Scotland Bill
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Lord McCluskey (CB)
My Lords, I support the amendment proposed by the noble Lord, Lord Forsyth. I can be brief because he has covered many of the arguments. I wish to make it clear that in my view and, I think, the view of many, the important thing is that this Bill does not concern simply Scotland but the United Kingdom, and in particular the taxpayers in Great Britain. That is why the noble Lord mentioned Wales and, of course, the north of England.
The general view is that Scotland has for many years been subsidised by taxpayers in the rest of Great Britain. That view is inconvertible and I think that the Treasury strongly supports that opinion. Whether that subsidy has been justified is a different question that I will not go into at this stage. The underlying issue is not the interpretation of a word such as “detriment”, which does not mean too much, although, if you ask the people of Wales, they will tell you that they recognise it when they see it arising from this Bill. The real underlying issue is whether taxpayers in the rest of the United Kingdom, and certainly in the rest of Great Britain, should continue to subsidise the Scots and, if so, at what level and on what basis. The issue underlying that is whether it is time for this House to face up to the weaknesses of the Barnett formula and begin to ask whether it is proper to make need the sound basis for supplying tax money to different regions of the United Kingdom.
We have waited for the fiscal framework since May 2015, when the Bill was introduced in the House of Commons. I agree with the noble Lord, Lord Forsyth, that we cannot do our job without the fiscal framework. However, my one reservation about the amendment is that I fear it would let the SNP off the hook because the truth of the matter is that it cannot live with devo-max on any basis other than an improved subsidy; and, if it cannot live with devo-max, it certainly cannot live with independence. Therefore, the argument on this matter is very important because it reveals the basic weakness of the Scottish National Party’s position. I hesitate to give it an excuse for blaming us and condemning us in the usual terms as being unelected et cetera. Therefore, I invite your Lordships to support this measure but I hope that, ultimately, the noble Lord will withdraw the amendment.
Lord Hope of Craighead (CB)
My Lords, the point that the noble and learned Lord, Lord McCluskey, made at the end of his brief speech seems to me to support the position that the Minister is urging us to adopt. The last thing we want is to be seen to be delaying the progress of the Bill through Parliament. As I listened to the noble Lord, Lord Forsyth, what occurred to me was the lack of clarity over how today’s debate will be affected by the absence of the fiscal framework. The Bill proceeds in stages, of course. We are looking today at the Committee stage and the fine wording and tuning of the various clauses in Parts 2 and 3. For the moment, I do not see how the wording of those clauses will be affected by the fiscal framework. At a later stage, the noble Lord may propose that we should not allow these clauses to go forward in the Bill. However, that could be done on Report; it does not have to be done today. If, as the Minister said, there is a prospect of the fiscal framework being agreed tomorrow so that we have it before us on Report, I do not see why the points made by the noble Lord, Lord Forsyth, cannot be examined at that stage, too, or, as a last resort, at Third Reading. Given the nature of today’s debate, I respectfully suggest that the balance of advantage is to proceed to maintain the parliamentary timetable, which is crucial if we are to do our job of supporting the Smith commission.
Scotland Bill
Lord Hope of Craighead Excerpts(8 years, 2 months ago)
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Lord Hope of Craighead
My Lords, this amendment is the first in a group which deals with Clause 68 and draws attention to the very broad nature of this clause, which is usually described as a Henry VIII clause. In this group are five amendments in my name: Amendments 79A to 79E, which are also in the name of the noble Lord, Lord Forsyth.
May I explain a little of the background to this series of amendments? In recent months increasing concern has been expressed in this House about the use of Henry VIII clauses. I recall particularly the debate on the report of the noble Lord, Lord Strathclyde, arising from the concern about the use of statutory instruments and the inability of this House to amend them and do anything other than pass or refuse to pass them. It was in that connection that the noble and learned Lord, Lord Judge, delivered a very powerful speech that alerted us to the great dangers of overuse of Henry VIII clauses.
Clause 68 has been cited as a particularly extreme example of the use of this type of clause. To explain the point, I will analyse the clause a little to see what it actually does. It is headed:
“Power to make consequential, transitional and saving provision”.
I have no complaint about transitional and saving provision. My amendments seek to remove from the clause those parts that refer to consequential provisions.
If you look through the clause you will find that subsection (1) would give power to the Secretary of State by regulations to make,
“such consequential provision in connection with any provision of Part 1, 3, 4, 5 or 6 … as the Secretary of State considers appropriate”.
Part 2 is not mentioned there. If you look at Part 2, you will find more precisely targeted provisions dealing with related powers in Clauses 15 and 19. The draftsman has taken the trouble to provide provisions related to the needs of that particular part. In this subsection you will see that Parts 1, 3, 4, 5 and 6 are grouped together in a way that does not attempt to target the need for the provision in any particular way at all.
Then you will find in subsection (2):
“Regulations under this section may amend, repeal, revoke or otherwise modify any of the following (whenever passed or made) … an enactment or an instrument made under an enactment … a prerogative instrument … any other instrument or document”.
Subsection (3) is very wide because of the way in which it enables these regulations to proceed. They may be used for all sorts of purposes which are set out in the subsection.
As far as the expression “an enactment” is concerned, there is a definition in subsection (7), which tells us that it includes,
“an Act of the Scottish Parliament”,
but also goes on to say that it includes,
“a Measure or Act of the National Assembly for Wales, and … Northern Ireland legislation”.
It is startling to find references to the measures passed by the other devolved institutions in a Bill that purports to deal only with Scotland.
If you look carefully at subsection (5) you can find that the regulations may repeal,
“any provision of primary legislation”,
and that expression is defined as including an Act of Parliament—in other words an Act of this Parliament. The Secretary of State is seeking to assert to himself a power to,
“amend, repeal, revoke or otherwise modify”,
a whole range of statutes including Acts of this Parliament and measures of the devolved institutions, without any limit of time whatever for any purpose he may consider proper, so long as it can be described as consequential.
There are four features of this provision which are the source of particular concern and I have, in a way, hinted at them in the opening remarks. First, there is no limit on the time during which this power may be exercised or on its extent. Secondly, there is no attempt to relate the provisions about consequential provision to the needs of any particular parts or clauses within the parts referred to in subsection (1).
Thirdly, the power is to be exercised by statutory instrument, which has all the defects referred to in the debate that I mentioned earlier. All we can do is look at what the instrument says and either pass or refuse to pass it. There is no opportunity for this House, or indeed the other place, to subject it to the scrutiny that primary legislation would receive. That is quite extraordinary when you consider the scope of the power that the Secretary of State is seeking to give himself.
Fourthly, the power is to be exercised by the Secretary of State, but there is no provision that he is to be required to consult Scottish Ministers. We have already had debates about Clause 2 and the Sewel convention, which is not being made part of a statutory provision. It is subject to the word “normally”, and its scope and application are open to some question unless they are spelled out in the statute, and it is perhaps not entirely clear whether it extends to statutory instruments as well as to primary legislation.
Therefore, the scope of the clause is in itself disturbing, but in this Bill, of all Bills, it is even more extraordinary because, as we have been told from the very beginning, the purpose of the Bill is to give effect to what one finds in the Smith commission report—no more, no less. Yet the power given to the Secretary of State will enable him to go well beyond what is set out in this Bill and it is not qualified in any way to limit the Secretary of State to what may be found in the Smith commission report, however widely one might construe it.
This really is an extreme provision which ought to be edited in some way to make it clear that what is being done relates to the nature of the Bill, which deals with Scotland, and to the need of the clauses or parts of the Bill in question to give effect to the Smith commission report. As it stands, it seems far, far too wide. It may simply be the product of—if I may say so with all due respect to those who are responsible—lazy draftsmanship. Of course, it is dead easy to write in words as widely as we find here without giving any thought to how necessary they may be.
For those reasons, I respectfully suggest that this clause is defective in so far as it seeks to relate to consequential provisions, and the parts which are the subject of my amendments should simply be taken out of the Bill. I beg to move.
The Lord Speaker (Baroness D’Souza)
My Lords, if this amendment is agreed to, I cannot call Amendment 79AA by reason of pre-emption.
Lord Dunlop
I absolutely stand by what I said earlier. There may be some aspects of borrowing that could be done through secondary legislation, and that will be made clear when we agree and publish the fiscal framework.
Lord Hope of Craighead
Before the Minister sits down yet again, I am not quite sure from his explanation that he has fully taken on board the points made by the noble Earl, Lord Kinnoull, and me about the nature of this legislation—in other words, that the purpose of the legislation is to give effect to the Smith commission report. What concerns us is the opportunity that the provisions as framed—and, indeed, as forecast by the Minister—would give for straying outside the scope of the commission. I do not know whether the Minister’s brief has really addressed that point. If not, perhaps he will be kind enough to say that he will give further thought to it. It is an important matter because we really need to keep faith with the Government’s undertaking when they introduce legislation as to what it is all about.
Lord Dunlop
I will certainly give further thought to what the noble and learned Lord has said and come back to him on it.
Lord Hope of Craighead
My Lords, I am extremely grateful to all noble and noble and learned Lords who have spoken in this debate and, in particular, to the noble and learned Lord, Lord Wallace, who has drawn attention to the report of the Delegated Powers Committee, and to the noble Lord, Lord Norton, for his contribution, given his background on the Constitution Committee. This matter’s constitutional nature is evident from what has been said in the course of the debate. Of course, I am glad that some of the points I have been making have been observed already by those who are providing information to the Minister, but here is a case where—if I may say so with great respect—the Minister has the authority of the House to go back to the draftsmen on the Bill team and say that this has been taken too far and it is time to put an end to the wide use of these clauses.
The Minister has gone some way along that course already, for which I am very grateful, but I urge him to read very carefully the points made by everybody in this debate and reflect carefully with the Bill team on whether the extent of the trimming down he has forecast goes far enough. I appreciate that time is very short, with Report stage on Wednesday. I am prepared, in light of what the Minister has said, to withdraw my amendment for the time being, but I give notice that I have to put down some kind of amendment to keep the point open, because I do not know exactly what he will come up with. So we will return to this issue, because of its importance. Having said that, I am content for the time being to withdraw my amendment.
