Scotland Bill

Lord McAvoy Excerpts

Tuesday 8th December 2015 Lords Chamber

[Lord McAvoy (Lab)]

My Lords, I do not know whether I should have asked for a suit of armour before coming to the Dispatch Box this afternoon, but here we go. First, I thank the noble and learned Lord, Lord Hope of Craighead, for being the only speaker so far in this debate, with the possible exception of the right reverend Prelate the Bishop of Chester, to recognise that the mandate for the Westminster Parliament is held in Scotland at the moment by the Scottish National Party. It clearly won the election and it is a blow to this House—that is, there is something missing from it—when we do not have that voice here to put its point of view. The great defenders of democracy this afternoon have not seen fit to refer to that lack of democracy, so I thank the noble and learned Lord. I know that he was not putting forward the Scottish National Party’s point of view but he was putting forward views that it has represented at various times, and there is nothing at all wrong with that.

I also take this point of view. If there is consensus on the changes that the noble and learned Lord, Lord Hope of Craighead, is putting forward—consensus between the UK Government and the Scottish Government that these provisions are technically superior and would improve the legislation—we would be happy to support his amendment. We welcome the noble and learned Lord’s initiative in doing this.

Everybody recognises the position of the noble Lord, Lord Norton of Louth, as that of probably the prime constitutional expert, but he does not always get it right. I am sure he is modest enough to recognise that as well. The thing is that these amendments were moved by Labour in the House of Commons and, to the Government’s credit, they accepted them.

I have to express a level of disappointment, which the right reverend Prelate identified. It seems that some Members of your Lordships’ House are still fighting the devolution battle, which was lost in the referendum of 1998. The danger for your Lordships’ House, although I am not saying that this is the case, is in coming across as unconstructive by objecting to the very existence of devolution, and putting forward with negativity amendments that would destroy the whole concept of the Scottish Parliament. Not all the amendments tabled but many of them would destroy that concept. The facts of life are that while I fought on the other side, the people in Scotland—

[The Marquess of Lothian]

Can the noble Lord explain how the removal of new subsection (1) would affect the existence of the Scottish Parliament?

[Lord McAvoy]

To echo the noble Lord, Lord Kerr of Kinlochard, I am not a lawyer and will not get into the detail of that. But as we are getting a wee bit into the nitty-gritty, the noble Marquess, Lord Lothian, and quite a few other Members of this House are in many ways responsible for the attitude in Scotland towards devolution and “getting away from English Tory rule”. I condemn that attitude. The onus is on the Labour Party to win a UK election but the language used and the attitude shown by some Members of your Lordships’ House only confirm to the Scottish National Party that “The English are hostile to us”. I humbly ask that Members of your Lordships’ House be a wee bit more circumspect and not allow the Scottish National Party to portray legitimate concerns as hostility to the existence of a Scottish Parliament. I genuinely urge that.

Several noble Lords have mentioned permanence, which relates directly to what I have attempted to describe—the seeming hostility among many people in England towards Scottish devolution. The permanence issue was agreed in the Smith commission. The commission has been portrayed as politicians deciding things behind closed doors, but there people were behind closed doors with a mandate from the different parties. Getting agreement through the Smith commission was surely an example of delegated democracy at work, because if some things had not been agreed to, there would have been no Smith commission. It is slightly wrong to try to devalue the Smith commission.

The point about permanence is there to reassure the people of Scotland. We can, quite rightly, take the view that it would be impossible or wrong to do, and all the rest of it, but symbolism is important. The clarity of words is important, because we are not all politicians sitting in the House of Lords or even the House of Commons—we are dealing with ordinary folk here. The issue about permanence is completely understandable and gives an assurance. I do not think there is any chance of anybody here in your Lordships’ House or the other place doing down Scotland. I do not believe that. Everybody keeps on saying we have to deal with the political reality, but the reality in Scotland is that many people believe that we here are out to do Scotland down in some way.

