Safety of Rwanda (Asylum and Immigration) Bill

Baroness D'Souza Excerpts

Committee stage
Wednesday 14th February 2024 Lords Chamber

The UK cannot connive in the slightest possibility of torture. This amendment would reduce the risk of it doing so, and I therefore hope that the Minister will consider it seriously, in line with the assurance given to the JCHR that the Government continue to recognise the binding nature of their international obligations and their commitment to respecting them.

[Baroness D'Souza (CB)]

My Lords, I too have added my name to this amendment, and I declare an interest as a patron of Redress, the anti-torture organisation. A recent Westminster Foundation for Democracy report pointed out the common pitfalls that democratic Governments fall into when dealing with authoritarian regimes, one of which is to promote their economic and other development at the expense of acknowledging less desirable characteristics. Rwanda would seem to be a classic case of this pitfall.

As we have heard at length and in detail from the noble Baroness, Lady Lister, the human rights record of Rwanda is not good, to say the least. Torture, among other crimes against humanity, continues to be carried out. This amendment is therefore essential. I remind your Lordships of the case of Victoire Ingabire, who is the only opposition parliamentarian in Rwanda and has spent eight years in jail, some of them in solitary confinement. It would be useful to ask her what her views are on torture and other crimes against humanity in Rwanda at the moment, in both formal and informal sectors.

We have enough evidence to suggest that this amendment must be included in the Bill if we are to ensure freedom from torture for those whom we send to Rwanda.

[Lord Clarke of Nottingham (Con)]

My Lords, I support these amendments, which seem to me to go to the heart of the most extraordinary feature of this Bill. It is essentially intended to reverse a legal defeat the Government suffered in the British Supreme Court on a matter of law. Five Supreme Court judges listened to the evidence and decided as a matter of fact that Rwanda is not, at the moment, a safe country for the purposes we are discussing.

The Government have reacted to that judgment in a way no other disappointed litigant could possibly have contemplated. They have decided to invoke the sovereignty of Parliament and to ask both Houses to pass legislation that declares that the facts are indeed contrary to those which the Supreme Court declared to be the factual situation. The facts are to be regarded as the facts the Government state for the indefinite future, whatever happens from now on, unless or until this legislation is amended or repealed—if it ever is. I spoke at Second Reading, so I will not repeat all the arguments I made then, but I continue to be completely flabbergasted by the constitutional implications of the Government acting in this way.

Has the Minister been able to find any precedent for this occurring? Have any Government in a similar situation ever decided to reverse any legal defeat by just passing legislation saying, “The facts are what we say they are, not the facts the Supreme Court has found on the evidence”? I think it unlikely. For that reason, it is an extremely dangerous precedent. For that reason, I very much hope that there will be a legal challenge that will enable the Supreme Court to strike it down as unconstitutional in due course. But the better step would be for Parliament not to pass the legislation in the first place.

Finally, the most striking feature is that the legislation declares the facts to be the facts from now on, so long as it remains on the statute book, regardless of future events. Let us say that a situation arises which I very much hope does not, given that the Rwandan Government are one of the more attractive, by comparison, of African Governments. But say a coup were to occur in Rwanda and the present, fairly benign dictator were to be replaced by a much more malign dictator. What the Government are asking us to declare is that the courts can be told that Rwanda remains a safe country and they are not to entertain credible evidence that events in Rwanda have occurred which change that situation. It is being laid down as a matter of law for the indefinite future, regardless of whatever startling further facts might emerge which someone might put before a court. I find that completely preposterous. I very much hope that we would never elect a British Government who would be so outrageous as to proceed in those circumstances, but that is the legal position this House is being asked to endorse.

I find it incredible that anyone can really expect a British Parliament, in 2024, to pass legislation of this kind. I ask the Minister to reconsider and to let us know whether the rule of law, the admission of evidence and the consideration of that evidence by British judges might be allowed to function in its normal way, and whether the Government are prepared to reconsider at least the wording and the detail, particularly of Clause 2 of the Bill they have put before us.

