Scotland Bill

Debate between Lord Wallace of Tankerness and Lord Davidson of Glen Clova

Wednesday 24th February 2016 Lords Chamber

[Lord Davidson of Glen Clova]

Oh, yes, he is. I hear observations that I am mischaracterising him, but no doubt the noble Lord, Lord Cormack, will be able to look after himself in due course. If he is suggesting that I am proposing that the House of Lords should never do anything that would go against the other place, then that is an entirely incorrect assessment of what I am saying. What I am trying to get across is a recognition that we are dealing here with something that is very much sui generis. This is terrain in which we have not normally been operating. This is an area of legislation which goes well beyond the situation that underlies the observations of the noble Lord, Lord Cormack, about the relationship between the two Houses of Parliament.

[Lord Wallace of Tankerness]

The noble Lord is basically saying that, albeit various people, not least the noble Lord, Lord Norton of Louth, have said that Clause 2 does not actually deliver the Smith commission, the Labour Party is prepared to live with the situation whereby the Smith commission proposals are not delivered, for some political imperative. I am not quite sure what that political imperative is. If it is a question of time, ping-pong would not take weeks. It is still perfectly possible to get the Bill delivered by the Easter Recess. I am not quite sure what that political imperative is, particularly if it is not going to deliver what, up until now, we thought the Labour Party wanted to deliver.

[Lord Davidson of Glen Clova]

The noble and learned Lord wants to know whether I am correct in identifying a political imperative. These are matters of judgment and in judgment, one can be right and one can be wrong as matters go by. There is an assessment made in this judgment and when one makes a judgment and comes to a particular conclusion, if that conclusion is one that one wishes to live with and follow through, well, one does that. I think that that is something that the noble and learned Lord will appreciate, because he has spent many years in politics and has had to realise that these political judgments have to be made. These political judgments can sometimes be right and sometimes be wrong, but this is the judgment that we have made. It would be most unfortunate, on this of all areas, were this to involve tension, difficulty, a contest, friction between this House and the other place. On this point, therefore, we adhere to the position we have thus far asserted.

Let me make another point. Clause 2 states:

“But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”.

That is language that is, at least, redolent of what a convention might be. It is the type of language that has been seen in the past in legislation in Northern Ireland and elsewhere—it is not a complete innovation. It is language that can be understood, and understood by courts. However, the amendment in the name of the noble and learned Lord, Lord Hope of Craighead, for example, states:

“But the Parliament of the United Kingdom may not pass any measure applying to Scotland that makes provision about a devolved matter without the consent of the Scottish Parliament”.

We have heard much in this House on the extent of this Parliament’s sovereignty. Might it not possibly be seen—I would be very interested to hear the views of the noble Lord, Lord Norton of Louth, on this—that this language, saying what the Parliament of the United Kingdom may and may not do, is itself an attempt to trench on the sovereignty of the UK Parliament? Therefore, if one is going to find tremendous support for such an amendment, one has to be conscious of what one is doing constitutionally, because this would appear to be another innovation.

The Opposition are not against innovation. Some innovations can be good, some innovations can be bad; people adopt positions here and there depending on their assessment of those various innovations. However, this innovation is one we are disinclined to immediately jump into and support.

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[Lord Davidson of Glen Clova]

The suggestion that I am waffling is one that I do not find wholly offensive.

[Lord Wallace of Tankerness]

The noble and learned Lord asked whether he had dealt with all the issues. He has not dealt with the issue, raised by the noble and learned Lord, Lord McCluskey, and by my noble friend Lord Stephen, of the importance we attach to having some subsection in here which would make the matters non-justiciable. We would welcome the view on that of my predecessor as Advocate-General for Scotland.

[Lord Davidson of Glen Clova]

I shall finish answering the noble Lord, Lord Tebbit, before I come to the interesting point made by the noble and learned Lord, Lord Wallace. I thank him for the name check.

The noble Lord, Lord Tebbit, wanted to know what I was getting at, what my point was and why I was waffling, to use his word. I am trying to deal with various issues that seem to trouble many noble Lords and many noble and learned Lords. The point I am trying to make—the simple nub—which he will readily understand, is that we perceive, and our judgment is, that the political imperative suggests that these amendments be not passed in this House. It is as simple as that.

To deal with the point raised by the noble and learned Lord, Lord Wallace of Tankerness, about whether the matter may be looked at from the point of view of the purely legal analysis, in looking at this clause now—we have not always looked at it this way—we see that there is considerable virtue in having the support of the Minister’s statement on how this clause will be perceived by this House, and why this House is putting it forward in these terms. That statement by the Minister will, of course, feature were this matter to come before the courts, where it would be of some consequence in how the court would decide whether this language suggested that the issue was justiciable. I hope that offers a measure of response.

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[Lord Wallace of Tankerness]

My Lords, to pick up the noble and learned Lord on that point, I think he is suggesting that a Pepper v Hart statement by the present Advocate-General would put the matter beyond doubt if it came before the courts. But surely the point is that we do not want it to come to the courts at all because that is when uncertainty comes in. Very important matters, such as people’s investment decisions, may be involved and they will not know the outcome until the courts have decided the matter. Our measure, which has stood the test of time since the Parliament Act 1911, would mean that the issue would never come to the courts at all, because, if it does, the genie is out of the bottle.

[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—

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[Lord Wallace of Tankerness]

Perhaps I can help the noble and learned Lord because his Whips’ Office told my party’s Whips’ Office that is exactly what happened. They have been told by the other end not to support any amendment, however sensible, which would lead to a situation that could result in ping-pong.

[Lord Davidson of Glen Clova]

As every Member of this House—every noble Lord, every noble Baroness—who has spent any time in the other place and has been involved in the political toings and froings will know, what is said between Whips of different parties is normally regarded as confidential. Therefore, while the noble and learned Lord, Lord Wallace, may have an observation that somebody has told him, that is simply a matter for his Whip, I guess. I will try to sit down now unless anyone—