Lord Hope of Craighead
I am sorry to intervene on the same point but we have today debated Part 7, in which Clause 68 appears. I am not quite sure in which order it will appear on Report. That affects what we do in terms of tabling further amendments. Will it be in the first stage of Report or the second?
Lord Dunlop
This obviously has to be discussed through the usual channels but my understanding is that we will consider the Bill on Report in the same order that we have considered it in Committee.
Baroness Hayter of Kentish Town (Lab)
My Lords, I speak to Amendment 82, in my name and that of my noble friend Lord McAvoy, which allows some time for consultation about the implementation of Clause 50. That clause was a late addition to the Bill, which means there has not been the normal consultation with women’s groups, medics, lawyers, the health service or, indeed, ethicists and constitutional experts. Above all, there has been no discussion about the implication for the funding for abortion for women should they move between Scotland and England or Wales, should any differences emerge in the future between the laws on abortion either side of the border. We should consider the lessons of Northern Ireland before implementing this new provision.
Although the Smith commission reported that the parties favoured the devolution of abortion, regarding it as an anomalous health reservation, it recommended only that further serious consideration should be given to its devolution and a process established immediately to consider the matter further. However, that process has not happened and our amendment seeks to give the matter proper consideration before the clause is implemented. Indeed, because the Smith commission did not call for immediate devolution, the Government initially thought that an early change would pre-empt such discussions and there was, therefore, no reference to abortion in the original Bill. An amendment was tabled, but not voted on, in Committee in the Commons, by which stage women’s groups and the Scottish TUC began expressing their concerns, particularly that this could have a discriminatory impact on women in Scotland, just as in Northern Ireland.
The inclusion of the provision was announced by the Government on 14 October, with the amendment tabled on Report in the other place and with none of the debate that took place during the original devolution Bill. Looking back to 1998, there was quite a strong view that abortion, duly protected and regulated by law, was a human rights issue and not simply a medical or, indeed, a criminal matter. There were many voices of the view that a woman’s right to choose should be universal, not delimited by boundaries and borders.
It is this risk of cross-border differences, leading to women having to travel for an abortion, that concerns many, partly because it might undermine the notion of a UK citizenship, but also for the more prosaic but serious issue that there is a fairness dimension. Moving country for a termination is an option more open to the wealthy and well connected than to those without access to money, transport or friends in distant parts. We know the difficulties and trauma that such journeys involve for many Irish women. Indeed, because of the variation in law, some 5,000 Northern Irish women and 20,000 from the Republic of Ireland travelled to Great Britain for an abortion between 2010 and 2014. That is 12 Irish women crossing the Irish Sea every day.
This reflects the fact that when women are desperate for an abortion, whether as the result of rape, because of foetal abnormalities, because of incest or because the woman cannot handle a child due to her psychological state or her age—there are girls as young as 14 coming here for abortions—she will do whatever is needed. No border will prevent that. What is more, though a child in Northern Ireland can come over to be treated at Great Ormond Street on the NHS, her mother, needing an abortion, cannot get it on the NHS but has to go privately and pay, in addition to air fares. It is for these reasons that we need to consider how different rules in England and Scotland would be handled, should teenage girls have to make cross-border journeys to have the procedure, for example. For nearly 50 years, there have been the same rights across Great Britain, but this clause could alter that.
It is not that we anticipate any change in the Scottish law. Indeed, the First Minister said that her Government had no intention of changing the current law, but she cannot, of course, bind her successors. Given the demand for abortion to be devolved, there is surely the possibility of a change being made. It is better to think through the implications now rather than after any such decisions. Indeed we read suggestions that the new power will indeed be used to change Scottish law, with CARE for Scotland, a charity, saying that there should be a debate among MSPs about whether Scotland has the right laws. Lynn Murray of the Edinburgh branch of SPUC has said that devolving abortion would get people thinking about it and that it is time that we looked at it again, while the Scottish Secretary for Social Justice, Communities and Pensioners’ Rights, Alex Neil, has said that he personally favours reducing the 24-week limit.
That is of course a matter for the Scottish people, so we shall not resist or seek to remove Clause 50. However, we need time to consult on and possibly prepare for any impact that such a change could bring and how to respond, particularly as to whether women living in Scotland—be they English women, Welsh women or Scottish women—would be able to have an NHS-funded abortion, say in Newcastle or elsewhere, should they then fulfil our criteria for termination but not new criteria in Scotland. Whatever differences might emerge, some women will want or be forced to travel from England to Scotland or from Scotland to England to exercise their rights under one or other of the two laws. Amendment 82 allows for a 12-month consultation with relevant groups and representatives in Scotland and in the health service to ensure that the process is correct and to follow the wise advice of the Smith commission.
I turn to Amendments 80 and 81 in the names of the noble Earls, Lord Kinnoull and Lord Dundee. Amendment 80 provides that Clauses 13 to 68 would not come into force until the relevant Secretaries of State were satisfied that the Scottish Government had appropriate arrangements in place to exercise the relevant powers. That would mean that discretion remained with the UK Parliament on matters that will be devolved issues, undermining one of the most important principles of the devolution settlement. Your Lordships will not, therefore, be surprised that we oppose this amendment.
In a similar vein, Amendment 81 would delay the devolution of the Scottish Crown Estates until the Secretary of State had laid a report before Parliament regarding the Scottish Crown Estates commissioners and the arrangements to facilitate the transfer of assets. We do not consider it appropriate to delay the commencement of this clause. Furthermore, we understand that talks are taking place between officials on the transfers of assets and that those are still ongoing. It would perhaps be helpful if the Minister could indicate whether the issues included in the amendment are part of such discussions. We understand that the date for the transfer has yet to be decided or even much discussed. I do not know whether the Minister has any further update on this since the letter that he wrote to my noble friend Lord McAvoy on 12 February. We look forward to his comments on that.
Lord Hope of Craighead
My Lords, I add a word in support of the amendment in the name of the noble Baroness, Lady Hayter. It is remarkable that the provision in Clause 50 was not in the Scotland Bill of 1998. I am old enough to remember the debates that took place on that Bill and, as I recall, the provision was not part of the Bill for a very deliberate reason: it was regarded at that stage as undesirable that there should be any question of a difference in law between the laws of Scotland and those of England and Wales in relation to abortion. Things have moved on since then and the noble Baroness has made it clear that she is not opposing Clause 50. However, with great respect, the point that she makes is important given the way in which the clause has been introduced into the Bill at a late stage and the difficult and sensitive matters to which she drew attention in her speech. As I say, this was thought about carefully in the late 1990s when the original Scotland Bill was being considered and my recollection is that there was a deliberate decision to keep it out, for fear that it might give rise to undesirable consequences. That risk, which I think the noble Baroness was mentioning, makes her amendment one deserving of careful consideration.
Scotland Bill
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Lord Lang of Monkton (Con)
My Lords, a number of points have been raised on this group of amendments. Amendment 43 refers to “may” and “must”. When I was a young, dynamic junior Minister in the Scottish Office, I once tried to change “may” to “must” in a Bill that we were bringing before Parliament. I was told by my officials that: “In effect, Minister, ‘may’ means ‘must’”. This was, of course, in the premiership of my late lamented friend Baroness Thatcher. I rather like the triangulation, offered by the noble Lord, Lord Gordon of Strathblane, that “shall” is probably better than either of them. No doubt the Minister will have an answer to that point.
I support the noble Earl, Lord Kinnoull, on Amendments 45 and 47 and echo what has been said by my noble friends Lord Dundee and Lord Sanderson. This is an important issue because centralisation—to which the noble and learned Lord, Lord Wallace, drew attention—is a very alarming trend that is taking place in Scotland. We see it threatening the universities. I had a hand in the universities when I was Secretary of State: I created their separate funding council in Scotland and took part in expanding university activities. To see anyone intervening in the independence of the universities worries me greatly.
One can see it in the police, too. Again, I made changes to the police force when I was Secretary of State but I resisted any suggestion of centralising, which I thought was a seriously wrong step. I would have liked to have privatised Scottish Water, but I was able to set up three separate corporations. Once they had created a record of performance, they would have been able to follow the English ones—already in the form of corporations—into private ownership. Sadly, I was no longer in power, and nor was my successor, my noble friend Lord Forsyth, when that point was reached.
There has been a trend, not just confined to the present Government but over time, for the devolved Parliament not to devolve further: not to decentralise but to centralise. That is why I feel strongly that we do need, as the noble Earl suggested, a separate Scottish Crown Estate commission. Indeed, I had rather assumed that that would be forthcoming. I regret to say that I do not have the Smith commission report with me now and I cannot quote the wording, but I was under the impression that the noble Lord, Lord Smith, anticipated some form of further decentralisation affecting this organisation. I do not believe that he thought that it should pass into the maw of the Scottish Government, for them to despoil or develop as they think fit. It has been immensely successful over the years and it deserves to be maintained, as my noble friend Lord Sanderson said. It should, of course, be accountable to the Scottish Parliament and its Ministers, just as happens in the United Kingdom with the Crown Estate.
On Fort Kinnaird, I echo what my noble friend Lord Sanderson said. This is a separate venture, not a wholly-owned part of the Crown Estate Commission. To intervene in a joint venture with an outside commercial body, which is maturing well and is part of a good, well-established relationship with that body, would jeopardise the interests of both the outside partner and the estate commission itself. Therefore it was and remains right not to interfere with the arrangement but to allow it to continue. To force some kind of disposal might jeopardise the venture itself and the Scottish Crown Estate commission to some extent. That cannot be in the interests of anyone involved in this debate. So I support what the noble Earl, Lord Kinnoull, said and I hope that the Minister will respond favourably.
Lord Hope of Craighead (CB)
Just as a footnote to the point that noble Lords have made about Fort Kinnaird, one can see from the Crown Estate commissioners website the structure of the venture that has been described. The Crown Estate commissioners themselves have,
“a 50 per cent interest in an English Limited Partnership which owns Fort Kinnaird Retail Park in Edinburgh”.
