That it is expedient that a Joint Committee of Lords and Commons be appointed to consider and report on the constitutional implications of the Government’s 14 July revised proposals to change the Standing Orders of the House of Commons in order to give effect to English Votes for English Laws, and that the committee should report on the proposals by 30 March 2016.
My Lords, I beg to move the Motion standing in my name on the Order Paper, and I shall do so briefly.
The purpose of this Motion is to enable the House to ask for a Joint Committee of both Houses on the Government’s proposals on English votes for English laws. I should first repeat that I welcome the fact that the Government are grasping the nettle of English votes for English laws. At the same time, it seems to me undeniable that their proposals are not just procedural but raise serious constitutional issues. They give a subset of Members of the House of Commons—English or English and Welsh Members—a right of veto on legislation which Parliament would otherwise pass. It seems to me right that Scottish MPs should not have the power to determine legislation affecting only England, or England and Wales, but the Government’s proposals are not the only way of achieving that. The McKay commission and the Democracy Task Force, chaired by the right honourable Kenneth Clarke MP, both suggested simpler and, in my view, less objectionable alternatives which ought to be seriously considered by Parliament.
There are many other problems with the Government’s proposals. The noble Baroness, Lady Boothroyd, has raised her concern that they require the Speaker in another place to make determinations which will be politically controversial and, as the noble and learned Lord, Lord Judge, has said, could cause the privileges of Parliament to be challenged in the courts. Others have argued that the right way to deal with matters of this constitutional importance is by legislation, not by changes to Standing Orders in the House of Commons. That is a view which I share.
When people with experience and expertise from such a different range of perspectives as the noble Baroness, Lady Boothroyd, the noble and learned Lord, Lord Judge, and the noble Lords, Lord Norton of Louth, Lord Forsyth, Lord Lisvane and Lord Reid, all express concern about the Government’s proposals, these concerns demand serious examination. It would not be sufficient to have a debate in which concerns can be expressed but not resolved before the Government rush the proposals through in September by a vote of the majority in another place. At present, when there is both a Conservative majority in the House of Commons and a Conservative majority in England and Wales, the problem is not urgent. Surely it is more important to get the proposals right than to rush them through.
This House has great experience and expertise to contribute on this matter. The proposal for a Joint Committee of both Houses did not originate in this House. It was made by the opposition spokesman in another place. The purpose of this Motion is to enable our House to support it and to indicate our willingness to take part. I beg to move.
My Lords, I rise briefly in support of the Motion of the noble Lord, Lord Butler of Brockwell. He helpfully raised this issue last week in a QSD that he introduced, so the noble Baroness and the Government have had an opportunity to consider it.
I should be clear: we do not see this Motion as challenging the principle of what the Government are seeking to achieve—I am sure that that is not its intention. That is not our role or, as a House, our responsibility. However, it is our role as a revising and scrutinising Chamber to consider the implications of proposed changes for how we as a Parliament operate, and whether changes being proposed have any implications not just for how we do business but whether they impact negatively on our work.
As has previously been noted in your Lordships’ House, these proposals go way beyond those considered in both the McKay and the Hague reports. I know that the noble Baroness does not accept that point, and she will of course have heard the views on it expressed by Members from across the House in our earlier debate. However, these specific proposals have not been fully considered or examined. We in your Lordships’ House have the obligation and the constitutional duty to scrutinise the detail of legislative proposals. We fulfil that responsibility very well, and it is usually seen as an asset to the Government, as evidenced by how often Ministers accept amendments proposed in your Lordships’ House, or introduce their own amendments following debate here. There is always interest in votes that Governments win or lose, but the overwhelming majority of changes made to legislation in your Lordships’ House are through discussion, advocacy and agreement. That is the way that we do business, and that is why we are effective. Indeed, the Joint Committee proposed by the noble Lord, Lord Butler, would use the very best of your Lordships’ House—its expertise, its wise heads and its consensual, cross-party style, working with the Commons to carefully examine the proposals and any possible effects.
Although it is not by legislation, these proposals would fundamentally change the way in which Parliament works. They are far reaching and, as such, deserve proper consideration by both Houses of Parliament. I find it incredible that there would not be proper analysis or consultation with your Lordships’ House about any possible issues that might affect our constitutional role. This House is not an add-on to Parliament or just an afterthought—it is an integral part of the legislative process. As I said to the noble Baroness in our debate last week, we will be failing in our duty as a scrutinising Chamber which seeks to assist in ensuring good government if we fail fully to investigate the implications of this proposal on the governance of our country. We have to interrogate this issue now and fully understand any and all implications. Such an investigation through a Joint Committee as proposed by the noble Lord, Lord Butler of Brockwell, could either reassure your Lordships’ House that there are no implications or identify any possible difficulties so that they can be addressed. If the noble Baroness’s assessment that there are no implications for your Lordships’ House is correct, that will be confirmed by a Joint Committee. Although she has asserted that as a belief—which I know is genuinely and sincerely held—she has not, so far, provided the evidence to substantiate it.
