Retained EU Law (Revocation and Reform) Bill

Lord Hope of Craighead Excerpts

Report stage
Monday 15th May 2023 Lords Chamber

Moved by

[Lord Hope of Craighead]

40: Clause 16, page 19, line 19, at end insert—
“(3A) The power of a relevant national authority to make regulations under subsections (1), (2) and (3) is subject to the provisions of Part 3 of Schedule 4.”Member’s explanatory statement
The purpose of this amendment is to enable Parliament and the devolved legislatures to overrule the Executive and express their own view as to the contents of regulations that are to be made under this section.

[Lord Hope of Craighead (CB)]

My Lords, this quite short group of amendments is concerned with Clause 16. It is a very worrying clause, for various reasons. My amendment seeks to tie the power of the relevant national authority to exercise the regulation-making power under this clause to the provisions of Part 3 of Schedule 4.

My Amendment 76, which we have already discussed, relates to Part 3 of Schedule 4. The point is to make sure that the regulation-making power is subject to parliamentary scrutiny. That is true not only of the UK Parliament; it applies also to the Senedd in Wales and the Northern Ireland Assembly. The Scottish decision has been that the power should remain with Ministers, and that is a matter that can be left to them.

The really important point is to make sure that the regulation power is subject to Amendment 76, which I am seeking to make on Wednesday. I do not think I need to say any more about this because the more important amendment is Clause 16 stand part. I am sure that the noble Baroness, Lady Chapman, will make clear the position regarding the defects in the clause that gave rise to her amendment. She will do that far better than me so I shall simply leave it at that. I beg to move.

[Lord Lucas (Con)]

My Lords, I have Amendment 41A in this group. We discussed this issue in Committee. I said, “If the Government want to go down the route of keeping in Clause 16(5), why don’t they promise the same about the environment?” After all, the Government made the same set of promises regarding environmental legislation—that they would not do anything to damage the protection that the current regulations offered—while here in Clause 16(5) they are saying they will not do anything to increase the regulatory burden.

The Government wisely said they did not want to put in the Bill the promise that they would not damage environmental regulation. I had rather hoped that meant they would take out Clause 16(5), because to my mind that subsection offers nothing but uncertainty. How is it to be interpreted by the courts if the Government propose to use the clause and someone challenges its use in the courts, saying, “This subsection says ‘in relation to a particular subject area’. Has that been reasonably chosen and correctly defined? What is the overall effect of the changes?”? They will have to look at every piece of legislation that has passed in relation to that particular subject area. How are they to be weighed up? There is no mechanism here providing for them to be weighed.

The courts are going to be asked how one bit of legislation should be weighed against another with regard to the changes that it makes and the regulatory burden. How do you weigh one bit of regulatory burden against another if one bit of regulation imposes something on one group and the next regulation imposes something on another? How do you weigh those two things together? It seems to be asking the absolute impossible. It means that any bit of legislation passed under Clause 16 will be open to all sorts of challenges in the courts, and there will be no way of knowing what the outcome will be, because nothing in this subsection, or elsewhere in the clause, tells you how to parse it. So I hope the Government will see the good sense they had when they chose not to adopt my suggestion of doing this for environmental legislation and take Clause 16(5) and (6) out of the Bill.

--- Later in debate ---

As has been set out in Clause 16(6), the creation of a voluntary scheme, which my noble friend’s amendment also queries, is not regarded as increasing the regulatory burden. The truth is that the restrictions to the powers to revoke or replace in subsections (5) and (6) will help the UK to establish a more nimble, innovative and UK-specific regulatory approach to get on and seize the opportunities of Brexit. Those of us, right across the House, who worked in Brussels were often frustrated; now is the time for us to look in a considered way at our legislative almanac, to make sure that we are moving forward sensibly. To get rid of those subsections would be to open us up to complex and burdensome changes, which might hamper growth and competitiveness and go against other comments that noble Lords have been making on Report. The whole debate has been good, but, for all those reasons, I ask that the amendments are not pressed.

[Lord Hope of Craighead (CB)]

My Lords, I am grateful to the Minister, as I am sure are others who have spoken in this debate, for her careful reply to the points that have been made. There is no doubt that the wording of Clause 16 gives rise to concern, particularly the width of subsections (2) and (3), and, according to the points made by the noble Lord, Lord Lucas, subsection (5). One cannot rule out the possibility of judicial challenge because, while primary legislation is not justiciable, delegated legislation is. I find it difficult to predict what a court would make of subsection (5) for the reasons that the noble Lord, Lord Lucas, has given.

As for subsections (2) and (3), my Amendment 76 would remove much of the concerns. What I was offering was a package. In a way, Amendment 76 remains: it will still be there whatever happens to Amendment 40; the protection we are seeking to provide will be available there. Without taking up more of your Lordships’ time, I thank the Minister for her reply and seek leave to withdraw Amendment 40.

Amendment 40 withdrawn.

List of Ministers’ Interests and Ministerial Code

Lord Hope of Craighead Excerpts

Tuesday 25th April 2023 Lords Chamber

[Baroness Neville-Rolfe (Con)]

Since the noble Lord mentions the former Deputy Prime Minister, I remind the House that he made an important contribution to the country, not least by his work during the pandemic. On a personal note, he supported me and indeed the Bench opposite on justice for retail workers facing harassment. He felt obliged to resign following the Tolley report, and I respect his decision. The noble Lord may have seen the letter to the former Deputy Prime Minister from the Prime Minister. It said,

“it is clear that there have been shortcomings in the historic process that have negatively affected everyone involved. We should learn from this how to better handle such matters in future”.

[Lord Hope of Craighead (CB)]

My Lords, the Tolley report, which looked into the matter in great detail, referred to intimidation rather than bullying as the cause of the conduct which led the former Deputy Prime Minister to resign. There is a difference between intimidation and bullying, and that should be recognised.

[Baroness Neville-Rolfe (Con)]

I do not think I have a great deal to add to the Prime Minister’s reply, other than to underline the point that has been made about how we learn to better handle such matters in future. The points that noble Lords have made are, of course, relevant to that.

Procurement Bill [HL]

Lord Hope of Craighead Excerpts

Committee stage
Monday 11th July 2022 Grand Committee

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a pleasure to follow the noble Lord, Lord Davies of Brixton, who I think is seeking to achieve the same goals as two amendments in this group to which I have attached my name: Amendment 43, in the name of the noble Baroness, Lady Hayman of Ullock, and Amendment 57, in the names of the noble Lords, Lord Wallace of Saltaire and Lord Fox. I will focus on those amendments because I have done my best to get round their technical detail.

