Scotland Bill

Debate between Lord Mackay of Drumadoon and Marquess of Lothian

Tuesday 8th December 2015 Lords Chamber

[The Marquess of Lothian]

I do not disagree with my noble friend. What I said was that I do not think that heads of agreement can change constitutions, nor do I think that Governments, by heads of agreement, can change them. The constitution can only be changed, Parliament by Parliament, by Parliament itself, and that is what this clause seems to argue against. I would very much like to think that we could withdraw this clause and, if necessary, as the noble and learned Lord, Lord Hope, has said, find another way of expressing our hope that what is being done today may go on for a very long time.

[Lord Mackay of Drumadoon (CB)]

My Lords, perhaps I may do my best to introduce a little reality to what has happened in this case because, to quote the well-known words, I was there. I was in your Lordships’ House on 21 July 1998 during a debate on an amendment which I had moved concerning Clause 2 of the then Scotland Bill of that year. I have before me a helpful summary of the history of that event, which may assist noble Lords in deciding the way forward in a real and understandable way.

In one sense, Clause 2 refers to what happened that night when, in the course of appearing in the case, Lord Sewel made a statement which I have had a brief opportunity to look at in Hansard. He said,

“we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament”.—[Official Report, 21/7/98; col. 791.]

That means that the facts of what happened were as follows. I had moved an amendment that did not refer to the convention which would be normally effective. As we all know, the Bill proceeded and, of course, became law. I am informed by the report I have in front of me that,

“Since the establishment of the Scottish Parliament, there appear to have been no significant problems with the operation of the convention. It applies when UK legislation makes provision specifically designed for a devolved purpose”,

and also when UK legislation,

“would alter the legislative competence of the Scottish Parliament or the executive competence of the Scottish”,

Government. While some years later we can speculate about what people in this House were thinking in July of 1998, one of the phrases that causes some irritation and annoyance, and which there is clearly a wish to get rid of, is the term, “normally legislate”. It is quite obvious that that was not discussed in any detail that night.

It may also be of interest to noble Lords to know that the convention has evolved over the years and has been agreed through memoranda of understanding and by the House of Commons Procedure Committee. However, the clause refers to only some of the circumstances in which there is in practice the need for a legislative consent Motion. There is further reference to a document entitled Devolution Guidance Note 10, which was used to address some of these issues. What this proves, I would submit, is that the terms that are causing offence were not the result of any detailed debate between the parties to the proceedings before the House, and I trust that this will be of some assistance to noble Lords.