Oral evidence - Minister for Constitution

Members present

Lord Lang of Monkton (Chairman)

Lord Cullen of Whitekirk

Lord Hunt of Wirral

Lord Judge

Lord Lester of Herne Hill

Lord Maclennan of Rogart

Lord MacGregor of Pulham Market

Lord Morgan

Lord Norton of Louth

Baroness Taylor of Bolton

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Examination of Witnesses

Rt Hon Mr Oliver Letwin MP, Chancellor of the Duchy of Lancaster, and John Penrose MP, Minister for Constitutional Reform, Cabinet Office

Q1 The Chairman: Chancellor, welcome and thank you for coming to meet our Committee early in the session. We are grateful that you have brought John Penrose with you as your Minister. We very much value this opportunity to talk to you. We have a limited time span, but we will try to cover the ground if we can. I do not know if you have an opening statement that you would like to make. No? That is fine. Thank you very much.

Could I start by saying that a degree of concern has arisen in the Committee that over the term of the last Government there was an uncertain level of oversight of the rule of law and of the constitution in general? There were specific responsibilities in the hands of certain people, but somehow or other the overall picture did not seem to come together very effectively. This was reflected in the debate we had yesterday on the report we published on the Lord Chancellor’s role. I do not want to go over that ground again, but I hope that the Government will have another look at the debate, which was handled by Lord Faulks for the Government, and reflect upon it.

I would, however, like to draw your attention to the fact that we have had four skeleton Bills before us already on which we have felt obliged to comment simply because there are so many blank spaces where there should be specific provisions. I am not asking you to comment on them individually, but can you give us a general feel for how you see your role and that of the new Lord Chancellor and others in government co‑ordinating the things that concern us?

Mr Letwin: Thank you for inviting us to talk to you. It seems to me that there are three separate issues that you are raising. One is the question of Bills and what is in them or is not in them. I have to say that because I knew that this question was going to arise I went back and looked at the Charities Bill, the Cities and Local Government Devolution Bill, the Psychoactive Substances Bill and the Childcare Bill, which are the first four that have come to your House. We at our end are debating the Scotland Bill, the European Union Referendum Bill and the Education and Adoption Bill, so they will be coming your way in due course as we exchange. Having gone through them, I do not think I agree with your assessment. If there is one Bill that has less in it than the others it is the Childcare Bill, but that is because it is a very targeted move to lock in legislatively what the Government already have the power to do, just in order to make it absolutely certain that we will continue to fulfil our manifesto commitment to the extra 15,000 places.

The other Bills, I have to say, having gone through them, are pretty robust and pretty comprehensive. There are various powers that Ministers have. In the Cities and Local Government Devolution Bill, for example, they have the power to nominate the specific areas of the country that, having had combined authorities, will have elected mayors. That is because the nature of that devolution process is evolutionary and we do not yet know which other cities besides Greater Manchester may join that movement. So I am afraid that I just simply do not agree that there is a problem with those Bills.

The second question you raise is about the role of the Lord Chancellor—you have had a debate, a report and so on on it—which I entirely see is a very significant issue. It may be helpful on that, although I know we may come to this in more detail later, if I set out what I see as the pretty clear division of responsibility between Michael Gove as the Lord Chancellor and me as somebody trying to co-ordinate the constitutional legislation. My role is to try to make sure that the various forms of devolution and balance that we are trying to introduce through the Scotland Bill, the Wales Bill, the Northern Ireland legislation, the English votes for English laws legislation and so on are appropriate, stable and coherent. That is not about the rule of law in any sense other than who is to be in charge of which bits of our law and administration, which is a very important issue. There is a separate set of questions that are about what colloquially is more often described as “the rule of law”—for example, human rights legislation—where it is Michael Gove as Lord Chancellor who is very much in charge. I do not see that it is my job to have any more role in that than as a fellow member of the Cabinet and of the HA Committee. So I do not think that there is a problem about that allocation of responsibility, but obviously I will be very interested indeed to hear what the Committee has to say about that and to reflect on it.