Surely it would be a gross dereliction of our duty as a House if, in a few months or a year or even later, we were presented with a constitutional difficulty that, because of the failure to properly examine the issues now, we were at a loss on how to resolve it. That would be irresponsible and a recipe for constitutional chaos. I have made clear on more than one occasion from this Dispatch Box that we are and will continue to be a responsible Opposition. I ask the noble Baroness to ensure that we also have a responsible Government and to accept the wise and moderate proposal of the noble Lord, Lord Butler.
My Lords, I have spent a great deal of my political life in government, receiving—and normally taking—the advice of the noble Lord, Lord Butler. He knows, because I have told him, that on this occasion I am not going to agree with him.
I agree that this is a very important issue. The West Lothian question has been around for a long time, and if there were an easy answer or an answer that satisfied everybody it would have been settled years ago. The Government’s proposals should be given a try, but the Government are absolutely right in saying that their proposals should be reviewed after 12 months. These proposals do not alter the rights and responsibilities of the House of Lords in any way; they alter the Standing Orders of the House of Commons. These proposals are a manifesto commitment of the Conservative Party which recently won a general election. That must be treated with respect by the House of Lords, which also ought to be cautious in seeking to interfere with the workings of the House of Commons.
I accept that there are strongly held views on these issues. My advice would be for the House to accept the offer of the Leader of the House for a full debate on the matter in September, or as soon as it can be arranged, assuming that that offer is still open should the House seek to resolve the matter this afternoon, which in my view would be a mistake. It is at the time of that debate that we should decide whether the House of Lords should offer to take part in a Joint Committee of both Houses, but I have to say that I am doubtful. As I understand it, the House of Commons is yet to make a decision to change its Standing Orders and it would be premature for us to seek to tell it what to do or to interfere in the middle of its deliberations.
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.
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.
My Lords, I support the Motion from the noble Lord, Lord Butler, not because I want to impede the addressing of this issue by the Government, because we should not. As the noble Lord, Lord Wakeham, pointed out, the issue was in the Conservative Party manifesto—but these proposals were not, to the best of my knowledge. What I fear greatly is that the nature of these proposals, far from resolving the issue, will create so much confusion and potential conflict not only within this Parliament but between it and the devolved Parliaments—that of Scotland in particular but the others as well—that we will end up with a solution that is far from desirable from anyone’s point of view.
In deference to the House, I will not go through any of the details, because we want brief speeches. But I would just say, for anyone who does not understand them, that the definitions included in the Standing Orders are deceptively simple. These issues are not at all simple, not the territorial issues or even the second test of the content—not to mention the third test, which is not mentioned at all in the Standing Orders but which, as the noble and learned Lord, Lord Wallace, mentioned, is the purpose. If we do not have this done correctly, this is a recipe not for resolving the issue but for having continuous recourse to the courts, to conflict and to confusion of a profound nature in our constitution.
We cannot of course impose this Joint Committee on Members of the House of Commons—these are their Standing Orders—but we can try to persuade them, with a great deal of sincerity, that the mechanism we are proposing will not impede their addressing of this question but will assist them in addressing the intentions of the Government in a way that does not end up with terrible unintended consequences that will further erode the potential for unity inside the United Kingdom. That is my great fear with these proposals.
I hope that the Leader of the House, when she discusses these matters with her colleagues in the other place, will assure them that the speeches that have been made today do not attempt to deny the right of the Government to address this issue, as it was in the manifesto, but to plead with them to do it by using not only the political expertise at the other end of this Parliament but the deep reservoir of expertise, professionalism, advice, maturity and experience available in this Chamber, through the idea proposed by the noble Lord, Lord Butler, of a Joint Committee. I sincerely hope that that is the spirit in which this debate will be conveyed to the Government by the Leader of the House.
My Lords, I do not wish to repeat the arguments that were put in the debate last Thursday which was initiated by the noble Lord, Lord Butler, or indeed in the debate on Friday when we discussed the Private Member’s Bill of the noble Lord, Lord Purvis. However, the Motion proposed by the noble Lord, Lord Butler, is a very sensible one. It is of course a matter for the House of Commons whether it wants to have a Joint Committee but it is also a matter for the Government to provide a lead on what is becoming a highly complex series of interconnected issues.
If, for example, we are to keep the Barnett formula and have English votes for English laws, as it is dubbed, that will have an impact when we come to discuss the Scotland Bill which is before the House of Commons. I wonder what the problem is here that EVEL is trying to solve. I have had a look at the Bills promised in the Queen’s Speech, and only one of them could conceivably be affected by EVEL. That is a buses Bill which gives local mayors—in Manchester, Birmingham or wherever else—the power to run the buses. If I amend that Bill when it comes to this House to include provosts in Scotland, despite it having already been certified as an English Bill, it will go back to the House of Commons as a United Kingdom Bill. There will be no opportunity for the House of Commons to consider the amended Bill in Committee; instead it will be subject to a double vote: one of English MPs and one of the House as a whole.