Having listened to the powerful introductory speeches that were made, I noted that the noble Baroness, Lady Hayman, highlighted the issues with the Australian trade deal. It is a pity, therefore, that this Committee is taking place at the same time as the Australian trade deal is being debated in the Chamber; some joined-up thinking might have ensured that people were able to participate in both debates. However, that is perhaps a very large aspiration that we can all work towards.

I want to focus on perhaps the most crucial provision, which is subsection (1)(a) in the new clause proposed in Amendment 43, which refers to,

“promoting the public good, by having regard to the delivery of strategic national priorities including economic, social, environmental and public safety priorities”—

although I think I might prefer the wording “public health”, which is perhaps broader than “public safety”, for reasons that I will come to in a second. That is something that we might consider in future. However, the Government are already signed up to those principles, at least theoretically, in everything that they do because, like the rest of the world, they are signed up to the sustainable development goals. I cite the paper from the Cabinet Office and the FCDO Implementing the Sustainable Development Goals, dated 15 July 2021, which says:

“The UK is committed to the delivery of the sustainable development goals. The most effective way we have to do this is by ensuring that the Goals are fully embedded in planned activity of each Government department”.


Now one might think that making legislation is a planned activity of a government department. However, that is a very centralised view because it refers only to central government spending and is not focused on other spending. Surely, if we are going to deliver the sustainable development goals, they have to be embedded right across the broad breadth of spending. Essentially, Amendment 43 broadens out and attempts to deliver something that the Government are fundamentally, nationally and internationally, signed up to do.

I note further that the Cabinet Office report states that “all signatories” are

“expected to … deliver them domestically.”

However, NGO studies demonstrate that the UK is not on track to deliver a single sustainable development goal. Surely this Procurement Bill is a crucial mechanism for delivering those sustainable development goals of economic, social and environmental advance, meeting people’s basic needs while looking after our natural world and ensuring that we have a natural world for the future. I suggest that Amendment 43, in the name of the noble Baroness, Lady Hayman—and Amendment 57, in the name of the noble Lord, Lord Wallace of Saltaire, comes at this in a different way—is absolutely crucial, as it would put the principles of the sustainable development goals, to which the Government are signed up, on the face of the Bill.

Let me also address subsection (2) of the new clause proposed by Amendment 43, which states:

“If a contracting authority considers that it is unable to act in accordance with any of these principles in a particular case, it must—”


essentially, publish a report and take reasonable steps to ensure that it is not discriminating. When I considered signing the amendment, I worried about this because I thought that, surely, these are principles we should be delivering on. However, of course, we all know the practical reality is that many organisations procuring essential services simply do not have enough money to do what they need to do.

This is where we come to the value for money point of Amendment 57. I was thinking of putting this in practical terms, because much of what we are talking about here is technical and abstract. Think of the very common fable in which a poor person, who has only £10 in their pocket, is forced to buy a cheap pair of shoes. Then every three months, he is forced to buy a new cheap pair of shoes. A wealthy person, who has £100 in their pocket, can buy a pair of shoes that lasts for 10 years. So of course, in the end, the poor person ends up spending vastly more on shoes than the wealthy person, because they had no choice. So, given our current situation, maybe we need Part 2, but we have to look at whether this is a bigger, broader problem, beyond even the realms of this Bill. None the less, this group of amendments demonstrates that the Bill is fairly deficient in its current form. This cannot be an area for a framework Bill.

I will briefly mention another issue that is important and I commend the noble Lord, Lord Clement-Jones, for his amendment. We are seeing increasing levels of automation in many aspects of judgments—the human judgment being taken out and AI and algorithms being put in its place. There is a great deal of evidence demonstrating that the way they are being developed and the data on which they are based often fit the old adage of “garbage in, garbage out”. We need to make sure that any automation of these processes is not discriminatory. The noble Baroness, Lady Hayman of Ullock, pointed out that anti-discrimination elements are entirely lacking from any provisions in the Bill at the moment; proposed new subsection (1)(f) provides these as well.

[Lord Hope of Craighead (CB)]

My Lords, I return to Amendment 37 in the name of the noble Lord, Lord Moylan. He made the point that the words at the end of Clause 10(1),

“except in accordance with this Act”,

are a hostage to fortune. The words range right across the whole of this complicated Bill and of course a disaffected client will invite his lawyer to search through all the provisions to find some flaw in the way in which the procurement exercise was carried out, which he can then attack.

I wonder whether the words

“in accordance with this Act”

are wider than they need to be. First, Clause 10 contains a prohibition, but Clause 10(2) contains a definition of procurement and Clause 10(3) tells you that

“a contracting authority may only award a public contract in accordance with”

the four matters set out there.

In my mind, that raises the question of whether the words at the end of Clause 10(1) should really be

“except in accordance with this”

section, the purpose of which is to describe the framework or scope of the power, before Clause 11 tells you that that power must be exercised in accordance with the procurement objectives set out there. It would make sense if Clause 10 simply said what may be done in accordance with that section. If I am wrong about that, the Minister might like to reflect on whether the words

“in accordance with this Act”

go further than they need to.

Choice of words, as I say from time to time, is always very important and the noble Lord, Lord Moylan, raises an important point. What he wishes to put in place at the end of Clause 10(1) is already in Clause 11 and will have to be complied with. I understand that the Minister may be reluctant to go as far as the noble Lord, Lord Moylan, has invited him to go, but he has raised an important point. That is why I suggest that the word “section” might be a more sensible and less dangerous word to use than “Act”, at the end of Clause 10(1).

[Baroness Neville-Rolfe (Con)]

My Lords, it is always a great pleasure to follow the noble and learned Lord, Lord Hope of Craighead, who is always so brief and makes such constructive suggestions. The more I listen, the more I feel that this Bill in many respects strikes the wrong note. It is overregulatory and calls for a rethink, which I hope the Government will be thinking about.

Procurement Bill [HL]

Lord Hope of Craighead Excerpts

Committee stage
Wednesday 6th July 2022 Grand Committee

[Lord Blencathra (Con)]

My Lords, it is a pleasure to speak after my noble friend Lady Neville-Rolfe and after listening to the speech of the noble Lord, Lord Wallace of Saltaire. They have gone through each of the individual recommendations of the Delegated Powers Committee’s report and each of the amendments, which saves me having to quote from them as well, so I will speak in more general terms.

