Clerk of the Parliaments

Lord Lisvane Excerpts

Monday 24th April 2017 Lords Chamber

[Lord Lisvane (CB)]

My Lords, I have known Sir David Beamish for 42 years. For three years I had the pleasure of being his opposite number in the House of Commons. I pay tribute to him for staying in his job a little longer than I stayed in mine. David’s friendship, courtesy, intellectual horsepower and indomitable cheerful optimism, no matter how adverse the circumstances, made that a delightful and constructive relationship.

As Clerk of the Parliaments, David was always a great advocate of comity—the mutual respect and co-operation between the Houses. This showed itself always in seeking a solution that was best for Parliament without ever losing sight of the interests of your Lordships’ House. More effective shared services between the two Houses was one outcome, but I was especially grateful to David for his partnership in commissioning the first comprehensive assessment of the condition of the Palace of Westminster. We both felt that we could not be another generation of stewards of this extraordinary building who were not prepared to deal with its problems. For David, his love not only of Parliament but of its ancient home was a powerful motive.

David has been a fine servant of your Lordships’ House and of Parliament, and I wish him and his family every happiness for the future.

European Union (Notification of Withdrawal) Bill

Lord Lisvane Excerpts

2nd reading (Hansard): House of Lords
Tuesday 21st February 2017 Lords Chamber

[Lord Lisvane (CB)]

My Lords, almost exactly 44 years ago I was in Strasbourg as one of the secretaries of the British delegation to the European Parliament, at the first session of the Parliament that had the United Kingdom as a member state. Bringing up the century as the 100th contributor in this unprecedentedly long list of speakers may have a certain symmetry about it, but it is in no way an outcome that I wished for when I cast my vote on 23 June last year.

Over the years, I have spent a good deal of time on the relationship between this Parliament and European institutions. I devised the protocol on the role of national parliaments which was appended to the Amsterdam treaty, thanks to its enthusiastic endorsement by the highly effective then Minister for Europe during a UK presidency, someone for whom I had and continue to have great regard—and who by one of life’s little ironies is now the Secretary of State for Exiting the EU.

As many noble Lords have said, this is a refreshingly short Bill, but I am a little puzzled by the catch-all provision in subsection (2) of Clause 1. Is it simply an insurance policy—an attempt to avoid an “Oh crikey” moment within Government when some inconvenient provision of legislation is unearthed? Or do the drafters have something particular in mind—something which might be found to be at odds with the main provision of the Bill? It is as well to recall the old rule of legislative drafting: if you do not specify the target at which you are aiming, the courts may not agree that you have hit it. I am also looking forward keenly to the Government’s response to the magisterial intervention of my noble and learned friend Lord Hope of Craighead about what further legislative authority may be required. No doubt there will need to be a ratification of the exit treaty according to the CRAG 2010 procedure, but if prior approval of the terms of that exit requires legislation, that would of course add a new dimension. How practical any choice would be as the clock ticks towards the end of two years is another matter entirely.

The noble Lord, Lord Boswell of Aynho, and others, have spoken about parliamentary scrutiny of the negotiations as they proceed. My particular concern is about the legislative process that will follow, and of which the Bill now before us is a precursor. Chapter 1 of the White Paper says that the great repeal Bill will repeal the ECA 1972, preserve EU law where it stands at the moment we leave the EU, and where necessary make changes to allow that law to function sensibly. There will be a triage process where this Parliament and the devolved legislatures will,

“be able to decide which elements of that law to keep, amend or repeal”.

In the referendum campaign we heard a lot about regaining our parliamentary sovereignty; perhaps it is a little ironic that we have had in the first instance to rely upon the assistance of the courts. However, it would be even more ironic if the legislative process of withdrawal involved a major transfer of power to the Executive.

The extent of delegation of powers to Ministers, and the level of parliamentary scrutiny, will be crucial. One test, and it would be a strict one, could of course be that secondary legislation must be “necessary” to allow EU law to function sensibly, and to reflect the outcome of negotiations. However, if the test is merely that that subordinate legislation should be “expedient” then that allows a much greater degree of ministerial discretion. The means of scrutiny will be key. Although super-affirmative instruments allow in-depth scrutiny, Governments are quite allergic to them, and I doubt whether Ministers would be attracted by a surge of super-affirmatives. Perhaps some bespoke process might be devised—the issues are certainly substantial enough to warrant it—and I look forward to the conclusions of the Constitution Committee on this aspect.

