EU Nationals in the UK

Debate between Lord Forsyth of Drumlean and Lord Keen of Elie

Wednesday 29th June 2016 Lords Chamber

[Lord Keen of Elie]

My Lords, recent behaviour towards EU citizens in this country is to be deprecated. We consider that we have sufficient laws in place to deal with these matters without further review at this time.

[Lord Forsyth of Drumlean (Con)]

My Lords, does my noble friend recall that the Prime Minister made it clear that EU citizens who are living in this country, with employment in this country, will be able to remain so? Does he recognise that people are sick and fed up that this fearmongering campaign is continuing after we have made a clear decision? It is important that EU nationals who are resident in this country are reassured of their position. Will he please do so?

[Lord Keen of Elie]

My Lords, those EU nationals who are resident in the country at the present time can be reassured that there will be no change, as our membership of the EU continues over the next number of years. Nevertheless, as the Prime Minister has made clear, it is for the next Prime Minister and Government to decide when to trigger Article 50 and to carry on the relevant negotiations.

Immigration Bill

Debate between Lord Forsyth of Drumlean and Lord Keen of Elie

Monday 21st March 2016 Lords Chamber

[Lord Keen of Elie]

The noble Lord makes the point, and I accept that the scheme applies only to Syrians in the context of Syria being the area that is subject to the scheme, but it does not distinguish on the grounds of ethnicity or religion in that way.

I mentioned numbers a moment ago. No country in the world has an open-door immigration policy of the kind proposed by this amendment. More particularly, no country in the world has an open-door immigration policy that would involve persons who were not strictly refugees under the convention being able to apply in the place of their residence for asylum in the UK. It has always been the practice that an asylum seeker is a person who presents themselves in a safe country and seeks to establish refugee status. What is suggested in this amendment, as I read it, is that a person from within Syria, Lebanon, Jordan, Turkey or elsewhere would be entitled to approach a British consulate or embassy and make an application for asylum in the UK from that point. That would not be limited to the Middle East, either; it would apply across the world because, again, you could not distinguish between one set of refugees and another. That would not be possible.

The noble Lord, Lord Alton, introduced the idea that somehow this amendment was subject to a cap. As the noble and learned Lord, Lord Brown, observed, though, that is simply not the case, and it is difficult to conceive of how it could be. Still, let us suppose that it was going to be subject to a cap of, say, 5,000 applications. How would that be dealt with? Are we to send 5,000 visas to the consulate in Baghdad? Are we then to say that first come are first served—that those who arrive and apply can have one while those who arrive too late cannot? With great respect to your Lordships, that is not an immigration policy, it is a lottery, and that is not what we are about. We are trying to achieve an objective and fair result.

When we address this, we have to remember also that refugee status applies not only to those who may have been, or threatened with being, the victims of genocide but to those who have been the subject of, or threatened with, persecution. On what basis can we rationally and reasonably distinguish between those two groups when they all constitute refugees?

[Lord Forsyth of Drumlean]

My noble and learned friend is making quite heavy weather of the inadequacies of the amendment. Can he tell us—he has had quite a lot of time to think about this because a similar amendment was tabled in Committee—what exactly the Government are going to do for those Christians and other groups who are facing genocide?

[Lord Keen of Elie]

I believe that we are already doing all of that. This was addressed by my noble friend Lord Bates earlier when he spoke of the steps that we are taking regarding diplomatic efforts to try to secure peace in the Middle East. He spoke of the Government delivering a robust and comprehensive strategy to defeat Daesh in Syria and Iraq as a member of the global coalition of 66 countries. He spoke of the fact that there was effectively a cessation of hostilities on 27 February that we will build upon and hope to develop. He spoke of the fact that we have pledged over £2.3 billion, our largest ever response to a single humanitarian crisis, which is delivering vital assistance to refugees in neighbouring countries on the ground right now. We are also working through the United Nations High Commissioner for Refugees with three schemes—the Gateway Protection Programme, the Mandate Refugee Programme and the Syrian resettlement scheme—in order to reach out to the most vulnerable people at risk, such as women and children. All that is being done.

