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Legislation (Territorial Extent) Bill
|©Parliamentary copyright||Prepared 28th April 2011|
Publications on the internet
Legislation (Territorial Extent) Bill
Legislation (Territorial Extent) Bill
The Committee consisted of the following Members:
Sarah Davies, Committee Clerk
† attended the Committee
The Chair: Before we commence, it might be for the convenience of Members if I explain about the amendment paper. Clause 1 stand part has been proposed, and therefore no amendments can be accepted to that clause. That means that amendments 1 to 5, which relate to clause 1, have been ruled out of order. The grouped amendments that we are going to take with clause 1 stand part all relate to clause 2, but are akin to the subject matter of clause 1. They can therefore be debated with clause 1 stand part and if appropriate moved later, as can new clause 1. That is exactly the position.
Harriett Baldwin (West Worcestershire) (Con): May I start by seeking your advice, Mr Gale? As you will recall, before the recess, the Committee agreed a sittings order under which we would sit for at least another Wednesday, because we realised that this was a fairly controversial Bill and no amendments had been tabled for that sitting. We were a little surprised about that, because the hon. Member for Rhondda, who speaks for the Opposition, had said on the Floor of the House that he wanted to put forward a range of amendments, but he had not tabled any for the first sitting. During the recess, he tabled a full set of amendments that broaden and deepen the direction of the Bill. Sadly, however, the hon. Gentleman—perhaps while tabling the amendments, I do not know—broke his leg, and he is in hospital in his constituency this morning. I seek your advice, Mr Gale, as to whether it is appropriate to adjourn and sit again next Wednesday, or to continue with the business at hand.
The Chair: I thank the hon. Lady. [ Interruption. ] Before we go any further, I advise the hon. Member for Stoke-on-Trent Central that he is not allowed hot drinks in the Committee Room. Will he take it straight outside again?
I had, of course, been advised that the hon. Member for Rhondda had suffered an injury and is unable to be with us this morning. I am sure that the first thing that the Committee would like to do is to send him good wishes for his recovery. That said, the business of the Committee cannot depend on the health and well-being of one Member. The hon. Gentleman had the opportunity, if he chose to do so, to seek a deputy from within the membership of the Committee, and it might well be that Members on either side wish to move the amendments in his name on the amendment paper. My advice to the
The clause goes to the heart of what the Bill is trying to achieve. Essentially, it will create a duty on the Secretary of State. The term Secretary of State is chosen carefully, because this Bill is intended to influence Government legislation. When publishing draft legislation, the Secretary of State will have a duty to ensure that the legal and financial effect of that legislation on each part of the United Kingdom is separately and clearly identified.
The clause is also worded carefully to refer to draft legislation because, if it were to go any further than that, it might encroach on the exclusive cognizance of Parliament in respect of legislation. It is saying to the Secretary of State that, when Government legislation is prepared, we want spelt out at draft legislation stage its impact, both legal and financial on each part of the United Kingdom—an effect that we want clearly identified separately. The purpose of the Bill is to ensure that, when legislation is passing through both Houses, everyone examining it will understand both its legal and financial effects throughout the United Kingdom.
Michael Connarty (Linlithgow and East Falkirk) (Lab): I am actually pleased to be back here today. I have no other commitments until 10.30 this morning and can think of no better way to spend the time until then other than opposing the motion that the clause stand part of the Bill. In fact, I oppose the whole crazy Bill. My predecessor in part of my constituency until he retired—Sir Thomas Dalyell of the Binns, known as Tam Dalyell—flagged up the West Lothian question. The reason behind such action was the fact that Tam Dalyell’s school was Eton and, believe it or not, he was head of the Oxford University Conservative Association. It was only when he saw what the policies of successive Conservative Governments had done to his West Lothian homeland when he returned there from Oxford that he realised that he had to switch sides and stand up for people who were oppressed by those Governments who did not care for the miners and others.
Tam Dalyell found out that people who went to Oxford, and others from the shires—who seem to be well represented here today, especially by the hon. Member for West Worcestershire, the presenter of the Bill—were fixated on the machinations of this place rather than the worries of their constituents. I respect Tam’s view. He realised that, under devolution, some backwoodsmen and women would want to ask why parts of the United Kingdom with a devolved Parliament should allow their hon. Members to come here and vote on matters relating to other parts of the UK without devolution. He was right. We now have an example of what happens when we stir up the pot of that little constitutional oddity, the House of Commons.
As I said, I respect Tam’s view because he was opposed to devolution. That is why he thought that the West Lothian question would bring out such interminable arguments and the good thing is that, since devolution
Under clause 1, the idea that the Secretary of State, when publishing draft legislation, would ensure that its legal and financial effect on each part of the United Kingdom is separately and clearly identified is complete madness. Let us consider a health Bill, for example. We would have to work out exactly how many people from parts of the UK, other than England, would come to England for operations because the cost of those operations would then have to be charged back to the responsible authority in that part of the country. Let us consider a higher education Bill. What if the funding authority in Scotland that pays the bills for all the students from Scotland were charged £9,000 for every student who came to England? We would have to calculate how many students would come from Scotland and, therefore, the total of their student fees of £6,000 or £9,000, so that it could be charged back to the funding authority in Scotland. That is how ridiculous the clause is.
If what is meant is some sweeping statement, in some small clause as, for example, we usually get in a Bill about the financial or human rights effects—just a statement, with absolutely no facts—then the clause is worthless. If it genuinely means that the Secretary of State, when proposing any legislation, should have to calculate the amount that would fall to every jurisdiction, the task would be an interminable and difficult one. We would have to set up a whole department in the Treasury just to do that. Does the hon. Lady really mean that?
Harriett Baldwin: I thank the hon. Gentleman for being here today and for giving us such an interesting perspective on the Bill. As a whole, the Bill allows for the possibility that legislation might be described as applying to the whole of the United Kingdom. It might not be possible to separate out in any specific piece of legislation what the effect on particular parts of the United Kingdom might be. However, in the case of legislation that could apply to one particular part of the United Kingdom, the Bill might encourage parliamentary drafters to draft the proposed legislation in such a way that it would be easier to make such a statement.
not vaguely and possibly identified. The hon. Lady’s statement contradicts the clause. If we have to have a Bill, for goodness’ sake let us get it right—I am sure
The whole idea seems to be that there might be one or two Acts of Parliament that could be described as entirely relevant to, for example, local government in England and Wales—or in England, since Wales is devolved. Would it not be better to have a Bill that states that about local government legislation, rather than having a Bill that pretends to be something that it cannot be?
