Scotland Bill

Lord Purvis of Tweed Excerpts

Tuesday 8th December 2015 Lords Chamber

[Lord McCluskey (CB)]

My Lords, I may be brief. I made points in my Second Reading speech which the noble Lord, Lord Lyell, has referred to. We are all agreed about one thing: there is a problem. Whether the unelected House of Lords is the right place to start giving a lead in that matter is something entirely different. I would not fashion the problem in precisely the words that the noble Lord, Lord Foulkes, has mentioned—the one-party state. I think I have previously used the expression that was made well known by Lord Hailsham, “an elective dictatorship”, because in substance that is what you have in the Scottish Parliament at the moment. The Scottish National Party, for its own reasons, whips its MPs so effectively that there is no dissent, and for reasons that I mentioned at Second Reading, the weakness of the opposition is palpable. There are good people and, by the way, one or two good committees as well, but the committees of which I have experience, which are largely to do with justice, are not satisfactory.

I therefore agree with the noble Lord, Lord Maxton, that there is a problem with having an elected House. The great thing about the House of Lords is that it is not elected, therefore we are not answerable to constituents, and because very few of us are left with ambition, having reached an age and a state in our careers when ambition is no longer available to us, we can say what we think. However, that is not a popular idea in the country generally.

I am not sure that I am totally committed to the idea of an elected second Chamber but there must be some system. One forgets that many of the institutions that are extremely powerful in shaping the political debate and the political results in this country are not elected at all. I mention, for example, the press, which is said to be free and independent. It may be free, and it is independent of government, but in no sense is it elected by anyone. I get no say in who appoints the editors of the Times or the Sun or, for that matter, the Daily Mail, and they have considerably more influence than this House over what happens in this country, but they are not elected either.

This may be just a start but I feel that there is a duty on those of us who share the idea that there is a real problem to publicise that problem in Scotland and to try to persuade the Scottish electorate and the people generally that it has to be tackled, although perhaps not in this way. However, I certainly support the idea that “something must be done”—an expression which I hesitate to use because of its antecedents.

[Lord Purvis of Tweed (LD)]

My Lords, it was fairly dispiriting to come back into the Chamber and to see our archaic language—which, as a Member of this House compared with being a Member of the Scottish Parliament, it has taken me a while to adjust to—on the annunciator. It announced that the House was “Adjourned during pleasure”, and it was dispiriting when the “pleasure” ended and the Scotland Bill was brought back to us. When I first saw that announcement on joining this House, I asked the Clerk of the Parliaments was it was. He asked me, “Didn’t you have any pleasure in the Scottish Parliament?”. I replied, “No, not very much at all”.

It was a pleasure to hear the noble Lord, Lord Foulkes. His persuasive skills are renowned but I am afraid that I am not persuaded by the case that he made. When I was a constituency Member of the Scottish Parliament, I considered it to be absolutely my duty to be as effective in that role as anyone else, but I was also aware of the pressures on constituency and regional Members of the Scottish Parliament. At one time, I was a member of three parliamentary committees: two were legislative and one—the Finance Committee—was both a scrutiny and a legislative committee. There was most certainly a strain on the number of Members.

It is worth reflecting that it was not designed to be like that. When the Parliament was established and the consultative steering group looked at the fundamental principles of how the Scottish Parliament should operate, it was designed to be a very different type of institution from the one here. There was going to be much stronger pre-legislative scrutiny and that element has been successful. This Parliament has learnt from that approach to pre-legislative scrutiny, with draft Bills now becoming the norm.

The committees in the Scottish Parliament, because of its nature, are both legislative and scrutiny committees. They were designed to be the strength of the Parliament. In a previous element, the noble Lord, Lord Forsyth, said that the Scottish Parliament sits for only one and a half days. When I was a Member of that Parliament, that was a frustrating misconception reinforced by some of the press, which I felt had an agenda against the Parliament. There were plenary sessions but, unlike in this place, the committees in the Scottish Parliament had precedence. They met on Tuesday mornings, Tuesday afternoons and Wednesday mornings because of their distinct role.