I did not speak on Second Reading, because a quick look at this Bill convinced me that the delegated powers report would be worth waiting for—and what a scorcher it turned out to be. Now that I am no longer committee chairman, I can speak more bluntly than I have in the past, even though I might not now get a phone call from No. 10 asking me to form a Government of national unity tonight. I fully support the concept of the Bill, but it is an appalling mess. I exonerate my noble friend the Minister, who had no part in drafting it, but how on earth can officials and the Office of the Parliamentary Counsel—the OPC—spend two years coming up with these shambles where 345 government amendments—my count on Monday—are necessary? However, what concerns me today is not the shambolic drafting but the abuses of parliamentary protocols as evidenced in the Delegated Powers Committee’s report.

Last year, the Delegated Powers Committee and the Secondary Legislation Scrutiny Committee published two reports: Democracy Denied? and Government by Diktat. We produced countless examples of legislation presented to the House with very wide regulatory powers granted without any justification for them, but with the usual excuse: “just in case they might be needed one day”. The reports cited “skeleton legislation” and clauses where the policy had not been thought through. In addition, powers were being taken to fill in, not just the details, but the general principles which should have been in the primary legislation and not in secondary legislation.

Then we have the negative procedure applied in completely unacceptable cases where the affirmative should be used, such as increasing penalties or charges, for example. Then, of course, we have the dear old Henry VIII powers attached almost automatically now to almost every Bill without any thought. No, I correct that—the thought among Bill teams and drafters is that the department can change any primary legislation it likes in future without having to go through the hassle of producing new primary legislation and getting approval for it. What a marvellous “Get out of jail free” card this is: change any legislation at the stroke of a Minister’s pen.

In this Bill, the Delegated Powers Committee has drawn attention to all these gross abuses and—let us face it—they are abuses. Just because Governments have got away with treating Parliament with contempt in the past does not mean that this should be the norm. I will quote only one paragraph from the Delegated Powers Committee’s report. Before doing so, I note that the committee is not hostile to this Government or any Government; indeed, it is now chaired by one of the longest-serving Commons Conservative Chief Whips in history, and so it is not a partisan committee. Paragraph 7 says:

“This report identifies multiple failures in the Memorandum to adequately explain and justify very broad delegations of power which enable implementation of significant policy change by delegated legislation. This would give us cause for concern at any time but is particularly disappointing as it comes so soon after the publication of our report, Democracy Denied? The urgent need to rebalance power between Parliament and the Executive, in November 2021, and of revised guidance for departments on the role and requirements of this Committee.”


The new guidance by the Delegated Powers and Regulatory Reform Committee was circulated to all departments, and, in the first week of January, I personally wrote to every Minister and every permanent secretary giving them copies of the revised guidance. This is a Cabinet Office Bill, so I want my noble friend the Minister to go back to the Cabinet Office and call in Simon Case, the Cabinet Secretary, Alex Chisholm, the Permanent Secretary, and Elizabeth Gardiner, the First Parliamentary Counsel, and ask them why they seem to have deliberately ignored every word of the guidance with which they were issued.

Worse than that, they have reneged on their promises to the committee. In the response to our report, they said that the Government agreed that the statement of principles of parliamentary democracy set out in both our reports should be included in the Cabinet Office’s Guide to Making Legislation. We reported way back last December, so they have had five months to adjust the Bill taking that into account. Why have they not done so?

The Government agreed that the routine use of just-in-case powers was not appropriate, so why include them in the Bill? They agreed that guidance should not be used to create rules that must be followed, should not be relied on for interpretation of legislation, and should describe the law accurately. They said that the Cabinet Office’s Guide to Making Legislation would be strengthened to reflect the committee's revised guidance. Will my noble friend the Minister ask why that has not happened? I am tempted to ask the non-executive board member, the noble Lord, Lord Hogan-Howe, to maybe conduct an investigation into the Cabinet Office, but I will keep that in reserve.

Of course, the Government justified skeleton legislation, Henry VIII powers and the negative procedure even when there were alternatives that would not subtract from the thrust of the legislation. Not one single item in any of the DPRRC reports would stop any Government of any persuasion driving through their programme. At worst, it would mean a Minister—usually a Lords Minister—perhaps having to do a few more 90-minute SI debates.

I conclude with something the Government did agree on. They welcomed the end-of-Session report that the Delegated Powers Committee said it would produce. The committee has now produced the first end-of-Session report, even though it covers only half or less than half of the last Session, and it makes for some very uncomfortable reading for some Bill teams and OPC drafters. It criticises the quality of delegated powers memoranda by the Ministry of Justice, and two of those by BEIS and the Home Office each. If we cannot trust the delegated powers memoranda, how can we trust the rest of the departments’ assertions?

The report highlights serious deficiencies in the Health and Care Bill, describing it as

“a clear and disturbing illustration of how much disguised legislation a Bill can contain and offends against the democratic principles of parliamentary scrutiny.”

However, by far the most egregious and insidious example was the Subsidy Control Bill, which had a delegated power which enabled the Government to disapply the Bill’s subsidy control requirements by a direction that had to be kept secret from Parliament. Added to which, the delegated powers memorandum had the effrontery, and indeed the honesty, to justify this absence of parliamentary scrutiny on the grounds of

“the potential for non-approval by Parliament”

—in other words, a risk of defeat.

Can noble Lords believe that? Noble Lords who were on the committee can believe it, because they had it removed eventually. Officials drafted provisions to enact a law in secret and not tell Parliament in case Parliament voted against it. We do not have that in this Bill, but I am quoting some general examples to show how appalling some of the general delegations of power have been.

Of course, Ministers have ultimate responsibility, but we all know that Ministers were not responsible for the 345 government amendments in this Bill. Nor are they the ones who have devised and insisted on inserting all these parliamentary abuses into legislation. I suspect that my noble friend the Minister was as shocked as the rest of us when he was handed this Bill and saw the extent of the completely inappropriate delegation of powers.

I want him to go back to the Cabinet Office and tell officials and parliamentary drafters that if they do not want their names on the list of bad boys and girls when the DPRRC publishes the full report at the end of this Session, they had better bring in the changes on Report, as suggested by the Delegated Powers Committee. They should amend the Bill not only to keep their noses clean but because it is the right, democratic thing to do.

[Lord Hope of Craighead (CB)]

My Lords, I support the amendment in the name of the noble Lord, Lord Wallace of Saltaire, but I have a question for the Minister. As an example of the grouping of paragraphs and sections to which objection is taken, I point out that paragraph 17 of Schedule 2 refers to

“services of a kind specified in regulations made by an appropriate authority.”

