Legislation (Territorial Extent) Bill

Iain Stewart Excerpts

Friday 11th February 2011 Commons Chamber

[Iain Stewart (Milton Keynes South) (Con)]

I congratulate my hon. Friend the Member for West Worcestershire (Harriett Baldwin) on introducing the Bill. As we have heard, the question it addresses has excited people throughout history. I will not add to the exchange about history between the hon. Member for Rhondda (Chris Bryant) and my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), but in its current guise the question has been around since the late 1970s, when Tam Dalyell, the former Member for West Lothian, posed it during deliberations on the Scotland Bill in 1977, although I believe it was Enoch Powell who coined the phrase “the West Lothian question” during those debates.

Like the Barnett formula, this question is one of the perennial issues in respect of devolution. I often ask myself why that is the case. Should we simply not ask the question any more, as Lord Irvine has suggested? Is this just a constitutional nicety that we should ignore? The answer to that is that if left answered, the question would gnaw away at the bonds that hold the Union together. I am a Unionist and the last thing I ever want to see is the Union of our United Kingdom being ripped up. That is why we must turn our minds to finding an answer to this question. My hon. Friend the Member for West Worcestershire rightly said that Members representing English constituencies get lobbied by our constituents on why some Scottish Members vote on matters that apply only to England. I am not saying that that is the primary topic of conversation down the “Nut and Squirrel” every Friday night, but it does come up sometimes.

[Mr Iain Wright (Hartlepool) (Lab)]

On a point of order, Mr Speaker. I know that you have been in the Chair since the business of the House started this morning so you may not be aware that the High Court has just ruled in favour of the six local authorities who took the Secretary of State for Education to court over his Building Schools for the Future announcement. You will be aware, Mr Speaker, of the extent of the feeling on both sides of the House about this decision, and you will also appreciate the grave implications it will have for the policy of the Department for Education. It also calls into question the competence of the Secretary of State. Mr Speaker, have you received any notification that the Secretary of State will come to the House and explain the botched decision he made and say how he will move forward to make sure capital programmes for schools, including in my own constituency, will now be reinstated?

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[Mr Speaker]

No.

[Iain Stewart]

I was about to give an example of why it is still extremely valid to address the West Lothian question. Last May’s general election did not produce a parliamentary majority for any one party, but it did produce a majority in England for the Conservative party; the Conservatives won a clear overall majority of the seats in England. I accept that no party commanded an overall majority so we had to proceed to a coalition Government, but an alternative coalition to the current one could have been found, such as the “rainbow option” of Labour Members, Liberal Democrats, nationalists, Ulster Members and independents. In that case, the people of England who had voted clearly for a Conservative Government would have been denied that Government, and we would, I think, have entered uncharted constitutional waters. I think there would have been a strong uprising in England on the basis that the will of the English voters had been thwarted. That situation did not arise, but it could have, so this is a very live issue.

A similar situation may arise in this Parliament over a vote to reverse the ban on hunting. That ban applies only to England and Wales from a vote in this House, because the matter is devolved entirely to the Scottish Parliament. Let us suppose there was a clear majority among English and Welsh Members to reverse that ban, but in the House as a whole, with the addition of Scottish Members, there was a wish to keep the law as it is. Why should Scottish Members be able to influence the decision in England or in England and Wales? That situation could arise and, although it might not be the most dominant issue in our postbags, we have to provide for that eventuality.

[Mr Chope]

My hon. Friend is making an excellent point. Will he also consider what might happen in this review that we have been promised? What happens if the commission recommends changing the arrangements to answer the West Lothian question, but that is then unrepresentative of English opinion?

[Iain Stewart]

My hon. Friend raises an intriguing possibility. I hope that the commission does report, but we cannot move to a new arrangement without the agreement of those in the existing system; that is part of our process of constitutional evolution. I hope that we do get that commission and I gently encourage my Front-Bench colleagues to speed it up, because I will wholeheartedly support it.