The third question is whether the arrangements within the balancing of the constitution side of the House are appropriate through the Constitutional Reform Committee and my role and that of the Scotland Secretary, the Wales Secretary, the Northern Ireland Secretary and the Leader of the House. All I can report to the Committee so far is that we are managing to have a sensible and continuing discussion and that we have a great deal more help than we had in the last Parliament, because we have established this governance team in the Cabinet Office that draws on all those departments. It is headed by a second Permanent Secretary who has a long track record in this and handled the UK’s response to the referendum in Scotland. Therefore, we are reasonably well equipped to look at the spread of those things and to make sure that we maintain the balance and continuity of the constitution.

The Chairman: Thank you. These are matters we will want to continue watching as events develop. On the issue of the skeleton Bills, the Delegated Powers and Regulatory Reform Committee took the same view that we did, in rather stronger terms, in fact. We shall be looking out for your response and we may pursue the matter further.

Baroness Taylor of Bolton: I just want to follow up on what you were saying about the skeleton Bills. It has always been the case that Ministers have tried to get away with quite a lot in primary legislation and leave things for SIs. There has been a trend over many years. I just wonder what the system is now within Government and whether the use of Henry VIII powers is still considered at what used to be called the Leg. Committee before legislation was put forward. It is not just this Committee; as the Lord Chairman said, it is other committees and other people who are commenting on this. You have mentioned the Childcare Bill. As I understand it, there is a potential for SIs there to create a new criminal offence, which is pretty unprecedented given what could happen further down the line, which this House has not been able to get full information on at this stage when we are passing the legislation. We are worried that we may not even get it by the time of Committee stage. So I do think things have gone to a different level.

Mr Letwin: Let us start with Henry VIII clauses, which are very specifically where a statutory instrument is used to change primary legislation. We are all very hesitant about that and, yes, it is considered at what is the modern equivalent of what you called the Leg. Committee; we call it the Parliamentary Business and Legislation Committee. It is the same item. We do indeed consider those questions and try to restrict the use of Henry VIII powers, which, as you imply, have been used a certain amount over many years now but should not become a normal activity at all. I do not think that these Bills are full of any such powers. What they do provide for is quite a lot of ministerial action through SIs, which in all cases where they are controversial will have to be affirmative and will therefore be debated and voted upon. As I say, the nature of the Bills means that in cases such as devolution in England it has to be conducted that way. I do not think there is any other way.

Take another case: the Psychoactive Substances Bill. We debated the whole architecture of that Bill long and hard internally before bringing it forward; we started talking about it two years into the last Parliament. We decided that in order to make the law keep up with an evolving science and the crypto-commercial world of legal highs, it was far better to ban a class of substance and then exempt certain things than to try to capture in a long list in primary legislation a set of substances that we were banning. The reason for that is that the history shows that every time we try to do something, commerce comes at us. So, yes, it does involve setting a list of exemptions in a statutory instrument, but I do not think that is an objectionable way of going about these things; it is just a rational response to the need to govern properly.

I completely see that criminal offences are things that your House and ours will take very seriously. I am not aware, as a matter of fact, of any intention to create a criminal offence in secondary legislation in relation to the Childcare Bill, and I think I would be as I have been very much involved in the evolution of the childcare policy, but I will go back and check on that.

Baroness Taylor of Bolton: There is that concern.

Mr Letwin: I think it is a needless concern, but I will go back and check.

Q2 Lord Lester of Herne Hill: Mr Letwin, you very helpfully reformulated the Chairman’s questions into three. The first was about the quality of legislation. I think we are at cross purposes. Our concern is not with whether the Bills are wide enough or comprehensive enough but with the problem of legal certainty. It is the problem of too much discretion being given to Ministers in legislation. That, I think, is what concerned the Committee. Perhaps you could deal with that and then I will come to the second question.