The phrase “appropriate authority” occurs in all the paragraphs and measures that are under attack and is defined in Clause 111(1) as meaning

“a Minister of the Crown … the Welsh Ministers, or ... a Northern Ireland department”.

There is no mention of any of the Scottish Ministers.

--- Later in debate ---

[Lord True (Con)]

My Lords, I thank all those who have spoken. I take seriously the gravity of the remarks made. I assure my noble friend Lord Blencathra, whose chairmanship of the committee was distinguished—he can speak even more freely now that he is no longer in that role—that while I did not catch the names of all the individuals that he asked me to refer his remarks to, I will make sure that that is done as he requested.

On the question raised by the noble and learned Lord, Lord Hope of Craighead, it is a matter of regret —we discussed this on the first day—but the Scottish Government have declined to be part of this legislation. They do not wish to be. They wish to pursue their own course and obviously that is why they are omitted from the definition of an appropriate authority under the legislation. It would be odd if they were an appropriate authority to alter legislation which they declined to take part in. That is the explanation.

[Lord Hope of Craighead (CB)]

Of course, it is possible that the Administration in Scotland will change. This Bill will become an Act which will perhaps last longer than the present regime in Scotland. Assuming one has an Administration who are favourable to participating in this system, the question then is why they should not be included, or at least mentioned, in the definition of appropriate authority. It is quite a serious issue, because appropriate authorities is referred to in many places in the Bill, as the noble Lord knows. If, as I think the noble Lord is indicating, this is simply a sort of penalty for not participating in the legislation, it seems unfortunate that that should be set in an Act which will last for, I imagine, many years into the future. Is it not worth rethinking this? Might it not be better to mention the Scottish Ministers and leave it to the future to see whether they actually exercise the power that has been given?

[Lord True (Con)]

My Lords, I hear what the noble and learned Lord says. Those remarks might also be addressed to the First Minister in Scotland. I expressed regret—I think it is shared across the Committee—that the Scottish Government have not wished to take part in the constructive way in which the Welsh Administration have. We have had good co-operation with the Welsh Administration, and that has had an impact on the Bill. Clearly, if the policy changes, then a Bill can be amended, but I am about to reply to a series of complaints about the Government taking all sorts of potential regulatory powers to change this, that or the other, and that would be quite a substantial secondary power to take. It is regrettable, but that is the position.

Procurement Bill [HL]

Lord Hope of Craighead Excerpts

Committee stage
Monday 4th July 2022 Grand Committee

[Lord Wallace of Saltaire (LD)]

My Lords, I do not want to prolong the debate. I must say that, having spent the weekend worrying whether I was thick-headed in not understanding the concept of a covered contract, I am relieved to discover that I am by no means alone. In a different tone, we on the Liberal Democrat Benches are very grateful to the Minister for the extremely helpful briefing we had today on the digital platform. That is precisely the sort of relationship we should have as we approach a Bill such as this one.

The Minister should remember that, while the Government are having their own consultations with outside interests, we are doing the same, with rather fewer staff. We have had some very helpful conversations over the past two weeks with various outside interests and groups, and will continue to have others. But, of course, we have had no opportunity to discuss with them the implications of the latest amendments which the Government have tabled. Some 60% of the current amendments are government amendments, and a minority come from outside the Government.

We have heard so far that this Committee is in no sense convinced that Amendment 1 is necessary. We have all struggled to understand why the Government have introduced all these amendments, and some of us have struggled with various other concepts in the Bill. I am grateful to the officials who explained the concept of dynamic markets to me; I am still not entirely sure that I understand the difference between a centralised contracting authority and a contracting authority, and we have tabled an amendment on that. These things are important in getting the Bill through. It takes time and it takes sympathy between the Government and those trying to scrutinise the Bill. As the first House to do this, we are now clearly in some difficulty over where we have got to.

[Lord Hope of Craighead (CB)]

My Lords, I want to raise a question about the wording of the definition in Amendment 1. I am troubled by the word “covered”. It does not spring off the page as an explanation in itself as to why there is a distinction between procurement pure and simple and this other procurement, described as “covered”. Having looked at the language in paragraphs (a) and (b), I think the obvious word to choose in paragraph (b) is “public” procurement. However, having listened to the analysis of the noble Lord, Lord Lansley, I am doubtful as to whether that distinction is what the definition seeks to describe. But if it is not doing that, and the word “public” would be wrong, is it not possible to find a more obvious word than “covered”?

The choice of language is crucial in a definition clause. It ought to be possible for the reader to take from the definition an immediate explanation as to why there is a distinction between the types of procurement in paragraphs (a) and (b). If it is necessary to go through the hoops that the noble Lord, Lord Lansley, did, I wonder whether it is possible to achieve anything sensible by ordinary language—which is a reason to say it might be better not to have the definition at all. However, if the definition is thought to be necessary, please could a better word than “covered” be found, so that the definition helps us, at the beginning of this complex Bill, to truly understand the distinction between paragraphs (a) and (b)?

[Lord True (Con)]

My Lords, I am grateful to all those who have spoken, although I cannot say it always made for the easiest listening. I have been in opposition, and will be again one day, so I fully understand where those noble Lords who expressed concerns are coming from. I have also been on the Back Benches on my side, and will be again one day, so I fully understand where my colleagues are coming from as well.

It is unsatisfactory that so many amendments have been laid. I apologised for that. It is not, in any of your Lordships’ submission, sufficient. I could tell a few tales out of school, but I am a believer in the old concept that the Minister at the Dispatch Box takes full and personal responsibility for the criticisms that are made. I accept that. The amendments should have been brought forward in a more informative—to use the word from the very impressive speech by the noble Baroness opposite, whom I look forward to working with on the Bill—and timely manner.

--- Later in debate ---

[Lord True (Con)]

That was, in a sense, the implication of what I was saying. We are debating only Amendment 1 at this stage, but for the avoidance of doubt, if it helps the noble Lord, at the end of these remarks I will beg leave to withdraw Amendment 1. Your Lordships could indeed obstruct these matters, but I will withdraw the amendment and see that we fulfil the undertaking that I have given.

