Legislation (Territorial Extent) Bill

Debate between Thomas Docherty and Mark Lazarowicz

Friday 9th September 2011 Commons Chamber

[Thomas Docherty]

I assure you, Mr Deputy Speaker, that there is no danger of my using up my Third Reading speech at this stage, but, if I heard you correctly at the time, you allowed an exchange to take place about the Bills listed by the hon. Member for Perth and North Perthshire—and there were some nods of agreement on the opposite Benches—in whose passage the Scottish National party and others had decided not to participate. Those parties, however, did decide to participate in debates on Bills that Government Members—and, crucially, a Secretary of State—might consider not to apply to Scotland. The most obvious example was the tuition fees legislation. I will not repeat the arguments contained in it, but when it was going through the House of Commons in, I believe, December, not only the SNP but the Welsh and Irish nationalists and the Ulster Unionists took part in the debate. A Secretary of State who may not know that that will happen when he or she publishes a draft Bill for consultation will surely, once the presentation stage is reached, have a much clearer idea of whether his or her statement was accurate, and whether Scottish Members should be allowed to participate.

[Mark Lazarowicz]

That is a very good example of how the presentation stage could cause confusion. It is hard to see how the English tuition fees legislation would not have constituted England-only legislation had the definition in this Bill been adopted. It would surely have been outrageous if Members from Scotland, Wales and Northern Ireland had not been able to vote on it.

[Thomas Docherty]

Indeed. That is one of the two most obvious examples in the current Parliament of the difference between the appearance of legislation in its draft form which has not yet been subjected to the consultation that is so critical and its appearance at the presentation stage, when it is recognised that Members from all parts of the United Kingdom should be able to vote on it. The other example is, as I say, the Scotland Bill. One would assume, given the title of that Bill, that Conservative Members would have taken no part in those proceedings, yet I am fairly certain that the hon. Member for Milton Keynes South (Iain Stewart) and I had a lively exchange on railways powers, which is a matter entirely for Westminster. That is where the power sits at the moment. The measure was about handing over a power. There is no better example of where there would be huge confusion than debates about the handing over of powers.

Another example we have been dealing with in recent weeks is police commissioners and the Police Reform and Social Responsibility Bill. Again, one might at draft stage say, “That is a matter for English and Welsh Members because powers on policing are covered by that.” However, it is possible, for example, that some territorial powers might have been granted.

Let me give an example in relation to future police powers. As the House will know, the Metropolitan police have responsibility for counter-terrorism and the commissioner of the week will be responsible for that. It is possible that we would have a police Bill that deals largely, for example, with the merging of police forces in England and/or Wales, but that has a chunk that deals with counter-terrorism and the powers of the Metropolitan police as they affect Scotland and perhaps Northern Ireland. That might get added somewhere between the consultation stage and the presentation stage. That is why the measure is flawed.

I would be grateful if the hon. Member for West Worcestershire (Harriett Baldwin) could answer one question, if she is not getting pastoral care from her Front-Bench colleagues, who I think are giving her some helpful advice. She talks about the Secretary of State providing statements. Will she clarify whether the measure would equally apply to private Members’ Bills and, if so, who would provide the statements on those? Would it be the hon. Lady in her current capacity, although I am sure that one day she will be a Secretary of State? Is the measure purely about Government Bills, or is it also about Bills that are dealt with on a Friday?

[Thomas Docherty]

That leads to another important point. I have huge sympathy with the arguments both ways and I will avoid getting drawn on another issue, but if that were not the position, the Government could, like in the 1960s, put a lot of contentious legislation—Jenkins did this in particular—in private Members' Bills that were effectively Government Bills. I know that there is always a temptation with newish Members to give them nice, easy private Members' Bills. If we take, for example, a ten-minute rule Bill, we get a dummy Bill that does not have any clauses. It is only at the presentation stage that there is some consultation. That is why it is important, given, if I understand it correctly, that the hon. Lady, with the Minister’s support, is saying that the Bill would equally apply—

[Mark Lazarowicz]

So one could have a situation where, shall we say, a UK-wide Government were against privatisation of the health service, but the majority of English MPs were in favour and voted it through, and then a private Member's Bill could be used to reverse the decision of a majority of English MPs. That does not sound like a helpful or consistent way of managing parliamentary business.

[Thomas Docherty]

I think, Mr Deputy Speaker, that you would call me to order if I were tempted down that path. I certainly will not get drawn on that, but I do not think that that is the case. The hon. Lady has made it clear that the provisions apply equally to private Members' Bills and ten-minute rule Bills. I have sympathy with the argument that it should apply to those, but if there is a reason why the procedure needs to take place at presentation stage, it is that effectively we do not have a draft consultation stage.