The venture is a partnership. The ownership and presumably the management of Fort Kinnaird are in the hands of the partnership and I take it that the commissioners draw a revenue out of that arrangement.
That takes one to the essence of the role of the commissioners, as described on their own website, which is one of management of the resources in order, as they put it,
“to deliver the best value over the long term”.
Of course, the interest for the UK Government at present is in the revenue. The commissioners make it clear that their function is to pay all the “annual revenue profit” to the Government. I would have thought it absolutely crucial to maintain that position, that in so far as the assets are concerned, they are managed in the broad interest of maintaining the assets for the best value. Of course, the revenue would then be transmitted to the Scottish Government, as would be consistent with the present position. That distinction between capital and revenue management and payment is absolutely crucial to the point that various other noble Lords have been making.
Lord Mackay of Drumadoon (CB)
As my name can be found in some proximity to the amendments that are being discussed in this opening round of speeches, I do not intend to go into any great detail about what we have heard. I am, however, struck by the fact that people are talking as if the best way forward will involve a significant measure of respect and agreement and will not give any excuse for a deterioration in the relationship between the voters, which was to some extent apparent when devolution came along.
It falls to me, in view of one of the speeches that we have heard, to declare an interest that during a period of years when I was actually a Member of your Lordships’ House, prior to becoming a High Court judge in Scotland, I spent quite a lot of my time working with companies in the electricity industry. It fell to me to give them advice when they sought it and to work with them on a practical basis when they set about seeking the erection of a new power station or some other building associated with a power station or the erection of new electricity wires to take electricity to different parts of Scotland and, indeed, further afield.
I appear in this debate having received a brief from the Law Society of Scotland, which takes an interest in these matters. It is clear from what has been suggested to me that it is not alone in encouraging agreement. On that basis, I invite Members of your Lordships’ House to rely on the proposals which, as I say, are proximate to my signature.
Lord Forsyth of Drumlean
I was not suggesting that the name would be changed—I was saying that it might suit the nationalist agenda.
Lord Hope of Craighead
When the Minister replies on Clause 43, could he give us some other examples of cross-border authorities? As I understand Clause 43, it does not abolish the British Transport Police or alter its functions in relation to Scotland; they will be devolved, if Clause 42 is passed. But it would help the Committee if we had some examples of other cross-border authorities, so we can grasp what kind of things we are dealing with. From points that other noble Lords have made, it may be that we are not really comparing like with like in talking about the kind of cross-border authority referred to in the Scotland Act—or the Orders in Council passed under it, presumably under Section 88(5). They are relatively simple creatures, which do not have implications of the nature described by other noble Lords. But some examples of other cross-border authorities would help us to grasp the implications of this very significant clause. I hope I am not asking the Minister to do something for which he is not prepared, but if he could write to us and give us examples at a later stage, that would be very helpful.
Lord Faulkner of Worcester (Lab)
This has been a remarkable debate, and I am sure that British Transport Police officers will be delighted by the degree of support expressed for them in all parts of the Committee, starting with the splendid speech from the noble Lord, Lord Empey, who was followed by the noble Lord, Lord Forsyth.
I shall correct one thing the noble Lord, Lord Forsyth, said. He said he thought the force had been around since the 1850s. That is not right. The force was started in 1825, in the earliest days of the railways. It predates a great many of our normal civil forces. The reason the railway police were formed in the first place was because criminals discovered that by getting on the new-fangled trains they were able to get away from the scene of the crime much quicker than they could by any other means. It was therefore necessary to have a force that was able to operate across county boundaries and country borders.
I find it extraordinary that this proposal to lose that ability should come forward now. I should remind your Lordships that breaking up the British Transport Police has been tried once before. It was done around the year 2000 by somebody called Ken Livingstone, who was Mayor of London. He was anxious to hand the duties of the British Transport Police over to the Metropolitan police force because he felt he had some control over it. The Government of the day, after some deliberation, decided that that was not a sensible thing to do and it was much more sensible to build on the skill and expertise of the British Transport Police; extend its jurisdiction, to which my noble friend Lord Berkeley referred, where necessary; give it, after some reluctance, the opportunity to arm a limited number of its officers, which it had asked for; and, above all, encourage it on what it did really well, such as combating scrap metal theft. The BTP led the government task force on that subject and made a huge contribution to reducing the incidence of metal theft after Parliament passed two important pieces of legislation which regulated that business.
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Lord Purvis of Tweed (LD)
My Lords, it was fairly dispiriting to come back into the Chamber and to see our archaic language—which, as a Member of this House compared with being a Member of the Scottish Parliament, it has taken me a while to adjust to—on the annunciator. It announced that the House was “Adjourned during pleasure”, and it was dispiriting when the “pleasure” ended and the Scotland Bill was brought back to us. When I first saw that announcement on joining this House, I asked the Clerk of the Parliaments was it was. He asked me, “Didn’t you have any pleasure in the Scottish Parliament?”. I replied, “No, not very much at all”.
It was a pleasure to hear the noble Lord, Lord Foulkes. His persuasive skills are renowned but I am afraid that I am not persuaded by the case that he made. When I was a constituency Member of the Scottish Parliament, I considered it to be absolutely my duty to be as effective in that role as anyone else, but I was also aware of the pressures on constituency and regional Members of the Scottish Parliament. At one time, I was a member of three parliamentary committees: two were legislative and one—the Finance Committee—was both a scrutiny and a legislative committee. There was most certainly a strain on the number of Members.
It is worth reflecting that it was not designed to be like that. When the Parliament was established and the consultative steering group looked at the fundamental principles of how the Scottish Parliament should operate, it was designed to be a very different type of institution from the one here. There was going to be much stronger pre-legislative scrutiny and that element has been successful. This Parliament has learnt from that approach to pre-legislative scrutiny, with draft Bills now becoming the norm.
The committees in the Scottish Parliament, because of its nature, are both legislative and scrutiny committees. They were designed to be the strength of the Parliament. In a previous element, the noble Lord, Lord Forsyth, said that the Scottish Parliament sits for only one and a half days. When I was a Member of that Parliament, that was a frustrating misconception reinforced by some of the press, which I felt had an agenda against the Parliament. There were plenary sessions but, unlike in this place, the committees in the Scottish Parliament had precedence. They met on Tuesday mornings, Tuesday afternoons and Wednesday mornings because of their distinct role.
The feeling was that the convenors of committees were going to be equal to Ministers and that their parliamentary strength was going to be in balancing the Executive’s authority. There was to be a shadow civic Parliament, with a much stronger civic input into the way that the Parliament operated. It is disappointing—there is a mea culpa from my party, which was part of the Administration early on, but it has most certainly been accelerated since 2007—that the Scottish Parliament has become remarkably like the Westminster Parliament. It has an absolutely dominant Executive and the committees have gradually become weaker. Their convenors are not even elected by the whole Parliament—an innovation of the House of Commons. The procedures of the Parliament have become weak in relation to power over the Executive when it comes to money. If there is anything that the Scottish Parliament can learn from our experience now, it is that Parliaments that reduce the ability to hold government to account for the money that it spends on behalf of the people are weakened Parliaments.
Ultimately, that has meant that there have been some examples where there has been less scrutiny than I, as a former Member of the Parliament, would have liked—whether that is on police reform, where mine was the only party to vote against what has happened because there was a large majority and the Executive were able to take it through; criminal justice reform; two areas that are currently being challenged by Brussels, on the Scottish Futures Trust and the delivery of infrastructure; minimum unit pricing, which has been challenged; or the quality. Fundamentally, these are my observations as a former Member who loves that institution, wishes it well and was a very proud Member of it.
However, I agree with the noble Lord, Lord Forsyth: it is not for this place to tell that institution what to do. If this place is to have a role—I know that members of the major party in Scotland will never accept that, and I understand the reasons for it—it is sometimes for former Members of the institutions with deep respect say to that institution that it is worth it considering its own procedures. I live in the area that I used to represent as a Member of the Scottish Parliament, and so I maintain a vested interest in that Parliament working well.
There is a case for some form of much heightened, strengthened pre-legislative scrutiny. Sir David Edward, whose qualifications I do not need to rehearse, argued in a very good lecture for a council of state, using the existing organisations that we currently have set up in Scotland—for example, the ombudsman—to be a much stronger check on the proposals being put forward. Corroboration is one area where there should have been stronger pre-legislative scrutiny.
Equally, I believe that there will increasingly be an argument for some form of check before the final stages of Scottish Parliament legislation. If there is a reformed House of Lords, it could be that we have a mandate from the Scottish people directly, or indirectly through the Scottish Parliament for senators in this place, and may well have some joint capacity with both the UK and Scottish Parliaments—I will not need to address the next amendment, which deals with the working relationships, because this is my point. Noble Lords may not be entirely surprised to hear me say that, ultimately, that should be one area that we consider in a constitutional convention: to look at the proper functioning and continued strengthening of how the Scottish Parliament operates and the areas where this institution should rightly have a relationship with it. Ultimately, we should seek a better, stronger Scottish Parliament, able to do its job.
Therefore, I am not persuaded by the solution that the noble Lord has brought forward, but I hope, with the deepest of respect to the institution that I love, that it takes it very seriously, especially in the context of the successful passage of this Bill, in which the Scottish Government’s powers over budget and taxation will be greatly enhanced.
Lord Hope of Craighead (CB)
My Lords, I do not want to take up any more time on this issue. However, I remind the noble Lord, Lord Dunlop, that when I followed the noble Earl, Lord Kinnoull, at Second Reading I asked him a question. The question was whether, having regard to what we see in the Bill, he felt that the Scottish Parliament was able to cope with the additional powers that we are passing to it. Of course it is a matter for that Parliament to work its own procedures; I absolutely understand that. However, we do have an interest, since we are devolving these additional powers. It would be very unfortunate if the Parliament as presently constructed, and designed for a totally different situation, was so overloaded that it could not fulfil its function.
Lord Norton of Louth (Con)
My Lords, for similar reasons, I will keep my comments brief, not least since I see that the target is to reach Amendment 42 this evening.
