Scotland Bill

Debate between Lord Lang of Monkton and Lord Cormack

Tuesday 8th December 2015 Lords Chamber

[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 Cormack]

My Lords, I will speak briefly to the two amendments in my name, Amendments 14 and 18. I thank the noble and learned Lord, Lord Wallace of Tankerness, the noble Lord, Lord Stephen, and the noble and learned Lord, Lord McCluskey, for adding their names to Amendment 14.

I think we are all aiming for the same thing: clarity and the removal of ambiguity. The one thing that struck me when I was looking at the Bill for the first time was the use of the word “normally”. It is not a very good legal word; indeed it is a word that could, as those who know far more about the law than I do have said repeatedly, be challenged in the courts. In these two amendments, I have sought to remove that word entirely and to give, in Amendment 18, a specific exception. I do not suggest that this is the only answer or necessarily the best one. I listened carefully to what my noble friend Lord Lang said a moment or two ago, but I would delete “normally” and insert at the end,

“save in times of war or national emergency”.

It is accepted in the Bill that there could be occasions when the United Kingdom Parliament, which has absolute sovereignty, would need to override the Scottish Parliament. None of us wants that to happen—and certainly not often—but if we recognise that that can or could happen, we have to be a little clearer with our definitions. I believe that by removing “normally” and inserting a couple of specifics, we are moving in the right direction. It is in that spirit that I commend these amendments to your Lordships’ House.

Succession to the Crown Bill

Debate between Lord Lang of Monkton and Lord Cormack

Wednesday 13th March 2013 Lords Chamber

[Lord Cormack]

If we pass this amendment this evening, it will simply go to another place, which will give extended time for sounding out opinion in the rest of the Commonwealth realms. If a negative response to those soundings was received, we could of course think again, and the Commons might decide to reject the amendment. We are simply expressing this view of this House on a common-sense matter. I very much hope that we shall be able to do that.

[Lord Lang of Monkton]

My Lords, I am most grateful to all noble Lords who have spoken in this debate, in particular to the noble and learned Baroness, Lady Butler-Sloss, and my noble friends Lord Cormack and Lord Elton, who gave me time to digest what I thought my noble and learned friend said at the end of his remarks. I will come back to that shortly.

First, I thank everybody who took part in the substantive debate, in particular my noble friends Lord True and Lord Lexden, and the noble Lord, Lord Thomas of Swynnerton, who are three serious historians. I invite my noble and learned friend to contemplate not only the number of noble Lords who have spoken, because there has been unanimous support from the Back Benches in the Chamber, but the quality of the contributions. I also thank my noble friend Lord Deben, whose persuasive luminosity was up to its usual very high standard. My noble friend Lord Mancroft brought substance and fact to a debate that has had to be held on a conjectural basis before, with his very important friends or relations—I am not quite sure which—in Germany. Not that all relations are necessarily friends. That was extremely helpful, as were the contributions from the noble and learned Lord, Lord Brown, and my noble friends Lord Hamilton and Lord Cormack. I apologise to anybody I have omitted to mention.

I do not want to go over all the points that were raised before, because we have batted balls around in the past and we do not always reach agreement. If I misspoke, to use a convenient Americanism, in the context of the 1772 Act, I apologise. The two central points I was keen to get across were that that Act was concerned with breaking marriages but saving the line of succession. The present Bill is the other way around. It would let the marriages go ahead but would throw in the bar to succession. That is an important injection of uncertainty that could lead to certain unintended consequences, which is why I am so keen to see a stronger and more stable base of 12 who have to seek the monarch’s consent in future.

As to the age at marriage, which is an improvement on my noble and learned friend’s previous commitment to the age at birth, Queen Victoria’s age at marriage was not relevant because by then she had left the line of succession and was already Queen. She would only have had to ask for consent to marry. I could, however, refer to the example of the Duke of Cumberland and Teviotdale, Prince Ernest Augustus, who was sixth in line to the throne when he married in 1815, rather than my noble and learned friend’s example of someone who was third in line. He ended up as King of Hanover in 1837 because, of course, Queen Victoria could not accede to that throne because of male primogeniture.

This comes down to judgment. I thought I heard a coded message coming from my noble and learned friend—I do not think I saw white smoke coming out, but at any rate it put me at a slight quandary. I am conscious that regardless of the extent of support within this Chamber, if it came to a Division the noble Baroness, Lady Hayter, has substantial support at her disposal in the Lobbies, and there is no detection of a change of tone coming from there. Nevertheless, I believe that my noble and learned friend is offering me half a loaf, which is better than none. I will withdraw this amendment in the hope that these discussions will be productive, not just empty posturing and going over the ground that we have already gone over. In that tone, I beg leave to withdraw the amendment.