More generally, important questions were asked about definitions. I must say to the noble and learned Lord that, until relatively recently—I use that word because I do not want to define it more narrowly—I was not familiar with the concept of “covered”. However, it has come forward after careful reflection by the Cabinet Office and the Bill and legal teams. It is intended to make the concepts in the Bill clearer to use and understand. I mentioned “covered procurement” in my opening remarks. “Covered” was intended to refer to those contracts that are fully regulated by the Bill’s provisions, whereas “procurement” refers to those contracts that are less regulated but none the less catered for, such as below-threshold contracts and, as the noble Lord, Lord Purvis of Tweed, said, international organisation procurement.

[Lord Hope of Craighead (CB)]

I think the problem may be in the language of paragraph (b), because it does not fulfil what the Minister has been saying is the intention of “covered”. You could keep “covered” but reword paragraph (b) so that it explains more fully what “covered” means, which is what I think the Minister is attempting to do. As it stands, it is very confusing. A confusing definition is a bad way to start a Bill.

[Lord True (Con)]

My Lords, I listened carefully to the noble and learned Lord’s remarks. We will take them away. I have said that I will withdraw the amendment.

My noble friend Lord Lansley was accurate in divining the Government’s intention with this. The intent is to distinguish between the fully regulated—I will not use the word “covered”—and the less regulated.

Covid-19 and the Use and Scrutiny of Emergency Powers (Constitution Committee Report)

Lord Hope of Craighead Excerpts

Tuesday 21st June 2022 Grand Committee

[Lord Hope of Craighead (CB)]

My Lords, I am the other Member of this Committee who was a member of the committee whose report we are considering. I thank the noble Baroness, Lady Drake, for the careful way in which she introduced our report and highlighted the particular matters on which the Minister is being asked to reply.

For myself, I begin by referring to the Government’s response, which I have read with great care and much of which I found reassuring, but two or three points arise out of it that I might mention briefly. The first arises out the paragraph where reference is made to our recommendation 6 that, among other things:

“The pre-legislative scrutiny of what became the Civil Contingencies Act 2004 provides a clear model”


for the approach to pre-legislative scrutiny. I am not sure that the response really picks up the point we were trying to make. It refers to “changes” to the Civil Contingencies Act, but it does not recognise that the way that Act was dealt with was a model. It also raises a question, on which the Minister might feel able to reply, as to whether it is proposed that changes should be made to that Act in the light of the experience of the Covid crisis. That might be desirable, but it would be interesting to know whether changes are in prospect.

The other paragraph that is worth mentioning is on our recommendation 38. It does not quite pick up the point we sought to make. Our recommendation was that

“all future ministerial statements and Government guidance on changes to … restrictions clearly state the geographic extent of the new requirements.”

The response deals with the Covid-19 guidance but does not mention ministerial statements. It is right to say that the guidance, on the whole, was clear—it was written down and made it clear to which part of the UK it referred—but the ministerial statements from time to time did not make it clear that they referred only to England and Wales. That is a matter of concern for the reasons already mentioned by the noble Baroness, Lady Bryan of Partick. Those are the only two points in the response, apart from the third point, that might require further comment.

The third point is the one that the noble Baroness, Lady Bryan of Partick, mentioned, which is that there is no mention in the response of chapter 3 of the report. It is that chapter on which I wish to concentrate, for that reason among others. The chapter was of particular interest to me because, like her, I spent the period when we were in lockdown at home in Scotland. That meant that, especially during the early days, when we sought information about what was going on and what we should do, I found myself trying to obtain it from two sources.

First, there were daily briefings from Downing Street, usually at about 5 pm, which were initially presented by the Prime Minister and, later and more frequently, by the Secretary of State Mr Hancock, against a backdrop of union flags. As has already been mentioned, that tended to suggest that what was being said there applied to the union as a whole. But we also had briefings from St Andrew’s House in Edinburgh, which appeared on BBC Scotland, usually just after midday, and were invariably conducted by Nicola Sturgeon, the First Minister. I believe that similar briefings were being presented from Cardiff by the First Minister for Wales, Mark Drakeford, and from Northern Ireland by the appropriate Minister. In their case, if there were flags, they were appropriate to the parts of the UK to which they related.

There is a question there about whether it is right that, where statements are being made that apply to England and Wales only, they should be set against a background of the union flag without making it absolutely clear that they apply to England and Wales only. Not to do so is the product of confusion.

I take these briefings as a starting point because they were a powerful demonstration—as we say in our report, “unprecedented” in its intensity—of devolution in action. In paragraph 85 we refer to “particularly visible” devolution arrangements in Scotland, and in paragraph 115 to a “dramatic increase in awareness”. As we know, health and education are devolved in Scotland, as they are in Wales and Northern Ireland, so here was the First Minister in each case fulfilling their constitutional roles when they were telling those in those parts of the United Kingdom how they should react to the emergency.

It was clear to us in the evidence we received that the level of co-ordination was good to begin with. There were cases when we really understood that what was being said applied to both nations and that there had been proper discussions between the relevant Ministers and their advisers. The messages from both were consistent with each other: you must stay at home, we were told. That message applied across the United Kingdom, and rightly so, and was promulgated on road signs and so on.

However, as our report points out, there came a later stage, as we began to relax from the lockdown, when different guidance and rules were promulgated north and south of the border. This was because the different Administrations were taking different decisions, looking at the needs and demands to protect the health service, which were different depending on which part of the UK you lived in and as to what needed to be done. We had different rules about the number of people who could gather, where they could go and so on.

In the evidence we received there is a suggestion that, in this situation, co-ordination was not as effective as it should have been. The United Kingdom took a lead in the co-ordination of vaccine development and procurement, much to its credit and to the benefit of all throughout the UK. That was a definite benefit of co-ordination when it was needed, but there seemed to be an increasing disregard, particularly in Whitehall, for the need to co-ordinate the way that restrictions were being adjusted and promulgated. Reference has already been made to the “stay at home” message being changed to “stay alert” in England and Wales, but not in the devolved Administrations; and to research by a school in Cardiff about the extent of the failure to understand the situation in Wales in the light of that change of message.

I do not want to further elaborate the point about confusion, which the noble Baronesses covered very effectively, but I ask the Minister to think about whether there is any value in reflecting on the way the devolved Administrations reacted to the situation according to their own rules and guidance. My impression is that there was less changing of the rules in Scotland than there was in England and Wales. The “rapid changes” referred to by the noble Baroness, Lady Drake, were not reflected in the way that this was handled in Scotland, so there may be lessons that could be learned from looking across the border.

There is another matter that we do not with deal in our report, but for which I can draw on my own experience: there were, and still are, problems for those who live in Scotland about obtaining proof of one’s Covid vaccination status in a form that would be acceptable outside Scotland. This is because NHS Scotland has its own system, which can be accessed by a mobile app, distinct from the system used in England. I have no doubt that they are very similar, but the fact is that they are different systems.