We have to be realistic about what we can and cannot achieve. What we cannot achieve is a policy whereby 4.8 million or more people are invited to make an application at a local level for a visa to bring them to the UK. We know that we could not cope with the consequences of such a policy, and we know the potential disaster that could follow from attempting to impose one. We know that at the end of the day we would be expressing hope that could not be delivered. We would be expressing hope that these people might be helped when in reality we knew that their prospects would actually be dashed to pieces on the rocks of reality. We could never cope with such an immigration policy. I say to your Lordships in conclusion—

Scotland Bill

Debate between Lord Forsyth of Drumlean and Lord Keen of Elie

Wednesday 24th February 2016 Lords Chamber

[Lord Keen of Elie]

I am obliged to the noble and learned Lord, Lord Hope of Craighead. It determines clearly and unambiguously that there can be no question of any unseen, secret understanding between the United Kingdom Government and the Scottish Government when his proposals in the amendments have their source in Scotland, with the Scottish Government. That perhaps puts that in its place.

On the question of the referendum, I reiterate the point that I made earlier: this is a wholly hypothetical situation.

[Lord Forsyth of Drumlean]

Will my noble and learned friend deal with the point about the people of Scotland, as opposed to the people in Scotland?

[Lord Keen of Elie]

I am obliged to my noble friend for reminding me of the question. As I said earlier, we are dealing with a wholly hypothetical situation. It is not envisaged that this will ever arise, but in the event that it does, the question of who will be engaged in the referendum and the manner in which it will be conducted will be determined at that time according to the circumstances that exist at that time, rather than by some predetermination, perhaps millennia earlier. That remains the Government’s position on that point.

[Lord Forsyth of Drumlean]

My Lords, I have come to the view that the noble Lord, Lord Empey, tactfully suggested—that we are actually wasting our time. I beg leave to withdraw the amendment.

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[Lord Keen of Elie]

I cannot accept that because of the language employed. It was not the convention that dictated that; it was a practice that grew up as a consequence of the convention having been entered into. It reflected, for example, working note DGN 10. That is why I say there was a clear understanding by the parties not only in 1999 but in October 2013 of what was meant strictly by the Sewel convention. I also commend to the noble Lord the heading to paragraph 22 of the Smith commission report, which was also agreed to by the parties to the Smith commission. It makes it abundantly clear what the parties understood was meant in this context by the Sewel convention.

I quite appreciate that over the years practice has developed and no doubt practice will continue to develop, which is one reason you do not want to freeze practice in statutory form. What you want to express in statutory form is the strict requirement of the Sewel convention and its scope. It is important to remember that by doing that we preserve not only the convention as it is understood and has been understood but the sovereignty of this Parliament. For this Parliament is sovereign and can legislate for devolved matters, just as the Scottish Parliament can legislate for devolved matters.

The matter that Lord Sewel was addressing when setting out the principle that this Parliament would not normally legislate with regard to devolved maters without the consent of the Scottish Parliament was this: to make it clear that, despite Parliament’s sovereignty, the devolved legislature would be left to get on with the business of legislating in devolved areas. No one wanted the prospect of legislative ping-pong between the two Parliaments. That is also set out—as I say, quite clearly—in the memorandum of understanding, as it has been revised on seven occasions and agreed to by the United Kingdom Government and the Scottish Ministers.

The question of the words “not normally” was raised. The noble and learned Lord, Lord McCluskey, among others, pointed out that the word would be justiciable. Of course, all the words of a statute are justiciable in the sense that you can go to a court and ask the court what it believes they mean. But it is not the word that is not justiciable, it is the issue. The question of whether the United Kingdom Parliament can legislate in devolved areas is not justiciable. It is for the United Kingdom Parliament to decide whether on some occasion it will do what it normally, usually or generally does, or will not do so, for it is a sovereign and supreme Parliament. That underlines the importance of the words “not normally” and to remove them from this clause would be to impinge on the sovereignty of this Parliament in a most unprecedented and extraordinary manner.