In short, we oppose all the amendments—

[Lord Forsyth of Drumlean]

I will just gently point out to the noble Lord, in relation to his point about the use of language, that throughout the 1980s the Labour Party referred to the Conservative Government as not having a mandate in Scotland. That was the language of nationalism. The nationalists were opposed to devolution, and the Labour Party believed that devolution would kill nationalism stone dead. If symbolism and the Smith commission are so important, why was it that, with the Smith commission and the commitment to implement its recommendations, all three unionist parties in Scotland were reduced to one seat?

[Lord McAvoy]

The emotional state of the Scottish electorate after the Scottish referendum is still to be analysed by a number of people and institutions. I do not know what happened and will be bold enough to say that the noble Lord, Lord Forsyth of Drumlean, does not know exactly what happened. But it certainly happened. He refers to people in the Scottish Labour Party thinking that nationalism would be killed off by a Scottish Parliament, but I am not one of those. It is about showing the Scottish people that we are trying to do our best for them. I agree with the noble and learned Lord, Lord Wallace of Tankerness, that a constitutional convention is required. In the long run, it must be required, because these issues keep cropping up.

[Lord Kerr of Kinlochard]

We Scots are quite a canny lot. Is the noble Lord quite sure that Scots would not spot that a declaratory law adds nothing? He said he opposed every one of the amendments, but he did not state in terms—no doubt he now will—that he opposed the one I drafted on my feet, which would limit the ability of the Westminster Parliament to change the provisions relating to Scotland by adding conditions such as a referendum and a vote in the Scottish Parliament. Is he quite sure that it would not cut more ice in Scotland if one was defining rather than declaring permanence?

[Lord McAvoy]

I appreciate what the noble Lord said and apologise for not dealing with his amendment comprehensively. Even as he was saying that, it occurred to me that the reason we object to this is that it is laying down the law—to use that phrase—to the Scottish Parliament as to what they must do. The noble Lord, Lord Forsyth, may be trying to do that but I am not. That would be seen as trying to impose conditions on the Scottish Parliament. I take the point that not every Scot goes about saying, “I need to have this word ‘permanence’”. I take it that the noble Lord, Lord Kerr of Kinlochard, stays in Scotland.

[Lord Kerr of Kinlochard]

Is there a residential qualification to take part in these debates?

[Lord McAvoy]

No, and I am sorry if the noble Lord took that the wrong way. However, I spend my life in Scotland, week in, week out. I listen to people there and am heavily involved in community organisations. I am not trying to devalue the noble Lord’s point of view but I can speak only from my experience. There is a suspicion there—justified or not—about Westminster trying to lay down the law. I know I tempt fate saying that in front of the noble Lord, Lord Forsyth, but there we go. We are suspected of laying down the law in a popular way, not in a legal way—once again, there are too many lawyers. We are talking about how this would be seen as being dictated to by Westminster and interference in the mandate. The Smith commission had the agreement and we are pushing that forward. We would be interested in supporting the amendment of the noble and learned Lord, Lord Hope of Craighead, and I look forward to an interesting night.

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

First, I thank all noble Lords and the right reverend Prelate for their informative submissions, observations and comments, with regard to both Clause 1 and the proposed amendments to it. I begin by making a number of general observations. First, no one on the Government Benches is in any doubt about the supremacy and sovereignty of the United Kingdom Parliament. In that regard, I take issue with some of the comments of the noble Lord, Lord Purvis. Ultimately, it is for this Parliament to determine the constitutional arrangements of the United Kingdom.

The noble and learned Lord, Lord Hope, alluded to some observations he made in the case of AXA General Insurance and others in 2011. I recall those well. He may in turn recall that my client came second in that case. Reference was also made to some obiter dicta of the noble and learned Lord in the case of Jackson, to which we would not necessarily subscribe. However, they are there and are a helpful insight into the thinking of the court at that time with regard to the issue of sovereignty.

The purpose of this Bill is to implement the Smith commission agreement. To suggest that there is no mandate for that is, in my respectful submission, quite inaccurate. Each of the five political parties in Scotland went into the Smith commission and negotiated the terms of an agreement. The Government have undertaken to seek to implement that agreement. That is the purpose of this Bill.

