Scotland Bill

Lord Cormack Excerpts

Wednesday 24th February 2016 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I am as disappointed as the noble Lord, Lord Forsyth, that some of the points that were raised—indeed, all the points that were raised—in Committee on Clause 1 have met with no response from the Government by way of amendment. My amendment in this group is Amendment 2, which is directed to the wording of the new Section 63A(3). I am repeating points that I made in Committee which were designed to achieve greater clarity. In some respects, the need for greater clarity is revealed by the amendment that the noble Lord, Lord Cormack, has tabled and, indeed, by the comments of the noble Lord, Lord Forsyth, just a moment ago.

There were two particular points in new subsection (3) to which I drew attention last time and to which I draw attention yet again. The first is the phrase,

“a decision of the people of Scotland”.

The first question is: what kind of decision? What majority, if any? Is it to be by simple majority or something else? Merely to use the phrase “a decision” does not tell us what the mechanism is to be to record that decision in a way that would have effect. The second is the phrase, “the people of Scotland”. Is the referendum to be confined to people who are in Scotland, or are any people who can claim they are of Scotland to be allowed to participate in the referendum?

My amendment seeks to clarify those matters by saying that the,

“referendum has been held in Scotland”;

and, secondly, that the decision is to be that of,

“a majority of those voting”—

in other words, a simple majority only.

Unless those points are tidied up and greater clarity is achieved, the uncertainty which I suggested lurked within the current wording of the subsection will remain. I hope very much that the Minister will feel able to reflect yet again on the need for clarity. It is a feature in various parts of the Bill that a great deal of clarity has been achieved. It is disappointing that, in the constitutional part of the Bill—Part 1, which has very great significance—the clarity which is present in other parts of the Bill is not being achieved. It is for that reason that I have come back yet again on Report with the points that I made earlier, in the hope that they will still receive attention.

[Lord Cormack (Con)]

My Lords, Amendment 3 is in my name. I moved a similar amendment in Committee and expressed the hope, as did the noble and learned Lord, Lord Hope, and my noble friend Lord Forsyth of Drumlean, that there would be some response from the Government. I do not think any one of us is suggesting that our individual solutions are perfect, but clarity is certainly needed. We need to reflect, particularly this afternoon, having heard a Statement, to which we will doubtless return on Monday, that is fraught with danger for the future of the United Kingdom. It is tremendously important in that context that the supremacy of the United Kingdom Parliament should be specifically acknowledged in one way or another.

Where I differ from the noble and learned Lord, Lord Hope, is that I do not want the ultimate decision to be made in a referendum, if it comes—I hope it will not, but it might—to the abolition of the Scottish Parliament. The Scottish Parliament was the creation of the United Kingdom Parliament. If it is to be abolished at any time—I reiterate my hope and belief that it will not be—it is crucial that the final word should be with the United Kingdom Parliament.

It may well be that part of such a process would be a referendum. I do not particularly like referenda, but they are now part of our constitutional system and, like them or not, we all have to accept that. But I believe fundamentally in parliamentary democracy. Therefore, it is crucial that the ultimate decision should be made in Parliament and should be made in the elected House. Of course your Lordships’ House should have a constructive part to play. Of course it should scrutinise any legislation that is placed before Parliament. But ultimately, this should be the decision of the elected House.

I am conscious that small majorities can sometimes provoke great wrath and dissension, so I have made a suggestion in my amendment and it is here for noble Lords to see. There would have to be,

“a two-thirds majority in a vote of the House of Commons in which 75 per cent of the members elected by Scottish constituencies voted for abolition”.

I do not put that before noble Lords as the ultimate panacea, but something along those lines would go a long way to reassure those of us who are concerned for the long-term future of the United Kingdom. I am sure that everyone in your Lordships’ House at least shares that concern. I made similar points in Committee and expressed the hope that the Minister would reflect and that we would see the results of his reflection when we came to Report, but there is no sign of that. It is a great pity, because if we truly believe in the United Kingdom, it follows, as night follows day, that we believe in the supremacy of the United Kingdom Parliament. There has to be something in this Bill, either along the lines of the amendment moved by my noble friend Lord Forsyth or of mine, as well as taking up some of the points made by the noble and learned Lord, Lord Hope. It is just not good enough to leave the Bill as it is.

In all that has been going on over the past few months, there is an element of the paying of Danegeld. Those who pay Danegeld rarely get value for money, and I think we should bear that carefully in mind.

--- Later in debate ---

[The Deputy Speaker (Baroness Fookes) (Con)]

My Lords, if Amendment 7 is agreed, I cannot call Amendments 8 to 12 inclusive by reason of pre-emption.

[Lord Cormack]

My Lords, I hope the occupant of the Woolsack will not to have to do that because I very much hope that the Minister will accept the irrefutable logic of the amendment moved by the noble and learned Lord, Lord Hope. My amendment 8 is very simple. I am most grateful to the noble and learned Lord, Lord McCluskey, for adding his name to it. When we debated similar issues in Committee the noble Lord, Lord Stephen, indicated that he supported this amendment. He has now got a rather ingenious substitute; he just puts quotation marks around “normally”.