The feeling was that the convenors of committees were going to be equal to Ministers and that their parliamentary strength was going to be in balancing the Executive’s authority. There was to be a shadow civic Parliament, with a much stronger civic input into the way that the Parliament operated. It is disappointing—there is a mea culpa from my party, which was part of the Administration early on, but it has most certainly been accelerated since 2007—that the Scottish Parliament has become remarkably like the Westminster Parliament. It has an absolutely dominant Executive and the committees have gradually become weaker. Their convenors are not even elected by the whole Parliament—an innovation of the House of Commons. The procedures of the Parliament have become weak in relation to power over the Executive when it comes to money. If there is anything that the Scottish Parliament can learn from our experience now, it is that Parliaments that reduce the ability to hold government to account for the money that it spends on behalf of the people are weakened Parliaments.

Ultimately, that has meant that there have been some examples where there has been less scrutiny than I, as a former Member of the Parliament, would have liked—whether that is on police reform, where mine was the only party to vote against what has happened because there was a large majority and the Executive were able to take it through; criminal justice reform; two areas that are currently being challenged by Brussels, on the Scottish Futures Trust and the delivery of infrastructure; minimum unit pricing, which has been challenged; or the quality. Fundamentally, these are my observations as a former Member who loves that institution, wishes it well and was a very proud Member of it.

However, I agree with the noble Lord, Lord Forsyth: it is not for this place to tell that institution what to do. If this place is to have a role—I know that members of the major party in Scotland will never accept that, and I understand the reasons for it—it is sometimes for former Members of the institutions with deep respect say to that institution that it is worth it considering its own procedures. I live in the area that I used to represent as a Member of the Scottish Parliament, and so I maintain a vested interest in that Parliament working well.

There is a case for some form of much heightened, strengthened pre-legislative scrutiny. Sir David Edward, whose qualifications I do not need to rehearse, argued in a very good lecture for a council of state, using the existing organisations that we currently have set up in Scotland—for example, the ombudsman—to be a much stronger check on the proposals being put forward. Corroboration is one area where there should have been stronger pre-legislative scrutiny.

Equally, I believe that there will increasingly be an argument for some form of check before the final stages of Scottish Parliament legislation. If there is a reformed House of Lords, it could be that we have a mandate from the Scottish people directly, or indirectly through the Scottish Parliament for senators in this place, and may well have some joint capacity with both the UK and Scottish Parliaments—I will not need to address the next amendment, which deals with the working relationships, because this is my point. Noble Lords may not be entirely surprised to hear me say that, ultimately, that should be one area that we consider in a constitutional convention: to look at the proper functioning and continued strengthening of how the Scottish Parliament operates and the areas where this institution should rightly have a relationship with it. Ultimately, we should seek a better, stronger Scottish Parliament, able to do its job.

Therefore, I am not persuaded by the solution that the noble Lord has brought forward, but I hope, with the deepest of respect to the institution that I love, that it takes it very seriously, especially in the context of the successful passage of this Bill, in which the Scottish Government’s powers over budget and taxation will be greatly enhanced.

[Lord Hope of Craighead (CB)]

My Lords, I do not want to take up any more time on this issue. However, I remind the noble Lord, Lord Dunlop, that when I followed the noble Earl, Lord Kinnoull, at Second Reading I asked him a question. The question was whether, having regard to what we see in the Bill, he felt that the Scottish Parliament was able to cope with the additional powers that we are passing to it. Of course it is a matter for that Parliament to work its own procedures; I absolutely understand that. However, we do have an interest, since we are devolving these additional powers. It would be very unfortunate if the Parliament as presently constructed, and designed for a totally different situation, was so overloaded that it could not fulfil its function.

Scotland Bill

Lord Purvis of Tweed Excerpts

Tuesday 8th December 2015 Lords Chamber

[Lord Lang of Monkton]

As I do not know the context and full detail of what my right honourable friend the former Attorney-General said, I can hardly answer the noble and learned Lord. But I hope that sovereignty can be reconciled with common sense and realism. Certainly that would be my objective.