There is general agreement that the noble Lord, Lord Foulkes, has done us a service, because he has identified a problem. The question is how we address that problem, and there are two facets to it. One is how to ensure that there is a review of the present Chamber, but the problem has also been identified as to how, as responsibilities grow, it is going to cope with the demands made on it.
Lord Hope of Craighead
This is one of a group of amendments running through to Amendment 40. Although Amendments 31 and 32 are not in my name, they duplicate ones that are.
This is another group of amendments that I have taken from the group proposed or suggested by the Scottish Ministers in June this year. The interesting feature of these amendments is that they were tabled on 15 June but were either not called or withdrawn. So they were never considered by the other House, and I thought it right to bring them back so that at least they could be considered in this place and not be lost sight of entirely. Their aim is simply to improve the working of Clause 11, which deals with the supermajority system in the event of certain measures coming before the Scottish Parliament. Reading between the lines, I think what has happened is that draftsmen in Edinburgh have worked through the clause, with their knowledge of how the Scottish Parliament works and in the light of provisions in the relevant parts of the Scotland Act 1998, and made suggestions as to how the clauses could be improved.
Because of the lateness of the hour, I do not want to go through the amendments in any detail. However, the first amendment alters the timing of the decision of the Presiding Officer from the decision that the Bill be passed to putting the Motion. There may be some merit in that alteration of timing. In Clause 11(5), two matters are inserted which are reproduced by Amendments 31 and 32, and which are sufficiently important to be included in the list of protected subject matters. I suggest that there is some merit in those. Clause 11(6) inserts passing without a Division as an event which should have the same status as the passing of a Bill by a two-thirds majority. It is conceivable that that could happen, and it is as well to provide for it. If passed without a Division, there would be a consensus that would meet the broad requirements for a supermajority, ensuring that the Presiding Officer would not have to go through the drill of making a statement in that situation as to whether the provision relates to a protected subject matter.
In Clause 11(10) two situations are inserted which, given what appears above, should not trigger a reference. Importantly, a provision is inserted that would enable the Parliament to take the matter back for further consideration, in which event consideration of the issue by the Supreme Court would not be necessary. That type of treatment is already to be found in Section 36 of the Scotland Act, which deals with stages of Bills. Section 36(4) provides that standing orders shall provide for an opportunity for the reconsideration of a Bill after its passing if the judicial committee decides that a provision would not be within legislative competence. The same mechanism is thought to be appropriate for the supermajority solution. All these amendments are very technical. I do not think there is any political angle to them. There is simply a desire to improve the working of the Bill and to make sure that this rather complicated provision, which I imagine will very rarely, if ever, be triggered, makes proper sense.
I shall make one brief final comment in relation to the position of the noble Lord, Lord Smith of Kelvin, in relation to this Bill. The noble and learned Lord said, if I understood him correctly, that he was of the view that the terms of the Bill meet the requirements of the Smith commission report. I happened to meet the noble Lord on Sunday, and he said that if that is the impression that Ministers have, he has been misunderstood. His attitude is the attitude of a lay man, and he says that, as far as he is concerned, he has not looked at the Bill from the point of view of a lawyer. If there are matters in which it could be improved, given study by lawyers and legislative draftsmen, he is all in favour of it because his aim is to have a Bill that is as good as possible. He authorised me to say that if Ministers doubt my word, they should speak to him directly. I do not think that the noble Lord, Lord Smith, if he were here, would object to these amendments, whatever he may say about the others.
Lord Stephen (LD)
I rise to speak to Amendments 31 and 34, which are in my name and that of my noble and learned friend Lord Wallace of Tankerness. This is back to the future, back to the debate we had just a few minutes ago about the extension of the length of the term of the Scottish Parliament. The issue is still grouped with these amendments, and our proposed approach is to include the extension of the term of the Parliament in the list of special majority or supermajority issues, except for what will be the second extension of the term of the Scottish Parliament, which the noble Lord, Lord Forsyth, mentioned earlier. That is happening right here, right now because the proposal is for the term which ran from 2011 to 2016, a five-year term, to be followed by another five-year term from 2016 to 2021.
The Bill in the Scottish Parliament to achieve that extension was introduced on 17 November. It is called the Scottish Elections (Dates) Bill. We believe that to make it clear and to avoid any uncertainty or confusion, that Bill should be excluded from the requirement to have a special majority. Otherwise, we agree with the noble Lord, Lord Forsyth, that this is an important issue. I think there could well be some sort of cap on the number of years for which you can extend. For example, extending by one year is perhaps the maximum that any of us would envisage, but if we have an extension of the term of the Parliament, it seems entirely appropriate that, alongside the other issues listed here, it should be by special majority of the Scottish Parliament.
Lord Keen of Elie
I am obliged to noble Lords. Clearly I cannot comment on any dialogue that the noble and learned Lord, Lord Hope, has had recently with the noble Lord, Lord Smith. I merely observe that there is a distinction between improving the Bill in order to implement the Smith commission agreement and, on the other hand, extending the Bill so that it goes beyond the terms of the agreement, or in fact retreating so that the Bill does not implement it. We would of course be happy to pursue further dialogue ourselves with the noble Lord, Lord Smith, if he felt that that would be useful.
These amendments seem to fall into two broad categories: on the one hand, amendments to the current clauses that are intended to improve the drafting of the Bill, and, on the other, a second theme extending the scope of the supermajority clause to matters that were not included in the Smith commission agreement. I shall deal with these in turn. I turn first to those amendments put forward as a means of improving the operation of Clause 11 as and when it is implemented. Amendment 35 would allow for a Bill to be passed without a Division. Our considered position is that a Division is the most straightforward way of verifying that a two-thirds majority in the Scottish Parliament has been achieved. For this reason, we cannot agree with the proposal in Amendment 35, which provides for a Bill to be passed by consensus.
In addition, we do not agree with the proposal in Amendment 39 that the Scottish Parliament should be able to “reconsider” a Bill if the Presiding Officer decides that a supermajority is required and the Supreme Court later affirms this. Nor do we agree with Amendment 40, which appears to provide that the Scottish Parliament should be able to reconsider a Bill if the Presiding Officer decides that a supermajority is required and the Bill receives only a simple majority. We consider that in both these situations there should be careful consideration and no short-cut to a final vote which requires the supermajority in the context of such legislation.
While we agree with the rationale behind Amendments 30 and 38 and parts of Amendments 37 and 40, we believe that the Bill as drafted provides for these considerations and that therefore such amendment is unnecessary. We would of course be happy to discuss this further with the proposers of the amendments.
I will address those amendments which seek to extend the scope of the supermajority provision, particularly Amendments 31 and 33, and I think a part of Amendment 34. Amendments 31, 33 and 34 seek to ensure that legislation brought forward by the Scottish Parliament concerning the period of time between ordinary general elections to the Scottish Parliament should also be covered by the requirement for a two-thirds majority. The second part of Amendment 33 seeks to ensure that Bills concerning the alteration of boundaries of constituencies, regions or any equivalent electoral area for the Scottish Parliament should also be covered by the two-thirds majority. The simple response of the Government is that the Smith commission agreement specifically outlined the subject matter, which it considered should be subject to the supermajority requirement. It did not propose that legislation concerning the term length of the Scottish Parliament, the date of any Scottish Parliament elections or the alteration of boundaries should be subject to a two-thirds majority of the Scottish Parliament. In these circumstances, we would not be content with the proposed amendments. I therefore invite the noble and learned Lord to withdraw his amendment.
Lord Hope of Craighead
My Lords, I beg leave to withdraw the amendment in view of the points that have been made by the noble and learned Lord.
Lord Forsyth of Drumlean
My noble and learned friend’s only argument has been, once again, to rest on the Smith commission. He keeps saying that it had the support of all five political parties. I am not aware of the members of the Conservative Party being consulted at all on the Smith commission proposals; nor am I aware of any discussion on those matters in the other place or in this place. What happened was that people nominated by the political parties got together and produced a report. It really is quite misleading to keep saying that this was endorsed by all the political parties. That may have been true of the Liberal Democrats or other parties but it certainly was not true of the Conservative Party. Furthermore, this was all done at an enormous pace—it was all agreed in eight weeks. As we have heard from the noble and learned Lord, Lord Hope, the noble Lord, Lord Smith, himself has not sought to argue that he has endorsed this Bill in terms of the provisions of the Smith commission.
Lord Hope of Craighead
The noble Lord said that he is not to be taken as approving the precise terms of the Bill as a lawyer. He is not a lawyer. He emphasised that he is a layman, and he speaks as a layman when he endorses what is in the Bill. If it were possible to find ways in which the Bill could be improved in relation to constitutional principles or whatever else, he would be in favour of that because that is not his field and he is aware that there could be room for improvement in those areas. What he emphasised was, “Don’t confuse me with a lawyer. I am a layman and I give it support as a layman”. However, if there were respectable arguments from lawyers, he would give way to them and improve the Bill if that was a way of making better progress.
Lord Forsyth of Drumlean
I am most grateful to the noble and learned Lord for making that clarification. It is important that effective checks are in place. This whole process has been carried out swiftly and without much in the way of discussion either among the membership of the political parties or indeed within the House of Commons. Although four days were allocated to Committee, many of these issues were not considered because of the process by which amendments are dealt with. However, I can sense that folk do not wish me to detain the Committee on this matter and there will be further opportunities to come back to it, so I beg leave to withdraw the amendment.
“( ) In paragraph 1(2)(f) of Schedule 4 (protection of Scotland Act 1998 from modification), after “Human Rights Act 1998” insert “except the Convention rights set out in Schedule 1 to that Act”.”
Lord Hope of Craighead
My Lords, I do not propose to develop this amendment. Without going into the reasons for it, it arose in relation to the Sewel convention. I would have developed the point more fully if there had been time to explain why, but, in view of the lateness of the hour and the fact that we have already discussed the particular aspects of the Sewel convention that we sought to explain more fully, I think the best thing for me to do is not to move the amendment.
