English Votes for English Laws

Lord Kerr of Kinlochard Excerpts

Wednesday 21st October 2015 Lords Chamber

[Lord Forsyth of Drumlean]

My Lords, this is probably going to be the only occasion in my lifetime when I can get up and say that the person who has just made the speech that I was going to make is a former distinguished member of the judiciary. The noble and learned Lord, Lord Brown, has made all the points that I would have made. Indeed, so has everyone else; I agree with all the speeches that have been made so far.

I confess to a sense of weariness because I am running out of new things to say. I am also coming to the conclusion that it does not matter a damn what I say or what this House does; it is just going to be ignored and the Government will charge on regardless. The fact that it is more than 100 years since the House of Commons failed to respond to a Motion from this place—and a Motion that was passed by such a majority—is a scandal of the first order. I just wonder why we are here and what we are doing at 8.40 pm. What is the point?

The annunciator says, “The Government’s proposals on English votes for English laws”. These proposals are not about English votes for English laws; if you want English votes for English laws, you need to set up a Scottish Parliament. I am sorry, I meant an English Parliament. Of course, by setting up a Scottish Parliament, we provoked the situation that we are in today. However, English votes for English laws imply an English Parliament, an English First Minister and an English Executive. So if the point of all this is to satisfy the feelings of resentment that have occurred in England because of the existence of the Scottish Parliament, a false prospectus is being sold to the British people and to the English people.

For me, it is really quite weird that a Conservative Government with a majority—in the past I could have blamed the Liberals, but this is a unionist Government—are bringing forward proposals of this kind. If on the annunciator we had proposals for “Scottish votes for Scottish laws”, I suspect that people would be a little more careful in considering the implications for the United Kingdom as a whole—a point that was made by the noble Lord, Lord Tyler, and others.

The last time we debated this, my noble friend the Leader of the House denied that there was an English veto—but the word “veto” has now been accepted. I would be opposed to a Scottish veto in the United Kingdom Parliament, and I can see what Mr Salmond and his colleagues will argue when this goes through: that the Sewel convention—which we probably need to rename, in the circumstances—should actually be enshrined in statute, and that the Westminster Parliament should not be able to do anything that would be covered by the Sewel convention. That would be a very retrograde step.

I have been sitting for some weeks now on the Economic Affairs Committee; we have had extra sessions. We are taking evidence on the implications of devolution for the fiscal and other arrangements of the United Kingdom as a whole. I have to tell the House—I am sure that the noble Lord, Lord Kerr, who is also on the committee, will confirm this—that the advice we are getting from academics has on occasion reduced the committee to laughter because of the incoherence with which all these constitutional changes are coming together, and the inability of our expert witnesses to give assurances.

For example, one distinguished professor pointed out, on the subject of the impact of the changes that are proposed in the forthcoming Scotland Bill:

“If you do that, changes to English taxes affect the Scottish block grant, which I think is appropriate. However, if that is the case, you cannot possibly tell Scottish MPs that they are not allowed to vote on English income taxes, because there is no such thing as an English income tax that does not affect the Scottish block grant”.

In other words, the combination of the new powers being given to the Scottish Parliament, the retention of the Barnett formula and this new proposal to allow an English vote on English income tax will create a problem if you have English votes for English laws, in so far as the Scottish MPs who are not allowed to vote on English income tax will be able to say, “But that affects the block grant and so the Barnett formula, and therefore we are being disenfranchised”. That is a very important grievance of the kind that the noble Lord, Lord Reid, suggested.

I have been trying to think of an analogy to explain the Government’s piecemeal approach to constitutional reform and the difficulties and complexities it is creating. It is a bit like having an Uber driver without a sat-nav. We are going from one destination to another, not sure of where we are trying to reach and without the road map that is required—which could be produced if we had had a constitutional convention, and which might be available if we had agreed to a Joint Committee of both Houses to deal with some of the anomalies that would have arisen.

For example, my old constituency in Stirling, which I used to represent, is now represented by a Scottish nationalist MP. I have had him here for tea in the House so that he could be made aware of the excellent work that we do here, and a very fine chap he is. However, under these proposals, we will get to a situation in which he is elected and not allowed to vote on matters on which I am allowed to vote as an unelected Member of this Chamber. I feel a bit uncomfortable about that—it seems slightly anomalous. A lot of my former constituents who went to the polls to get me out—albeit that was many years ago; those of them who are still alive—might feel a sense of grievance that I am voting on matters which their elected Member is excluded from voting on.

