European Union (Notification of Withdrawal) Bill

Debate between Lord Forsyth of Drumlean and Lord Hope of Craighead

Report stage (Hansard - continued): House of Lords
Tuesday 7th March 2017 Lords Chamber

[Lord Forsyth of Drumlean]

Subsection (2) of the proposed new clause states that:

“Such approval shall be required before the European Parliament debates and votes on that agreement”.


How are Ministers supposed to deliver that? They are not in control of the timetable for when the European Parliament debates these matters. It is an impossible condition for them to meet.

[Lord Hope of Craighead (CB)]

I beg the noble Lord’s pardon and am grateful to him for giving way. The phrase,

“this will happen before the European Parliament debates and votes on the final agreement”—[Official Report, Commons, 7/2/17; col. 264],

is set out in Hansard in the undertaking given by David Jones on 7 February. The more the noble Lord makes his points, the more important it is, it seems to me, to pass this amendment.

[Lord Forsyth of Drumlean]

If the noble and learned Lord accepts my point then the more important it is not to seek to put it in statute. He did not actually deal with my point. How on earth are Ministers able to ensure that,

“approval shall be required before the European Parliament debates”,

when they are not in charge of the timetable for those debates? I would happily give way to him if he would like to answer that point. He is arguing that this should be put in statute and he should be able to explain how it could be achieved.

[Lord Hope of Craighead]

My Lords, I would love to continue this discussion until we reach an end of it, but all I am doing is referring to the words of the Minister himself. It is for him to work out how this undertaking, which he gave to Parliament and which fits exactly with the wording of the White Paper, should be conducted. It is very important that we make this matter clear. The best way of dealing with it is to use the Minister’s words in proposed subsections (1) to (3)—as the noble Lord, Lord Pannick, has done—and pass the amendment. The House of Commons can look at it again if it wishes.

[Lord Forsyth of Drumlean]

The noble and learned Lord is normally very careful and precise. At the beginning of my speech I read out the words that David Jones used in the other House. He said: “We expect and intend” that that will happen before the European Parliament debates. This says that such approval “shall be required” before the European Parliament debates. There is a big difference between “expect and intend” and “shall be required”.

Scotland Bill

Debate between Lord Forsyth of Drumlean and Lord Hope of Craighead

Monday 29th February 2016 Lords Chamber

[Lord Hope of Craighead]

My Lords, I support what the noble Lord, Lord Kirkwood, has said. Even with the advantage of the websites, it is very difficult to get an accurate and up-to-date version of amended legislation. If you go to the official website, you usually find that mention is made of amendments which have not yet been incorporated into the legislation as shown on the website. That time lag makes it very difficult for ordinary people to see exactly what the content of the legislation is. I think I am right in saying that when the Law Commissions were set up they had a function to keep an eye on the need for consolidation. If the Minister is not inclined to accept the amendment proposed by the noble Lord, Lord Kirkwood, perhaps he might, through his offices, encourage the Scottish Law Commission to get to work on consolidating these measures in a way that would be useful for anybody working in the Scottish Parliament or who was trying to understand what the current legislation really is.

[Lord Forsyth of Drumlean]

My Lords, I will speak briefly in support of Amendment 60, tabled by the noble Lord, Lord Kirkwood of Kirkhope. I am sure the Minister will be advised that it is not necessary to include this in the Bill but it would be excellent if he were to give an undertaking at least to produce a draft Bill. I am not a lawyer, but I have certainly found it extremely difficult to cope with the piecemeal changes that have been made over the years and to follow the cross-references back to the 1998 Act. The noble Lord has made probably the most sensible suggestion of the evening.

I presume the noble Lord, Lord McAvoy, will not press his amendment to a Division or anything of that kind. The Labour Party is in its debating society mode at present. When the Minister responds to the amendment, which is about setting up this welfare monitoring joint committee, will he answer a question I asked earlier, arising from the fiscal framework? Paragraphs 16 and 17 appear to contradict each other. Paragraph 16 says:

“For welfare, and all other spending unless stated otherwise in this agreement, the chosen method will be the Barnett formula”.

