Lord Keen of Elie
“The subject-matter of section 43(1AA) of the Representation of the People Act 1983.”
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, before turning to the government amendments in this group, I should like to address some points that noble Lords have previously expressed in relation to Clause 2. This clause is to implement the provision in the Smith commission agreement that the Sewel convention should be put on a statutory footing. The Smith commission agreement did not suggest any change in the effect of the convention. The clause recognises that this Parliament will not normally legislate on a devolved matter without the consent of the Scottish Parliament, but the convention recognises that the decision whether to legislate is for this Parliament to take.
I have noted the points made by noble Lords who have made clear in previous discussion of this clause their view that the word “normally” is not a word sufficiently precise for a statutory restriction. Of course, we are not seeking, and nor are we able, to impose a restriction on parliamentary sovereignty, and it has also been made clear in discussion that the word is suitable for indicating how a discretion will be exercised. This clause is clearly intended to indicate that the discretion of Parliament to legislate for devolved matters will continue exactly as before and that it is not intended to subject that discretion to judicial control. I would add that the words “it is recognised” that appear in Clause 2 also reflect the continued sovereignty of the United Kingdom Parliament and that it is for Parliament to determine when a circumstance may be considered not normal. This is not a matter that the courts could meaningfully engage with.
I turn to a number of technical amendments that we have tabled to Clauses 3 and 5 of the Bill. Noble Lords will recall that we gave notice on Report that we would table these amendments, which are necessary to ensure that the clauses in the Bill relating to elections work as intended. Under the Bill, and in line with the Smith commission agreement, the timing of Scottish parliamentary elections is devolved to the Scottish Parliament, subject to the provision that Scottish parliamentary ordinary general elections may not be held on the same day as a UK parliamentary general election, a European parliamentary general election or ordinary local government elections in Scotland. We have tabled amendments to Clause 3 to improve the drafting of the part of the reservation relating to the timing of ordinary local government elections in Scotland. These amendments do not change what is reserved, but rather clarify the drafting to ensure that the reservation achieves the intended outcome—that an ordinary local government election in Scotland may not be held on the same day as ordinary general elections for the Scottish Parliament.
In addition, we have tabled amendments to Clause 5 of the Bill to improve the drafting of the new provisions to be inserted into Section 43 of the Representation of the People Act 1983. These provisions relate to the reservation of the timing of ordinary local government elections where they clash with the date of an ordinary general election to the Scottish Parliament, and provide a mechanism for the Scottish Ministers to change the date of the local government elections where such a clash occurs. The amendments improve and clarify the drafting of the provisions providing a mechanism for setting an alternative date.
Amendments 3 to 9 are technical amendments, which will ensure that there is clarity in the clauses in the Bill relating to elections and that they operate as intended. I beg to move.
Lord McCluskey (CB)
My Lords, I accept that Amendments 1 and 2 could not be moved, and will not be moved by me or by the noble and learned Lord, Lord Wallace of Tankerness. However, in the light of the Minister’s statement, I make a brief comment. It sounds to me very like a Pepper v Hart type of statement, designed to guide a court, when a court sits down to decide on an ambiguity in the interpretation or application of the provision. I am not at all sure that it will work, but it is no doubt the best that the Minister could come up with, even with the assistance from behind him of the noble and learned Lord, Lord Mackay of Clashfern, who is unfortunately unable to be here today. It does not solve the problem, but it is better than nothing.
The very fact of making the statement appears to be to concede the point that we were all making, that the provision in the clause is just a shibboleth, because Pepper and Hart statements have no locus at all unless in a court of law when a statement is invoked to assist the interpretation. However clear the statement is, it is not binding on the court, which has a duty to apply the words of the statute to determine what it means. However, I welcome it, while regretting that the Government did not pick up on the amendment proposed by the noble and learned Lord, Lord Wallace of Tankerness, which would have solved the problem within the statute itself, and we would not have needed this. However, in the light of the Government’s attitude, we have to leave it there.
Lord Campbell of Pittenweem (LD)
My Lords, it may be stretching the tolerance of the House for a fifth Scottish lawyer to join in this discussion, so I will confine myself to two issues. The first is Pepper v Hart. It is well worth understanding just how limited the application of that doctrine may be. If the noble and learned Lord the Advocate-General is looking for an illustration of the approach recently taken by the Court of Session, he will find it in the case of British Petroleum v Edinburgh and Glasgow licensing boards.
