Health and Care Bill

Debate between Lord Forsyth of Drumlean and Lord Mackay of Clashfern

Lords Hansard - Part 3 & Committee stage
Wednesday 26th January 2022 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, your Lordships will know that I have known my noble friend Lord Forsyth as a noble friend and as a friend for many years. I know also that he is extremely good at putting forward a case—whether the case is well founded or not does not seem to matter too much.

We have a procedure in this House, which was established a long time ago, which says that government time is to be used for Bills presented by members of the Government. That is the rule generally. However, there is also a procedure for dealing with Private Members’ Bills. It has been used many times, and it has been used in connection with assisted dying during the present Session. We had a full day of discussion of the merits of that matter—exactly the merits of this matter; the arguments for and against are not for tonight. We are not here to argue for that amount of time; it took a whole day with quite brief statements being made to express different views about this matter.

The Government are a member of those procedures; they are a party to the procedures that deal with Private Members’ Bills. The Government are there so that they can be asked in the course of the proceedings to help. From time to time, they decide that what is in issue is so important generally that it should be given government time. That is the procedure that has been laid down, and as far as I know in this case so far, the Government have not been asked to give time. They said at the end of the debate just two or three weeks ago that they were neutral and waiting for a decision from Parliament. It is Parliament that takes a decision; a Private Member’s Bill is a proceeding in Parliament. It is not just Parliament dealing with government Bills—Parliament deals with Private Members’ Bills also, as well as other kinds of Bills, such as hybrid Bills.

However, this Bill was in Parliament in the Private Member’s Bill system, which is the system that exists just now. If my noble friend, with his skill, wants to suggest a different sort of procedure for Members’ Bills, he can go about it, but to try to break out of the present system a new system for this sort of Private Member’s Bill will produce a complete wreck of the present procedure when no new procedure is being introduced. The Government have from time to time given time for a Bill to be taken forward, which has reached the statute book. That is the procedure which is available now, and it is the proper procedure to ask for.

This procedure is about trying to put an amendment into a health Bill, which has no mention of this, to amend the law on assisted suicide. That is the essence of this—the heading in the amendment is “Assisted dying”—which would mean an unnecessary amendment to the law relating to assisted suicide in his country. There is no question about that. There is nothing about that in the Long Title of the Bill. This Bill is not the proper machinery for raising this matter. It is not my responsibility or an option to deal with the merits of the case. I made a speech in the debate two or three weeks ago towards the end. I think my noble friend was not able to be present, if I remember rightly.

[Lord Forsyth of Drumlean (Con)]

I was able to be there, but as we got only three minutes to debate it, I did not think it was possible to deal with the very complex issues in that time. My noble and learned friend is making the case against the amendment that it requires the Government to produce a Bill. It does not. It requires them to produce a draft Bill. If my amendment had said that the Government should bring forward their own Bill, then my noble and learned friend would be quite right, but I would not have been able to table such an amendment because it would have been out of order for the reasons he has given.

[Lord Mackay of Clashfern (Con)]

Exactly. A draft Bill is preliminary to a Bill; it is not there for the purpose of not being considered. A draft Bill is for making a proposal the subject of an ordinary parliamentary Bill, which has the same authority as a government Bill. All Bills are produced in draft; some are considered in draft in pre-legislative scrutiny. A Bill has to be in draft at some stage, but the object of producing this Bill is not that it should remain in draft but that it should be considered. The amendment does not say how long it should be allowed, but that is another matter. The point is that there is already a procedure by which government help can be obtained if it is asked for in the proper situation of Private Members’ Bills.

I think it is wrong in principle to consider the merits of this matter tonight. Some remarks have been made about that, and I refrain from making any remarks about it because I do not think that that is what is needed here. I submit that it is a view well founded on the rules that Private Members’ Bills are drafted by the private Member, are submitted and then are subject to procedure in the Private Members’ Bills system, including if the Government think it is right that they give additional time.