I wish to discuss an intriguing point made by a former Secretary of State for Scotland in the previous Government, Helen Liddell. It relates to a separate issue but it makes the argument well. When we were debating whether the United Kingdom should join the euro, the then Chancellor, the right hon. Member for Kirkcaldy and Cowdenbeath (Mr Brown), set out five tests by which we should judge whether it was appropriate for the United Kingdom to do so. She made the point that a sixth test should form part of the overall considerations, which was the opportunity cost of not joining: was there a cost to the United Kingdom of not joining the euro? Similarly, we should consider the opportunity cost of not addressing the West Lothian question because if it is left unchecked at some point it will come back to undermine the Union. As a Unionist, that is the last thing that I want. My right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind) was correct to say that this is an evolutionary process. I did not have the benefit of being tutored by Professor Bogdanor, but I was always taught by the equally eminent Professor Michael Rush at the university of Exeter that the British constitution is a product of evolution, not revolution. We should proceed on that basis, but that should not preclude us from turning our minds to this issue.

Theoretically, there are three perfect solutions to the West Lothian question, although I believe that we should reject them because they have other consequences that are either impractical or undesirable. The first option is that the Union ends, which is the wish of the Scottish National party, whose Members are clearly here in excessive number to debate this matter. They do have a perfect option, because under their solution the number of Scottish Members in this House would be zero and the West Lothian question would therefore not arise. However, for all sorts of economic, cultural and social reasons, I do not wish the Union to end.

The second option is to go back to the arrangement that was in place before we had the Scottish Parliament, either by abolishing that Parliament or by following the intriguing suggestion made by my hon. Friend the Member for North West Leicestershire (Andrew Bridgen) that Members of this House who represent Scottish constituencies should then form the Scottish Parliament and on certain days—for example, Wednesdays and Thursdays—only English Members would debate in this place. I fear that that is not a practical option at the moment. There is certainly no appetite in Scotland for reversing the Scottish Parliament, and as it was set up by a referendum it can be undone only by a referendum. That may become an option at some point, but I do not see it as a viable option now. Nevertheless, the suggestion would provide a neat solution to the West Lothian question.

The third option is to move to a fully federal United Kingdom, with one United Kingdom Parliament legislating on the big national issues—the economy, international affairs, defence and so on—and the Scottish Parliament, Welsh Assembly, Northern Ireland Assembly and a body for England then dealing, on an equal basis, with the issues affecting those areas. Such a system works perfectly well in Germany, Australia, Canada and many other countries, but the problem would be how to solve the “English question” in a federal situation.

One option would be to have a separate English Parliament with the same powers as the Scottish Parliament. As my right hon. and learned Friend the Member for Kensington said, and as others have argued, the difficulty with that is that England would represent more than 80% of the population and more than 80% of the gross domestic product in one unit. I cannot think of a stable modern democracy with an advanced economy where there is such an overwhelming dominant part in a federation. Any other country with a federal system contains two or more big states that balance each other out. For example, Canada contains Ontario and Quebec, and Germany contains Bavaria and North Rhine-Westphalia. If England were to be a separate entity in a federal system, the arrangement would have too much of an imbalance.

The other option would be to atomise England into regions—for example, the north-east, the south-west, Greater London and so on. There may be various permutations, but there is simply no appetite in England for that, even in the part of England where there was, allegedly, the highest demand for a regional government—the north-east. When people there were given the option of a regional government a few years ago, they overwhelmingly rejected it. In addition, we would face enormous difficulty in dividing England up. Our debates on the Parliamentary Voting System and Constituencies Bill have included an argument about a cross-border constituency involving Cornwall and Devon. Goodness knows what would happen if we tried to draw a boundary involving Gloucestershire, Cornwall, Dorset and other areas to constitute “the south-west of England”. I simply do not believe that federalism is a viable option in this country.