[Lord Forsyth of Drumlean]

I am listening very carefully to my noble and learned friend and basically he is saying that the Sewel convention is working perfectly well; everybody understands what it is. We are hearing from very expert opinion that the clause as it stands is rubbish and is subject to judicial challenge, so why does he not just drop the clause and stick with what is working, which is the convention as it exists?

[Lord Keen of Elie]

I am obliged to my noble friend for his invitation. I refer to the recommendation of the Smith commission report, which was that it should be put on a statutory footing, and this Government are determined that it will be put on a statutory footing. I hope that answers my noble friend’s inquiry.

That brings me to my noble friend’s Amendment 11, which he spoke to but followed up with the comment, “You can ignore my amendment”. I would like to treat that as a precedent in the case of my noble friend but not on this occasion. If he has spoken to his amendment, I have to respond to it.

[Lord Forsyth of Drumlean]

That is a novelty.

[Lord Keen of Elie]

Given the noble Lord’s invitation to ignore it, it is more than a novelty; it is rather generous. Be that as it may, I come back for a moment to the question of justiciability. The noble and learned Lord, Lord McCluskey, and others of your Lordships have sought to ensure that the provisions of Clause 2 will not create a justiciable right. I understand and appreciate the reasoning behind that amendment, but our position remains that it is not necessary because Clause 2 cannot and does not create a justiciable right. I emphasise that it is not a question of whether the word “normally” is justiciable, as every word of a statute is in that sense capable of being interpreted by a court. It is the issue that is not justiciable. I return to a point that I mentioned briefly—

Scotland Bill

Debate between Lord Forsyth of Drumlean and Lord Keen of Elie

Tuesday 8th December 2015 Lords Chamber

[Lord Forsyth of Drumlean]

I am slightly behind my noble and learned friend’s speech, but I wanted to check the facts. He has made great play of the importance of including the word “permanence” as a result of the recommendations of the Smith commission. Will he explain why the Bill as originally presented to the House of Commons made no mention of permanence and why Part 1 was headed “Constitutional Arrangements” and “The Scottish Parliament and the Scottish Government”?

[Lord Keen of Elie]

In the course of the Bill’s consideration, steps have been taken to strengthen the political statement contained in Clause 1. Indeed, the noble Lord’s proposed Amendment 2 picks up this very point. He noticed that in the other place the words “recognised as” were removed from Clause 1 for the same purpose. Perhaps I anticipate the further contribution that the noble Lord may wish to make to this debate.

[Lord Forsyth of Drumlean]

Forgive me, but as in the best parliamentary answers, my noble and learned friend is telling me something I already know. My question was: if the Government thought that they were meeting the obligations of the Smith commission by presenting the Bill as it was originally presented, that they met the terms of the Smith commission and that that is the overriding purpose and the agreement, why was it necessary to add these words which create such difficulty, as is clear from the speeches made in the House? My noble and learned friend has not really answered the point.

[Lord Keen of Elie]

With respect, I rather thought that I had answered the point made by the noble Lord, but let me reiterate it. The word “permanence” appears in the Smith commission agreement. After further consideration, it was felt that in order to strengthen the political statement contained in Clause 1 that word should feature in the clause itself.

I return to Amendments 6 and 7 which seek to alter the basis upon which any decision would be made with regard to the provisions of Clause 1. As was observed, it is not anticipated that there will at any point in the future be a referendum upon that issue, but nevertheless as this matter proceeded in another place it was again considered that this would strengthen the political statement that is being made here. Let us be clear: the use of a referendum in this context is consistent with precedent. In 1997, the people of Scotland supported the creation of a Scottish Parliament on the basis of a referendum. In 2014, in the independence referendum they reaffirmed their wish to have two Parliaments and two Governments for the purposes of reserved and devolved administration in Scotland. Therefore, it is appropriate that any question about the abolition of the Scottish Parliament and the Scottish Government, which is not envisaged, should be based on the expression of the will of the people of Scotland in a referendum. Let me be clear: that is a theoretical point. There has never been any question that the Scottish Parliament and the Scottish Government are anything other than permanent parts of the United Kingdom’s constitutional arrangements. That remains the case.

