Scotland Bill
Debate between Lord Wallace of Tankerness and Lord McCluskey(8 years, 9 months ago)
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Lord McCluskey (CB)
My Lords, I accept that Amendments 1 and 2 could not be moved, and will not be moved by me or by the noble and learned Lord, Lord Wallace of Tankerness. However, in the light of the Minister’s statement, I make a brief comment. It sounds to me very like a Pepper v Hart type of statement, designed to guide a court, when a court sits down to decide on an ambiguity in the interpretation or application of the provision. I am not at all sure that it will work, but it is no doubt the best that the Minister could come up with, even with the assistance from behind him of the noble and learned Lord, Lord Mackay of Clashfern, who is unfortunately unable to be here today. It does not solve the problem, but it is better than nothing.
The very fact of making the statement appears to be to concede the point that we were all making, that the provision in the clause is just a shibboleth, because Pepper and Hart statements have no locus at all unless in a court of law when a statement is invoked to assist the interpretation. However clear the statement is, it is not binding on the court, which has a duty to apply the words of the statute to determine what it means. However, I welcome it, while regretting that the Government did not pick up on the amendment proposed by the noble and learned Lord, Lord Wallace of Tankerness, which would have solved the problem within the statute itself, and we would not have needed this. However, in the light of the Government’s attitude, we have to leave it there.
Lord Wallace of Tankerness (LD)
My Lords, following on from the noble and learned Lord, Lord McCluskey, it was with some considerable regret that I agreed not to move Amendment 2, part of which I shall come back to in a moment. I welcome the Minister’s statement as far as it goes, which is not very far. I agree with the noble and learned Lord, Lord McCluskey, that it is an attempt at a sort of Pepper v Hart statement, but I make two observations on that. First, for Pepper v Hart to come into play, there has to be an ambiguity that has to be resolved. If, in fact, there is no ambiguity—and I am not sure whether the absence of something that has been debated in Parliament and expressly rejected by the Government could amount to an ambiguity as they have made it very clear that they do not wish for Devolution Guidance Note 10 to be part of what is on the statute book—I am not sure that Pepper v Hart would come into play.
Lord McCluskey
The noble and learned Lord talked about the likelihood of litigation. Is he aware—I am sure he is—that the Human Rights Act itself is extremely productive of legislation at all levels of our courts in Scotland and elsewhere? Therefore, if the Government proceed with their intention to introduce a domestic human rights Act, and that has a direct effect upon the Scotland Act and the Human Rights Act in Scotland, then there is bound to be litigation that in turn will raise the question of the meaning of this so-called clause.
Lord Wallace of Tankerness
As I said, these are not academic issues but very real ones. The Human Rights Act could certainly give rise to them as indeed could measures in the Trade Union Bill. They would not necessarily be issues between Governments; they could be issues that impacted on other public bodies in Scotland, for example. That is why it is regrettable that the Government have not been more forthcoming and willing to look at the proposals that we want to put on the statute book.
Scotland Bill
Debate between Lord Wallace of Tankerness and Lord McCluskey(8 years, 10 months ago)
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Lord Wallace of Tankerness
My Lords, amendments in my name and that of my noble friend Lord Stephen are in this group. Basically, the arguments are very similar to those just advanced by the noble and learned Lord, Lord Hope of Craighead. The powers in Clause 68 are extremely wide. We are coming to the end of the Bill and people will think that these are technical amendments but in fact they are of profound constitutional importance. In its report on the Bill, your Lordships’ Constitution Committee has already drawn the House’s attention to the extent of the powers conferred by Clause 68, and therefore it is important that the Government take these points seriously.
Our Amendment 79AA is very similar to the amendment moved by the noble and learned Lord, Lord Hope, with one difference, which is that we allow the powers to apply in respect of Part 3 because of the report of the Delegated Powers and Regulatory Reform Committee. Paragraphs 24 to 28 of the committee’s 15th report of this Session deal with this clause.
The noble and learned Lord gave a number of reasons why he thought that this provision was exceptional but I think that he may have missed one out. He said that there was no limit to when these powers could be used but in fact there is no time limit on the legislation that it can apply to. Subsection (2) says:
“Regulations under this section may amend, repeal, revoke or otherwise modify any of the following (whenever passed or made)”.
