Scotland Bill

Debate between Lord McCluskey and Duke of Montrose

Tuesday 8th December 2015 Lords Chamber

[Lord McCluskey]

That depends on the context in which it is used. Normally, “normally” means “usually”—but “norm” means a standard and the main definition in some dictionaries is of conforming to a standard. I cannot understand with regard to devolved matters of legislation what the standard would be. That is why I tabled Amendment 19. If you leave in “normally”, in effect the decision on whether the circumstances are such as to allow the Parliament of the UK to legislate is one for that Parliament to take. That is the first point. In other words, I do not care who decides it, but someone must decide it.

If you do not decide it in this sort of way—namely, by giving the job to a Parliament—you will leave the job to a court. I have no idea what a court would make of the word “normally”. How would a court judge what is normal in the context of devolved and other legislation without hearing evidence? Must a court then hear a lot of evidence from constitutional experts, who are unlikely to be unanimous if today’s proceedings are anything to go by? They are not unanimous and I do not think a court would be able to rule on the matter without hearing evidence. I would hate to see the courts having to deal with this kind of matter, albeit that it would be a bonanza for lawyers—of whom I confess to being one.

[The Duke of Montrose (Con)]

My Lords, I support my noble friend Lord Lang in what he said. The wording of this clause reflects what I understood that Lord Sewel said in this House at the time of the passing of the Bill. It says that,

“the Parliament of the United Kingdom will not normally legislate with regard to devolved matters”.

When that was said before, I think that all of us here—my noble friend Lord Lang reinforced this—thought that it referred to Schedule 5, non-devolved matters, so that a Sewel Motion would be needed for anything discussed in this House outwith Schedule 5.

I have watched over the years as this matter has gradually crept out. The noble Lord, Lord Stephen, mentioned the various steps along which the Civil Service has progressed in making this convention. It was always a fairly constitutional matter and they were chipping away at what we understood could or could not be discussed. To just leave the wording as it is tells only half the story. We must find out what exactly the convention has developed into and what wording would describe it if we want to have it as either a convention or whatever it is. At least we have it on the Floor of the House now and can begin to look at what it should be.

Having seen the wording when the Bill was published, I asked a Written Question of my noble friend the Minister. I asked,

“how many times the Scottish Parliament has passed a legislative consent motion … regarding matters that were not at that time devolved under Schedule 5 to the Scotland Act … and in each case what reason was given”.

The Minister kindly replied with one example, but I think there must be many more. His example was that,

“section 10 of the Scotland Act 2012 made provision for certain elements in relation to air weapons to be within the legislative competence of the Scottish Parliament”,

the argument being that things that were about to be devolved should be subject to a legislative consent Motion. We need to know exactly how far this goes and what its meaning will be.