It is unusual, but not wholly exceptional, for a clause of a Bill such as this to contain a political statement, an affirmation of the status quo, a declarator that it will not change, and that is the fundamental purpose of Clause 1.

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[Lord Keen of Elie]

I cannot agree with the interpretation of sovereignty the noble Lord, Lord Purvis, puts forward. At the end of the day, if there was a referendum—and we are talking about a theory, not political reality—it would be necessary for there to be legislation to implement the outcome of that referendum if it involved the abolition of the Scottish Parliament. No one in reality is contemplating the abolition of the Scottish Parliament. The whole purpose of Clause 1 is to make clear the permanence and the recognition of the permanence of the Scottish Parliament and the Scottish Government. The noble Lord, Lord Purvis, has to recognise that the outcome of any referendum could be implemented only by way of legislation that went through this, the sovereign Parliament of the United Kingdom. That is the only point I seek to make.

[Lord Forsyth of Drumlean]

I may be able to help my noble and learned friend to get off this line of argument. I have been reflecting on what he is saying about this clause, which is essentially that the sovereignty of the United Kingdom Parliament remains unaltered, and that what is contained in this clause is simply a declaratory political statement. Can he explain to me what a declaratory political statement is? Is a political statement one that says something but means something else? He appears to be saying that the statement is that the Scottish Parliament is permanent, and at the same time that it is not permanent because this place is sovereign. Is his definition of a political statement one which can mean whatever you want it to mean and which is basically not entirely straightforward?

[Lord Keen of Elie]

I do not accept that expression of the position. As I said at the outset, the whole purpose of Clause 1 is to make a political statement that reflects the terms of the Smith commission agreement, which determined that there should be an expression to the effect that the Scottish Parliament is permanent. We acknowledge that, and that is the political statement being made. It is a declaration of will. However, we also recognise, as I believe this House will recognise, that the United Kingdom Parliament is ultimately sovereign and supreme. I am seeking to make that point. At the end of the day, this Parliament is sovereign, and it cannot disclaim that sovereignty.

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[Lord Keen of Elie]

I am obliged to noble Lords. I reiterate that the purpose of the Bill is to implement the recommendations in the Smith commission agreement. I noticed that the noble Lord, Lord Smith, has already observed that the terms of the Bill do that. This provision is consistent with the spirit of the agreement. It is also with precedent, if I can put it in that context. The referendum in 1997 over the matter of devolution was a referendum of the people of Scotland. The referendum on independence in 2014 was a referendum of the Scottish people. It is considered appropriate that we should continue with that model. I note that the noble Lord, Lord Empey, pointed out that the Northern Ireland Act 1998 proceeds in a similar vein. So it is consistent and appropriate that, for the purposes of this Bill, any such referendum—the noble Lord, Lord Forsyth, himself acknowledges how extremely unlikely it is that that would even be contemplated —should be a referendum of the Scottish people. I therefore urge him to withdraw the amendment.

[Lord Forsyth of Drumlean]

I am most grateful, but before my noble and learned friend sits down, could he tell me where in the Smith commission agreement there is a proposal that there should be a referendum of this kind?

[Lord Keen of Elie]

There is no express reference in the Smith commission agreement to a referendum. As my noble friend is aware, that provision was brought into the Bill in the belief that it would strengthen the political statement contained in Clause 1 with regard to the permanence of the Scottish Parliament.

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[Lord Keen of Elie]

I hesitate to rise again—

[Lord Forsyth of Drumlean]

I shall give way to my noble and learned friend in a moment. I wish to deal with the points that have been made and what my noble and learned friend Lord Mackay indicated the section said. I have huge respect for him. You always know that the Government are in difficulty when he has to come to their aid. He said that the relevant provision was already in the Bill. However, as the noble and learned Lord, Lord McCluskey, has pointed out, it says nothing of the sort. If this provision was already in the Scotland Act, my noble and learned friend could have said, “In order to make that clear, we will move that provision into this clause in the new Bill”. It is not necessary to duplicate it. The point is that the Scotland Act, as amended by this Bill—if it becomes an Act—will have in it sentences which, to say the least, are very provocative in terms of the continuing powers of sovereignty of this Parliament. Therefore, it is not unreasonable to think that any declaration about the sovereignty of this Parliament should be placed alongside the provision in that section of the Act.