All that brings us to an imperfect answer, as we are not going to create a perfect solution to the West Lothian question unless we go down one of those three avenues. The Bill is a helpful first step in paving the way to finding that answer. I have looked at all the options over many years, although not for as long as my right hon. and learned Friend the Member for Kensington. I have ruled out some and I do take seriously the comment made by the hon. Member for Rhondda (Chris Bryant) that we would encounter difficulties if we started excluding Members from voting on particular bits of legislation. I strongly hold the view that every Member in this House is equal and when we start tinkering with that, we enter dangerous waters.

I do believe, however, that there is a solution and I am happy to endorse the one proposed by my right hon. and learned Friend: some form of a double majority. In such a system no Member would be excluded from participating in a debate or voting on a particular Bill or part of a Bill, but there should then be a requirement that if that Bill applied wholly or exclusively to one part of the United Kingdom, an additional majority would be required among Members from that area.

[Chris Bryant]

But is the difficulty not that, for the most part, Governments introduce legislation in our system and a Government who were nervous about their majority would simply ensure that Bills contained separate clauses relating to Wales, to Northern Ireland and to Scotland, so we would not be any further forward?

[Iain Stewart]

I would answer that by saying that a Government who do not command the majority in all parts of the kingdom should approach with caution legislating against the will of a part where they do not command a majority. For example, one of the main arguments for devolution was that this place would legislate against the wishes of Scotland, if the Government did not command a majority in Scotland. If the Government do not command a majority, they should approach with care legislating for the whole kingdom, if that does not command support across the board.

[Chris Bryant]

One should assume that Governments will be unscrupulous. Hon. Members are always scrupulous, but Governments, in their corporate management of taking business through the House, might be unscrupulous. There is the myth that the previous Labour Government did not have a majority in England, but they had the majority of seats in England. I say gently to the hon. Gentleman that the Bill will not solve the problem.

[Iain Stewart]

I will not comment on the previous Government’s approach to legislation.

[Chris Bryant]

It is the same now.

[Iain Stewart]

I beg to differ.

As I have said, there is an opportunity cost to not addressing the issue. My contention is that doing nothing carries a greater price than doing something, which is why I strongly welcome the Bill.

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[Andrew Bridgen]

Once again, the hon. Gentleman comments from a sedentary position. The previous Government did not have the majority of the votes in England. I am a Unionist, and I wholeheartedly support the Union. The biggest risk posed by not addressing the West Lothian question is that the dissatisfaction of English voters, rather than the dissatisfaction of Scottish or Welsh electors, will force the Union apart.

[Iain Stewart]

My hon. Friend makes an important point. Sadly, I do not have the statistics, but I believe that my hon. Friend the Member for North West Leicestershire (Andrew Bridgen), rather than the hon. Member for Rhondda, is correct about the outcome of the 2005 election in England. Hon. Members with BlackBerrys may be able to provide us with that information. Perhaps the hon. Gentleman and my hon. Friend will debate that one in the bar afterwards.

Doing nothing is more dangerous than doing something. I am yet to hear a convincing view that the double-majority option is worse than the current situation. The approach should, of course, be gradual. We should evolve our constitution, rather than smashing it up and piecing it together again, which is why I am happy to support the Bill introduced by my hon. Friend the Member for West Worcestershire. I hope that the Bill is read a Second time today and that it gets a fair wind in its later stages.

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[Jacob Rees-Mogg (North East Somerset) (Con)]

The Bill promoted by my hon. Friend the Member for West Worcestershire (Harriett Baldwin) is tremendously important because the West Lothian question is the constitutional question of the day. That question and reform of the House of Lords are the two issues with which politicians and parliamentarians have wrestled since just before the first world war, although no great solution to either has come forward. Today’s debate gives us the opportunity to examine what the solution to the question might be and how the Bill might contribute.

