Scotland Bill

Debate between Lord Forsyth of Drumlean and Lord Norton of Louth

Wednesday 24th February 2016 Lords Chamber

[Lord Forsyth of Drumlean]

Indeed, and there is another voice in support of the amendment tabled in the name of my noble friend Lord Cormack and supported by the noble and learned Lord, Lord McCluskey. It is incomprehensible why the word “normally” should be included.

The noble Lord, Lord Stephen, is quite right. What was the Sewel convention has changed into something else. It is a veto, and that is almost certainly what the Smith commission was thinking of. The noble Lord is absolutely right about that. Amendment 7, moved by the noble and learned Lord, Lord Hope, would in effect give legislative effect to what has come to be the practice. Putting into statute what Lord Sewel, back in 1998, said by way of explanation of how the relationship between the two Parliaments would operate is a complete nonsense—a point made over and over again in Committee.

I am hoping to cast a fly here and catch those on the Opposition Front Bench. The great mantra that we have had from them over and over again is that we absolutely have to be true to the Smith commission and make sure that its recommendations are implemented. Amendment 7 would provide for that. So are the Opposition Front Bench going to speak against an amendment whose effect would be to deliver the Smith commission proposals—something that the noble Lord, Lord McAvoy, said he would never do? I look forward to hearing the response from that Bench. It is clear that Amendment 7 would deliver what the Smith commission is proposing. I do not like it because I would prefer this Parliament to be free to pass legislation, consulting the Scottish Parliament in a courteous way but not giving it a veto, which is what I think the Smith commission was seeking to do. I am utterly opposed to leaving in the Bill the word “normally”, which would almost certainly result in the courts being dragged into a dispute between this Parliament and the Scottish Parliament, and that would be thoroughly undesirable.

For all those reasons, I think I am inclined not to press my Amendment 11 when the time comes, but to switch sides and support the noble and learned Lord, Lord Hope of Craighead, and my noble friend Lord Norton of Louth—who is undoubtedly constitutionally correct—and to support my noble friend Lord Cormack in taking out this word “normally”. There are two words that I would like to take out of the Bill: one is “normally”, and the other is “Sewel”. I tried to do that in Committee and actually got past the clerks an amendment which deleted “Sewel”; but unfortunately, due to the intervention of noble Lords opposite, who argued that it was not really terribly good to alter the name of a clause in that way, I was not able to press it again at this stage in the consideration of the Bill. I think it was the noble Lord, Lord Stephen, who was responsible for that.

I say to my noble friend that the great advantage of accepting Amendment 7 is that we would get rid of “normally” and we would get rid of “Sewel”; and we would have something that is absolutely clear in statute and delivers the Smith commission proposals—which, we keep being told, is what this Bill is all about.

[Lord Norton of Louth]

My Lords, I have added my name to Amendment 7 in the name of the noble and learned Lord, Lord Hope of Craighead, as has already been mentioned.

As has been stressed, this clause is supposed to embody the Sewel convention. Let us be clear as to what a convention is. We are talking about a convention of the constitution. A convention is a non-legal rule of behaviour that is considered binding by those who are covered by it and is justified by being, as David Feldman put it, “right behaviour”. There is a moral imperative, and compliance with the rule is invariable. Invariable practice, lacking a moral base, does not establish a convention. Usual practice, as distinct from invariable practice, does not establish a convention.

Conventions develop: a precedent is set and followed and a practice is established from which there is no deviation. In addressing this House in 1998, Lord Sewel recognised that a convention is something that developed. However, his use of the word “normally” meant that what he had in mind was not and could not be a convention. What has developed is a practice, and one that has extended beyond what he said.

Clause 2, as it stands, makes no sense. Conventions may be transposed into statute, but once in statute the convention has gone; it has been superseded by statute. We saw a recent example with the convention governing votes of confidence in the House of Commons. That has been superseded by Section 2 of the Fixed-term Parliaments Act. There is no longer a convention. What we have with Clause 2 is the inclusion of the words of Lord Sewel in a form that does not constitute a convention but with the Government believing that it is a convention and seeking to maintain it as a convention even though enshrined in statute. I was going to say that I hope that that makes sense, but of course it does not make sense. This clause is nonsense.