On Thursday, in response to the noble Lord, Lord Butler, my noble friend the Leader of the House said:
“English MPs cannot overrule the whole House and the whole House cannot overrule English MPs; neither side can force something through without the consent of the other”.—[Official Report, 16/7/15; col. 764.]
That is not the case here. What is happening is that English MPs are being given a veto, which is not what my noble friend described. This is the concern that is being created.
I was talking to a colleague from the other end of the building the other day who said, “We have to have EVEL—look what they have done to us on foxes”. EVEL would make no difference whatever to any vote on foxes, whereas, as my noble friend and others have suggested, reducing the number of Scottish MPs would have an impact on such a vote.
The noble and learned Lord, Lord Wallace of Tankerness, referred to one thing which really exercises me: at the very last moment, on the revised version, it was made clear that EVEL would apply to finance Bills. Income tax must be about 20% of a Government’s revenue, and that change would mean that a Labour Government, who would perhaps have a majority in the country, would have to have a majority in England in order to get their supply through.
When I was a little boy at school, I was told that the House of Commons was there because it enabled Government to get supply and the consent of the people, and that if a Government could not get supply then it folded. We already have five-year Parliaments and bigger majorities than simple majorities. Now we are adding to that. The noble Lord, Lord Butler, is absolutely right that all these issues must be looked at together so that we have a long-term, stable basis on which to go forward.
On the question of stability, the noble Lord, Lord Butler, also pointed out that the commitment made by William Hague in the last Parliament was that this would be put on a statutory and therefore permanent basis. Amending Standing Orders means that the moment you lose a majority in the House of Commons somebody else can go along and add their version of it. It is not a permanent solution to the problem with which our manifesto was concerned: that we must do something about the fact that we have devolved power to Scotland and English MPs are not able to vote on those issues while Scottish MPs are able to vote on the others.
I hesitate to disagree with my noble friend Lord Wakeham, particularly as it is his 30th wedding anniversary today and he was my former Whip. I have always shown great deference to Whips. On the other hand, the noble Lord, Lord Butler, as Cabinet Secretary was, as I said on Friday, the next thing to God as far as I was concerned when a Minister. Yet Gladstone wrestled with this issue: the whole debate was about “in” and “out”. In the end, they tried all this with Irish votes for Irish laws, British votes for British laws and the rest—and they gave it up. They concluded that the right thing to do was to keep a United Kingdom Parliament and reduce the number of MPs commensurate with the amount being devolved. We have done this for years—we did it with Ulster. When there was more power here, when we had direct rule, they had more Members in the House of Commons Chamber. That works. It has even worked with Scotland. Even Alex Salmond in the last Parliament accepted that there would have to be a reduction in the number of Scottish MPs if there were to be more powers. That is what this very building will discuss over the next period.
The other thing I was taught as a little boy was that constitutional changes to the golf club or anywhere else should be done by consensus. You should not do something that gets one group against you as they will then do that to you when they get the chance. That is why a Joint Committee would be a good opportunity to get consensus. To be fair to the Labour Party, I nearly fell off my chair the other day when listening to the spokesman for the Labour Party in Scotland—their sole MP in Scotland; like us, the party is now outnumbered in Scotland. He said that Labour accepted in principle the question of English votes for English laws. If we agree the principle, then a Joint Committee might be able to get something permanent which will not damage Parliament or help the nationalists—who are making hay. A recent poll in Scotland found that a majority of people had no idea what the Smith commission was about or what the new powers being given to Scotland were but at the same time a big majority felt that those powers did not go far enough. This is what happens if you proceed in a piecemeal manner and move forward on the basis of pressure rather than a coherent, constructive approach.
I am attracted to this idea because the Government have set their face against a constitutional convention. That is unfortunate but when I listened to the Private Member’s Bill of the noble Lord, Lord Purvis, and all the things he would have put into his constitutional convention—it was all to be decided within a year—I began to see the Government’s point of view. If you are to have a constitutional convention, the terms of reference should be narrow and the timescale set. The Government set their face against that. A Joint Committee is an alternative that would enable them to keep control.
In the debate on Thursday, the noble Lord, Lord Foulkes, pretty well said that if the Government do not set up the constitutional convention others will and they will have the resources. We made a big mistake in Scotland not in opposing devolution—we said it would lead to this mess—but in refusing to participate in the constitutional convention. We were not there to make the arguments about the asymmetry that led to this difficulty. We should not repeat that mistake.