It is very important that the Minister should heed the wise words of the noble and learned Lord, Lord Hope. We want clarity in this measure. In the previous debate, the noble Lord, Lord Empey, made an extraordinarily effective but rather cynical speech. I was tempted to get up, as my noble friend Lord Forsyth of Drumlean did, and say we are wasting our time. It really is a very unsatisfactory way to legislate that an extra-parliamentary body, with a prior commitment from leaders of parties to give it a blank cheque, then in effect tells Parliament what to do. From a constitutional point of view, it is an outrage that that should happen. In saying that, I am not making any personal political criticism of the noble Lord who presided over the commission or of any members of it, but for it to be given that unfettered power and then to come to Parliament with a Bill that is not really going to be changed at all is deeply unsatisfactory.

If the Minister cannot accept the admirable amendment from the noble and learned Lord, Lord Hope, I hope that at the very least he will accept that the word “normally” is fraught with all sorts of dangers. The question of what is normal and what is abnormal is justiciable and will be taken to the courts, so why have it in at all? Taking out that word and perhaps coming back at Third Reading with a slight extra clarification—even to substitute such words as “in the most exceptional circumstances”—would be better than just having “normally”. I honestly do not think that by accepting this amendment, or undertaking to come back at Third Reading with something similar, the Minister would be selling anyone down the river at all. It would not alter the thrust or the purpose of the Bill. Many of us find the Bill troubling and unsatisfactory but we in your Lordships’ House have a duty to try to improve, and this would be a very modest improvement. I commend it to the Minister.

[Lord McCluskey]

My Lords, I need not repeat the arguments that the noble Lord, Lord Cormack, has put forward again so clearly. We need say nothing more about “normally” except that we were anxious to help to improve the Bill. This was not anti the Government or anti the Scottish Administration.

My second point relates to Amendment 12 in this group, which is to do with the question of justiciability. For the reasons that have been advanced at some length, so I need not repeat them, the noble and learned Lord, Lord Hope, and I are agreed that this word is justiciable. It would be very foolish of the Minister to reject the advice of a man as distinguished in the law as the noble and learned Lord. The word “normally” is bound to appear before a court. If the UK Government decide to legislate on a matter that is devolved and say, “This is not a normal situation”, and some person, whether in the Scottish Government or affected by the legislation, says, “No, it is not”, and it goes to court, the court cannot say, “We’re not going to resolve this matter”—it must answer the question. So to say that it is justiciable is exactly right, and it is wrong for the Minister to ignore that. The Minister kindly suggested that he and I should meet, and we did, but I am afraid that we simply agreed to differ on the issue of justiciability.

I should mention one other point that does not arise out of these two amendments precisely, which is that this is to do with the Sewel convention. I hope that the noble Lord, Lord Norton of Louth, will permit me to quote what he said in Committee on 8 December. In response to the argument that the Smith commission stated that:

“The Sewel Convention will be put on a statutory footing”,

he said, referring to the noble and learned Lord speaking from the Front Bench:

“Surely on his own argument the Government will have to withdraw Clause 2, not only on the grounds of what constitutes a statutory footing but because it embodies the words of Lord Sewel, which he spoke when the Scotland Bill was before Parliament, and not the convention as understood at the time the commission produced its report”.

The noble and learned Lord rejected that, saying:

“I do not accept that, because it appears that what is understood by the Sewel convention is the expression of that convention by Lord Sewel during the passage of the Scotland Act 1998 through Parliament”.—[Official Report, 8/12/15; cols. 1506-07.]

I must confess that it astonished me to hear that. Can the Minister make it clear whether the Government stick by that statement at col. 1507, which was repeated in response to the noble Duke, the Duke of Montrose? In due course I hope to move Amendment 12.

--- Later in debate ---

[Lord Davidson of Glen Clova]

I appreciate that the ornithological reference might necessarily be unhelpful to the party that I represent at this particular moment in time. However, the wording of the Smith commission is not to be treated as if every single word has been precisely defined. One of the great traditions of the British approach to such matters is to retain a certain flexibility in the way one deals with issues as and when they arise. When they arise, one occasionally notices other constitutional observations.

[Lord Cormack]

I am extremely grateful to the genial noble and learned Lord, but is he really saying that if this House exercises its constitutional right and sends something back to the other place it is acting in some way ultra vires? Surely if the other place decides that it does not want to accept the advice of your Lordships’ House we can reflect on that. The noble and learned Lord knows my constitutional position there. But for this House not to use the very limited authority that it has and pass a clause that is totally unsatisfactory and, in the opinions of many noble and learned Lords, nonsensical—can he advise us on what he is doing?

[Lord Davidson of Glen Clova]

The noble Lord raises a matter that goes well beyond what I hoped we were going to be discussing. He is opening up the entire relationship between this House and the other place.