I will conclude with two other thoughts. The first is on timing. There is a temptation to think that policy areas will come forward one by one to be tied up in neat parcels and dealt with by whatever legislative or scrutiny process is in place, but that is not the way that negotiations proceed in practice. A deal in one area may depend on reaching agreement on a wholly unrelated issue elsewhere. The practical effect of all this will probably be to move everything to the right, and only late in the two-year process will there be something to bite on in legislative terms.

It is welcome that the White Paper states in paragraph 1.8 that,

“any significant policy changes will be underpinned by other primary legislation”.

Here again, however, the pressure of time may be the problem. The process will, in any case, be a business management nightmare and the temptation to proceed by skeleton Bills will be powerful. That will pose real questions about parliamentary accountability.

Whatever means are found to scrutinise and authorise the process, I hope that it will involve people outside government, Parliament and the devolved legislatures. The changes in prospect will have profound effects on the lives and livelihoods of the people of this country, and Parliament has some ground to make up. Evidence-based scrutiny is the best sort, and this should be an opportunity to allow access to the process to those who will be directly affected, rather than have them simply as onlookers of a private conversation between Parliament and the Executive.

Noble Lords might feel that I have strayed a little from the Bill before us, but I would suggest not. The Bill would trigger notification, but it would also start us on what will be an extraordinary challenging time for Parliament. Now is the time to think seriously about how we meet that challenge.

House of Lords: Size

Lord Lisvane Excerpts

Monday 5th December 2016 Lords Chamber

[Lord Lisvane (CB)]

My Lords, it is a pleasure to be able to reassure the noble Lord, Lord Foulkes of Cumnock, that this is not my annual appearance on these Benches. It is also a pleasure to join in the deserved chorus of congratulation to the noble Lords, Lord Cormack and Lord Norton of Louth, for their hard work, persistence and determination in bringing this issue before your Lordships’ House. It has been a pleasure to work with them on the Campaign for an Effective Second Chamber—if the noble Lord, Lord Foulkes, does not regard that as too sinister a remark.

There is a perfectly respectable argument to the effect that reducing the size of the House will be difficult, contentious and may have unforeseen consequences. But we can no longer indulge ourselves in the luxury of that argument, and we cannot ignore the widespread perception that this institution is losing its claim to be an effective part of this sovereign Parliament. That perception is unfair, but powerful. That view is held in the media, it is held by some—possibly too many—Members of the House of Commons, and it is held more widely by many people outside this place who do not know what this House does.

In his book The English Constitution, published in 1867, Walter Bagehot said—or rather, he put the words into the mouth of a stooge—that,

“the cure for admiring the House of Lords was to go and look at it”.

Nearly 150 years later, we may reasonably amend that to say that the cure for criticising the House of Lords is to go and look at it: to see exacting scrutiny of legislation, not just of primary legislation but crucially, and uniquely, of the huge body of secondary legislation; exploration of subjects that the House of Commons, for very good reasons, does not have the time to debate—the debate initiated by the most reverend Primate the Archbishop of Canterbury on Friday is an excellent example of that—authoritative examination of policies and issues through an energetic and respected Select Committee system; and the ability to ask the House of Commons to think again without challenging the primacy of that House. However, for so many people outside this Chamber, those roles are seen through the prism of size, and the value of those roles is thus obscured or dismissed. We therefore need to deal with this issue, and we need to be seen to be dealing with it ourselves.

This Chamber is not the place to explore the complexities of competing solutions, although I hope that there would be—there certainly seems to be—widespread agreement on the basic principles that have been enunciated. To examine the detailed issues, taking account of a wide range of views and proposing solutions, is a classic task for a Select Committee. I have a strong preference for a formal Select Committee rather than, for example, an informal Leader’s Group. This is not to undervalue the excellent work which Leader’s Groups have done on other issues, but in this case only the transparency and authority of a Select Committee inquiry will answer. Moreover, when a Select Committee reports, there is a more formal expectation that this House will take decisions on its recommendations.