When I was a youngster, I used to work in my father’s garage. He once asked me to strip down an engine and put it back together again. I did that but I was left with one bolt at the end, so I had to do it all over again. The Government are in danger of being left with more than one bolt. We need an engine that will take our country forward. I strongly support the noble Lord’s Motion.
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.
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.
My Lords, I am very glad to follow the noble Lord, Lord Lisvane, for reasons that will become apparent in a moment. I have three issues to which I want to refer briefly.
First, as others said last week and have said today, the idea that these proposals affect the other place alone has been blown to smithereens. It is clearly extremely relevant to the powers and responsibilities of your Lordships’ House that these proposals are examined very carefully. The noble Lord, Lord Lisvane, has referred to the proposed changes to Standing Orders and, in particular, Standing Order 83O. I do not know quite why the zero is there—oh, it is an “O”, and obviously very important. For brevity’s sake, I am not going to read them, as there is a whole page of them, but they are headed, “Consideration of certified motions or amendments relating to Lords Amendments or other messages”.
What is here is clearly an opportunity for a subset of the House of Commons to veto what the House of Lords has said, which goes to the very heart of this issue. It is taking a part of the Westminster Parliament and saying that it has a veto over the whole of that Parliament. The relationship between our two Houses is clearly of supreme importance, as others have said, and this alters the supremacy of the Westminster Parliament. It is as important as that. Even more topically, if one devolved subset of our system of governance is given that opportunity, what are Holyrood, Cardiff and Stormont going to say? They will want it too—and why should they not? It alters the whole delicate balance of power and responsibility within the United Kingdom.
The case for a Joint Committee is absolutely clear. If I may say so to the noble Lord, Lord Cormack, the other place can take absolutely no notice whatever of our Constitution Committee—it does not have a comparable Constitution Committee, as he well knows. Perhaps it should have one. By the time that our Constitution Committee has come up with some recommendations, the danger is that the changes to the Standing Orders in the other place will already have been passed.
That brings me to my second point. This is a classic case of the dangers of piecemeal and ad hoc attempts to deal with apparent anomalies in our constitution. Removing one anomaly produces another. Any Member who still thinks, after listening today, that this can be resolved in isolation would do well to read the Hansard report of our brief debate last Thursday and the debate in the other place last Wednesday. I particularly draw the attention of noble Lords to the comments of the former Attorney-General, Dominic Grieve, who said:
“Ultimately, every decision that is taken by an Assembly or Parliament in the United Kingdom has a knock-on effect elsewhere, outside the area of its jurisdiction”.—[Official Report, Commons, 15/7/15; col. 1002.]
Surely, such a wealth of practical experience exceeds what is available to the Leader of the Commons on his own—hence, I believe that a Joint Committee would be entirely appropriate.
There is a head of steam now to go beyond this immediate problem and think about the wider context, so I hope the Leader of the House will persuade her colleagues to look again at the case for a comprehensive constitutional convention, supported now on all sides of your Lordships’ House and widely supported in the other place, as well as being the subject of a Private Member’s Bill in the name of my noble friend Lord Purvis of Tweed.
The noble Lord, Lord Forsyth, is right: just having a constitutional convention is not in itself going to solve this problem, as was clear from the convention in Scotland, which is occasionally quoted as if that were the model. We should be clear that you have to start out with a remit that is agreed, so that all those involved know where they are trying to go. That was not the case in Scotland, as evidenced by the fact that two parties did not want to be involved in the constitutional convention precisely because at that stage, they could not agree to the common remit.
There is clearly a major opportunity, as well as a problem, arising from these proposals. I hope that in the short term there is a Joint Committee of the two Houses—such committees have an enviable reputation for getting to the bottom of things and sorting them out in a way that individually, the two Houses have found difficult—but I believe that in the longer term, this now leads to the need for a constitutional convention.
My Lords, when I sought to intervene, a little too late, on the prompt conclusion of the proposal to the House from the noble Lord, Lord Butler, I wanted to ask him one question. He is proposing a Joint Committee. Recently, we have had an election and seen the arrival of a substantial number of Scottish National Party MPs who previously observed the principle of a self-denying ordinance, but have made it clear that they do not think this quite applies in the same way any more. I wanted to intervene in order to ask: while this Standing Joint Committee is taking place, what will cover any problems arising from legislation in the mean time? We have had some very interesting—
The noble Countess is the first Member of this House ever to have criticised me for addressing her. I do apologise.
I raise that point because there are very difficult issues that need to be addressed, and the noble Baroness the Leader of the Opposition has made it clear that the Labour Party also recognises that. These issues have tested Governments over many years, as my noble friend Lord Wakeham said; we all remember Tam Dalyell and his problems with the West Lothian question.
