Scotland Bill

Lord Davidson of Glen Clova Excerpts

Tuesday 8th December 2015 Lords Chamber

[Lord Keen of Elie]

It has a purpose inasmuch as it determines that there cannot be abolition without a referendum. I am simply making the point that, as this is a sovereign and supreme Parliament, it could decline to legislate in accordance with the terms of that referendum result. However, politically that just would not happen.

[Lord Davidson of Glen Clova (Lab)]

Perhaps I may intervene. The noble and learned Lord—I was going to say “my noble and learned friend” but he is not in this context—has made it entirely clear, beyond peradventure, that this Parliament may do what it chooses because it is sovereign. When he says that this Parliament makes a declaratory statement, that is within its sovereign power. Surely that is the end of this point. If Parliament decides to make this declaration, then so be it.

[Lord Keen of Elie]

I am obliged to my noble and learned friend. It seems to me that we make no further progress on this point, notwithstanding the further observations of the noble Lord, Lord Purvis. I simply underline the sovereignty of this Parliament, and nothing in Clause 1 derogates or takes away from that. That is the bottom line. It is necessary to make progress with this Committee debate rather than to stay in still waters on one sterile point. Therefore, at this point I urge the noble Lord to withdraw his amendment.

--- Later in debate ---

[Lord Davidson of Glen Clova]

I take the point that issues of politics can intrude into questions of drafting, but if the noble Lord looks at Clause 2 he will see that the words—I hope I am not stealing his thunder in this regard—“it is recognised” are also found there. Does he take exception to that?

[Lord Forsyth of Drumlean]

I was not taking exception to anything. I was simply suggesting to the Government that they got it right when they added the words, “it is recognised” to the original Bill, and they got it wrong when they took them out. Fortunately I am not a lawyer, but as a layman, removing the words “it is recognised” indicates that no other party is involved in considering the status of the Parliament.

--- Later in debate ---

[Lord Hope of Craighead]

My Lords, perhaps it would be helpful for me to speak to my Amendment 12, which in effect restates in combination the points just made in support of Amendments 11, 15 and 16. I will also refer to Amendment 20, which deals with a related issue.

I think I saw that the noble Lord, Lord Lang, was about to rise to his feet and the background to my Amendment 12 is paragraph 38 of the Constitution Committee’s report, which draws attention to problems with the Sewel convention as his committee saw them. One problem was the use of “normally”, which gives rise to doubt as to what exactly that means. There was also the need to clarify the reach of the convention, which was the point just made in support of Amendment 11 and its related amendments. My Amendment 12 puts together in a package the same point that was referred to on those other amendments.

Amendment 20, however, deals with an issue which is closely related to existing practice. It refers to a:

“Duty to consult the Scottish Government on Bills applying to Scotland”.

It says, shortly, that:

“A Minister of the Crown must not introduce a Bill into the Parliament of the United Kingdom … that would make provision applying to Scotland unless a Minister of the Crown has consulted the Scottish Ministers”.

It is intended to reflect what I understand to be the existing practice and to follow on the points made in relation to restating Clause 2 in appropriate statutory language.

I should make it clear, as I did earlier on this afternoon, that the amendments to which I am speaking are in words that were in effect provided for me by the Scottish Government because they were tabled in June this year, in advance of Committee in the House of Commons. But I restate that I do not speak to these amendments on behalf of anybody other than myself; I simply see them as sensible amendments which have merit on their own wording. It is with that in mind that I speak to these two amendments.

[Lord Davidson of Glen Clova]

Could the noble and learned Lord indicate what the Scottish Government see as particularly virtuous about the formula that he suggests in this amendment?

--- Later in debate ---

[Lord Davidson of Glen Clova]

My Lords, there has been a widespread and interesting debate on this very important area of legislation. The noble Lord, Lord Norton, said that the debate had been useful to move matters forward, and I respectfully agree. It has provided the Minister with a smorgasbord of possibility.

The noble Lord, Lord Stephen, is correct in identifying the utility in having clarity where the UK Government may or may not have power where legislative consent Motions may come into being. That is quite clear. The alternative that is proposed by the noble and learned Lord, Lord Hope of Craighead, is a carefully laid out analysis of what the actual problem has been and how it may be converted into statute. If one is going down the route of statute rather than maintaining convention in place, this appears a helpful and clear way forward.