Scotland Bill
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Lord Hope of Craighead (CB)
My Lords, it is probably right that I should now speak to Amendment 6, as set out on the Marshalled List, which assumes that subsections (1) and (2) in the new clause remain as printed in the Bill, and then seeks to alter the wording—and, I respectfully suggest, improve it—of subsection (3).
I should explain the origin of the wording of the amendment. I have done my best to keep the Minister informed about my thinking on this matter. As with other amendments on the Marshalled List in my name, the source from which I drew is a series of amendments proposed by the Scottish Government in June, in advance of Committee stage in the House of Commons. However, I tabled these amendments entirely on my own initiative. I am not instructed by anybody and did not table them on behalf of anybody other than me—although they have the support of the noble Lord, Lord Norton of Louth, who may say a word on some of them in due course. It simply seemed to me on reading them, without any political background whatever, that they had some merit in view of their wording and therefore should be discussed. Some of those amendments, which I will come to later, were before the other House but were withdrawn or not moved and therefore have never been discussed. That seemed an unfortunate state of affairs if one is seeking to improve the Bill. This amendment was, I think, tabled on the first day of Committee in the other place and was negatived on a Division. Nevertheless, it is open to this House to look at the wording again and that is what I seek to do.
Before I say more about the wording itself, perhaps I can respond to the point made by the noble Lord, Lord Cormack, about the relationship between the Scottish Parliament and the Parliament of the United Kingdom. The report of the Constitution Committee, chaired expertly by the noble Lord, Lord Lang of Monkton, referred to a passage in a judgment that I wrote in the Supreme Court in a case called AXA General Insurance Ltd v the Lord Advocate in 2011. In the passage referred to, I sought to describe what I understood to be the position between Scotland and the Parliament at Westminster. I made the point that the Scotland Act 1998 provides that the,
“Scottish Parliament takes its place under our constitutional arrangements as a self-standing democratically elected legislature”,
with a,
“democratic mandate to make laws for the people of Scotland”.
I made the point that it does not, and was not intended to, “enjoy the sovereignty” this Parliament has and went on to say that,
“the sovereignty of the Crown in Parliament … is the bedrock of the British constitution”,
and,
“remains with the United Kingdom Parliament”.
Nothing that I may say in the course of the debate is intended to detract in any way from those propositions. I believe absolutely in the crucial position that this Parliament enjoys. It is well understood that the Scottish Parliament does not have sovereignty in that sense, and that is perfectly clear because its legislation can be reviewed by, among others, the Supreme Court to see that it falls within the parameters set for the powers of the legislature under the Scotland Act. That is all by way of background.
In considering the amendments proposed by the noble Lord, Lord Norton of Louth, one has to recognise that the Smith commission, which discussed the matter in layman’s terms, said that the position of the Scottish Parliament should be recognised by legislation. Given that that proposition was made and accepted by all the parties to the discussions before Smith, it seems difficult to avoid having at least a clause that recognises the permanence of the Scottish Parliament. So it is against that background that I do not quarrel with subsections (1) and (2) but direct my attention to the wording of subsection (3), with the aim of improving it to clarify the position.
The amendment would insert a new subsection, which states:
“Subsection (1) may only be repealed if … the Scottish Parliament has consented to the proposed repeal”.
That is there simply to recognise that the repeal we are talking about is a repeal of the provisions establishing the Scottish Parliament in the Scotland Act. There seems merit in the proposition that, if that Parliament is to be abolished, it should at least be in a position to express a view as to whether that is desirable. I am not seeking to undermine in any way the sovereignty of this Parliament; I am simply looking at the relationship between the Parliament created by the Scotland Act and a measure that would seek to abolish it. Once it has been created and when it is still in existence, it would seem rather odd that it should be unable to express a view on whether that should or should not happen.
The other part of the amendment simply looks at the proposition that there should be a referendum, which the Government have accepted should be part of the package to support the remaining provisions in Clause 1. The amendment would clarify what the subject matter of the referendum is to be and state in terms that there would have to be,
“a majority of those voting at the referendum”,
before it had the effect suggested by the clause. The condition is that a referendum has been held in Scotland on the proposed repeal, and that a majority of those voting in the referendum have consented to it. It may be that that is implied by the wording, but it seemed to me that in the interests of clarity, it would be better to make the matter express, because what we are contemplating is such a major political event that the exact condition that would give rise to authorising the proposed repeal needs to be put beyond doubt.
I shall make submissions later in support of other amendments, but those are the reasons behind this amendment and the background to why I tabled it.
Lord Forsyth of Drumlean (Con)
My Lords, I do not often disagree with the noble and learned Lord, Lord Hope, but I think he was walking something of a tightrope there, for obvious reasons.
What is wrong with this first clause is the whole approach to the Bill. The Government, in advance of even knowing what the conclusions of the Smith commission would be, undertook to implement them and expected both Houses of this Parliament to ratify them. In speaking in support of the amendments tabled by my noble friend Lord Norton, I draw the attention of the House to page 7 of our Constitution Committee’s sixth report of Session 2015-16 on the Scotland Bill. Paragraph 8 states:
“The Bill contains a number of provisions of the highest constitutional importance. In affirming the permanence of the Scottish Parliament and Scottish Government and declaring that they are not to be abolished except following a referendum in Scotland, and in giving statutory recognition to the Sewel convention, the Bill carries potential implications for Parliament’s own sovereignty”.
Too right it does.
Paragraph 9 states:
“In our report on the Draft Clauses”—
which were contained in the document which was ironically entitled Scotland in the United Kingdom: An Enduring Settlement—
“we expressed concern at ‘the failure of the UK Government directly to address the implications of these proposals for the United Kingdom as a whole.’ We questioned how any process that did not consider the future of the Union ‘could provide for an “enduring” settlement’, and recommended that ‘the Government give urgent consideration to the consequences of the Draft Clauses for the constitution of the United Kingdom as a whole. This should happen before they are passed into law.’ There is little evidence that such consideration has been given to date”.
That conclusion is something of an understatement, to put it mildly.
If we look at the Smith commission proposals in respect of these amendments and the clause which we are discussing—a point I made at Second Reading—we see that under the heading, “A More Autonomous Parliament”, the Smith commission report stated:
“The Scottish Parliament will be made permanent in UK legislation and given powers over how it is elected and run. The Scottish Government will similarly be made permanent”.
It does not say, “We recommend that Parliament considers how it could be made permanent”, but that it will be made permanent.
Lord Hope of Craighead
I draw the noble Lord’s attention to the fact that the heads of agreement built on what he said by stating:
“UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions”.
Lord Forsyth of Drumlean
Indeed. Perhaps I have missed out on this modernisation process that is going ahead, but I understood that laws are made by Parliament and receive the assent of the Crown. I did not think that they were made up by subcommittees of appointed party politicians meeting in secret and then getting together with the leaders of the parties, who did not in any way consult their parties, with Parliament then being expected to rubber-stamp them. This takes us back to the time of Henry VIII. We could save a great deal of money by getting rid of this whole apparatus of Parliament and leaving it to the leaders of the parties to get together, decide things and agree that they will be passed into law and leave the monarch with the dubious task of having to give Royal Assent to such matters.
A colleague I was speaking to earlier said, “I’m not coming in for the Scotland Bill. I’ve really had enough of Scotland”. I said, “But it’s not about Scotland; it’s about the United Kingdom”. He said, “Oh, I didn’t realise that”. It would appear that the Government do not realise that, either, judging by the nature of this clause.
The Marquess of Lothian (Con)
My Lords, I support Amendment 1. We have heard a lot of intricate and technical arguments and I do not intend to get involved in them.
I listened to the noble and learned Lord, Lord Wallace of Tankerness. He mentioned Section 1 of the Scotland Act. I remember that Act well because I was leading for the Opposition in the other place at that time. I think we all accepted that the Scottish people had asked for devolution, that there would be a Scottish Parliament and that, for all we knew, it would be there for a long time if not for ever. But the word “permanent” was never introduced into the legislation, partly, I suspect, because, as my noble friend Lord Forsyth has said, the draftsmen would not have allowed it, but also because we all accepted that to enter it into the legislation would set a whole lot of other constitutional hares running. That is really my purpose in rising to talk merely about Amendment 1.
What we are looking at here is part of the problem that we have suffered from constitutionally in the country over the past 20 years: we keep on amending the constitution piecemeal, unintentionally, and without regard to the possible consequences in other areas. When I look at this word “permanent”, I see an attempt to say that this Parliament can bind other parliaments by saying that the Scottish Parliament is there for ever.
I said in my speech at Second Reading that, as a young law student in Scotland in the 1960s, I was for ever being taught by various professors about the entrenchment of the Act of Union. Section 1 of the Union with England Act states:
“That the Two Kingdoms of Scotland and England shall … hereof and forever after be United into One Kingdom by the Name of Great Britain”.
I was told that that was entrenched and, parliamentary sovereignty aside, we could accept that would never change. But we went into the Scottish referendum last year on the understanding that, if there had been a yes vote, that Act of Union would have been changed. It would not have been for ever because the Scottish people had decided unilaterally that they did not want it to be for ever. What we are looking at here is very important.
The same applies to this clause. If we believe that permanence is permanence, we should say that it is part of our constitution. Or, we should say that the sovereignty of Parliament is supreme, which is what I have always believed, and that one Parliament cannot bind another. If that is the case, we should not indulge in language that dishonestly suggests that we do not believe that to be true. I am not just talking about this Scotland Bill. If we go down the road of saying that whenever we introduce the word “permanent” into legislation, it will bind subsequent Parliaments for ever, we have substantially changed the constitution of this country, and we would have done that without thought, debate or proper consideration. I do not believe that the clause is necessary.
I did not like devolution. I did not like Section 1 of the Scotland Act. I opposed it, but once it was passed I accepted that it was there and that it would always be there. However, I would not have accepted the word “permanent” being introduced if it suggested that the United Kingdom Parliament was anything less than sovereign. We must think very carefully about this when we look at the Bill. The right reverend Prelate said that we should not get rid of this clause because that would have all sorts of other consequences. But if we leave this clause in, we are giving permission for future Parliaments to create permanence in other areas. I may be too old, possibly, to suffer the consequences of that, but I hope my children and grandchildren will not find that we have abandoned the sovereignty of Parliament just in the cause of getting this Bill through.