Few Bills going through this place do not have some effect on someone in other parts of the United Kingdom. We might decide that we will do something with the armed forces, as we have seen in Scotland recently, with the closure of one RAF base already and Lossiemouth and Leuchars still under threat, and that will affect people in the armed forces. It will affect my local regiment, which is actually based in Kent at the moment—honourable people that they are—and they are part of the UK. That is just the beginning. We would have to define the effect in every such Bill. In that example, therefore, we would have to state the effect on Lossiemouth or on Fife of the closure of Lossiemouth and Leuchars.
That is what the Bill states—that every single Bill would have to be drafted so that it “separately and clearly identified” all the financial effects of the proposed legislation. That is what the clause says. If it does not mean that an armed forces Bill should be treated in that way, then why is it an overarching clause applying to all draft legislation? For goodness’ sake, if it really means only local government and planning in England, the hon. Lady should promote a private Member’s Bill on that issue, not this Bill.
Mr James Gray (North Wiltshire) (Con): I am most grateful to the hon. Gentleman for giving way. He is, however, making a slightly obscure point in the sense that the closure of Lossiemouth or Leuchars would not of course be subject to an Act of Parliament and, therefore, there would be no requirement for the Speaker or anyone else—such as the Secretary of State—to make any reference to it. Furthermore, since defence is not a devolved matter, it would not come under the terms of the Bill anyhow. Surely we are only talking about devolved matters, in which the Secretary of State would have an interest in stating whether such a matter particularly affected Scotland, Wales or England. However, defence affects the whole of the United Kingdom and would therefore not really be subject to the Bill, and in any case there is very little legislation on it.
Michael Connarty: I respect the hon. Gentleman’s interest. He runs the all-party group on the armed forces and we served together on the armed forces parliamentary scheme, but I do not think that he is right. I believe that there are Acts of Parliament relating to the actions of the Ministry of Defence. It is not right to say that Acts of Parliament that have anything to do with the armed forces, or with procurement, for example, are never passed.
If the hon. Gentleman tells me that there are no Acts of Parliament that legislate for what happens in the Ministry of Defence, he has to prove it to me. I am afraid I do not take that as read, because I cannot
Mr Gray: Bizarrely, the hon. Gentleman is misquoting me, so it is important that I set the record right. I did not say that there was no legislation attached to defence. Of course there is. The Armed Forces Act is passed every five years, and there is one currently before the House at the moment. That is true, but most defence decisions are not under legislation. No law is passed in Parliament, for example, to close an air base or deploy soldiers overseas. Most defence things happen under of the royal prerogative as decided by Ministers. They are not carried out under legislation in this place, although the hon. Gentleman is quite right to say that from time to time there is indeed legislation, such as the Armed Forces Act. I never said there was none but there is very little. Where there is legislation, it affects the whole of the UK and therefore would not be subject to the Bill.
Michael Connarty: They say it is grand when one sinner repents. The hon. Gentleman has just agreed that the Armed Forces Act, which we consider every five years, would have to be a completely different Act if the Bill were enacted. It would have to be analysed in a completely different way. The Bill says that the Secretary of State would publish draft legislation and
Suddenly, the Armed Forces Act would become a mammoth task in sub-dividing all the expenditure into different sectors of the UK. If that is not the case, why does clause 1 of the Bill ask that we do that?
I remember when I was the leader of a council in Scotland. I had a degree in economics and was fascinated by accounting systems. We brought in a zero-based planned-programme budgeting system and asked people to allocate the use of all the staff and resources to every single thing that they did, and if they could do that, they would get the money that they demanded to fulfil that. The exercise turned into a gargantuan and difficult task and took up lots of resources. It was very difficult. On the scale of those accounts, it was minuscule. On the scale of the United Kingdom and a service such as the armed forces, it would be unbelievably difficult, but it is a good illustration of what we would have to do every five years.
I know that that is not the Bill’s intention. I know that it is really about starting a process so that people can express their grievances against the Scots and the Welsh for coming here and voting on matters to do with their little shires. I know that that is what it is all about. But the consequences of the Bill and this clause are not well thought through. It is a silly Bill. The clause is badly drafted; it has not been thought through and should be rejected. It worried Tam Dalyell, and he was correct to be worried about it, although not because it was a reality. I always said to Tam that his worry about it was because he had been to Eton where he had seen the performances of the people who run this country and who thought they could continue to run it. He knew that the idea that the Scots, following devolution, should then be allowed to also have a say about things in England and cause problems in this strange place—where he served for 43 years—would worry some people. He understood, probably better than I did, that there are
So, it is a badly thought-out clause. I have heard nothing said by anyone so far to convince me that the clause is well drafted and would not have massive problems for every single Act of Parliament. I will want to know exactly what rights people have. As I have said before, my brother moved to London when he was 16 to work in the civil service. He continued in the civil service, eventually married and lived in Gosport. In Gosport, he had to rely on the health service and the hospital in Portsmouth let him down. It misdiagnosed what was wrong with him. He eventually had a leg amputated and died of a blood clot that was not properly treated by that hospital. My concerns for the people who use the health service in Gosport, Portsmouth or anywhere else are just as important as the concerns of the Members sitting here today supporting the Bill. The expenditure cannot be allocated between areas without substantial inputs.
I had an operation in Glasgow called a radioablation, where one of the two natural pacemakers in my heart was taken out, because they can misfire once people are over 50. People come from over all the UK to Professor Cobbe’s laboratory, as he calls it—he does not even call it an operating theatre—to undergo that operation. I have constituents who have had to come to London for major operations that they could not get in Scotland. People from all over the UK go to Newcastle for heart operations. How would that be allocated to the Scottish budget, to the Welsh budget or the Northern Ireland budget without making a joke of it? Are the supporters of the Bill saying that they want that to go on? This Bill would have a broad sweep of a brush across most Acts of Parliament, but what its supporters really want is something that says that the Scots, the Welsh and the Northern Irish should get their noses out of planning business in the shires. I hope that we reject this clause. In fact, I hope that we throw the Bill out. The Government are right not to support it.
