Scotland Bill

Lord Selkirk of Douglas Excerpts

Thursday 26th January 2012 Lords Chamber

[Lord Stephen]

My Lords, I agree very much with the first contribution that the noble Lord, Lord Forsyth, made. This is essentially a matter for the Scottish Parliament, which has wide discretion in this area. Unfortunately, I cannot agree with the suggestions that he made in his most recent contribution. I agree with a great deal of what the noble Lord, Lord Foulkes, said. I am sure that others who have been in the Scottish Parliament, most notably my noble and learned friend Lord Wallace of Tankerness, also agree with a great number of his suggestions, most particularly about the guillotining of virtually every contribution made in the Scottish Parliament. The noble Lord is absolutely right; it is impossible to make a full and weighty contribution when the guillotine constantly comes after sometimes less than four minutes. These issues should be addressed, and I hope that in addressing those issues the Scottish Parliament will look to the contributions of former Members and those who have had experience of the Parliament. But I do not think that it should be as a result of an amendment proposed through the House of Lords that those matters are best addressed. I am sure that the Minister will explain that those matters are being looked at; I understand that there is a concerted effort to look at changing the way in which the Scottish Parliament operates. That is all the more important in the context of more powers being granted to the Scottish Parliament; as the Parliament grows and develops, these issues should be tackled, and the noble Lord, Lord Foulkes, made an extremely valuable contribution in pointing to the Parliament the way ahead.

[Lord Selkirk of Douglas]

If I may, I would like to ask a very brief question to the Minister in this connection. During the Calman commission, we recommended that more time should be given for the final stages of Bills in the Scottish Parliament. It seemed to us that with many Bills, voluntary organisations, charities or other worthy bodies would have recommendations to make but would get virtually no changes in the final stages of the Bill because procedures were so rapid and everything went so quickly. My understanding was that that was under consideration by the Scottish Parliament, and I wonder whether the Minister could give us the up-to-date situation on that subject, if he has the facts readily at hand.

[Lord Boyd of Duncansby]

This is the first time that I have spoken at this stage of the debate, so I renew my declaration of interest in the Calman commission. I am somewhat surprised to find that I am standing here at the Dispatch Box, and I hope that the Committee does not find it strange that two lawyers who were both on the Calman commission now find ourselves on opposing sides of the bar but pulling in the same direction. I hope that it reflects the cross-party approach to the Bill.

To my noble friend Lord Foulkes of Cumnock I can say that I was very pleased, particularly given what has been said already, that I was one of those invited to his party, and that I very much enjoyed it. So if I disagree with him on any point, he can be assured that it is not because I am biting the hand that fed me.

On the issue of timetabling, I think I am right in saying that there are states within the United States that have within their constitution maximum times during which legislators can sit. They take the view that the longer they sit the more mischief they can make. That might be one approach. In Britain, we tend to take the opposite view—that we pay legislators to legislate, and if they are not sitting in plenary session, they are clearly not worth the taxpayers’ money.

The court of public opinion is the important element here. I suspect that it modified the sittings of this Parliament, given the criticisms that were made about the long summer recess, but clearly it may also very well have worked in relation to the Scottish Parliament, given the proposals. In particular, the amendment that my noble friend has put down may very well have spurred some action on it. With these words, I look forward to hearing from the Minister.

--- Later in debate ---

7: After Clause 6, insert the following new Clause—
“Discussion of reserved matters
(1) Schedule 3 to the 1998 Act (Standing orders—further provision) is amended as follows.
(2) After paragraph 7 insert—
“Reserved matters8. The standing orders shall include provision for ensuring that the Parliament shall not discuss items in Schedule 5 (reserved matters) except on a motion to make representations to the United Kingdom Government.””

[Lord Selkirk of Douglas]

My Lords, may I speak to—oh! I am sorry.

[Lord Foulkes of Cumnock]

Members will be getting fed up with my voice by now. I am glad that I withdrew the previous amendment and did not move Amendments 4 and 5. I tabled those amendments but I could have put down dozens more. There is a whole range of issues that we could have discussed. If we had wanted to cause trouble—heaven forbid that I should cause trouble here—I could have tabled dozens of amendments and delayed us. The fact that we are getting though the Bill relatively rapidly shows the good will of not just the Front Bench but the Back Benches on this side towards the coalition Government. Whether they deserve it is another matter, but they are getting it.