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[Lord Keen of Elie]

I am obliged to the noble and learned Lord for reminding me of the observations made by the noble and learned Lord, Lord Wallace, in that context. At this time the Government consider that we have achieved the best possible wording for the purposes of new Section 63A(3) in Clause 1. I compliment the noble Lord, Lord Forsyth, on his eyesight and his ability to read my notes at such a considerable distance. However, the position of the Government remains that we are satisfied that a relatively open provision in this context with regard to the people of Scotland voting in a referendum is the appropriate way forward.

[Lord McAvoy]

The Minister said a minute ago that the result of any referendum would not be implemented if the Bill were passed and became an Act. That is the reply that was given, and in the current atmosphere it will set lots of hares running. Would he care to clarify?

[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.

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[Lord Forsyth of Drumlean]

My Lords, we have had quite a good debate already—some two hours or more —on Clause 1, but I would like to move Amendment 2. Anticipating what the noble Lord, Lord McAvoy, would say when he advised us to tread carefully on people’s dreams and anticipating that the Front Bench might not be inclined to listen immediately to the wise words of my noble friend Lord Norton of Louth, I tabled Amendment 2, which at least softens the impact of the clause as currently drafted.

The effect would be to introduce after “are” the words “recognised as” so that it would read, “The Scottish Parliament and the Scottish Government are recognised as a permanent part of the United Kingdom’s constitutional arrangements”. Adding “recognised as” implies that there is another party, which is the sovereign Parliament.

I am looking forward to hearing the Minister explain why he is not prepared to accept the amendment—in the unlikely event that he is not prepared to accept it—because these words were in the original Bill presented to the House of Commons. They were taken out as a result of representations from the Scottish nationalists. The Scottish nationalists may have a mandate in Scotland and they may have a mandate in the House of Commons in that they represent 56 seats—

[Lord McAvoy]

Fifty-four.

[Lord Forsyth of Drumlean]

The noble Lord, Lord McAvoy, says under his breath, “54”. I do not wish to go into the half-life period of nationalist Members of Parliament and the reasons for their disintegration, but 56 were elected and I will not be tempted down that particular road.

They were elected on a mandate that is destroying the United Kingdom. We had a referendum in which the people of Scotland clearly expressed the view that they wished to remain part of the United Kingdom. I do not buy the argument that we should immediately incorporate into the Bill suggestions from people who do not believe in devolution. The noble Lord, Lord Maxton, was kind enough to point out that the Scottish nationalists were against devolution. I was against devolution. I believed that it would result in a platform for the nationalists that would eventually threaten the existence of the United Kingdom. I am sorry to say that that has proved to be the case. Alex Salmond voted against devolution and was against it because he shared the view of the Labour Party that devolution would kill nationalism stone dead. It is true that we were both against the constitutional convention, but for different reasons. The nationalists, of course, proved to be luckier than their judgment. So the Government have taken out “recognised as” and we now come back to what exactly the Government are doing with their political statements. Are these political statements words that are meant to appease the nationalists, but they do not mean what we say they mean? That was a point made in the previous debate.

I say to my noble and learned friend the Minister that we can vote in Committee. We choose not to vote in Committee so that Ministers have an opportunity to listen to the debate and come back with their thoughts and reflections. They might not necessarily come back with thoughts and reflections in line with the representations that have been made. But if Ministers are not prepared at the Dispatch Box to listen to well-argued arguments and instead say at this stage in Committee that they are not prepared to go away and think about it, perhaps we need to start thinking about dividing the Committee. My noble friend the Chief Whip is not in his place, but it is not unreasonable, in return for not seeking to divide the Committee, that Ministers should listen to the arguments and give a clear undertaking that they are prepared to consider them and come back on reflection.

In moving the amendment, I am simply requesting that the Government put back into the clause the words that they themselves thought necessary when they introduced the Bill to the House of Commons, particularly in the light of the vigorous debate we have had and the concerns that have been expressed. Including the words “recognised as” would at least offer some respite to those of us who feel that we may be pulling the wool over the eyes of the electorate with the clause as it stands.

The right reverend Prelate the Bishop of Chester told us that it would be absolutely disastrous in Scotland to change the clause. I think it would be even more disastrous to present a fraudulent clause that gives a false impression of the position and could be a source of bitterness in future years. After all, we won the referendum campaign as “Better Together”; we do not want to end up as “bitter together”.