However, paragraph 17 says that,

“whilst achieving the outcome delivered by the Indexed Per Capita (IPC) method for tax and welfare”.

This is very important, because it makes a considerable difference to the amount of money that is available for welfare purposes in Scotland. Will the Minister indicate which I am to believe: paragraph 16, which would involve a substantial cut in the current budget, or paragraph 17, which appears to contradict it?

Scotland Bill

Debate between Lord Forsyth of Drumlean and Lord Hope of Craighead

Wednesday 24th February 2016 Lords Chamber

[Lord Forsyth of Drumlean (Con)]

My Lords, we had quite a good discussion about this in Committee. This amendment, together with Amendments 4 and 5 in my name, is centred on the question of the extent to which we wish to maintain the sovereignty of this United Kingdom Parliament and the extent to which we wish to litter our legislation with declaratory statements that have no meaning whatever in order to make political capital on the part of the Government or someone else.

Regarding the Statement delivered a few moments ago, at first I thought that my noble friend had misread it when he referred to “Scotland’s two Governments”. Scotland has a United Kingdom Government and a devolved Scottish Government, but this use of language, which is designed to appease the separatists, is now being included in our legislation. Amendment 1 would simply put back into the Bill the original drafting that the Government presented to the House of Commons. The wording proposed in my amendment was perfectly satisfactory to the Government because it reflected the Government’s position, but the wording was changed to meet an amendment put forward by, I think, the Scottish nationalists.

There is a great irony here. My amendment is about the authority and nature of the United Kingdom’s constitutional arrangements. I—perhaps rather naively—thought that the Scottish nationalists were in favour of breaking up those arrangements, and I did not really understand why a Conservative and unionist Government would wish to help them in that process. At present, line 9 on page 1 of the Bill reads:

“The Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom’s constitutional arrangements”.

My amendment would simply put back the words “recognised as” so that the Bill read, “The Scottish Parliament and the Scottish Government are recognised as a permanent part of the United Kingdom’s constitutional arrangements”. If the words “recognised as” are included, that implies that there is another body that recognises that—that body being the United Kingdom Parliament. However, the statement currently in the Bill as amended by the nationalists in the other place flies in the face of our constitutional tradition that no Parliament can bind its successors. It also flies in the face of the Government’s own rule that legislation should not be used for declaratory purposes.

We had indeed a very long debate about this in Committee, but I have looked in vain for any amendments from the Government to address any of the arguments that were put forward. The Constitution Committee produced a very serious report. The noble and learned Lord, Lord Hope of Craighead, spoke at great length. There were a number of contributions, but all of them have been ignored. They have all been ignored because the Government’s mantra is, “We have to implement what the Smith commission report indicated and there can be no departure from it”. But, of course, this clause is a departure from the commission’s proposals.

My Amendment 4 provides that, on page 1, line 17, we should leave out “Scotland” and insert “the United Kingdom”. As currently drafted, the Bill provides:

“In view of that commitment it is declared that the Scottish Parliament and the Scottish Government are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum”.

My amendment would make it a decision of the people of the United Kingdom voting in a referendum, because we are still a United Kingdom and, indeed, the Scottish people have only very recently voted overwhelmingly to achieve that.

I thought that my noble friend would accept my amendment in Committee—I realised that he would have to go away and think about it—but perhaps he will now accept my Amendment 5, which provides:

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

What has become of us that a Conservative and unionist Government are making declaratory legislation on the face of a Bill but are not prepared to accept as an amendment the words:

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

No doubt there will be an opportunity for us to discuss the fiscal framework when we get the fiscal framework, but, looking at the Statement that has been made, where we have given the Scottish Parliament a veto on the terms by which it is financed—we have given that away—I have to say to my noble friend that we appear to be engaged in a long-term process of appeasement which undermines the authority of the United Kingdom Parliament. These amendments are an attempt, in at least a declaratory form, to set the record straight. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I am as disappointed as the noble Lord, Lord Forsyth, that some of the points that were raised—indeed, all the points that were raised—in Committee on Clause 1 have met with no response from the Government by way of amendment. My amendment in this group is Amendment 2, which is directed to the wording of the new Section 63A(3). I am repeating points that I made in Committee which were designed to achieve greater clarity. In some respects, the need for greater clarity is revealed by the amendment that the noble Lord, Lord Cormack, has tabled and, indeed, by the comments of the noble Lord, Lord Forsyth, just a moment ago.