Incidentally, with a thought for the typically wise words of the noble Lord, Lord Wakeham, I suspect that quite a lot could be done without legislation, although for some heavy-duty things—perhaps a cap on appointments—legislation would be necessary. But legislation can be quite hazardous, because depending on its scope there might be the possibility of Commons amendments arriving here, which would be to an effect that many of us would find unwelcome.

To deal with the size issue is, as several noble Lords have said, only the first step in making the work of this House better understood and so better valued, but it is a vital preliminary. If we do nothing, we shall still be wringing our hands and saying, “Something must be done” a decade hence. The difference may be that the longer the problem goes unsolved, the greater the temptation for others to force possibly unwelcome solutions upon us.

Housing and Planning Bill

Lord Lisvane Excerpts

Wednesday 13th April 2016 Lords Chamber

Moved by

[Lord Lisvane]

53: Clause 67, page 30, line 5, after “may” insert “by regulations”

[Lord Lisvane (CB)]

My Lords, Clause 67(1) gives power to the Secretary of State to make a determination requiring a local housing authority to make a payment to him in respect of vacant high-value housing—or, if later government amendments are agreed to, higher-value housing. The vehicle of a determination has been well described by the distinguished legislative draftsman Daniel Greenberg, who is also the editor of Craies on Legislation, as “quasi-legislation”. It nevertheless has the force of law and as such it can, for example, modify, dilute or remove rights. Clauses 67 to 71 set out some undemanding parameters for the Secretary of State in making his determination, although the Government regard it as,

“setting out clearly the scope of the determination-making power”.

But in essence, in the Bill as reported, the Secretary of State would have extensive freedom of action in an area which may be the subject of considerable contention.

Amendment 53, in my name and those of my noble friend Lord Kerslake and the noble Lord, Lord Beecham, would require any determination made by the Secretary of State to be by regulations. Taken together with Amendment 132, any determination that affected more than one authority would be subject to the affirmative procedure. Amendment 132 would additionally apply the affirmative procedure to regulations that contained more than one determination. It would also make the definition of high-value—or higher-value—housing subject to parliamentary approval.

Parliamentary approval and authority is at the heart of this issue. This is not about the threshold between primary and secondary legislation—much in our minds in the Strathclyde context—although those issues will be very much to the fore in the very last group on the Marshalled List. Instead, this is about what Ministers may do without seeking the approval of Parliament. The Delegated Powers and Regulatory Reform Committee, of which I am a member, under the exemplary chairmanship of the noble Baroness, Lady Fookes, reported on this proposed delegation in its 20th Report of this Session. The committee concluded that it was,

“inappropriate to delegate to the Secretary of State a power to determine the amount of the payment to be made by local housing authorities without any form of Parliamentary scrutiny, particularly in view of the paucity of detail on the face of the Bill to guide how the power is to be exercised”.

The Minister responded to that report and to the following one dealing with the second half of the Bill on 23 March. Although I am speaking in an understandably critical vein, at this point I pay tribute to the noble Baroness for the care and courtesy with which she has handled proceedings on the Bill and for her readiness to engage with noble Lords in all parts of the House. However, I have to take issue with her on what she said in her reply to the Select Committee. She said:

“The nature and amount of information that will be contained in the determination … means that it is appropriate to use a determination rather than a statutory instrument. The determination will contain the formula, the assumptions and the payments for … each of the 165 local housing authorities … including, amongst other things, the authority’s vacancy rate, the value of its high value housing, the number of high value properties and amounts in respect of transaction costs and attributable debt … In setting out such a large and complex set of data there is the potential for errors to creep in, which would only be noticed by the relevant local authority. We therefore want to ensure that there is flexibility to amend the determination very quickly to correct any such errors”.

There is a syllogism here which I hope the noble Baroness will acknowledge. She is in effect saying: first, there is a huge amount of information; secondly, all that information must be in the determination; thirdly, it is too much information to put into an SI, especially if correction might be needed; and fourthly, ergo, the determination cannot be in an SI. But that is not so, and I hope that I can help the noble Baroness out of this particular cul-de-sac. The sharp end, as it were—the formula, the assumptions, the payments for each authority—can be in an SI subject to the approval of Parliament. The extensive supporting working can of course be published at the same time, but it does not have to be in a form which is formally subject to the approval of Parliament in an SI.

