Scotland Bill

Debate between Lord Keen of Elie and Lord Norton of Louth

Tuesday 8th December 2015 Lords Chamber

[Lord Keen of Elie]

With respect to my noble friend, I will reflect upon all observations that have been made in this House, but without commitment.

[Lord Norton of Louth]

Well, my Lords, this has been a quite fascinating debate. I say to the noble Lord, Lord McAvoy, that I fully accept I am a Lord and not the Lord and therefore am quite capable of getting things wrong. However, on this occasion, I am not sure that I have, given the excellent speeches that we have heard in support of these amendments. I really think it is incumbent to pursue the matter further along the lines that several noble Lords have suggested.

The noble Lord, Lord McAvoy, argues that declaratory statements are appropriate—and indeed they are but, as the guide to legislation makes clear, not necessarily in legislation. Declaratory statements are the sort of thing that should be done at the Dispatch Box. As the Minister pointed out, there have been occasions when declaratory statements have appeared in statute. But what is quite clear from the debate is the unusual context in which we are discussing this, given that it derives from extant legislation and actually complicates, rather than clarifies, what Parliament has already stipulated in legislation.

My starting point in all this is very similar to that of the noble and learned Lord, Lord Hope of Craighead—that the Smith commission heads of agreement said that the Scottish Parliament and Scottish Government will be made permanent. All parties accepted that, as he said, and the debate has proceeded on that basis. It has largely been taken as given.

It strikes me that there are two problems deriving from that. The first is that it has not been properly debated. I really think that the debate this afternoon in your Lordships’ House is the first thorough, proper debate on principle in relation to this issue. What it has demonstrated is the need for further consideration of the matter. The second problem is the extent to which the Government appear to have taken almost literally the heads of agreement—they have just taken what was said and plonked it in legislation. We will see that shortly when we discuss the Sewel convention. The Government’s line is that this is what Lord Sewel said, so that is the convention and the words go into statute. It is not put on a statutory footing; it is just plonked in statute. I think that the same has happened here. Because the heads of agreement said that it would be made permanent, the Government decided to put in place legislation to make it permanent without thinking through the implications.

Those implications have been well drawn out by the Constitution Committee, as my noble friend Lord Lang has pointed out, and I declare an interest as a member of the committee. In the context of the debate, it is well worth reminding your Lordships of the committee’s report on the Bill, especially paragraph 36:

“It is a fundamental principle of the UK constitution that Parliament is sovereign and that no Parliament may bind its successors. There is now a strong argument that Parliament is seeking to limit its own competence in a way that the courts may seek to uphold in future given that it rests on a requirement for popular consent. While we recognise that it is extremely unlikely that this will ever be tested in the courts, it is nonetheless symbolically important and we are concerned that these provisions, as currently worded, risk introducing uncertainty concerning the absolute nature of parliamentary sovereignty where there should be none”.

This is an extremely serious issue.

I agree with my noble friend Lord Lothian and the noble Lord, Lord Kerr of Kinlochard, who have come up with some very positive suggestions. As the noble and learned Lord, Lord Hope of Craighead, said, I see no reason why the Government could not at least go away and think about the wording of the clause and come back. As the noble and learned Lord, Lord McCluskey, has said, we must try to do better. I hope that between now and Report that is exactly what we will do. In the mean time, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Keen of Elie]

I do not accept the proposition that my noble friend Lord Forsyth advances. The position is that this Parliament is sovereign; in terms of Section 28(7) of the 1998 Act it may legislate for Scotland in all and any matters, including devolved matters. The Sewel convention simply expresses the view that this Parliament will not normally do so. However, that does not fix some black-line test to be applied by the courts as to what is normal and abnormal; it will be a matter for Parliament going forward to decide if or when it would ever legislate for Scotland in respect of a devolved matter.

[Lord Norton of Louth]

My noble and learned friend’s argument was that the Bill puts into statute the recommendations of the Smith commission, and in this case, recommendation 22:

“The Sewel Convention will be put on a statutory footing”.

Surely on his own argument the Government will have to withdraw Clause 2, not only on the grounds of what constitutes a statutory footing but because it embodies the words of Lord Sewel, which he spoke when the Scotland Bill was before Parliament, and not the convention as understood at the time the commission produced its report.

[Lord Keen of Elie]

I do not accept that, because it appears that what is understood by the Sewel convention is the expression of that convention by Lord Sewel during the passage of the Scotland Act 1998 through Parliament. I indicated before the sundry working arrangements that developed and changed over the passage of the 15 years after that convention came into place, such as DGN10, which is why there is no attempt, and properly so, to express those working arrangements in statutory terms within the Bill.