There were two particular points in new subsection (3) to which I drew attention last time and to which I draw attention yet again. The first is the phrase,

“a decision of the people of Scotland”.

The first question is: what kind of decision? What majority, if any? Is it to be by simple majority or something else? Merely to use the phrase “a decision” does not tell us what the mechanism is to be to record that decision in a way that would have effect. The second is the phrase, “the people of Scotland”. Is the referendum to be confined to people who are in Scotland, or are any people who can claim they are of Scotland to be allowed to participate in the referendum?

My amendment seeks to clarify those matters by saying that the,

“referendum has been held in Scotland”;

and, secondly, that the decision is to be that of,

“a majority of those voting”—

in other words, a simple majority only.

Unless those points are tidied up and greater clarity is achieved, the uncertainty which I suggested lurked within the current wording of the subsection will remain. I hope very much that the Minister will feel able to reflect yet again on the need for clarity. It is a feature in various parts of the Bill that a great deal of clarity has been achieved. It is disappointing that, in the constitutional part of the Bill—Part 1, which has very great significance—the clarity which is present in other parts of the Bill is not being achieved. It is for that reason that I have come back yet again on Report with the points that I made earlier, in the hope that they will still receive attention.

Scotland Bill

Debate between Lord Forsyth of Drumlean and Lord Hope of Craighead

Tuesday 19th January 2016 Lords Chamber

[Lord Forsyth of Drumlean]

I was not suggesting that the name would be changed—I was saying that it might suit the nationalist agenda.

[Lord Hope of Craighead]

When the Minister replies on Clause 43, could he give us some other examples of cross-border authorities? As I understand Clause 43, it does not abolish the British Transport Police or alter its functions in relation to Scotland; they will be devolved, if Clause 42 is passed. But it would help the Committee if we had some examples of other cross-border authorities, so we can grasp what kind of things we are dealing with. From points that other noble Lords have made, it may be that we are not really comparing like with like in talking about the kind of cross-border authority referred to in the Scotland Act—or the Orders in Council passed under it, presumably under Section 88(5). They are relatively simple creatures, which do not have implications of the nature described by other noble Lords. But some examples of other cross-border authorities would help us to grasp the implications of this very significant clause. I hope I am not asking the Minister to do something for which he is not prepared, but if he could write to us and give us examples at a later stage, that would be very helpful.

Scotland Bill

Debate between Lord Forsyth of Drumlean and Lord Hope of Craighead

Tuesday 8th December 2015 Lords Chamber

[Lord Forsyth of Drumlean]

My noble and learned friend’s only argument has been, once again, to rest on the Smith commission. He keeps saying that it had the support of all five political parties. I am not aware of the members of the Conservative Party being consulted at all on the Smith commission proposals; nor am I aware of any discussion on those matters in the other place or in this place. What happened was that people nominated by the political parties got together and produced a report. It really is quite misleading to keep saying that this was endorsed by all the political parties. That may have been true of the Liberal Democrats or other parties but it certainly was not true of the Conservative Party. Furthermore, this was all done at an enormous pace—it was all agreed in eight weeks. As we have heard from the noble and learned Lord, Lord Hope, the noble Lord, Lord Smith, himself has not sought to argue that he has endorsed this Bill in terms of the provisions of the Smith commission.