The fact that the executive competence of the Scottish Parliament comes into play is a matter that has troubled people from time to time. One example might be the position of Scottish law officers. In Scotland, Ministers are in charge of day-to-day management of prosecution. Some people might think that that was anomalous. In fact, had the noble and learned Lord, Lord Wallace of Tankerness, been here this evening—he is in a more illustrious place—he would recollect saying many years ago that the position of the Scottish law officers in being prosecutors and Ministers was anomalous. Those are the sort of issues that with this approach are clearly put back into the Scottish Parliament to be dealt with by either the Parliament or the Scottish courts.

As for the problems that have arisen when legislative consent Motions have been deployed, they have in fact worked extremely well over 15 years. The notion that in some way they have subverted the sovereignty of the United Kingdom and this Parliament is, I would suggest, somewhat of a chimera. As the Minister has already indicated on a number of occasions, the sovereignty of this Parliament has not been subverted, and is not subverted. So on the notion in the amendment proposed by the noble Lord, Lord Lang of Monkton, that sovereignty should be made absolutely clear, on this side of the House we would accept what the Minister has said repeatedly—and we have that before us, if we look at Pepper v Hart—that this Parliament remains sovereign.

On the vexing question of the word “normally”, we support its deletion. We appreciate that the word, despite the helpful guidance from the noble and learned Lord, Lord McCluskey, is not easily understood in applying matters of statutory interpretation. The noble and learned Lord, Lord Mackay of Drumadoon, was a witness and saw the uttering of the legislative consent words, and he very helpfully set out that words can appear without necessarily having the fully considered import that a draftsman might bring to bear. The noble Lord, Lord Empey, made the point very clearly in the context of Northern Ireland. So although it may be thought by some, possibly, that deletion of “normally” is in fact an extension of legislative consent, we on this side would support it. If it is seen as in some way increasing a fetter on Ministers, so be it in order that clarity might be produced.

We oppose Amendment 18 advanced by the noble Lord, Lord Cormack, on the basis that we see that the UK remains the UK. If there is war or a national emergency, the constituent parts of the United Kingdom can be relied on to pull together. We also oppose Amendment 17, proposed by the noble Lord, Lord Forsyth of Drumlean, perhaps unsurprisingly. The legislative consent Motion procedure has been successful over 15 years; either of the amendments proposed, setting out the statutory basis of the legislative consent Motion, would resolve the issue but there has not been a debate about this being an unsuccessful mechanism. It has worked not as a way in which to pose the Scottish Government against Her Majesty's Government but, most of the time, has resulted in co-operation, with the Scottish Government bringing issues to Her Majesty’s Government for discussion.

[Lord Forsyth of Drumlean]

Has the noble and learned Lord not seen the statements made by senior Ministers in the Scottish Government to the effect that, if they do not get what they want out of the fiscal framework, they will veto the legislation and prevent it coming on to the statute book. I am not sure how, given the importance of this legislation and the background to it, the noble and learned Lord can say that the system is working perfectly well.

[Lord Davidson of Glen Clova]

The noble Lord will of course be aware that I have seen those statements and have been interested in what they in fact mean. But he will also recollect that we say, from this side of the House, that given the discussion about the fiscal framework and possible use of legislative consent Motions in that regard, we see the co-operation that has taken place between the Scottish Government and Her Majesty's Government in the past as something in which we can repose a good deal of trust that it will continue in relation to this process with the fiscal framework. Our trust may be misplaced, but we conceive otherwise. The noble Lord, Lord Forsyth, cannot see any more than I can into the future, but we are in a position where we repose trust in the process, at least from this side.

In relation to the various amendments before the House, we accept that a number of them are useful. None the less, we oppose Amendments 13 and 18.

[Lord Hope of Craighead]

I hoped that the noble and learned Lord might say something about Amendment 20. Perhaps I was not sufficiently clear when I introduced these amendments, but Amendment 12 deals with the stage of passing a Bill and says that,

“the Parliament of the United Kingdom may not pass Acts … without the consent of the Scottish Parliament”.