I am most grateful to the noble and learned Lord, Lord McCluskey, because I thought that what my noble and learned friend said from the Dispatch Box was a little misleading, to say the least.

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[Lord Forsyth of Drumlean]

My noble friend puts it so succinctly. I wish that I had the ability to put it as concisely as he does. I absolutely agree. My noble and learned friend the Minister wanted to intervene. I will happily give way to him if he still wishes to make his point.

[Lord Keen of Elie]

I apologise to my noble friend Lord Forsyth. I must confess that I was unclear who was intervening on whom. I add to the point made by my noble and learned friend Lord Mackay of Clashfern. As I understand the point he was making—it was one that I had endeavoured to make before, but obviously had not made clearly—it is simply that Clause 1 is amending and introducing Section 28(8) of the Scotland Act 1998. It is necessary to read that in conjunction with Section 28(7) of the Scotland Act 1998, which refers to the ability of this Parliament to legislate in respect of Scotland on all matters. That is a matter to which the noble Lord, Lord McAvoy, alluded earlier as well. That is why the issue of sovereignty—the supremacy of this Parliament—is already contained in the relevant section of the Scotland Act, as it will be amended by this clause of the Bill.

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[Lord Keen of Elie]

I accept that correction from the noble and learned Lord. I believe that Section 63 would be amended under Clause 1. However, essentially, the point is that if you read through the whole of Section 28, subsection (7) of that section makes it absolutely clear that this Parliament remains supreme and sovereign in the matter of legislation for Scotland, whether it be reserved or devolved.

[Lord Forsyth of Drumlean]

My Lords, I think this may be a good moment for me to withdraw my amendment. However, before doing so, I gently point out to my noble and learned friend the very wise words of my noble friend the Earl of Lothian.

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[Lord Keen of Elie]

My Lords, first, there is the question of whether the heading is a matter for the parliamentary draftsmen rather than this House, and that is an issue, in my respectful submission. But let us turn to the substance of the—

[Lord Forsyth of Drumlean]

I did take advice on this. The amendment has been tabled so the amendment is in order, surely.

[Lord Keen of Elie]

I was going to continue by saying that, the amendment having been tabled, I would look to its substance, which is that the heading should be, “Competence of the Scottish Parliament”. I am reminded of Voltaire’s observation about the Holy Roman Empire, that it was,

“neither holy, nor Roman, nor an empire”.

Clause 2 is not about competence; nor is it about the Scottish Parliament. It restates in statutory terms the procedural convention of the United Kingdom Parliament with respect to its legislation for devolved matters. If we were to have a heading, “Competence of the Scottish Parliament” when in fact we are dealing with a matter that concerns the legislative competence of the United Kingdom Parliament, in my respectful submission, we would not only puzzle historians but confuse everyone else with regard to the content of the relevant clause.

I note what has been said about the present heading. I will reflect upon the observations made about that heading. But given that it is strictly a matter for the draftsmen, I go no further at this time. I hope that my noble friend will see fit to withdraw the amendment.

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[Lord Forsyth of Drumlean]

My Lords, I am very happy to withdraw it. I am grateful to my noble and learned friend for relieving me of the responsibility for adding to the statute book the words, “Competence of the Scottish Parliament”. But the point remains that it would be ridiculous to put the Sewel convention into statute and to retain a reference to the Sewel convention. If he is saying, as the noble Lord, Lord Purvis, has very helpfully indicated, that in the consolidated Bill the words “the Sewel convention” will disappear from statute and that the Sewel convention will cease to exist as such because it will now be incorporated in statute, I am absolutely delighted. I am happy to withdraw the amendment with that reassurance. Perhaps he could just give us that assurance and then there will be less for him to reflect on.

