Scotland Bill

Lord Mackay of Clashfern Excerpts

Tuesday 19th January 2016 Lords Chamber

[Lord Keen of Elie]

That is, as it were, a known unknown at this stage. There are no particular tribunals in mind so far as that is concerned. However, if further tribunals are created, it is contemplated that they should not transfer automatically but should be subject to the same conditionality that is thought appropriate for existing tribunals. It is at that level of generality. It is not contemplated that there is any particular tribunal that will be addressed by that provision. I hope that answers the noble and learned Lord’s question and invite him to withdraw the amendment.

[Lord Mackay of Clashfern (Con)]

On the point made by the noble and learned Lord, Lord Wallace of Tankerness, about taking cases from England, where the delays in particular situations can cause difficulties, and bringing them to Scotland, the definition of a Scottish tribunal in new sub-paragraph (11)(a) is as one,

“that does not have functions in or as regards any other country or territory, except for purposes ancillary to its functions in or as regards Scotland”.

I wonder whether there is any difficulty in relation to what I would have thought was a good idea—namely, to have the possibility of cases being referred to Scotland where that would help scheduling. However, it would be necessary for the law to be applied if a case was transferred to be the law that would be applied before it was transferred.

[Lord Keen of Elie]

I am obliged to the noble and learned Lord, Lord Mackay of Clashfern. First of all, of course, we are dealing with reserved matters. If we were dealing with immigration, for example—a matter of reserved law—there could be circumstances in which the application of Scots law led to a different outcome from the application of English law. I notice that new sub-paragraph (11) in Clause 37 talks about the meaning of a Scottish tribunal, but that, on the face of it, does not appear to determine the scope of its jurisdiction to hear cases from outside Scotland. It is more a question of what is a Scottish case in that context. That is something that can be looked at, I suggest, in the context of each Order in Council for the transfer of each tribunal. There may be room to facilitate the transfer of cases in the manner suggested. That is something that we will take away and consider.

Scotland Bill

Lord Mackay of Clashfern Excerpts

Tuesday 8th December 2015 Lords Chamber

[Lord Lang of Monkton]

My Lords, I rise briefly to support my noble friend Lord Forsyth, who is absolutely right. The fact that the Government had the wording as per his amendment in the original Bill represents what must have been their best thought, after careful preparation, on what should be in the Bill. They have succumbed unnecessarily to pressure in another place and now we are faced, as in a number of other areas in the Bill, with what they must consider second best. I do not think that is good enough for an important Bill of this type, and I urge my noble and learned friend to accept the amendment.

[Lord Mackay of Clashfern]

My Lords, this is an interesting amendment. I wonder by whom the recognition is supposed to be given. “Recognised as” requires that someone does the recognising; who is it? This is a much better clause as it stands than it was originally. The process of improvement in Parliament has in fact worked in this case by missing out a nonsensical requirement and replacing it with one that is reasonably clear.

So far as I am concerned, the purpose of a clause of this kind is to declare the situation as it is and as it will be for this Parliament and for any subsequent Parliament that does not decide to repeal it. As we know, the Act of Union was supposed to be for ever, but we are all mortal, and Members of Parliament, in particular, are mortal. It may well be that a later Parliament has a different idea. The sovereignty of this Parliament is perfectly clear, but that does not mean that it binds a subsequent Parliament, and therefore there could be a change in a subsequent Parliament.

That brings me to a matter that was referred to about the referendum. The point that is made in the clause is that the Parliament is to be permanent, and therefore there is no question of a referendum until someone decides that there should be a question about that permanence. It is quite inappropriate to include detailed provisions about what would happen in the event of a decision that perhaps the Parliament was not permanent after all in the shape of a referendum. That is a matter which, at the very least, would have to be looked at in some detail, just as recently we have been looking in great detail at the referendum Bill about moving out of the European Union. If a Bill was required to alter the status of the Scottish Parliament, I feel certain that it would need some pretty careful consideration. That probably will not occur in my lifetime or, I suspect, in the lifetimes of most noble Lords who are present, except possibly the very young.

[Lord Empey (UUP)]

My Lords, perhaps I may make a brief observation. The noble and learned Lord, Lord Wallace of Tankerness, quoted the 1998 agreement that affected Northern Ireland. I have to say that if you have a political agreement such as the Smith commission which you are trying to implement, you cannot be expected to translate it word for word into legislation. The Belfast agreement contained diplomatic language, political language, and of course there was an international dimension to it which is not present in the current proposals. The phrase that comes to mind when discussing these matters is, “There is nothing as permanent as the temporary”. We should not be working within an absolutely rigid framework which says that we have to replicate word for word the particular phrases used by the Smith commission.