--- Later in debate ---

[Lord Purvis of Tweed (LD)]

The Government are asking us to be the perpetual judge of the legislation and actions of another country. That puts the legislature in an unusual position. In fact, it puts it into a unique position, specifically for this country. I am not a judge on Rwandan legislation, policy or actions. I have been to Rwanda; I respect it greatly and I thoroughly enjoyed my visit. I have been massively impressed with the development of Rwanda that is in their hands.

The noble Baroness, Lady D’Souza, referred to the eloquent points made by the noble Baroness, Lady Lister, and the noble Lords, Lord McDonald and Lord Cashman, with regard to torture. She told us that if we wanted to be a judge, we should speak to Victoire Ingabire, an opposition leader who is currently under house arrest. I have. I have been in her house, and I have asked her that question. Subsequent to my meeting the opposition member, officials of the Rwanda Government asked the hotel that I was staying at to inform on me. I am not a judge as to whether that means that Rwanda is a safe country. That is one example—I think, a bad example. It is probably an illustrative example. However, I am not a judge on that—our courts are. That is why we have them here.

We are asked not just to pass a “Rwanda is safe” Bill but to pass—

[Baroness D'Souza (CB)]

I thank the noble Lord for giving way. I want to add to his experience that, the minute I had visited Victoire Ingabire, my phone was nicked.

[Lord Purvis of Tweed (LD)]

I am grateful to the noble Baroness. The Minister might see two examples and ask when it becomes a pattern. Again, I am not a judge for it. As I was saying, we are not just asked to judge that Rwanda is a safe country under this legislation but we are asked to agree to legislation that states that Rwanda will never be unsafe. How on earth can we possibly do that?

On Monday, the Minister found it incredibly difficult to determine that Rwanda is currently safe. I remind the Committee of his response—because it is worth reminding the Committee, if not him. My noble friend Lady Hamwee asked whether there would be safeguards in place to make Rwanda safe. The noble and learned Lord, Lord Stewart of Dirleton, said:

“My Lords, it is a matter of working towards having the safeguards in place”.


I then asked:

“If the Rwandan Government are ‘working towards’ putting safeguards in place, that means they are not currently in place. Is that correct?”


The noble and learned Lord said:

“It must do”.


That is the Government saying that it is not currently safe. Why is that important for this group of amendments? It is important because I later asked the Minister to confirm that

“no relocation would take place until those safeguards would be in place”.

The noble and learned Lord replied:

“I can answer the first part of the noble Lord’s question in the affirmative”.—[Official Report, 12/2/24; cols. 64-70.]


We know that there will be no relocation until safeguards are in place that Rwanda will be a safe country. The Minister was unable to confirm when that would be the case. However, the Bill is asking us not only to jump ahead of that but to deny courts from ever considering whether Rwanda could be unsafe. It is still quite hard to work out the rationality of where we are.

Safety of Rwanda (Asylum and Immigration) Bill

Baroness D'Souza Excerpts

Committee stage
Monday 12th February 2024 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, the Minister speaks in the future tense—that the presence of British judges and the training “will” have that effect. I guess he is right; it may very well have that effect. But the point is that we are asked to declare Rwanda safe now. I hope the Minister is going to answer the questions from the noble Lord, Lord Purvis, about timing: when do we expect Rwanda to produce the new asylum law? When do we expect the judges to be appointed? When do we expect the system that is to be devised to ensure that there is no refoulement? When will that system be created? When are the Government going to see it? When will the House see it? If we are asked to say that Rwanda is safe, then we have already voted that we cannot ratify the treaty until the measures set out in Amendment 84, which were in the International Agreements Committee report, have come into effect. It is all very well the Minister speaking in the future tense; he has to tell us now when things are going to happen.

[Baroness D'Souza (CB)]

My Lords, I may have missed it, but could the Minister say whether Rwanda has drafted a refugee law?

[Baroness Hamwee (LD)]

My Lords, can I add to the Minister’s list the number of judges who have agreed to go to Rwanda and work there, and indeed the number of officials, and for how long?

Rule of Law

Baroness D'Souza Excerpts

Thursday 10th September 2020 Lords Chamber

[Lord Keen of Elie (Con) [V]]

The situation outlined by the noble Lord does not reflect that which exists in the context of a potential tension between our domestic legal obligations to Northern Ireland and the terms of the withdrawal agreement, in the event that we do not achieve the goals that all parties intended, including the ability to ensure the maintenance of the Belfast agreement.