[Lord Keen of Elie]

The term “the Sewel convention” will remain in this Act but will not appear in the amended Scotland Act 1998, which is going to be the relevant amended legislation.

[Lord Forsyth of Drumlean]

Right, well, I beg leave to withdraw the amendment but give notice that we will return to this at a later stage in the Bill.

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[Lord Keen of Elie]

It merely means that in respect of matters that are English measures, there must be an element of English consent, but I do not accept that that derogates from the sovereignty of this Parliament. In due course, this Parliament might decide to legislate contrary to those provisions.

[Lord Forsyth of Drumlean]

While it is true that legislation still requires the consent of both Houses, EVEL gives a group of Members of the House of Commons who are English MPs the ability to veto a provision so that it proceeds no further. I think that is the point that the noble Lord is making.

[Lord Keen of Elie]

The term “veto”, if you wish to employ it, is there. It means that English measures require the consent of English Members, but it does not derogate from the sovereignty of this Parliament.

Clause 2 delivers paragraph 22 of the Smith agreement which sets out quite clearly that the Sewel convention will be put on a statutory footing. As with Clause 1 on permanence, the Smith commission agreement did not intend that the constitutional position should be changed, but that legislation should accurately reflect the position that already exists and has existed for 15 years.

I shall put this into context. Section 28(7) of the Scotland Act 1998 makes it perfectly clear that this Parliament can legislate in respect of Scotland in all matters, including devolved matters. It preserves the sovereignty of this Parliament.

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[Lord Keen of Elie]

I am obliged to his Grace. That does not, and that is why the convention is expressed as it is in Clause 2. There has been Devolution Guidance Note 10 with regard to how from time to time the convention may operate, but those are working arrangements which may alter from time to time and should not be enshrined in statute. That is not considered appropriate. That is why Clause 2 is in the terms in which it is found—because it reflects paragraph 22 of the Smith commission agreement.

My understanding of why the Sewel convention came to be expressed as it was is that Section 28(7) of the Scotland Act allows this sovereign Parliament to legislate, notwithstanding the terms of the 1998 Act, in respect of all matters pertaining to Scotland. There was, I apprehend, concern that if, for example, in a devolved area of competence, such as education or health, the Scottish Government got into serious difficulty, this Parliament might be open to the criticism that it had done nothing about it, even though it reserved to itself the power to legislate for Scotland on devolved matters in terms of Section 28(7). Therefore, the convention was expressed that normally this Parliament will not legislate for Scotland in devolved areas. That was expressed in those terms in order that this Parliament would not face criticism that it had done nothing as the health or education service in Scotland had deteriorated in the face of legislation from the devolved Parliament. That is the background to the introduction, as I understand it, of the Sewel convention. It works both ways.

[Lord Forsyth of Drumlean]

I am most grateful to my noble and learned friend. Does that mean that as the number of passes being achieved by school leavers since I left office back in 1997 has fallen by 20% compared with England, there is still the possibility that we might intervene in the hash that is being made of the education services by the present Government in Scotland? I assumed that the answer to that question would be absolutely not, so what is my noble and learned friend getting at?

[Lord Keen of Elie]

The point is that in terms of Section 28(7) we in this Parliament could, on the face of it, intervene in such a matter. That was the whole point of the convention: to make it clear that normally we would not do so. I may have misunderstood the intervention of my noble friend Lord Forsyth but, with respect, it seems to me that that is precisely why the Sewel convention was expressed in the terms in which we find it—so that if educational attainment in Scotland was failing we would not be faced with the criticism that the United Kingdom Parliament had done nothing about it because conventionally we would not normally intervene in a devolved matter, but we retain sovereignty and we have the right to do so. That is why the Sewel convention is expressed in the manner in which it is. The intention is not that Clause 2 should give rise to any justiciable issue. It is a political expression of the convention in statutory form. That is why the term “normally” appears within Clause 2. It makes it clear that this is not a justiciable issue. It is quite clear that in terms of the Smith commission agreement the Sewel convention will be expressed in statutory terms. It is there, but whether this Parliament would consider it appropriate to legislate for Scotland in a devolved area, which it can do pursuant to Section 28(7) of the Scotland Act 1998, is a political issue. It would not be for a court to decide what “normally” meant in that context. It would be a political issue. If it could be litigated in court and made justiciable, the question would be: what possible remedy could the court provide other than a political one? That is why it takes us back to the simple proposition that Clause 2, as set out, would not give rise to a justiciable issue. I give way to the noble and learned Lord, Lord Hope.