The distinction in Amendment 132, applying the affirmative procedure to a determination which is of general application and the negative procedure to any which has specific application to an individual authority, would deal very neatly with the Minister’s concern about needing to correct mistakes which could be noticed only by the relevant local authority. A correction of that sort could be done very quickly by a negative SI without needing explicit parliamentary approval—which of course I agree would take time. On the other hand, a systemic error, or a major change in assumptions, would attract the affirmative procedure and Ministers would have to explain themselves to Parliament. That is as it should be and as I hope it will be. I beg to move.

[Lord Kerslake (CB)]

My Lords, I will speak very briefly on this issue because it is almost impossible to follow that advocacy. I learned more in that particular bit about the process of dealing with these issues than I have over a long period.

During the Bill’s passage, there has been a great deal of concern about the things we do not know and cannot see at this point in its progress. We will come on to the question of secondary legislation, as the noble Lord, Lord Lisvane, said, but here and now we have an opportunity to get this issue right between regulation and determination. Any technical issues that might flow from that were amply addressed by the noble Lord. I commend the amendment to the House as a practical and sensible way to address a continuing strand of debate throughout the whole passage of the Bill.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Williams of Trafford) (Con)]

My Lords, first, I welcome the noble Lord, Lord Lisvane, to his first outing on the Housing and Planning Bill and pay tribute to his constitutional expertise in the other place, which he now brings to this House. It may help him if I say that I have listened very carefully to what he and other noble Lords have said on whether regulations on the definition of “high value” should be made under affirmative resolution. I also pay tribute to him for his work on the Delegated Powers and Regulatory Reform Committee. As a direct result of the committee’s work, I have considered further its point about delegated powers in this chapter. I shall go into a bit more detail in a few moments, but I believe that the House should have the opportunity to scrutinise the detail before the regulations come into force, so I shall return to this at Third Reading.

On the specific amendments tabled by the noble Lords, Lord Lisvane, Lord Kerslake and Lord Beecham, I understand that Amendments 53 and 132 reflect the recommendations made by the DPRRC in its report on Parts 1 to 5 of the Bill, published on 5 February. As I have announced, we will bring forward an amendment to make the high-value regulations affirmative. I shall focus on Amendment 53 and the corresponding part of Amendment 132, which would require determinations to be made through regulations and, under certain circumstances, subject to the affirmative procedure. I know that the noble Lord, Lord Lisvane, is a member of the DPRRC and will have seen my letter of 23 March to my noble friend Lady Fookes, the chairman of that committee, where I set out the reasons why we considered that we should not accept the recommendation to put the determination into regulations. If the noble Lord will forgive me, for the benefit of your Lordships’ House, I shall now repeat some of my reasoning here.

Our view is that the determination is the most appropriate way of setting out the information of what payment a local authority will make to the Secretary of State. The key elements of the calculation are set out in the Bill, including the housing to be taken into account and the definition of vacancy. Other elements, such as the definition of high value and the types of properties which are to be excluded will be set out in regulations and therefore subject to further parliamentary scrutiny. Indeed, my announcement that the definition of high value is to be made through an affirmative procedure has, I hope, demonstrated my willingness to listen to the House. As I explained in my response to the committee, we also think that the nature and amount of information contained in the determination means that it is appropriate to use a determination rather than a statutory instrument. The determination will contain the formula, the underlying assumptions and the payment for each authority, as the noble Lord pointed out, but it will also include the figures to determine the payments for each of the 165 local authorities, including, among other things, each authority’s vacancy rate, the number of its high-value properties and the level of its attributable debt.

Such a large and complex set of data creates the potential for errors to creep in, which will be noticed only by the relevant local authority. We therefore want to ensure that there is flexibility to amend the determination very quickly to correct any such errors. We of course welcome scrutiny of the formula and other elements of the determination. That is why Clause 69(2) requires the Government to consult all affected authorities, the LGA and relevant professional bodies before making a determination. On this basis, and with the amendment that I have announced on high-value regulations, I urge the noble Lord to withdraw the amendment.