It is never intended that a political agreement from a commission which has been established should automatically be transferred verbatim into law. That is not feasible and I urge noble Lords not to put themselves completely on the hook over this because of the fear that if something is changed, it will be seized upon by people who will say that you are running away from the agreement. The fact is that those people will seize on it whether you do or whether you do not. That is because we know that they signed up to it, and now they have walked away from it. The issue is this: is it right and proper legislation or is it not? Is it consistent with the aims and objectives that were set out by the commission to which the parties have agreed? I would have thought that that is a better measure for judging the quality of the legislation rather than putting yourself in a terrible position where if you change a word, a dot or a comma, somehow or other you are committing a political sin. That is not what Parliament is here to do. Everyone has been put into difficulty by getting themselves shackled to this proposal.

--- Later in debate ---

[Lord Cormack]

I will not prolong this brief debate unduly, but my noble and learned friend seems to be adopting a fairly intransigent line. If it is permissible to make declaratory statements to appease those who would destroy the United Kingdom, is it not permissible to insert them for those who are dedicated to its future?

[Lord Mackay of Clashfern]

That may well be so, but there is already a declaratory statement in the Act which the Bill amends. It was pointed out that, under Clause 1, the other provisions of that Act were to be taken into account. One of those is Section 28(7). I will not say anything about the proposed amendments to Clause 2; the situation may be slightly different there.

--- Later in debate ---

[Lord Forsyth of Drumlean]

Perhaps I can help my noble and learned friend. Throughout this afternoon, he has argued that it is essential—for political reasons—to put in Clause 1 words that say the Scottish Parliament is permanent. He has argued that we should understand that no Parliament can bind another and that the sovereignty of the UK Parliament remains. All my amendment seeks to do is to add a few words to the clause which give the reassurance that he has been giving to the Committee. I am not a lawyer, but after Pepper v Hart and all that, what is said at the Dispatch Box does actually matter. For him to say that he could not add it to the clause because it would be redundant or that you can find, buried in the previous Scotland Act—

[Lord Mackay of Clashfern]

It has to be remembered that this Bill is amending the Scotland Act. This provision, which my noble friend Lord Forsyth of Drumlean wants to put in, happens to be there already in Section 28(7). That is my objection. Repetition may be a good idea, for all I know, but it is there already. The point made by the noble and learned Lord, Lord McCluskey, about unnecessary legislation might come into this. There does not seem to be much need for it, especially when Clause 1 refers to the other provisions of the Scotland Act, into which this is being embedded.

[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.

--- Later in debate ---

[Lord Davidson of Glen Clova]

I apologise for not confirming that we support Amendment 20. I took that as being the overall approach—this smorgasbord—between the approach of the noble Lord, Lord Stephen, and the approach of the noble and learned Lord, Lord Hope. I hope that clarifies the point.

[Lord Mackay of Clashfern]

What is the noble and learned Lord’s view about the provisions in Amendment 12, which was tabled by the noble and learned Lord, Lord Hope? It contains paragraphs (a), (b) and (c). Paragraph (a) applies to Scotland and does not relate to reserved matters. I would have thought that is what is meant by devolved matters, but paragraphs (b) and (c) considerably add to that. As far as I can understand them, particularly paragraph (b), they would apply to this legislation.

[Lord Davidson of Glen Clova]

Perhaps I can try to explain the proposition put forward by the noble and learned Lord, Lord Hope, in his amendment. As we see this, it reflects the reality of the way in which legislative consent Motions have been used over the 15 years, beyond the original.

Scotland Bill

Lord Mackay of Clashfern Excerpts

Tuesday 24th November 2015 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I would like to begin by expressing my appreciation of the maiden speech by the noble Lord, Lord Campbell of Pittenweem. He has been a colleague in the Faculty of Advocates for many years and his coming to this House can only be a benefit to us. I simply say the same about the noble Baroness, Lady McIntosh. As another member of the Faculty of Advocates, it is a great privilege to welcome her, as it will be to listen to her maiden speech in due course.

I have been privileged to hold a number of important offices in Scotland and also in the United Kingdom with functions in Scotland. Today, I am glad to participate in discussion of this important Bill relating to my native land. The most relevant of those offices today is my appointment as sheriff principal of Renfrew and Argyll, when I was the returning officer for Argyll and declared the late Iain MacCormick, the SNP candidate, as Member of Parliament for Argyll in the elections of 1974.