[Baroness D'Souza (CB) [V]]

My Lords, tanks on the lawn will not, in the UK at least, herald the end of democracy or of adherence to the rule of law. It is shocking that the following clause is set out in government-proposed legislation:

“Certain provisions to have effect notwithstanding inconsistency or incompatibility with international or other domestic law”.


Will the Government either withdraw this derogation or provide compelling justification for its inclusion?

[Lord Keen of Elie (Con) [V]]

My Lords, the Government will seek to provide compelling justification for its inclusion. Ultimately it is for this Parliament to determine whether that case has been made.

Prisoners: Purposeful Activity

Baroness D'Souza Excerpts

Monday 15th October 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, the right reverend Prelate makes a very good point about the need for rehabilitation and for safety in prisons to be as effective as possible. In addition to the strategy that she mentioned, we have launched the education and employment strategy, which will create a system in which each prisoner is set on a path to employment from the outset. We hope that governors will be in a position to deliver that strategy by next April. I confirm that there are chaplaincy facilities in all our prisons, of course.

[Baroness D'Souza (CB)]

My Lords, there has been considerable success in introducing theatre of all kinds and acting in some prisons. How far do the Government support those efforts and how far are they prepared to finance them?

[Lord Keen of Elie]

My Lords, I understand that the introduction of theatre is part of the wider educational programme in prisons. I am not able to say that there is any identified or closed funding for that aspect of the process.

European Union (Withdrawal) Bill

Baroness D'Souza Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I support the amendments. I speak not as a grandmother, although I am one, but as somebody who not only voted for Brexit but campaigned for it. Therefore, I carry quite a heavy burden to help ensure that we get the best outcomes for people living in our country.

When voting to leave, no one voted to lose their rights. The amendments would ensure that the Government safeguarded the rights and protections of people as we negotiate leaving the EU. It has been hard to get much sense out of the Government about their plans for Brexit. The default message is to refer to the Prime Minister's Florence speech or Lancaster House speech, but platitudes about “getting the best deal” or “making Brexit a success” simply are not enough to guarantee that our Government do not risk undermining our basic rights and protections during the Brexit negotiations.

The Government seem unable to agree on many of the big issues and it is unclear who is in charge. In the absence of principled, clear leadership, Parliament must take the reins and do what is right for the majority of people. The amendments would protect both British citizens and EU citizens, people who have built their lives around the opportunities given to them by EU membership. They would force the Government to stop abusing our rights as a political bargaining chip. There should never have been any question over the rights of EU citizens living in this country, but our Government insisted on using our basic rights as part of their struggle to gain bargaining power in negotiations.

It is often conceived by supporters of remaining in the EU that the main motivation for Brexit is a narrow-minded, nasty little racist attitude which blames all our country’s problems on foreigners. I could not be further away from that world view, although I believe that some of the Brexiteers—I have some names here but will not read them out—and others have a lot to answer for in the way that they used migrants as scapegoats for the very real destruction that our own Government have cast upon our society with their slash-and-burn austerity measures. The Government sowed the seeds for a lot of the division and anger that prevail in our country.

I celebrate migrants and migration. Humans have always moved around as we seek opportunities and form new communities. It is an essential part of what it means to be human and without migration we would probably be stuck in isolated little groups, still using flint tools and eating with our fingers. Instead, humans have done the most astonishing things and we have all gained enormously from the massive cultural and technological growth that results from humans meeting humans and sharing ideas, cultures, stories and lifestyles. These amendments would do what is absolutely right and fair. They are about breaking Brexit away from those who espouse anti-immigrant views and saying that Brexit is about being more open, tolerant and diverse than ever before. A Brexit that cannot achieve that is not a Brexit worth having and not one that I will support.

[Baroness D'Souza (CB)]

My Lords, if there is to be a commitment to the highest standards of protection of citizens’ rights—I go back to the amendment tabled by the noble Lord, Lord Haskel—this would presumably include the European Charter of Fundamental Rights. But the Bill suggests that we omit that charter, so can the Minister say what would be the mechanism by which those charter rights would be guaranteed for EU citizens who remain resident in the UK?