[Lord Lisvane]

My Lords, I am extremely grateful to the Minister. With her customary diplomacy and courtesy, she has given us about a quarter of a loaf. It may tend towards a third of a loaf, but not more than that. In effect, she has accepted the second element of Amendment 132. However, the issue of the determination being in regulations subject to parliamentary approval is serious. I was much fortified by the remark of the noble and learned Lord, Lord Hope of Craighead, who has immense experience and knowledge, about the possibility of protecting what was done from judicial review in a way that would happen if there were parliamentary approval. I hope the Minister will acquit me of any churlishness, but the remaining elements of Amendments 53 and 132 are important enough for us to test the opinion of the House on Amendment 53.

Strathclyde Review

Lord Lisvane Excerpts

Wednesday 13th January 2016 Lords Chamber

[Lord Lisvane (CB)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Goodlad, whose 2011 report—particularly at about paragraph 154 in the context of today’s debate—is a source of great wisdom. The report of the noble Lord, Lord Strathclyde, is technically an excellent piece of work. I say this not merely because he has been kind enough to refer in it to two works in which I myself had a hand. I cannot fault his description of the constitutional background and the procedural arrangements. He has been very well served by his team of expert advisers, all of whom I know well and have worked with, and for whom I have the very greatest respect.

I do not want to be unduly churlish to the Government Front Bench, because I suspect that it was not master of its fate, but what happened on 26 October was at least in part a failure of business management. If defeat was likely or possible—and that must have been apparent—then several options were of course open to the Government. They could have delayed and sought some sort of accommodation; they could have achieved what they wanted by inserting new clauses in the Welfare Reform and Work Bill, which was conveniently to hand; or they could have made the required changes in a free-standing Bill, which as the noble Lord observes—and I respectfully agree—would most probably have been certified under the Parliament Acts and would therefore not have touched the sides, so to speak, in your Lordships’ House.

Of course, in the event of defeat on an SI, the option is always there of withdrawing and re-laying. The substitute instrument has to be slightly different to avoid breaching the rule about deciding the same question twice in the same Session, but it does not have to be very different, and that simple pragmatism is always at the disposal of Governments who suffer defeats on SIs in either House.

So what about the three options that the noble Lord has put before us? They need to be seen against the asymmetry of consideration of delegated legislation in the two Houses. This is not in itself a problem, because one of the strengths of Parliament is that the two Houses are complementary and not competing. But that is also a powerful argument against diminishing the role of your Lordships’ House, as the House of Commons is not in a position to take up the slack.

In the latest edition of How Parliament Works—I am not seeking to advertise here but it was written before I left my previous post—I described Commons scrutiny of delegated legislation as a “legislative black hole”. The noble Lord, Lord Beith, has drawn attention to the average time—averaged out per day over a Session—taken in considering SIs in the Commons Chamber.

I hope that option 1, simply excluding this House from the consideration of statutory instruments, will be rejected out of hand. Indeed, I think that the noble Lord is very nearly counsel for the prosecution in terms of the significant disadvantages of this option that he identifies in his report. If it were decided to go down that extremely ill-considered route, I think that the legislation would have to be Parliament-Acted, with all the collateral damage for a considerable period to the Government’s legislative programme.

Option 3, the recommended outcome, has some attractions, although of course it does not guarantee a proper debate at the Commons second stage—a point raised by a number of noble Lords. And it is not without hazard. In the context of Article 9 of the Bill of Rights, I have an instinctive dislike of legislating for proceedings in Parliament. There is a more immediate hazard—and here I take the timely warnings of the noble Lord, Lord Crickhowell—because the scope of a Bill, and the relevance of amendments to it, is determined not by the Long Title but by what is actually in the Bill. I do not think anybody can guarantee that there could not be in the Commons more wide-ranging amendment of the noble Lord’s apparently simple proposition—and then where should we be?

Then there is option 2, a non-statutory resolution of both Houses. The noble Lord expresses scepticism about this route and whether it can be achieved because,

“a wide range of different views has been expressed about what the convention is”.