Mr Letwin: This is a constant balancing act. It is not an unfamiliar discussion, either with our own Back-Benchers or with the House of Lords. I recall this being debated over many years in opposition and in government. I do not think there is a perfect answer. It depends on the subject matter. There is a great premium to be attached to the highest level of legal certainty. There is also a great premium to be attached to being able to govern in a sensible way and to produce the results that we are committed to and on which we fought the election and that were in our manifesto. Yes, it is an example of ministerial discretion to be able by order to determine which of our great cities have mayors, for example, but it is an appropriate one. I do not think it would be sensible to delay the ability of the Government to devolve powers to our cities very substantially by having to come forward with individual Bills for each one. I accept that there is a tension.

Lord Lester of Herne Hill: Thank you. Secondly, on the co‑ordination of constitutional reform, which, as you mentioned, we will come back to later, as a Liberal Democrat I say this: I do not think it worked very well when Nick Clegg was in your position last time. What is the difference now that makes it better? By “it” I mean the co‑ordination of constitutional reform. I suggest that at the moment we are looking at constitutional reform in bits and pieces and that the machinery of government is not much better now than it was in being able to look at it in the round.

Mr Letwin: You are a Liberal Democrat, I am a Conservative, but let me say I have a rather higher view of the former Deputy Prime Minister’s role in this than you do. I think he did a pretty good job. I often found myself discussing these things with him at meetings that he chaired and he was good at getting us to consider in the round what was going on. He was a passionate defender of the union and I think he thought pretty deeply about how the various things that we were doing, for example in Scotland, Wales and Northern Ireland, interacted. There was a deficiency that was not to do with him but to do with the machinery of government, which was that the only Committee in which we could formally discuss these things was the Home Affairs Committee, which had a lot of other business, inevitably, and which he chaired. I think because he chaired it, nobody thought of having a separate Committee. As it happens, I chair the Home Affairs Committee, but we decided that given the volume and the importance of the constitutional legislation that we are bringing forward, it would make sense to have a specific Constitutional Reform Committee, which I also chair, and that gathers together the Ministers most directly involved in each part of the legislation on the balance of powers in the UK. I cannot give you a very considered view of the operation of that committee because it has only so far met on one occasion, but it will meet on other occasions as we go forward. The meeting that we did have was encouraging in the sense that it was not one of those Cabinet committee meetings that are part of the dignified part of the constitution where some formal statements are made; it was a genuine discussion in detail of the piece of legislation before us and of its interaction with other pieces of legislation. That is what I hope to encourage in that committee. As I say, and as you will be aware, much then depends on the quality of the work done by officials between ministerial meetings. These are very intricate subjects, so one needs a lot of official time and effort. The bringing together, which had not happened in the last Parliament, of this group of officials from across the various departments into one body run by a very senior official indeed who has devoted much of his life to this issue of constitutional balance is an improvement in the machinery. I have not talked to Nick since the general election about this, but I rather suspect he would approve of that move.

Q3 Lord Norton of Louth: Let us look at your role now. As you have just touched upon, you have responsibility for co-ordinating constitutional reform. Clearly there is a difference between co-ordination and oversight, and there is a difference between reform and the extent of the constitution and the principles that underpin it. We are committed to certain principles that underpin the constitution. The Lord Chancellor has particular responsibility in relation to the rule of law and is sworn to uphold the independence of the judiciary. In terms of government, where is the responsibility for the oversight of the constitution and the principles that underpin it? If you brought forward some change that, in the Lord Chancellor’s view, impinged on the rule of law or the independence of the judiciary, would anybody have overarching responsibility, or would it be a case of resolving it in the Cabinet committee to which you have just referred?