[Lord Adonis]

My Lords, Amendments 160 and 170 are in my name and they would prevent regulations being made under Clause 9 if they,

“remove, reduce or … amend the rights of”,

an EU citizen,

“lawfully resident in the United Kingdom on any day before 30 March 2019”,

or until such time as Her Majesty’s Government have signed a reciprocal agreement with the European Union on the rights of citizens post-March 2019.

The issue here is simple. It is about giving legal effect to the assurance, which the Prime Minister has repeatedly given since Article 50 was invoked, that the rights of European citizens who are currently resident in the United Kingdom will be respected. The Prime Minister said in her October 2017 email to EU citizens not only, “I couldn’t be clearer”—actually, most of the Prime Minister’s statements which are not clear begin with “I want to be clear that”. She said she could not be clearer that,

“EU citizens … lawfully in the UK … will be able to stay”.

She also said:

“When we started this process, some accused us of treating EU nationals as bargaining chips. Nothing could have been further from the truth”.


If nothing could be further from the truth, why has Parliament not been invited by the Government immediately to give legal effect to the rights of EU citizens resident in this country? It is a very simple issue. The reason why it has not happened is precisely that the Government do want to use EU citizens as bargaining chips. Saying that they do not, when all the evidence is that they do, does not, I am afraid, cut the mustard at all.

The noble Baroness, Lady Ludford, also raised a crucial issue, which I hope the Minister will address. What is to happen to EU citizens who come here during the transition? We all know what the Minister will say: that it all depends upon the agreement. When the Prime Minister brings that agreement down with her tablets of stone, whether that happens in October, November, December or January, it will have to include a precise set of legal commitments on what is to happen in the transition. The only point I make in respect of that, which I hope the Minister might address in his remarks, draws very much on what the noble Lord, Lord Roberts of Llandudno, and the noble Earl, Lord Clancarty, said: that this is a really shabby way of presenting this country abroad.

Let us be clear. People across the world, including people whom we want to work in our National Health Service and make a big contribution to this country, are having to make decisions as we deliberate on whether they can come to this country from the end of March next year. Quite soon, that will be a matter not of months but of days in which they will have to make these decisions.

I am sure that the noble and learned Lord will claim that we are open and that we welcome them coming here. The noble Baroness, Lady Jones of Moulsecoomb, made what I thought was an excellent speech in favour of remaining in the European Union because we would embrace all the rights set out in the treaties. How is it that we can look at people straight and say to them, “This is a great place to come and live. We are going to maintain your rights, but even now, we are not prepared to tell you what those rights will be in a year’s time”? This country is presenting a terrible face to the world. Frankly, I am ashamed of the position our Parliament is adopting towards the rights of existing EU citizens, who still do not have those rights enshrined in law, and of those we are seeking to attract to this country from the end of next March.

As the whole Brexit project starts to disintegrate, nothing is undermining its moral foundations more than our inability as a Parliament—and, indeed, the noble and learned Lord’s Government—to give firm legal undertakings in respect of people who are resident in this country and came here in good faith.

Press Regulation (Communications Committee Report)

Baroness D'Souza Excerpts

Tuesday 20th December 2016 Lords Chamber

[Baroness D'Souza (CB)]

My Lords, I add my congratulations to my noble friend Lord Best on his masterly introduction to this debate.

I have the utmost sympathy for those who have suffered such appalling abuse from the press in recent years—abuse that has affected their lives. I do not believe that there should be no limits to press freedom. As we know, the United Nations Convention on Human Rights itself makes it clear that there are limits—among them incitement to hatred. Nor, in today’s climate of press abuse, should there be no sanctions. As we have heard, there are already many sanctions on the press in this country today. However, there is a principle at stake here; there is a difference in kind between an agreement by the majority of the press to abide by certain rules of practice and implementation of Section 40 of the Crime and Courts Act, because it would effectively censor the press due to a justifiable fear of unsustainable costs.