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[Lord Selkirk of Douglas (Con)]

My Lords, Amendment 2, moved by the noble Lord, Lord Forsyth, can be legitimately accepted by Ministers on the basis that it is a more accurate assessment of the present situation.

When I first became an advocate I was summoned by the Solicitor-General. I went up to him, not knowing what he was going to say, and he said he wanted to know whether I would become a parliamentary counsel. At that time I had not the faintest idea what a parliamentary counsel was so I said I would give him an answer as soon as possible. I then learned that a parliamentary counsel was merely a draftsman, and I fear that if I had given the wrong answer I might still be one of the draftsmen drafting the provisions of this Bill, rather than being given the privilege to comment on the best way forward.

There is no question but that the view generally taken is that the Scottish Parliament is there on a lasting basis and on the basis of permanency. There is no doubt whatever that this Parliament is sovereign and that one Parliament cannot bind future Parliaments. The results of the referendum and the general election both pointed in the direction of the maintenance and security of the United Kingdom, and also of greater powers for the Scottish Parliament. In some ways, we are having to walk a tightrope reconciling those two different aims. However, I believe there is room for manoeuvre, and this is a very small adjustment which the noble Lord, Lord Forsyth, is suggesting. Without losing anything of the political declaratory nature of the first provisions of the Bill, the amendment could legitimately be looked at and acceded to.

[Lord McAvoy]

My Lords, the Government in their wisdom accepted the Labour amendment in the other place to reflect the Bill as it is. We support that. We think that it was very wise of the Government to do so. It puts the permanency of these institutions beyond any doubt. We all know the law regarding ultimate sovereignty but nevertheless it would be foolish—I am repeating myself—to reject the symbolism of having that in the Bill, so for those reasons we oppose the amendment moved by the noble Lord, Lord Forsyth.

[Lord Keen of Elie]

My Lords, I begin by making the observation that, without commitment, of course we are listening and of course we reflect upon the terms of this debate. There can be no question about that. We are here for that very purpose. I do not accept the implication that somehow we have come here with our ears closed or our minds closed, because that is not the case. I say that without commitment.

In the context of this amendment, the words “recognised as” appeared in the original drafting of the clause. I cannot accept the observation of the noble Lord, Lord Lang, that by amending a clause of this kind we end up with second best. With great respect, that is to invert the whole process of Parliament. The object of amendment—of adjustment—is to achieve a better result, and that is what the Government believe was achieved by accepting the amendment put forward by the Labour Opposition in the other place.

I note—and with great respect adopt—the observation of the noble and learned Lord, Lord Mackay of Clashfern, that if you go down the route of “recognised as”, it opens up the question of recognised by whom, in what circumstances and why? That seems wholly unnecessary in the context of this form of declaratory provision within the clause. In these circumstances I invite the noble Lord, Lord Forsyth, to withdraw his amendment.

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[Lord McAvoy]

My Lords, not to anyone’s surprise, we oppose the amendment. It was our amendment in the House of Commons that made it clear that it should be the Scottish people who determine the permanency of their Parliament. It is not a decision for the United Kingdom as a whole.

I believe firmly in the role of this House as a revising Chamber. Therefore, there is no question of having to have a mandate, to be elected or any other method of claiming to represent people. With respect to the noble Lord, Lord Forsyth of Drumlean, it has to be taken into account that he has no mandate for this type of quite dramatic intervention. There is not much of a cry in England, Wales and Northern Ireland for inclusion in such a referendum. It would also pose the additional point made by the noble Lord, Lord Empey, that it would lack consistency and political reality to include the whole of the United Kingdom in a referendum in Northern Ireland, although I accept that there are unique circumstances in Northern Ireland.

I hope that I am not getting too repetitive, but it is my opinion, based on my experience of living and staying in Scotland—I have been in Scotland all my life—that there would be complete outrage if such an amendment were supported by this House. I ask colleagues to reject it.