There is a threat to the sovereignty of the United Kingdom which is potentially raised by the wording of these clauses, and the intrusion of new elements into them which cloud out the specific issues of principle. If a court in Scotland did overrule the power of the United Kingdom and managed to pass a judgment that said that the United Kingdom Parliament was overruled by the view of the Scottish Parliament, it would not be devolution but separation. We must not plant the seeds for such a development in this legislation.

[Lord Purvis of Tweed]

Does the noble Lord not agree that there is now considerable case law in Scotland which has looked at the competences of the Scottish Parliament and the reach of legislation from this place? So under the existing arrangements, it is perfectly in order for UK legislation to be challenged on the extent of its interaction with devolved legislation. We currently have that practice and it does not seem to have undermined our constitution irrevocably.

[Lord Lang of Monkton]

That does not surprise me, because I have always taken the view that, ever since we embarked—for all kinds of reasons I will not go into in this debate—on an ill-conceived and unbalanced form of devolution, we were on the slippery slope and sliding towards separation and independence unless we were very careful. As I have said many times, this Bill carries us one step nearer to that.

In his wind-up speech at Second Reading, my noble friend Lord Dunlop said:

“The sovereignty of Parliament remains”.—[Official Report, 24/11/15; col. 667.]

That is a commendable, clear, concise statement. We also know, and have reminded ourselves today, that no Parliament can bind its successor. But my noble friend also said of this clause that it puts the permanence of the Scottish Parliament and Scottish Government, “beyond all doubt”. In conceding the referendum point on Report in the other place, the Secretary of State for Scotland said that it makes clear,

“beyond question that the Scottish Parliament and the Scottish Government are permanent institutions”.—[Official Report, Commons, 9/11/15; col. 57.]

By putting things beyond doubt, he raises doubts in all of us. The Government’s arguments are in deadlock: they hit each other head-on. That is why, at Second Reading and now, so many noble Lords have tabled amendments and why the House badly needs reassurance. I very much hope that the Minister will be able to give it to us when he winds up the debate.

[Lord Sanderson of Bowden (Con)]

My Lords, I am one of the few non-lawyers who are even putting their foot into this particular hole. I stand to be corrected by the Front Bench, but Clause 2, which has been referred to, makes perfect sense if the United Kingdom Parliament remains sovereign and can legally legislate on anything, including devolved matters. But that would contradict Clause 1 if the purpose of that clause is to entrench all provisions that are unalterable. I want our Front Bench to answer that question.

[Lord Purvis of Tweed]

I do not agree with the mood of the noble Lord, Lord Lang of Monkton, because I do not share his views on Amendment 1. I am happy that the Government inserted further clauses into the Bill. I am pleased that that was the result of cross-party consideration and that the Government responded to the Smith commission—in a difficult context—and put into proposals what I think most people in Scotland now understand: that they have two Parliaments. This is not an easy thing to do and parliamentary draftsmen have a difficult task because we now operate in a situation where we have more than one sphere of power over primary legislation. That poses considerable difficulties for some because they believe that one should be primary and one subsidiary to it. So far as primary legislation is concerned, most people in Scotland consider themselves as having two legislatures. It is even harder because we do not have a written constitution. In the absence of one, we have to rely on other measures to see how we entrench parts of our governance.

It is not the case that this has simply been dreamt up over the last couple of months, as some noble Lords have indicated. Nor it is the case that it is in response to the referendum. Nor is it the case that it is only to do with political expediency. Some of us have believed for a considerable time that it is right to reflect in statute the permanence of the Scottish Parliament in the context of a new and evolving structure of governance in the United Kingdom. I absolutely believe that that is best in a codified federal relationship, which I hope would be the result of a constitutional convention—others have a different view. However, in the absence of that, I believe that we then have to look at what has been a developing process in the United Kingdom.

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[Lord Keen of Elie]

With respect, I rather thought that I had answered the point made by the noble Lord, but let me reiterate it. The word “permanence” appears in the Smith commission agreement. After further consideration, it was felt that in order to strengthen the political statement contained in Clause 1 that word should feature in the clause itself.