The Government cannot justify it on the grounds that it implements a recommendation of the Smith commission, because it does not—that point has already been stressed. The Smith commission recommended putting the Sewel convention on a statutory basis. There is a Sewel convention, as we have heard, but it is different from what Lord Sewel enunciated in 1998. Putting the words of Lord Sewel on the face of the Bill does not put the Sewel convention in statute. Indeed, the clause as it stands narrows and undermines the convention. It narrows it by omitting a practice that has developed and been pursued on a continuous basis, and it undermines it by removing the essential feature that established it as a convention. A convention, by definition, establishes the rule of behaviour that is taken as binding by those who engage in that behaviour. Clause 2 permits, in effect, the Government to say, “We are bound by, this except when we decide not to be bound by this”. What is in the clause is not a convention: it is a declaration of good behaviour.

Scotland Bill

Debate between Lord Forsyth of Drumlean and Lord Norton of Louth

Monday 22nd February 2016 Lords Chamber

[Lord Forsyth of Drumlean]

My Lords, when I first saw Clause 68 I was outraged, and my instinct was to take it out entirely. Then I saw the rather more finessed approach of the noble and learned Lord, Lord Hope, so I quickly added my name to his amendments. I very much support those amendments, and the approach taken by the noble and learned Lord, Lord Wallace of Tankerness.

I was outraged when I saw the clause because—together with the fact that the Government propose to take this Bill, as it has already been taken, through the House of Commons, and then through the House of Lords, without the fiscal framework being in place—it gives the impression of a Government who see Parliament as a rather irritating thing that has to be got through, rather than as the process by which legislation is carefully considered.

It is 20 years since I was in government, but in my day this would never have got past the parliamentary draftsmen. Even if it had, it would have been knocked on the head by L Committee. It is very worrying that a Bill can get to this stage, having gone through the House of Commons, with such completely open provisions. I was not making the point in jest: I genuinely think that with these powers it would have been possible to put the entire contents of the Bill into statutory instruments. That would have been jolly convenient for the Government—would it not?—because they would have been able to say, “We’re simply implementing the Smith commission report. There’s a convention that your Lordships don’t amend or vote against regulations”, and that would have been that. It would have been a very retrograde step indeed—so I hope that my noble friend will simply take the clause out entirely, as he did with a previous clause this evening. If not that, I certainly accept the amendments tabled by the noble and learned Lord, Lord Hope, and possibly make a concession because of the points made to the Delegated Powers Committee.

I will certainly not press removing the clause altogether at a later stage, but the Government need to respond to this and recognise the very considerable feeling in the House, which was illustrated by the debate that we had on the Strathclyde commission proposals. I thought that the Government said that they were going to mend their ways. Certainly, the Strathclyde commission report was balanced in that it suggested that that needed to be done. This would be a great opportunity for the Government to show good will towards the Strathclyde recommendations. Then they might be able to persuade some of us who have doubts about them that it would be sensible to reach a compromise.

[Lord Norton of Louth (Con)]

My Lords, I want to reinforce points that have already been made. It is important to stress that we should not let the late hour mask the importance of the amendments before us. As the noble and learned Lord, Lord Wallace of Tankerness, stressed, this clause has important constitutional significance. It raises fundamental issues and I concur with everything that was said by the noble and learned Lord, Lord Hope of Craighead, and reinforced by the noble and learned Lord, Lord Wallace of Tankerness. He referred to the report by the Constitution Committee on the Scotland Bill and I reiterate the comments made by that committee, on which I served, in respect of this clause.

In its report, the committee drew attention to the clause, saying:

“As has become a trend over the years, the Government has put forward a Henry VIII clause which gives it powers well beyond those which are necessary to achieve this end”—

that is, the end of the Bill. It goes on to say that,

“we once again must express our concern at a Government proposal that would provide Ministers with too much power at the expense of Parliament”.

Here we have a Bill that is giving the Government greater powers than is the norm in these types of clauses, as has already been stressed, without any justification for so doing.

It is amazing that we have got to this stage without the Government providing a clear justification for what is before us. We must take our role seriously in terms of acting as a constitutional safeguard to make sure that the Government do not use these measures to take powers that have not been justified by them and which would put us in a difficult situation in any future measures. The Government must take this very seriously and I hope that the Minister will give some commitment that between now and Report changes will be introduced by the Government themselves.

