Scotland Bill

Lord Boyd of Duncansby Excerpts

Thursday 26th January 2012 Lords Chamber

[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.

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[Lord Forsyth of Drumlean]

My Lords, just to show that the noble Lord, Lord Foulkes, and I have not formed some kind of alliance for the purposes of the Bill, I do not agree with the amendment. I agree with the sentiment, which is that the Scottish Parliament should, in so far as is practical, confine its activities to its responsibilities, but to try to write that down is capable of being interpreted as trying to gag the Parliament. I can imagine circumstances in which it might wish to discuss things that are not within its immediate bailiwick and which might not be for representations to the United Kingdom Government. For example, were I a Member of the Scottish Parliament at the moment, I would want a debate on how the Bank of England, rather than the Bank of China, could become the lender of last resort to an independent Scotland. Under the amendment, it would be impossible for one to have that debate. As the First Minister has raised that startling question in the past few days, it would be entirely appropriate for people to raise such issues.

On a more serious matter, at the end of the day, this House and the other place work on the basis of convention. A convention is that we do not discuss devolved matters, and that is respected. That relates to the leadership of the organisation. One of the tragic things in the Scottish Parliament, as the noble Lord, Lord McConnell, pointed out earlier, is that the leadership seems determined to upset the neighbours and to use that to achieve a political objective. It is fair enough to use the Scottish Parliament as a platform to make the case for policy and ideas and to try to persuade the voters, but to use it as a platform in order deliberately to create dissent and division is not the purpose of it. I suspect there is nothing that we can do by way of passing amendments to the law that will change that. To change the way in which the Parliament operates it is necessary to change the calibre and nature of the leadership in the Parliament itself.

[Lord Boyd of Duncansby]

My Lords, we recognise the frustrations that have been expressed here, especially that this House and the other place have a self-denying ordinance and convention that we do not discuss devolved areas, but that is not respected in the Scottish Parliament. Nevertheless, there are three particular problems with the amendment.

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[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.

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[Lord Wallace of Tankerness]

Perhaps I can clarify for my noble friend that Section 31 of the Scotland Act 1998 is relevant in this regard. It states:

“A member of the Scottish Executive in charge of a Bill shall, on or before introduction of the Bill in the Parliament, state that in his view the provisions of the Bill would be within the legislative competence of the Parliament”.

Subsection (2) says:

“The Presiding Officer shall, on or before the introduction of a Bill in the Parliament, decide whether or not in his view”—

or in the case now, in her view—

“the provisions of the Bill would be within the legislative competence of the Parliament and state his decision”,

so the Presiding Officer has to state their decision as to whether it is within competence.

Let us take this away from the question of the referendum Bill, because our ambition here is not to get into that position; it is to reach an agreement, preferably on a Section 30 order. However, in general, the Presiding Officer has to decide whether the provisions of the Bill would, in their view, be within the legislative competence of the Parliament, and has to make that decision public. It is still the case that the Parliament could proceed to debate and process the Bill notwithstanding that, but there are obviously political ramifications. I could imagine some pretty lively debates if that was to be the case.

[Lord Boyd of Duncansby]

Could I clarify something which I think I asked? I am not entirely sure that I have got it over. On the provisions on the statement in Section 31, I said that in my time as Lord Advocate the law officer had to give their approval to that. That is a matter of public record and has been said many times before. I do not know whether that has changed in any way and I cannot recall whether it was part of the Ministerial Code that the Minister could not make that statement without the law officer's approval. If it was part of the Ministerial Code, I cannot think that it would be departed from. If it was simply an internal arrangement, it could of course have been departed from and one could speculate as to what procedures would now be in place.

[Lord Wallace of Tankerness]

The noble and learned Lord is right. We cannot speculate on what happens in an Administration of whom we are not members, but I can confirm what my noble friend and the noble and learned Lord said about the Administration of whom the three of us were members. The procedures and proceedings in these matters were as they have described.

To return to Clause 7, the limited reference procedure that we are seeking would therefore allow the law officers to refer to the Supreme Court only the provisions with which they have competency concerns, while, as I said, allowing the rest to go forward to Royal Assent. We believe that this is an appropriate and sensible method of helping to ensure that the work of the Scottish Parliament runs as smoothly as possible.

