Scotland Bill

Debate between Lord Forsyth of Drumlean and Lord Davidson of Glen Clova

Wednesday 24th February 2016 Lords Chamber

[Lord Davidson of Glen Clova (Lab)]

My Lords, normally when the loyal Opposition hear valid and powerful arguments from many noble Lords and noble and learned Lords, they listen acutely and seek to put their weight behind those observations, particularly when they are put into an articulate amendment. However, in this case we will not support these amendments.

I suspect that the question “Why?” might come from the lips of certain noble Lords. It is our judgment that the political imperative suggests this position: if any of these amendments are passed by this House, they will be overturned in another place. It will be immediately accepted that that would be wholly undesirable. I notice the unfortunate distortion of the normally calm features of the noble Lord, Lord Forsyth, but he will fully understand, as one of the United Kingdom’s most able politicians over many years, that political imperative can be of considerable importance.

[Lord Forsyth of Drumlean]

I was puzzled by the noble and learned Lord’s assertion that he would be unable to support this because throughout endless hours of consideration of this matter, we have been told repeatedly that the Opposition are here to ensure that the letter of the Smith commission is delivered. The amendment in the name of the noble and learned Lord, Lord Hope, would do precisely that. We have been correctly advised that the clause is defective and does not do that. So the Labour Party will actually prevent the implementation of the Smith commission proposals. I venture to suggest that that is an albatross that some people may hang around its neck.

[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.

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[Lord Forsyth of Drumlean]

I appreciate that we are on Report, but when the noble Lord describes this as an innovation which is undesirable, is it not one that was recommended by the Smith commission?

[Lord Davidson of Glen Clova]

I am slightly surprised that the noble Lord offers such support for this amendment. I will explain my surprise. I do not see this as an exact simulacrum of what Smith proposes. This is an attempt to change the sovereignty of this Parliament. I do not understand that the Smith commission was quite so ambitious in the way it wished to proceed. I hope that that answers that question.

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[Lord Davidson of Glen Clova]

I consider that it has never been the role of the loyal Opposition to increase the wisdom of Members of this House but we often attempt to leave them better informed. If I have wearied noble Lords over these 18 minutes, I apologise, but I offer this one little candle of comfort—I will weary them no more.

[Lord Forsyth of Drumlean]

Before the noble and learned Lord sits down, could it be that the political imperative is that he has been told by the Chief Whip down at the other end of the building, “Under no circumstance accept any amendment, however sensible it be”?

[Lord Davidson of Glen Clova]

Sorry, who is the Chief Whip in the other place? I am afraid it is not a man or woman I have ever met, so if there is some suggestion that I have been “nobbled” and my arm pushed up my back by some person wholly unknown to me, I think I would have noticed. The suggestion that my noble friend Lord McAvoy would in any way try to persuade me of anything—

Scotland Bill

Debate between Lord Forsyth of Drumlean and Lord Davidson of Glen Clova

Tuesday 8th December 2015 Lords Chamber

[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.

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[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.

Scotland Bill

Debate between Lord Forsyth of Drumlean and Lord Davidson of Glen Clova

Tuesday 24th November 2015 Lords Chamber

[Lord Davidson of Glen Clova]

One of the problems one faces as an advocate is being tempted to follow what is put before one by a judge. One is quite often tempted down that road. What my noble friend is putting to me, in a style which is not wholly unfamiliar in the courts, is one such temptation. I would care to deflect it to the Minister. This is not something that the loyal Opposition can put into the discussions between Her Majesty’s Government and the Scottish Government but I respectfully suggest that this interesting proposition from my noble friend Lord Reid be introduced into those discussions.

It is clear that we have to find a mechanism that enables the discussion on this critical area to be slightly widened in its understanding. We have ended up with the Scottish Government’s view not being revealed other than in minutes that do not really set out what has happened. My noble friend Lord Foulkes raised the question of what plan B is. I think we can legitimately assume the answer is that there is no plan B and that negotiations will be successful. That may be reassuring for some people but for others perhaps it will not. My noble friend Lord McAvoy was clear that we simply have to trust Her Majesty’s Government and the Scottish Government to produce a result. It would be helpful if they gave us a basis for developing that confidence.

My noble friend Lady Liddell asked if we might see the minutes and papers. She was joined in that request by the noble Lord, Lord Stephen. These are interesting points but one can understand the competition between the politics of the issue and the scrutiny. It would be helpful if we were given some guidance as to where the balance lies. Scrutiny, after all, is the purpose of this Chamber.

I was just coming to the noble Lord, Lord Forsyth—

[Lord Forsyth of Drumlean]

Might the noble and learned Lord turn his attention to telling us what the Opposition’s position is on whether consideration of this Bill should be delayed so that we are able to consider it with the fiscal framework?

[Lord Davidson of Glen Clova]

The answer that I have just foreshadowed is the question of trust. We are prepared to trust Her Majesty’s Government and the Scottish Government to conduct their negotiations. We would like to have some further basis on which to develop and strengthen that trust, which might even meet some of the requirements of the noble Lord, Lord Forsyth of Drumlean. He looks at me quizzically—

[Lord Forsyth of Drumlean]

I do not know whether that is a yes or a no.

[Lord Davidson of Glen Clova]

One sometimes finds that there are questions that do not have a yes or no answer. The question of trust is something that one might reflect upon and, if that is lost in translation in some way, I would be happy to explain later.

The charge that the noble Lord, Lord Forsyth, has made against the vow is that it reveals a certain degree of illiteracy. Be that as it may, as the noble Lord, Lord Stephen, pointed out, the vow is a fact; it has been acted on and here we are with the consequences of that vow. We can analyse questions of the Barnett formula, which have been discussed in this House over and over again, but perhaps that will not really add very much to the discussion of this Bill.

I am conscious that I am taking rather more time than perhaps—