Mr Letwin: Sorry, I have obviously not been clear about that. Let me be very clear about this. The Cabinet committee dealing with constitutional issues is not dealing with the question of the rule of law; it is dealing with the question of the balance of powers attributed to the various parts of the UK, the various parliamentary institutions within it, the devolution of powers below parliamentary level and so on, where the principle is to seek to achieve the stability and continuity of the union and of fairness between the constituent parts and the people living in them. There is a separate and even more important, though connected, set of principles that you are referring to, which are about the rule of law and the independence of the judiciary, which I regard as broadly the cornerstone of our liberties regardless of the balance of powers between different Governments and Parliaments. That is firmly in the hands of the Lord Chancellor. It is not something that our committee is there to consider. I think you will know enough of Michael Gove to know that he is not a shrinking violet. If he felt that we were doing anything—not that we have the slightest intention of doing so—that in any way compromised the rule of law or the independence of the judiciary, he would be very loud in his comments on it. He is very close to the Prime Minister but he is also a member of the Home Affairs Committee, so he has the ability to block any legislation. All this legislation has to come to the Home Affairs Committee for approval even though there is a constitution committee. The Constitutional Reform Committee is there to help, but the Home Affairs Committee is there to clear. No doubt the Lord Chancellor would make his views entirely known and would block any legislation that he felt was compromising the rule of law or the independence of the judiciary.

Lord Norton of Louth: So the committee itself has a much narrower focus, or remit, than the term “constitution committee” would suggest. What flows from your answer presumably is there is no Minister with overall responsibility for the constitution, because in the scenario I have just suggested you would say that it would be resolved between Ministers, perhaps in Cabinet, but there is no one Minister with overall responsibility. From what you have just said, I would infer that the closest would be the Lord Chancellor insofar as the rule of law is concerned, but otherwise there is no Minister with the overarching responsibility.

Mr Letwin: First, I am not sure that I want to enter into debate with one of Britain’s leading constitutional academics about the meaning of the term “constitution”. Secondly, I am sure the Committee does not want to have a prolonged academic debate about that. My own view is that the common acceptance now of the term “constitution” means the balance of powers between different bodies much more than this much more fundamental principle of the rule of law and the independence of the judiciary. They are both constitutional issues, but by “constitution” we mean in the Constitutional Reform Committee the balance of powers. It is appropriate that there should be a single Minister who is the guardian of the rule of law and the independence of the judiciary. The Lord Chancellor is; he will continue to fulfil that function. I do not think he needs a committee to do it; he needs the power, which he has, to block legislation if he feels it does not do that. I see these as entirely separate in the sense that nothing that we are doing in rebalancing the powers is intended in the slightest degree to compromise either the independence of the judiciary or the rule of law.

The Chairman: We were encouraged by the Lord Chancellor’s recent speech to an audience of lawyers, when he said some very interesting things on the rule of law.

Q4 Lord Maclennan of Rogart: I would like to ask you about the possibility of a review of the Cabinet Manual, which was published in October 2011. This Committee has made a number of recommendations. There has not been a revision of it. It is not prescriptive, in our view. It is descriptive, but we would be interested in what your plans are, if any, to review it.

Mr Letwin: The first thing I should say is that I thoroughly agree with your view—I am delighted to hear you say that—that it is a descriptive and not a prescriptive document. It is not an ersatz constitution for the UK and nobody should think of it in those terms. It is a description as good as the Cabinet Secretary of the day could get it to be of what were then the practices in a number of important fields, some of which are constitutional, some of which are not. Clearly, if we are in agreement that it is a description, as the practices evolve the description needs to evolve with them. Equally clearly, if it changed every day of the week it would be well nigh useless. There is a balancing act. I do not know the right answer, but at a certain point I am sure that the present Cabinet Secretary or a successor will feel that the time has come to revise it to keep up with practices that are by then in place.

Given the amount of constitutional legislation going forward, I suspect that it may well make sense to do that in the not-too-distant future. If that is done, I am certain that he will want to follow the kind of process that the previous holder of that post followed and consult very widely with academics and to ask both this Committee and what is now called PACAC, the equivalent committee in the House of Commons, to look at it. One of the reasons why the description has been taken seriously in the textbooks, so far as I can make out—perhaps almost too seriously; there is a shading from time to time of the suggestion that it is prescriptive—is that it was looked at by the Select Committees. The good side of that is that some serious people have looked at it and thought about it and it is not just the ruminations of one man or of Whitehall. I am sure that that process will be followed again when the time comes for revision. If this Committee feels at a certain stage that we should be thinking about revising it, I would urge the Committee to write to the Cabinet Secretary and suggest that, and we would certainly take that very seriously. Likewise, such an approach from PACAC would be taken very seriously.