It is also questionable whether this Motion is in order, since the matter has already been discussed in this Session. There is a question about whether having have a separate procedure raising the issue in much the same form as it was considered some weeks ago is in proper order.

But my main point is about the procedure for dealing with Private Members’ Bills in our Parliament—we are not in the Scottish Parliament at the moment, and there may be some question as to whether my noble friend would like to be—and we have to apply the rules in this Parliament. In my submission, applying the rules of this Parliament, if we want help from the Government, it is to be asked for in the Private Members’ Bill procedures and the Government may, for all I know, be prepared to do something along the lines that my noble friend has suggested.

European Union (Withdrawal) (No. 6) Bill

Debate between Lord Forsyth of Drumlean and Lord Mackay of Clashfern

Committee: 1st sitting (Hansard): House of Lords
Friday 6th September 2019 Lords Chamber

[Lord Mackay of Clashfern]

I would like to say something about that. This is the text of a letter that the Prime Minister is required to send under the Bill. If there had been time, I would have proposed that the letter included a reason. After all, it is to the European Union that the reason is to be expressed. As I understand it, the European Union says that, if it is asked to grant an extension, it wishes to have a reason. In the ordinary course of events it would be right to have the reason in the letter. Unfortunately, time prevents that happening. That would have been better, but I am sure the initiative will be sufficient for the reason to be communicated to the European Union, even though it is not stipulated in the letter. The terms of the Bill say that this is the letter, so there may be a risk in adding to it—but that may be a risk that should properly be taken.

[Lord Forsyth of Drumlean]

If the noble and learned Lord is arguing that the letter has to have a reason in it, does that not mean it is conditional?

[Lord Mackay of Clashfern]

The condition is obvious: to give the reason why you are applying for an extension. As the noble Lord, Lord Kerr, said, the important point is about time, and the EU wants to know how this time is to be taken up. That seems to me a perfectly sensible idea.

--- Later in debate ---

[Lord Forsyth of Drumlean]

The noble and learned Lord is far smarter at this than I am, but the noble Lord, Lord Kerr, argued that it was not possible for any conditions to be applied. So why is it necessary for us to give a reason?

[Lord Mackay of Clashfern]

It seems obvious to me that if you are asked to make an extension, you do not do it just for the sake of doing it; you have some reason for it. I do not think that the European Union, far as it may be from common sense in many respects, is so daft that it provides for an extension to be applied for with no reason on earth why it should be granted. It seems common sense to me that the reason is required and, of course, the Bill contains the reason but has just happened not to put it in the letter. I suspect that what happened may have been a copying of the previous Bill, the Cooper Bill, which did not have the reason in at all, as I pointed out at the time. This Bill is much better and includes the reason. Unfortunately, it is not so good that it has it in the letter as well but, as I say, I do not think that matters. At least, I do not think that ultimately it will matter.

As for my noble and learned friend’s question about the reason, it is quite important that the reason given in the Bill is the reason that has to be given in support of the application for the extension. I would certainly have suggested that it should go in the letter if there had been time, but I fully appreciate that there is not time and therefore we must leave it as it is.

Business of the House

Debate between Lord Forsyth of Drumlean and Lord Mackay of Clashfern

Thursday 4th April 2019 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I understand that the European Union has made it clear that, for an extension to be granted, it must know the reason for it. I would have been much happier with a decision in the House of Commons—not necessarily through this sort of procedure—that told the Prime Minister, by agreement, what it wanted to give as the reason. This is a fundamental part of the Bill. It is asking the Prime Minister to go and ask for an extension without specifying the reason to be put forward. Surely if the House of Commons requires the Prime Minister to do that, the minimum it should do is give an instruction as to the basis on which it wants that. However, for reasons I do not completely understand, we are in this position.

