Scotland Bill

Lord Keen of Elie Excerpts

Tuesday 8th December 2015 Lords Chamber

[Lord McAvoy (Lab)]

My Lords, I thank my noble friend Lord Foulkes of Cumnock for bringing this forward. I cannot help but make the point that it is a pity that we are dealing with this at this time of night and that noble Lords are curtailing their contributions in this most significant period of the evening. Quite frankly, we have been treated to two or three hours of negativity and continual attacks on the Bill and the Ministers bringing forward the Bill, and it is refreshing to have an extremely positive contribution from my noble friend to address a problem—and there is a problem.

Saying that there is a one-party state is overstating it, but we miss the experience of having Scottish nationalist party Members in this House contributing to this debate. It is mirrored in some ways in the Scottish Parliament where the committee system was supposed to balance things. However, I understand that one party controls the committee chairs and members of committees. They are not operating as a check and balance on the Executive. That is to be regretted.

My noble friend Lord Foulkes has no great expectation —although you never know—of this amendment being incorporated into the Bill, but he has sparked a debate about a real issue that we need to address, which the people of Scotland, the Scottish nationalist party and the other Scottish political parties have to look at as well. I take the point from the noble Lord, Lord Forsyth, that this is probably not the Bill to do that in, but by moving the amendment my noble friend has raised the issue, highlighted it and received some very thoughtful contributions from noble Lords. They had elements of negativity, but they nevertheless addressed the problem. I will not mention anyone in particular who has been negative all night, but he knows who is.

My noble friend has done us all a service by bringing this forward. The details are in the amendment and noble Lords will understand the amount of work that has been put in by my noble friend in assembling it. It is a first-class amendment and we are not opposed to it. We congratulate our noble friend on bringing it forward and hope that it sparks a debate not just in this Chamber but with our Scottish National Party colleagues in Scotland so that they can turn their mind to this. That would be the real bonus to come from my noble friend’s contribution. If we can spark a debate in Scotland so that the situation is looked at, my noble friend will have done a commendable service. I therefore appeal to our colleagues in Scotland to give this proposal particular attention.

We can be proud of the example we set. Most of us here, although not all, are determined not to destroy the place by what could be called irresponsible behaviour. Most of us are committed to the positive side of this House and the revising job that it does. I would like to see something like that in Scotland and I hope that we can take our Scottish National Party colleagues along with us. I think that the people of Scotland would be better served by that. I close by again thanking my noble friend for his extremely thoughtful contribution.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

As the noble Lord, Lord Foulkes, might appreciate, I am increasingly conscious that the robust scrutiny of this Chamber could be seen as an elegant example of how a second Chamber can operate. Be that as it may, the proposal he has put forward by way of his amendment is not a reflection of what was contained in the Smith commission agreement. The establishment of a second Chamber did not feature. However, as noble Lords will be aware, the noble Lord, Lord Smith, in his personal recommendations observed that the transfer of these substantial new powers would mean that the Scottish Parliament’s oversight of the Scottish Government would need to be strengthened. I recognise the noble Lord’s desire to see that the exercise of these substantial new powers should be properly and effectively scrutinised.

This Government fully endorse the recommendation made by the noble Lord, Lord Smith, that the Scottish Parliament’s oversight of the Scottish Government needs to be strengthened, but as the noble Lord set out, it is in the first instance the responsibility of the Presiding Officer and the Scottish Parliament to take forward this important work. I thank the noble Lord, Lord Foulkes, for his contribution to this debate and for putting before us what was noted by the noble Lord, Lord McAvoy, to be a real issue. Nevertheless, I say on behalf of the Government that this is not the place for such an amendment. This is not a place to bring in such a proposal when it was not addressed in the Smith commission agreement, and I therefore invite the noble Lord to withdraw his amendment.

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[Lord McAvoy]

My Lords, I, too, thank the noble Earl and congratulate him on his amendment. I will be relatively brief as well. We support much of what is suggested, other than proposed new paragraph (2)(d), as we do not believe that the “appropriateness” of devolution needs to be reviewed. We will be proposing similar arrangements with regard to the transfer of the welfare provisions, so the amendment is extremely useful.

I think the noble Earl would accept that such arrangements are founded on mutual respect and co-operation between the two Governments. We all have to be careful with the sensitivity of language but we cannot have it portrayed—I know the noble Earl has not done this—as Westminster talking down to Holyrood. But conducted in an atmosphere of co-operation, friendship and mutual respect, I think there can be a great service done to the Scottish people and the rest of the United Kingdom.

[Lord Keen of Elie]

My Lords, I am obliged to the noble Earl for putting forward this amendment. As your Lordships are aware, the matter of intergovernmental working was addressed by the noble Lord, Lord Smith, in his introduction to the Smith commission agreement, in which he emphasised its importance in achieving the aims of devolution.