That seems to me an excellent argument for redefining the convention—or, with a nod towards the noble Lord, Lord Norton, the doctrine—probably using a Joint Committee to achieve a cross-party and inter-House agreement rather than rushing to legislation, although I accept that legislation will be there as a potential penalty, should that route fail. If there were to be such a Joint Committee, I agree with many noble Lords that it could be a forum for a much more comprehensive examination of how Parliament as a whole deals with delegated legislation.

Briefly, I have two other observations. The noble Lord suggests that the Government should review, with the help of the Commons Procedure Committee but not with the help of a committee of this House, when SIs should be subject to Commons-only procedures. However, there is a quid pro quo to this. If SIs receive less scrutiny in the Commons than in your Lordships’ House, it must be clearly understood, and delivered, that Commons-only SIs must contain only matter which engages Commons financial privilege and must not be freighted with non-financial matters simply because of the attraction of an easier ride.

My last point is also the noble Lord’s last point. In the review it is almost a throw-away line, but it is the real reason that we are in this fix. The threshold between primary and secondary legislation has been steadily rising, no doubt because SIs are more convenient for Governments, and SIs are being used for matters of policy and principle which should find their place in primary legislation. Both the Constitution Committee and the Delegated Powers Committee have consistently pointed this out, and the searing indictment of my noble and learned friend Lord Judge is still ringing in our ears.

I could wish that we were not in this fix but, now that we are, that is the real mischief that needs dealing with. I think it is reasonable to say that we should expect a striking and sustained change of culture before your Lordships give up any powers over delegated legislation.

House of Lords: Strathclyde Review

Lord Lisvane Excerpts

Thursday 3rd December 2015 Lords Chamber

[Baroness Stowell of Beeston]

My noble friend raises an interesting point. It is interesting because it allows me to say two things. It demonstrates what this House did: it withheld its approval from a Motion that had already been voted on three times and decided in the other House. The key thing about the review that my noble friend is doing is not what the views of this House were but how it decided to express them and the route by which it chose to do so.

[Lord Lisvane (CB)]

My Lords, will Her Majesty’s Government heed the serious concerns expressed by the Constitution Committee and the Delegated Powers Committee of your Lordships’ House to the effect that the threshold between primary and secondary legislation continues to move upwards, with secondary legislation used increasingly for matters of policy and principle which should be the subject of primary legislation? Will the Leader accept that these issues should be at the heart of the matters which the noble Lord, Lord Strathclyde, is examining?

[Baroness Stowell of Beeston]

My noble friend is examining how to secure the decisive role of the elected House on matters associated with secondary legislation. Clearly, it is important that all Governments use the right vehicle to secure Parliament’s decision on their business. That is what all Governments seek to do, and it is what we have been doing and will continue to do

Proposed Changes to the Standing Orders of the House of Commons

Lord Lisvane Excerpts

Tuesday 21st July 2015 Lords Chamber

[Lord Wigley (PC)]

My Lords, it would be perverse of me not to say that I have every sympathy with English votes for English laws. After all, I want Welsh votes for Welsh laws, and on that basis quite clearly the same should apply for England. However, with regard to the provisions being put forward by the Government, there are questions relating to Wales that have just not been answered. The most fundamental question has to do with the financial implications of the Barnett formula. We had Acts in the last Parliament that were supposed to be England-only, such as the Health and Social Care Act 2012. We are told that 99% of health is totally devolved, yet that Act had a negative effect of £11 million on my local health authority. Because of the way the Barnett formula works, issues arise with regard to cross-border communications between Wales and England.

Quite frankly, these proposals do not start to answer the fundamental questions. If we accept that there will not be independence for Scotland or Wales, certainly within this Parliament, what stable, ongoing constitutional settlement will be able to meet the reasonable aspirations of people in Wales, Scotland and Northern Ireland but also deliver the English votes for English laws proposal that the Government have in their manifesto? One needs to get the answer right in the long term, not just apply bits of sticking plaster. I am quite prepared to look at any proposals that the Government put forward to move in the right direction on this, but I beg that the Government, and indeed all parties, try to find that long-term stable solution, rather than short-term expediency.

