Scotland Bill

Debate between Lord Keen of Elie and Lord McCluskey

Monday 21st March 2016 Lords Chamber

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

My Lords, before turning to the government amendments in this group, I should like to address some points that noble Lords have previously expressed in relation to Clause 2. This clause is to implement the provision in the Smith commission agreement that the Sewel convention should be put on a statutory footing. The Smith commission agreement did not suggest any change in the effect of the convention. The clause recognises that this Parliament will not normally legislate on a devolved matter without the consent of the Scottish Parliament, but the convention recognises that the decision whether to legislate is for this Parliament to take.

I have noted the points made by noble Lords who have made clear in previous discussion of this clause their view that the word “normally” is not a word sufficiently precise for a statutory restriction. Of course, we are not seeking, and nor are we able, to impose a restriction on parliamentary sovereignty, and it has also been made clear in discussion that the word is suitable for indicating how a discretion will be exercised. This clause is clearly intended to indicate that the discretion of Parliament to legislate for devolved matters will continue exactly as before and that it is not intended to subject that discretion to judicial control. I would add that the words “it is recognised” that appear in Clause 2 also reflect the continued sovereignty of the United Kingdom Parliament and that it is for Parliament to determine when a circumstance may be considered not normal. This is not a matter that the courts could meaningfully engage with.

I turn to a number of technical amendments that we have tabled to Clauses 3 and 5 of the Bill. Noble Lords will recall that we gave notice on Report that we would table these amendments, which are necessary to ensure that the clauses in the Bill relating to elections work as intended. Under the Bill, and in line with the Smith commission agreement, the timing of Scottish parliamentary elections is devolved to the Scottish Parliament, subject to the provision that Scottish parliamentary ordinary general elections may not be held on the same day as a UK parliamentary general election, a European parliamentary general election or ordinary local government elections in Scotland. We have tabled amendments to Clause 3 to improve the drafting of the part of the reservation relating to the timing of ordinary local government elections in Scotland. These amendments do not change what is reserved, but rather clarify the drafting to ensure that the reservation achieves the intended outcome—that an ordinary local government election in Scotland may not be held on the same day as ordinary general elections for the Scottish Parliament.

In addition, we have tabled amendments to Clause 5 of the Bill to improve the drafting of the new provisions to be inserted into Section 43 of the Representation of the People Act 1983. These provisions relate to the reservation of the timing of ordinary local government elections where they clash with the date of an ordinary general election to the Scottish Parliament, and provide a mechanism for the Scottish Ministers to change the date of the local government elections where such a clash occurs. The amendments improve and clarify the drafting of the provisions providing a mechanism for setting an alternative date.

Amendments 3 to 9 are technical amendments, which will ensure that there is clarity in the clauses in the Bill relating to elections and that they operate as intended. I beg to move.

[Lord McCluskey (CB)]

My Lords, I accept that Amendments 1 and 2 could not be moved, and will not be moved by me or by the noble and learned Lord, Lord Wallace of Tankerness. However, in the light of the Minister’s statement, I make a brief comment. It sounds to me very like a Pepper v Hart type of statement, designed to guide a court, when a court sits down to decide on an ambiguity in the interpretation or application of the provision. I am not at all sure that it will work, but it is no doubt the best that the Minister could come up with, even with the assistance from behind him of the noble and learned Lord, Lord Mackay of Clashfern, who is unfortunately unable to be here today. It does not solve the problem, but it is better than nothing.

The very fact of making the statement appears to be to concede the point that we were all making, that the provision in the clause is just a shibboleth, because Pepper and Hart statements have no locus at all unless in a court of law when a statement is invoked to assist the interpretation. However clear the statement is, it is not binding on the court, which has a duty to apply the words of the statute to determine what it means. However, I welcome it, while regretting that the Government did not pick up on the amendment proposed by the noble and learned Lord, Lord Wallace of Tankerness, which would have solved the problem within the statute itself, and we would not have needed this. However, in the light of the Government’s attitude, we have to leave it there.

Scotland Bill

Debate between Lord Keen of Elie and Lord McCluskey

Wednesday 24th February 2016 Lords Chamber

[Lord McCluskey]

Before the Minister moves on, may I ask just one question? In the earlier debate, I asked whether the words “the people of Scotland” included Andy Murray, the tennis player, and he could not answer. The noble Lord, Lord Norton of Louth, has suggested a simple amendment that would make it clear that the persons entitled to vote are not the people of Scotland—which is a slightly meaningless phrase—but those entitled to vote as electors in a local government election in Scotland. What is wrong with accepting that?

[Lord Keen of Elie]

As I indicated, we are dealing with an entirely hypothetical situation. Should that situation ever materialise, the terms of the referendum to be held would be determined according to the circumstances in place at that time. It would not be appropriate to anticipate the circumstances of such a referendum, which might be many millennia in the future. It is therefore left open in these terms.

I turn to the amendments moved by my noble friend Lord Forsyth of Drumlean. The points he has raised in them are those he made in Committee in December, and I assure him that we have continued to reflect carefully on the points made at that time. My noble friend has focused on whether Clause 1 impinges on the sovereignty of this Parliament. I thank him for his consideration of this point but must respectfully disagree that there is any question that it does. Constitutionally, the United Kingdom Parliament cannot bind a successor Parliament: the sovereignty of Parliament remains. The purpose of paragraph 21 of the Smith commission agreement, and of Clause 1 in the Bill, is not to change the constitutional position but to reflect in legislation the political understanding that already exists. The clause thus delivers the Smith commission agreement while respecting the United Kingdom’s constitutional arrangements.