Mr Gray: It is a pleasure to serve under your chairmanship, Mr Gale. It is also a great pleasure to follow someone whom I would describe as a close and old friend, as he and I spent two weeks in a tent in Kenya together, among other things. What I do not know about the hon. Member for Linlithgow and East Falkirk is not worth writing down.
I would like to start my contribution by correcting the implication of the hon. Gentleman’s earlier remarks, namely that those of us who support the Bill are somehow or other Eton and Oxford, south of England, county folk desperately trying to do down the Scots. He knows that I attended Hillhead primary school in Glasgow, the High School of Glasgow and the University of Glasgow, and that I am the son of the Moderator of the General Assembly of the Church of Scotland. To this day, my mother lives but a few miles from the hon. Gentleman’s constituency. I did not leave the borders of Scotland until I was 21, and am therefore proud to describe myself as a thoroughgoing, 100% Scot, but none the less a huge supporter of my hon. Friend’s Bill.
Incidentally, it is perhaps worth mentioning in passing that for a brief time—a record short time—I was appointed by the then leader of the Conservative party to be
I am particularly pleased to follow the hon. Member for Linlithgow and East Falkirk, not least because the arguments that he advanced in seeking to undermine clause 1 were so extremely weak as to be hardly worthy of discussion. The notion that my hon. Friend’s Bill falls on detail—it was detail that the hon. Gentleman was discussing—is laughable. In my 15 years in this place, this is the first opportunity I have had to participate in a substantive discussion of the extremely important constitutional issue of the West Lothian question and how it affects the people of England as well as the people of Scotland. Saying that, merely because Tam Dalyell had been at Eton, it was a bad Bill, it was all awful and we all hate the Scots, is absurd.
Incidentally, the hon. Gentleman gave two bizarre examples of why the clause is absurd. The first was in regard to the armed forces, ignoring the fact that there is remarkably little armed forces legislation, as we discussed a moment ago. The second example was particularly bizarre. I am deeply sorry to hear of the unfortunate experience of his brother in the hospital in Gosport. It is extremely regrettable, but it is not an argument for saying that Scottish MPs should have a great deal of say over the national health service in England. After all, my mother has been suffering in Stirling royal infirmary, a few miles from the hon. Gentleman’s constituency. She went on to recuperate in the hospital in Falkirk, which is in his constituency. She is currently in the hands of the national health service in Scotland. That is a matter over which I, as an English MP, have no say. That matter is entirely decided by the Parliament in Edinburgh. The funding for the national health service in Scotland is accounted for entirely separately from that in England. If the system can work that way round, why should it not work the other way round?
Michael Connarty: Let me correct the hon. Gentleman’s first misapprehension. Tam Dalyell did not say that this kind of Bill would be bad or good. He had long experience in the House and knew the obsessions of people in here. I think he also drew on his experiences with people he had been at school or university with. As chairman of the Conservative Association at university, he knew that people with a certain obsession would pick away at the sore of grievance that Scotland had devolution and that therefore Scots should somehow be excluded. He did not argue for a measure in the form of the Bill that we are considering. Look at the Bill—I was not arguing what the hon. Gentleman claimed, although my brother’s experience brought home to me in a salutary sense that the English health system is important.
My point was about people who have to travel. I shall give another example from my family. My niece’s daughter was born with a damaged liver, which had to be replaced.
Michael Connarty: That treatment would be charged back to the Scottish budget, because it would be paid for by her local health board. The money would come out of that given to the devolved Scottish Parliament. That is my point. That charge would have to be calculated in the application of a health Bill to English hospitals that carry out operations on people from other jurisdictions.
Mr Gray: The hon. Gentleman has sought once again to focus on absurd details in an attempt to undermine an extremely important Bill. The great Tam Dalyell’s ancestor, General Dalyell of the Binns, was responsible for hanging, drawing and quartering my ancestor, John Parker, at the battle of Rullion Green in 1666. I was prepared to overlook that little historical aberration in support of what he stood for.
The hon. Gentleman is right in saying that Tam Dalyell correctly viewed the matter as a major constitutional worry and, therefore, something that would indeed be picked away at until such time as it was answered. We are discussing only clause 1, which takes one step towards solving the problem that Tam Dalyell correctly highlighted. I am not certain why Tam Dalyell’s views on such matters should necessarily undermine the Bill.
The hon. Gentleman makes an extremely good point against devolution regarding the health service. From memory, he and I tend to agree on devolution, unless I am much mistaken. I know that he his sound on first past the post and I suspect that his views on devolution are sound, too. He makes a good point that if a Scots person is in a hospital in England, their MP in Scotland has an interest. One of my constituents might break a leg in Inverness. I would have an interest in ensuring that the Inverness hospital is a good one, but I cannot do so, because I have no say over that whatever; that is entirely a matter for the Scottish Parliament in Holyrood. That is the nature of the West Lothian question, and we are trying to address it here.
The hon. Gentleman went on to say that he thought that some details of clause 1 were drafted in such a way as to make it almost impossible to implement, and that appallingly complex financial calculations would have to be made for every piece of minor—possibly even secondary—legislation in this place. He may be right. I suspect that my hon. Friend the Member for West Worcestershire might take the view that the precise drafting of clause 1 could be improved, but the purpose behind it is clear, which I shall discuss shortly. Perhaps words could be improved to prevent the kind of administrative and bureaucratic nightmare that the hon. Gentleman has described. However, for that to be the main thrust of his argument to undermine the clause seems wrong.
The purpose behind the clause is perfectly plain and we should support it. Every Bill in this place currently affects different parts of the United Kingdom in different ways. A health Bill affects England; it does not affect
We can do that quite easily. For example, the ruling on a national health service Bill passed in Westminster would be that it has no effect on Scotland or on Wales. With other Bills, assessing the effect might be much more difficult. Others might state that they equally affect all the nations and regions of the United Kingdom—that is quite possible. Devolution Bills, presumably, might only affect Scotland—100%. Leaving aside the detail, including such a statement would not be that difficult.