Secondly, this is about the most political piece of legislation that one could possibly imagine. Within its terms is the opportunity for great political disagreement. It seems to me that the way in which the Government are now proceeding will in some respects justify that disagreement by leaving open an important porthole for those who wish to challenge the will of this House and indeed of the other place.
Lord Keen of Elie
My Lords, I am obliged for all the contributions from your Lordships in respect of this matter. I will not seek to repeat the arguments that were rehearsed so fully in Committee and on Report but I wish to make some observations.
The Smith agreement was explicit in its reference to putting the Sewel convention on a statutory footing, and that is what has been done—essentially as the noble Lord, Lord Stephen, noted—in a declaratory sense.
Mention has been made repeatedly of the case of Pepper v Hart. I am not going to go there in any detail, but the starting point for that case is ambiguity. A number of noble Lords indicated that there was no ambiguity. I am inclined to agree with that—but not necessarily for the same reasons. However, it appears to me that if there were room for ambiguity then of course Pepper v Hart might come into consideration.
Reference was made to the LCM—the legislative consent Motion—process and the suggestion that it should be incorporated into the clause. With respect, the LCM is a process of the Scottish Parliament, not of this Parliament—it is what the Scottish Parliament does in response to us applying the Sewel convention—and therefore it would not be appropriate to bring it into Clause 2.
There is then the question of what is or is not a devolved matter. This point—and indeed the difference that I have with the noble and learned Lord, Lord Wallace—is perhaps highlighted by the amendment that he originally proposed. The last part of that amendment says:
“For the purposes of subsection (8), the words ‘devolved matters’ means any matter not reserved to the United Kingdom Parliament under this Act”.
With respect, the Scotland Act 1998 is a great deal more sophisticated than saying that all matters listed in Schedule 5, which are reserved, are the only matters not requiring the consent of the Scottish Parliament. It entirely ignores the fact that, for example, it is not within the competence of the Scottish Parliament to modify any of the protected enactments listed in Part 1 of Schedule 4 to the Scotland Act.
Lord Wallace of Tankerness
Rather than read out his brief, will the noble and learned Lord acknowledge that I said that parts of Schedule 4 also exclude matters from being within the legislative competence of the Scottish Parliament? If I have not, with my own resources, got the amendment right, can the noble and learned Lord, with all the great resources that he has in his office—I know the expertise that he has there—say what definition he would give of “devolved matters”?
Lord Keen of Elie
There is no strict requirement to go into the definition of “devolved matters” at this stage, but it is perfectly clear from the amendment that the noble and learned Lord originally intimated that he contemplated it listing only the matters in Schedule 5 to the Act. I appreciate that in making observations in this House he qualified that statement, but the point is that the question of what is reserved goes well beyond Schedule 5 and includes all those protected enactments in Part 1 of Schedule 4.
The point that I was going to come to is this: one of the protected enactments is the Human Rights Act. This Government were elected upon a manifesto to address the Human Rights Act and to amend its terms by way of a Bill of Rights. That matter will be addressed in due course, but this is not the time or the place to consider what the implications of that may or may not be in the context of all the devolved Administrations in the United Kingdom. I would not consider it appropriate to go there.
Lord Wallace of Tankerness
I am not asking the Minister to tell us what is going to be in it but, if a proposed new British Bill of Rights confers new responsibilities on Scottish Ministers, does he believe that is a matter to which Devolution Guidance Note 10 would apply and that the United Kingdom Government would respect it as such and expect a legislative consent Motion in the Scottish Parliament? He can clear this matter up if he is prepared to say yes to that. If he is not, we can only suspect the worst.
Lord Keen of Elie
There is no reason to suspect the worst. What we have to do is await the relevant Bill of Rights. Then, when we have considered its terms, we shall see whether it does or does not intrude upon matters covered by DGN10. If it does, then DGN10 will be addressed, as it always has been. There is a clear and consistent record of the United Kingdom Parliament and this Government proceeding in accordance with DGN10 in the context of devolved issues. I do not anticipate, and have no reason to anticipate, that that will change in the future. However, I am not going to comment on a Bill that is not before this House and the terms of which have not yet been finalised.
In these circumstances it appears to us that Clause 2 is sufficient for the purpose of expressing, essentially, a declarator of the Sewel convention in accordance with the Smith commission agreement.
Lord Purvis of Tweed (LD)
Before the noble and learned Lord sits down, although that was perhaps his final point from the Dispatch Box on this, he said in response to my noble friend Lord Stephen that this is now stating in a declaratory way that the Sewel convention exists. However, it is worth reminding the House that paragraph 22 of the Smith commission report said:
“The Sewel Convention will be put on a statutory footing”,
not that it will be declaratory that it exists.
