English Votes for English Laws

Lord Reid of Cardowan Excerpts

Wednesday 21st October 2015 Lords Chamber

[Lord Reid of Cardowan (Lab)]

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.

[Lord Tyler]

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?

[Lord Reid of Cardowan]

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 use it. 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.

--- Later in debate ---

[Baroness Stowell of Beeston]

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.

[Lord Reid of Cardowan]

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?

[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.

--- Later in debate ---

[Baroness Stowell of Beeston]

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.

[Lord Reid of Cardowan]

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.

[Baroness Stowell of Beeston]

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.

[Lord Reid of Cardowan]

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.

[Baroness Stowell of Beeston]

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.

[Lord Reid of Cardowan]

Not necessarily.

[Baroness Stowell of Beeston]

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.

[Lord Reid of Cardowan]

Veto.

[Baroness Stowell of Beeston]

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

[Lord Reid of Cardowan]

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.

[Baroness Stowell of Beeston]

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.

[Lord Reid of Cardowan]

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.

[Baroness Stowell of Beeston]

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.