Scotland Bill

Debate between Lord Forsyth of Drumlean and Lord Norton of Louth

Tuesday 8th December 2015 Lords Chamber

[Lord Forsyth of Drumlean]

I was not taking exception to anything. I was simply suggesting to the Government that they got it right when they added the words, “it is recognised” to the original Bill, and they got it wrong when they took them out. Fortunately I am not a lawyer, but as a layman, removing the words “it is recognised” indicates that no other party is involved in considering the status of the Parliament.

[Lord Norton of Louth]

Would my noble friend not wish to call in aid Clause 2 where the Government wish to insert the Sewel convention with the words, “But it is recognised”?

[Lord Forsyth of Drumlean]

That is the same point, and I am trying to get on to Clause 2. I have to say to my noble and learned friend that as ever, and always, I am trying to be helpful to the Government, I thought that perhaps on reflection they might wish to add those words. I hope that the Minister will consider the debate we have had on these matters and perhaps come back with his own wording. The clause, as it stands, is completely unsatisfactory, but I beg leave to withdraw my amendment and give notice that we may return to this at a later stage in the proceedings of the Bill.

--- Later in debate ---

[Lord Forsyth of Drumlean]

My Lords, surely the Government can accept this amendment. The Sewel convention, as its name suggests, was a convention established by Lord Sewel during the passage of the first Scotland Bill. The Government are proposing in Clause 2 of the Bill to incorporate the Sewel convention into statute, so that it will have a statutory effect. Therefore, it will cease to be a convention; it will be part of statute. My amendment seeks to remove the words “The Sewel convention” from the Bill, as the Bill seeks to put the Sewel convention on a statutory basis. Henceforth, the Sewel convention will be a section of the consolidated Bill. Surely my noble and learned friend the Minister has been given some discretion in his brief to accept this amendment. I beg to move.

[Lord Norton of Louth]

My Lords, I signed this amendment, and support it. I want to reinforce what my noble friend Lord Forsyth has said. In a way, this will lead into a much fuller discussion on the next set of amendments looking at the content of the clause. But my noble friend is absolutely right about the heading. Either you have a convention or you have a statutory provision. You cannot have a convention in statute, although that is what the Government are seeking to do. This would remove doubt on that point and I concur completely with what my noble friend has said. We will be coming back to the actual substance in more detail, but I think this is a necessary change to the clause.

Queen’s Speech

Debate between Lord Forsyth of Drumlean and Lord Norton of Louth

Thursday 10th May 2012 Lords Chamber

[Lord Norton of Louth]

My Lords, in the time available I wish to focus on constitutional affairs from two perspectives—those of process and substance.

I had the honour to be the first chairman of the Constitution Committee of your Lordships’ House. One of our first reports was on the process of constitutional change. That was in 2001. A decade on, the committee returned to the subject. Its report was published last July. In 2001, we expressed concern at the lack of a culture within government of dealing with constitutional issues. There was no coherence in the process by which constitutional issues were considered. The committee in its report last year—and I was again a member—noted:

“The evidence we have received points to this lack of coherence remaining a serious problem”.

Not only was there no coherence to government policy in constitutional affairs but there was no coherence to the process by which the policy was generated within government. As the report recorded:

“It is of particular concern when this inconsistency appears to derive more from political considerations than any sense of constitutional principle”.

It went on to note:

“There is a risk that changes to the constitution may be rushed through without any pause for thought as to their desirability or otherwise”.

The Government’s response to the report failed to assuage the committee’s concerns but rather reinforced them. The response demonstrated a failure to appreciate the qualitatively distinct nature of constitutional change. There was no grasp of the fact that the constitution stands apart from other legislative change. The constitution is not the creature of the Government to be changed at will on the basis of political whim. The Government are the creature of the constitution rather than the other way round. We cannot afford to follow the Government in the way in which they deal with constitutional matters. Parliament has to adopt procedures that ensure that attempts to change the constitution are subject to scrutiny of a different order from that of ordinary legislation and, indeed, subject to a much higher order of justification. There needs to be a compelling case for change and not simply an arguable case. On such matters one cannot afford simply to give the Government the benefit of the doubt.

