Legislation (Territorial Extent) Bill

Edward Leigh Excerpts

Friday 9th September 2011 Commons Chamber

[Mr Edward Leigh (Gainsborough) (Con)]

So in reality these amendments are not really important in the hon. Lady’s estimation; she is simply intent on wrecking this Bill by any means possible. That is the reality, is it not?

[Helen Goodman]

I am not intent on wrecking the Bill; I am intent on opposing it, which is not quite the same thing.

[Mr Leigh]

Perhaps I used the wrong words. What the hon. Lady is determined to do is stop this Bill making any further progress. That is the reality and she might as well be honest about it.

[Helen Goodman]

rose—

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The hon. Lady must surely be aware that another problem with the Bill is that she has not provided proper definitions, which makes it difficult to understand precisely how it would operate. On amendment 14, again, the hon. Lady is talking about something that does not exist. For example, she has made great play of the Barnett formula, but she must know that the Finance Bill is not presented in draft. As far as the Finance Bill is concerned, we vote on some of the money resolutions on the afternoon that the Budget is presented. It is not possible to do what she is suggesting on what is surely one of the measures that she is most concerned about. It is quite clear that the intention behind the Bill is essentially a political intention, to do with an internal dispute within the Government parties, and Her Majesty’s Opposition have no wish to intrude on private grief.

[Mr Leigh]

On a point of order, Mr Deputy Speaker. These amendments are really technical amendments, to insert “presenting” rather than “publishing”, but the hon. Lady is very much turning this into a Second Reading debate. She is not speaking to her own amendments.

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

That is for the Chair to decide, as the hon. Gentleman well knows. I would point out that I am allowing a little bit of latitude and, in fairness, the hon. Lady has been brought back to the point, to which, in general, she is sticking at the moment. I will decide from the Chair how far we go.

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My hon. Friend the Member for North East Hertfordshire (Oliver Heald) referred to the Scottish procedure. That is addressed in Standing Orders so that it remains internal to this House. Arbitration on those Standing Orders lies with the Chair, so the courts are not allowed to trespass on the rights of this House. Therefore, I think that the hon. Member for Dunfermline and West Fife—I was almost tempted to call him my hon. Friend because of his overly kind comments about me, which I do not think will have done me any favours with Members of my party—would have been completely in order if he had started discussing the ability of the courts to trespass on, and interfere in, the rights of this House, because the amendments selected for debate widen the Bill’s scope to cover legislation, which would present the risk that I have outlined. That is why we would oppose the amendments—although I note that the hon. Member for Bishop Auckland has said she will not call a Division. The amendments also illustrate why, although this Bill has been an excellent vehicle for debate, it does not represent a solution to the justified concerns of hon. Friends.

[Mr Leigh]

This is an extraordinarily narrow amendment to what is a tentative, but worthwhile, Bill. Therefore, on the point the Minister is making now, will he undertake to bring in real legislation once and for all to deal with the West Lothian question, so that Scottish MPs do not vote on English business?

[Mr Harper]

I was listening very carefully at the beginning of the debate, and when my hon. Friend intervened on the hon. Member for Bishop Auckland, he referred to her amendments as technical amendments. She concurred, but they are not technical amendments at all as they would radically change the nature of the Bill, in that it would apply no longer only to draft legislation, but to all legislation presented in the House. They are not technical amendments at all, therefore, as they fundamentally reshape the nature of the Bill. I am not surprised that my hon. Friend, who has only had a limited opportunity to study the Bill, said that they were merely technical amendments, but I am a little surprised that the hon. Member for Bishop Auckland concurred, because I would have expected her to be able to see that they are significant and broad ranging.

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[Mr Harper]

You are always very quick to keep Members in order, Mr Deputy Speaker, but I was about to resist the temptation offered by my hon. Friend and instead ask him if he would permit me to come back to the point. I do not have to ask him now as you have instructed me not to address it now. We touched on this point in the written statement I tabled yesterday, and I will flesh it out on Third Reading.