[Lord Lisvane (CB)]

I support the Motion in the name of my noble friend. Comity—a relationship of mutual respect between the two Houses—is extremely important, as the noble Lord, Lord Wakeham, has pointed out with his customary wisdom. It is therefore equally important that this Motion is seen not as an attempt to interfere with the Standing Orders of the House of Commons but as a means of examining a constitutional problem, to which what has been proposed is only one possible solution. It is a very complex solution—a complexity to which I have fallen victim—for which I must apologise to your Lordships.

When I spoke during the QSD last week, I said that, were this House to change an English-only certified provision into a UK-wide provision, it would go back to the Commons, escape certification and be subject to a different procedure, which might produce a different outcome. However, I hope your Lordships will forgive my error on just a minor point of detail. I had reckoned without proposed Standing Order No. 83O(4), which says that if this House turns an England-only or England and Wales-only provision into a UK-wide one, the Speaker must still certify it as being an England-only or England and Wales-only provision. To take an extreme example, if your Lordships inserted acres of Scottish provisions into a certified England-only clause, that amendment would be subject to the England-only procedure when it reached the Commons and a majority of English MPs would be required in order to approve it. That seems a little counterintuitive and it may come as a surprise to some. However, it does seem to me an example of the sort of thing that a Joint Committee could tease out in its implications.

Finally, if the Standing Orders route is chosen, it is possible that the courts may become involved, because although Article 9 should be a protection, if the Speaker is to be invited for the first time to rule on an objective matter of law, as the noble and learned Lord, Lord Wallace of Tankerness, pointed out, that is a hazard. If the legislative route is chosen, it would be possible to put in an ouster clause to say that the Speaker’s actions were not justiciable in any court, but that might not be a foolproof device. On the Anisminic precedent, which noble and learned Lords know much more about than I do, a court might still have a locus. Either outcome would still be of concern to this House just as much as to the House of Commons—so that aspect of jointery becomes very important. But careful analysis and firm conclusions by a Joint Committee might well discourage a court from going down a highly experimental route.

I understand the Government’s wish to press ahead with speed. However, I suspect that they may find a Joint Committee with the early out-date suggested by my noble friend useful insurance and, perhaps, in the outcome, not altogether inconvenient.

English Votes for English Laws

Lord Lisvane Excerpts

Thursday 16th July 2015 Lords Chamber

[Lord Lisvane (CB)]

My Lords, the Leader of the House told us on 2 July that this issue was fundamentally a domestic one for the House of Commons. Might I very respectfully disagree with her for three reasons? First, as my noble friend Lord Butler said, this is fundamentally a constitutional problem. It is simply that one of the possible solutions to that problem has been presented in terms of changes—extraordinarily complex changes—to Commons Standing Orders.

Secondly, the amendments made by this House will be subject to certification by the Speaker of the Commons, so what we send back may influence the outcome. For example, it will be possible for this House to turn an English-only provision into a UK-wide one, thus avoiding certification and possibly affecting the outcome.

Thirdly, although I hope I am wrong, I see a possible hazard to Article 9 of the Bill of Rights. For the first time, a Speaker of the House of Commons will be asked to certify something that is a matter of law, whether it is within the legislative competence of devolved institutions to make provision for this or for that. This is wholly different from Parliament Act or money Bill certifications.

The Speaker and parliamentary proceedings would be better protected by ministerial certification along the lines of a Human Rights Act certification of a Bill. The possibility of any inroad by the courts into the exclusive cognisance of Parliament is emphatically a matter for both Houses. I should say in passing that those who argued for this to be done by legislation rather than by Standing Orders are going down a very dangerous road. In my view, nothing would bring the courts into Parliament faster than making this arrangement explicitly justiciable through legislation.

My learned predecessor, Sir William McKay—like the noble Lord, Lord Tyler, I gave evidence to his commission—recommended in effect an English legislative consent Motion. That was a very shrewd recommendation because LCMs are animals well known to science. An advisory LCM would have avoided any charge of creating two classes of MP. It might have been possible for the McKay solution to be a first step, later ratcheted up if necessary. It is much more difficult to ratchet down, and of course expectations may already have been raised too high.

We are too tightly constrained for time today and this does argue for a full debate before long. I thoroughly agree that a Joint Committee is emphatically the right way to tackle a major constitutional issue, which is rightly of such interest to both Houses, as it might offer the possibility of some informed consensus, which, at the moment, is rather far to seek.