The proposal seems to be an extremely important first step towards addressing the West Lothian question. We know that something is wrong. We know that 70-odd Scottish MPs coming down to Westminster and voting on English matters is wrong. Why should the people of North Wiltshire have their futures voted on by Scottish MPs when I can have no say whatever on similar matters north of the border? Why should that be the case? That is the West Lothian question that Tam Dalyell enunciated so clearly. Only by dividing up legislation and assessing how it affects constituencies in different parts of the United Kingdom can we take a step towards addressing the problem.
I strongly support my hon. Friend’s Bill and therefore clause 1, which is at its heart. Some aspects or details might need to be improved, but that can be done in another place or in later stages of consideration. However, for the hon. Member for Linlithgow and East Falkirk to attack the Bill and the clause on the slightly dubious ground that Tam Dalyell thought that the question was a sore that would run and run, or because his family had unfortunate experiences in English hospitals, belittles the argument. The argument is vital, and should not be tackled in that way.
Focusing on the hon. Gentleman’s point about an NHS Bill, he seems to have completely ignored the fact that such services are available to everyone in the UK, but that they are charged back to the respective health budgets in the various places. Presumably, therefore, some general clause would have to state that a proposal could have some effect, which would mean that everyone could pitch in and have the same right to vote throughout the UK, regardless of the Bill being about the NHS in England, or the matter would have to be ignored.
Mr Gray: The hon. Gentleman is undermining his arguments by focusing on minutiae rather than on the broad thrust, which is that Bills passed in this place affect different parts of the United Kingdom in different ways. It is right that we should acknowledge that, and that we should seek to find a solution, and my hon. Friend’s Bill goes some way towards doing that.
Finally, another part of the hon. Gentleman’s argument seems to undermine his stance. He indicated that such matters were extremely unimportant. I think he said that a few people in this building are fixated on the issue, that we ought rather to be down in our constituencies doing important things for our constituents and that such silly matters should to be dismissed because they are unimportant. What silly people we are to be sitting here discussing what he kept calling a silly Bill.
I think the hon. Gentleman is absolutely, 100% wrong. The constitution of the United Kingdom is our most precious jewel, and we tamper with it at our peril. It was tampered with significantly when the devolution settlement was introduced, and it is very important that we should get things right. The same applies of course to the alternative vote, on which there is a referendum a week on Thursday, and to the House of Lords. Tampering with the constitution in an unthought-through way is simply wrong, and to dismiss discussions about our constitution as insignificant or silly is fundamentally wrong.
Iain Stewart (Milton Keynes South) (Con): It is a pleasure to serve under your chairmanship, Mr Gale. I had not intended to speak to the clause, but I must respond to some of the comments and assertions made by the hon. Member for Linlithgow and East Falkirk.
At the outset, I reassure the Committee that, as far as I am aware, none of my ancestors were slain by the ancestors of another hon. Member. However, like my hon. Friend the Member for North Wiltshire, I have to pick up on one point made by the hon. Gentleman. He claims that we are supporting the Bill because of some debating nicety—that it is some wheeze for Members from the shires to pass the time—but it is a real issue that many of our constituents raise. As someone who passionately believes in the Union and its continuation, it is an issue that we had to address.
I am not a knight of the shire; I grew up in Hamilton in the central belt of Scotland during the 1980s. I well remember the political debate at the time, when policies introduced by Conservative Governments were vehemently opposed by the hon. Member for Linlithgow and East Falkirk and his colleagues in Scotland. They were not simply opposed because of the details of the policies, as was their right, but because the policies were thought to be somehow anti-Scottish. It was argued that because the Conservatives did not command a majority of the seats in Scotland, they had no authority to legislate on matters in Scotland. That argument was put vehemently throughout the 1980s and 1990s, and that helped to pave the way for devolution.
But now the situation has turned. Potentially we face a situation in which the Conservatives could command a majority in England but would not form the Government,
Michael Connarty: I do not recall it that way, and I was involved in that debate as a member of the Scottish Constitutional Convention. I have to ask the hon. Gentleman where it stops. London has a separate ability to legislate for the control of its services. It has better policing than most of the counties of England and most of the parts of Scotland. When do we stop excluding people in this process? At the moment, the clause refers to parts of the United Kingdom. Do we have to state how it affects London as opposed to other parts of England?
Iain Stewart: I do not think that that argument does the hon. Gentleman any credit. Four nations make up the United Kingdom. It is perfectly clear that that is what we are talking about, not about further devolution. I must challenge him. Throughout the 1980s, the constant cry from the Labour party in Scotland—and other parties—was that the Conservative Government measures were anti-Scottish, and there was no democratic legitimacy for what they were doing. That was one of the reasons why we ended up with devolution. I am not going to revisit whether that was right or wrong, but devolution has happened. Now the situation is reversed and the people of England—I say this as a Scot who now represents an English constituency—have a perfectly legitimate claim to say that if a measure affects only England, only English Members should determine that.
Iain Stewart: My hon. Friend gives a perfect example. There are issues that are solely territorially distinct. Look through the Scotland Bill at all the issues that are specifically reserved and those that are devolved. There are issues that affect only parts of the United Kingdom. But the important point is that clause 1 does not specify the mechanism by which the English voice should be heard. It is merely the first step to defining whether a Bill applies to the whole United Kingdom or to different parts of it, and the financial effects on it. I warmly welcome the introduction of the Bill by my hon. Friend the Member for West Worcestershire, which may be amended at a later stage. The purpose of Committee and Report stages is to make sure that the detail of a Bill is correct, but the principle behind clause 1 is absolutely sound. Anyone who claims to be a supporter of the Union should back the Bill.
The Parliamentary Secretary, Cabinet Office (Mr Mark Harper): I will not dwell on the West Lothian question in general for long, given that we are discussing clause 1 of the Bill. I am sure you, Mr Gale, would rule me out of order if I did. However, it is worth saying at the
Mr Gray: As an example of precisely what he is describing, what would happen if, in next week’s referendum, the people of England voted no, but overall the answer in the United Kingdom was yes, because of Scottish votes?
This is an important issue and it is better if we tackle it now, when it is not live and at the top of the political agenda, rather than waiting until we are in that scenario and are then plunged into the debate. It is important to solve the West Lothian question, which is exactly why the Government, made up of the two coalition parties, who come from different perspectives on this issue, have said that we will set up a commission to look at it and bring forward a solution. We will announce the details of that commission this year. It will work on this subject to bring forward some proposals.