Lord Maclennan of Rogart: Thank you. If it were to be revised—and we think it should be—would you be prepared to publish the new one in draft?

Mr Letwin: Yes. Not only prepared, we would be determined to do that and for people to look at it. There is no point in a description of practice if it is not an accepted, or roughly accepted, description of practice.

The Chairman: Thank you very much. That is a very helpful reply. I think we should tackle the subject of devolution a little more.

Lord Cullen of Whitekirk: Are there principles that underlie devolution? If so, what in your view are those principles?

Mr Letwin: I believe that there are, and my view of what they are is that devolution and all other changes associated with it should between them maintain the continuity and stability of the union, that they should do that by answering to the settled views of the various parts of the union and the people living in them, that they should do so in a way that is fair to each of the constituent parts of the union and to the people living in each of the constituent parts of the union, and that they should be consistent so that something done in one place that is inconsistent with something done in another place, but that they need by no means be the same in all respects at all levels, because the different parts of the union are different from one another, and the people who are living in those constituent parts have different views about what they would like to have happen in relation to them.

Lord Cullen of Whitekirk: Could I ask you a question arising out of that? Assuming devolution, are there any principles that should govern the relationship between the union and the constituent territories in the United Kingdom?

Mr Letwin: Yes, there are principles there too. The first principle is that we are one United Kingdom and therefore the ultimate sovereignty lies and needs to lie in the Crown and Parliament. The second principle is that within that, to the greatest possible extent, where people in any constituent part of the union, or indeed in part of a constituent part of the union—as in the case of Greater Manchester, for example—express the desire and clearly have the capacity to take a greater share of power over their own affairs, we should seek means of answering that positively and give them that power.

Lord Cullen of Whitekirk: Might I ask one further question arising out of that? Does that imply there is some responsibility on the part of the union towards the constituent territories to act in a way that is fair, lacking in discrimination and so on?

Mr Letwin: Yes, exactly. “Fair” and “fairness” are watch-words for us. When you say “lacking in discrimination”, fairness does not mean doing the same thing in relation to each part of the union, because, as I mentioned, different parts of the union, and indeed different constituent parts of different parts of the union want different things. Fairness means trying to make sure that you do as much as possible to answer the expressed desires of populations in different parts of the kingdom while at the same time making sure that no other part of the kingdom is disadvantaged by what is done for another part.

Q5 Lord Lester of Herne Hill: Mr Letwin, you draw a very clear distinction between your role and the Lord Chancellor’s rule-of-law role, but in your devolution capacity you also have to grapple with fundamental rights issues. Lord Lexden, who is no longer a member of this Committee, and I have repeatedly drawn attention to the problem of the devolution settlement, which is that it is asymmetrical and that there are no core rights that apply to all of us across the kingdom other than those in the European Convention on Human Rights and EU law. The example he and I always give is defamation. Parliament spends three years passing a defamation reform Act. Northern Ireland’s politicians say, “But not here”, even though in the past we had the same law. A publisher, under this strange system that we now have, has to face old law in Northern Ireland and reformed law in England, which is nonsense. The problem is that the European convention, a treaty, is no substitute for a constitutional instrument that would give core rights to everybody irrespective of the part of the UK they happen to be in. What you have said, which I understand perfectly well, does not really grapple with that problem, which is that the devolution statutes, the asymmetrical nature of them and the use of the convention, a treaty, for what the rest of the world would call a constitution does not work. Can you think about that?