[Lord Keen of Elie]

I am obliged to noble Lords. I reiterate that the purpose of the Bill is to implement the recommendations in the Smith commission agreement. I noticed that the noble Lord, Lord Smith, has already observed that the terms of the Bill do that. This provision is consistent with the spirit of the agreement. It is also with precedent, if I can put it in that context. The referendum in 1997 over the matter of devolution was a referendum of the people of Scotland. The referendum on independence in 2014 was a referendum of the Scottish people. It is considered appropriate that we should continue with that model. I note that the noble Lord, Lord Empey, pointed out that the Northern Ireland Act 1998 proceeds in a similar vein. So it is consistent and appropriate that, for the purposes of this Bill, any such referendum—the noble Lord, Lord Forsyth, himself acknowledges how extremely unlikely it is that that would even be contemplated —should be a referendum of the Scottish people. I therefore urge him to withdraw the amendment.

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[Lord Forsyth of Drumlean]

My Lords, I hope I will get a bit of a break after this one. Having argued earlier that it was completely inappropriate to use legislation to write political graffiti—which is what the Government are doing—I reluctantly came to the conclusion that we would perhaps be unable to persuade the Government to rub it out. This amendment, therefore, adds some graffiti of my own. It does what I have been saying we should not do, which is to use legislation to make declaratory statements. However, the declaratory statements included in the Bill as it stands are so misleading that it is essential to add this amendment which simply adds, after line 17, the words:

“Nothing in this section alters the sovereignty of the United Kingdom Parliament”.

I have not been counting, but I have heard my noble and learned friend say that so many times. As he has argued that it is necessary to have declaratory statements in the legislation for a political purpose, that there is nothing wrong with it and that there are precedents for it; and as he has said over and again that nothing in this Bill alters the sovereignty of the United Kingdom Parliament, I am looking forward to him accepting the amendment with enthusiasm.

[Lord McAvoy]

My Lords, is it not the case that the sovereignty of the UK Parliament is already protected by Section 28 of the Scotland Act 1998, which provides that the UK Parliament can always legislate for Scotland?

[Lord Keen of Elie]

My Lords, I compliment the noble Lord, Lord Forsyth, on his optimism. The position is clear: we have repeatedly stated, across this House, that the United Kingdom Parliament is a sovereign Parliament. The noble Lord decided to seek a declaratory statement of that. I submit that this is wholly unnecessary: it is beyond doubt that this Parliament is supreme and sovereign. This is restated by Section 28(7) of the Scotland Act 1998. The existing declaratory statements in Clause 1 are not in any sense misleading. They are an expression of a political reality and they are intended to declare that reality as clearly as possible, acknowledging all along the supremacy of this, the United Kingdom Parliament. The proposed amendment is wholly unnecessary and, if anything is misleading it is the necessity for it. I urge the noble Lord to withdraw it.

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[Lord Forsyth of Drumlean]

The Marquess of Lothian. I am sorry. My noble friend has had so many names that I find it difficult to keep up. If we are to take the Government at their word—I always do, of course—they have said that it is necessary to have in the Bill a piece of declaratory legislation that makes it clear that the Scottish Parliament enjoys permanence, but at the same time the sovereignty of this Parliament remains unaffected, then the two should be put together and put in the Bill. For lawyers to argue that if you read a particular section and interpret it in a particular way, it means something else, simply will not do in the context of a view that it is necessary to write graffiti on legislation. I do not think that the Government should be doing that at all. However, if they are doing it, then what is sauce for the goose is sauce for the gander. I am very disappointed that my optimism has proved confounded, but I will certainly want to return to the matter.

[Lord McAvoy]

The noble Lord is trying to paint a picture of government intransigence. As the Government’s Official Opposition, as distinct from the unofficial opposition, I suggest that one cannot complain when changes are made in the other place thanks to debate, and the Government see the worthiness of that and accept it, and then complain because they do not accept the noble Lord’s amendment. I think he is painting a totally unfair picture of the Government.

[Lord Forsyth of Drumlean]

For a moment, when the noble Lord referred to the Official Opposition and the unofficial opposition, I thought he was referring to the new leader of the Labour Party. I beg leave to withdraw my amendment.