Scotland Bill

Lord Cormack Excerpts

Tuesday 8th December 2015 Lords Chamber

[Lord McCluskey (CB)]

My Lords, I had not expected to be on my feet just at this moment, but I will speak to Amendments 4 and 5. Amendment 4 asks that the word “only” should be inserted into line 11, so that the new provision would read:

“The only purpose of this section is … to signify the commitment of the Parliament and Government of the United Kingdom to the Scottish Parliament and the Scottish Government”.

The first question I have to ask the Minister is: if this is not the only purpose of the section, what other purpose or purposes does the section have? I do not see any value in having the words, “The purpose”, unless we make it clear that this is the only purpose.

My Amendment 5 would remove the words,

“with due regard to the other provisions of this Act”.

As I understand statutory interpretation, when a court or other body is called upon to understand an Act of Parliament, it may well be necessary, in the case of any kind of ambiguity, to look at any other provisions of the Act which bear upon the same matter. There is a duty in law and in custom for courts and others to have due regard to the other provisions of the Act, so I do not see what purpose this provision serves here. My own general approach is that the shorter legislation is, the better. Legislation is often too wordy and too confused. If the words are not necessary, they should not be there. That is the simple basis on which I speak to both the amendments standing in my name.

[Lord Cormack (Con)]

My Lords, I will speak briefly to Amendment 7, which stands in my name, but before doing so I agree with what the noble and learned Lord, Lord McCluskey, just said about wordy legislation and endorse entirely what my noble friend Lord Norton of Louth said in his crisp, succinct introduction of his own two amendments. This is a very unsatisfactory Bill, brought about by extremely unsatisfactory circumstances. If we in your Lordships’ House are going to try to improve a bad Bill—as is for ever our task, and one which was never more needed than in the case of this Bill—we have to address certain very important aspects of it.

I concentrated my amendment on the whole subject of parliamentary sovereignty. Although the Scottish Parliament came about because of the wish of the Scottish people in a referendum, nevertheless it was created by Act of Parliament. If it is to be abolished, that should be done by Act of Parliament, too. I neither forecast nor advocate its abolition but if we are to have such a provision in this Bill—I doubt whether it is needed, and my noble friend Lord Norton of Louth made that position plain in his speech—it should be a parliamentary provision. That is why I suggest that it should be on the basis of a two-thirds majority in a vote of the House of Commons, in which 75% of the Members elected by Scottish constituencies vote for abolition. That provides as strong a parliamentary safeguard as can be envisaged. It is infinitely to be preferred to the referendum route.

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[Lord Keen of Elie]

I am aware of the conduct of the Scottish National Party in that regard and do not make any comment at this stage upon that. Perhaps it will be seen by others as extremely unfortunate that it should have lent credence to the agreement and then sought to renege from it. The point that we make is that it was signed—it is an agreement. It is in that context that this Bill is brought forward.

As I say, no one on the government Benches seeks to take issue with the proposition that this Parliament is sovereign and supreme. What we have here is a provision in the Smith commission agreement that we should recognise the permanence of the Scottish Parliament. It has been observed that it is, in a sense, already permanent—so be it—but let us remember that Clause 1 is concerned with a political statement, as much as any legal statement. That is its purpose, and it is not wholly exceptional in that regard. The noble Lord, Lord Norton, made reference to the Cabinet Office provisions on legislation at Chapter 10.9 of the Guide to Making Legislation. But when looked at, it expresses a generality—and, where there are generalities, there may of course be exceptions. This is one of those exceptions. I note that my noble friend Lord Forsyth agrees with me on that point.

My noble friend in turn suggested that there was little if any precedent for this form of legislation. I remind him that the Act of Union with Scotland of 1706, under the Gregorian calendar, referred to a Parliament of Great Britain for all time. In saying that, it made a political statement as much as a legislative provision—and that, again, is what we are doing here. We are recognising the political reality reflected in the Smith commission agreement.

Amendments 1 and 3 seek to modify Clause 1 by removing reference to permanence of the Scottish Parliament and the UK Government’s commitment to the permanence of that Parliament. We would not consider that appropriate. It appears to us that, in light of the Smith commission agreement, the Government should be prepared to make that political declaration of permanence. It does not take away from the supremacy or sovereignty of this United Kingdom Parliament. That remains.

[Lord Cormack]

Can my noble and learned friend give any other example of an extra-parliamentary body—the Smith commission in this case—binding Parliament, saying that Parliament will do this or that? Can he give any example of any other outside commission or body making such a declaration and binding Parliament?