To give an example, I have a Bill scheduled for January and I know that the hon. Member for Christchurch (Mr Chope) and I will debate it on 20 January. It went through the ten-minute rule Bill procedure. There was not much consultation because it was a ten-minute rule Bill procedure; that was before the presentation stage. There certainly was not a draft Bill at any stage. That is where the hon. Lady, as well intentioned as her Bill is, has left a loophole in her provisions.

My hon. Friend the Member for Edinburgh North and Leith (Mark Lazarowicz) was talking about the Mersey tunnel. That is a good example. There are others to do with railway infrastructure projects. From the title of a Bill, one may believe initially that it affects the whole UK, because it is about financial compensation. However, by the time one gets to the guts of the Bill and it is presented, one finds that the reverse is true and that it is predominantly an English matter. For example, let us take the Bill that will, if it goes ahead, be required for High Speed Rail 2. I imagine that we will have a Bill that will cover the section from London to Birmingham. At the draft stage, it might be a predominantly UK matter, because of the financial elements, but by the time the Government bring it to the presentation stage, they will have added so much to it, understandably, that the statement given at the start will be significantly out of date. That is why it is so important that the amendments that I and my hon. Friend the Member for Bishop Auckland have tabled and that the Speaker has selected—amendments 3, 6, 8 and 14—try to tighten the Bill.

I know that, when the Minister replies he will make a suggestion, and again I have sympathy for him. I am not sure whether it helps him when I say this, but I find him to be a very effective Minister who is on top of his brief, which helps when one’s boss is the Deputy Prime Minister, because someone should be. I am sure that the Minister will have constructed a reasoned and thoughtful argument. He is very good at getting off his brief and still being able to cope, which not every Minister can do. I suspect that he will advance the argument about the interference of the courts in the proceedings of the House. I suspect, if I were to stray into certain territories about the power of the courts versus this place or the other place, and discuss that, you, Mr Deputy Speaker, would rightly pull me sharply back into line.

May I say to the Minister, because I am not sure that I will get the chance to respond to his arguments afterwards, that I fear that the provisions are slightly 11th hour and I would be grateful if he spent a bit of time setting out in what ways he believes the courts would have the right to intervene significantly in this area, because I am yet to understand what it is he feels would lead to that situation? I am conscious that the Minister will require a bit of time to respond to the debate, and I hope that he will give way to us so we can have that exchange.

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[Thomas Docherty]

I am grateful to have caught your eye on Third Reading, Mr Deputy Speaker, and I commend the hon. Member for West Worcestershire (Harriett Baldwin) on having her Bill reach this stage. I suspect that if her colleagues in the Government had expected it to get this far, they might have taken an interest in publishing the commission paper slightly earlier than yesterday afternoon, but as a mere Opposition MP, I cannot comment on the exact machinations that led the Deputy Prime Minister suddenly—yesterday afternoon, on the eve of this debate—to publish his West Lothian commission paper, which we will return to.

I am a sceptic, not about why the Bill was brought forward, or about the motivation of the hon. Member for West Worcestershire, but about the motivations of many of her colleagues, who are, frankly, in my view, just really bad losers. Since the mid-1950s, the vote of what is currently called the Conservative party in Scotland has collapsed. It is worth noting that if Mr Murdo Fraser MSP gets his way, there genuinely will be no Scottish Conservative politicians in Scotland. The hon. Member for Perth and North Perthshire (Pete Wishart) and I were just reminiscing, because we served our parties, alongside Mr Fraser, in North Tayside, as it was then called, in 2001. Murdo has been consistent in his views about an effectively autonomous Scottish Conservative party.

The whole debate comes back to the fact that the Conservatives could not win a raffle in Scotland. As a result of the way in which their policies have gone down, and because they opposed devolution in 1997—and probably right through until about 2007 or 2008—they have lost the support of the Scottish people. Unfortunately for the Conservative party, which claims to be staunchly Unionist, and a staunch defender of the United Kingdom and its parliamentary system, it does not like the fact that one part of the United Kingdom consistently votes against it. It is worth noting the work of the hon. Member for Aberconwy (Guto Bebb)—I congratulate him on it—in helping to rebuild the Welsh Conservative party. [Interruption.] Sorry, there are two Welsh Conservative MPs here. As a Scottish MP, the concept of there being two Conservatives from a devolved Administration area is baffling. In fact, I think that there are eight now.

