European Union (Withdrawal) Bill

Lord Campbell of Pittenweem Excerpts

Committee: 9th sitting (Hansard - continued): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Lord Lang of Monkton]

Of course I agree with my Front Bench, and I have already commended it for its willingness to withdraw the amendment. It was tabled so that it could be discussed and Ministers could hear soundings from the Committee. I have given my sounding; perhaps the noble Lord would like to add to that by giving his. He spoke about his own amendment, but I hope that in the last resort he will support the amendment that the Minister will bring forward.

[Lord Campbell of Pittenweem (LD)]

I shall speak briefly to the amendment proposed by the noble and learned Lord, Lord Mackay of Clashfern. I do not do so because I once enjoyed the privilege of being one of his deputies when he was Lord Advocate for Scotland—as did the noble and learned Lords, Lord Hope and Lord Cullen, both of whom are in their places this evening. I do so without detracting in any way from the amendment in the name of my noble and learned friend Lord Wallace of Tankerness. What attracts me to the amendment proposed by the noble and learned Lord, Lord Mackay, is its simplicity and practicality. It is easily understood, and coming, as it were, from a Scottish source, it pays due regard to economy. For those reasons it is well worthy of consideration. Its simplicity makes it easily capable of being understood not just by those who will have responsibilities under it, but by members of the public.

It is for those reasons that I am, with due deference, rather doubtful about the amendment tabled by the noble Lord, Lord Wigley. The problem with it is that, apart from the reference to the Supreme Court turning into some kind of court of arbitration, and I know of no process or procedure that would allow for that—

[Lord Hope of Craighead]

Will the noble Lord allow me to take the opportunity to say that, as he will remember, there is provision in the Scotland Act and in the Government of Wales Act for a reference to the Supreme Court on issues of law—about the competence of legislation and whether something is within the competence of the legislatures? The problem with the situation that we are contemplating now is that the issues that remain in debate are not really issues of law, and I do not see how the Supreme Court could possibly deal with them. In fact, it is very anxious not to get involved in politics. There was a germ of good sense in the scheme suggested by the noble Lord, Lord Wigley, but it breaks down at that point. I am sorry to intervene, but it is worth mentioning that issue.

[Lord Campbell of Pittenweem]

The noble and learned Lord’s intervention is most helpful. Of course, the language of proposed subsection (17), in Amendment 318AA, to,

“refer any question to the Supreme Court”,

supports the view that the use of the Supreme Court in such circumstances would be, to put it mildly, doubtful.

My difficulty with the proposal of the noble Lord, Lord Wigley, is that it is bound to encourage delay. His amendment says:

“The Panel may call witnesses or take legal advice”.


If witnesses are called they may have to be cross-examined, and if there is to be cross-examination there may have to be representation by counsel, or something of that kind. It is not difficult to imagine what is proposed in the amendment turning into something of a full-blown hearing, rather like, for example, industrial tribunals.

Under suggested subsection (15)(a), regard must be had to whether something,

“is reasonable, in all the circumstances”.

As soon as the concept of reasonableness appears in a statute, it opens up the possibility of judicial review. Even if it were not to be granted, none the less an application for judicial review could obviously, and unfortunately, delay the outcome of a decision that might be of considerable economic as well as political importance. For those reasons, however well intentioned the noble Lord’s proposal is, I do not think it stands any proper comparison with that of the noble and learned Lord, Lord Mackay. I therefore urge the Government to give serious consideration to that, for the reasons the noble and learned Lord set out, which I have tried to follow.

[Lord Wigley]

I concur entirely, in that I hope the amendment tabled by the noble and learned Lord, Lord Mackay, gets the attention it deserves and that it is adopted. However, does the noble Lord not accept that in order to assuage some of the feelings that, perhaps unfortunately, have been built up over recent months about there being a will here to impose solutions, we need a mechanism that people at both ends of the telescope can see as balanced and even handed?

[Lord Campbell of Pittenweem]

It is a question of judgment. The mechanism that the noble Lord suggests may achieve the objectives that he sets out, but it will almost certainly encourage delay, and perhaps even more controversy. What is required here is very quick resolution, in an uncontroversial way, of issues that lie at the very heart of the economies, perhaps, of the United Kingdom—and those of Scotland, Wales and Northern Ireland. It seems to me that the noble and learned Lord, Lord Mackay, has pretty well hit the target.

[Baroness Finlay of Llandaff (CB)]

My Lords, I feel a bit like somebody from Relate. I am a Cross-Bencher, I am not a lawyer, and I do not now have an interest in Scotland—although I do have an interest in Wales. I just want to make a few brief comments, to assure the noble and learned Lord, Lord Wallace of Tankerness, that I tried to write a schedule for the Bill to set out the frameworks—but for all kinds of reasons I did not, and felt it would be a waste of massive effort to try to achieve something that I could not. However, I think the idea is commendable that we should put on the face of the Bill the matters that will go to the devolved Administrations, which would then not be for dispute. That may go a long way to assuaging some of the concerns.

I remind the Committee that the noble Lord, Lord Wigley, spoke about the need to be even handed, based on what has gone on before. The amendment tabled by the noble and learned Lord, Lord Mackay, is an enormous step forward. The fact that the Government have agreed to invert Clause 11 is also a major step forward, but there is still more to be done. We need to look at what will happen in the event of deadlock. Having a rotating chair, which has been suggested, would certainly help to establish some sense of equality. The frameworks need to include some sort of equal partners in resolution. I hope that some of the negativism of what has gone before may be laid to rest, because we have to move forwards into the new world. At least we have had some positive suggestions tonight. I repeat my thanks to those who have been communicating with us to try to achieve that—but we cannot just say, “Right, we’re there”. There is more work to be done.

The suggestion of a sunset clause could be helpful too, because that would concentrate the mind, and would provide some reassurance. I had put my name to Clause 11 stand part, but it is now to be replaced anyway, which is a great relief. I hope that we shall recognise, and not forget, the need for equality of voice and equality of representation. The failure to do that in the past should be a lesson to us as we go forwards.

--- Later in debate ---

[The Earl of Kinnoull]

I did. I will send my job application in.

I feel that we must have regard to that issue. I have been through the document pretty carefully, and I feel—this is why my support for the government amendments is so strong—that a good balance has been struck in those amendments regarding the point that I have just made. There is a chance that the devolved assemblies can exercise those powers properly, but if we tip too many in then I feel we will be letting down the citizens of Wales and Scotland.

[Lord Campbell of Pittenweem]

Before the noble Earl sits down, I would like to pick up the point that was made to him at lunch. He will be aware that when the Scottish Parliament was established, a great deal of store was set by the form of the committee system, which it was hoped would be independent and would provide the kind of scrutiny that a second Chamber would afford. I do not think it is challengeable that the committee system has unfortunately become very political, to the extent that it is very difficult for Members on the committee to strike the kind of independence that we sometimes see in Select Committees in the other place and here. A consequence is that an effort to introduce a principle of “holding to account” has not been maintained in the way that it was in the beginning. If that continues, it makes the case for a second revising opportunity—I do not describe it as a Chamber—overwhelming.

[The Earl of Kinnoull]

I am very grateful to the noble Lord for making a jolly good point very well. At the lunch, that was hinted at, with rather less force. I wholly accept his reasoning and agree with what he said.