It is worth remembering that the European Union said at the beginning of these negotiations, described so eloquently by the noble Lord, Lord Owen, that it was determined to agree the withdrawal agreement before any substantial discussion about the future. Therefore, it is now urgent to agree the withdrawal agreement. The Prime Minister’s agreement with the European Union has come before the House of Commons a number of times, yet, as far as I know, no amendment to it has been proposed. Surely if we are dealing with the withdrawal agreement, it is important that what is wrong with the Prime Minister’s one, in the eyes of the House of Commons, is made clear in an amendment to it. Of course, the European Union says that it will not agree to such an amendment, but if the option is a no-deal departure instead of an agreed departure, the European Union might well prefer a revised agreement. I do not know whether that is the case—needless to say, I am not party to these negotiations. I do not intend to be here all night either.

I am trying to understand what is going on. I believe that we need to concentrate on the withdrawal agreement. Nearly all the discussions in the House of Commons, so far as I have been able to follow them—they are quite detailed—have been about the future relationship. One problem is the provision in the present agreement about the future arrangement in the shape of the Irish backstop. It seems to me that that should not strictly be part of the withdrawal agreement, but part of the arrangements for the future. That is a possible amendment to the Prime Minister’s deal that might be of some interest.

[Lord Forsyth of Drumlean]

I am most grateful to my noble and learned friend. The House of Commons passed a Motion saying that the agreement should be amended to replace the backstop. That is what the House of Commons decided but, unfortunately, the Government do not appear to have asked the European Union to do that.

[Lord Mackay of Clashfern]

I understand that. To ask to amend the agreement is one thing, but to tell them the specific alteration is another. I am very familiar with that particular Motion, which passed. The point that I am trying to make is that if you want to change a document, you should propose the amendment you have in mind. The amendment tabled—very wisely, if we wanted to get some agreement—did not do that. All it said was that we must get alternative arrangements. What alternative arrangements are likely to be suitable? This point seems very important.

European Union (Withdrawal) Bill

Debate between Lord Forsyth of Drumlean and Lord Mackay of Clashfern

Committee: 9th sitting (Hansard - continued): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, my Amendment 318A is in this group. As your Lordships know, I am a lawyer, but I have already got limited support from the noble Lord, Lord Wigley, who has repeatedly explained that he does not suffer from this disadvantage—I will do my best to take him along with me.

As I have indicated, I was first introduced to this matter in a discussion with a very distinguished SNP Member in the other place, when we were travelling together from the north. I mentioned to him that I had had no briefing of any sort from the Scottish Government. The next day I got a message from the Scottish Government to say that the Lord Advocate and Mr Russell, the Minister, were very willing to speak to me. I was able to speak to the Lord Advocate that afternoon and to Mr Russell in the early afternoon that Wednesday. I was very emphatically assured by Mr Russell that the Scottish Government were keen to reach an agreement. I am quite satisfied that there is no indication in the attitude of the Scottish Government that this is an attempt to further their ultimate political aim, and that they are seeking to solve this matter in a way that accords with the dignity of the Scottish Government. I said that I did not want to do or say anything that would impede agreement, and I now hope to show how agreement can be reached.

Before I explain the amendment, I will say a word or two about the law that lies behind it—I will take Scotland as an example, as the other Administrations have similar provisions. The devolution settlement in the Scotland Act is subject to EU law. That considerably restricts what the Scottish Administration can do at present, but when Brexit comes along that limitation will disappear. Included in those limitations are the legislative powers of Brussels to legislate in the United Kingdom. From one point of view, it is wise to analyse these powers in this way: a power that can be made effective within a single area of legislative competence in the United Kingdom should go straight to that level—in other words, to the devolved Administration. That is, if the power does not require more than one of our legislative areas in order to be effective, it should go straight to the devolved Administration.

But there are EU powers which can be effective only when they cover more than one of our legislative areas. The one that is of most relevance in this connection is that which provides for the single market. As your Lordships know, and as the Scottish Government certainly know, the single market is quite an important feature of the present negotiations. Part of that single market is the single market in the United Kingdom. It is 100% obvious that, if you are going to legislate for the single market in the United Kingdom, it is legislation that affects all of the countries within the United Kingdom and the legislatures that support them. Therefore, it is absolutely plain that the ultimate power to settle the single market provisions lies with the United Kingdom Parliament.