Although I am sympathetic to what the Bill is an attempt to do, I have several concerns about its details, some of which were spelled out by the hon. Member for Rhondda (Chris Bryant), when we get down to the approach to Bills that Governments might take. What classifications would we have? Some issues are devolved to Scotland, Wales and Northern Ireland, while some apply throughout the United Kingdom and others are purely for England. A Bill might cover English issues and matters that are not devolved to Wales but are devolved to Scotland. Would a Standing Order of the House allow English and Welsh Members to consider that Bill, but not the Scots or the Northern Irish? What if one clause of a Bill related to all parts of the United Kingdom, but all the other clauses related only to England? Would Members from Scotland, Wales and Northern Ireland join proceedings in Committee and on Report to vote on that particular clause, although they had been kept out of Committee and Report for every other part of the Bill, subject to the Standing Order that would follow from the Bill? The sheer complexities of clarifying territorial extent are probably too great.

Our present position is relatively straightforward. An Act of Parliament can technically overrule a devolved power, but Governments have not been willing to bring forward such a measure because of the great constitutional investment involved in establishing the devolved authorities, all of which were backed by referendums in their constituent parts. If the Bill were passed, England would be protected purely by Standing Orders. It is almost an insult to the English to say, “We had a referendum and then a Parliament for Scotland, and we carried that out in a thorough and proper way, but for the English, we will have a Standing Order.” Of course, the drawback to a Standing Order is that an incoming Government could simply remove it so that all MPs could once again vote on all Bills in Committee and on Report. They would lose little political capital if they did so, because a comparatively small amount of political capital would have been invested to set up the previous system, unlike under the referendums prior to setting up the systems of devolution in Scotland, Wales and Northern Ireland.

Stage two from this Bill seems to involve fundamental flaws of definition and description. As my hon. Friend the Member for Cleethorpes (Martin Vickers) suggested, it could give rise to ridiculous situations. We will shortly be asked by their lordships to consider whether the Isle of Wight should remain an individual constituency. I rather like the idea that only one Member of Parliament should be able to vote on that. I know without any doubt which way my hon. Friend the Member for Isle of Wight (Mr Turner) would vote, but I have a feeling that the Minister would not be entirely happy if the decision of the House was made exclusively by my hon. Friend.

We must be careful about taking territorial extent too far, and there are huge areas in which the situation would not be clear. Let us say that we considered a Finance Bill following the devolution of tax-raising powers to Scotland. Would we go through that Bill with different people sitting on different Committees for each clause, depending on a statement made by the Chancellor of the Exchequer? Would we have two separate Finance Bills? As the hon. Member for Rhondda said, we could have a succession of Bills to try to tease out regional effectiveness. It would be incredibly difficult to make such a situation work.

I am afraid that I disagree with my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind) because there is a difference between having an in-built majority to stop something throughout the five years of a Parliament, and a hung Parliament. Let us put it this way: roughly 100 seats are not English, so 550 seats are English. If 300 of those 550 seats were held by Conservative Members, the Conservatives would have a complete block on all English legislation for an entire Parliament. In a hung Parliament, there is an acceptance among minority parties that the Government’s business must be carried, but the main Opposition will oppose day in, day out throughout a hung Parliament, as we see in this hung Parliament and as we saw in the 1970s. In such a situation, the official Opposition would have a majority of English seats, and therefore a block on all exclusively English legislation for the whole Parliament, so the Secretaries of State for Health and for Education would find it almost impossible to get any of their legislation through.

[Iain Stewart]

My hon. Friend makes my point for me, as does my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind). If the general election produced a clear majority for one party in England, but the result for the United Kingdom as a whole was different, the UK Government should proceed with the utmost caution and not introduce legislation that would be diametrically opposed to the wishes of English Members.