I emphasise the last four words, which mean that future legislation could be affected by these powers. The Delegated Powers and Regulatory Reform Committee said in paragraph 25 of its report that the memorandum from the Government,
“acknowledges that the power to amend or repeal future enactments is exceptional. Reasons are given as to why this is needed in connection with Part 3 of the Bill which deals with welfare benefits: the commencement of Part 3 is expected to take place over a period of time and, because of the complexity of the area, it may be necessary to make changes to legislation enacted between the date on which the Bill is passed and the date on which the functions to which Part 3 applies are transferred to Scottish Ministers. We consider this provides a reasonable explanation for needing the power to amend future enactments in relation to Part 3 of the Bill”.
But the report goes on to say that that,
“does not justify the extension of this power to the other Parts of the Bill. It may be that similar considerations apply, but because nothing is said about this in the memorandum it is impossible to know”.
In other words, the Government are not only trying to take these powers but they have given the appropriate committee of your Lordships’ House that is scrutinising the Bill no reason whatsoever for such wide powers, including the exceptional power to amend or repeal future enactments. They did provide an explanation in respect of Part 3, which the committee found to be a reasonable one, and that is why we have not sought to remove it. Amendment 79AB is consequential.
As was also picked up on by the noble and learned Lord, Lord Hope, Amendment 79BA refers to the provision that talks about,
“any other instrument or document”.
Our amendment would remove those words from subsection (2), as it is thought that it is extremely wide. Again, the 15th report of the Delegated Powers and Regulatory Reform Committee commented on this at paragraph 27, noting its exceptionally wide effect without any compelling reason—that no justification has been given for a power to revoke any instrument or document, whenever made. Therefore, we believe that it should be removed from the Bill.
The other point is one touched on by the noble and learned Lord, Lord Hope. We deal with it in Amendment 79EA, which would remove references to Acts of the National Assembly for Wales and Northern Ireland legislation from this regulation-making power. Again, no substantive reason has been provided for extending the Secretary of State’s regulation-making power under Clause 68 to legislation made by either the National Assembly for Wales or the Northern Ireland Assembly. It seems very wide and raises the interesting question of whether legislative consent Motions were required in the Northern Ireland Assembly or the National Assembly for Wales before including these provisions in the Bill or whether, indeed, if these powers are ever wished to be used, doing so would require legislative consent Motions. Perhaps the Minister can enlighten us when he comes to reply.
Lord McCluskey
Before the noble and learned Lord sits down, may I ask him a question on that point that I meant to ask my noble and learned friend Lord Hope? The particular measure in subsection (7) refers to, as the noble Lord said, Wales and Northern Ireland legislation. Is that within the Long Title of the Bill? The Long Title is:
“To amend the Scotland Act 1998 and make provision about the functions of the Scottish Ministers”,
not the Secretary of State, “and for connected purposes”. I am not very good at reading Long Titles, but when I read this I cannot see how the subsection objected to fits within it.
Lord Wallace of Tankerness
The noble and learned Lord makes a very important and perceptive point, and I am glad it is not me who has to reply to it from the Dispatch Box. I certainly see his point that it is a very stark, simple Long Title. To actually extend the ambit of the Bill to Measures or Acts of the National Assembly for Wales or legislation of the Northern Ireland Assembly does seem a bit of a stretch. No doubt the Minister can enlighten us when he comes to reply.
The important point is that we do take seriously the report from the Delegated Powers and Regulatory Reform Committee. At the heart of it, these are extremely wide powers and, in some respects, exceptional powers. With the one exception relating to Part 3, no explanation or justification has been provided by the Government for taking these wide powers.
Lord Wallace of Tankerness
On the important point made by the noble and learned Lord, Lord McCluskey, about having to table amendments again to maintain the sequence, and, indeed, in relation to the point made by the noble and learned Lord, Lord Hope of Craighead, on the last group of amendments, perhaps the Minister will take this opportunity to clarify whether, when we come to Report, the order of consideration will be as in Committee; in other words, that Parts 2 and 3 will be taken at the end—I think next Monday is the day currently set down for that—and the other parts will be debated on Wednesday.