Returning to the points the hon. Member for Dunfermline and West Fife made on the amendments, we will not support them because they widen the scope of the Bill significantly and are therefore not just technical in nature. It is helpful that the Opposition have tabled them, because they have demonstrated, as I started to say, why this legislative approach is likely not to be the solution to the West Lothian question—this was the point suggested by my hon. Friend the Member for Gainsborough (Mr Leigh). If the West Lothian question is about how this House legislates, any solution will probably have to be carried out through Standing Orders so that this House remains in control of it rather than the courts being permitted to start interfering, which is the last thing we want.

Having dealt with the amendments as a whole, let me turn now, briefly, to amendment 6, which defines legislation as both primary and secondary legislation. It is worth making the point that there is no need to include secondary legislation because it is made by virtue of the powers given to Ministers in primary legislation.

[Mr Leigh]

This is a very important point. If I understand it rightly, the Minister seems to be saying that the West Lothian question cannot be dealt with by legislation because that would be subject to interference by the courts, and that it should be dealt with by Standing Orders. That is where we are going now, is it? The Minister is speaking on behalf of the Government on this incredibly important issue. Are we moving towards a process by which the Government will move a motion through the House to amend Standing Orders to deal with the West Lothian question? Is that what he is saying?

[Mr Harper]

No, that is not what I am saying. I am saying that it is a complex matter and I shall say a little more on Third Reading, when I am permitted, about the commission. I am simply saying that a statutory solution is unlikely to work because if a statutory solution were to touch on the legislative process and legislation, which is what Members are interested in, as opposed to draft legislation, it would open up the proceedings of this House to the courts—this is exactly why my hon. Friend the Member for West Worcestershire wisely kept the scope of her Bill to draft legislation. That is not something that Members want to do and if we proposed to do that, I am sure that the Clerk of the House would give evidence to the Committees of this House to point out the great risks of that approach, as has happened before. My hon. Friend the Member for Gainsborough is in danger of jumping forward, and I suspect we can have a little more debate on this matter on Third Reading without my risking the danger of being ruled out of order.

On amendment 6, as I was saying, secondary legislation can have only the same territorial extent as the powers set out in primary legislation, so that aspect of the amendment is not really necessary. Amendments 8 and 14 are fairly minor in detail so I do not propose to refer to them.

Overall, the amendments are not necessary. It is worth discussing one thing, however, because it is relevant to the amendments. The amendments widen the scope of the Bill to cover legislation and I want briefly to remind Members—this was touched on, briefly, by the hon. Member for Bishop Auckland, and I will not dwell too long on individual Bills as you will rule me out of order, Mr Deputy Speaker—that when Ministers publish legislation they already have accompanying provisions on extent. We set out in the territorial extent clauses in the legislation which clauses and schedules apply to which legal jurisdiction. There is also a territorial extent section in the explanatory notes that accompany all Bills that describes the extent provisions in more detail in a more narrative form, explaining which parts apply to each part of the United Kingdom. If Bills have an effect on finances and Barnett consequentials, those are set out when legislation is put before the House.

So that Members have a better idea, let me give one or two short examples. The Health and Social Care Bill had a fairly detailed territorial extent clause. The default position was that the Bill extended to England and Wales, but certain parts of the Bill extended to England and Wales, Scotland and Northern Ireland, some to England and Wales and Northern Ireland, and some to England and Wales and Scotland. There was more detail in the explanatory notes, which set out which parts of the Bill they were. For example, part 2 of the Bill abolished the Health Protection Agency, a body with a UK-wide remit, so those clauses were UK-wide. Others referred to special administration procedures that were UK-wide. The clause is legal and technical but describes in some detail how the Bill applies to each part of the United Kingdom.

As the hon. Member for Perth and North Perthshire (Pete Wishart) said, the reason he and his colleagues are able to consider legislation and make a decision about which ones they chose to speak and vote on is that they can look at the territorial extent clauses and make that judgment.