The result is that there have been times when people have travelled abroad, taking the Scottish app with them, only to find that it is not acceptable in France, for example, or any other place where you need to establish your status. I personally found, when I went to Italy in the recess, that the information on my NHS Scotland app was not acceptable to the airline I was using, although it was acceptable when I went to its desk. This situation is being overcome gradually, but I suggest that someone should have a look at the way these two apps failed to interact with each other so that there will be less uncertainty for people travelling abroad—particularly from the devolved Administrations —as to whether their vaccine status would be properly recognised.

Leaving these points aside, I invite the Minister to reassure us that the Government have noted carefully what we say about the practical difficulties that were created for members of the public by the divergences that emerged—occasionally accidentally—between the UK position in England and Wales and the position in the other devolved Administrations. There certainly were occasions when the need for co-operation was overlooked in Westminster when rules were being made or relaxed. I accept, and fully recognise and understand, that there were policy differences that made this difficult, especially in the later stages when it was quite clear that the Prime Minister was conspicuously keener than the other Administrations to lift restrictions to get the economy going. Nevertheless, the fact that they existed means that there were occasions when the rationale behind the differences was not apparent to members of the public.

This report and the forthcoming inquiries are all about lessons for the future. There is much else in the report that needs to be considered carefully, but there is a message here, as the noble Baroness, Lady Bryan, made clear, about devolution and the necessity of close co-operation at a ministerial level, as well as between officials. That was plain to see in the early stages, but, as I mentioned, it seemed to be increasingly absent as time went on. “Respect and co-operation” is the key message; it is the way in which we are best guided for living with devolution and maintaining the strength of the union, which is so important in the current climate. I hope that the experience of the pandemic will help to reinforce that message about co-operation and the need for it right across the board, to the benefit of everyone in all parts of the United Kingdom.

Dissolution and Calling of Parliament Bill

Lord Hope of Craighead Excerpts

Report stage
Wednesday 9th February 2022 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I supported these amendments in Committee and I should like to do so again today. I cannot help feeling that there is just a hint—as the noble Lord, Lord Lansley, put it earlier—of the generals fighting the last war, because it is very obvious why Clause 3 is there: it is to head off what was seen to be a trend at least in the decision in Miller 2.

I will make two points, if I may. First, following my noble friend Lord Butler of Brockwell, I agree that the clause is unnecessary. One of the things that was said by the Supreme Court at the beginning of Miller 2 was to distinguish the Prorogation issue with which it was concerned and Dissolution. It was made quite clear in a very few words at the start of that decision that decisions about Dissolution were nothing to do with the courts. The noble Lord, Lord Grocott, made that point very clearly when he said that this is the most political of decisions that could be taken. That is a very clear warning to the courts that it is nothing to do with them. It is unnecessary, because I cannot see the courts engaging with a Dissolution issue in addition to the points made by the noble Lord, Lord Norton.

The second point that I would like to say a little more about is the unwise precedent. The problem here is that the language of paragraph (c) in Clause 3 removes entirely from the courts the possibility of determining the limit or extent of the powers. The reverse of the coin is that it is the Executive who are the determination and who decide the limit or extent of their own powers. Earlier today, the noble Lord, Lord Reid of Cardowan, said that this was the basis for a dictatorship. My noble friend Lord Butler referred in Committee to a number of examples not very far away from us in Europe, where there is perhaps a trend moving towards that. We have to be extremely careful not to give a signal to a Government that they can get away with an exclusion clause of this kind. The question is how far the clause should go, and it is paragraph (c) of Clause 3 that is completely objectionable, leaving it to the Executive to determine the extent and limits of their own powers.

The question of precedent is worth dwelling on. I admire greatly the skills of the parliamentary draftsmen. They have their own skills and traditions, one of which is that they are very determined to follow precedent in the way in which they engage with legislation. This has great value, because it means that there is constancy in the way in which issues are expressed in our legislation, which is of a very high standard. My concern is that, whatever may be said today about this not setting a precedent, it will nevertheless be there in the books, and the draftsmen will, some years ahead, say, “That is what was done in 2022. It is an example that we can follow.” That is danger that I fear in this clause, which is unnecessary. It is unnecessary, so we should not risk the creation of a precedent that, in future years, we may deeply regret.

[Lord Trevethin and Oaksey (CB)]

My Lords, I respectfully agree with much of what the noble and learned Lord said about the drafting of this clause and agree that it should not be treated as a precedent in the future for other ouster clauses. The drafting is unprecedented, because the decision of the Supreme Court in Miller 2 was itself unprecedented. I do not agree with the amendment of the noble Lord, Lord Butler, and I will briefly explain why.

I regard with horror, and I suggest that your Lordships should regard with horror, the prospect of what one might notionally call Miller 3: namely, a piece of litigation challenging the propriety or legal effectiveness of a Dissolution. In Miller 1, the noble and learned Lord, Lord Reed, now President of the Supreme Court, warned against the legalisation of political issues and observed that it was fraught with danger, not least for the judiciary. There is a danger that, because the Supreme Court in Miller 2 found itself able to determine that case against the Government without getting involved in the underlying political issues, one might suppose that a similar exercise could be undertaken in relation to litigation about Dissolution without the judges having to address political questions in an objectionable way. That reasoning would be fallacious.

It is necessary to bear in mind what happened in Miller 2 in relation to the evidence. The noble Lord, Lord Pannick, who is about to rise, will be able to help us with that if need be. The government evidence in Miller 2 could politely be described as sparse. It consisted of a handful of partially redacted memos and there was no witness statement, as far as I understand it, which dealt substantively with the reasons for—that is, the justification for—the Prorogation. Why that was, I have no idea. It might have been pressure of time. It might have been—though I doubt it—some kind of Machiavellian strategy on the part of the Government, who were unafraid to lose the case. It might have been because no one was prepared to make a witness statement. It might have been for the legitimate reason that the legal position was being argued for that justiciability had to be taken as a preliminary issue, as the Divisional Court held that it should be, prior to any consideration of evidence. Never mind; there was no good evidence from the Government.