Lord Hope of Craighead
I want to put to the noble Marquess a point that I mentioned to the noble Lord, Lord Forsyth. The problem is created by paragraph 21 of the heads of agreement, which states in terms:
“UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions”.
There may be an answer to the point that he raises. The word “permanent” is lay man’s language. After all, this was drafted by people sitting around without consulting lawyers at the time. It could be regarded as lay man’s language and there may be some other way of taking away the word “permanent” but nevertheless fitting it into the UK context. The previous paragraph, paragraph 20, says,
“in the context of Scotland remaining within the UK”.
I am not suggesting a form of words, but I wonder whether the noble Marquess would accept that the Government have a problem in having to give effect to paragraph 21. Maybe there is a way of softening the word “permanent” to fit it in with the United Kingdom and the well-understood constitutional principles. Perhaps we are being too attached to the word “permanent”, which lay men use and was perhaps not very cleverly chosen.
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 Kerr of Kinlochard
I do not think the noble Lord has quite understood my proposal. My proposal is that the language in the amendment in the names of the noble and learned Lord, Lord Hope, and the noble Lord, Lord Norton, should be preceded by the words: “The provisions of the Scotland Act establishing the Scottish Parliament may not be repealed unless”—and then the two conditions laid out in the amendment. It follows that I mean there would need to be a vote of this Parliament as well as of the Scottish Parliament, and the referendum that the noble Lord, Lord Lang, would not want but I think is necessary.
I have to say to the noble Lord, Lord Cormack, that I think the idea of a supermajority in this Parliament is a very bad one. I think supermajorities in general are a bad idea. Just as we should not add to the statute book provisions which add nothing, so we should not complicate our procedures by inventing a supermajority.
Lord Hope of Craighead
Does the noble Lord accept that he has very cleverly been answering the conundrum that I put to the noble Marquess, Lord Lothian, of trying to translate “permanent” into some other language that fits constitutionally with our established principles? I was suggesting that one should not be too tied by the word “permanent”, which is used by lay men, and the noble Lord has perhaps cleverly expressed a way of doing that.
Lord Kerr of Kinlochard
I am very grateful to the noble and learned Lord but I refuse to be drawn into a debate among lawyers about how clever I am.
Lord Keen of Elie
Clearly it is not, because, notwithstanding the outcome of any such referendum, this place might decide not to legislate in accordance with the outcome of the referendum. One cannot use these arguments to undermine the ultimate sovereignty and supremacy of Parliament.
Lord Hope of Craighead
I shall take up the point that the Minister made about Clause 1 as a whole—I think he was referring to the whole clause as it now stands, with all three new subsections—that it was simply a political statement. New Section 63A(3) is not just a political statement; it lays down a condition. If that is the right reading of the new subsection, does the Minister not recognise that it might be better to address some of the possible imperfections in new Section 63A(3) as it stands? The noble and learned Lord, Lord Wallace, among others, made the point that the phrase “the people of Scotland” is a little ambiguous, and it might be better to say “a referendum held in Scotland” to tell you where the referendum is going to be.
It is quite commonplace in Committee debates for Ministers to say, “We’ll take this away and look at it and perhaps reconsider whether the wording we have in the Bill is the best that could be used”. I wonder whether the Minister would be prepared at least to look at proposed new paragraph (b) in Amendment 6; leaving aside the mention of the Scottish Parliament in its proposed new paragraph (a), it suggests a rewording of new Section 63A(3) to see if it is the best wording that could be adopted. I absolutely accept that it deals with a hypothetical situation but, if one is laying down a condition, would it not be better to use the best possible terms in doing so?
Lord Keen of Elie
I am obliged to the noble and learned Lord for reminding me of the observations made by the noble and learned Lord, Lord Wallace, in that context. At this time the Government consider that we have achieved the best possible wording for the purposes of new Section 63A(3) in Clause 1. I compliment the noble Lord, Lord Forsyth, on his eyesight and his ability to read my notes at such a considerable distance. However, the position of the Government remains that we are satisfied that a relatively open provision in this context with regard to the people of Scotland voting in a referendum is the appropriate way forward.
Lord Keen of Elie
I am obliged to my noble and learned friend. It seems to me that we make no further progress on this point, notwithstanding the further observations of the noble Lord, Lord Purvis. I simply underline the sovereignty of this Parliament, and nothing in Clause 1 derogates or takes away from that. That is the bottom line. It is necessary to make progress with this Committee debate rather than to stay in still waters on one sterile point. Therefore, at this point I urge the noble Lord to withdraw his amendment.
Lord Hope of Craighead
Perhaps I may return to new subsection (3), which relates to a separate point from the one that the Minister has been emphasising concerning the sovereignty of Parliament and so on. If we look ahead to the day some time next year when this Bill comes back on Report, it is quite likely that there will be an amendment seeking to reword new subsection (3), perhaps along the lines that have already been discussed. I respectfully suggest to the Minister that he would carry a little more credibility if he were to depart just a fraction from the briefing that he is reading from and were prepared to say that he would look again at this. He does not have to commit himself to any rewording, but sometimes when we have these debates in Committee it softens the atmosphere a lot if one is prepared to say simply, “Well, some interesting points have been made. We’ll have another look and perhaps come back with something on Report, or perhaps not”. It would ease the atmosphere a little on this point and avoid repetitive interruptions.
Lord Keen of Elie
I notice what the noble and learned Lord says with regard to new subsection (3) in Clause 1.
“( ) Subsection (1) may only be repealed if—
(a) the Scottish Parliament has consented to the proposed repeal; and (b) a referendum has been held in Scotland on the proposed repeal and a majority of those voting at the referendum have consented to it.”
Lord Hope of Craighead
In the light of what the noble and learned Lord, Lord Keen, said, I understand that he will at least reflect a bit on what was said earlier. We may return to this on Report, but for the time being I will not move the amendment.
Lord Keen of Elie
I apologise to my noble friend Lord Forsyth. I must confess that I was unclear who was intervening on whom. I add to the point made by my noble and learned friend Lord Mackay of Clashfern. As I understand the point he was making—it was one that I had endeavoured to make before, but obviously had not made clearly—it is simply that Clause 1 is amending and introducing Section 28(8) of the Scotland Act 1998. It is necessary to read that in conjunction with Section 28(7) of the Scotland Act 1998, which refers to the ability of this Parliament to legislate in respect of Scotland on all matters. That is a matter to which the noble Lord, Lord McAvoy, alluded earlier as well. That is why the issue of sovereignty—the supremacy of this Parliament—is already contained in the relevant section of the Scotland Act, as it will be amended by this clause of the Bill.
Lord Hope of Craighead
I am grateful to the noble and learned Lord for giving way, but Clause 2 amends Section 28. We are still talking about Clause 1, which amends a different part of the Scotland Act, so there is a separation there. However, I very much endorse what the noble and learned Lord, Lord Mackay of Clashfern, said—namely, that any reader of the Scotland Act knows perfectly well that you have to look at Section 28 to understand the competence of the Parliament and the relationship between the two Parliaments. The point is simply that Clause 1 does not deal with Section 28.
Lord Stephen
I agree that there is an issue there. I wonder whether the discussions that will take place in coming weeks, and perhaps even months, behind closed doors between the Scottish Government and the UK Government would be greatly assisted if there was a clear statement on the record from the Scottish Parliament that it supported this legislation. While I believe that both Houses will eventually indicate their support for this legislation, it would be helpful to have that clear support on the record now.
A lot has been said today about the monolithic, unassailable sovereignty of the UK Parliament but I ask the Committee to consider this point: the UK Government have introduced a concept called English votes for English laws. Perhaps the Minister would care to comment on this: the Government are pursuing a course whereby legislation passed by the House of Lords and the House of Commons can be vetoed by a subset of the House of Commons, so this Government have already conceded the point of a limitation on the sovereignty of the UK Parliament. If it is sauce for the English goose for elected English MPs to veto legislation for England on devolved matters, it must be sauce for the Scottish gander for properly and democratically elected Members of the Scottish Parliament to be able to veto Westminster legislation affecting Scotland on devolved matters.
Lord Hope of Craighead
My Lords, perhaps it would be helpful for me to speak to my Amendment 12, which in effect restates in combination the points just made in support of Amendments 11, 15 and 16. I will also refer to Amendment 20, which deals with a related issue.
I think I saw that the noble Lord, Lord Lang, was about to rise to his feet and the background to my Amendment 12 is paragraph 38 of the Constitution Committee’s report, which draws attention to problems with the Sewel convention as his committee saw them. One problem was the use of “normally”, which gives rise to doubt as to what exactly that means. There was also the need to clarify the reach of the convention, which was the point just made in support of Amendment 11 and its related amendments. My Amendment 12 puts together in a package the same point that was referred to on those other amendments.
Amendment 20, however, deals with an issue which is closely related to existing practice. It refers to a:
“Duty to consult the Scottish Government on Bills applying to Scotland”.
It says, shortly, that:
“A Minister of the Crown must not introduce a Bill into the Parliament of the United Kingdom … that would make provision applying to Scotland unless a Minister of the Crown has consulted the Scottish Ministers”.
It is intended to reflect what I understand to be the existing practice and to follow on the points made in relation to restating Clause 2 in appropriate statutory language.
I should make it clear, as I did earlier on this afternoon, that the amendments to which I am speaking are in words that were in effect provided for me by the Scottish Government because they were tabled in June this year, in advance of Committee in the House of Commons. But I restate that I do not speak to these amendments on behalf of anybody other than myself; I simply see them as sensible amendments which have merit on their own wording. It is with that in mind that I speak to these two amendments.
Lord Davidson of Glen Clova
Could the noble and learned Lord indicate what the Scottish Government see as particularly virtuous about the formula that he suggests in this amendment?