But—and this is an important consideration—it is extremely wise to proceed by agreement where it is at all possible. A good deal of agreement has already been reached. As I said, I was assured by Mr Russell when I first spoke to him—and again when he later saw my amendment, which he welcomed subject to qualifications such as the noble Lord, Lord Wigley, will propose—that the Scottish Government are very anxious to reach agreement.

[Lord Forsyth of Drumlean]

I am very interested in this concept, which my noble and learned friend is putting forward, that powers which affect the single market that is the United Kingdom should be taken at a United Kingdom level. Does he see that operating both ways? For example, the Scottish Parliament has the power to set unit pricing for alcohol, which of course affects the single market that is the United Kingdom. Does the proposition that powers which affect the single market should be taken at the UK level mean that, as well as the powers which will come from the European Union when we leave it, powers might also be returned to Westminster from the Scottish Parliament? He might find that Mr Russell is less enthusiastic about that.

[Lord Mackay of Clashfern]

I am not suggesting that for a minute. I am suggesting that what is required is a single market which is the necessary concomitant of having cross-border trade. I do not think that the price of alcohol in Scotland would necessarily affect that. It might be wise for me, if I wanted to buy alcohol, to do it when I was here rather than in Scotland. I may say at once that I am not particularly keen to do that either. That is not an example of the need for there to be no obstacle at the border, because if I have to pay for the whisky in Scotland, I can take it with me, subject to not coming on an aeroplane, I suppose. It is a matter of what is required.

It is realised by various people who were at the meeting of the Joint Ministerial Committee that framework agreements will be required in certain areas. That is because, for the single market in the UK to be effective, there must be agreement across the legislative areas. It follows, as night follows day, that the legislative vehicle for dealing with a market which is across the whole of the UK is a vehicle which has jurisdiction over the whole of the UK. It cannot be otherwise. That seems to be common sense and you do not need to be a lawyer to think that.

My next point is the “but” I was coming to before I was helped by my noble friend. I stress that it is highly desirable, when you are seeking to get a single market, to get the agreement of the components. They have different interests, but there is a very strong pressure to secure a single market. I am sure the Scottish traders do not wish to have something at Berwick-upon-Tweed which requires them to pay out money to English customs. It is absolutely clear that there is a very good pressure to reach agreement. As I say, I am assured by the White Paper that the Welsh Government put forward some considerable time ago, which was referred to earlier. I say in passing that that paper addresses itself to wider constitutional issues about future government in the United Kingdom and how it is not working very well and what-not. But I need something that will work now for the very limited purpose of getting the single market arrangements secure before Brexit comes into effect.

I have suggested in my amendment that there should be set up a group which consists of representatives of all four countries. I think it is wise to specify who they are. I have also specified, to try to reach agreement, that the chairman of the group should be decided on by the group. The Lord Advocate mentioned to me that one of the features of the present committee is that it is always a UK Minister who presides. There will be a certain amount of interest in the skill of the chairman in reaching agreement. It is often quite an important position—I have not been chairman of many committees that have not reached agreement—and it is an important aspect of the matter. I have therefore suggested that.

Of course, the details of this are very much matters for your Lordships to consider, but that is the ultimate thing: that the group should look at all these questions. If, as I am assured, they are very keen to reach agreement, I have no doubt whatever that there is a very high prospect that they will reach agreement—I emphasise that—when you consider that new rules must come into operation at the point of Brexit or the end of the implementation period, whichever is the later, and that if there was failure to reach agreement it would require the action of the United Kingdom Parliament. I am prepared to limit the amount of time for that to three months to emphasise my confidence that agreement will be reached and that therefore a formal legislative enactment in the United Kingdom with full consent from all four members of the committee would be the result.

This is a simple way of dealing with the matter, which is dealt with in a rather complicated way by the government amendment. The government amendment appears to inject powers into areas which may be devolved in fact. Mine makes it absolutely clear that the devolved powers are to be immediately made available to the Governments of the devolved legislatures; it is only the single market power that I consider needs to be reserved.