[Jacob Rees-Mogg]

My hon. Friend makes an important and valid point. The West Lothian question is serious, but the answer is not necessarily one that we have been given so far. Just because the question is right, it does not mean that an answer to it would necessarily work. My hon. Friend is correct to say that if the majority of English seats had been won by Conservatives but we had ended up with a rainbow coalition, it would have caused huge dissatisfaction and opposition within England, as well as a feeling that the Union was not working for England. I want the Union to succeed and prosper, so I want an answer to the West Lothian question to come forward which the English find fair and with which they are comfortable.

My right hon. and learned Friend the Member for Kensington was right to emphasise the issue of fairness, but such fairness needs to be met with constitutional propriety and effectiveness. We have heard a great deal about the fairness so far today, but not about a workable constitutional situation, and that will not do us any good because however much one dislikes the Opposition party being in government, it will be one day, and when it is in government, it must be able to get its programme of government through. The way to stop that programme of government is not to put down so many constitutional man traps that that Government cannot get their business through, but to defeat them at the ensuing general election and reverse the worst elements of what they have done. The Bill would lead to a system that would make it incredibly difficult for a Labour Government to get their English business through, but that is not an answer to the West Lothian question because it would simply mean that that Government would have to reverse the protections that had been introduced, and I would have the gravest concerns about such protections being established purely through Standing Orders of the House.

I know that this is not in the Bill, but its purpose is to establish the declaration so that Standing Orders can then be built either to put in place the double majority suggested by my right hon. and learned Friend the Member for Kensington, or to establish practice in Committee and on Report. Is it right for us to change the whole basis of legislation through Standing Orders? Standing Orders can rightly do many things concerning the hours that we sit and the way that business is timetabled, but they do not tend to change the fundamental way in which legislation is taken through the House.

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[Ian Paisley (North Antrim) (DUP)]

It is always a pleasure to follow the clever—and highly witty, at times—speeches made by the hon. Member for North East Somerset (Jacob Rees-Mogg). I also congratulate the hon. Member for West Worcestershire (Harriett Baldwin) on getting the Bill before the House. However, my flattery stops at that point, I am afraid.

I have significant difficulties with the Bill, because I believe that it does the exact opposite of what the hon. Lady intends. I believe that she is a good Unionist and that she cares passionately about the United Kingdom of Great Britain and Northern Ireland. However, the Bill could be the slippery slope towards the disengagement of that Union, and that should be avoided.

The hon. Member for North East Somerset talked about the ridiculousness and pointlessness of certain legislation, and I believe that if this private Member’s Bill were to be pursued to its ultimate conclusion, we would effectively have what has been described on other occasions as wallpaper. The hon. Lady let the cat out of the bag during her earlier interjection; she said that the Bill wanted only to do something very simple. During my short time at the House, I have found that there is nothing simple about legislation. If we think that a simple piece of legislation can cure ills, we are misguided in our observation.

Some arrant nonsense has been spoken—and, unfortunately, passionately believed by some Members. The idea is that Members of Parliament from Scotland, Wales and Northern Ireland are somehow, to use the parlance of the street, more feckless and lazy than Members from England. That is wrong, and it is condescension of the highest order.

If the Member who made that point wishes to check Hansard or the website theyworkforyou.com for Back-Bench interventions, speeches and contributions to the wealth of the House, he will probably find that there are Members on the Opposition Benches from those regions whose contributions to the debates and activities of the House are above average or significantly greater than some Government Back Benchers. We need to be careful before pointing the finger at the level of skill or contribution brought to this Parliament by Members from the regions.

[Iain Stewart]

I reassure the hon. Gentleman that many of us who passionately believe that we have to address the West Lothian question also believe in the equality of the work loads of Members. I do not believe that that is an intractable problem. Although some of my colleagues might believe that for Members from devolved areas there is a lighter load from postbags or parliamentary work, not all of us hold that view.

[Ian Paisley]

I do not think that the view is necessarily commonly held, but we should caution ourselves. When we speak in this place on behalf of the Union and such points are made—not in jest, but seriously—that seriously undermines the standing of the House and its Members. That is not what we should be about. We should bear that in mind.