Proposed Changes to the Standing Orders of the House of Commons

Lord Wallace of Tankerness Excerpts

Tuesday 21st July 2015 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, I very much welcome this debate and congratulate the noble Lord, Lord Butler, on coming forward with this Motion. It is not because we on these Benches do not think there is an issue to be addressed; rather, we think that the Government have gone about it in a somewhat rushed way, with little or no consideration of the possible constitutional consequences.

I heed the remarks of the noble Lord, Lord Wakeham, who has considerable experience in these matters, that the House of Lords ought to be cautious when we are dealing with matters that relate to the internal workings of the other place. But if these internal workings, and the manner in which the Government are going about it, have important constitutional consequences, then it is a matter for this House to have regard to as well. This is perhaps a classic example of a measure that flashes the warning sign: “Beware the law of unintended consequences”.

Many of these points have been rehearsed, but we know it will be very difficult to determine whether a clause or a schedule, to quote the draft Standing Orders, would be,

“within the legislative competence of the Scottish Parliament to make any corresponding provision for Scotland in an Act of that Parliament”—

that being the test for whether or not it was a matter that the Speaker could certify. It is not an easy matter to determine, as I indicated last week. When I was Advocate-General for Scotland, much of my office was looking at these matters and trying to determine where the boundaries of competence were. Indeed, I had the privilege of appearing before the Supreme Court, presided over by the noble and learned Lord, Lord Hope of Craighead, on a matter relating to the sale of tobacco products to children. Ultimately it was the Supreme Court that determined whether the matter was within or outwith the competence of the Scottish Parliament.

As the noble Baroness, Lady Boothroyd, said in our deliberations last week, these issues could bring the Speaker into some legal and political controversy. What if, for example, the Speaker certifies a measure as satisfying the test but subsequently the Scottish Parliament seeks to bring forward exactly the same legislation and the Supreme Court determines that in fact it was not within the competence of the Scottish Parliament? No doubt the Speaker’s certificate would be final but you would have a very difficult situation where the Supreme Court decided something that the Speaker or the Speaker’s Counsel had got wrong. As has also been said, we are treading on ground that could raise issues about Article 9 of the Bill of Rights. Even if it is not justiciable, it will not necessarily stop someone trying to make it justiciable, and all sorts of issues could arise there.

I also note that the draft Standing Orders say:

“Where either the whole House or the English, or English and Welsh, MPs do not agree to a motion relating to the Lords amendments, the amendments are not agreed and a message to this effect is sent to the House of Lords”.

We would be dealing with a situation where an amendment has been passed by your Lordships’ House—indeed, it could have been passed by the House of Commons—which, in the past, anyone would have thought had been passed by both Houses and should then go to Her Majesty for Royal Assent, but we are being told that in fact that would not necessarily lead to a measure being put forward for Royal Assent. That is an important constitutional issue. It may not affect the Standing Orders of your Lordships’ House but it has implications for your Lordships’ House.

Finally, the noble Lord, Lord Forsyth, may wish to intervene and articulate this more, but he made an important point last week about the provisions that were added in relation to finance—that it could well be the case that the substantial part of the Government’s supply from income tax would be deemed to be a matter only for English MPs or English and Welsh MPs to determine. So you could have a situation where English and Welsh MPs could veto the supply of the majority party in the House of Commons. I am not saying that it could not be done—under these provisions it would be done—but it has important constitutional consequences. Therefore, I do not believe it is sensible to proceed piecemeal by way of Standing Orders of the other place, and that is why the proposal that has come from the noble Lord, Lord Butler, is one that I hope this House will pass and which I hope the other place will take seriously.

[Lord Cormack (Con)]

My Lords, I have great sympathy with the noble Lord, Lord Butler. The solution that the Government have come up with in the other place is, to put it mildly, far from perfect. But we have one problem in this House this afternoon: we cannot establish a Joint Committee. We can express a view and say that we think that there should be a Joint Committee—personally, I would welcome that—but we can also try to ensure that the matter is referred to our Constitution Committee. I believe that there are repercussions for this House and that we have to take the issue extremely seriously.