A considerable degree of very positive co-operation between the Scottish and United Kingdom institutions takes place on a daily basis, from routine dialogue on matters such as planning for civil contingencies to supporting business and exports. It would be difficult to report on each and every one of these interactions. Nevertheless, it is important to recognise that they should be as transparent as possible.

Specific steps have been taken recently in encouraging more regular collaboration between the United Kingdom and Scottish Governments in areas of joint interest. One example of such work is the cross-Administration “Devolution and You” Civil Service capability campaign, which the Cabinet Secretary launched in June 2015. In addition, there is now the Joint Ministerial Working Group on Welfare, which was established to provide a forum for discussion and decision-making on implementation of the welfare-related aspects of the Smith commission agreement.

I also welcome the work of the Constitution Committee on behalf of this Chamber and note its recommendations regarding increased cross-parliamentary scrutiny of intergovernmental relations. This was also recommended by the Scottish Parliament’s Devolution (Further Powers) Committee. It will be important to see how Parliament responds to these recommendations. Furthermore, my noble friend Lord Dunlop set out during Second Reading details of how we are working with the three devolved Administrations to review intergovernmental arrangements and ensure effective working relationships with those Administrations.

There is a concern that a statutory duty to report on these interactions could prove burdensome and might prove unnecessary. However, we—the Government —are happy to take away and consider what the noble Earl has suggested, and explore how we may incorporate these suggestions into the work which is going on with regard to intergovernmental relations. I would be happy to discuss this with him. However, having regard to the present terms of the Bill and the comments that have been made, I invite my noble friend to withdraw this amendment.

[The Earl of Dundee]

My Lords, I thank all of your Lordships for your kind support for this amendment, starting with the noble Earl, Lord Kinnoull, and the noble Lords, Lord Foulkes and Lord McAvoy. The noble Lord, Lord McAvoy, emphasised and drew to our attention the vital importance of the two Parliaments and Governments being on equal terms. That must be key to success.

The noble Earl, Lord Kinnoull, gave us an example from his own experience, which started off in an intransigent way with people not talking to each other. As he said, that can be converted to something constructive when people do otherwise.

I take the point made by my noble friends Lord Lang, Lord Sanderson and Lord Lindsay, who commented that the amendment might go further than it does. My noble friend also suggested that it should apply to all parts of the Bill and instanced, from his past committee work, evidence from other institutions and Parliaments in other parts of the world which proves beyond doubt that successful government comes from proper co-operation between the parties concerned.

I am extremely grateful to my noble and learned friend for what he has just said—namely, that he will take this amendment away. Meanwhile, I now beg leave to withdraw the amendment.

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Moved by

[Lord Keen of Elie]

24: Clause 4, page 4, leave out lines 18 to 20

[Lord Keen of Elie]

My Lords, Clauses 3 to 10 devolve full powers to the Scottish Parliament in respect of the registration, franchise, administration and conduct of Scottish parliamentary elections, with the exception of certain specified subject matters which are reflected in the Smith commission agreement.

Government Amendment 24 removes what is now a redundant provision in respect of the Scottish Ministers’ order-making powers under new Section 12 of the Scotland Act 1998, which is to be inserted by Clause 4. Following amendment on Report in the Commons, new Section 12(1) allows the Scottish Ministers to make provision under that section if it,

“would be within the legislative competence of”,

the Scottish Parliament,

“if included in an Act of the Scottish Parliament”.

Since the digital service is reserved under new Section B3(B) of Schedule 5 to the Scotland Act 1998, as inserted by Clause 3, the order-making power of the Scottish Ministers under the new Section 12 cannot extend to making provision about the digital service. In Clause 6, additional powers are transferred to Scottish Ministers to make provision about the digital service in relation to Scottish parliamentary elections and to local government elections in Scotland, with the agreement of UK Ministers. Amendment 24 is essentially a technical amendment which arises out of the amendment on Report in the Commons to new Section 12(1).

Amendment 24 agreed.

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[Lord Forsyth of Drumlean]

My Lords, I am conscious of the late hour but I would like to move Amendment 26. As we have already discussed during the course of the evening, there is no second Chamber in the Scottish Parliament. This House has an important constitutional role in preventing the House of Commons from extending its own life. Although the circumstances in which that might happen are hard to consider, it is an important check and balance.

This amendment seeks to make it quite clear that the Scottish Parliament cannot extend the interval between ordinary general elections and therefore prolong its own life under any circumstances. It would have been possible of course to make that subject to the agreement of the Westminster Parliament—the British Parliament—but I think that an absolute prohibition on extending the life is the most appropriate way to proceed. I beg to move.

[Lord Keen of Elie]

My Lords, I note the reasoning behind the amendment proposed by the noble Lord, Lord Forsyth. At present, Section 2 of the Scotland Act 1998 provides that general elections are to be held every four years. That power is to be devolved to the Scottish Parliament, but it will not be without limitation. The Scottish Parliament cannot pass legislation that is not compliant with the European Convention on Human Rights. Pursuant to Article 3 of the First Protocol to the Convention, there is a requirement for free and fair elections at reasonable intervals. The Smith commission agreement proposes that it should be for the Scottish Parliament to determine those reasonable intervals. We consider that that is appropriate and in accordance with the recommendations of the agreement, which the Bill seeks to implement. In these circumstances, I invite the noble Lord to withdraw his amendment.