That enabled the Supreme Court, when it came to apply its test as to reasonable justification, to say in robust terms that there was no evidence before the court that would begin to support the contention that there was reasonable justification for the Prorogation. In that way, the Supreme Court avoided the need to tackle a question that might have arisen if the Government had given their evidence in a different way. The Prime Minister might have said: “Look, Parliament has made Brexit very difficult. I am engaged in an immensely important negotiation with foreign counterparties, which is going to affect the future of this country for many years. I regard it as desirable to convey the message to my negotiating counterparties that I mean business. That is why I intend to prorogue for an unusually long period of time.” The Prime Minister might have said that and that might have been true—I do not know. If that had been the evidence before the court, it is inconceivable that the Supreme Court justices would have felt able to enter on to that terrain, because it was nakedly political. That is the way that it might have gone.

That indicates that allowing even the faintest possibility of litigation about the legal effectiveness of a Dissolution is a grave error. It should be unthinkable that the judges should be forced to engage with that type of issue. I respectfully agree with what I think the noble and learned Lord, Lord Hope of Craighead, and others, have indicated—that it is very unlikely that the judges would entertain litigation of this nature. They would wisely be reluctant to do so.

But we should recognise the risk of litigation of this nature being initiated for collateral reasons. We are contemplating a period leading up to a general election. All the politicians will be on manoeuvres. There are potentially collateral advantages to litigating points of this nature, so Miller 3, or something like it, is conceivable. It should not happen. That is why, even though the drafting causes me concern, the ouster clause is good and this amendment should not be agreed to.

Dissolution and Calling of Parliament Bill

Lord Hope of Craighead Excerpts

Committee stage
Tuesday 25th January 2022 Lords Chamber

[Lord Norton of Louth]

My Lords, I shall also speak to my other two amendments in this group. The amendments would ensure that the ouster provisions in the clause did not apply to the purported exercise of the powers to dissolve Parliament contained in Clause 2. There are two principal arguments that I wish to develop in support of the amendments. The first is that they are necessary to give effect to the Government’s intention that the Bill restore the status quo ante. The second is that including the “purported” exercise of powers within the clause is objectionable in principle.

The purpose of the Bill is to restore the position to what it was before the 2011 Act was enacted. As paragraph 23 of the Explanatory Notes concedes, the purpose of Clause 3(c) is

“to address the distinction drawn by the Supreme Court … as regards the court’s role in reviewing the scope of a prerogative power, as opposed to its exercise.”

As the Law Society of Scotland pointed out in its helpful briefing note, that takes us further than the pre-2011 status quo ante. It considers that extending the clause to the purported exercise of the Clause 2 powers, or a purported decision in relation to those powers, may go beyond the bounds of the previous law as expressed in the 1985 case of Council of Civil Service Unions v Minister for the Civil Service. As the note goes on to say:

“We take the view that the inclusion of ‘purported’ appears to be designed to address the decision in R (on the application of Privacy International) v Investigatory Powers Tribunal and others … where the absence of the word ‘purported” was treated as significant by some of the judges.”


Either the Bill restores the status quo ante or it does not. If the Government are to be consistent and achieve the situation as it existed prior to September 2011, the references to the “purported exercise” and “purported decision” of powers under Clause 2 need to be removed from the Bill.

The second and fundamental objection is one of principle. The use of “purported” means that the exercise might be beyond the power vested in Ministers. I am not in favour of Ministers having the capacity without it being open to challenge in the courts. The Minister in the Commons, Chloe Smith, said that the clause provided

“an opportunity to Parliament to be absolutely clear on whether it thinks that such things should be outside the jurisdiction of the courts.”

She went on to say that

“the check on the exercise of power is for the electorate to decide on rather than the courts.”—[Official Report, Commons, 13/9/21; col. 723.]

“Purported” decisions might conflict with the rule of law. The Minister in the other place was effectively saying that it was not for the courts to determine whether Ministers were acting beyond their powers. I do not think that the letter from my noble friend Lord True really engaged with that point.

It is important to stress that the clause should not be viewed as an attempt to restrict the courts from encroaching on the position of Parliament. That might be how Ministers wish to convey it, but the senior courts have been exercised by the use of powers by Ministers, not by Parliament. Indeed, the most recent high-profile cases that appear to have motivated the Government to use this wording were ones in which the courts sought to protect, not undermine, the position of Parliament in relation to the Executive. In this clause, the Government seek to confer on Ministers wide-ranging powers in a way that I consider dangerous.

The wording of the clause might also be counterproductive. There is no evidence that the courts would want to encroach on the exercise of the prerogative in dissolving Parliament and calling an election.

With these amendments, we are also discussing whether Clause 3 should stand part of the Bill. My contention is that if there is an ouster clause, it needs to be true to the purpose of the Bill, which is to restore the position to what it was before 2011, and that it should omit provisions—in this case reference to “purported exercise” and “purported decision”—that are constitutionally objectionable. If the Government persist in wishing to retain such wording, that serves to reinforce the case for removing the clause. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I added my name to the amendments in the name of the noble Lord, Lord Norton of Louth, and to join the noble Lord, Lord Butler of Brockwell, in seeking to remove Clause 3 from the Bill. I agree with what the noble Lord, Lord Norton, said in both respects. He dealt with the point that the provisions he seeks to remove from the Bill are unnecessary and objectionable in principle. I will say a few words in support of what he said.

Like the noble Lord, Lord Norton, I cannot help feeling that references to “purported exercise” and what we see in Clause 3(c) are a reaction against, or motivated by, as the noble Lord said, the decision of the Supreme Court in Miller II, although that case was about Prorogation, not Dissolution. There is a very clear distinction between the two, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said at an earlier stage in our debates. It is also very important to bear in mind that the court in Miller made it absolutely clear that it saw its function as being to serve the interests of Parliament against the Executive. It sought to ensure that the Government did not use the power of Prorogation to prevent Parliament carrying out its proper functions, including holding the Executive to account.

We have here a remarkable paradox. On the one hand, the court saw itself as under a duty to preserve parliamentary democracy against actions taken by the Executive. On the other hand, Parliament is being used here by the Executive to deprive the court of that power. I stress that because ouster clauses may seem to be a matter of concern only to lawyers, but that is not so in this context: their use here should be a matter of concern to all of us in this House who value the part that Parliament plays in our democracy.

Dissolution and Calling of Parliament Bill

Lord Hope of Craighead Excerpts

2nd reading
Tuesday 30th November 2021 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I will concentrate my remarks on Clause 3, the so-called ouster provisions. The clause is deceptively short and simple. There are three provisions here, as the Minister explained, and they had the support of the majority of the Joint Committee on the Fixed-term Parliaments Act, to which reference has already been made. But the chair of the Public Administration and Constitutional Affairs Committee in the other place described them as

“legally unnecessary and constitutionally unwise.”