The Government have put forward some proposals. If noble Lords study Mr Grayling’s speech and the interventions he took when the Commons debated this issue recently, they will see that the Government have recognised that these proposals are subject to further revision; however, they do ensure that something is in place for the forthcoming year. If we have a Standing Joint Committee that, as the noble Lord, Lord Butler, said, has to report by March 2016, that report will then have to be considered. One can therefore write off the next Session of Parliament—nothing will change until the next Summer Recess. It would be sensible to see what problems emerge from the Government’s proposals.
As the Leader of the Commons has made clear, what we are proposing is likely to come forward for approval there in September, and he has asked the Chairmen of the Commons Procedure Committee, and the Public Administration and Constitutional Affairs Committee, to start monitoring the situation now, rather than waiting until May 2016, as my noble friend suggested, to see where the problems arise.
The advantage with Standing Order changes, as opposed to going down the statutory route at this stage, is that if issues arise they can be tackled much more quickly. I do not rule out that at the end of this very difficult process, when perhaps by trial and error we have found the right basis on which to proceed, things could then be put on a statutory basis. That would meet the point that my noble friend Lord Forsyth made about the difficulties arising from a different Government coming in and changing everything. That is one approach that could be adopted.
Can my noble friend give an example of legislation that would be altered in any way if EVEL were not in place in the next Session, or if it were in place? Of course, if this is put on a statutory basis, it is then challengeable through the courts.
My noble friend has done the same homework, in a sense, as Mr Grayling, who made this point. He said that the only Bill that anyone could find at the moment that might be affected would be the one giving mayors powers over buses. I think that it would be something short of a constitutional crisis if someone suggested that one more provost should have a bus pass. Therefore, problems will arise, as I think everybody recognises.
My noble friend Lord Cormack asked why the Constitution Committee of this House should not do something about this so that this House is seen to act now. I made some inquiries about that and the answer I got was that it has been the long-established practice of the Constitution Committee of this House not to interfere with the procedural arrangements of the House of Commons—it has regarded that as being outside its remit.
The noble Lord, Lord Butler, has avoided part of the problem by talking about a Joint Committee. However, we have to be careful how we exercise the undoubted power that we have in this House. There is an obvious sensitivity around this issue which, as we know, is felt strongly in English constituencies. The Government’s approach has been to say that we will probably carry the Standing Orders through in September. We will then take the opportunity that the Leader of the House has given us for a debate, and watch the issue very carefully. I hope that the noble Lords who have strong feelings on this matter will give evidence to the Procedure Committee and to the Public Administration and Constitutional Affairs Committee of the House of Commons when it considers the procedure.
The problem is in aligning the reluctance to interfere with the procedures of another place, which are its prerogative, with an acknowledgement of the experience of your Lordships’ House that can be brought to bear in a number of fields. I hope very much that this can be resolved. We all know that this is a difficult issue, but I hope that it can be approached sensibly and without producing conflict between this House and another place.
One does wonder how many committees we are going to have. There will be the Procedure Committee of the House of Commons and the Public Administration and Constitutional Affairs Committee, which are already signed up to undertake this exercise, and now we are coming along with a Joint Committee involving the House of Lords which will be doing the same thing. I think that we need a bit of balance in this. Unless one completely distrusts those Commons committees—and I hope one does not—I think that they should have a chance to monitor the issue and then recommend changes as we go along, if necessary, and as we learn the best way to tackle this very difficult issue.
My Lords, we are in danger of complicating what is surely a very simple proposition from the noble Lord, Lord Butler, to deal with the problem of changes in the Standing Orders of the House of Commons having implications for the way in which we operate in this House. If we think in any respect that they might have implications, the case for a Joint Committee is in my view overwhelming. I find it very difficult to understand the argument that the decision is a completely unilateral one with no implications whatever for this House when one House of a bicameral Parliament makes changes to the way in which it considers legislation. Frankly, the case has been made conclusively—not least by the noble Lord, Lord Lisvane—that there are clear implications for the way in which we operate in this House.
However, even if Members do not accept the constitutional or procedural arguments, because I am an old-fashioned politician, I want to set out the very simple political consequence that such a decision would have for this House. Very helpfully for my argument, three contributions have been made by Scots—the noble Lord, Lord Forsyth, the noble and learned Lord, Lord Wallace, and my noble friend Lord Reid—who are all former Members of the House of Commons.
If the House of Commons goes ahead as planned, unilaterally, the following political anomaly occurs. Had those noble Lords all remained in the House of Commons, they would have had fewer rights and responsibilities in respect of legislation passing through these two Houses than they do as a result of having been translated to the second Chamber, the House of Lords. That is incontrovertible. What effect that might have had on their judgment as to their career patterns I do not know, but even if this is only an experiment for a year, if we have a year in which Scots in the House of Commons are not allowed to vote on substantial measures but Bills come here and Scots here are allowed to vote, it is only a matter of time—I am making a political point, not a heavy constitutional point—before someone says, “This is a ridiculous state of affairs. We must stop Lord Forsyth, Lord Wallace and Lord Reid from voting on substantial parts of legislation that go through this House”.