Mr Letwin: Not only can I, but I have, and I profoundly disagree with your view and, indeed, that of Lord Lexden. He happens to be one of my oldest friends, but I have disagreed with him about this for many years. Scotland, of which the Chairman has some knowledge, has had a different legal system for a very long time. I have never known a reason why this was a problem. We have co-existed happily in the union under different legal systems and it is perfectly possible to do. Incidentally, I do not think there is in British history any sign of a permanent settlement; our constitutional arrangements have been evolving for a very long time—thousands of years—and will no doubt continue to do so, I hope at a stately pace. I do not think that things should be rushed, but on the other hand they have to evolve. It answers to the fact that people in different parts of the union have different views about different matters. If you believe in trying to give people power over their own affairs to the extent that that is possible, you will produce a situation, inevitably, in which different rules apply in different parts of the union. In the United States there are many states, in Canada many provinces and so on, and there are many different laws of different kinds that provide for different rights for different citizens in different parts of their territories. You refer to core rights. The distinction between core rights and non-core rights is a very vexed terrain. The convention on human rights tries to establish some core rights. Clearly we are all bound by that. But I do not see that there is a problem about the fact that there are different laws in different places, and I do not regard that as something that needs to be solved. What is a problem and what does need to be solved is where one part or another of the union has people in it who feel that they do not have an equivalent degree of power over their affairs to that which other people in other parts of the union have and would like to do so.

Lord Lester of Herne Hill: With the leave of the Lord Chairman, I wonder if I could have one other go. You mentioned the United States, for example. In the United States, or in Germany or Canada, what I have described could not happen because the allocation of powers between the central state and the provinces or states is such that there are federal rights. In the States, for example, if the Supreme Court decides that the first amendment forbids bad defamation law, Alabama has to obey. The problem that we have that Lord Lexden in particular has focused on is that there is no mechanism in place that ensures that the core right to free speech—I still use the words “core right”—may be enjoyed irrespective of which part of the United Kingdom we happen to be in. That is the problem, I suggest. It is solved in other countries through their constitutional mechanisms. In ours, we try to use the convention as a substitute for a constitutional instrument, but it does not work, because the convention gives wide discretion of the kind you like to Northern Ireland or to Scotland to deviate from England. That system leads to a hopeless position for a publisher.

The Chairman: A brief reply, Chancellor.

Mr Letwin: Yes, I will be brief. There is a long and interesting discussion that one could have about this, for sure. We are in the presence of a former Lord Chief Justice. My impression of the judiciary is that they are more than capable of taking a view about whether a specific law is incompatible with the convention rights, and I do not see that there is therefore a fundamental problem of the kind you are describing. If the judiciary felt that the right to free speech was being compromised in a way that they felt was incompatible, they would, I suspect, upon application by parties, make a judgment to that effect and Parliament would then have to respond. I do not see the problem, but I am sure it can continue to be discussed.

Q6 Lord Morgan: I would hope very much, Mr Letwin, that your appointment is a hope and a chance of a fresh start. Your role is to do with the co‑ordination of constitutional reform, and the view for example of the Bingham Centre report, which you will have seen, is that for many years, going back to 1997, policy on devolution has been totally unco-ordinated—a series of fits and starts—partly, as you correctly say, because of the different perspectives in Scotland, Wales and Northern Ireland, which are rooted in their history and in their culture perhaps, but also because Governments have chosen to respond asymmetrically to, as it were, asymmetrical demands. I am thinking of the different kinds of responses there were to the Calman commission for Scotland about fiscal devolution and the Silk commission for Wales. Do you see the need now for really quite a fundamental attempt to pull these things together? Otherwise the constitution seems to be in a state of almost terminal disorganisation.