Michael Connarty: Does the Minister recognise that the Government are opposed to the Bill? The point I was making was against the Bill and clause 1, rather than against the principle that people should look at how the constitution of the UK develops in the future.
Mr Harper: I accept that. The hon. Gentleman did not let me get past my opening remarks. I thought it was worth mentioning the commission. He is right; the Government, on Second Reading, did not support the Bill and we still do not support the Bill. I did not, however, want to describe it in the same intemperate way that the hon. Gentleman has. He belittled the issue. The Bill raises an important issue about the West Lothian question, which is raised on the doorsteps by many electors in England. Indeed, many Scots MPs think that it is relevant. Members of the Scottish National party who sit here do not vote on things that do not affect Scotland or are devolved to Scotland, because they recognise that this is an issue and that those are things they should not be voting on. It is something that the Government take seriously and we will address it when we announce the details of the commission. That is worth saying.
Having said that, I do share some views with the hon. Member for Linlithgow and East Falkirk. We cannot support the Bill. I said on Second Reading that the main problem was that the Bill would put extra burdens on the Government and on Ministers, without a commensurate increase in clarity and information for our constituents. As my hon. Friend the Member for
The hon. Member for Linlithgow and East Falkirk suggested that the same problem applied to sub-dividing England, but clause 2, which is about interpretation, sets out that for the purposes of the Bill, parts of the United Kingdom means England, Scotland, Wales and Northern Ireland. It does discuss sub-dividing England. The hon. Gentleman did raise the issue of London and matters that are under the control of the London assembly and the Mayor. The definition in clause 2 of “separately and clearly identified” means
The concern that the Government have is that it is not particularly clear what “legal effect” or “financial effect” mean. Is “legal effect” simply a requirement to say to which part of the United Kingdom the law extends or, where the legislation extends to England and Wales—which are, of course, one legal jurisdiction—in which one it applies if it only applies in one of them? If that is what it means, it does not add a great deal to the information contained in the extent clause of a Bill or statutory instrument, or in the detailed notes that go with them to explain their territorial extent. If that is not what it means, I am not clear what it does mean. Given that it is not particularly clear, the duty may be very wide ranging, which I think was the point raised by the hon. Gentleman, and it may impose significant burdens on a Secretary of State and be unnecessarily burdensome when they were introducing draft primary and secondary legislation.
Harriett Baldwin: I am grateful to the Minister for acknowledging the intentions behind the Bill. Would he be able to amend the wording in any way to bring it closer to what the Government see as acceptable?
Mr Harper: The problem is that if the wording is clear, or it can be made clear, and it refers simply to the territorial extent of legislation, that information would already be included in the extent clause of the Bill or statutory instrument, in which case the provisions add nothing to the information available to Members of Parliament and our constituents and they are unnecessary. The Government certainly do not want to impose unnecessary legislation that brings no benefit.
Harriett Baldwin: Would the Minister acknowledge that such an extent clause—obviously, there is one in the Bill, in clause 5(3)—is included only because of civil service guidance? The Bill would strengthen that arrangement and put it on a statutory footing.
Michael Connarty: Would the Minister also like to put it on record that the House does in fact debate and vote on Bills that cover Scotland? Sewel motions extend Bills, as was the old practice. If something is not a matter of controversy, it is usually passed by this House, even though it will affect Scotland.
Mr Harper: The hon. Gentleman is correct. One thing that came up in our earlier discussion was that we need to be clear about the language we use. We have to be careful when we talk about Bills that apply to different parts of the United Kingdom and about Bills that deal with devolved matters, and those are not necessarily the same thing. In other words, a Bill might apply only to England, but might cover an issue that is not devolved. Similarly, when colleagues talk about the West Lothian question, they are really talking about issues that are devolved to the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly, not just things that apply to them. It is already the case that legislation could apply across the United Kingdom, in the sense that a Bill’s extent covers the whole United Kingdom, but it might apply only in certain parts of the country, and that is an important distinction.
The second thing that clause 1 talks about is the duty in relation to the Bill’s financial effect, which was one of the issues that the hon. Member for Linlithgow and East Falkirk raised when he talked about defence matters. Under the present arrangements, all new UK-wide legislation must already specify its financial impact, and it must be drafted within Departments’ existing spending plans. If a piece of legislation is brought forward, it cannot have any Barnett consequentials, because it must be within existing plans that have been agreed by the Treasury in financial legislation.
Again, the Government are not clear what “financial effect” means. If it meant what the hon. Gentleman suggested, it would indeed be incredibly complicated to set out. However, I am not sure that it does, and that is part of the problem with the Bill. My hon. Friend the Member for West Worcestershire has done the House a service by giving us the opportunity both on Second Reading and in Committee to debate such an important matter and to tease out some issues.
Mr Gray: I sense that the Minister is beginning to wind up. Does he agree that, if the Government support the principle behind the Bill but are worried about some of its details and consequences, it should be incumbent on them to table amendments to the Bill in Committee? The fact that no such amendments have been tabled to the Bill show that the Government are either not content with the principle behind it or have been slack in not tabling amendments.
Mr Harper: If the hon. Gentleman remembers, we did not support the Bill on Second Reading. We did not support its principles, but I acknowledged again in the debate that the hon. Member for West Worcestershire had done the House a service by bringing forward a Bill
Mr Harper: The hon. Gentleman is correct. The Government, whom I speak for, did not support the Bill. The House did support it on Second Reading, which is why we are in Committee debating it. Although I have great sympathy for the issue raised by the hon. Lady and acknowledge that she has done the House a service by enabling us to debate it, I am explaining why the Government do not consider the Bill to be helpful. I urge hon. Members on both sides of the House not to support the Bill, but I ask those who think that the West Lothian question is worth dealing with to support the Government’s proposals when we announce them this year at our commission. Regretfully, I advise colleagues not to support the clause standing part of the Bill.