Lord Dunlop
Lord Dunlop
Lord Dunlop
“( ) In paragraph (d) of that reservation, after “the Road Traffic Act 1988” insert “, except so far as relating to the parking of vehicles on roads,”.”
Lord Dunlop (Con)
My Lords, I shall speak also to Amendments 11 to 16 and 19 to 21. As I indicated on Report, a number of technical amendments are necessary to the roads provisions. Amendments 10, 11, 13, 16 and 20 are technical amendments and complement the amendment that the Government brought forward on Report on the issue of responsible parking. That amendment, which commanded cross-party support on Report, gives the Scottish Parliament the power to legislate for parking vehicles on roads, an issue that is of interest to many people in Scotland. That amendment now appears in the Bill at Clause 40(4). Following helpful discussion between the Department for Transport and the Scottish Government, these technical amendments will bring full clarity to the power. I will briefly set out the effect of each of these amendments.
Amendments 10 and 11 amend the amendment made on Report, which gave power to the Scottish Parliament to make provision for parking on roads. Amendments 10 and 11 make clear that on-street parking is excepted from the reservation of the subject matter of the Road Traffic Act 1988 and is not a general exception from all road transport reservations.
Amendment 13 removes a reference to the regulations made by Scottish Ministers being subject to the negative procedure. The reference is unnecessary as it is subsequently replaced by Amendment 20, which amends the Road Traffic Act 1988 to stipulate that regulations relating to parking made by Scottish Ministers will be subject to the negative procedure.
Lord Steel of Aikwood (LD)
My Lords, before the Minister responds perhaps I could repeat a point I made in Committee about Clauses 40 to 42 and Schedule 2, and the amendments that the Minister has rightly laid before us today. I am emboldened to do so by a phone call from the noble Lord, Lord Sanderson of Bowden, who is a former constituent of mine. He wanted me to make it clear that there was never any risk of him voting for me, but on this issue we speak with one voice.
Those of us who live in the borders, whether on the Scottish or the English side, are naturally concerned about the growth of what appear to be quite minor changes in legislation concerning parking, traffic signs, speed limits, vehicle regulations and even the drink-driving laws. There is a danger that these regulations will become self-aggrandising. We have different regulations just for the sake of having different regulations. We find ourselves having to make journeys by road that cover both jurisdictions, and it is extremely confusing if there are too many regulations that differ. The point I want to put to the Minister is this. He referred several times to discussions between the Department for Transport and the Scottish Government. Can we be assured that those discussions will continue so that we can seek to minimise the differences in regulations on each side of the border?
Lord Dunlop
I thank the noble Lord, Lord McAvoy, for his comments and support. This was an issue that the party opposite raised in Committee and the Government are pleased to have been able to address what has been a long-standing lack of clarity in the law. With regard to the noble Lord, Lord Steel, yes of course I can assure him that discussions will continue between the Department for Transport and the Scottish Government. A theme that has run through all our debates on this Bill is the need for close intergovernmental co-operation. That is something which I feel strongly about, given my responsibility for these matters, so anything I can do to improve those intergovernmental relations, I will certainly do.
Before we move to the final group of amendments, as we near the conclusion of the Bill I want to take this opportunity to thank noble Lords for all their work, in particular all those who have moved amendments or spoken to them, and who have taken the time to meet me and my noble and learned friend the Advocate-General to discuss their concerns. I would also like to thank the Constitution Committee, the Economic Affairs Committee and the Delegated Powers and Regulatory Reform Committee for their very careful consideration of this Bill. Indeed, I thank my noble and learned friend the Advocate-General, who is no longer in his place because no doubt he is preparing for the Immigration Bill to come, and my noble friend Lord Younger of Leckie for all their support. Finally, I thank officials from across Whitehall who have provided invaluable support throughout the process. We have covered a lot of ground and many subjects, and their support is much appreciated.
Noble Lords have provided robust challenges at times; I recognise that opinions have been divided on aspects of the Bill and I respect the strong views that are sincerely held. Your Lordships’ House has fulfilled its customary role of providing a thorough and penetrating scrutiny of the legislation. I said at Second Reading that I thought it was a precondition of earning the trust of the Scottish people, after the independence referendum, that we should keep the promises that were made during that referendum. That is exactly what this Bill does, as well as making the Scottish Parliament more financially accountable. I am particularly grateful to the Front Benches opposite for their support. It recognises that the promises made during the referendum were joint ones.