My very good supporter, the noble Lord, Lord Wigley, has suggested in his amendment that there should be some extraordinary—I do not mean that in a pejorative sense—tribunal to decide when there is disagreement. I certainly hope that there will not be disagreement, but I have provided that if there is disagreement the group itself must specify what that disagreement is, to make the issue for the United Kingdom Parliament as small and definite as possible. In my analysis, the single market is within the legislative competence of the UK Parliament. All the four countries are represented there. I remember that the Scottish party that got many seats in the 2015 election said that one of the purposes was to provide a strong voice for Scotland in the Parliament of the United Kingdom. I have no doubt there is a pretty strong voice for that purpose. Having all four countries represented is as good as any kind of remarkable thing with Speakers. I am not sure if my noble supporter has asked the Speakers whether they want to take this on, but I think that is not in their competence. That is a job for the legislative assembly of the United Kingdom which is set up under our constitution and which I believe would reach a very good agreement on this point, if it had to. In the meantime, I sincerely hope it will not be necessary for it to do anything except legislate with a form agreed by the four constituents.

--- Later in debate ---

[Lord Forsyth of Drumlean]

That is an open admission of it. As I look at the amendment, I think, “Who will speak for England?”.

[Lord Mackay of Clashfern]

It tells you.

Scotland Bill

Debate between Lord Forsyth of Drumlean and Lord Mackay of Clashfern

Wednesday 24th February 2016 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, some time ago I indicated to the noble and learned Lord, Lord McCluskey, that I support his approach to this clause. It is vitally important to consider the question of whether it is intended that the clause, whatever its terms, should be subject to decision by a court of law. The situation so far as Wales is concerned—and I think it would be true for the Scottish Parliament—is that in some cases its powers are subject to judicial scrutiny. The Parliament of the United Kingdom is not of that kind. It has never had its principal functions subject to judicial scrutiny. If a term is put into this Bill, which will then become an Act, that determines when the United Kingdom Parliament can act, that will be a complete innovation. It does not matter what the terms are, however precise and well drafted, I cannot see how that could be excluded unless provision is made in the Bill which states that the decision on this point is to be a matter for the United Kingdom Parliament. This I regard as an extremely serious point which the Government have to decide.

It is not a question of agreeing with the Scottish nationalists. The amendment tabled by the noble and learned Lord, Lord Hope, seems to be in accordance with what they would like to see; that is, the furthest stretch of the convention, which is called the Sewel convention for various reasons, amounting to what is really a complete ban. That is what I think the amendment of the noble and learned Lord, Lord Hope, does, but that does not cut out by itself the idea that a court of law could determine whether the United Kingdom Parliament had acted lawfully in making an Act which could affect Scotland. That is why I strongly support Amendment 12 tabled by the noble and learned Lord, Lord McCluskey. That concept must be put into this clause at some point in order that the matter be not justiciable.

[Lord Forsyth of Drumlean]

Does my noble and learned friend think that Amendment 7, which he says stretches the convention as far it goes, sets out what has actually become the convention now or does he think it has gone beyond that?

[Lord Mackay of Clashfern]

What has become the convention now seems to be government papers. As far as I am concerned, I had not heard of them until this discussion. It is certainly not a convention of the Houses of Parliament in the sense that they are narrated in that context. But I am not so concerned about the precise terms in which this finishes up. What I am very concerned about is that it should not be subject to a judicial decision. The Parliament of the United Kingdom has never been subject, certainly in the present situation, to the courts of law and I think that it would be a tremendous mistake to make provision in a Bill which could only have that effect.