Mr Letwin: I broadly disagree with you. I do not think that the fact that there is a very different set of arrangements for fiscal devolution now and in prospect in Scotland and in Wales for example is a sign of disorganisation; it is a sign of responsiveness to different views in Scotland and in Wales about the level of fiscal devolution that they seek. If that were to change, we should change with it. The Smith and the Silk commissions came to differing views in response to those differences. The whole tradition of our country, which has a very long and very remarkable history, is that it has been extraordinarily capable of making adjustments of many different kinds and maintaining arrangements that work. Rather than asking, “Does it work in theory?” we have asked, “Does it work in practice?”, and I think we should stick with the question, “Does it work in practice?”. There are issues of co-ordination in the sense that we need to make sure that the results of the various things that you have described as asymmetrical and I would describe as responsive to differing circumstances in different places are not that one part or another of the kingdom comes to feel that it is unfair on them. That is why we are moving forward, for example, with our proposition on English votes for English laws. There is a question, which Tam Dalyell raised many years ago—the West Lothian question—that has hitherto been too much unanswered. Although I do not want to overstate it, there is a considerable body of feeling in England that it is improper or unjust for laws to be passed in relation to England over which the Members coming from England have no right of veto, in circumstances in which large areas of legislation are now given over to other Parliaments in other parts of the kingdom. The task of co-ordination is a task of making sure that the ultimate result of these many different situations and measures is not one that threatens the union by creating instabilities or senses of unfairness in any part of the country. I stress that it is not part of my remit from the Prime Minister or my intention to try to create a one‑size-fits-all neat theoretical box; that would be a nightmare in practice.

Lord Morgan: The general election suggested to me, and I think to many other people, that you would get different answers to the justice or injustice vested in England in relation to the legislative process. Therefore, there must have to be a built-in set of assumptions as to how you respond to what the popular will is.

Mr Letwin: “What is the popular will?” is always an open question. In some cases at some moments you get a pretty clear view on it. Scotland voted 60:40, broadly, to stay in the union; we now know that it is currently the will of the Scottish electorate to stay in the union, notwithstanding the fact that at the general election many voted for the SNP, an interesting configuration. There has not been a similar referendum in England on the question of English votes for English laws. We did, however, major on it not only in our manifesto but in our election campaign, and there were other parties that proposed it, or versions of it. I do not, as I say, want to overstate this; I do not think people in their kitchens are spending their entire time worrying about it. Nevertheless my sense, for what it is worth, is that if you asked the English people they would say there is some unfairness at the moment, which we are trying to remedy.

The Chairman: We must move on. We are very short of time now, so short questions and short answers would be welcome.

Q7 Lord MacGregor of Pulham Market: I will keep it as short as possible. The question is about English votes for English laws. I declare an interest in that way back in the original debate in 1978 I spoke very strongly in favour of it as a Scot representing an English constituency. I have not had a chance to read yesterday’s Hansard, but are you satisfied that all these issues that may arise from English votes for English laws can be considered purely by Commons procedural methods?

Mr Letwin: Yes, I am. This has been a very long process. You referred to your own participation in it; clearly it goes back a very long way. Tom Dalyell raised it a long time ago. It has been much discussed. In the last Parliament, we took the step of wide discussion and consultation. William Hague published a very clear paper on the subject in some detail. That was much discussed. We fought the election campaign. The process is one that, notwithstanding what was said in the House of Commons last night, has been prolonged and careful. As to the method used to enshrine the change, it is absolutely right, indeed cardinal, that it should be in the Standing Orders of the House of Commons and not in the law. The reason, I suspect, is that neither the judges nor certainly we wish to expose the proceedings of the House of Commons to judicial oversight in court. If we were to pass a law as opposed to the Standing Orders of the House of Commons, immediately that would be, as I understand it, justiciable. The right place to make this change, which relates exclusively to the House of Commons, is in the Standing Orders of the House of Commons, and the right way to do it is exactly as we set out and exactly as we fought our election campaign. That is what we are doing. I draw to the Committee’s attention to the fact that we are not going a jot further. We are under much pressure to do more, but we have decided not to do that. We are very specifically giving the MPs representing English constituencies a veto without removing or adjusting in any way the powers of the rest of the House of Commons to participate as a whole House of Commons in the final decision on any Bill. Nothing can be legislated simply by the English for the English. We therefore retain an asymmetry, if you like. In Scotland, Scottish MPs in the Scottish Parliament alone can legislate on Scottish educational matters, for example, without any oversight from England. In England, English MPs will not be able to legislate for English education without oversight by all the MPs in the House of Commons. What will happen is that the whole House will vote on the Bill at the end, but in the meantime it will be impossible for a Government to foist on the English a Bill on English education over the heads of the MPs representing English constituencies. They will have a veto, just a plain veto.

