English Votes for English Laws

Debate between Lord Tyler and Lord Reid of Cardowan

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.

Electoral Registration and Administration Bill

Debate between Lord Tyler and Lord Reid of Cardowan

Monday 29th October 2012 Lords Chamber

[Lord Tyler]

My Lords, if the Government feel that the amendment is inadequate in that respect, and my noble friend has made his point eloquently, obviously they can adjust the wording at a later stage. However, the amendment is here for the very specific purpose of assisting a registration officer in Great Britain. In other words, I would take that to be somebody who was within their organisation. If my noble friend has better wording, that is fine, but the point that I have to make is simply this: we already have the precedent, which has existed for a very considerable time, of using data that are already available to Government for this purpose. We are seeking to make sure that that is as full as possible. I think that the noble Lord, Lord Reid, will understand that the great majority of DWP data, cited by my noble friend Lord Rennard, will relate to people who are already going to register, in particular elderly people. What we are concerned about is mobile young people, a concern which has been evident also in contributions from the opposition Front Bench today. One of the ways to get to them is clearly through the student loan data and those who register for provisional licences.

[Lord Reid of Cardowan]

I make it clear to the noble Lord, as I did previously, that I do not approach this proposal with cynicism, and I certainly did not suggest that I was in any way suspicious of either his motives or those of the noble Lord who moved the amendment. Indeed, it is courageous that representatives of Liberal Democrats want to put more students on the electoral register. That illustrates that they are not doing it entirely for their own benefit. What I am saying, however, is that you should not take a step down this road, which is to bring together data mining and data matching across government departments, unless you recognise the profundity of it.

Does the noble Lord accept that there will be increasing pressure, in times of austerity, for the government departments that he mentioned to move to the cloud, rather than retain their own databank and their own hardware? There will be great pressure—I see that the noble Lord agrees with me. Does he understand that many of the cloud servers have a business model that is dependent on mining the data that pass through their server in order to get to the databank? Therefore, you should not aggregate these data in such a way unless you recognise that the people in the private sector offering you the service of the cloud will mine those data. Maybe the noble Lord has already considered this but I am trying to make sure that we do not take such a step—not because I am cynical or doubt his motives but because real, profound questions arise out of it.

[Lord Tyler]

The noble Lord has been generous enough to say that he does not in any way question the integrity or approach of my noble friend or me. I do the same for him. I very much appreciate and endorse what he said. In the fast-moving world that we are talking about, these are proper concerns. The whole issue of who would operate the identity cards to which he and his Administration were committed raised precisely those questions, too. I think he would now accept that.

All we are saying here—I look forward to what the noble Baroness will say—is that, having already committed to the use of the DWP data, it is only reasonable to examine other databases that may be balanced in a different way demographically and politically. Maybe the terms in which our amendment is written need to be more carefully considered. That is fine; it is what a Committee stage in your Lordships’ House is all about. I entirely understand the concerns that the noble Lord expressed but we have to be very careful. If we went right down the road of being risk-averse on these issues, we would do no data matching or mining at all and the register would become even more inadequate than it is already. That is a very serious proposition.

I do not know if the noble Lord was in the House earlier, but we had to identify that the status quo now is totally unacceptable. We have dropped back to the low 80s in terms of the completeness of the register. We are not where we were 10 years ago. I think it is agreed on all sides of the House that we have to look at every possible way to improve the integrity of the register both in completeness and accuracy. That is the purpose of our amendments.