Lord Hope of Craighead
I am obliged to the noble and learned Lord. There are really two points. First, Clause 2 as worded uses “normally”; secondly, it does not set out in full the way that the convention is applied in practice. These points were made very effectively by the noble Lord, Lord Stephen, a moment ago in moving Amendment 11, which is read together with Amendments 15 and 16. There are two points which needed to be added to Clause 2, one being to alter the legislative competence of the Scottish Parliament and the other being to alter the executive competence of the Scottish Government. These matters are in practice the subject of a consent resolution or a Sewel convention Motion and should be referred to expressly in the clause to cover the reach of the convention. That is the point which the committee of the noble Lord, Lord Lang, was talking about.
Lord Lang of Monkton
I am grateful to the noble and learned Lord, Lord Hope of Craighead, for his comments about the word “normally”. It is not a word that alarmed me particularly, as a non-lawyer, but the clause as a whole certainly alarmed and concerned the Constitution Committee. I shall say something about that in a moment but “normally” in its location there seemed to strike the balance between permitting the Scottish Parliament to legislate on devolved matters without intervention from the United Kingdom Government while, at the same time, giving the Government of the United Kingdom the clear right and entitlement in special circumstances to intervene. I will be interested to hear what my noble and learned friend at the Dispatch Box will have to say about it.
My own Amendment 13 simply seeks to strengthen new subsection (8) of Section 28 of the 1998 Act by reasserting the supremacy of the United Kingdom Parliament to reinforce the terms of subsection (7), which subsection (8) might otherwise seem to contradict. Having heard the treatment given by the Front Bench to my noble friend Lord Forsyth’s amendments, I suspect that I may not be on an ideal wicket. But I want to say a word or two about this clause because the Sewel convention is a dangerous situation in which to legislate.
The Sewel convention is as slippery as a fish. It has changed throughout the years since it came into being quite considerably and may yet change again. When I was first asked about it, I was told informally by my late lamented noble friend Lord MacKay of Ardbrecknish, who was at that time our Front-Bench spokesman on the Bill, that it was really just a courtesy to the Scottish Parliament for the United Kingdom Parliament to offer to legislate on its behalf, if it was an issue devolved to it on which it would plan to legislate. It would thus save time, expense and duplication. I do not think it was ever quite thus but that was the flavour of how I first understood it. It has now turned into something quite different and I see it as a weapon that seems to allow the Scottish Parliament to intrude into United Kingdom legislation to an unsafe extent, possibly even to the extent of a veto.
What is clear is that the Sewel convention is still so fluid and unsettled as not to deserve the name of convention. I do not think, in its present form, it is fit to be converted into law. It may be that those who have drafted the Bill have found, in the form of words they have used, a more stable and secure base for the long term, but the convention has changed a lot over the years and may again. Initially, the United Kingdom Government seemed to maintain that it applied only to powers already devolved or to restricting or diminishing such a power. That was certainly the original intention as I understood it, but in 2005, Devolution Guidance Note 10 was published, which suggested:
“The convention applies when legislation makes provisions specifically for a devolved purpose”.
I see that as something much broader.
Since then, the Scottish Parliament has claimed it applies to devolved areas rather than devolved matters, so that it also applies to legislation increasing devolved powers, which the UK Government seem at times to have accepted. The Scotland Act 2012 bore this out, as it was almost entirely an empowering measure and was taken to require legislative consent Motions. Astonishingly to me, the Labour Opposition supported an SNP amendment in the Commons and tried to enshrine devolved areas into the legislation. That could have given the Scottish Government a veto on UK legislation, which is what prompted my question to my noble friend on the Front Bench at Second Reading. This one-way degeneration of the original purpose of the convention is potentially damaging to the sovereignty of the United Kingdom Parliament, and we have to exercise great care in handling this.
The Smith commission asked only that it be put on a statutory footing. Even if we can be confident of a clear, unambiguous wording, the potential troubles do not end there. My noble and learned friend Lord Hope indicated at Second Reading, as he will recall, that it could become challengeable in the courts. My noble friend Lord Norton had serious concerns also, pointing out:
“Clause 2 does not transpose the Sewel convention into statute. It simply states the convention”.—[Official Report, 24/11/15; col. 639.]
I am completely out of my depth in reacting to that and I look forward to his speech a little later in the debate.
My amendment echoes the concerns of others to counter the uncertainties generated by the present wording of the clause. We have all felt the need to reiterate, in every possible way, the need to reassert the sovereignty of the United Kingdom Parliament. My amendment is the simplest and shortest—it may not be the best but at least it has a different wording from that rejected by my noble friend on the Front Bench. We must have a wording that is clear and unambiguous and able to withstand challenge in the courts, where I suspect it will probably end up.
Lord Davidson of Glen Clova
The noble Lord will of course be aware that I have seen those statements and have been interested in what they in fact mean. But he will also recollect that we say, from this side of the House, that given the discussion about the fiscal framework and possible use of legislative consent Motions in that regard, we see the co-operation that has taken place between the Scottish Government and Her Majesty's Government in the past as something in which we can repose a good deal of trust that it will continue in relation to this process with the fiscal framework. Our trust may be misplaced, but we conceive otherwise. The noble Lord, Lord Forsyth, cannot see any more than I can into the future, but we are in a position where we repose trust in the process, at least from this side.
In relation to the various amendments before the House, we accept that a number of them are useful. None the less, we oppose Amendments 13 and 18.
Lord Hope of Craighead
I hoped that the noble and learned Lord might say something about Amendment 20. Perhaps I was not sufficiently clear when I introduced these amendments, but Amendment 12 deals with the stage of passing a Bill and says that,
“the Parliament of the United Kingdom may not pass Acts … without the consent of the Scottish Parliament”.
Amendment 20 intercepts the matter at the earlier stage. It says:
“A Minister of the Crown must not introduce a Bill into the Parliament of the United Kingdom … that would make provision applying to Scotland unless a Minister of the Crown has consulted the Scottish Ministers”.
That amendment, as in the case of Amendment 12, was drafted in Edinburgh by people who know how the system is working. In giving his support to Amendment 12, I wonder whether the noble and learned Lord meant to give his support also to Amendment 20.
Lord Davidson of Glen Clova
I apologise for not confirming that we support Amendment 20. I took that as being the overall approach—this smorgasbord—between the approach of the noble Lord, Lord Stephen, and the approach of the noble and learned Lord, Lord Hope. I hope that clarifies the point.
Lord Keen of Elie
The point is that in terms of Section 28(7) we in this Parliament could, on the face of it, intervene in such a matter. That was the whole point of the convention: to make it clear that normally we would not do so. I may have misunderstood the intervention of my noble friend Lord Forsyth but, with respect, it seems to me that that is precisely why the Sewel convention was expressed in the terms in which we find it—so that if educational attainment in Scotland was failing we would not be faced with the criticism that the United Kingdom Parliament had done nothing about it because conventionally we would not normally intervene in a devolved matter, but we retain sovereignty and we have the right to do so. That is why the Sewel convention is expressed in the manner in which it is. The intention is not that Clause 2 should give rise to any justiciable issue. It is a political expression of the convention in statutory form. That is why the term “normally” appears within Clause 2. It makes it clear that this is not a justiciable issue. It is quite clear that in terms of the Smith commission agreement the Sewel convention will be expressed in statutory terms. It is there, but whether this Parliament would consider it appropriate to legislate for Scotland in a devolved area, which it can do pursuant to Section 28(7) of the Scotland Act 1998, is a political issue. It would not be for a court to decide what “normally” meant in that context. It would be a political issue. If it could be litigated in court and made justiciable, the question would be: what possible remedy could the court provide other than a political one? That is why it takes us back to the simple proposition that Clause 2, as set out, would not give rise to a justiciable issue. I give way to the noble and learned Lord, Lord Hope.
Lord Hope of Craighead
The problem is that paragraph 22 of the Smith commission report states that the Sewel convention will be put on a statutory footing. Rather like the noble and learned Lord, Lord McCluskey, I wondered what “statutory footing” meant, and I went to various sources to find out. A translation of it is fairly obvious: it means being put on a firm footing by being written into statute. That raises the question of what the effect is of writing something into statute.
The problem is that, whatever the Minister may say, someone seeing it written into statute is going to say, “Here is something which I can use to challenge a piece of legislation that is apparently being passed without the Sewel convention being observed according to its current usage”. With great respect, it does not do for a Minister to say to the court, “This is just a political matter”, because the judges will say, “It’s a matter for us”. The judge may look at the normal rules to see what the legislation was designed to do, and with a bit of research they will find that it was designed to give effect to the Sewel convention to put it on a statutory footing. The judge will then say, “Well, it’s a matter for me to construe what this means”. I am not at all impressed by the Minister saying that it is all a political matter, because it is now in the hands of the court to adjudicate upon.
The Minister asks, “What remedy does that give rise to?”. It creates uncertainty about the effectiveness of legislation. One of the things that we have to be very careful about is that the legislative process is well founded and not open to challenges, except those that are already subject to legislation in the Scotland Act. So, with great respect, it is necessary to warn the Minister that he cannot get away with assuming that the judges will accept that it is simply a political issue; it is not that at all, once it is written into statute.
Lord Keen of Elie
The noble and learned Lord acknowledges that there would be no remedy other than a political remedy in that context, or appears to do so. He shakes his head; nevertheless, there is no remedy except a political remedy. This underlines the importance of the words “recognised as” and “normally” where they appear in Clause 2.
However, the noble and learned Lord, Lord McCluskey, spoke to his Amendment 19, a proposal that it should be expressly stated that the clause is not justiciable and does not give rise to justiciable rights. That is a matter that I would be pleased to discuss with him, albeit that the Government’s position at present is that there is no requirement to expressly state that in the context of a clause that, on the face of it, is implicitly not justiciable. That would be my position on Amendment 19.
“(8) But the Parliament of the United Kingdom may not pass Acts applying to Scotland that make provision about a devolved matter without the consent of the Scottish Parliament.
