Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2019

Lord Davidson of Glen Clova Excerpts

Wednesday 10th April 2019 Lords Chamber

[Lord Bruce of Bennachie (LD)]

I echo what the noble and learned Lord, Lord Hope, has said. This is the way we hope things will work with a devolved Parliament and Administration but where there is shared decision-making. I have only one question, because the powers are concurrent. When the Minister responds, will he explain what happens in the unlikely event that there is a matter of dispute? It is territorial and this order effectively devolves the power to Scottish Ministers, but if “concurrent” means what it implies, in theory the Secretary of State in the UK Government could say, “I do not agree”. That is unlikely in the circumstances, but I wonder if the Minister can clarify what would happen.

[Lord Davidson of Glen Clova (Lab)]

My Lords, I thank the Minister for his exposition of the order. As the noble and learned Lord, Lord Hope, has said, no one could disagree with it.

We are coming up to the 20th anniversary of the creation of the Scottish Parliament and of Scottish Ministers. At some point, it might be interesting to hear the view of Her Majesty’s Government of the performance of the devolved Executive over the past two decades, with some focus on its delivery in devolved areas such as education and health. That might be both interesting and instructive.

As for the order, the noble Lord, Lord Bruce, has raised a good and sensible point. Concurrency of Scottish Ministers and the Secretary of State in relation to the functions raises the possibility, although it may be remote, of differences of view and possibly a dispute. Do Her Majesty’s Government envisage that any disputes might arise and how, if they arose, they might be resolved?

I have asked a question about resolution of disputes. As the Minister may recollect, I asked a similar question when the forestry order came up, but I do not recall getting an answer—perhaps matters will alter. It may simply be—this is to a degree foreshadowed by the observations of the noble Lord, Lord Bruce—that this is an area where Her Majesty’s Government do not detect the possibility of differences arising between Scottish Ministers and the Secretary of State.

[Lord Duncan of Springbank]

My Lords, it is right that we as a Government reflect on the success of devolution. Devolution working is inherently a good thing, and in this order—and, I hope, the one to follow—we see how the nuances of that can work. Whisper it not, but the Scottish and UK Governments really do get on remarkably well at official level and at ministerial level—only occasionally are buns thrown. That is necessary within the devolution settlement. The noble and learned Lord, Lord Davidson, is right to say that we as a Government should perhaps do more to reflect on the successes and, indeed, some of the shortcomings of devolution to date. I know that, in the various discussions we have had in this House, challenges have been expressed by the Scottish Government about certain elements of future policy. We will need to cast our eye to the horizon and give consideration to how devolution—which is, of course, a process—can continue.

On this order, I am happy to echo the words of the noble and learned Lord, Lord Hope, when he talks of the skill and quality of the draughtsmanship and the drafters themselves of the original Scotland Act 1998. It is a good Act that has stood the test of time; the fact that we are here is testament to that. I am very happy to make that statement.

The noble Lord, Lord Bruce, asked a question about concurrent powers. I asked that question too. I will give noble Lords an answer—they may or may not decide that this is a good answer, but it is the answer I have. There are no known intentions for UK Ministers to exercise any functions relating to this order on behalf of Scottish Ministers. This is almost like the unknown unknowns and the known unknowns of the former US Secretary of Defense. As things presently stand, it is not anticipated that that will be an issue, but the noble and learned Lord is quite correct that that does not mean it will never be an issue. I say only that, should that arise, I do not doubt that it would need to be taken forward through the proper channels between the two Governments to ensure that it does not become a constitutional problem or a constitutional crisis. The Government today do not anticipate that, and nor do I.

I will go back and read Hansard to check what I did not answer last time. I will make sure that the noble and learned Lord, Lord Davidson, gets an answer; I would not like to leave anything hanging there. On that basis, I beg to move.