I, for one, have had my differences with all three noble Lords at different stages of their political careers, but I want them to be able to play the full part that they always have in the legislative processes of this House, and unless we allow a Joint Committee to be established to consider these matters, such considerations will simply go by the board. They simply will not be considered, and the law of unintended consequences will follow. So I think that the case for the Joint Committee is overwhelming.
My Lords, briefly, I support the Motion in the name of the noble Lord, Lord Butler. I have had the honour to chair two Joint Committees of Parliament. The report of the first was unanimously rejected by both Houses. However, the second report, Conventions of the UK Parliament, was unanimously adopted by both Houses of Parliament. It contained a number of matters of relevance to this issue—not least the fact that electing your Lordships’ House would inevitably lead to a constitutional confrontation between an elected House of Commons and an elected House of Lords.
However, that is not the point that I want to make in support of the noble Lord, Lord Butler. A change in the Standing Orders is a cleverly thought-up device—whether by a politician, an adviser or a lawyer advising the Government, I do not know—to enable this matter to proceed. But it does two things. First, it has as yet unknown and perhaps profound implications for the constitution and the governance of our country. Secondly, de facto it prevents this House having any say in the matter. We can debate it, of course, as we are doing now, but we cannot have any impact on it.
A Joint Committee of both Houses is the best and most sensible way forward, rather than rushing into decisions which change the constitutional relationships between the two Houses. As my noble friend has just pointed out: who knows where they will lead? We have just had some examples of where they could lead. My strong belief is based on my personal experience in both Houses. Many Members present served on the committees that I had the honour to chair—not least the noble Lord, Lord Forsyth, but many others, too. We reached our conclusions in the committee unanimously and without a vote—no divisions of any kind took place. That report, Conventions of the UK Parliament, has some lessons to teach us about what is now proposed.
My Lords, we are one Parliament but two Houses. That is symbolised in the Messages that go forth between green and red ribbon. As the noble Lord, Lord Lisvane, said, comity between the two Houses may sound arcane but it is actually an extremely important principle of the way in which we conduct ourselves.
I believe that we should confine ourselves to looking at the Motion that is before us. I may agree with some of the things that are said about the underlying policy, but the Motion before us is that we should seek to set up a Joint Committee that would presume to report on what the House of Commons should do in its Standing Orders.
It would be a move which was not invited by the House of Commons nor sought by the Joint Committee on Conventions for your Lordships to say that we in this House presume to say to the House of Commons how it should conduct its internal affairs. Questions on House of Commons matters are by convention not permitted in this Chamber; we do not ask them. It is a principle that we do not seek to construe the internal matters of the House of Commons.
Standing Orders are quite important. A very important principle in parliamentary law is the provision that prevents tacking. Tacking was the abuse by the House of Commons of financial measures to add things to them that the House of Lords could not amend because of financial privilege. It is not in any statute; it started as a Motion passed by your Lordships’ House and it now sits as a Standing Order in this House that the House of Commons should not do that. The House of Commons has respected that for 300 years—it is just a Standing Order in this House. It is an example of the importance of preserving. We may have a wider interest in preserving the principle that one House does not presume to construe the internal proceedings of another. We can have all the consideration in the Constitution Committee; we can have debates; we can have discussions. But for us to vote to set up a committee which presumes to tell the House of Commons what its Standing Orders should be—
When the noble Lord makes that statement, I think he fails to take account of the wording of the Motion and the opening remarks of the noble Lord, Lord Butler, which are expressly that it is expedient that a Joint Committee be set up—not that this House sets one up, simply that it is expedient that it be set up. That is surely rather important.
My Lords, if it is simply a question of expediency, one can make a declaratory statement in a debate. This Motion is intended to send a message to the House of Commons and there is no question about it. The committee is invited in the Motion to report specifically on the proposals for changes in the Standing Orders of another place.
We would not care for it very much if we heard from the House of Commons that they had had a debate and were sending us some suggestions as to how we should change the internal proceedings of your Lordships’ House, or if we should be told by people from the House of Commons who might vote on a particular measure.
May I ask the noble Lord to read the Motion again? It is not to inquire into the Standing Orders; it is to inquire into the constitutional implications of the change. In that sense, in what way would it be improper for this House to consider the implications for the constitution of this country?
My Lords, I have the greatest respect for the noble Lord, Lord Reid, but I have read the Motion, which proposes that the committee should,
“consider and report on the constitutional implications of the Government’s … revised proposals to change the Standing Orders of the House of Commons … and that the committee should report on the proposals”,
not on the constitutional implications. It is a specific invitation to report on the Standing Orders of another place. I do not think that is wise; I do not think that we should invite the House of Commons to interfere in our affairs and our Standing Orders. We can make clear the concerns and feelings that we may have about these proposals in many other ways, but I urge your Lordships not to trench into the privilege of the Commons and to hold back. Whatever we may think, if the noble Lord, Lord Butler, were to put this Motion to a Division—I hope he will not—it would be construed as a challenge not just to the policy but to the right of the House of Commons to direct its own affairs. I do not think that would be a sensible procedure for this House.