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[Lord Forsyth of Drumlean]

My Lords, before my noble friend withdraws his amendment, can I ask my noble and learned friend a question, as he would not accept an intervention? We are in Committee. I am not a lawyer, but earlier in our discussions I gave the example of where the Scottish Government have fallen down on education in the context of his remarks that we retain the right to pass legislation on education, health or other matters where we feel that they are falling down. I put that forward as a debating point, but in circumstances where a Government, perhaps led by me, decided to do this, it would be outrageous if it was a political decision to intervene on an education matter based on a belief that the Scottish Government —an elected Government—were not doing their job. Therefore, if I were on the other side, leading the Scottish Government, I would go straight to the courts and say, “This word ‘normally’ does not provide for the kind of intervention which is being provided”. I do not understand why my noble and learned friend says that the courts would not take a view of what “normally” meant, and in fact, in this case, if I were the judge I would say, “Actually, ‘normally’ means ‘exceptional’”, but they may take a different view. That is what is causing the concern among the lawyers. However, in common sense terms, to have a word such as “normally” and to argue that there would not be judicial challenge and that, if there was, the courts would just walk away from it, cannot be right. Can my noble and learned friend explain why I am wrong?

[Lord Keen of Elie]

I do not accept the proposition that my noble friend Lord Forsyth advances. The position is that this Parliament is sovereign; in terms of Section 28(7) of the 1998 Act it may legislate for Scotland in all and any matters, including devolved matters. The Sewel convention simply expresses the view that this Parliament will not normally do so. However, that does not fix some black-line test to be applied by the courts as to what is normal and abnormal; it will be a matter for Parliament going forward to decide if or when it would ever legislate for Scotland in respect of a devolved matter.

Scotland Bill

Debate between Lord Forsyth of Drumlean and Lord Keen of Elie

Tuesday 8th December 2015 Lords Chamber

[Lord Forsyth of Drumlean]

My Lords, I am conscious of the late hour but I would like to move Amendment 26. As we have already discussed during the course of the evening, there is no second Chamber in the Scottish Parliament. This House has an important constitutional role in preventing the House of Commons from extending its own life. Although the circumstances in which that might happen are hard to consider, it is an important check and balance.

This amendment seeks to make it quite clear that the Scottish Parliament cannot extend the interval between ordinary general elections and therefore prolong its own life under any circumstances. It would have been possible of course to make that subject to the agreement of the Westminster Parliament—the British Parliament—but I think that an absolute prohibition on extending the life is the most appropriate way to proceed. I beg to move.

[Lord Keen of Elie]

My Lords, I note the reasoning behind the amendment proposed by the noble Lord, Lord Forsyth. At present, Section 2 of the Scotland Act 1998 provides that general elections are to be held every four years. That power is to be devolved to the Scottish Parliament, but it will not be without limitation. The Scottish Parliament cannot pass legislation that is not compliant with the European Convention on Human Rights. Pursuant to Article 3 of the First Protocol to the Convention, there is a requirement for free and fair elections at reasonable intervals. The Smith commission agreement proposes that it should be for the Scottish Parliament to determine those reasonable intervals. We consider that that is appropriate and in accordance with the recommendations of the agreement, which the Bill seeks to implement. In these circumstances, I invite the noble Lord to withdraw his amendment.

[Lord Forsyth of Drumlean]

I have to say to my noble and learned friend that I do not think that that is a very satisfactory response. There was talk earlier in the evening about a one-party state and the dominance of the Parliament by one party. The precedent is long established that it is not possible for the other place to extend the life of a Parliament. Were it to try to do so, this House has an important role, which would prevent that from happening except in the most exceptional circumstances. Perhaps I have misunderstood what my noble and learned friend said, but he appeared to say that it is a matter for the Scottish Parliament to decide what the timing is between elections, and that cannot be right.