[Lord Forsyth of Drumlean]

I have to say to my noble and learned friend that I do not think that that is a very satisfactory response. There was talk earlier in the evening about a one-party state and the dominance of the Parliament by one party. The precedent is long established that it is not possible for the other place to extend the life of a Parliament. Were it to try to do so, this House has an important role, which would prevent that from happening except in the most exceptional circumstances. Perhaps I have misunderstood what my noble and learned friend said, but he appeared to say that it is a matter for the Scottish Parliament to decide what the timing is between elections, and that cannot be right.

I am not suggesting for a moment that the Scottish Parliament might decide to do this under its current regime and Administration but I rather anticipated in putting down this amendment that my noble and learned friend would tell me that there was some other protection. Frankly, for this Government of all Governments to say that we should rely on the European Convention on Human Rights is ironic—to put it mildly. I hope that my noble friend will at least undertake to give this further consideration before we return to later stages of the Bill.

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[Lord Keen of Elie]

I first apologise to the noble Lord, Lord McAvoy. I had not appreciated that he intended to speak in the context of this proposed amendment and intervened too early. For that I apologise.

I will just add that the Smith commission agreement determined, on the basis of the consensus of five political parties, that elections to the Scottish Parliament should be devolved, and that the timing of those elections should be devolved to the Scottish Parliament. We must regard the Smith commission agreement as the product of a responsible negotiation by responsible political parties, and we must regard the Scottish Parliament as a responsible devolved body. We have no right to do otherwise, if I might respectfully say so. Given the existing backstop in terms of convention law pursuant to which, under Article 3 of Protocol 1, there is a requirement for free and fair elections at reasonable intervals, in my submission that appears an appropriate way forward.

On the matter of extending the life of the Parliament, as raised by my noble friend Lord Forsyth, an Order in Council under Section 30 in October 2015 allowed the Scottish Parliament to set the 2016 election at more than four years, extending it to five years. I am not aware of another occasion.

[Lord Forsyth of Drumlean]

On my noble and learned friend’s reference to the European convention, what constitutes a reasonable interval? Would five or six years constitute a reasonable interval?

[Lord Keen of Elie]

That would be a matter for the Scottish Parliament to determine, and is subject to review. If it gets that wrong, any legislation that it passes is not law, pursuant to Section 29 of the Scotland Act 1998.

[Lord Forsyth of Drumlean]

I beg leave to withdraw my amendment.

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Moved by

[Lord Keen of Elie]

27: Clause 8, page 10, line 33, leave out “In paragraphs 3, 4, 7 to 10, 12 and 14”

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[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.

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[Lord Forsyth of Drumlean]

My Lords, the hour is late, but I will say just a few words in respect of this amendment, which, basically, ensures that changes to the franchise, the constituencies and the number of MSPs—which under the provisions of the Bill require a two-thirds majority—have also to be approved at Westminster. I am not a great believer in opinion polls; as we discovered at the general election, they can be quite wrong. However, it is not inconceivable that two-thirds of the Scottish Parliament at the forthcoming elections could be composed of people who believe that Scotland would be better off independent. If that were to happen, and this Parliament, which is the United Kingdom Parliament, had created circumstances in which it was possible for fundamental changes to be made to the franchise, the constituencies and the number of MSPs, that would be a matter of very considerable concern. Personally, I do not like the idea of two-thirds supermajorities; it is an unfortunate intrusion into our constitutional affairs. It has knock-on implications for other devolved institutions and for Westminster, but of course the Smith commission has recommended it, so it would appear that we have to go along with it. The amendment would provide a belt-and-braces safeguard to ensure that key issues such as the franchise, the constituencies and the number of MSPs were approved at Westminster, having also had a two-thirds majority in the Scottish Parliament. I beg to move.

[Lord Keen of Elie]

My Lords, Clause 11 requires certain types of electoral legislation to be passed by a two-thirds majority, or supermajority, of the Scottish Parliament. Paragraph 27 of the Smith commission agreement states in terms that this is:

“To provide an adequate check on Scottish Parliament legislation”,

in these areas. An “adequate check” was the consensus of the five political parties which took part in the Smith commission and which arrived at the Smith Commission agreement.

The Government consider that the supermajority requirement provides an appropriate check on this type of Scottish Parliament legislation. Indeed, to approve this amendment would be to give with one hand and then take away with the other so far as the Scottish Parliament is concerned. It would not be in accordance with the spirit of the Smith commission agreement, let alone with the terms of paragraph 27. In these circumstances, I urge my noble friend to withdraw his amendment.

[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.