to turn an English-only provision into a UK-wide one, thus avoiding certification and possibly affecting the outcome.

Thirdly, although I hope I am wrong, I see a possible hazard to Article 9 of the Bill of Rights. For the first time, a Speaker of the House of Commons will be asked to certify something that is a matter of law, whether it is within the legislative competence of devolved institutions to make provision for this or for that. This is wholly different from Parliament Act or money Bill certifications.

The Speaker and parliamentary proceedings would be better protected by ministerial certification along the lines of a Human Rights Act certification of a Bill. The possibility of any inroad by the courts into the exclusive cognisance of Parliament is emphatically a matter for both Houses. I should say in passing that those who argued for this to be done by legislation rather than by Standing Orders are going down a very dangerous road. In my view, nothing would bring the courts into Parliament faster than making this arrangement explicitly justiciable through legislation.

My learned predecessor, Sir William McKay—like the noble Lord, Lord Tyler, I gave evidence to his commission—recommended in effect an English legislative consent Motion. That was a very shrewd recommendation because LCMs are animals well known to science. An advisory LCM would have avoided any charge of creating two classes of MP. It might have been possible for the McKay solution to be a first step, later ratcheted up if necessary. It is much more difficult to ratchet down, and of course expectations may already have been raised too high.

We are too tightly constrained for time today and this does argue for a full debate before long. I thoroughly agree that a Joint Committee is emphatically the right way to tackle a major constitutional issue, which is rightly of such interest to both Houses, as it might offer the possibility of some informed consensus, which, at the moment, is rather far to seek.