The principle, of course, is that a free press is one of the most fundamental institutions of democracy, along with free and fair elections, an independent judiciary, trade unions and a whole raft of other bodies, including civil society organisations. I have lived and worked in many countries, some of them as undemocratic as they come and some transitional democracies. What is singular about these nations is that press freedom or the lack of it is a measure of the democratic health of a given country. Whenever challenges to existing power arise, inevitably the very first action a threatened Government will take is to restrict the media and, as a consequence, access to information. This is dangerous, as we see today in Turkey.

I know that the victims of press abuse here in the UK believe that “something must be done” and that “enough is enough”; they say that they are,

“not talking about censorship but only of enforcing codes towards a more responsible and balanced press”.

But what does “responsible” mean? Who decides what is responsible or balanced? If it is the Government or an agent of the Government, it will too often be that which discomforts the Government. The imposition of Section 40, while on the surface hedged with safety walls—such as allowing the judge to deny costs in certain cases—is in fact a press regulation and censorship law because it is government-inspired, because it has the power to levy arbitrary costs, and because it is the threat by which the state wishes to enforce membership of a preferred regulator.

We have heard from many contributors to today’s debate that IPSO is weak in its dealings with complaints. That may well be true, but it is new and finding its way. We heard from the noble Lord, Lord Lester, that there has been encouraging progress in very recent times. Let us not glance over the fact that its complaints procedures do not differ significantly from those put forward by the state-approved Impress. Above all, it is a body which is accepted by the press themselves and thus falls into the category of voluntary self-regulation. It needs time and the opportunity to demonstrate the willingness of some of the press to clean up their act.

Finally, we cannot take democracy and its institutions for granted. This may seem obvious, but although we have a long history of freedom in the UK these institutions—including, most importantly, the freedom of the press—are fragile things, so fragile that they need reaffirming almost daily. The tendencies of all Governments the world over is to accrue power, often with the best of intentions: “We know what is good for you”. But unless there are strong and effective mechanisms to enforce accountability, that power will erode our democratic rights. A free and unfettered press is the best possible defence, albeit one that will, from time to time, abuse that freedom; I am afraid that it is the price that we pay.

Scotland Bill

Baroness D'Souza Excerpts

Monday 22nd February 2016 Lords Chamber

[Lord Hope of Craighead]

My Lords, this amendment is the first in a group which deals with Clause 68 and draws attention to the very broad nature of this clause, which is usually described as a Henry VIII clause. In this group are five amendments in my name: Amendments 79A to 79E, which are also in the name of the noble Lord, Lord Forsyth.

May I explain a little of the background to this series of amendments? In recent months increasing concern has been expressed in this House about the use of Henry VIII clauses. I recall particularly the debate on the report of the noble Lord, Lord Strathclyde, arising from the concern about the use of statutory instruments and the inability of this House to amend them and do anything other than pass or refuse to pass them. It was in that connection that the noble and learned Lord, Lord Judge, delivered a very powerful speech that alerted us to the great dangers of overuse of Henry VIII clauses.

Clause 68 has been cited as a particularly extreme example of the use of this type of clause. To explain the point, I will analyse the clause a little to see what it actually does. It is headed:

“Power to make consequential, transitional and saving provision”.

I have no complaint about transitional and saving provision. My amendments seek to remove from the clause those parts that refer to consequential provisions.

If you look through the clause you will find that subsection (1) would give power to the Secretary of State by regulations to make,

“such consequential provision in connection with any provision of Part 1, 3, 4, 5 or 6 … as the Secretary of State considers appropriate”.

Part 2 is not mentioned there. If you look at Part 2, you will find more precisely targeted provisions dealing with related powers in Clauses 15 and 19. The draftsman has taken the trouble to provide provisions related to the needs of that particular part. In this subsection you will see that Parts 1, 3, 4, 5 and 6 are grouped together in a way that does not attempt to target the need for the provision in any particular way at all.

Then you will find in subsection (2):

“Regulations under this section may amend, repeal, revoke or otherwise modify any of the following (whenever passed or made) … an enactment or an instrument made under an enactment … a prerogative instrument … any other instrument or document”.

Subsection (3) is very wide because of the way in which it enables these regulations to proceed. They may be used for all sorts of purposes which are set out in the subsection.

