English Votes for English Laws

Lord Purvis of Tweed Excerpts

Wednesday 21st October 2015 Lords Chamber

[Lord Purvis of Tweed (LD)]

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 tax payers 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.

--- Later in debate ---

[Baroness Stowell of Beeston]

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.

[Lord Purvis of Tweed]

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?

[Baroness Stowell of Beeston]

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.