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[Harriett Baldwin]

I reassure the hon. Gentleman that nothing is further from my intention than to revisit the regional question, which was so resoundingly defeated by the voters of the north-east as a complete white elephant. I am talking about England—I am sure that the hon. Gentleman understands what we mean by England—and I am talking about issues that increasingly come before this Chamber that refer just to England.

I want to thank colleagues, the Minister and those who worked so hard on the Bill in Committee for allowing us to reach the stage in the debate where I can reiterate what the Bill does. It essentially does three things. In developing those three things, it has drawn on the work of those much wiser, more experienced and more eminent than myself. I am a mere new Member of the House, so I was able to benefit from learning about the recommendations that have come through a couple of sources. Let me start by reading from the recommendations of the Justice Committee in the previous Parliament.

In 2009, the Justice Committee prepared a report called “Devolution: A Decade On”. In its conclusions and recommendations, it said:

“The question of whether England-only legislation can be more clearly demarcated from other legislation has to be resolved if any scheme of English votes for English laws is to work.”

[Mr Leigh]

I do not understand what the problem is. Why should there be any difficulty for the Government in recreating our old Standing Orders to allow us to demarcate legislation as English? We used to do it with Scottish legislation; why can we not do it with English legislation? It could be done in five minutes.

[Harriett Baldwin]

My hon. Friend makes a perfectly valid point, but I will speak about some of the other recommendations of the Justice Committee, which are relevant to some of the other clauses in my Bill:

“Even if legislation could be more clearly distinguished, the current system of territorial financing in the UK post-devolution means that the levels of public finance decided for England determine levels of resource allocation to Scotland and Wales. While we agree that the system could be changed in order to remove this effect, such a change would be a necessary prerequisite”.

I have taken a slightly different approach in this piece of legislation, which is to spell out on the face of the draft legislation what impact the Government think it might have on the Barnett formula and any successor formula. That would allow hon. Members who represent the Scottish National party to look at the legislation and reassure themselves, for example if there were no financial consequences, that they could have their hand strengthened in some way in their practice—which was mentioned earlier by the hon. Member for Perth and North Perthshire (Pete Wishart)—of not voting on legislation that does not affect their constituents.

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[Thomas Docherty]

My hon. Friend makes an important point, and I suspect that Mr Fraser would like to have that debate. The hon. Member for Perth and North Perthshire is a sensible man—on occasion he is a Dunfermline Athletic fan, and he played in a half-decent band, so he has occasional good judgment—but I disagree with him and Mr Fraser, because Scottish Conservatives, as such, now believe in full fiscal autonomy, it would appear. My hon. Friend the Member for Edinburgh North and Leith (Mark Lazarowicz) is absolutely right: under that proposal, there would be separate Budgets from the Chancellor for those measures that apply to Scotland only, and those that apply to the rest of the United Kingdom.

The hon. Member for West Worcestershire talked about her great desire, which I think is genuine, to have decisions made at the lowest level of government. I notice—I went out and checked—that in proceedings on the Scotland Bill, she voted not to devolve power over the railways to the Scottish Parliament; that did not quite seem to fit with her logic. I suspect that there are several other cases where Conservatives claim to believe in giving greater power to Scotland, but in proceedings on the Scotland Bill have voted against doing that. I am sure that that was simply an oversight on her part, and not an inconsistency in approach.

Lots of Bills that pass through this House, or begin up the other end of the Corridor, appear on the face of it to be England-only, or England-and-Wales-only, but have clauses inserted by the Government—or have Back Benchers on either side of the House, or our Front Benchers, attempt to insert a clause—that would apply to the whole United Kingdom. I shall give one simple example. The rules for election to the Scottish Parliament are set by this place. We determine the boundaries, and the age at which people can vote in those elections. That is clearly a matter that affects only Scotland. I cannot possibly see how that would be anything other than a matter for the Scottish people; I would be grateful if hon. Members could point out a flaw in that thinking. However, as that is part of the Scotland Bill, I think that the argument of the hon. Member for West Worcestershire would still be that she, an English MP, would vote on the Scotland Bill, and on each part and clause of it, because the Bill would have been categorised by the Secretary of State as a Bill that impacts on multiple territories. I regret to tell the hon. Lady that that inconsistency means that her Bill is not perfectly formed.