As far as the expression “an enactment” is concerned, there is a definition in subsection (7), which tells us that it includes,

“an Act of the Scottish Parliament”,

but also goes on to say that it includes,

“a Measure or Act of the National Assembly for Wales, and … Northern Ireland legislation”.

It is startling to find references to the measures passed by the other devolved institutions in a Bill that purports to deal only with Scotland.

If you look carefully at subsection (5) you can find that the regulations may repeal,

“any provision of primary legislation”,

and that expression is defined as including an Act of Parliament—in other words an Act of this Parliament. The Secretary of State is seeking to assert to himself a power to,

“amend, repeal, revoke or otherwise modify”,

a whole range of statutes including Acts of this Parliament and measures of the devolved institutions, without any limit of time whatever for any purpose he may consider proper, so long as it can be described as consequential.

There are four features of this provision which are the source of particular concern and I have, in a way, hinted at them in the opening remarks. First, there is no limit on the time during which this power may be exercised or on its extent. Secondly, there is no attempt to relate the provisions about consequential provision to the needs of any particular parts or clauses within the parts referred to in subsection (1).

Thirdly, the power is to be exercised by statutory instrument, which has all the defects referred to in the debate that I mentioned earlier. All we can do is look at what the instrument says and either pass or refuse to pass it. There is no opportunity for this House, or indeed the other place, to subject it to the scrutiny that primary legislation would receive. That is quite extraordinary when you consider the scope of the power that the Secretary of State is seeking to give himself.

Fourthly, the power is to be exercised by the Secretary of State, but there is no provision that he is to be required to consult Scottish Ministers. We have already had debates about Clause 2 and the Sewel convention, which is not being made part of a statutory provision. It is subject to the word “normally”, and its scope and application are open to some question unless they are spelled out in the statute, and it is perhaps not entirely clear whether it extends to statutory instruments as well as to primary legislation.

Therefore, the scope of the clause is in itself disturbing, but in this Bill, of all Bills, it is even more extraordinary because, as we have been told from the very beginning, the purpose of the Bill is to give effect to what one finds in the Smith commission report—no more, no less. Yet the power given to the Secretary of State will enable him to go well beyond what is set out in this Bill and it is not qualified in any way to limit the Secretary of State to what may be found in the Smith commission report, however widely one might construe it.

This really is an extreme provision which ought to be edited in some way to make it clear that what is being done relates to the nature of the Bill, which deals with Scotland, and to the need of the clauses or parts of the Bill in question to give effect to the Smith commission report. As it stands, it seems far, far too wide. It may simply be the product of—if I may say so with all due respect to those who are responsible—lazy draftsmanship. Of course, it is dead easy to write in words as widely as we find here without giving any thought to how necessary they may be.

For those reasons, I respectfully suggest that this clause is defective in so far as it seeks to relate to consequential provisions, and the parts which are the subject of my amendments should simply be taken out of the Bill. I beg to move.

[The Lord Speaker (Baroness D’Souza)]

My Lords, if this amendment is agreed to, I cannot call Amendment 79AA by reason of pre-emption.

[Lord Wallace of Tankerness]

My Lords, amendments in my name and that of my noble friend Lord Stephen are in this group. Basically, the arguments are very similar to those just advanced by the noble and learned Lord, Lord Hope of Craighead. The powers in Clause 68 are extremely wide. We are coming to the end of the Bill and people will think that these are technical amendments but in fact they are of profound constitutional importance. In its report on the Bill, your Lordships’ Constitution Committee has already drawn the House’s attention to the extent of the powers conferred by Clause 68, and therefore it is important that the Government take these points seriously.

Our Amendment 79AA is very similar to the amendment moved by the noble and learned Lord, Lord Hope, with one difference, which is that we allow the powers to apply in respect of Part 3 because of the report of the Delegated Powers and Regulatory Reform Committee. Paragraphs 24 to 28 of the committee’s 15th report of this Session deal with this clause.

The noble and learned Lord gave a number of reasons why he thought that this provision was exceptional but I think that he may have missed one out. He said that there was no limit to when these powers could be used but in fact there is no time limit on the legislation that it can apply to. Subsection (2) says:

“Regulations under this section may amend, repeal, revoke or otherwise modify any of the following (whenever passed or made)”.