Turning to the Bill, on 12 November 2015 Bruce Crawford MSP, chairman of the relevant committee of the Scottish Parliament, wrote a letter to the Secretary of State for Scotland, from which I quote:

“Dear Secretary of State … Re. Views on the Scotland Bill—post-Report Stage … I am writing to you on behalf of the Committee following our consideration of the latest stage (Report Stage) of amending the Scotland Bill in the House of Commons held on 9 November.

We welcome your constructive engagement with the Committee during the process since then and the obvious improvements that have been made at this most recent stage. Many of the changes that you made are in line with our suggestions and we are pleased that you have agreed with the Committee’s view and further improved the Bill. We welcome your comments to this effect made in the House of Commons during Report Stage.

As you are aware from previous correspondence and our Interim Report published back in May 2015, the Committee remains in agreement that we want to see the final Scotland Bill fully respect both the ‘spirit and substance’ of the all-party Smith Commission agreement. At both introduction of the Bill and at Committee Stage, we stated that, in some of the areas, the legislative proposals met the challenge of fully translating the political agreement reached in the Smith Commission. In other areas, improvements in drafting and further clarification were required. In some critical areas, the legislative clauses fell short.

In particular, the Committee is pleased to see the changes that have been made to some of the welfare provisions, notably the ability to introduce new benefits in devolved areas and to top-up benefits in reserved areas”.

He goes on to list a number of detailed points about the clauses which it would be appropriate to consider in Committee.

I have quoted this to show my profound appreciation for the co-operation that, in this case, has marked the process so far associated with the Bill—which I hope will continue—and to refer to the agreement that the final Bill should fully respect both the spirit and substance of the all-party Smith commission agreement. In my view, a role of this House as a revising Chamber is to examine the Bill to see if other amendments are required in order that that agreement be fully implemented. The fact that I am not elected in no way disqualifies me from fulfilling this function, and I am comforted by the knowledge that any amendments we judge to be necessary need to be approved by an elected Chamber before they become part of the Bill that passes into law. I say this in the light of the comments about this House made by a member of the Scottish Government some weeks ago on the BBC’s “Question Time”.

I believe that the process so far precludes us from giving effect to the conclusions of our Select Committee on Economic Affairs concerning the Barnett formula, but of course, they may well be effected by the fiscal framework which is still in the process of negotiation. The principles set out for that in the Smith agreement are reasonably clear, in language that is not very recondite. To put them into practice just now is quite difficult. I conclude by suggesting that my noble friend the Minister make copies of the letter to which I have just referred available to Members of this House, as I think the later paragraphs would be very useful in Committee.

I am very conscious of the problems in Scotland that have been mentioned. As a resident of Scotland most of the time, it is apparent to me that there are matters that need to be dealt with. They are primarily matters for the Scottish Parliament, but there are serious problems relating to the constitution of the United Kingdom as a whole, and I am glad that my noble friend Lord Lang of Monkton and his very capable Constitution Committee are looking into them.

Queen’s Speech

Lord Mackay of Clashfern Excerpts

Monday 1st June 2015 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, it is a great privilege to follow the right reverend Prelate the Bishop of Leicester. I have had the privilege of his company many times and have had much valuable instruction from him. In the diocese of Leicester, he has given tremendous leadership in bringing diverse communities together. I am sorry that the time is approaching when he plans to leave this House, but I am sure he will be a valuable member of the community to which he hopes to go.

I do not propose to follow the comments of the noble and learned Lord, Lord Falconer of Thoroton, about the qualifications of the present Lord Chancellor, except to remark that he had something to do with bringing about the position in which this is possible. Since he has mentioned it, I also take this opportunity to mention what I consider to be the very sad treatment of his immediate predecessor.

My comments on the gracious Speech will be confined to the proposal:

“My Government will bring forward proposals for a British Bill of Rights”.

This is an important and difficult subject which has received attention in this House since I joined it. I want briefly to mention the present position: the United Kingdom is bound by the European Convention on Human Rights and certain protocols to a statement of these rights and to implement decisions of the court set up under the convention in cases arising from this country. The noble and learned Lord, Lord Falconer of Thoroton, is not correct in saying that the ultimate decision on cases arising in this country rests with our Supreme Court. At the moment, it rests with the court in Strasbourg. I shall say something more about that in a minute.