[Mark Lazarowicz]

My hon. Friend is being unfair; at least one of the hon. Gentlemen on the Conservative Benches has helped to revive two parties in Wales in his political activities. On the point about the Scottish Conservative party, is not the interesting point about the logic of the Bill of the hon. Member for West Worcestershire (Harriett Baldwin) that she appears to be saying that a measure should not really apply to a part of the UK if it does not have majority support in that part of the UK? What about the Budget, for example? Does that mean that the UK Budget would not apply in Scotland unless the majority of Scottish MPs decided it would, and would the same go in Wales and Northern Ireland?

[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.

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[Thomas Docherty]

You are absolutely right, Mr Deputy Speaker. An issue that has not quite been covered in the Third Reading of the Legislation (Territorial Extent) Bill is the question of what is in the minds of members of the Welsh Labour party. It is not for me to comment—that is one of the benefits of devolution—but it is valid to ask what would happen if a Secretary of State signed off a Bill but effectively said, “This is my Bill; I am not going to vote for it.” In December, as the Liberal Democrats raced through the 17 different positions that they tried to adopt on tuition fees, at one point there was a suggestion that the Secretary of State for Business, Innovation and Skills would not vote on his own legislation, which would have been completely absurd. Under the Bill—and this is an issue that the commission must address—we must consider what would happen if, as we have seen in the past, a Secretary of State introduces legislation in which they do not have any constituency interest within the four nations of the United Kingdom, never mind the question of how we define England.

I must challenge the hon. Member for West Worcestershire on what she said about understanding England. As hon. Members can tell from my accent, I did not have the privilege of a Scottish education. I was brought up in west Cumbria, and I can assure the hon. Lady that the people of west Cumbria do not believe that she understands their problems or what is best for them. I am pretty sure that my hon. Friend the Member for Blaydon (Mr Anderson) would suggest that the Conservative party does not have a Scooby about the issues in the north-east of England. I am pretty sure, Mr Deputy Speaker—of course, you are entirely impartial—that other constituencies in the north of England would suggest that Conservatives do not understand them. Equally, I have heard Government Members suggest that the Labour party does not understand parts of their country. The notion that we have a single, homogenous England in all its pleasant greenness with a perfect political structure is wrong. Regrettably, that goes back to the argument about regional assemblies.

In the past few days, we have dealt with infrastructure projects. My right hon. Friend the Member for East Ham (Stephen Timms) and others have discussed the Olympics, and we have discussed Crossrail in the past. The Crossrail Bill contained many provisions that related purely to London and nearby railway lines, yet it underwent a contentious, long, laborious process. It took two years, I think, to introduce that Bill, with the support of Members from Worcestershire, Dunfermline, Berwick, Edinburgh and other areas. That was the right thing to do but, regrettably, under the Legislation (Territorial Extent) Bill—and I suspect that this will be something that the commission will examine—such issues would not be dealt with. If there is a proposal to bulldoze large parts of London, the decision on whether that is right or wrong should, under the logic of the argument that the hon. Lady and other hon. Members have sought to generate, be made by London MPs.

[Mark Lazarowicz]

My recollection is that most members of the Committee that considered the Crossrail Bill were from Scotland. I think that we were being punished by the Whips for an earlier rebellion. The Crossrail issue may have been a concern for London MPs, but it was important for the entire UK, and not just because of the costs. People can fly to Heathrow or take a train to King’s Cross, where they may wish to travel on to France: those issues were integral to the Crossrail proposals, and are very much an illustration of why we cannot introduce measures that appear to be just English and then find that they go much wider than people may accept.

[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.

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[Mark Lazarowicz]

That proves a point.

If MPs representing constituencies outside England were barred from voting on issues affecting only England—the same position would, I assume, apply in respect of other parts of the UK as well—there might, effectively, be two Governments at Westminster. When I said that might be the case, some Government Members clearly thought I was painting an extreme picture, but the hon. Member for Milton Keynes South has more or less accepted the point. His position is that the consequence of the road down which this Bill wants to go is that a measure that applies to English-only areas could pass only if it had majority support not only from the House as a whole but among MPs in England.

In effect, that would mean that for government within England we would on many occasions end up with some kind of quasi-coalition. If a Government did not have a majority of MPs in England, they could not get their programme through. They would either have to have no programme at all or would have to depend on other parties to get a majority. That might require a new form of coalition Government—I am quite in favour of coalition-type approaches, proportional representation and the rest of it, much to the chagrin of some of my hon. Friends, but it certainly is a new road to be going down. That seems to me to be the obvious logical consequence of the position put forward by the hon. Member for Milton Keynes South.

Alternatively, if the UK Government party had a majority of seats in the UK but not in England and another had a majority of seats in England, the other party would be able to get its programme through for England on the “devolved issues” that apply to parts of the UK and we would therefore effectively have two Governments. That possibility is not that far-fetched—it is quite easy to see how different electoral arithmetic could have that result.