Amendment 20 intercepts the matter at the earlier stage. It says:

“A Minister of the Crown must not introduce a Bill into the Parliament of the United Kingdom … that would make provision applying to Scotland unless a Minister of the Crown has consulted the Scottish Ministers”.

That amendment, as in the case of Amendment 12, was drafted in Edinburgh by people who know how the system is working. In giving his support to Amendment 12, I wonder whether the noble and learned Lord meant to give his support also to Amendment 20.

[Lord Davidson of Glen Clova]

I apologise for not confirming that we support Amendment 20. I took that as being the overall approach—this smorgasbord—between the approach of the noble Lord, Lord Stephen, and the approach of the noble and learned Lord, Lord Hope. I hope that clarifies the point.

[Lord Mackay of Clashfern]

What is the noble and learned Lord’s view about the provisions in Amendment 12, which was tabled by the noble and learned Lord, Lord Hope? It contains paragraphs (a), (b) and (c). Paragraph (a) applies to Scotland and does not relate to reserved matters. I would have thought that is what is meant by devolved matters, but paragraphs (b) and (c) considerably add to that. As far as I can understand them, particularly paragraph (b), they would apply to this legislation.

[Lord Davidson of Glen Clova]

Perhaps I can try to explain the proposition put forward by the noble and learned Lord, Lord Hope, in his amendment. As we see this, it reflects the reality of the way in which legislative consent Motions have been used over the 15 years, beyond the original.

[Lord Keen of Elie]

I am obliged for the contributions that have been made with regard to Clause 2 and the proposed amendments thereto. I shall begin by making an observation on a point made by the noble Lord, Lord Stephen, with regard to English votes. The provision with regard to English votes does not limit the sovereignty of this Parliament in any sense. English votes introduces the principle of English consent for English measures. The new procedures maintain the important principle of Members of Parliament from all parts of the United Kingdom being able to deliberate and vote on all legislation. Members of Parliament are not excluded from the legislative process. I would not accept the proposition that these provisions somehow derogate from the sovereignty of this Parliament.

--- Later in debate ---

[Lord Davidson of Glen Clova]

I have a feeling that the Committee is going down the wrong line here. The Minister has made it entirely clear that he has been talking about something that would never happen. It is just a logical construct. He is looking into the reality, and the notion that one should feel that somehow the UK Parliament is asserting a power to intervene in the affairs of the Scottish Government is a flight of fancy—it is not real.

[Lord Stephen]

I will readily grab that escape route, and I thank the noble and learned Lord for that assistance. I hope that that is the case, although much has been repeatedly made of the absolute sovereignty of the UK Parliament. If noble Lords check the record, they will find that the Minister has mentioned it many times.

However, moving away from that issue, I strongly agree with the noble Lord, Lord Norton. You either keep the convention or you enshrine it in statute—I think that the wording from the Smith commission was “put it on a statutory footing”. It was not the Sewel convention of 1998 that was expected to be put on a statutory footing; it was the Sewel convention as it exists today, as the Smith commission knows it and as it has been working in the Scottish Parliament and between the UK Government and the Scottish Government. All aspects of the Sewel convention should be on a statutory footing, not just one narrow aspect that started in 1998 and has now gone. If we were forced to go in that direction, then, as the noble Lord, Lord Norton, pointed out, one tiny but important element of the Sewel convention would be in statute but not all the rest. To me, that would be ridiculous.

As ever, the noble Lord, Lord Forsyth, is logically correct: any Sewel Motions and legislative consent Motions could absolutely be prevented, with everything in devolved areas having to be dealt with by the Scottish Parliament. The UK Parliament—the House of Commons and the House of Lords—would stop legislating in these areas. However, I conclude by saying that the whole process of legislative consent Motions has been accepted and they have been commonplace. Some people have asked how often they have been used. They are used all the time in the Scottish Parliament. There must have been dozens, if not hundreds, of legislative consent Motions. They work well. Why try to stop or change something that has been accepted and works well? Let us simply put it on a statutory footing and get on with it. I beg leave to withdraw the amendment.