There was much talk during the independence referendum of Project Fear, and I think that it has already been observed elsewhere that the fears raised by the supporters of the union have proved all too justified while the fears put about by those arguing for separation have proved to be groundless. They have proved to be groundless because we have delivered on the promises we have made. I think that we have established beyond any doubt that pulling Scotland out of the United Kingdom could never satisfy the Smith no-detriment principle, and in its heart of hearts I suspect that the leadership of the SNP knows it.
Political discourse in Scotland is already changing as a result of the Bill. Now we must move the debate on from what the powers are to how they are used. I am confident that the new Scotland Act will prove an enduring settlement, strengthening Scotland’s place within the United Kingdom.
Lord McAvoy
My Lords, I echo a lot of what the Minister said. There was a lot of contention and division in our country during the referendum following the vow, thanks to the Daily Record, and the Smith commission, about which a lot of mistrust was put about as to the final conclusions of how we would deal with it. I am proud of the part that my party and its members played in arriving at these conclusions. We have shown Scotland that the people who do not wish to separate from the rest of the United Kingdom can deliver, by all accounts, the demands and wishes of the Scottish people to have more powers for the Scottish Parliament without necessarily separating from our friends and colleagues throughout the rest of the United Kingdom.
Collectively, this House, despite some rumbustious moments, some slight scepticism and very heavy scrutiny, has fulfilled its role in passing the Bill and ensuring that it is a better Bill than when it came here. We will send it back to the other place and hopefully it will be accepted there.
Westminster as a Parliament has delivered the wishes of the Scottish people. We can regain their trust, despite the cynicism put about at the time of the referendum. Collectively—although there have been various differences, which no doubt will continue—I have no doubt that we have delivered for the people of Scotland and we can look them in the face.
Lord Dunlop
Lord Dunlop
“(a) in relation to a function so far as exercisable within devolved competence, within the meaning of the Scotland Act 1998, means the Scottish Ministers;(b) otherwise, means the Secretary of State;”.”
Lord Dunlop
Lord Dunlop
“Roads: parking
(1) The Road Traffic Act 1988 is amended as follows.
(2) Section 20 (parking on verges etc: definition of “heavy commercial vehicle”) is amended as follows.
(3) In subsection (5) for “Secretary of State” substitute “national authority”.
(4) At the end add—
“(8) In subsection (5) “national authority”—
(a) in relation to a function so far as exercisable within devolved competence, within the meaning of the Scotland Act 1998, means the Scottish Ministers;(b) otherwise, means the Secretary of State.(9) Before making any regulations under subsection (5) in relation to vehicles used on roads in Scotland, the Secretary of State must consult the Scottish Ministers.”
(5) Section 41 (regulation of construction, weight, equipment and use of vehicles) is amended as follows.
(6) In subsection (1) for “Secretary of State” substitute “national authority”.
(7) After subsection (2) insert—
“(2A) In subsection (1) “national authority”—
(a) in relation to a function so far as exercisable within devolved competence, within the meaning of the Scotland Act 1998, means the Scottish Ministers;(b) otherwise, means the Secretary of State.(2B) Before making any regulations under this section in relation to the parking of vehicles on roads in Scotland, the Secretary of State must consult the Scottish Ministers.””
Lord Selkirk of Douglas (Con)
My Lords, when the Calman commission sat, the most important principles that it was trying to support were equity and accountability; this echoes what the noble and learned Lord has just said. I remind the House that on 7 September 2004, the day the Scottish Parliament opened at Holyrood, the Reverend Charles Robertson, minister of the Canongate church, was first to speak during the regular time for reflection. He reminded us of the previous uses of the site for the newly-built Parliament. It had been a house of refuge, a soup kitchen for the destitute and Scotland’s largest independent geriatric hospital, not to mention the site of a profusion of well-known and much-loved breweries. Given this history, it is perhaps not surprising that, on that day, the then First Minister, the noble Lord, Lord McConnell, urged MSPs to “raise their game”.
This legislation—the amendment relates to the heart of it—will bring about major changes in the powers and competence of the Scottish Parliament as, for the first time, the majority of funds that the Scottish Government spend will come from revenues raised in Scotland. When the prevailing philosophy has been a culture of spend, spend, spend, popularity is relatively easily won. That will now change as tough decisions will have to be made on how services will be financed.
There seems to be some uncertainty about who observed:
“With great power comes great responsibility”.
Some attribute it to Voltaire. In a debate in the other place in 1817, William Lamb, later Prime Minister Lord Melbourne, made an exhortation to the press. He begged leave to remind them of their,
“duty to apply to themselves a maxim which they never neglected to urge on the consideration of government—‘that the possession of great power necessarily implies great responsibility’”.—[Official Report, Commons, 27/6/1817; col. 1227.]