Harriett Baldwin: In recommending that the clause stand part of the Bill, I wish to reassure the hon. Member for Linlithgow and East Falkirk about several issues. I feel myself to be an embodiment of the Union. As I said on Second Reading, my grandmother, Flora McLean McLeod Morison, was born in Dunbar to a general practitioner from the Isle of Mull so I have strong family roots in Scotland. I promoted the Bill from the perspective of someone who cares passionately about the Union and who is worried that, through the process of devolution—which I also support and thus differ from the hon. Gentleman’s predecessor—more issues have been devolved and thus more legislative matters are likely to be brought forward in this Parliament that apply to only parts of the United Kingdom. That was the motivation behind my introducing the Bill. About 100 hon. Members can vote on issues that would not apply in their constituencies.
I assure the hon. Member for Linlithgow and East Falkirk that I am proud to represent West Worcestershire, which I regard very much as the heart of England and the heart of the shires. There is no question about that. I was pleased to hear the Minister echo such sentiments. The issue is raised on the doorstep, so to say that we are not listening to our constituents when debating such matters does us a disservice. Both the hon. Gentleman and the Minister asked about the wording of the clause, but I regret that they have been unable to propose alternative wording that would satisfy them.
The clause will put the requirement to spell out the territorial extent of legislation on a statutory footing, as opposed to relying simply on civil service guidance. Doing that will require drafters to think more carefully, when they draft legislation, about ensuring that it can be clearly identified in that way. The importance of that was discussed on Second Reading: it is possible that the House might ask the Speaker to certify that a Bill applied to a particular part of the United Kingdom and, unless it were set out in the measure, that might put the Speaker in an awkward position and politicise his role. Having it on a statutory basis and subject to discussion in the House is extremely important.
Michael Connarty: I respect the hon. Lady’s motivation, but the points raised by the Minister and me have not been answered. The clause does not provide for general statements about where financial and legal implications will have effect. I hope that the hon. Lady, if she was listening, accepts that people use the NHS in England and that that is charged back to Scotland, and that even the effect of the decision on tuition fees, which are paid by the Scottish Funding Council for every Scottish student going to an English university, will affect the education budget back in the devolved parts of the United Kingdom. Therefore, the detail for which she asks is different from the principle, and the detail is flawed.
Harriett Baldwin: I do not really want to ask for the indulgence of the Chair and move on to clause 2, which starts to define all the different meanings, but that will go a long way towards allaying the hon. Gentleman’s concern about clarifications.
Mr Harper: The problem is that, having looked ahead to it, clause 2 does not explain in any more detail what those terms mean. To go back to what happens with legislation, it is already the case that Bills spell out their territorial extent. I know that the hon. Lady says that that is in the guidance that officials use for drawing up legislation and that Ministers use before introducing a measure, but that seems to work perfectly well. I have not heard any argument about that process being broken. If it is working well and there is no problem, the House should not pass another Bill to do it.
If the hon. Lady can explain where the territorial extent clauses in Bills are broken and do not work, we can look at whether that can be rectified without the need to pass another piece of legislation. If that is not the case, the Bill might make sense, but I have not heard any reason or explanation about why what we do already is not sufficient.
Harriett Baldwin: The crucial point is that when civil service guidance is followed and civil servants work with the Secretary of State to prepare draft legislation, they often state the territorial extent in the Bill, but they are not required to do so by law. There is simply guidance, which future Secretaries of State might choose to dispense with unless it is put on a statutory footing.
The other reason, which I have just mentioned, is that the Speaker might be put in a politicised position should the description of territorial extent be used in the future, with the House’s agreement, to inform Standing Orders and their application by the Speaker, and should the Government of the day—whichever political party they represented—be the only people who, through their civil servants, had put such an indication in the draft legislation, without its having gone through a statutory process, which is outlined later in the Bill, of effective scrutiny by the House.
Harriett Baldwin: It is a pity that the hon. Member for Linlithgow and East Falkirk has had to leave, because clause 2 makes considerable progress in interpreting the wording in clause 1. It defines draft legislation as
In response to the points that have been made about London, “part of the United Kingdom” means England, Wales, Scotland and Northern Ireland. “Publish” means in both “hard or electronic form”. “Secretary of State” includes a Minister of the Crown, so the proposal relates to the legislation that the Government introduce, as opposed to that put forward by private business.
“that the financial effects of the draft legislation on each part of the United Kingdom are set out in a financial memorandum accompanying the draft legislation, including any impact on Barnett formula allocations (or, should the Barnett formula be superseded, its successor formula).”
That interpretation is important. The Scottish National party, for example, often decides to abstain on a particular vote if it believes that the measure before the House does not apply to Scotland. On occasion, it has found itself unsure whether there is any impact on Scotland through the effect of the Barnett formula. It has, therefore, erred on the side of caution in voting in such situations. Including a requirement to spell out the financial effects, which is supplementary to the guidance that the civil service is currently required to produce, helps those who might, for whatever reason, feel that it is not necessary for them to vote in a particular Division or on a particular issue.
The financial effect of a measure can be discovered by other means, but the virtue of putting it on a statutory footing is that it is spelled out on the face of draft legislation. The financial consequences and the
Mr Harper: I shall not speak at length, because I covered several of the Government’s concerns when we debated clause 1. I still do not believe that the definitions of “separately and clearly identified” add anything to the current drafting of legislation in setting out the territorial extent clauses. Indeed, the definitions might make matters more complicated, because there would have to be a
Bills such as this one currently set out in the extent clause that the whole Act would extend to different parts of the United Kingdom. Clause 2 is not clear whether the specific territorial extent would have to be set out for each individual clause and schedule in a Bill.
The duty also extends to draft secondary legislation, as I said in the debate on clause 1. Whatever we are doing, the duty should apply only to primary legislation. Secondary legislation is already covered by the vires of its parent legislation. Even if secondary legislation were published in draft, it would have to conform to the territorial extent of its parent legislation. The territorial extent of that secondary legislation would therefore already have been considered during scrutiny of the draft Bill or during the Bill’s passage before it is enacted. Again, therefore, I do not think the provisions add anything.
The final point relates to the definition of the parts of the United Kingdom, which refers to England, Wales, Scotland and Northern Ireland separately and does not take account of the fact that England and Wales form a combined legal system. It is, of course, possible for legislation to take effect only in one of England or Wales, but it would still be the law of England and Wales, even if did not actually have any effect in one particular part.