[Mr Leigh]

The hon. Gentleman asked Members to intervene; I will, and I am prepared to concede that I should not be allowed to vote on the Scottish Bill, or on anything to do with Scotland, if he will concede never to vote on anything to do exclusively with England.

[Thomas Docherty]

I am sorry to disappoint the hon. Gentleman, but I do not believe in that logic. I believe in the United Kingdom. I hear repeatedly from Government parties, “I believe in the United Kingdom”. Unlike the hon. Member for Perth and North Perthshire, who is a proud separatist and supporter of independence, I believe that we are stronger together. Under our system, we are elected to the Parliament of the United Kingdom. If the Government parties wish to create an English Parliament or Assembly—I am not a supporter of regional assemblies, and I welcome the decision of the people of north-east England overwhelmingly to reject a regional assembly—they should bring forward that legislation. That is not what they told people at the election.

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[Thomas Docherty]

My hon. Friend, as ever, makes a compelling argument. Indeed, as an ex-lawyer he does so much better than I ever could.

It is all about interpretation. Many people in London with strong feelings about the Crossrail Bill would have said that it had nothing to do with Members from other parts of the United Kingdom. It is, to some extent, in the eye of the beholder.

Turning to the suggestion of the hon. Member for West Worcestershire about the Secretary of State, she is a rational and reasonable individual and is a supporter of the Speaker, but it is possible that some of her colleagues are not so rational or have swivel eyes and are anti-Speaker. The measure is not designed to help the Speaker: it is about fixing the board for the game. Surely, it is in a Secretary of State’s interest, one way or the other, to determine for the benefit of their own party or of the coalition whether or not MPs of other nations should be allowed to vote.

[Mr Leigh]

Let us concede that it is not the Secretary of State who should decide those things but the Speaker. Presumably the hon. Gentleman would accept that the Speaker would make that determination.

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[Mr Leigh]

As usual, my hon. Friend gives a very erudite speech. In all the chaff that came from the mouth of the hon. Member for Dunfermline and West Fife (Thomas Docherty), however, there was a grain of truth. I must put this to my hon. Friend, because he is one of our leading experts on the matter. If the current system works quite well and if, as we know, we can rely on the Speaker for his impartiality, need we add anything to the process? Need we add the Secretary of State? I make that point because it is important that we debate these matters seriously.

[Oliver Heald]

My hon. Friend has taken a great interest in the issue over many years and has great knowledge of constitutional matters. He makes a fair point, and I agree that the proposal may not be necessary. It may be an added extra that introduces complexities in a way that does not help as much as we think. However, that is one of the blessings of the commission, in that it will be able to look at that point—speedily, I hope—and come to a conclusion. It is important that serving on the commission are people who can bring experience and knowledge on this topic. I hope that it will be possible for the Clerk and the senior officials of the House to submit evidence to the commission or to take part in its proceedings, so that expert knowledge is brought to bear on this important point.

Finally, there has been a lot of talk about how if we had English votes for English laws, there would be two sorts of MPs. That is nonsense. When the Scotland provisions were used, nobody ever said that there were two classes of MP; indeed, one could argue that there are two classes of MP at the moment, in the sense that Scottish Members cannot deal with matters that affect their own back yard. The argument is nonsense. We are all elected on the same basis and we have Standing Orders to deal with matters. We have previously had a Scottish procedure; why can we not have an English one?