Until the convention was incorporated into our law by the Human Rights Act, the text of the convention was not part of our law, although our courts had regard to it in deciding cases in which it was relevant. With the passing of that Act, the text became part of our law and our courts applied it in deciding cases in which it was relevant. The Act required our courts to have regard to decisions of the court in Strasbourg in reaching such decisions, as the noble and learned Lord said. The Act also conferred on our courts power to declare Acts of our Parliament inconsistent with the convention. The Act did not affect the obligation of the United Kingdom to implement decisions of the Court of Human Rights in Strasbourg, to which I have referred.

This position has now produced a difficult situation. The Strasbourg court has decided that our statute which denies persons serving a prison sentence the right to vote is inconsistent with the convention as supplemented by a protocol. A court in Scotland has declared that the statute is inconsistent with the convention and the Court of Appeal in England has agreed. Taking part in that decision, Lord Justice Laws gave a full account of what Parliament would require to do to implement the Strasbourg court’s decision. So far, Parliament has not taken any such action and has indicated no intention of doing so, so the obligation is in suspense in the sense that it has not been complied with. I must confess to a feeling of great anxiety that the United Kingdom, with its tradition for respect of the rule of law, not the rule of lawyers, should be in breach of a treaty by which it is bound.

It has been suggested in some quarters that we should adopt the procedure necessary to free the United Kingdom from its treaty obligation under the convention. That treaty, as was already mentioned by the noble Lord, Lord Marks of Henley-on-Thames, came into existence as the result of the way minorities had been treated in Europe in the preceding years. That treatment had been inflicted with the authority of the elected Government. The United Kingdom took an important part in setting up the treaty and its mechanism of enforcement, and I have little doubt that our leaders of that time were motivated by a concern for the citizens of other countries rather than those of the United Kingdom in particular. It would surely be extremely sad for the United Kingdom to withdraw from a treaty which we took such an active part in setting up with motives of concern for citizens of other states than our own.

I will make a suggestion for a possible way forward. We could seek an amendment to the convention to exempt from the obligation to implement the decision of the Strasbourg court where the court has decided that a statute of a member state contravenes the convention, and in that member state no court of that state has authority to set aside or modify that statute, if the legislature of that member state passes a resolution, which for stated reasons declines to implement the Strasbourg court’s decision. If such an amendment could be agreed, I venture to think that the effectiveness of the treaty would not be substantially diminished.

I regard the present situation as extremely unsatisfactory. That would be a possible way of recognising that at least in our country—and maybe in some other member states—the elected Parliament is sovereign and not subject to any kind of quashing order by the courts of this country. That of course has been the situation in our country for a very long time. The courts of our country, including the Supreme Court, have no power to quash or set aside an Act of Parliament. Instead of coming out of the convention altogether there may be something to be said for considering whether the convention should recognise the possibility that in some member states the Parliament is sovereign and not subject to having its Acts set aside or modified by the courts of that country. From that point of view there is something to be said for the view that if the courts of our own country cannot do anything about an Act of Parliament, why should it be so for the European Court of Human Rights?

Of course, the original idea was to seek an enforcement which would override the position of the elected Government, but it may be that nowadays the publicity attended by such a decision of the court in Strasbourg would be sufficient to afford protection for minorities, although so far, in this country at any rate, that particular minority of prisoners serving a sentence has not been protected in the way the court in Strasbourg thinks it should.

The proposal in the gracious Speech is for the preparation of a British human rights Act. So long as that is well done, I see no particular objection to it. The gracious Speech does not propose coming out of the convention on human rights. There have been suggestions of that in other quarters but all that the gracious Speech proposes is the formulation of a British human rights Act.

Difficulties with the Human Rights Act have been expressed in this House from more than one side. I refer in particular to the reference made by the noble and gallant Lord, Lord Craig of Radley, on Thursday to the difficulties in connection with the field of battle, and the application of the Act there. I do not know enough about it to say, but there may be some way in which that modification could be thought of. The idea that the Act would not apply at all would be pretty difficult, but I have certainly heard it said by noble and gallant Lords and noble Lords on other Benches than the Cross Benches that this is a difficult situation. These matters could be dealt with, and I venture to hope that they could be dealt with not in a partisan way but in a way that seeks to get the right solution to a difficult situation, done with deliberation.

This has nothing whatever to do with what I have just been saying, but I believe that the noble and learned Lord, Lord Falconer of Thoroton, may not be correct in his assertion that my noble friend Lord Dunlop, who gave his maiden speech today, had any part in the introduction of the community charge Act in Scotland. I was not a member of the Government at that time because I was on the Bench, but I have a feeling that it may not be a well-founded suggestion, and the noble and learned Lord would not like to be responsible, as a former Lord Chancellor, for making unfounded suggestions.