I am not suggesting for a moment that the Scottish Parliament might decide to do this under its current regime and Administration but I rather anticipated in putting down this amendment that my noble and learned friend would tell me that there was some other protection. Frankly, for this Government of all Governments to say that we should rely on the European Convention on Human Rights is ironic—to put it mildly. I hope that my noble friend will at least undertake to give this further consideration before we return to later stages of the Bill.

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[Lord Keen of Elie]

I first apologise to the noble Lord, Lord McAvoy. I had not appreciated that he intended to speak in the context of this proposed amendment and intervened too early. For that I apologise.

I will just add that the Smith commission agreement determined, on the basis of the consensus of five political parties, that elections to the Scottish Parliament should be devolved, and that the timing of those elections should be devolved to the Scottish Parliament. We must regard the Smith commission agreement as the product of a responsible negotiation by responsible political parties, and we must regard the Scottish Parliament as a responsible devolved body. We have no right to do otherwise, if I might respectfully say so. Given the existing backstop in terms of convention law pursuant to which, under Article 3 of Protocol 1, there is a requirement for free and fair elections at reasonable intervals, in my submission that appears an appropriate way forward.

On the matter of extending the life of the Parliament, as raised by my noble friend Lord Forsyth, an Order in Council under Section 30 in October 2015 allowed the Scottish Parliament to set the 2016 election at more than four years, extending it to five years. I am not aware of another occasion.

[Lord Forsyth of Drumlean]

On my noble and learned friend’s reference to the European convention, what constitutes a reasonable interval? Would five or six years constitute a reasonable interval?

[Lord Keen of Elie]

That would be a matter for the Scottish Parliament to determine, and is subject to review. If it gets that wrong, any legislation that it passes is not law, pursuant to Section 29 of the Scotland Act 1998.

[Lord Forsyth of Drumlean]

I beg leave to withdraw my amendment.

--- Later in debate ---

[Lord Forsyth of Drumlean]

My Lords, the hour is late, but I will say just a few words in respect of this amendment, which, basically, ensures that changes to the franchise, the constituencies and the number of MSPs—which under the provisions of the Bill require a two-thirds majority—have also to be approved at Westminster. I am not a great believer in opinion polls; as we discovered at the general election, they can be quite wrong. However, it is not inconceivable that two-thirds of the Scottish Parliament at the forthcoming elections could be composed of people who believe that Scotland would be better off independent. If that were to happen, and this Parliament, which is the United Kingdom Parliament, had created circumstances in which it was possible for fundamental changes to be made to the franchise, the constituencies and the number of MSPs, that would be a matter of very considerable concern. Personally, I do not like the idea of two-thirds supermajorities; it is an unfortunate intrusion into our constitutional affairs. It has knock-on implications for other devolved institutions and for Westminster, but of course the Smith commission has recommended it, so it would appear that we have to go along with it. The amendment would provide a belt-and-braces safeguard to ensure that key issues such as the franchise, the constituencies and the number of MSPs were approved at Westminster, having also had a two-thirds majority in the Scottish Parliament. I beg to move.

[Lord Keen of Elie]

My Lords, Clause 11 requires certain types of electoral legislation to be passed by a two-thirds majority, or supermajority, of the Scottish Parliament. Paragraph 27 of the Smith commission agreement states in terms that this is:

“To provide an adequate check on Scottish Parliament legislation”,

in these areas. An “adequate check” was the consensus of the five political parties which took part in the Smith commission and which arrived at the Smith Commission agreement.

The Government consider that the supermajority requirement provides an appropriate check on this type of Scottish Parliament legislation. Indeed, to approve this amendment would be to give with one hand and then take away with the other so far as the Scottish Parliament is concerned. It would not be in accordance with the spirit of the Smith commission agreement, let alone with the terms of paragraph 27. In these circumstances, I urge my noble friend to withdraw his amendment.

[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.