My Lords, the noble Lord, Lord Butler, has done Parliament a great service by bringing forward this Motion. As he and many others have said, the Government’s proposals are of profound constitutional significance and, as such, they deserve the kind of deliberative scrutiny that this Motion envisages and which the Government are so far refusing to allow.
The arguments in favour of the Motion have been made so extensively and so well that I do not intend to repeat them except to say that I agree with all of them. But several noble Lords, including the noble Lord, Lord True, who has just spoken, have rightly been wary about intervening in the proper concerns of the House of Commons. As a former Member of the other place, I understand that and I think they are right to be wary. But in pursuing his proposal, the noble Lord, Lord Butler, is doing no more than seeking to implement the recommendations of the Royal Commission on the Reform of the House of Lords so ably presided over by the noble Lord, Lord Wakeham. That said that one of the key functions of your Lordships’ House is to act as a constitutional longstop. The noble Lord, Lord Wakeham, may recall the words of his royal commission, which stated that the key purpose of your Lordships’ House is to act as a constitutional longstop to ensure that,
“changes are not made to the Constitution without full and open debate and an awareness of the consequences”.
That seems, purely and simply, what the noble Lord, Lord Butler, seeks to do with this proposal. I hope this House will support him in pursuing it.
My Lords, I do not wish to trouble the House with the comments that I made last Thursday: they stand in Hansard for all to see. However, my name has been mentioned very kindly by two noble Lords here this afternoon. This Motion is very practical and constructive in proposing a joint approach with the Commons on an issue of fundamental importance to a bicameral Parliament, which is what we are. It is also of fundamental importance to our entire country, and I hope it very soon receives the blessing of this House.
My Lords, I know that the House wishes to reach a conclusion, so I will speak briefly. The question is: what are we debating? According to my noble friend Lord True, it is merely the internal arrangements of the House of Commons. According to most noble Lords, it is a major constitutional issue. I believe without any doubt that the second interpretation is correct and my noble friend is completely wrong.
We do not have a written constitution in this country. There are advantages and disadvantages to that. But, given that we do not have a written constitution, it has been held throughout the ages by all constitutional historians in this country that one of the most important responsibilities of this House is to be the watchdog of the constitution. That is what we need to do today and why we need to support the resolution of the noble Lord, Lord Butler.
My Lords, in responding I will address two main issues. The first is whether noble Lords should have an opportunity to debate the implications of English votes for English laws; the second is whether a Joint Committee is the right way forward. My response to the first of those is a very clear yes. As I said in responding to the Question for Short Debate of the noble Lord, Lord Butler, last Thursday, following the repeating of a Statement in your Lordships’ House and once the House of Commons itself had delayed the process it was following in considering changes to its Standing Orders, it seemed proper to offer significant government time for an non-time-limited debate on this matter.
As has been demonstrated in this afternoon’s debate, there is real expertise in this House, which would make a powerful contribution to this process. Indeed, that has always been the Government’s view on this matter. To illustrate the point, on the day my right honourable friend Chris Grayling, the Leader of the House of Commons, made his Statement to the other place, he wrote to the chairmen of the Constitution Committee and the Secondary Legislation Scrutiny Committee of this House, acknowledging the expertise that resides here. When William Hague was Leader of the House of Commons and in charge of this process, he put forward a range of options and carried out a consultation on them. He then gave quite a bit of time to meeting many Members of your Lordships’ House on a one-to-one basis because he, like me and others in my Government, recognised the important expertise that is available to us here.
However, there comes a point when we need to stop talking and make way for some action. To address the West Lothian question, we are making one proposal. It may not be perfect—as I said last Thursday, I do not believe that there is a perfect answer to this question—but what we are bringing forward right now is the result of many discussions over the past few months, since the Prime Minister first said that this is now urgent, and has had the benefit of building on the many different forums and groups of parliamentarians who have looked at the issue over many years. It is modest and pragmatic, and we propose to introduce the change by amending the Standing Orders of the other place—although, as I said last Thursday, we have not ruled out introducing legislation in the future. By bringing forward this change via Standing Orders, next year, in 2016, the Procedure Committee of the House of Commons has said that it will review the new procedures once they have been tested against legislation going through Parliament, and so will the Government at that time.
It is also notable that, in addition to reviewing the proposal in a year’s time, when we have seen something in practice for the first time, the House of Commons Procedure Committee has already launched what it describes as an initial review. The committee started that review last Thursday. It has said today that it intends to cover the arrangements for certification of Bills as part of the initial review and will consider written submissions on the issues, which have been outlined and are available on the committee’s website, that are delivered to the committee before the end of August. This is not about any issues being overlooked or noble Lords being unable to feed into the process. As I say, I am proposing that we should provide for a debate in your Lordships’ House when we return in September to give noble Lords a substantial opportunity to contribute to this process.
