Scotland Bill

Lord Stephen Excerpts

Wednesday 24th February 2016 Lords Chamber

[Lord McCluskey]

My Lords, I need not repeat the arguments that the noble Lord, Lord Cormack, has put forward again so clearly. We need say nothing more about “normally” except that we were anxious to help to improve the Bill. This was not anti the Government or anti the Scottish Administration.

My second point relates to Amendment 12 in this group, which is to do with the question of justiciability. For the reasons that have been advanced at some length, so I need not repeat them, the noble and learned Lord, Lord Hope, and I are agreed that this word is justiciable. It would be very foolish of the Minister to reject the advice of a man as distinguished in the law as the noble and learned Lord. The word “normally” is bound to appear before a court. If the UK Government decide to legislate on a matter that is devolved and say, “This is not a normal situation”, and some person, whether in the Scottish Government or affected by the legislation, says, “No, it is not”, and it goes to court, the court cannot say, “We’re not going to resolve this matter”—it must answer the question. So to say that it is justiciable is exactly right, and it is wrong for the Minister to ignore that. The Minister kindly suggested that he and I should meet, and we did, but I am afraid that we simply agreed to differ on the issue of justiciability.

I should mention one other point that does not arise out of these two amendments precisely, which is that this is to do with the Sewel convention. I hope that the noble Lord, Lord Norton of Louth, will permit me to quote what he said in Committee on 8 December. In response to the argument that the Smith commission stated that:

“The Sewel Convention will be put on a statutory footing”,

he said, referring to the noble and learned Lord speaking from the Front Bench:

“Surely on his own argument the Government will have to withdraw Clause 2, not only on the grounds of what constitutes a statutory footing but because it embodies the words of Lord Sewel, which he spoke when the Scotland Bill was before Parliament, and not the convention as understood at the time the commission produced its report”.

The noble and learned Lord rejected that, saying:

“I do not accept that, because it appears that what is understood by the Sewel convention is the expression of that convention by Lord Sewel during the passage of the Scotland Act 1998 through Parliament”.—[Official Report, 8/12/15; cols. 1506-07.]

I must confess that it astonished me to hear that. Can the Minister make it clear whether the Government stick by that statement at col. 1507, which was repeated in response to the noble Duke, the Duke of Montrose? In due course I hope to move Amendment 12.

[Lord Stephen (LD)]

My Lords, I make it clear at the outset that we support the wording provided in his amendment by the noble and learned Lord, Lord Hope. Indeed, we agree very much with the noble Lord, Lord Cormack, that the word “normally” seems at best unhelpful in legislation.

Our first two amendments, Amendments 9 and 10, provide for the consent of the Scottish Parliament to be required when UK legislation makes or attempts to make any alteration to the legislative competence of the Scottish Parliament or the executive competence of the Scottish Government—Scottish Ministers. The amendments would ensure that the current convention is fully reflected in the way it has been understood and applied in practice.

The part of the convention currently covered by Clause 2 is effectively only half of the convention. It is to apply when UK legislation makes provision for issues which are within the legislative of the Scottish Parliament. As has been stated, Clause 2 reflects almost exactly the words used by Lord Sewel in the House of Lords during the passage of the Scotland Act on 21 July 1998, when he said that,

“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, 21/7/1998; col. 791.]

These comments in this Chamber effectively recommended the establishment of a convention but it has operated more widely than he indicated or anticipated. We should not blindly follow his words in 1998 rather than the convention as it works now. The constitutional practice of putting forward a legislative consent Motion where the legislative competence is being affected, amended or altered was applied, for example, to the Scotland Act 2012, and there are good constitutional reasons for both elements of the convention to be safeguarded. That should be the correct constitutional approach to the Scottish Parliament. Legislation which without consent reduced the scope of the Scottish Parliament’s legislative competence, would be just as controversial, and perhaps more so, than UK legislation which encroached on matters within its competence.

How long has the convention operated in this way? Since 1999, the convention has been understood to require the consent of the Scottish Parliament when UK legislation will alter the legislative competence of the Scottish Parliament or the executive competence of Scottish Ministers. This was exactly how it was expressed in the memorandum of understanding that was agreed between the UK Government and Scottish Ministers back in 1999. It is also reflected in Devolution Guidance Note 10, which was issued by the Department of Constitutional Affairs back in 1999 and gives information as to how the UK Government operate the convention in practice—and that is how it has been operated.