Mr Gray: I am extremely puzzled by the approach of Her Majesty’s Government. Having already been ignominiously defeated in a Division in Committee, how can they turn round and start picking holes in minute details of the Bill’s drafting? If their objection to the Bill related to some of these small details, it would surely have been only right for them to table amendments. Having not done so, they should surely be prepared to accept my hon. Friend’s drafting.
Mr Harper: No. I acknowledge that the issue that my hon. Friend the Member for West Worcestershire has highlighted through her Bill is important and that the Government want to tackle the West Lothian question or, as she rechristened it on the ConservativeHome website, “the English question”—we have been trying to do that for some time, but we have never quite managed to make that name stick. However, the Government do not support the principle or the detail of the Bill, because it does not make any progress in solving the West Lothian question. We did not, therefore, support it on Second Reading and we do not support the individual clauses.
These are significant issues. The hon. Member for Linlithgow and East Falkirk was dismissive of the Bill and of addressing the West Lothian question. The Government do not agree with him about dismissing the West Lothian question. Hon. Members have explained that their constituents, like mine, raise this issue unprompted on the doorstep, so it is important. However, the Bill is not a step forward in tackling it, although it has allowed us to debate these important issues on Second Reading on the Floor of the House and in Committee.
For the reasons that I outlined when we debated clause 1 and for the extra reasons that I have outlined now, clause 2 should not stand part of the Bill, and I urge my hon. Friends to agree with me when the issue is put to a vote.
Harriett Baldwin: The clause addresses a point that the hon. Member for Linlithgow and East Falkirk raised at the beginning of the debate. What would happen in the hypothetical situation that it was not possible to make the statement required in the Bill?
“The Secretary of State must, when publishing draft legislation…make a statement to the effect that in his or her view the provisions of the Bill are compatible with the principles of legislative territorial clarity”.
The debate on this clause focuses on particular circumstances such as a situation where it is simply not possible to make the statements required by the legislation. It gives the Secretary of State some leeway, but ensures that the House of Commons is made aware that the Secretary of State was unable to make that statement of compatibility, thereby opening the matter up to become a debatable issue.
Mr Harper: My hon. Friend has explained the purpose of the declaration. The concept of a declaration of compatibility is something with which hon. Members are familiar from looking at the declaration made on legislation about the Human Rights Act 1998. A significant difference, however, is that in that declaration clear legal principles are set out in the European convention on human rights, against which the legislation can be measured. Ministers look at that legislation carefully when making such a declaration.
We will not dwell in this debate on a detailed discussion of the European convention on human rights. That would, of course, be out of order and you would take me up on it, Mr Gale, if I strayed. However, there is extensive case law on what the convention means, and when we discuss clause 4 I will explain why the declaration under discussion is more complicated. Because it is not clearly defined, a Secretary of State would have a real problem in making such a declaration because it is not clear what the Bill is being declared compatible with. That is a real problem, but rather than anticipate the debate, I will go into the issue in more detail when we discuss clause 4. I urge my hon. Friends to oppose clause 3.
Harriett Baldwin: The clause outlines the principles of legislative territorial clarity, which are that every citizen of the United Kingdom has the right to see how proposed changes to the law will affect them, and that Members of this House have the right to see how proposed changes to the law will affect their constituents. That strengthens and puts on a statutory basis new principles of legislative territorial clarity. I am delighted that on Second Reading, the Minister said he believed those to be sensible principles, and I am sure that it will be hard for anyone to object to them in this debate.
Mr Harper: I fear that I may disappoint my hon. Friend. Although the principles may be welcome, we are talking about creating legislation that will put duties on Ministers. There is a lack of clarity about what is meant. For example, it is not clear how far the Bill would require the Secretary of State to go. In the case of
Would the Secretary of State, for example, be fulfilling the principles of legislative territorial clarity if he or she set out in legislation the legal and financial effect, as required in clause 1 and interpreted in clause 2? If that is the case—if including the extent clauses detailing the extent of the legal effect of legislation is required to fulfil the principles of legislative territorial clarity—clauses 3 and 4 are unnecessary. The Bill would do what it needs to do without them. If the clauses mean something else and the Minister has to go further, it is not clear what the Secretary of State would have to do to comply with them. Would a Bill, for example, have to detail the effect on citizens and on Members’ constituents, or would that detail have to be in the explanatory notes?
The Bill applies only to draft legislation, which is almost always accompanied by a White Paper and is often subject to pre-legislative scrutiny. Those mechanisms, which are already used by the House, are useful for providing extra detail on the impact of legislation such as why Ministers are bringing it forward and why the Government think it is a good idea. I think those mechanisms are more effective than including many more words in legislation.
It would be a significant change if, rather than a Bill only containing the wording of the provisions that change the law, we started including descriptions of the effect that those changes would have. I am not clear—and I am not sure that draftsmen, Ministers and Members of Parliament are clear—about how people would comply with the requirements in clauses 3 and 4. That lack of clarity might risk creating a new ground on which people could challenge primary legislation in the courts, either on the basis that there had been no declaration or that a declaration was one that no reasonable Secretary of State would make.
The clause either does not add anything to the Bill or it is not clear. After listening to my hon. Friend’s description I was not any clearer about what the Secretary of State would be certifying in his or her statement on a Bill’s compatibility. I am not clear about the processes and steps that officials and Ministers would have to take to be able to make such a declaration. When Ministers make the existing declaration about compatibility with the Human Rights Act 1998 they make that statement personally. The Minister has to take responsibility for that, because it is legally challengeable. Ministers consider it seriously before issuing such a certification.
Harriett Baldwin: Will the Minister confirm that he continues to believe that it is a sensible principle, as he stated on Second Reading? I would have been interested to see what amendments he would have proposed to the wording, but in general does he agree that the principle of every citizen being able to see how they are affected by changes to the law and how proposed changes to the law might affect the constituents of Members of Parliament is a sensible one?
Mr Harper: Let me draw the distinction I am trying to make for my hon. Friend. In legislation we set out the changes to the law that we want to see. With the legislation we publish White Papers, which expand in more detail on why it is that we are bringing forward that legislation and what we hope to achieve. The principle and the detail of legislation are debated in the House, but we do not include all of that wider information in legislation. In legislation we stick to writing the law. We do not include all of the surrounding information on the effects that it will have.