Amendment 1 would reinsert the words “recognised as”, which were removed from Clause 1 by government amendment on Report in the other place. The Government have been quite clear throughout that there has never been any question that the Scottish Parliament and Scottish Government are anything other than permanent. However, we have listened to feedback on the clause, and it was felt appropriate to amend the clause to take account of the observations made. The criticism levelled at the clause was that the provision was weak. The Government have strengthened the provision to demonstrate the commitment of the United Kingdom Parliament and Government to the Scottish Parliament and to the Scottish Government.

Amendment 4, tabled by my noble friend, provides that the abolition of the Scottish Parliament and Government would have to be agreed by United Kingdom-wide referendum. The referendum provision in Clause 1 rightly reflects the importance of the people of Scotland in determining the existence of the Scottish Parliament. It is important to be clear that there are no circumstances under which the abolition of the Scottish Parliament and Scottish Government is envisaged. However, in responding to the points raised by my noble friend, I state that, in that entirely hypothetical circumstance, this Parliament would of course play its full and proper role, as I mentioned previously.

Amendment 5 would state in the Bill that Clause 1 does not limit the sovereignty of the United Kingdom Parliament. Again, I hope I have already sufficiently addressed that point. Clearly, the sovereignty of this Parliament remains, and is unhindered by the provisions. I therefore urge noble Lords not to press their amendments.

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[Lord Keen of Elie]

I am obliged to the noble Lord. I would suggest that it is a moot issue because there have been occasions where this Parliament has expressly stated that an issue will not be justiciable, but of course the courts themselves will then look at that exception to see whether it is enforceable and lawful. There is that further point, so it is a further layer placed upon the issue by this Parliament but it is not conclusive. I believe there have been occasions where the courts have looked at statutory provisions in which Parliament has purported to say, “This is not a matter for the courts”.

[Lord McCluskey]

Then why does the Minister not simply accept Amendment 12, which says that,

“the decision as to whether or not the circumstances are such as to allow the Parliament of the United Kingdom to legislate with regard to any devolved matter shall be a decision for that Parliament to take, and shall not be justiciable in any court of law”?

[Lord Keen of Elie]

I am obliged to the noble and learned Lord and I can express it only in these terms. It is the Government’s considered position that the clause implicitly determines that point in any event. It would therefore not be necessary to express it in the terms proposed in the amendment.

Scotland Bill

Debate between Lord Keen of Elie and Lord McCluskey

Tuesday 8th December 2015 Lords Chamber

[Lord Keen of Elie]

I would be pleased to clarify. We were speaking theoretically in the context of the supremacy and sovereignty of this Parliament. In the light of the referendum finding that the Scottish Parliament should be abolished, it would be necessary for legislation to be put forward. It would in theory be possible for that legislation to be defeated in this Parliament. That is all that I was saying. However, we are in the realms of extreme speculation here—or it appears to me that we are.

[Lord McCluskey]

My noble and learned friend Lord Hope has pointed out the possible difficulty in the current wording. I am very fond, as are many Scots, of the well-known tennis player called Andy Murray. Is he one of the “people of Scotland” in new Section 63A(3)?

[Lord Keen of Elie]

I am not in a position to say whether he or any other individual falls into that category, and at this stage I would not speculate on his status.

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[Lord McCluskey]

The actual wording of Section 28(7), which I do not suppose many noble Lords will have memorised, reads:

“This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland”.

It does not talk about the sovereignty of the United Kingdom Parliament at all. It talks about its continuing power to make laws for Scotland.

[Lord Keen of Elie]

I hesitate to rise again—

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[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.

[Lord McCluskey]

On that point, this provision can be put in to render the matter not justiciable, but that is in the context that the decision would in fact be taken by the UK Parliament and that decision could not be challenged in court. The point about the Sewel convention, which the Minister says is being enshrined in legislation, is that the effect changes entirely because the Sewel convention was not justiciable at all, as I understand it, whereas the statute is always justiciable. The court cannot say, “We don’t want to give it a meaning”; the court has to find a meaning because it always has to answer the question before it.

[Lord Keen of Elie]

In that context, it would be declaring that this is a clause that gives rise to only a political remedy, and that it was not for the court to intervene and determine whether a particular piece of legislation was normal or abnormal. That would not be an issue for the court, and that is the position of the Government with regard to the clause. That could be made clearer, or could be made express, but, as I say, I would be happy to discuss that in the light of the noble and learned Lord’s proposed amendment.

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[Lord Keen of Elie]

In a sense, this is connected to my earlier observation that at the end of the day the clause is not justiciable. It will be for Parliament at the time to decide that it is or is not going to legislate for Scotland in a devolved matter. The term “normally” means “usually” or “generally”, but Parliament at the time may decide that it is going to legislate for Scotland in respect of a devolved matter. There is no limit on that power, as is expressly provided by Section 28(7) of the Scotland Act 1998. There is no limit on this Parliament’s sovereignty and supremacy in respect of that matter. The Sewel convention merely says that normally it will not do so; that is all.

[Lord McCluskey]

Does the Minister realise that if the UK Government decide that the situation is abnormal and therefore decide to legislate, and the Scottish Government go to a Scottish court and say, “We don’t agree with the judgment about normality”, the court will have to make a judgment about that if the word “normally” remains in the wording. There is no mechanism for that other than the court having to sit down and decide what it thinks Parliament intended when it used the word “normally”.

[Lord Keen of Elie]

With respect to the noble and learned Lord, Lord McCluskey, I do not accept that proposition. It would be for the court to say that Parliament decides whether it is normal to legislate for Scotland in a devolved matter. It is not for us to interrogate that decision by Parliament. “Normally” means just that—no more, no less. It is not for the courts to say, “We don’t think the situation was abnormal”. That is a political decision.

[Lord McCluskey]

My Lords—

[Lord Keen of Elie]

I will not accept an intervention at this stage.