I therefore say to the Leader of the House: I know that we do not have much of a majority here, but is the proposal that I should abstain on all these matters—that all Peers who come from Scotland should not vote on matters which have been determined in the other place? There is no such thing as a Scottish Peer—constitutionally that is right—but try telling that to people in Scotland if these proposals go ahead: you will get short shrift. That may be a narrow debating point. But we are faced with a situation where, in Scotland, thanks in part to the way we fought the general election campaign, almost all the seats are now occupied by one party, which every day sets out to find a reason why Scotland is being damaged by its relationship with the United Kingdom as a whole.

I do not want to repeat arguments that were made by others or that I put previously. However, I recall that the noble Baroness, Lady Boothroyd—who is not in her place—whom I voted for as Speaker, who did a fantastic job in the House of Commons and who has a very good understanding, warned about the difficulties that would be created for the Speaker. My noble friend says that this has been addressed, because he will be able to talk to two other MPs. What happens if those elected MPs have different and perhaps opposite views? The Speaker will have to take a decision, and the very position that the noble Baroness, Lady Boothroyd, referred to, of putting the Speaker in a position where they are politicised, comes into being.

[Lord Kerr of Kinlochard (CB)]

I agree, but it is even worse than that, because it is clear that the certification decision that the Speaker is required to take will be justiciable. That seems to make an enormous change, which will affect not just the House of Commons but the constitution as a whole.

[Lord Forsyth of Drumlean]

I remember the days when the noble Lord used to tell me what to do at European Council meetings. As always, he sees the wood when I could only see the trees. That is a very important constitutional change. It is a diminution of the status of the High Court of Parliament.

All the issues may seem to be anorak issues for constitutionalists but I say to my noble friend that this is not something of little importance, and it is a matter of great distress to me that the House of Commons should rush ahead with it by amending Standing Orders. In an earlier intervention, I pointed out the implications for income tax and what would happen under a Labour Government. I suppose that, as was said earlier, if things were done just by Standing Orders, then if a Labour Government had a majority in the House of Commons, they could simply alter the Standing Orders to remove the position that had been established in order to create a constitutional balance as a result of the extra powers being given to devolved institutions. That is wholly and absolutely unsatisfactory, especially in the context of a situation where there is no consensus among the parties as to how this could be achieved.

That is my final point, which I think I made on a previous occasion. I really do think that constitutional change should carry consensus. If we proceed on the basis that we think it would be a good wheeze to make a constitutional change or that it might advantage one party or another, then other parties will do the same when they are in power. As a result, people will lose faith in the integrity of the institution and it will be greatly damaged.

The Constitution Committee is going to look at these proposals and apparently we will have a year to consider whether they work—although, given our legislative programme, quite how we are going to do that remains to be seen. Will my noble friend consider once again whether it would be a good idea to set up some kind of body—we do not have to call it a constitutional convention—to look at all these issues? Will she also look at the implications of the Scotland Bill, which will be coming to this House, and how that will be affected by English votes for English laws, as they are being dubbed? All the evidence that I have seen indicates that there will be real and serious problems, which have not been resolved and which will do great damage to the relationships between the countries of the United Kingdom.

--- Later in debate ---

[Lord Kerr of Kinlochard]

The noble and learned Lord, Lord Hope, has just made the main point that I wanted to make and did so much more authoritatively than I could have done. But I will take the opportunity to add two more: first, I would not want your Lordships to think that there is unanimity on the Cross Bench that the West Lothian question needs to be addressed. In my view, the West Lothian question should be looked at and left. I profoundly believe that it does not need an answer. In any unbalanced—in population terms, not in talent terms of course—union like ours, the 85% needs to remember the maxim that magnanimity in politics is not seldom the highest wisdom.

My only other point is that I want to spring to the defence of the Leader of the House. I know her well. It is an almost impossible task to combine these two functions. She does it extremely well. I have absolutely no doubt that she very clearly delivered the message that we sent in July by such a large majority and that she advocated at least that we get the courtesy of a reply. I would like her to know that what is being said critically of the Government and of their handling of the House of Lords is in no way personally addressed to her.