[Lord Hope of Craighead]

The noble Lord said that he is not to be taken as approving the precise terms of the Bill as a lawyer. He is not a lawyer. He emphasised that he is a layman, and he speaks as a layman when he endorses what is in the Bill. If it were possible to find ways in which the Bill could be improved in relation to constitutional principles or whatever else, he would be in favour of that because that is not his field and he is aware that there could be room for improvement in those areas. What he emphasised was, “Don’t confuse me with a lawyer. I am a layman and I give it support as a layman”. However, if there were respectable arguments from lawyers, he would give way to them and improve the Bill if that was a way of making better progress.

[Lord Forsyth of Drumlean]

I am most grateful to the noble and learned Lord for making that clarification. It is important that effective checks are in place. This whole process has been carried out swiftly and without much in the way of discussion either among the membership of the political parties or indeed within the House of Commons. Although four days were allocated to Committee, many of these issues were not considered because of the process by which amendments are dealt with. However, I can sense that folk do not wish me to detain the Committee on this matter and there will be further opportunities to come back to it, so I beg leave to withdraw the amendment.

Scotland Bill

Debate between Lord Forsyth of Drumlean and Lord Hope of Craighead

Tuesday 8th December 2015 Lords Chamber

[Lord Forsyth of Drumlean (Con)]

My Lords, I do not often disagree with the noble and learned Lord, Lord Hope, but I think he was walking something of a tightrope there, for obvious reasons.

What is wrong with this first clause is the whole approach to the Bill. The Government, in advance of even knowing what the conclusions of the Smith commission would be, undertook to implement them and expected both Houses of this Parliament to ratify them. In speaking in support of the amendments tabled by my noble friend Lord Norton, I draw the attention of the House to page 7 of our Constitution Committee’s sixth report of Session 2015-16 on the Scotland Bill. Paragraph 8 states:

“The Bill contains a number of provisions of the highest constitutional importance. In affirming the permanence of the Scottish Parliament and Scottish Government and declaring that they are not to be abolished except following a referendum in Scotland, and in giving statutory recognition to the Sewel convention, the Bill carries potential implications for Parliament’s own sovereignty”.

Too right it does.

Paragraph 9 states:

“In our report on the Draft Clauses”—

which were contained in the document which was ironically entitled Scotland in the United Kingdom: An Enduring Settlement—

“we expressed concern at ‘the failure of the UK Government directly to address the implications of these proposals for the United Kingdom as a whole.’ We questioned how any process that did not consider the future of the Union ‘could provide for an “enduring” settlement’, and recommended that ‘the Government give urgent consideration to the consequences of the Draft Clauses for the constitution of the United Kingdom as a whole. This should happen before they are passed into law.’ There is little evidence that such consideration has been given to date”.

That conclusion is something of an understatement, to put it mildly.

If we look at the Smith commission proposals in respect of these amendments and the clause which we are discussing—a point I made at Second Reading—we see that under the heading, “A More Autonomous Parliament”, the Smith commission report stated:

“The Scottish Parliament will be made permanent in UK legislation and given powers over how it is elected and run. The Scottish Government will similarly be made permanent”.

It does not say, “We recommend that Parliament considers how it could be made permanent”, but that it will be made permanent.

[Lord Hope of Craighead]

I draw the noble Lord’s attention to the fact that the heads of agreement built on what he said by stating:

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

[Lord Forsyth of Drumlean]

Indeed. Perhaps I have missed out on this modernisation process that is going ahead, but I understood that laws are made by Parliament and receive the assent of the Crown. I did not think that they were made up by subcommittees of appointed party politicians meeting in secret and then getting together with the leaders of the parties, who did not in any way consult their parties, with Parliament then being expected to rubber-stamp them. This takes us back to the time of Henry VIII. We could save a great deal of money by getting rid of this whole apparatus of Parliament and leaving it to the leaders of the parties to get together, decide things and agree that they will be passed into law and leave the monarch with the dubious task of having to give Royal Assent to such matters.

A colleague I was speaking to earlier said, “I’m not coming in for the Scotland Bill. I’ve really had enough of Scotland”. I said, “But it’s not about Scotland; it’s about the United Kingdom”. He said, “Oh, I didn’t realise that”. It would appear that the Government do not realise that, either, judging by the nature of this clause.