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.