I emphasise the last four words, which mean that future legislation could be affected by these powers. The Delegated Powers and Regulatory Reform Committee said in paragraph 25 of its report that the memorandum from the Government,

“acknowledges that the power to amend or repeal future enactments is exceptional. Reasons are given as to why this is needed in connection with Part 3 of the Bill which deals with welfare benefits: the commencement of Part 3 is expected to take place over a period of time and, because of the complexity of the area, it may be necessary to make changes to legislation enacted between the date on which the Bill is passed and the date on which the functions to which Part 3 applies are transferred to Scottish Ministers. We consider this provides a reasonable explanation for needing the power to amend future enactments in relation to Part 3 of the Bill”.

But the report goes on to say that that,

“does not justify the extension of this power to the other Parts of the Bill. It may be that similar considerations apply, but because nothing is said about this in the memorandum it is impossible to know”.

In other words, the Government are not only trying to take these powers but they have given the appropriate committee of your Lordships’ House that is scrutinising the Bill no reason whatsoever for such wide powers, including the exceptional power to amend or repeal future enactments. They did provide an explanation in respect of Part 3, which the committee found to be a reasonable one, and that is why we have not sought to remove it. Amendment 79AB is consequential.

As was also picked up on by the noble and learned Lord, Lord Hope, Amendment 79BA refers to the provision that talks about,

“any other instrument or document”.

Our amendment would remove those words from subsection (2), as it is thought that it is extremely wide. Again, the 15th report of the Delegated Powers and Regulatory Reform Committee commented on this at paragraph 27, noting its exceptionally wide effect without any compelling reason—that no justification has been given for a power to revoke any instrument or document, whenever made. Therefore, we believe that it should be removed from the Bill.

The other point is one touched on by the noble and learned Lord, Lord Hope. We deal with it in Amendment 79EA, which would remove references to Acts of the National Assembly for Wales and Northern Ireland legislation from this regulation-making power. Again, no substantive reason has been provided for extending the Secretary of State’s regulation-making power under Clause 68 to legislation made by either the National Assembly for Wales or the Northern Ireland Assembly. It seems very wide and raises the interesting question of whether legislative consent Motions were required in the Northern Ireland Assembly or the National Assembly for Wales before including these provisions in the Bill or whether, indeed, if these powers are ever wished to be used, doing so would require legislative consent Motions. Perhaps the Minister can enlighten us when he comes to reply.

Scotland Bill

Baroness D'Souza Excerpts

Tuesday 8th December 2015 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I shall speak also to Amendment 3, which is also in my name. The purpose of the amendments is to leave out subsections (1) and (2) of the proposed new section. I have tabled them to enable my noble friend the Minister to justify the inclusion of these subsections. I am aware that they derive from the recommendations of the Smith commission. Paragraph 21 of the report states:

“UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions”.

However, there is nothing in that report to justify the recommendation. In his foreword the noble Lord, Lord Smith of Kelvin, said:

“The Scottish Parliament will be made permanent in UK legislation”—

but that exhausts references to the proposal.

During Second Reading, I touched upon my concerns with both subsections. One concern I raised in response to an intervention by the noble and learned Lord, Lord Hope of Craighead. It was that the recommendation falls outside the terms of reference of the Smith commission. The commission was established to make recommendations for further devolution of powers to the Scottish Parliament. These subsections do not provide for the further devolution of powers. We are in something of a double bind. The Smith commission did not produce a reasoned report but, rather, a list of recommendations, and the Government committed themselves in advance to implementing its recommendations. The justification for the provisions of the Bill is thus generic: that they deliver on the commission’s recommendations. What we lack is a clear exposition of the reasoning behind each provision. The Government, in effect, offered the commission a blank cheque and I do not think that it is our task to cash it without questioning the transaction.

The other concern I raised was that the provisions fly in the face of the Government’s own guidance on making legislation. I quoted the most recent edition of the Cabinet Office’s Guide to Making Legislation, published in July, which stated at paragraph 10.9:

“Finally, when writing instructions … to keep in mind the general rule that a bill should only contain legislative propositions. These are propositions that change the law—they bring about”,

a change in the law,

“that would not exist apart from the bill”.