[Lord Keen of Elie]

The proposition is not well founded, with respect. The Smith commission is not binding this Parliament in any sense. Whatever the wording of the Smith commission agreement itself, it does not and could not bind this Parliament; it will be for the Parliament of the United Kingdom to decide whether it passes this Bill into law. So I do not accept the underlying proposition that was relied on by my noble friend Lord Cormack in that context.

On the terms of subsection (2) of new Section 63A, a point was raised about the words,

“with due regard to the other provisions of this Act”.

In my submission, those are helpful, because the other provisions of this Act include the cross-references to Section 28 and, in particular, Section 28(7) of the Scotland Act 1998. There again, you have underlined the sovereignty of the United Kingdom Parliament and the right of this Parliament to legislate on all matters, including devolved matters, in respect of Scotland.

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[Lord Cormack]

If my noble and learned friend cannot answer that very simple, straight question, does not that in itself indicate that he must recognise the validity of the comments of the noble and learned Lord, Lord Hope, that the Bill is capable of further improvement? In his eyes—not necessarily in ours—it was improved in the other place. Is he saying that the Government have got it absolutely right and it cannot be improved in this place?

[Lord Keen of Elie]

On the last point, just to be clear, that is what I am saying.

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[Lord Keen of Elie]

With respect, it does not appear to me that the two situations are immediately comparable. In those circumstances, it does not appear to me that that would add to new subsection (3) in Clause 1. I renew my submission that the noble Lord should withdraw the amendment.

[Lord Cormack]

I ask my noble and learned friend to respond more positively and helpfully to the noble and learned Lord, Lord Hope. It was a very simple point that he made. All he asked was that my noble and learned friend would reflect on what has been said during this debate and come back at a later stage, having reflected. He may be equally adamant, but he really owes it to this House to reflect on what has been said in this debate.

[Lord Keen of Elie]

With respect to my noble friend, I will reflect upon all observations that have been made in this House, but without commitment.

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[Lord Keen of Elie]

My Lords, I compliment the noble Lord, Lord Forsyth, on his optimism. The position is clear: we have repeatedly stated, across this House, that the United Kingdom Parliament is a sovereign Parliament. The noble Lord decided to seek a declaratory statement of that. I submit that this is wholly unnecessary: it is beyond doubt that this Parliament is supreme and sovereign. This is restated by Section 28(7) of the Scotland Act 1998. The existing declaratory statements in Clause 1 are not in any sense misleading. They are an expression of a political reality and they are intended to declare that reality as clearly as possible, acknowledging all along the supremacy of this, the United Kingdom Parliament. The proposed amendment is wholly unnecessary and, if anything is misleading it is the necessity for it. I urge the noble Lord to withdraw it.

[Lord Cormack]

I will not prolong this brief debate unduly, but my noble and learned friend seems to be adopting a fairly intransigent line. If it is permissible to make declaratory statements to appease those who would destroy the United Kingdom, is it not permissible to insert them for those who are dedicated to its future?

[Lord Mackay of Clashfern]

That may well be so, but there is already a declaratory statement in the Act which the Bill amends. It was pointed out that, under Clause 1, the other provisions of that Act were to be taken into account. One of those is Section 28(7). I will not say anything about the proposed amendments to Clause 2; the situation may be slightly different there.

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[Lord Lang of Monkton]

I am grateful to the noble and learned Lord, Lord Hope of Craighead, for his comments about the word “normally”. It is not a word that alarmed me particularly, as a non-lawyer, but the clause as a whole certainly alarmed and concerned the Constitution Committee. I shall say something about that in a moment but “normally” in its location there seemed to strike the balance between permitting the Scottish Parliament to legislate on devolved matters without intervention from the United Kingdom Government while, at the same time, giving the Government of the United Kingdom the clear right and entitlement in special circumstances to intervene. I will be interested to hear what my noble and learned friend at the Dispatch Box will have to say about it.

My own Amendment 13 simply seeks to strengthen new subsection (8) of Section 28 of the 1998 Act by reasserting the supremacy of the United Kingdom Parliament to reinforce the terms of subsection (7), which subsection (8) might otherwise seem to contradict. Having heard the treatment given by the Front Bench to my noble friend Lord Forsyth’s amendments, I suspect that I may not be on an ideal wicket. But I want to say a word or two about this clause because the Sewel convention is a dangerous situation in which to legislate.