(9) A provision is about a devolved matter if the provision—
(a) applies to Scotland and does not relate to reserved matters, (b) modifies the legislative competence of the Scottish Parliament, or(c) modifies the functions of any member of the Scottish Government.(10) In subsection (8), “Acts” includes any Act, whether a public general Act, a local and personal Act or a private Act.”
Lord Hope of Craighead
I am bound to say that I am very troubled by this whole matter and we will have to return to it on Report. Leaving the clause in its present form is bound to create instability—for reasons that I need not expand on further. Having given notice that I will come back to this on Report, I do not intend to move the amendment.
Scotland Bill
Lord Hope of Craighead Excerpts(8 years, 5 months ago)
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Lord Hope of Craighead (CB)
My Lords, it is a very real pleasure for me to follow the noble Lord, Lord Forsyth of Drumlean. He will remember that when he was Secretary of State for Scotland and I was the head of the judiciary, we did not always see eye to eye. In fact, I can assure your Lordships that he was just as vigorous and energetic in his presentation of policies with which I did not agree, and just as controversial, as he is now. These days are past now, if I can echo the words of a well-known song, and it is a pleasure to listen to such a spirited speech, with much of which I can agree.
I would also like to echo the words of the noble and learned Lord, Lord Mackay of Clashfern, a former dean of the Faculty of Advocates—as am I—in what he said about the noble Lord, Lord Campbell of Pittenweem, and the noble Baroness, Lady McIntosh of Pickering. It is a quite unusual situation for two members of the Faculty of Advocates to make their maiden speech in this House on the same day. I am not sure that this has ever happened before. It is a very real pleasure for us, who recall the faculty and owe it so much.
Turning to the Bill, I confess to having mixed feelings about it. Of course, the Bill must pass and it was—and is—an essential part of the process that the recommendations of the Smith commission are put in place. As the noble Lord, Lord Smith of Kelvin, put it in his foreword and also said today, that process is one of turning the recommendations into law. There must be some relief at the progress made in what has been achieved so far to bring the Bill forward to this House within a year of publication. The report is not yet one year old—I think its birthday is on Friday of this week.
Leaving that to one side, there are some serious grounds for concern. I mention a point developed by the noble Earl, Lord Kinnoull, in his very perceptive speech, that if you look at the detail in the Bill and contemplate what it really means for the people in the Scottish Parliament, you begin to wonder at the ability of that Parliament to handle what we propose to deliver. After all, the Parliament was designed in the Bill that became the Scotland Act 1998. I am one of a number of noble Lords here who is a veteran of the debates then. I remember that the Minister who introduced it, the noble Lord, Lord Sewel, said:
“Through this Bill we seek to establish an enduring, fair and stable settlement”.—[Official Report, 17/6/98; col. 1567.]
He said he was,
“completing the unfinished business of which John Smith spoke”,
and that this was to be a,
“lasting political legacy”.—[Official Report, 17/6/98; col. 1574.]
What was designed, in a similar pattern to Wales and Northern Ireland, was a unicameral system with a series of committees to control and scrutinise the Executive and the legislation being put through. Given the package that was in the Scotland Bill of 1998, that seemed a reasonable and stable situation. However, as the noble Baroness, Lady Goldie, was careful to explain to us, the political situation has changed entirely from what was envisaged in 1998. That leads me to the concern about the ability of the Parliament to really deal with the situation we have now, with a majority Government and all the consequences already mentioned.
The noble Lord, Lord Smith of Kelvin, drew attention to this problem in his foreword, where he said that the addition of these new responsibilities,
“means that the Parliament’s oversight of Government will need to be strengthened”.
He called for,
“an inclusive review which will produce recommendations to run alongside the timetable for the transfer of powers”.
As far as I can detect, that has not happened. I do not know what is going on to try and achieve the noble Lord’s wise words. I hope that the Minister in his reply will be able to give us some insight into the progress, if any, being made to achieve that kind of strengthening of the system of government which will need to cope with these new responsibilities.
On the detail of the Bill, in the short time I have left, there are particularly Clauses 1 and 2, to which the noble Lord, Lord Lang of Monkton, referred and which have been the subject of some discussion in the Constitution Committee’s report. Clause 1 reminds me of Article XIX of the Act of Union 1707, which declares:
“That the Court of Session or Colledge of Justice do after the Union and notwithstanding thereof remain in all time coming within Scotland as it is now constituted by the Laws of that Kingdom”.
In other words, that was a declaration that the College of Justice was not to be capable of being removed by an Act of this Parliament. As a student at Edinburgh University many years ago, I was taught that the provision in those terms was fundamental law and in that respect the UK Parliament did not have absolute sovereignty. That is what I was taught. Clause 1 seems to drive in the same direction: a declaration that is perhaps intended to have political effect but, as the noble Lord, Lord Smith, said, the purpose of the Bill is to turn these things into law. If it is turned into law then one day somebody will bring the issue before the judges. The judges do not invent the argument; it is brought before them. If it were brought before them—I sincerely hope it never would be—that would give rise to exactly the point that the noble Lord talked about.
In Clause 2, I am concerned about the use of the word “normally”. I do not understand what that would mean. If this is making law, again the judges will have to decide what is normal. I do not see how they could possibly do that without evidence. It has to be explained. Also, as has been pointed out, the Sewel convention must be explained. If it is to be turned into law, it must be capable of being argued about in court and made the subject of a determination by the judges which makes sense and contributes to our well-being. These points are very well taken by the committee, with great respect, and I hope we can develop some further thinking about this in Committee.
Lord Norton of Louth (Con)
My Lords, for the past 18 years, we have seen significant measures of constitutional change enacted on an almost unprecedented scale. For most of those 18 years I have drawn attention to the fact that the measures have been disparate and, crucially, discrete. There has been no attempt to locate them within an intellectually coherent approach to constitutional change. They derive from no clear view of the constitution as a constitution. The constitution of the United Kingdom is being fundamentally altered without any attempt to stand back and make sense of where we are going.
We have before us just one of many measures of major constitutional importance, but one that, as the report of the Constitution Committee puts it, devolves powers,
“in a reactive and ad hoc way”.
I declare an interest as a member of the committee. The Bill derives from what the committee identified as a “disjointed approach”. We have a Bill that is rushed and coheres with no clear view of constitutional change. Perhaps when my noble friend the Minister comes to reply to the debate he will explain what, precisely, is the intellectually coherent approach to constitutional change taken by the Government.
The report of the Constitution Committee draws out the problems with the Bill’s constitutional implications. I wish to pursue problems associated with Clauses 1 and 2 that build on and go beyond the committee’s report.
There is a problem with the first two clauses, in terms of not only the basic issues they raise regarding parliamentary sovereignty but the very purpose of legislating. They have been drawn up in the face of the Government’s own guidance on drafting legislation. I quote paragraph 10.9 of the Cabinet Office Guide to Making Legislation, published in July, which states:
“Finally, when writing instructions it is important to keep in mind the general rule that a bill should only contain legislative propositions. These are propositions that change the law—they bring about a legal state of affairs that would not exist apart from the bill. It can sometimes be tempting to ask the drafter to prepare a provision that is not intended to change the law but is instead designed to serve some political purpose or to explain or emphasise an existing law. However, non-legislative provisions of this sort are likely to go wrong because the courts will be inclined to attribute legal effect to them on the grounds that Parliament does not legislate unnecessarily—and the legal effect attributed may be one the Government could not have predicted”.
The Scottish Parliament is already permanent under the terms of the Scotland Act; it remains in being unless this Parliament legislates otherwise. New subsections (1) and (2), introduced by Clause 1, do not make it any more permanent than it already is. Under the doctrine of parliamentary sovereignty, this Parliament could legislate to suspend or abolish the Scottish Parliament. One could provide, as new subsection (3) does, for a referendum to be held before it is abolished, but this Parliament could legislate to remove this provision. The purpose of new subsections (1) and (2) is therefore not clear; they add nothing unless they seek to create some body of higher law and thus conflict with what has been termed the cornerstone of the British constitution.
Lord Hope of Craighead
I am fascinated by what the noble Lord is saying, but the problem is that the Smith agreement was to create these undertakings in law. The difficulty I have is how you can reconcile that proposal with the memorandum that has been quoted, and then provide a formula that the courts can adjudicate on. I find that extremely difficult, but one cannot slide round it by saying that this is simply a political exercise.
Lord Norton of Louth
I agree with the noble and learned Lord. It puts us in a very difficult situation because there is a commitment to it, but it creates problems by being embodied in the Bill. It raises a problem that should not be there and should perhaps not have been made in the first place, because the Smith commission’s recommendation falls outside the commission’s terms of reference.
Clause 2 is a novel provision. There are precedents for transposing a convention of the constitution into statute, but once it is in statute the convention ceases to exist. The most recent example of this replaces the convention that a Government who lose a vote of confidence in the House of Commons either resign or request a Dissolution with Section 2 of the Fixed-term Parliaments Act 2011. The Act provides legal certainty. It was amended in your Lordships’ House to ensure that it did so.
Clause 2 does not transpose the Sewel convention into statute. It simply states the convention. The convention does not cease to exist. We thus have the convention and we have statute. The flexibility inherent in conventions is not displaced by the certainty of a statute. This creates uncertainty in a way that has not existed when conventions have given way to legal certainty before. Conventions are not enforceable in the courts. What we have here is a statutory provision. As the noble and learned Lord, Lord Hope of Craighead, said, it is not immune from being challenged in the courts. It may never be challenged, but there is no immunity. Will my noble friend the Minister therefore explain why these provisions are in the Bill? How does he justify them, given the Government’s very clear guidance on the purpose of legislating?
The Constitution Committee’s report makes a compelling case for standing back and making sense of where we are. Some may see that as justifying the case for a constitutional convention, as we have heard. I do not. I fear that a convention may rush and produce skewed recommendations. I have argued for a different type of body—one that looks at how the changes we have undertaken, or are undertaking, fit together and how the basic principles underpinning our constitution are maintained. The more that Bills such as this come before us, the more the need for such a body becomes urgent. Does my noble friend the Minister agree that the time has come for us to take stock of where we are, and, if not, why not?