The guide goes on to record:

“It can sometimes be tempting to ask the drafter to prepare a provision that is not intended to change the law but is instead designed to serve some political purpose or to explain or emphasise an existing law”.

I have not sought to omit new subsection (3) because that does contain a legislative proposition, albeit one that merits amendment.

The wording of Clause 1 was discussed in Committee in the other place and it was amended on Report. However, the discussions took as given that there should be a provision stipulating that the Scottish Parliament and Government were permanent. The debate itself was somewhat disjointed, given that the amendments were considered with others. There was no sustained debate focused on subsections (1) and (2).

The Scottish Parliament was created under Section 1(1) of the Scotland Act, and there is nothing in that Act that limits its existence. What then do new subsections (1) and (2) add to the statute book? What is the relationship between these subsections and subsection (3)? New subsection (3) establishes that the Parliament and Government of Scotland,

“are not to be abolished except on the basis of a … referendum”,

in Scotland. It could be argued that this subsection qualifies subsections (1) and (2), given that it envisages circumstances under which the Parliament and Government cease to be permanent. However, it may also be argued that they confuse rather than clarify.

The Constitution Committee noted in its report on the draft clauses that Clause 1 creates,

“the potential for misunderstanding or conflict over the legal status of the Scottish Parliament which may result in legal friction in the future”.

It went on to state:

“If there are different interpretations as to the status of the Scottish Parliament in its present constitutional configuration then it is not implausible that Clause 1 could be interpreted by certain judges to be a form of entrenchment that could not then be repealed by Westminster legislation without the consent either of the Scottish Parliament or the Scottish people voting in a referendum”.

The committee returns to the point in its report on the Bill, drawing attention to the problem with the revised wording, which, it says in paragraph 36, risks,

“introducing uncertainty concerning the absolute nature of parliamentary sovereignty where there should be none”.

The problem is exacerbated by the removal of the word “recognised”.

New Section 63A(1) states that the Parliament and Government are permanent, and subsection (2) may be read as affirming that this section is Parliament’s commitment to that. The political reality is that the Scottish Parliament is permanent—that is not in doubt. Why then introduce these new subsections? They raise more questions than they answer. If they are to remain in the Bill, it would be prudent to accept Amendment 9, tabled by my noble friend Lord Forsyth of Drumlean, which would add:

“Nothing in this section alters the sovereignty of the United Kingdom Parliament”.

I can anticipate some of the arguments that may be deployed by the Minister against that amendment, but those arguments could be utilised in respect of new subsections (1) and (2). I invite my noble friend the Minister to provide the Government’s substantive thinking behind new subsections (1) and (2) and thus get it on the record. I beg to move.

[The Lord Speaker (Baroness D'Souza)]

My Lords, if this amendment is agreed to, I cannot call Amendment 2 by reason of pre-emption.

[Lord McCluskey (CB)]

My Lords, I had not expected to be on my feet just at this moment, but I will speak to Amendments 4 and 5. Amendment 4 asks that the word “only” should be inserted into line 11, so that the new provision would read:

“The only purpose of this section is … to signify the commitment of the Parliament and Government of the United Kingdom to the Scottish Parliament and the Scottish Government”.

The first question I have to ask the Minister is: if this is not the only purpose of the section, what other purpose or purposes does the section have? I do not see any value in having the words, “The purpose”, unless we make it clear that this is the only purpose.

My Amendment 5 would remove the words,

“with due regard to the other provisions of this Act”.

As I understand statutory interpretation, when a court or other body is called upon to understand an Act of Parliament, it may well be necessary, in the case of any kind of ambiguity, to look at any other provisions of the Act which bear upon the same matter. There is a duty in law and in custom for courts and others to have due regard to the other provisions of the Act, so I do not see what purpose this provision serves here. My own general approach is that the shorter legislation is, the better. Legislation is often too wordy and too confused. If the words are not necessary, they should not be there. That is the simple basis on which I speak to both the amendments standing in my name.