Lord MacGregor of Pulham Market: I am not quite clear as to why you could not proceed in the way that has happened in Scotland. What was the objection?

Mr Letwin: Our judgment was that there was no kind of enthusiasm in the kingdom as a whole or in England for a separate Executive, as there is in Scotland, and a separate Parliament, as there is in Scotland. Given that we were therefore wishing to do this within the United Kingdom Parliament, we came to the question: “Should we create two classes of MP, one lot of whom vote upon English matters and another lot of whom vote upon other matters?”. We decided that would be a bad idea. We wanted to maintain the idea that every Member of the House of Commons is an equal Member with all other Members. In order to do that, we had to produce a situation where everybody could vote to accept or not to accept a Bill, but then we have created the veto for the English members, thereby achieving the main aim, which is to prevent any Government from legislating over the heads of the English for the English alone.

Q8 Baroness Taylor of Bolton: I will resist asking about federalism, which may come out of that. I will not ask about that. Individual electoral registration is a totally different issue. Not the principle of it—we are well past discussing that—but you are aware of the concern if we go to an IER-only register at the end of this year. I gather the Electoral Commission has offered advice that it should be delayed until December 2016. I wonder if that advice is going to be accepted.

John Penrose: You are right: the Electoral Commission has come up with a very weighty tome, which landed on my desk just over two weeks ago. We have been reading it very carefully. We have not yet published the response to that, so as to the substance of what the response will be, I am afraid I shall have to play you with a straight bat for the moment, but we aim to get that response out fairly swiftly if we can. It is an important issue. In any case, as the legal framework sets out, we have to respond, if we were to go ahead, before the end of August, because that is the deadline. So we will be responding fairly promptly. I am afraid I cannot prefigure what might be in that response, but clearly we take what the Electoral Commission says and its advice with a great deal of care.

Baroness Taylor of Bolton: It is a fact that the register that is coming out at the end of this year will be the one that will be used for incredibly important elections, both in London and Scotland, possibly for a referendum, and certainly for the boundary changes for the parliamentary constituencies. It is a really serious matter if there are a couple of million people left off that register.

John Penrose: Yes. No matter what decision we might take on that, the number of people left on the register who have not yet made the transition to full IER status is shrinking fairly rapidly. When IER was first introduced, 87% of the register just came across automatically. Everything proved through and we were able to move them across nice and easily. We are now up to 96%‑plus of the register that is already done. That still leaves, as of last May, about 1.9 million people who have yet to transfer across. Under any scenario, a set of activities during the second half of this year will be undertaken by local electoral registration officers to drive down that number still further. That happens every year; it will continue to happen this time. We would expect to see that figure continue to fall. You are right: there is a question both about completeness and about accuracy. For both the elections due next year—an important suite, as you say—and the principle of boundaries, we will want to have both completeness and accuracy to the highest possible level.

Baroness Taylor of Bolton: Do you think you will publish your response before Parliament rises for the Summer Recess?

John Penrose: I think the official response to that is “imminently”.

The Chairman: We have another imminent engagement with the President of the Supreme Court, so sadly we must bring this to a close. I am very glad that we gave you a speaking part, Mr Penrose—only just in time—but thank you to you and thank you very much, Chancellor, for your very helpful, very forthcoming and informative answers, which we shall study with great care. I am sure we will wish to come back to you at some stage in the next period—perhaps not imminently, but soon.

Mr Letwin: It would be a pleasure to come again. It is much more pleasant talking to your Lordships than it is in our own House.

The Chairman: Thank you very much.