I come now to the discussion of reserved matters, which relates in some ways to the previous amendment. In my time in the Scottish Parliament—I think this will apply to other Members here who were Members of the Scottish Parliament—it was very frustrating that the SNP in particular would use up the limited time available, including government time, for discussion of reserved matters. These included foreign affairs and defence; they went on and on about these areas. It is understandable that they should discuss them where they impinge on some of the Scottish Parliament’s responsibilities, but it worried me that it restricted the time for discussion of very important matters.

We have devolved to the Scottish Parliament some of the major areas that affect the lives of people in Scotland, such as all aspects of education. However, there were no really detailed debates on it. The right reverend Prelate the Bishop of Chester would be astonished if he came to the Scottish Parliament and saw how little time it spends on discussing the details and development of education in the forum of the plenary sessions. Then there is the development of the health service, with telemedicine and all the new developments that are taking place; and social work and the links between it and education and housing. There are many issues that the Scottish Parliament should be discussing, but it never seems to get around to doing so. These are vitally important issues.

This is a related issue but it is slightly different. I also get the feeling that, as the SNP has moved into the ascendancy, first as a minority and now as a majority Government, it seeks to operate almost as a de facto if not de jure independent Parliament. It wants to take on more responsibilities and pretend or imagine that it is dealing with all these issues. I had occasion to raise this with Sir Gus O’Donnell, now the noble Lord, Lord O’Donnell, in a question about the Permanent Secretaries—first Sir John Elvidge and, more recently, Sir Peter Housden, who has gone native since he moved. He is from Shropshire originally, a lovely county of England, as I know only too well. They seem to be advising the Scottish Executive on how to move towards independence. They seem to be giving them all the advice, guidance and detail that they need and, in Sir Peter’s case, almost encouragement to move towards independence. I hope that Sir Jeremy Heywood—he has a more pragmatic and sensible view on this than Sir Gus O’Donnell, but perhaps I should be careful about saying that—will look at things in a more pragmatic and sensible way and remind Sir Peter Housden that he is still a member of the UK Civil Service and still owes some loyalty to the Crown and the United Kingdom Parliament although he has been seconded to the Scottish Parliament and should not be dealing with these matters.

It is fair enough for the Scottish Parliament to consider reserved matters when it wishes to make representations on them to the Westminster Parliament, particularly to the House of Commons. However, for it to have debates on nuclear weapons, defence policy, foreign affairs issues, reserved aspects of welfare or on major economic issues which are still the responsibility of this Parliament and the UK Government, seems to me not just wrong in principle but a waste of the Scottish Parliament’s valuable time. I hope that we will send a message to it that—

--- Later in debate ---

Moved by

[Lord Selkirk of Douglas]

8: Clause 7, page 6, line 13, leave out “The Presiding Officer” and insert “A law officer making a reference under subsection (1)”

[Lord Selkirk of Douglas]

My Lords, I will speak to Amendments 8 and 11. In seeking to speak earlier, I was confusing Clause 7 with Amendment 7; I was not trying to hurry up the noble Lord—which would have been impossible in any case.

The purpose of Amendments 8 and 11 is to include the law officers—it could be the Attorney-General, the Advocate-General for Scotland or the Lord Advocate—among those who would be responsible for publishing a reference of a part of a Bill to the Supreme Court. The Bill lays down that it should be the Presiding Officer who should publish a notice of the reference to the court in the Edinburgh Gazette, and in such other ways as the Presiding Officer considers appropriate. As the reference should probably be made in most cases by one of the law officers, surely it is appropriate that it should be his or her responsibility to publish the fact that a reference has been made; for example, by putting it on the departmental website. The amendment ensures that the Executive take responsibility for publishing references made by them, thus showing a respect for the doctrine of the separation of powers.

I notice that the Minister has put down Amendments 9 and 10, which may achieve very much the same objective. If I am correct in that assumption, and they fulfil the same purpose but rather better—or at least are better expressed—I will not insist on these amendments and will withdraw them. In any case, I very much look forward to hearing what the Minister has to say.

[Lord Boyd of Duncansby]

My Lords, this group includes a notice in my name and that of my noble friend Lord Browne about Clause 7 standing part of the Bill. I will start with that and deal with the other amendments in due course.