Similarly, on the same subject, Prime Minister Sir Winston Churchill said:
“The price of greatness is responsibility”.
What Churchill meant was that anyone who aspires to greatness must also be willing to shoulder the accompanying responsibilities. His advice still holds good today.
Lord Dunlop
My Lords, as the noble and learned Lord, Lord McCluskey, said, the Barnett formula has been the subject of significant debate during the passage of the Bill and has been raised in various statements and at other opportunities. I do not propose to go over well-worn ground, but I recognise the strong views that the formula evokes, particularly in this House. As has been said at other stages in the Bill’s progress, the retention of the Barnett formula is a manifesto commitment not just of the Government but of all three of the main UK parties. It will therefore continue to determine changes to the block grant resulting from changes in UK government departmental spending.
However, as my noble friend Lord Selkirk noted, the significance of the Barnett formula will be reduced, as over 50% of the Scottish Government’s budget will, in future, come from taxes raised in Scotland. As has been said before, the size of that budget will be determined increasingly by changes in Scottish taxes.
The amendments tabled by the noble and learned Lord call for a memorandum to be published within 30 days of the Scotland Act passing, providing additional detail on the future of the Barnett formula. We are already delivering the intent of these amendments. On Friday, the Chief Secretary to the Treasury placed in the Libraries of both Houses a supplementary technical annexe to the fiscal framework agreement. This sets out in detail how Barnett will operate in future, alongside the adjustments for new tax and welfare powers. Much of the detail of how Barnett operates is already published in the Statement of Funding Policy, which was last updated in November. The details of how the devolution settlement operates are also set out at each fiscal event.
In addition, we have listened to the views expressed in this House about transparency and reporting. The UK Government and the Scottish Government have agreed to report annually on the operation of the fiscal framework. Finally, in response to the House of Lords Economic Affairs Committee, the Treasury has undertaken to look at how the whole operation of the Barnett formula can be made more transparent. We on this side of the House fully expect scrutiny to continue beyond the passage of the Bill and therefore I urge the noble and learned Lord to withdraw his amendment.
Lord Dunlop
“8 (1) Section 86 (speed limits for particular classes of vehicles) is amended as follows.
(2) For “national authority” in each place substitute “relevant authority”.
(3) Omit subsection (9).
9 In section 88 (temporary speed limits) for “national authority” in each place substitute “relevant authority”.”
Lord Steel of Aikwood
My Lords, I do not want to detain the House for more than a moment, but the passing of this Act by the House today is a major step in the history of Scotland. Donald Dewar was fond of repeating that devolution was not an event but a process, and so it has proved to be—and I have no doubt will continue to prove to be. This Act completes a process begun correctly in the original Scotland Act 1998. However, as I said at the time, that Act created a Parliament with substantial powers over expenditure but no responsibility for raising any of the money that it spent. This change is therefore of major significance and brings us closer to a quasi-federal relationship in Britain—closer in fact to the ideas in the Solemn League and Covenant way back in 1643.
In his magisterial new book Independence or Union, Professor Tom Devine says that his own preferred choice in the referendum,
“would have been to support a more powerful Scottish Parliament via some form of enhanced devolution. That opinion was in the end not available in the wording of the referendum. Many of those who thought like me were effectively disenfranchised”.
That is what we have delivered and I believe that it now accords with the views of the majority of Scots, recognising as they do that we had a lucky escape in the referendum following the collapse of the global oil price.
That is nothing new. We have always been interdependent in these countries. One of our greatest Secretaries of State, Tom Johnston, put it thus during the great depression:
“What purpose would there be in our getting a Scottish parliament in Edinburgh if it has to administer an emigration system, a glorified poor law and a desert?”.
We needed the strength of the United Kingdom then and we need it now. This Act creates an obligation and indeed an expectation that our two Governments will act together in the best interests of our people. That means that Ministers such as George Osborne need to abandon silly anti-nationalist rhetoric when dealing seriously with annual budgets and that the SNP need to stop blaming London for every one of its own shortcomings. Scottish people expect better than that and this Act provides a sensible foundation for the way forward.
I have one final thought. We in this House have been able to adjust and improve the Bill since it left the Commons. We have had to do that without the assistance of the SNP, which continues its absence from this institution. I hope that that may change, not least so that it can join in the efforts to reform this Chamber and make it even more of a sounding board for the United Kingdom as a whole.