Altering the constitution in this way, almost by sleight of hand, does no service to any of us who care about the stature of Parliament, the relationship between the two Houses and the responsibility of this House in particular. My noble friend Lady Stowell has already indicated that there will be a full day’s debate in September, which is good and welcome. But I hope that when she comes to reply from the Front Bench she will be able to go further and say that she, as Leader of the House, will personally ask the Constitution Committee of this House, which has an enviable reputation for working thoroughly and fairly expeditiously, to try to report in time for that debate—but, if not, very shortly afterwards. We are entering a legislative quagmire here and it is far more important that we get it right—here, I totally agree with the noble Lord, Lord Butler—than that we achieve it quickly.

We have had too much government by gimmick and deadline over the last year. I have quoted this before in the House: something must be done by St Andrew’s Day and something else by St David’s Day. We are playing with the constitution of the United Kingdom, in which I hope that most of us truly believe, and if we are to safeguard the United Kingdom in this new era of extra devolution, we have to safeguard the position of the United Kingdom Parliament—a Parliament in which all Members are equal.

It may well be, as I believe, that there is a very good case for reducing the number of Members from Scotland when current legislation is on the statute book, and in time for the next general election. There is precedent for that both in Scotland and Northern Ireland, but the extremely convoluted arrangement that is currently proposed is likely to create far more problems than it solves. Of course I welcome the idea of a review after one year, but I would rather that we did not go there. I urge my noble friend to give serious consideration to making a personal request to the Constitution Committee of your Lordships’ House to look at this matter very quickly.

--- Later in debate ---

[Baroness Stowell of Beeston]

The whole House of Commons will consider amendments to its Standing Orders, and all Members of that place will contribute to that decision at that time. On the impact of what we are proposing and how legislation is considered in the other place, I would rather not get into a detailed debate now because I have offered time for that kind of discussion in September.

We want to hear noble Lords’ concerns on the risks they consider are attached to our proposals. As I say, I am not suggesting that none exist.

[Lord Wallace of Tankerness]

The Minister has talked about the review that will take place after one year. She has no doubt heard a range of concerns of some constitutional importance. Does she think that a review of the proposals in relation to the buses Bill will give sufficient exposure to some of the concerns if we can draw any conclusions?

[Baroness Stowell of Beeston]

The noble and learned Lord touches on the exchange that took place between other noble Lords about what Bills might be affected if we were to introduce this change right now. It is fair to say that there are not that many Bills that are England-only, but there are many Bills—indeed, we are about to debate one next—that contain measures that affect only England or only England and Wales. To try to suggest that there is nothing in the Government’s programme that would not benefit from the introduction of a new regime to deliver English votes for English laws is incorrect.

As I said, we are very happy to hear about concerns that anyone may have about what is being proposed, but I put it to this House that the best way for us to do it is not through a Joint Committee of this House and another House but through the debate that I have proposed. We want Select Committees of both Houses to have an opportunity to examine our proposals. It is entirely a matter for the Constitution Committee whether it wants to look at the constitutional implications of English votes for English laws. I would not want in any way to get involved in the decisions of that committee, as it is for any committee of the other House to decide what it may want to consider.

There is an initial review by the House of Commons Procedure Committee that will feed into that first stage, when the House of Commons will consider its amendments to Standing Orders. There will be a substantial review in a year’s time. I do not think that it is right to commission yet a further piece of work from yet another Joint Committee, duplicating that work that is already under way, and which could also be used as a tool to delay what is a clear manifesto commitment from us to deliver this.

We can continue to debate and deliberate on the best way to address the West Lothian question while at the same time devolving more and more powers to Scotland, Wales and Northern Ireland, or we can get on with testing the Government’s proposals after that initial review by the House of Commons Procedure Committee and once the House of Commons itself has decided on how it wishes to amend its Standing Orders. But I really do believe that the time has now come for us to make real progress on a matter that has gone unaddressed for so long. Therefore, I do not support the Motion of the noble Lord, Lord Butler, and indeed the Government will not be able to support it either.