I return to Amendments 6 and 7 which seek to alter the basis upon which any decision would be made with regard to the provisions of Clause 1. As was observed, it is not anticipated that there will at any point in the future be a referendum upon that issue, but nevertheless as this matter proceeded in another place it was again considered that this would strengthen the political statement that is being made here. Let us be clear: the use of a referendum in this context is consistent with precedent. In 1997, the people of Scotland supported the creation of a Scottish Parliament on the basis of a referendum. In 2014, in the independence referendum they reaffirmed their wish to have two Parliaments and two Governments for the purposes of reserved and devolved administration in Scotland. Therefore, it is appropriate that any question about the abolition of the Scottish Parliament and the Scottish Government, which is not envisaged, should be based on the expression of the will of the people of Scotland in a referendum. Let me be clear: that is a theoretical point. There has never been any question that the Scottish Parliament and the Scottish Government are anything other than permanent parts of the United Kingdom’s constitutional arrangements. That remains the case.

It is unusual, but not wholly exceptional, for a clause of a Bill such as this to contain a political statement, an affirmation of the status quo, a declarator that it will not change, and that is the fundamental purpose of Clause 1.

[Lord Purvis of Tweed]

I am grateful to the Minister because I feel that he may well be making my point for me on the subject of new Section 63A(3). If the Government’s position, which I support, is that there can be change only if the people of Scotland make it in a referendum, does that not adjust the absolute sovereignty of this place, which can make an unfettered decision?

[Lord Keen of Elie]

Clearly it is not, because, notwithstanding the outcome of any such referendum, this place might decide not to legislate in accordance with the outcome of the referendum. One cannot use these arguments to undermine the ultimate sovereignty and supremacy of Parliament.

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[Lord Keen of Elie]

If I can complete the journey around the houses that the noble and learned Lord has begun on that point: it appears that new subsection (3) simply underlines the political structure—the declaratory statement contained in the clause as a whole. The noble and learned Lord, Lord Hope, observed that of course it goes a step further in so far as it introduces conditionality to the abolition of the Scottish Parliament, which I acknowledge. As to it being,

“a decision of the people of Scotland voting in a referendum”,

that term is capable of clear and objective definition in due course. Respectfully, however, it appears that that wording is sufficiently clear for these purposes.

[Lord Purvis of Tweed]

Just to carry on a little around the House: the Minister did not make it clear at the Dispatch Box when he said that the people of Scotland would not necessarily be sovereign if this Parliament did not adhere to the result in that referendum. That is absolutely contrary to the Edinburgh agreement that the Prime Minister signed, which stated that the Government would respect that view. The sovereignty of the people should be absolute, not anything else he may say at the Dispatch Box this evening.

[Lord Keen of Elie]

I cannot agree with the interpretation of sovereignty the noble Lord, Lord Purvis, puts forward. At the end of the day, if there was a referendum—and we are talking about a theory, not political reality—it would be necessary for there to be legislation to implement the outcome of that referendum if it involved the abolition of the Scottish Parliament. No one in reality is contemplating the abolition of the Scottish Parliament. The whole purpose of Clause 1 is to make clear the permanence and the recognition of the permanence of the Scottish Parliament and the Scottish Government. The noble Lord, Lord Purvis, has to recognise that the outcome of any referendum could be implemented only by way of legislation that went through this, the sovereign Parliament of the United Kingdom. That is the only point I seek to make.

[Lord Keen of Elie]

I do not accept that expression of the position. As I said at the outset, the whole purpose of Clause 1 is to make a political statement that reflects the terms of the Smith commission agreement, which determined that there should be an expression to the effect that the Scottish Parliament is permanent. We acknowledge that, and that is the political statement being made. It is a declaration of will. However, we also recognise, as I believe this House will recognise, that the United Kingdom Parliament is ultimately sovereign and supreme. I am seeking to make that point. At the end of the day, this Parliament is sovereign, and it cannot disclaim that sovereignty.

[Lord Purvis of Tweed]

In that case, can the noble and learned Lord expand on the meaning of the Government’s wording in this clause? It states that,

“the Scottish Parliament and the Scottish Government are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum”.

Therefore, if the people of Scotland vote in a referendum and make a decision, and the Government or Parliament then disregard the view and the decision of the people of Scotland, does that mean that this clause has no purpose at all in legislation? If that is the case, what is the point of this wording being in the Bill?

