Queen’s Speech

Debate between Lord Bethell and Lord Wallace of Tankerness

Wednesday 8th January 2020 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, like many other noble Lords who have spoken in this debate, the noble Viscount, Lord Hailsham, has referred to the constitution, democracy and rights commission and I very much agree with what he has said. If one looks at the perhaps now infamous page 48 of the Conservative manifesto, I think one can argue that it is so lacking in specification that the Government can scarcely claim a mandate for any of the specific proposals that they might subsequently bring forward. However, one phrase jumped out at me and caused me some concern:

“We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays.”


Those words have echoes of some ministerial responses to the Supreme Court judgment in the case of the illegal Prorogation.

Ministers would be well advised to reflect on the words of Mr Michael Gove when he was sworn in as Lord Chancellor in May 2015. Indeed, Mr Gove himself might want to reflect on them. He said:

“It must be a sorry nation … in which judges themselves agree with politicians 100% of the time.”


He then went on to quote Lord Denning in the 1977 case of Gouriet v Union of Post Office Workers:

“Be you ever so high, the law is above you.”


Of course, Lord Denning was in turn quoting Dr Thomas Fuller from 1733. This is a theme that has infused our thinking about the relationship between the state and the courts—that the law is above even the lawmakers. As the Supreme Court made clear in the Prorogation case, a fundamental principle of our law is the sovereignty of Parliament—not the sovereignty of the Executive. This House will do well to challenge any measures brought before us that try to change that and make it the sovereignty of the Executive.

In the remaining time, I want to say something about Scotland. Like the noble Lord, Lord Kerr of Kinlochard, I await with eager anticipation proposals from the noble Lord, Lord Dunlop. This is a time for some innovative thinking. Would the interests of Scotland, Wales and Northern Ireland be better served by a very high-ranking Secretary of State for the nations and regions rather than territorial Secretaries of State? If there is to be a review of the role of the House of Lords, why do we not constitute it, as often happens in a number of other second Chambers, with a very weighted bias towards the nations and regions of the United Kingdom? A starting point could be the evidence which, over 50 years ago, the Scottish Liberal Party submitted to the Kilbrandon Royal Commission on the Constitution.

More immediately, the Government are about to start negotiations on the future trading relationship with the European Union, as well as numerous bilateral trade negotiations. It is not disputed that under the devolution settlements the conduct and conclusion of negotiations are reserved to the United Kingdom Government. However, on a number of these issues, the subject matter of such negotiations will fall within devolved competence. Indeed, those with whom we are negotiating may well have an interest in implementation in all parts of the United Kingdom. Last year’s report by the Constitution Committee on the parliamentary scrutiny of treaties made the point that there should be full engagement of the devolved Administrations. In their response, the Government said:

“The Government will continue to share papers, including relevant interdepartmental correspondence, and invite the DAs”—


the devolved Administrations—

“to meetings on subjects in which they have a devolved policy interest. The Government remains committed to timely consultation where possible … These new structures will ensure there is meaningful engagement with the devolved administrations at all stages of a negotiation, including prior to developing the mandate and finalising the agreement.”

That, of course, was the government response from the previous Administration under Mrs May. When she comes to reply, will the Minister confirm that that is still the position of the United Kingdom Government, and can she say what steps have already been taken to engage the devolved Administrations in any upcoming negotiations with the EU or indeed in other bilateral trade negotiations?

It is not just a question of institutional arrangements, although the downside of not treating the devolved institutions with respect in future trade negotiations could be damaging given the capacity of many to milk a grievance. The Prime Minister has said that on no account will he cede powers without a second independence referendum, although the Secretary of State for Scotland went on the record during the election as saying:

“The democratic mandate for a Section 30 Order is a matter for 2021. We’ll see whether the SNP get a majority then”.


It has been said in this debate by the noble Lords, Lord Kerr and Lord Reid, that there would be great pressures in 2021 if the SNP were to get a majority. The best way of avoiding that is not to allow it a majority. Let us not play the First Minister at her own game. Nothing suits her better than to constantly debate the constitution. Let us challenge her on her stewardship of the things that are fully within her devolved responsibility. If she says that she wants to set up a central bank so that we can reapply for EU membership, let us challenge her. How could Scotland set up a central bank so easily when it cannot even build hospitals safely or build two ferries on time?

If the First Minister wants to talk about independence, she should also be willing to face up to the record of ScotRail, the centralisation of police services and the mental health waiting times for children. Finally, as the noble Lords, Lord Reid of Cardowan and Lord Soley, said, we must establish the case for our United Kingdom not only from the head but from the heart. That was perhaps not always what we did in 2014, but the question of why we believe the United Kingdom is so valuable might be worthy of a debate in your Lordships’ House.

Finally, we can look around the world at the islands and peninsulas that have been scarred by years of division. Here, for the last 300 years and more, we have built a great democracy together based on a culture of human rights and the rule of law. We have built the National Health Service and a welfare state. We have resisted invasion and conquest. We did not fall in the last century for the totalitarian ideologies which blighted other countries. Yet, at the same time, we have retained our identities as separate parts of the United Kingdom while also feeling British. That is something that we should be proud of and that we perhaps need to articulate more often and more eloquently than I have managed this evening.

[Lord Bethell (Con)]

My Lords, I politely remind contributors to this debate that there is a guidance of five minutes for speeches and we have a great many speakers to come. It would be hugely appreciated if speakers could please stick to the guideline.