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[Mr Leigh]

We have had a very long debate, but the issue is terribly simple. I agree with virtually everything that the hon. Member for Perth and North Perthshire (Pete Wishart) has said—apart, of course, from the end game of what he is trying to achieve. The rest made sense. The issue is actually extremely simple, as becomes clear if we look at both the Bill before us—which is what we are supposed to do anyway on Third Reading—and our Standing Orders.

The Bill, actually, does not pose innumerable political problems for either side of the House. All it says, under the heading “Duties of the Secretary of State”, is:

“The Secretary of State must, when publishing draft legislation, ensure that the legal and financial effect of that legislation on each part of the United Kingdom is separately and clearly identified.”

It is as simple as that. It does not actually address the substance of the West Lothian question, but something that can address the substance of the West Lothian question is already in our Standing Orders.

It is so simply put in Standing Order 97(1):

“After any public bill has been first printed, the Speaker shall, if of the opinion that its provisions relate exclusively to Scotland, give a certificate to that effect”.

The House within five minutes next Tuesday afternoon, if it wished, could simply pass a motion to amend its own Standing Orders so that they read, “After any public bill has been first printed, the Speaker shall, if of the opinion that its provisions relate exclusively to Scotland or England, give a certificate to that effect”.

The hon. Member for Dunfermline and West Fife (Thomas Docherty) has said—some of the points that he made were quite good—that there might be great political consequences. There would not, because as my hon. Friend the Member for North East Hertfordshire (Oliver Heald) has said, Standing Order No. 97 is not a closed Standing Order, because it gives a route to the House and the Minister. Once the Speaker has given his certificate, that is not the end of the process, because Standing Order No. 97(2) states:

“On the order being read for the second reading of a bill so certified, a motion may be made by a Minister”.

To respond to the hon. Member for Perth and North Perthshire, if there was doubt about whether the tuition fees Bill related exclusively to England—on the face of it, one might think that it would relate exclusively to England, given that it concerns education—because of a possible knock-on financial effect for Scotland, there could be communication through the usual channels. Despite the Speaker’s certificate sending the Bill to Grand Committee—the English Grand Committee in this case—I am sure that we could accommodate the SNP, because our Standing Orders are sensible and, as my hon. Friend the Member for North East Hertfordshire has said, we have to live together in this place. In such circumstances, we could say that the tuition fees Bill should not be given to the English Grand Committee and that it should not be considered exclusively by English Members. There is therefore a neat and elegant solution to the problem.

Despite four decades of debate about the West Lothian question, we could move in a slow and traditional way—in a Fabian way, if I may say so; not a revolutionary way—to solve the problem. We could simply amend our Standing Orders and develop a procedure, bit by bit, through which exclusively English legislation would be referred to an English Grand Committee, so that only English Members would vote.

If that approach was such a problem, why, during the time we have had Standing Order No. 97—throughout the 20th century and, for all I know, the 19th century—has no hon. Member said that there was a great problem? There was no great debate even between 1992 and 1997. At that time, if the Speaker issued a certificate to say that a Bill was exclusively Scottish, it would be considered by the Scottish Grand Committee, on which the Labour party would have had a big majority, and there was no argument. If there was an insuperable problem with extending the remit of Standing Order No. 97 to England, one would have expected that the measure would have been the subject of great debate in the past, but that was not the case.

To return to the point made by my hon. Friend the Member for Bury North (Mr Nuttall), if the Government wanted to act, they would not need a commission. We would not need even the Bill, because all it does is say that the Secretary of State will express an opinion about how legislation will affect particular parts of the United Kingdom. The Bill is completely harmless, because it ties neither the House nor any Minister.

[Thomas Docherty]

I assure the hon. Gentleman that I am not a Fabian—I probably never will be a Fabian—but the difference between Standing Order No. 97 and the Bill is that clause 1 provides that the Secretary of State will make the determination, not the Speaker. Does he agree that that shows the political danger in the Bill?