--- Later in debate ---

[Lord Davidson of Glen Clova]

I feel that genies should not come out of their bottles; they should probably stay in their lamps. However, the point here is that, when one looks at this clause, no matter how one seeks to alter it, there is the potential—such are the fertile minds of our legal colleagues—to find one way or another in which any issue can be brought into court. My noble and learned friend the Advocate-General for Scotland, his predecessor and even his predecessor have frequently had to deal with issues by saying at no stage was this ever intended to go before a court, and yet we found that it did come before the courts, and in those areas the court had to make a decision whether it was a matter that was before the court or not. This is just the way our constitutional arrangements work. That has stood the test of time and it enables the finest minds of the Supreme Court to consider these types of issue. At this point, I will perhaps draw to a close, but if—

[Lord Stephen]

The noble and learned Lord has made many points but I think he would accept that there is very wide cross-party support for the amendments being submitted today on this matter. After the 18 minutes for which he has been on his feet, I think none of us is any the wiser as to what the political imperative to which he refers is.

[Lord Davidson of Glen Clova]

I consider that it has never been the role of the loyal Opposition to increase the wisdom of Members of this House but we often attempt to leave them better informed. If I have wearied noble Lords over these 18 minutes, I apologise, but I offer this one little candle of comfort—I will weary them no more.

--- Later in debate ---

There is no difficulty in understanding what the United Kingdom Government, the Scottish Ministers and everyone else understood was meant by the Sewel convention, not only in October 2013 but when the Smith commission report was issued in 2015. That was the scope of the convention that the Smith commission recommended should be put on a statutory footing—not Civil Service working notes, not DGN 10 and not further requirements.

[Lord Stephen]

Does the Minister accept that since 1999 the practice has been that if there is a proposal to alter the legislative competence of the Scottish Parliament or the executive competence of the Scottish Ministers, the convention is that a Motion should go before the Scottish Parliament in relation to that matter? In other words, the convention on these separate issues has been that there would be a decision of the Scottish Parliament on that issue.

[Lord Keen of Elie]

I cannot accept that because of the language employed. It was not the convention that dictated that; it was a practice that grew up as a consequence of the convention having been entered into. It reflected, for example, working note DGN 10. That is why I say there was a clear understanding by the parties not only in 1999 but in October 2013 of what was meant strictly by the Sewel convention. I also commend to the noble Lord the heading to paragraph 22 of the Smith commission report, which was also agreed to by the parties to the Smith commission. It makes it abundantly clear what the parties understood was meant in this context by the Sewel convention.

I quite appreciate that over the years practice has developed and no doubt practice will continue to develop, which is one reason you do not want to freeze practice in statutory form. What you want to express in statutory form is the strict requirement of the Sewel convention and its scope. It is important to remember that by doing that we preserve not only the convention as it is understood and has been understood but the sovereignty of this Parliament. For this Parliament is sovereign and can legislate for devolved matters, just as the Scottish Parliament can legislate for devolved matters.

The matter that Lord Sewel was addressing when setting out the principle that this Parliament would not normally legislate with regard to devolved maters without the consent of the Scottish Parliament was this: to make it clear that, despite Parliament’s sovereignty, the devolved legislature would be left to get on with the business of legislating in devolved areas. No one wanted the prospect of legislative ping-pong between the two Parliaments. That is also set out—as I say, quite clearly—in the memorandum of understanding, as it has been revised on seven occasions and agreed to by the United Kingdom Government and the Scottish Ministers.

The question of the words “not normally” was raised. The noble and learned Lord, Lord McCluskey, among others, pointed out that the word would be justiciable. Of course, all the words of a statute are justiciable in the sense that you can go to a court and ask the court what it believes they mean. But it is not the word that is not justiciable, it is the issue. The question of whether the United Kingdom Parliament can legislate in devolved areas is not justiciable. It is for the United Kingdom Parliament to decide whether on some occasion it will do what it normally, usually or generally does, or will not do so, for it is a sovereign and supreme Parliament. That underlines the importance of the words “not normally” and to remove them from this clause would be to impinge on the sovereignty of this Parliament in a most unprecedented and extraordinary manner.