I am not clear, and I do not think that Ministers and officials drafting the legislation would be clear about what they had to do to comply with clauses 3 or 4, which are linked, in order to make that particular statement. Of course it is important that people know what effect the law will have, which is why we try to draft it in a very clear and straightforward way. Then we have extensive debate in Parliament so that people are clear about what it does, but it is not as straightforward as my hon. Friend thinks. That is why it is our business to debate legislation.
Much argument is made about the effect of legislation, we tease out the details and legislation is often changed as it moves through the House. I do not think it is clear and straightforward. The burden put on Ministers is potentially quite a significant one, without the benefit of citizens being any clearer than they are today about the effect that the legislation will have. That is why I think the Committee should oppose clause 4.
Mr Gray: I am increasingly puzzled by the Minister’s stance. Leaving aside his broad concerns with the general thrust of the way that the Bill is drafted, the principles behind clause 4 are incredibly straightforward. The Minister and the Government opposed the motion proposed by the hon. Member for Stone (Mr Cash) that the House should be sovereign. Similarly, they seem to be opposing something that is as plain as the nose on your face. Of course it is right that the citizens of the United Kingdom have the right to see how proposed changes to the law will affect them, and that Members of the House of Commons have the right to see how proposed changes to the law will affect their constituents. To deny or gainsay those two principles fundamentally undermines the purpose of having a House of Commons. Of course those things are right.
If the Minister chooses to vote against the clause, he will be saying that every citizen of the United Kingdom does not have the right to see how proposed changes to the law will affect them. Of course they do; obviously, they do. As a Member of Parliament, he must recognise that they do. His argument against the clause was that he could not quite work out how the Secretary of State would conform to the terms of the clause. He said that it would be very difficult: would they do it in a White Paper? Would they do it in the explanatory notes? No doubt that can be sorted out down the road. Surely we can find a way in which the Secretary of State could comply?
For the Minister to say that he is uncertain about how the Secretary of State will comply and that that is a good reason for voting against our constituents’ knowing what is happening in this place is bizarre. I therefore challenge the Minister. He has made his overall opposition to the Bill plain by voting against clauses and has been
Mr Harper: I think that my hon. Friend is missing the point that I am making. Of course it is the case that citizens need to know how the law will affect them. The job of Members of Parliament is to scrutinise legislation in detail, which is what we are doing. I am pointing out that it is not at all clear what the Secretary of State would have to do to comply and to be able to make a statement of compatibility. Alternatively, the position is not clear if they cannot make a statement of compatibility but they wish to proceed.
Mr Harper: Clause 4 sets out what the Secretary of State has to do to be compatible with clause 3, so clauses 3 and 4 are intimately combined. There are already processes that exist in this House when we are publishing draft legislation—the White Paper and the process of pre-legislative scrutiny—where the Government can set out exactly what they mean and the House can then tease out, test and challenge Ministers on what they mean. But I am not clear about how to ensure compliance. The hon. Member for North Wiltshire said that a way could be found for it to work. That may be the case, but the Government do not want to create significant burdens that will create extra work and extra cost for Government, particularly at a time when we are trying to do Government more efficiently and at lower cost, without a commensurate benefit. If the Government believed that the burden that the Bill imposed on Ministers would lead to a significant improvement, and that it would result in Members of Parliament and citizens being much clearer about the effect of legislation, the Government might have taken a different view. However, we believe that the burdens are potentially significant and unclear, and that they will not lead to any improvement in clarity for Members or citizens. That is why we oppose the Bill in principle and are opposing it in detail as we work our way through it.
Harriett Baldwin: The Minister alluded earlier to the fact that he remains committed to establishing a commission this year to examine the West Lothian question. His comments worry me. Will he confirm that the terms of reference for that commission will allow recommendations that might increase some burdens on Government and allow some expense to make clearer to which parts of the United Kingdom legislation applies?
Mr Harper: The point that I was making to my hon. Friend the Member for North Wiltshire is not that the Bill imposes burdens that may have some cost, but that it is not certain. The scope of those extra burdens is not at all clear. As I said, on one reading the territorial extent of legislation is already there, so the Bill does not add anything. If that is not what it does, then it adds a
Having considered the Bill in detail, I am not at all sure that at the end of the process—if it were to pass through Parliament and become law—any extra information would be available to Members of Parliament or constituents that would make any clearer the extent to which legislation passing through the House might affect them. I am no clearer having debated the matter.
Mr Harper: My hon. Friend tempts me, but I am not yet able to do so. Indeed, Mr Gale, seeing your expression, I know that you would rule me out of order if I were to try. We will announce the membership of the commission and its terms of reference in due course to the House in the normal way. I ask my hon. Friend to be a little patient.
I made it clear on Second Reading and in Committee that the Government are committed to dealing with the West Lothian question, but at a time when it is not the most burning issue, as we do not want it being decided in a political climate that is not particularly hospitable. I have given that clear assurance at each stage. We believe that this piece of legislation will not move us any further forward, which is why I urge my hon. Friend not to proceed with it. She obviously takes a different view, as she is entitled to, but I still urge the Committee not to support clause standing part.
Mr Harper: I wish to make two points. First, my hon. Friend’s intention is that the Bill will come into force automatically three months after Royal Assent. Given that I have set out a number of difficulties with the Bill as drafted, it would require some changes, perhaps significant changes, in the way the legislation is prepared. The Government would have to give proper thought to guidance to ensure that the Bill could be complied with, particularly if we were unable to deal with any lack of clarity about what the Bill meant. The Government
Subsection (3), which explains the territorial extent, is incompatible with the usual meaning of those words in legislation. As normally used, they apply to the legal jurisdictions within which the Bill will have effect. England and Wales is a single legal jurisdiction, and there is no separate Welsh legal jurisdiction or set of Welsh legislation, so, as drafted, it is not clear exactly what that means. I urge colleagues not to support clause 5 as drafted.
Harriett Baldwin: The discussion has been helpful and wide-ranging, and it has illustrated that, on both sides of the House, there are strong feelings on this matter. We have heard a clear statement from the Minister that the concern that the Bill is intended to address is something that he agrees needs to be tackled at this time, while it is not a burning issue, and when it is not on the front burner of constitutional challenges for the Government.
I appreciate everything that the Government have stated today about some issues with the legislation. I am disappointed that the Government did not take the
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