Clause 7 introduces a new mechanism of a limited reference of a Bill to the Supreme Court to determine whether certain provisions of the Bill are within the competence of the Scottish Parliament. At present, once a Bill has passed through all its stages in the Scottish Parliament, it is for the Presiding Officer to present the Bill to Her Majesty for Royal Assent. However, before the submission for Royal Assent, there is a 28-day period during which the law officers—the Advocate-General, the Lord Advocate and the Attorney-General—can consider the Bill and if so advised refer it under Section 33 of the Scotland Act to the Supreme Court on a question as to whether any of its provisions is within the competence of the Scottish Parliament. Under Section 33, the whole Bill is referred and there is no mechanism to refer only certain parts of the Bill. Even if only one part is thought to be outwith the competence, none of it can be commenced until that issue is disposed of.

That explanation of the effect of a reference under Section 33 perhaps sets out the argument for the Government’s proposals in Clause 7. However, there are serious concerns as to how this will work in practice. I hope that this debate will draw out some of the rationale behind their proposals. To date, there has been no reference under Section 33 to the Supreme Court of a Scottish parliamentary Bill.

It might help if I briefly set out the internal procedures put in place during my time as Lord Advocate to ensure that Scottish Bills were within the competence of the Parliament. A Bill introduced into the Scottish Parliament by a Scottish Minister must be accompanied by a statement under Section 31 of the Scotland Act that in his or her opinion the Bill is within the legislative competence of the Parliament. Members of this House will be familiar with that kind of statement because all Bills presented here are accompanied by a statement made under Section 19(1)(a) of the Human Rights Act. The Scotland Bill is no exception to that. Therefore, there is a certificate, as it were, on all Scottish Bills which are put into the Scottish Parliament.

Certainly, in my time as Lord Advocate, no statement would be given by a Minister without their having sought the advice of the law officers that it could be made. I cannot speak for present procedures and it is possible that they have changed, although I have no reason to think that they have. Nevertheless, there are in place substantial internal procedures to ensure that Bills are within competence. In reaching a view on the competence of a Bill, there were a number of procedures. Those who were Ministers at the time will recall the passporting arrangements whereby there was a process with the Minister for parliamentary business and the Lord Advocate to have what in the UK Government would be a legislation committee—certainly, when I was Solicitor-General there was a legislation committee—which considered all the issues that were thrown up by the Bill, including legislative competence.

In addition, officials from the law officers’ departments were in constant touch with each other. We would talk to officials within the Advocate-General’s office and, for that matter, the Attorney’s office. Officials in the Scottish Government Legal Directorate would also engage with relevant departmental officials—for example, in the Home Office—to ensure that issues were identified at an early stage.

The role of the Presiding Officer is very important. The noble Lord, Lord Steel of Aikwood, will have had first-hand knowledge of that. The Presiding Officer must decide whether a Bill presented to the Scottish Parliament is within the competence of the Parliament, although I think I am right in saying that the standing orders allow for that decision to be overridden by the Parliament, but nevertheless it is an important element. Again, contacts were made between the office of the Presiding Officer and the law officers to ensure, as far as possible, that any Bill presented was within competence.

On amendments to Bills as they proceed through Parliament, it is true that not all amendments were referred to the law officers, but those that might cause an issue again were referred. I can say that on more than one occasion I did make it known both within the Executive, as well as on occasion to the individual Member who had proposed the amendment, that if it found its way into the Bill, the question of legislative competence would arise and that I or another law officer might have to refer the issue of competence to what was then the Judicial Committee of the Privy Council and is now the Supreme Court. So my experience is that a number of mechanisms are available for the detailed consideration of a Scottish Bill at all stages of its passage through the Scottish Parliament, and that issues of competence should be dealt with in that process. Even so, the Bill would be given another look once it had gone through all its processes. We usually took 28 days to do that, although there were occasions when there was an emergency and the law officers dispensed with the period of 28 days.

What this clause now proposes is that there will be a mechanism for referring part of a Bill to the Supreme Court for scrutiny. As I understand it, what will happen is that the Bill could still be given Royal Assent despite the limited reference while the issue is being considered by the Supreme Court. There is a mechanism for the remaining unaffected parts of the Bill to be brought into effect. However—I am looking for some guidance from the noble and learned Lord on this—as I also understand it, the Supreme Court would have a significant role in determining or making provision for how it would come into effect. I shall come back to that in a moment.