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[Lord Keen of Elie]

I was going to continue by saying that, the amendment having been tabled, I would look to its substance, which is that the heading should be, “Competence of the Scottish Parliament”. I am reminded of Voltaire’s observation about the Holy Roman Empire, that it was,

“neither holy, nor Roman, nor an empire”.

Clause 2 is not about competence; nor is it about the Scottish Parliament. It restates in statutory terms the procedural convention of the United Kingdom Parliament with respect to its legislation for devolved matters. If we were to have a heading, “Competence of the Scottish Parliament” when in fact we are dealing with a matter that concerns the legislative competence of the United Kingdom Parliament, in my respectful submission, we would not only puzzle historians but confuse everyone else with regard to the content of the relevant clause.

I note what has been said about the present heading. I will reflect upon the observations made about that heading. But given that it is strictly a matter for the draftsmen, I go no further at this time. I hope that my noble friend will see fit to withdraw the amendment.

[Lord Purvis of Tweed]

I am neither a lawyer nor a historian so I wonder if the noble and learned Lord can help me with his interpretation of this. As this is an amendment Bill to the 1998 Act, once this clause takes effect, if Parliament approves it, will this title actually exist in the amended 1998 Act? If it does not, is this not all rather academic?

[Lord Keen of Elie]

As I understand it, the title will not exist in the amended 1998 Act. The title is a matter for the parliamentary draftsmen but, as my noble friend Lord Forsyth observed, the amendment was put on the Marshalled List and therefore it is addressed. As I say, I will reflect upon his observations, but at this stage I urge him to withdraw the amendment.

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[Lord Keen of Elie]

I am obliged to the noble Lord, Lord Foulkes.

[Lord Purvis of Tweed]

Will the Minister give way?

[Lord Keen of Elie]

In view of the time, no.

Amendment 11 would clearly impact on the ability of the United Kingdom Parliament to make laws for Scotland. To that extent, it would modify Section 28(7) of the 1998 Act. The effect of that amendment could be interpreted as an attempt to limit the sovereignty of this Parliament, a point that I believe the noble Lord, Lord Stephen, acknowledged, and the Government would not be prepared to accept such an amendment.

Amendment 13, conversely, seeks to state in the Bill that Clause 2 places no limits on the sovereignty of Parliament. We would say that if you say that expressly in one part of the Bill, you have to take care as to the impact that it will have on other parts of the Bill, and that it is appropriate to acknowledge that nothing in the Bill impinges on the sovereignty of Parliament.

Scotland Bill

Lord Purvis of Tweed Excerpts

Tuesday 24th November 2015 Lords Chamber

[Lord Purvis of Tweed (LD)]

My Lords, it is a pleasure to follow the noble Lord, Lord Sanderson of Bowden, not only due to his very strong Borders links, to which I have great affinity, but since he raised some of the aspects that I will try to pick up in my own contribution in the wee small hours of this long debate.

Before I start, I, too, wish to add my congratulations to the noble Baroness, Lady McIntosh of Pickering, on her maiden speech, and to my noble friend Lord Campbell of Pittenweem. So successful was his maiden speech that the noble Lord, Lord Foulkes, even named me after my noble friend’s adopted area of Pittenweem when he referred to me. My noble friend Lord Campbell’s work as chairman of my own party’s commission, following in the footsteps of the Steel commission, is relevant to this debate. There is obviously something about the Lib Dems that we have the great benefit of our former leaders to chair constitutional committees—noble Lords may draw their own conclusions about that for their own parties—and his work established the fundamentals of our approach to this Bill.

In the last two decades, in the two referendums there have been in Scotland, the people have spoken very clearly. They want a Scottish Parliament and they want it to operate within the United Kingdom. That beguilingly simple opinion is complicated by the fact that, since the Act of Union, we have lived in a unitary state. Furthermore, the Treasury has developed really quite enormous centralised power over the decades. Also, when we developed the welfare state in the 20th century, it was by and large geographically blind for understandable reasons.