Of course I understand the argument made by some that a Joint Committee might offer something that has so far evaded us all over the years—indeed, decades—that we have been looking at this issue, but I am not sure that I share that optimism. I think it highly unlikely that a Joint Committee would produce the consensus that has so far failed to materialise over the past 30-odd years. That is because it is not for lack of scrutiny or analysis that the West Lothian question has not been tackled so far; it is because there has not been the political will to come up with an answer. Moreover, it is because it is a difficult issue and because any proposed solution carries risk that the West Lothian question has been ducked for so long. This Government have decided that we will grapple with it and do something about it. We also made it clear in our manifesto that the time is now right to move on this and bring forward a proposal that should be implemented and properly tested.
Some noble Lords have indicated that they would favour alternative approaches to tackling this, but we have a mandate for this in our manifesto. Of course, it is open to those who advocate alternatives to amend our proposals when they are put to the House of Commons for decision. We are not wary of scrutiny but we want to see proposals tested in action, not in the abstract. That is why we are proposing a review when the first Bills subject to the new procedures reach Royal Assent.
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.
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?
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.
My Lords, I am very grateful to the noble Baroness and to the other noble Lords who have spoken in this debate. I am particularly sorry to have to disagree with the noble Lord, Lord Wakeham, on the 30th anniversary of his wedding, because on that day 30 years ago I was his best man. He showed, if I may say so, very good judgment on that day, and I am very sorry to have to disagree with him today.
If I may, I will first of all answer the question that the noble Lord, Lord King, meant to ask me but did not manage to ask in my opening speech. He asked, if there is a Joint Committee that takes till March next year to look at this issue, what will happen in the mean time. Some have said that there are not many Bills that will be affected, but I have a different answer. My answer is that, at the moment, there is both a government majority in the House of Commons and a government majority in England and Wales, so the problem does not arise—there will be no Bills between now and then for which this will cause a difficulty.
My Lords, I do not think that the problems of the Conservative Party ought to be dealt with by this constitutional change, if I may say so.
What is clear from all the speakers in this debate, with the exception of the noble Lord, Lord True, is that these proposals raise serious constitutional issues and that there are many difficult questions which have yet to be answered. The noble Baroness has said that it is a Conservative manifesto commitment to solve this problem, and that is true. Of course I respect that, and that is why I say that I welcome the fact that the Government are tackling the issue, but the means by which it is being tackled were not in the Conservative manifesto. There are different ways of doing it, and I happen to think that some are better than the proposals that the Government have put forward, which the House had no previous knowledge of before they were contained in the Statement. I believe that those issues deserve to, and can legitimately, be looked at without breaching the convention that the Government are supported in their manifesto.
The Government have shifted their position significantly since their original Statement. They have encountered very much more political controversy than they expected to, and the very fact that they have done so indicates that, either knowingly or otherwise, they underestimated the constitutional significance of their proposals. Noble Lords will recall that the Government’s original approach was that their proposals would simply be voted through by the House of Commons by changes to Standing Orders before the recess, and that there should be no debate at all in this House, on the grounds that our procedures are not affected. The Government were forced to retreat in another place to allow time for consideration. The noble Baroness has said that, after reflecting, she recognises that there are indeed constitutional issues which this House should have an opportunity for debating.
My Lords, it is important to clarify what I said. When I repeated the Statement, I made the point, which I stand by now because it is still the case, that, procedurally, this House is not affected by the changes being proposed by the Government to amend Standing Orders in the other place. When I said at the time of repeating the Statement that I did not feel it was necessary to provide time for further debate, I did so because at that time the House of Commons was planning to proceed quite quickly to debate and decide the amendments to its Standing Orders. However, given that the House of Commons has decided to take a bit more time over this, I felt that there was therefore an opportunity for us to debate it. However, if it had stuck with its original timetable, my original position would have remained the same.
I am so sorry. The Government are proposing to introduce changes now and to review the implementation of these changes in a year’s time, so of course there will be an opportunity for us to contribute to that process and consider the implications of the implementation of these changes. That is what I said at the time of repeating the Statement, and that is what I say now. My main point now is that there is no way of finding a perfect solution through continuing to debate the issue. What we have now is a good way forward that should be implemented, tested, debated and reviewed in a year’s time.
My Lords, I will not detain the House longer. As the noble Lords, Lord Cormack and Lord Reid, said, we cannot, of course, compel another place to set up a Joint Committee. However, what we can do today is to say that we believe that this is a matter for Parliament as a whole, not just for the House of Commons, and that it is best approached by Parliament as a whole through a Joint Committee of both Houses. I wish to seek the opinion of the House.