The Scottish Government have said that they are not in favour of this. An interesting point is the question of whether it is desirable to ask Her Majesty for Royal Assent to a Bill with disputed provisions in it. There may well be a point to be made about that, although perhaps not to be pressed too far. Nevertheless, there is also the question of what signal that would give the general public. Legislation on the statute book may not be in force but usually there is no question mark as to its validity. Moreover, the provision that:

“The Queen’s Printer for Scotland may publish notice of the reference and of the effect”,

may not be sufficient.

Clause 7 was not one of the recommendations of the Calman commission. I think it arose as a result of the commission’s general recommendation that:

“There should be a review of all other provisions in the Act that constrain the Parliament in terms of its procedures or working arrangements to ensure they are proportionate, appropriate and effective”.

I do not criticise the Scotland Office for having embarked on that, but the Government have identified through the review a number of areas, including this one, where they could make further provision.

--- Later in debate ---

[Lord Steel of Aikwood]

I do not know whether I am interrupting at the wrong point but, after listening to the past hour of debate, I want to add that even those of us who are enthusiastic about devolution have to admit that it has created a field day for lawyers. We have lawyers galore all over the place. I was most grateful to the noble and learned Lord, Lord Boyd, for describing very accurately at the beginning of his speech the triple-lock mechanisms that exist, first, with the Executive’s legal advice, then with the Presiding Officer’s legal advice, and finally with the Advocate-General’s legal advice, to ensure that we do not get into difficulties with one Parliament attempting to legislate where it has no authority to do so.

I seem to recall that in the very early days of the new Parliament—my noble and learned friend and the noble and learned Lord, Lord Boyd, will correct me if I have this wrong—when my noble and learned friend was Minister of Justice and the noble and learned Lord was the Solicitor-General, we had real difficulty in my department because the law department was not fully staffed. Both noble and learned Lords will remember that we had a backlog of legislation from the days when my noble friend Lord Forsyth rightly said that he was effectively in opposition rather than in government, and we had all the reports of the Scottish Law Commission waiting to be put into effect. We had a flood of very early legislation, none of which was particularly controversial but all of which had to be gone through. I remember that the staff in my office were almost in a state of breakdown because they did not have the capacity to give the necessary legal advice, although it was eventually given.

My noble friend Lord Stephen asked whether the legal advice would be made public. The answer is no, not normally anyway. After all, legal advice is advice; the decision rests with Ministers and with the Presiding Officer. What would happen if there were an FOI request, I have no idea. It never happened in my time so I do not know the answer to that. However, it is important that everybody knows that these locks exist even though, as I say, they provide endless employment for lawyers on a grand scale.

The noble and learned Lord, Lord Boyd, mentioned emergency legislation. I hope noble Lords will forgive me if I mention a final anecdote, but I recall the occasion when we had to rush through a piece of emergency legislation following a decision of the court over the release of somebody from Carstairs Hospital. That occurred one summer. I remember it clearly. Her Majesty was at Balmoral. I was told that the Advocate-General could not possibly take the 28 days that he was normally allowed and that the measure would be rushed through. I was asked where I was going to be located in order to receive the Advocate-General’s advice, sign it off and send a letter to Her Majesty asking her to give Royal Assent. I was at home. I think that it must have been a Saturday as I was having lunch, untypically, with two hereditary Conservative Members of this House. That was not my normal custom but just happened to be the case on that occasion. A courier arrived on a motor bike from Edinburgh. He saw me through the kitchen window and so knocked on that window rather than going to the door. I opened the window, received the document, undid all the pink ribbon and the vellum, looked at the Advocate-General’s response and signed the letter to Her Majesty asking her whether she would be kind enough to give Royal Assent to this very important emergency legislation. I gave the letter back to the man on the motor bike and asked him, “Are you taking this to Balmoral now?”. He replied, “Yes”. I said, “Let me give you a piece of advice. When you get there, don’t knock on her kitchen window”.

[Lord Selkirk of Douglas]

I thank my noble and learned friend very much indeed for accepting the principle of the amendment. I hope I may say, by way of a one-sentence reply to the noble Lord, Lord Steel, that he reminds me of the famous parliamentary statement that lawyers should be elected only with so much circumspection, and therefore it will not happen very often.

Amendment 8 withdrawn.