On the amendments tabled by my noble friend Lord Selkirk to Clause 7, through our engagement with the Law Society of Scotland the Government have, as my noble friend indicated, tabled amendments that reflect the intention behind his amendments. I wish to thank my noble friend for looking at this clause closely and for tabling his amendments. The government amendments have the same effect; I am advised that parliamentary counsel think that they have a more appropriate form of wording, but the effect is exactly the same. We therefore very much support the amendments that he has tabled, and I hope he will withdraw his amendment in respect of the other amendments that have been tabled.

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[Lord Wallace of Tankerness]

Indeed, what we have here is a better outcome than what was there before. We reflected on what had been said, the representations that we had received and the amendments that had been tabled, and came to the conclusion that this was the best way forward on this point.

[Lord Boyd of Duncansby]

I was not quite sure if the Minister was now coming to an end. I wanted to press him on one point. Whatever view he may take of the utility of the measure that he is putting forward, what weight does he put on the view of the Scottish Parliament—whose legislation this is, after all—that it does not want this? Does he think that it is right to press it in the face of that opposition? Or does he think that, because he as Advocate-General and his successors in that office will have to operate this, this is something that the UK Government want, despite what the devolved Administration think?

[Lord Wallace of Tankerness]

I also need to address some of the points regarding the amendments in my own name. I indicated that this was intended to help give effect to Scottish Parliament measures where perhaps only one small part of a Bill was in contention, rather than hold them up and frustrate them. If that were to happen and a whole Bill was referred because there was one clause in it over which there was some doubt and some cause for a Supreme Court determination, I rather think the Scottish Parliament might have a view to express at the point. The Bill being held up might contain other measures that it was agreed on all sides were very valuable; indeed, the measure under reference might be one where there was agreement about the policy intent but some doubt about whether it was within competency.

The six amendments that the Government have put forward are intended to achieve a number of important changes as well as technical improvements. As I have set out, and my noble friend has made this point, we think that the law officer who is making the limited reference should be responsible for publishing notice of it, rather than the Presiding Officer.

Amendment 12 implements recommendations made by the Subordinate Legislation Committee of the Scottish Parliament. We are taking on board what it said in its report on the delegated powers in the Bill in its 10th report of 2011, Session 3, where it stated that it,

“could envisage situations where the delay in commencement of the specified provisions would possibly require further provision to be made to enable the Act to function as the Parliament intended”.

The new power in subsection (9) is added in response to those comments to give the Scottish Ministers the power to make appropriate consequential provision in that scenario.

Amendment 12 deals with a point that the noble and learned Lord picked up: it modifies Section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010 in its application to commencement orders made by the Scottish Ministers under new Section 33A(6). The effect is that those orders, which are to be subject to negative procedure in the Scottish Parliament, must be laid for a minimum period of 40 days rather than the standard 28-day period before they can come into force.

It may be helpful if I also write to noble Lords about this; I spent many sessions trying to get my head around a lot of its implications. The measure is designed to eliminate the risk that the Scottish Parliament passes a negative resolution after provisions in a commencement order made under Section 33A(6) have come into force. In this scenario the resolution would have no effect, as the provisions commenced would by that time already have the force of law. By increasing the laying period to 40 days, if the Parliament passes a negative resolution within that period then, in terms of Section 28 of the 2010 Act as modified, the instrument is not to come into force after that resolution.

Amendment 12 also allows the Supreme Court to provide that an order under new Section 33A(6) may be laid before the Scottish Parliament less than 40 days before it comes into force, in acknowledgement that there may be circumstances where it is desirable to bring provisions of an ASP that were subject to a limited reference into force more urgently.

Amendment 13 amends Section 113 of the 1998 Act so that the useful supplementary order-making powers contained at subsections (2) to (6) and (11) of that section also apply to the powers of Scottish Ministers to make orders under Section 33A(6), (9) and (10). For example, that would allow a consequential order under new section 33A(10) also to make supplementary or incidental provision under the power at Section 113(4)(a).

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I thank my noble friend Lord Selkirk for his amendment, the spirit of which—indeed, almost the text of which—has been picked up. In the light of the government amendments, I hope that he will withdraw his amendment.

[Lord Boyd of Duncansby]

I thank the noble and learned Lord for his explanation and his offer of a letter, which will help. We have had a long debate on this but some important issues and points of principle have been raised.

[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”.