[Mr Leigh]

I am grateful for the hon. Gentleman’s intervention, because that point was the one grain of truth in his speech. It increasingly worries me, because I wonder whether we are wrongly politicising the problem. We all know that the Bill, like all private Members’ Bills, is fundamentally a campaigning Bill. We acknowledge our debt to my hon. Friend the Member for West Worcestershire (Harriett Baldwin), because she has achieved a huge amount through her campaign by actually getting a commission set up, even though it is entirely unnecessary.

I understand the point made by the hon. Member for Dunfermline and West Fife. If I thought that the Bill, if enacted, would tie the hands of the House and politicise the process in such a way that a Conservative Education Secretary could determine that a Bill was exclusively English and therefore stop any Scottish Member voting on it, I would have my doubts. However, while my hon. Friend the Member for West Worcestershire may tell me that her Bill is more ambitious than I believe, I can read only what it states:

“The Secretary of State must, when publishing draft legislation, ensure that the legal and financial effect of that legislation on each part of the United Kingdom is separately and clearly identified.”

The Bill does not say that the Secretary of State will decide whether a Bill is exclusively English; all that will happen is that there will be more knowledge. The Speaker would make his determination, but even after that, if my proposal were accepted, the Minister, in consultation with the other parties, could decide that a Bill—relating, say, to tuition fees—should be discussed on the Floor of the House. There is absolutely no problem or difficulty about it.

Hundreds of thousands of words have been talked about the West Lothian question—about how it will divide us, and about how there would be two classes of Member and all the rest of it. That is complete nonsense; we have always had several classes of Member. There have always been Ministers and Back Benchers. There has always been the Scottish Grand Committee, and nobody has said that it would lead to the break-up of the United Kingdom. The Speaker issuing a certificate to say that a Bill is exclusively about English education will not break up the United Kingdom. It is so simple; why do the Government not do it?

[Mark Lazarowicz]

I do not think that the Bill that put into effect the poll tax in Scotland went to the Scottish Grand Committee, but the hon. Gentleman was here then, and I was not, and I may be wrong in my understanding. For lots of entirely non-controversial Bills, an English Grand Committee would not be a problem, but when it comes to controversial Bills, a difficulty might arise, in that Bills might have a majority in England but not be able to carry a majority in the House. That would raise the issue of a Government not being able to operate in a coherent way unless they had a majority in England, as well as in the UK as a whole.

[Mr Leigh]

Between 1992 and 1997—and following the 1983 and even 1979 elections, when there were large Conservative majorities but a decreasing number of Scottish Tory MPs—I remember that there were huge debates about the poll tax and the rest of it, but I do not remember that there was any specific argument about the provisions of Standing Order No. 97. Of course, it would still be in the gift of any Government to say, “This is such a large issue”—the hon. Gentleman mentioned the poll tax—“that we want to consider the legislation on the Floor of the House,” but that does not mean that Standing Order No. 97 is wrong. It does not mean that anybody argued against it. It does not mean that a Standing Order No. 97 could not be created for England, so I do not understand the point that the hon. Gentleman is making.

I suggest that there is a simple, clear, elegant solution. The Government may, by all means, set up the commission if they want to, but they have to get on with the issue now. They have to make some progress. My solution is there; they should get on with it. Although I have talked in House of Commons terms about Standing Orders and all the rest of it, which sounds fairly esoteric, there is a huge political issue, which the hon. Member for Perth and North Perthshire has identified. It is that we have to make some concession to the English public, who are rightly outraged that so many issues that exclusively concern England are voted on by Scottish Members of Parliament, although those measures will not affect them.

I say to the Under-Secretary of State for Scotland, my right hon. Friend the Member for Dumfriesshire, Clydesdale and Tweeddale (David Mundell), who represents the Conservative constituency in Scotland, that he should not vote on English business, any more than I should vote on Scottish education. Indeed, I cannot vote on Scottish education. He should have a self-denying ordinance. I very much hope that when the Minister speaks, he will intimate that he will get on and solve the problem. He is the only one who can solve it, and he can do so within our Standing Orders.