Creating a system of governance that changes the core elements of this unitary state has not been easy, and I for one never thought it would be. The consequences of trying to balance choice and affordability in Scotland with a different profile of economy in other areas, as well as changing the British state, has not been straightforward. It proved to be complex both politically and practically. In many respects, it will continue to be so, but that should not necessarily cause any great surprise to us. Securing consensus has sometimes been very difficult and often led to a lowest common denominator for constitutional reform. However, gladly, it has not presented a block to change.

We have debated many aspects of reform but all without the wider narrative as to the future of the union overall. Change has, therefore, proven to be what was expedient for political agreement rather than set within a wider settlement. The establishment of the legislature in 1999 without commensurate fiscal power or a fully formed Government was a clear example of that. We still see remnants of an outdated concept of Westminster parliamentary sovereignty, which we have heard referred to in this debate, rooted in an imperious parliamentarist view rather than the more compelling concept of citizenship sovereignty that we now have across our lands.

In this regard, the noble Lord, Lord Smith of Kelvin, deserves considerable commendation. He is remarkably modest, given his achievement in finally bringing about what can be the fundamentals of a home rule settlement, where we bring fiscal power commensurate with legislative power, and start to establish that we will need much greater transparency in intergovernmental relations and also that Governments must work together across both devolved and reserved interests. That is finally establishing some of the principles on which the future generations of our governance must be based.

I was grateful to the Minister for referencing in his opening remarks the devo-plus reports that I authored after I served in the Scottish Parliament, for five years of which I was a member of the Finance Committee there. I think that we will finally see the functions of a tax and welfare system in Scotland, but this will also bring about difficulties because it will not be easy. It will also add pressure on my former institution in Holyrood. As the noble and learned Lord, Lord McCluskey, and others said, the current way that the Scottish Parliament operates will need to change. Again, that should cause no surprise. I believe it is positive.

There has been much concern about the lack of publication of the fiscal framework. By and large, I share that concern. At the very least, it would have been helpful for the Government to have published the statement of principles, especially on this now famous or notorious concept of no detriment. That would have been helpful and would have framed the debate much better. My noble and learned friend Lord Wallace of Tankerness outlined very clearly the principles underpinning why such a concept exists, but greater clarity would have been more helpful. Again, it would be helpful to know whether the fiscal framework is simply another iteration of the Statement of Funding Policy. There have been six versions of that since 1999 —that is how the devolved areas are funded—and it would be helpful to know whether the framework is based on that.

Finally, there has also been comment on the need for a wider consideration of a narrative of the union going forward. I passionately believe that that is necessary, and I brought forward a Bill to your Lordships’ House to try to help to bring about space in which we can debate that, in a Constitutional Convention Bill. That would be citizen led and try to establish some of the fundamental principles, as well as establishing a narrative. I have talked about the need for a statement of the new union, and others have called for a new Act of Union, but the common thread is that this Scotland Bill deserves to be passed—we need it on the statute book; it corrects many of the areas where we have been piecemeal in the past. However, without such a binding statement, a core element, on why this union of these nations exist, I think that we will still struggle. Once this Bill passes, as I hope that it will, we should give our absolute focus to bring about either a new Act or new statement for the generations to come.

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[Lord Dunlop]

I assure the noble Lord that these are ministerial meetings of the Joint Exchequer Committee. In between those meetings, very intensive work is going on to agree the fiscal framework. If, unlike me, you believe—

[Lord Purvis of Tweed]

I know that the hour is late and do not want to prolong the debate, but could the Minister address the question that I put in my speech? What standing will the agreement or framework have? Is it a revision of the statement of funding policy, which is a Treasury policy, or will it be a stand-alone agreement between the two Administrations? What standing will that have, as a document, and will it require ratification by the Scottish Parliament, which obviously involves a timetable entirely in its hands?

[Lord Dunlop]

The Deputy First Minister has made it clear that, for the Scottish Parliament to give its legislative consent to the Bill, it would have to be satisfied that there was an agreed fiscal framework in place.

I return to the argument that I was making. If, unlike me, you believe that the Scottish Government are not serious about reaching agreement, that is not a good reason to delay the Bill—far from it. Doing so would hand the Scottish Government a get-out-of-jail-free card, which is not right for the people of Scotland, who expect these powers to be implemented.