Any suggestion that that analysis is somehow far-fetched prompts an important question: let us say that we had a UK Labour Government who were against NHS privatisation—I am not trying to rehash earlier debates—and a Conservative Government in England who were in favour of some form of privatisation. If that Conservative party had a majority in England to force through its policies, would it not try to do so? Of course it would. It would try to represent what it thought were the best interests of the country. It is not at all inconceivable that we could end up effectively with two Governments in this House when it came to matters that applied only in England.

[Thomas Docherty]

I just want to make an observation. I have heard the remarks from Government Members about the growing sense of anger among some constituents. How much anger does my hon. Friend think there would be among the constituents of a party that was nominally in government but was unable to get its Bills through even though the Secretary of State and Prime Minister were from that party? How angry would people be then?

[Mark Lazarowicz]

They would be very angry, and would be entitled to be if they were supporters of a party that supported a UK-wide state and could not get its policies through.

The problem that not having Scottish, Welsh or Northern Irish MPs voting on English-only matters raises is very real and I do not think that some Members have fully thought through its consequences. Once a Government with a majority in the House could not get through parts of their programme and if Opposition parties could get through parts of their programme, the consequences would go beyond the House of Commons and Parliament. The civil service and Departments would increasingly be put in a situation where civil servants would wonder who was in government if their Minister had executive authority over certain matters but could not guarantee getting policy through the House because Opposition parties could get theirs through. That would begin to cause some issues with how the Government’s systems operate.

Some might say that what I am saying is far-fetched, but once we go along this road the consequences can develop more quickly than some might think. That is why the proposals that are being put forward for effectively English votes only for English MPs have difficulties and dangers. They could cause the type of division, anger and animosity that would cause further tensions in the Union, which I want to maintain. I have no objections to the commission being set up by the Government on this issue, although I suspect that finding the answers to the questions will not be so easy.

The hon. Member for Perth and North Perthshire (Pete Wishart) mentioned Tam Dalyell, and of course his point in raising the West Lothian question was that he objected to devolution per se. He thought the alternatives were either a full-scale Union or the hon. Gentleman’s preferred solution. That shows how hard it is to answer this question.

We must ask whether the West Lothian question—as the Minister has pointed out, we should not call it that—is such a fundamental question that it must be addressed. If it must be addressed, is this the right way of addressing it? I suspect that the concerns underlying this matter are not really about voting but about money. There is a feeling of concern among some people in England that the financial arrangements between Scotland and the rest of the UK are somehow an unfair deal. There has been a lot of debate about this issue in the House and there is plenty of evidence that that is not the case—Scotland gets more in some respects, but then some parts of England get above the average while other parts of England get below the average. There are also all the issues about oil resources, taxation and so on to consider. Once we get into all that I suspect that the reality is that Scotland is not “subsidised” in the way that people suggest. A bit more transparency may address some of those issues, so that is something to welcome in the work that Treasury Ministers are doing. If spending, which I suspect is the real issue rather than voting, could be addressed, that would resolve some of the concerns.

On the voting issue, I wonder whether the problem is really so great that it requires this solution. The Union has never been a perfect, symmetrical arrangement. From 1603, and the Union of the Crowns, and from 1707 with the treaty of Union there have been lots of anomalies, which have come about primarily because there is one big member—England—and smaller members in the Union. People have tried to get perfect symmetry over the years but have not been able to achieve that. Do we really need that perfect symmetry if the cost is to be disruption of the kind that these measures would cause to the way that this place operates and to the government of the UK? If the issue is really so great that it requires a solution that is going to address it completely, the only answer will be something like an English Parliament or Assembly with devolution to England of those issues that are currently devolved to Scotland, Wales and so on. I suspect however that that would not solve many of the concerns of those hon. Members who want to address this issue. If the West Lothian question has to be answered, that is probably the only way. I certainly am not convinced that it can be met.

I am not closing my mind to any of the suggestions that might come from the commission that the Minister is going to set up, but I heartily endorse the view of the hon. Member for Perth and North Perthshire that it should not be just an internal, Westminster parliamentary commission but that it should draw on expertise from all the devolved regions of the UK. It should draw on academic and political expertise. I accept that it should not be something that goes on for years and years, eventually disappearing into the long grass, but it needs to be done comprehensively and in the round. This issue may seem relatively minor in terms of how it can be addressed in parliamentary terms, but once we go down this road there is a real risk that we will undermine the fundamental nature of the House and the way that we govern, thereby causing further tension between different parts of the Union, which is the last thing that any of us who want to keep the Union alive want to happen.