As Sir Jeffrey Jowell told the Constitution Committee:

“The time has come to simply take a little more care with constitutional reform”.

We need, in particular, to be able to do what the Government are not doing: address how a change to one part affects other parts of the constitution. The academic and former Liberal Democrat MP David Howarth told the Committee that,

“we have no structural thinking going on about the interaction between the composition of the Houses … the electoral systems, the courts and so on. We have no thinking about how all this fits together into a system of government”.

We need to look holistically at our constitution and to understand the extent to which change does not take place in a vacuum. If you make major change to one part of our constitutional framework it has implications for the rest of that framework.

That brings me to the Government’s proposals for reform of this House. We are told that a Bill will be brought forward. I served on the Joint Committee examining the Government’s draft Bill and I have made the point before that we were limited in our examination. We addressed the Bill before us rather than looking at its wider implications. We looked at the relationship to the Commons and got rather bogged down in that exercise. We did not tackle the wider picture, nor for that matter did we address the principles underpinning change. We need to address the way in which change to one House affects the rest of our constitutional arrangements. The Government’s stated proposals are flawed in that they derive from no such consideration. In short, the process is flawed.

I turn to the arguments that are advanced for an elected House. To listen to those who advance the case for election, one would think that the case is self-evident: that there is an unanswerable democratic argument for change; that in having an elected Chamber we should be following virtually every other second Chamber in the world; and that there is overwhelming popular support for change. Let me deal with each of those claims. One can indeed make a case for electing the House on democratic grounds. However, one can make a case on democratic grounds for not electing the second Chamber. Democracy—demos kratia—is about how people choose to govern themselves. In a representative democracy, accountability is fundamental. In our system, Governments are chosen through elections to the House of Commons and collectively are answerable to the people through the House of Commons. There is core accountability. There is one entity—the party or parties in government—responsible for public policy and the electors know who to call to account at the next general election.

Knowing that, the Government tend to be responsive to the mood of electors in between elections. As long as the final say rests with the House of Commons, the Government are able to govern and remain accountable to the electors. Electing the second Chamber would not necessarily produce co-equal Chambers. What it is likely to generate is a House with more powers and/or a willingness to use extant powers to a far greater extent than at present, and it would be in a position to frustrate on occasion the will of the first Chamber and, in effect, the capacity of government to govern. Accountability would be fragmented. There is an argument for that. My point is that there is, equally, an intellectually coherent case—I believe a compelling case—for maintaining the core accountability at the heart of our political system. One cannot proceed on the basis that what is being proposed by government is self-evidently the sole democratic option; it is not.

Some advance the argument that those who make or help make law must be elected. One can make that case, but it is not as clear cut as those who advance it appear to believe. They are in effect prioritising the accountability of individual Members over the collective accountability of government. I prefer to maintain the accountability of government to the people.

What about the claim that if we move to an elected second Chamber we will bring ourselves into line with other second Chambers around the globe? If we sought to follow the global norm, we would vote for abolition; most legislatures are unicameral. Bicameral legislatures adhere to no clear norm. Of the 76 second Chambers that exist, only 21 are wholly directly elected. Seventeen are indirectly elected, 15 are wholly appointed and the rest are selected by a variety of means.

The powers of second Chambers are also difficult to classify, as Meg Russell records in her article in the January issue of the Political Quarterly. She records the number of elected second Chambers with an absolute veto power over legislation and states that it is inaccurate to claim that in no single case does an elected second Chamber challenge the primacy of the first Chamber. In some systems, such as the presidential system of the United States, the concept of primacy is irrelevant. In parliamentary systems where the first Chamber can override the second, it is, as Meg Russell says,

“relatively common ... for this to require some kind of special majority”.

[Lord Forsyth of Drumlean]

The information that my noble friend gave was very interesting, and new to me. Does it not contradict the mantra that we heard from my noble friend Lord Ashdown—sadly not in his place—who compared us to Belarus and others? Was he mistaken about that?

[Lord Norton of Louth]

My Lords, the simple answer is yes. Meg Russell’s article explains directly in what way the noble Lord was mistaken.