Scotland Bill

Debate between Lord Forsyth of Drumlean and Lord Mackay of Clashfern

Tuesday 8th December 2015 Lords Chamber

[Lord Forsyth of Drumlean]

Perhaps I can help my noble and learned friend. Throughout this afternoon, he has argued that it is essential—for political reasons—to put in Clause 1 words that say the Scottish Parliament is permanent. He has argued that we should understand that no Parliament can bind another and that the sovereignty of the UK Parliament remains. All my amendment seeks to do is to add a few words to the clause which give the reassurance that he has been giving to the Committee. I am not a lawyer, but after Pepper v Hart and all that, what is said at the Dispatch Box does actually matter. For him to say that he could not add it to the clause because it would be redundant or that you can find, buried in the previous Scotland Act—

[Lord Mackay of Clashfern]

It has to be remembered that this Bill is amending the Scotland Act. This provision, which my noble friend Lord Forsyth of Drumlean wants to put in, happens to be there already in Section 28(7). That is my objection. Repetition may be a good idea, for all I know, but it is there already. The point made by the noble and learned Lord, Lord McCluskey, about unnecessary legislation might come into this. There does not seem to be much need for it, especially when Clause 1 refers to the other provisions of the Scotland Act, into which this is being embedded.

European Union (Referendum) Bill

Debate between Lord Forsyth of Drumlean and Lord Mackay of Clashfern

Friday 24th January 2014 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, I do not know whether that is an intervention. The trouble with that is that this is not a government Bill. We are in a situation of coalition and the other party in the coalition does not want this, so there is no question of the Government being able to arrange matters in the House of Commons. I defer, of course, to the noble Baroness’s knowledge of the procedure.

[Lord Forsyth of Drumlean]

Before my noble and learned friend sits down, it is very important that we clear this up. Of course, the noble Baroness, Lady Boothroyd, is absolutely right. The problem here is that the Government cannot do that because the Liberals are refusing to allow government time. So it is the case that if the Bill is amended, it will be lost.

Energy Bill

Debate between Lord Forsyth of Drumlean and Lord Mackay of Clashfern

Wednesday 6th November 2013 Lords Chamber

[Lord Forsyth of Drumlean]

Before my noble and learned friend sits down, will he comment on the conduct of the Scottish Government, who say that they will continue as if this judgment had not been made because they do not agree with it?

[Lord Mackay of Clashfern]

I have made known my view about what the judgment says and my noble friend Lord Forsyth has made his view known about how the Scottish Government approach these matters. I do not particularly wish to comment on what they have done so far as I do not know fully enough the facts about these other applications. However, certainly in so far as the application from Shetland is concerned, there is no doubt that the decision of the Court of Session until reversed will set that consent aside. There is no question at all of going ahead to erect the station in Shetland at present. That would be completely without sanction, because the judge has set aside the consent as being unlawful. The rule of law will certainly be applied in Shetland, so far as that is concerned; the noble Lord has said whether the Shetland law applies more generally, and I will leave it with what he said.

Arrangement of Business

Debate between Lord Forsyth of Drumlean and Lord Mackay of Clashfern

Thursday 26th April 2012 Lords Chamber

[Lord Forsyth of Drumlean]

My Lords, perhaps I am being naive again but I thought that the whole point of having this debate on Monday was so that we could make the case for a Bill not being included in the Queen’s Speech. My noble friend argues that there will be two more days to debate the Queen’s Speech—by then it will be too late. I thought that the whole purpose of the debate was for the Government to be informed. I have not put my name down to speak because, frankly, I did not fancy hanging around until 2 am. However, if my noble friend were to agree to the additional time, I would be happy to add my thoughts, which I am sure would be very helpful to the Government.

[Lord Mackay of Clashfern]

To say that two more days are available in the Queen’s Speech debate to discuss this question suggests that the Leader of the House thinks that it will be relevant to the Queen’s Speech so to do. I certainly understood that the Queen’s Speech was supposed to be a matter of mystery until it was delivered. It is not therefore reasonable to assume at this stage in our parliamentary progress that the future of this House would be relevant to a debate on the Queen’s Speech, so I find that argument rather difficult. Certainly, for my part, I am not going to take part in the debate on Monday, nor would I do so if it were to be extended to Tuesday. I have various views about it, but I had better not say. The suggestion that the debate should continue until 2 am or 3 am strikes me as absolutely absurd.