Scotland Bill

Debate between Lord Forsyth of Drumlean and Marquess of Lothian

Tuesday 8th December 2015 Lords Chamber

[The Marquess of Lothian]

I accept the noble and learned Lord’s suggestion. The word “permanent” is the one that concerns me. I do not think heads of agreement can change the British constitution—only Parliaments can change the British constitution. We could say something along the lines that we envisage that this will last for a long time or for ever, but we cannot say that it will because that is what transgresses against the sovereignty of Parliament.

[Lord Forsyth of Drumlean]

I am grateful to my noble friend but I think the noble and learned Lord, Lord Hope, was referring to the heads of agreement in the Smith commission. The Smith commission was simply a group of Scottish politicians or representatives from Scottish politics meeting in secret, having a chat and producing heads of agreement. To argue that the Government somehow have to go along with that because they said in advance that they would accept the Smith commission’s recommendations means that the whole object of having a Bill and everything that we are engaging in is a waste of time. That cannot be acceptable.

[The Marquess of Lothian]

I do not disagree with my noble friend. What I said was that I do not think that heads of agreement can change constitutions, nor do I think that Governments, by heads of agreement, can change them. The constitution can only be changed, Parliament by Parliament, by Parliament itself, and that is what this clause seems to argue against. I would very much like to think that we could withdraw this clause and, if necessary, as the noble and learned Lord, Lord Hope, has said, find another way of expressing our hope that what is being done today may go on for a very long time.

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[Lord Forsyth of Drumlean]

My Lords, that was an interesting response because, first, my noble and learned friend has underlined, quite rightly, the importance of not having declaratory material in legislation. However, we have just spent the best part of two and a half hours trying to persuade him of that. Secondly, he also made the very sensible point that the whole point of these proceedings is that Governments, legislatures and draftsmen are not infallible, and he took it upon himself to remove that original wording from the original Bill, or at least his colleagues in the House of Commons did.

[The Marquess of Lothian]

My noble friend is being asked to withdraw the words he is trying to insert because we do not know who is recognising? Subsection (3) of the proposed new section contains the words, “it is declared”. Do we know who is declaring?

[Lord Forsyth of Drumlean]

My noble friend has stolen my thunder. He is absolutely right. The whole point and discussion we have had has been about the nature of the declaratory legislation. Of course, it would have been open to my noble and learned friend if he thought that the effect of my amendment, which after all was originally the Government’s proposal, was that it would create uncertainty, as my noble and learned friend Lord Mackay indicated. He made the point that there are recognitions and declarations being made when it is not clear who is making them.

We could change the amendment. The Minister could bring back an amendment saying that it is recognised by the UK Parliament, or whatever he thought appropriate. However the truth of the matter is that those words were removed for a purpose, and the purpose was to make the subterfuge which is being presented to the Scottish people that somehow this Scottish Parliament has a degree of independence of its own. That is being done for political reasons. I think that they are foolish political reasons because they are creating a false position as to the reality.

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[The Lord Bishop of Chester]

My Lords, I think that nothing in this Bill qualifies the ultimate sovereignty of the UK Parliament. My concern about the proposed insertion reflects what I said earlier—namely, that we need to recognise that devolution is changing the way the United Kingdom is governed. It just is. The Scotland Bill, when enacted, will have a major effect in Scotland in ways that I suspect the Scots have not taken on board. The noble Lord, Lord Forsyth, has made this point before. Normally, I agree with what he says. However, we need to face the fact that although devolution will not change the ultimate sovereignty of this Parliament, it does change the character of governance in this country. We need to accept that, go with it and own it, even if we do not like it.

There has been some discussion about whether or not devolution aids the separatist cause. I suspect that if we had not had devolution, and certainly if we did not have this Bill and the Smith commission, there would be much more of a threat to the union than is the case. The cultural forces of separation are much deeper than whether we draft a Bill this way, that way or the other. Although in one sense I am not bothered whether or not this provision is added to the Bill, it is symptomatic of an attitude which does not face the reality of what devolution is all about.

[The Marquess of Lothian]

My Lords, I put a question to my noble friend Lord Forsyth. Having listened to this argument, does he agree with me that—perhaps I am being oversuspicious—somehow what this clause is about is trying to say to the people of Scotland, “It is all right. This is for ever”, and then saying to this House, “We know that it does not really mean that, because the sovereignty of Parliament means that it might not be for ever in future”? But then my noble friend comes along and says, “Let us put that bit into this provision”. The reason why my noble and learned friend the Minister is resisting it is because that would defeat the purpose of trying to persuade—I think dishonestly—the people of Scotland that the permanence means what it says.

[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.

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[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.

[The Marquess of Lothian]

The Marquess of Lothian!

[Lord Forsyth of Drumlean]

The Marquess of Lothian. I am sorry. My noble friend has had so many names that I find it difficult to keep up. If we are to take the Government at their word—I always do, of course—they have said that it is necessary to have in the Bill a piece of declaratory legislation that makes it clear that the Scottish Parliament enjoys permanence, but at the same time the sovereignty of this Parliament remains unaffected, then the two should be put together and put in the Bill. For lawyers to argue that if you read a particular section and interpret it in a particular way, it means something else, simply will not do in the context of a view that it is necessary to write graffiti on legislation. I do not think that the Government should be doing that at all. However, if they are doing it, then what is sauce for the goose is sauce for the gander. I am very disappointed that my optimism has proved confounded, but I will certainly want to return to the matter.