There is an additional point germane to the present case that is rarely mentioned. We are not working on a blank canvas. We are not establishing a second Chamber from scratch. We cannot simply take an extant second Chamber and transpose it to the United Kingdom. The Government’s proposals embody transitional arrangements, but there is no evidence that they have examined experience elsewhere of fundamental changes to second Chambers, and of transitions from one system to another. There has been some academic research, but relatively little. In the Joint Committee, I asked the Minister what study the Government had undertaken. A response in writing was offered, but as far as I am aware nothing was received.

I turn to public opinion. If people are asked whether they favour an elected second Chamber, they tend to say yes. My noble friend Lord Tyler reminded us of the figures last week. He included data reproduced in the Joint Committee report. He cited footnote 22 but did not report everything contained in it. What it showed was that it is quite possible to hold contradictory positions. In a Populus poll, 72% of respondents thought that at least half the Members of the second Chamber should be elected, while in the same poll 75% thought that the Chamber should remain largely appointed. It depends on how you ask the question.

We know from the Ipsos MORI poll of 2007 that electors privilege some of the functions of the present Chamber above the principle of having some Members elected. When one factors in options, that of election falls down the list. There is also evidence to suggest that the more people know about the House of Lords, the more they switch to favouring the existing House over an elected one. The picture is not as unambiguous as some claim.

On the argument that the issue has been discussed for more than a century, I made the point last week that the debate has been sporadic and rarely pursued at the level of first principles. Succeeding White Papers simply took the normative case as given and made no principled argument for change. The Joint Committee was limited by its terms of reference and did not address the case from first principles.

It has been argued that the Government’s proposals are a distraction from more important issues. This claim is made in respect of the economic situation. I wish to make it in respect of a more basic point about our political system. Last week, my noble friend Lord Wallace of Saltaire, in responding—or, rather, failing to respond—to the debate on the report of the Joint Committee, drew attention to the lack of trust in politics. It is a serious concern. My noble friend did not address the fact that the Government’s proposals for the second Chamber—no accountability through re-election and no resources to respond to electors’ pleas for assistance—would do nothing to restore faith in politics.

What he missed was where the problem lies. It is not in the structures and processes of our political system: the problem is with those who run the system. Arguing the case for structural reform is a form of displacement activity, a way of shifting responsibility elsewhere: “It is not us, it is the system”. We will only restore trust in politics when we restore trust in politicians. That must be our principal focus. Without restoring that trust, there is no point in messing about with structures.

In short, we need a fundamental refocusing of our priorities. We need to consider what will restore trust in our political class. Changing our constitutional framework in an incoherent and ill-considered manner will do nothing to achieve that. If we are going to consider constitutional change, we need to begin by looking at our constitution holistically and making sense of where we are before deciding where we should be going. I have argued the case before for a constitutional convention and I reiterate the point I made last week that, if the Government really wish to take our constitution seriously, that is the route we should follow.

Yes, we can consider reform of this House—that is, reform within our existing constitutional framework. Changes to that framework are of a totally different order. The case for change has to be argued and its consequences fully explored. Assertion is simply not enough.

Fixed-term Parliaments Bill

Debate between Lord Forsyth of Drumlean and Lord Norton of Louth

Tuesday 29th March 2011 Lords Chamber

[Lord Forsyth of Drumlean]

My Lords, the hour is late so I have no wish to detain the House. First, I would like to congratulate my noble friend on this amendment, which I think is a great improvement on Clause 2. I have been reading Clause 2 again and it is like some kind of pre-nuptial agreement. If you look at the reasons behind it, clearly this is a clause put together by two parties who are not quite sure whether this marriage is going to work out. The reason we have the provision of more than a simple majority is clearly because the Liberal partners in the coalition were worried about the Prime Minister cutting and running and calling an early election when they were very unpopular. You can see how the architecture of this Bill has been created and it has nothing whatever to do with the proper functioning of the House of Commons.

Clause 2 is completely unnecessary, but I respect my noble friend’s very constructive attempt to try to go with the grain and not be too confrontational, as perhaps I am being now, about this clause. I also agree with the noble Lord, Lord Howarth, that my preference would be to leave out the proposed new subsections (3) and (4) for the reason that, as the noble Lord, Lord Martin, has so eloquently explained, we should not be putting the Speaker in a position where he is involved in this.