The Joint Committee’s commentary tells us that first two provisions are there to confirm that the exercise or purported exercise of the powers relating to the Dissolution and calling of Parliament set out in Clause 2 are not to be questioned by any court. These two provisions may well be seen to be unnecessary, because that is the provision already. In the Council of Civil Service Unions case to which the commentary refers, Lord Roskill said that the prerogative power relating to the Dissolution of Parliament was not amenable to the judicial review process. As he put it, the courts are not the place to determine whether Parliament should be dissolved on one date rather than another. But in view of doubts as to whether prerogative powers can be revived, to which the noble Baroness, Lady Smith of Basildon, referred, the protection that the prerogative afforded may possibly not be available, because we would be dealing here with powers conferred by statute. So I can see that there is a case for providing the protection as to their exercise that a statutory power might not otherwise have. It is right that there should be no room for doubt on this matter, for the reason given by Lord Roskill.

The third provision in the clause is an entirely different matter. It seeks to extend the protection of non-justiciability to the “limits or extent” of those powers. As the commentary explains, it is designed to address the distinction drawn by the Supreme Court in Miller v the Prime Minister as regards the court’s role in reviewing the scope or extent of a prerogative power as opposed to its exercise. It seeks, as the commentary put it, “to clarify” that neither is justiciable in the context of decisions relating to Dissolution. This is the provision that was described by the chair of the Constitutional Affairs Committee, in what I would regard as a carefully worded understatement, as “constitutionally unwise.”

In its report, the Select Committee of this House on the constitution, of which I am a member, said that

“judicial review should provide a backstop against exceptional use of an executive power which significantly erodes a fundamental principle of the UK constitution.”

It went on to say:

“There is a risk that a Prime Minister might abuse the power of dissolution if the courts are unable to exercise control over the limits and extent of this power, particularly in exceptional circumstances.”


I think that is what the chair of that committee was referring to.

I have no doubt that the Prime Minister felt aggrieved by what the Supreme Court did in Miller. So too, in a way, did I. As it happens, I was a member of the Commission that took part in the Prorogation ceremony. I felt that it was my duty, as convenor, to support the Lord Speaker’s decision to take part in the ceremony in response to Her Majesty’s command, while respecting absolutely the decision of the leaders of the opposition parties—the noble Baroness, Lady Smith of Basildon, and the noble Lord, Lord Newby—not to do so. So it was a bit of a shock to the system to be told by the court of which I was previously the deputy president that the proceeding in which I took part was unlawful, null and of no effect. I did not see that coming.

The decision in that case was, of course, controversial. I will refrain from any comment one way or the other as to how the court applied the law to the facts that were before it and especially the remedy it chose. However, I have no doubts at all about its analysis of the law. Two fundamental principles of our constitutional law were at play in that case. The first was the principle of parliamentary sovereignty; the second was the role that the courts play in protecting parliamentary sovereignty from threats posed to it by the use of prerogative powers by the Executive. The court was entirely right to point out that the sovereignty of Parliament would be undermined, as the fundamental principle of our constitution, if the Executive could, through the use of the prerogative, prevent Parliament exercising its legislative authority for as long as it pleased. If parliamentary sovereignty is to play its role, particularly in extreme circumstances, it needs that protection.

That is what the case of Miller was all about. The crux of that decision was whether “the limits or extent”—those are the words of the third provision in the clause—of the prerogative power had been exceeded. It was not about whether, if it was within those limits, the prerogative power had been properly exercised. The commentary on this provision says that it “seeks to clarify” this point. Not at all—all the clarification one needs is to be found in Miller. What this provision seeks to do is remove that protection altogether. That is why it is not only unwise but dangerous.

I hope that I may be forgiven for quoting, as so many people do, the words of Dick the Butcher in “Henry VI, Part 2”. He said:

“The first thing we do, let’s kill all the lawyers.”


He did not like the idea that a few words scribbled by a lawyer on a parchment could undo a man’s reputation. That was just a throwaway line, perhaps in jest, but it serves as a warning about the risks to which democracies may expose themselves if they react in this way against decisions by the judges that they do not like.

I too read the article in the New Statesman to which my noble friend Lord Butler of Brockwell referred; it is well worth reading. There is a spectrum, as it put it, along which countries can move, gradually or suddenly, as the protections on which democracy itself depends are eroded, one by one. I agree with the noble Lord that gradual erosion is what seems to be going on here. Removing the protection that the courts provide in this context may seem relatively unimportant to those in this Government who would say that it is not needed anyway: “So let’s keep the judges out of it”, they are telling us. But the sovereignty of Parliament is fundamental to our democracy. Just as fundamental is the need for it to be protected against the Executive’s misuse of the prerogative, whatever it may be and whomsoever it may come from. Maintaining that protection is what the courts have been doing for centuries. We deprive them of that role at our peril. That is why I believe that the third provision in this clause should be removed from the Bill.

UK Government Union Capability

Lord Hope of Craighead Excerpts

Thursday 1st July 2021 Lords Chamber

[Lord Hope of Craighead (CB) [V]]

My Lords, the key message which I take from the seminal review of the noble Lord, Lord Dunlop, is that we must find ways of ensuring that devolution as a core factor and the strength and solidarity which the union provides work together in the common interest.

The union is seen by many in Scotland to mean London, and, as others have said, hearts and minds are unlikely to be won by waving the union jack or by ridiculous events such as the Department for Education’s One Britain One Nation Day. It is the handling of the practical things that matter. The union has to be seen to be working well in Scotland in a way that persuades people that it is on their side and needs to be taken seriously. This requires the building of better relationships and improving trust and confidence at all levels within the Civil Service and, especially, across government.

The Government’s recognition of common frameworks in the final stages of the internal market Bill, which I am sure the Minister will remember well, was an important step forward; so too has been the development, in partnership with the devolved Administrations, of a framework for a UK-wide subsidy control regime, now to be found in the Subsidy Control Bill.

As for the proposals, a UK Government and devolved Administrations council, replacing the regrettable ad hoc systems that exist at present, would have key role to play, but can we expect agreement on this proposal by the end of the Summer Recess? The proposal for an annual meeting between the Prime Minister or his deputy and the First Minister or Ministers seems to fall short of what is needed to build trusting relationships. Surely at least two such meetings, attended by the Prime Minister himself and not a deputy, should be required. As it is, the proposal seems half-hearted. Strengthening the union requires much more than that.