The Sewel convention is as slippery as a fish. It has changed throughout the years since it came into being quite considerably and may yet change again. When I was first asked about it, I was told informally by my late lamented noble friend Lord MacKay of Ardbrecknish, who was at that time our Front-Bench spokesman on the Bill, that it was really just a courtesy to the Scottish Parliament for the United Kingdom Parliament to offer to legislate on its behalf, if it was an issue devolved to it on which it would plan to legislate. It would thus save time, expense and duplication. I do not think it was ever quite thus but that was the flavour of how I first understood it. It has now turned into something quite different and I see it as a weapon that seems to allow the Scottish Parliament to intrude into United Kingdom legislation to an unsafe extent, possibly even to the extent of a veto.

What is clear is that the Sewel convention is still so fluid and unsettled as not to deserve the name of convention. I do not think, in its present form, it is fit to be converted into law. It may be that those who have drafted the Bill have found, in the form of words they have used, a more stable and secure base for the long term, but the convention has changed a lot over the years and may again. Initially, the United Kingdom Government seemed to maintain that it applied only to powers already devolved or to restricting or diminishing such a power. That was certainly the original intention as I understood it, but in 2005, Devolution Guidance Note 10 was published, which suggested:

“The convention applies when legislation makes provisions specifically for a devolved purpose”.

I see that as something much broader.

Since then, the Scottish Parliament has claimed it applies to devolved areas rather than devolved matters, so that it also applies to legislation increasing devolved powers, which the UK Government seem at times to have accepted. The Scotland Act 2012 bore this out, as it was almost entirely an empowering measure and was taken to require legislative consent Motions. Astonishingly to me, the Labour Opposition supported an SNP amendment in the Commons and tried to enshrine devolved areas into the legislation. That could have given the Scottish Government a veto on UK legislation, which is what prompted my question to my noble friend on the Front Bench at Second Reading. This one-way degeneration of the original purpose of the convention is potentially damaging to the sovereignty of the United Kingdom Parliament, and we have to exercise great care in handling this.

The Smith commission asked only that it be put on a statutory footing. Even if we can be confident of a clear, unambiguous wording, the potential troubles do not end there. My noble and learned friend Lord Hope indicated at Second Reading, as he will recall, that it could become challengeable in the courts. My noble friend Lord Norton had serious concerns also, pointing out:

“Clause 2 does not transpose the Sewel convention into statute. It simply states the convention”.—[Official Report, 24/11/15; col. 639.]

I am completely out of my depth in reacting to that and I look forward to his speech a little later in the debate.

My amendment echoes the concerns of others to counter the uncertainties generated by the present wording of the clause. We have all felt the need to reiterate, in every possible way, the need to reassert the sovereignty of the United Kingdom Parliament. My amendment is the simplest and shortest—it may not be the best but at least it has a different wording from that rejected by my noble friend on the Front Bench. We must have a wording that is clear and unambiguous and able to withstand challenge in the courts, where I suspect it will probably end up.

[Lord Cormack]

My Lords, I will speak briefly to the two amendments in my name, Amendments 14 and 18. I thank the noble and learned Lord, Lord Wallace of Tankerness, the noble Lord, Lord Stephen, and the noble and learned Lord, Lord McCluskey, for adding their names to Amendment 14.

I think we are all aiming for the same thing: clarity and the removal of ambiguity. The one thing that struck me when I was looking at the Bill for the first time was the use of the word “normally”. It is not a very good legal word; indeed it is a word that could, as those who know far more about the law than I do have said repeatedly, be challenged in the courts. In these two amendments, I have sought to remove that word entirely and to give, in Amendment 18, a specific exception. I do not suggest that this is the only answer or necessarily the best one. I listened carefully to what my noble friend Lord Lang said a moment or two ago, but I would delete “normally” and insert at the end,

“save in times of war or national emergency”.

It is accepted in the Bill that there could be occasions when the United Kingdom Parliament, which has absolute sovereignty, would need to override the Scottish Parliament. None of us wants that to happen—and certainly not often—but if we recognise that that can or could happen, we have to be a little clearer with our definitions. I believe that by removing “normally” and inserting a couple of specifics, we are moving in the right direction. It is in that spirit that I commend these amendments to your Lordships’ House.

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[Lord Cormack]

If the Minister is prepared to have those discussions, which are welcome, would he also be prepared to have a discussion with those of us who have signed the amendments to delete the word “normally”? I say very gently to him—echoing someone who should not be echoed in this Chamber, Cromwell—conceive it,

“possible you may be mistaken”.

[Lord Keen of Elie]

I would respond to my noble friend by saying that anything is possible.

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Tabled by

[Lord Cormack]

14: Clause 2, page 2, line 6, leave out “normally”

[Lord Cormack]

I give notice that I will return to this on Report.

Amendment 14 not moved.