Throughout the evening my noble and learned friend Lord Wallace has been very patient and very good and very constructive. I have asked him on several occasions why we need to have the certification process at all. It goes back to the pre-nuptial agreement. Normally, if the Prime Minister wants to call an election, people accept that, but people have thought we cannot have the Prime Minister doing it so we have to have somebody else. You can see them sitting in a room thinking, “Well, who could we have? Well, we will have the Speaker”. It has not been thought through. It is not necessary. We do not need the Speaker to sign a certificate saying that a Motion of no confidence has been passed.

Where I take slight issue—I support my noble friend’s amendment, but it is not perfect—is with the list of what constitutes a Motion of no confidence. As has been pointed out by the noble Lord, Lord Howarth of Newport, I do not think that you can have a Bill,

“defined by the Prime Minister of the day as being essential to his or her administration continuing in office”.

My noble friend Lord Tyler is absolutely right about that. If a Bill that was central to the Government’s programme, a flagship Bill, was defeated in the House of Commons, any leader of the Opposition worth his salt would the very next day table a no-confidence Motion, which would take precedence over all other parliamentary business under the rules and conventions of the House of Commons. Presumably, Members would either vote for or against that Motion. I do not see the need for this list.

In my noble friend’s amendment, I like the bit that says, “Leave out Clause 2” and I like the bit that says:

“An early parliamentary general election is to take place if the House of Commons passes a motion of no confidence in Her Majesty’s Government”,

but then I think, “Why do we need any of the rest?”. I would be very grateful if, during the course of these proceedings, we could answer these very simple questions. You do not need the Speaker to sign a certificate and, if the House of Commons can pass a Motion of no confidence, that Motion does not need to be moved by the leader of the Opposition. But if the House of Commons no longer has confidence in the Government, there has to be a general election. That is a tried and tested thing that has continued for years.

I agree, too, with those who have said, “What is the point of this Bill?” If a Prime Minister wants to have a fixed-term Parliament, he can say, “I am not going to call a general election till the fifth anniversary of the previous election, or the last possible moment”—and there we have it. Normal conventions will apply.

We have this Bill, but it is a muddle, and if we are going to proceed with it we need something like my noble friend’s amendment, which leaves out Clause 2. If we could do away with the list or reduce its scope—perhaps continuing to include the Finance Bill but certainly taking away the requirement on the Speaker to issue a certificate—we would end up back where we started. The great advantage to where we started is that we know that it has worked and it has worked for centuries.

[Lord Norton of Louth]

Before my noble friend sits down, I shall answer his question about the list. The reason why we need the list is because it has been our understanding about what a vote of confidence is for about a century. He is now being extremely radical in trying to limit the list in saying that only in certain circumstances would there be an explicit vote of no confidence. That is quite a constitutionally radical proposal.

[Lord Forsyth of Drumlean]

I stand corrected by my noble friend, who is very expert on these matters. However, a Motion that says, “This House has no confidence in Her Majesty's Government” is absolutely clear, and it would trigger an election. In the context of this Bill, with a fixed-term Parliament, it is going to change. I accept that, because the nature of the Parliament will have changed. But I would much prefer something clear-cut, simple and explicit. If you want to bring down the Government, you have to pass a Motion of no confidence. That is absolutely clear. If such a motion is passed, the Prime Minister has to go to the country.

I was going to sit down, but my noble friend has set me off again. To turn to a point made by the noble Lord, Lord Tyler, the idea that a Prime Minister should somehow be prevented from going to the country to get the consent of the people for what he is trying to do, to call a general election, is also a deeply worrying change to our constitutional pattern. But I sit at the feet of the noble Lord, Lord Norton of Louth, and I am perfectly prepared to alter my view and go along with this amendment, at least in part under his instruction, because it is a far better thing than Clause 2 as it stands.

I hope that my noble and learned friend Lord Wallace of Tankerness will accept the good advice that has been given him tonight and that at a later stage we will be able to discuss something that is more practical and workable and does not threaten the integrity of the office of Speaker of the House of Commons or the ability of the House to hold the Executive to account.