Scotland Bill

Debate between Lord Hope of Craighead and Marquess of Lothian

Tuesday 8th December 2015 Lords Chamber

[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.