Scotland Bill

Lord Hope of Craighead Excerpts

Tuesday 8th December 2015 Lords Chamber

[Lord Purvis of Tweed (LD)]

My Lords, it was fairly dispiriting to come back into the Chamber and to see our archaic language—which, as a Member of this House compared with being a Member of the Scottish Parliament, it has taken me a while to adjust to—on the annunciator. It announced that the House was “Adjourned during pleasure”, and it was dispiriting when the “pleasure” ended and the Scotland Bill was brought back to us. When I first saw that announcement on joining this House, I asked the Clerk of the Parliaments was it was. He asked me, “Didn’t you have any pleasure in the Scottish Parliament?”. I replied, “No, not very much at all”.

It was a pleasure to hear the noble Lord, Lord Foulkes. His persuasive skills are renowned but I am afraid that I am not persuaded by the case that he made. When I was a constituency Member of the Scottish Parliament, I considered it to be absolutely my duty to be as effective in that role as anyone else, but I was also aware of the pressures on constituency and regional Members of the Scottish Parliament. At one time, I was a member of three parliamentary committees: two were legislative and one—the Finance Committee—was both a scrutiny and a legislative committee. There was most certainly a strain on the number of Members.

It is worth reflecting that it was not designed to be like that. When the Parliament was established and the consultative steering group looked at the fundamental principles of how the Scottish Parliament should operate, it was designed to be a very different type of institution from the one here. There was going to be much stronger pre-legislative scrutiny and that element has been successful. This Parliament has learnt from that approach to pre-legislative scrutiny, with draft Bills now becoming the norm.

The committees in the Scottish Parliament, because of its nature, are both legislative and scrutiny committees. They were designed to be the strength of the Parliament. In a previous element, the noble Lord, Lord Forsyth, said that the Scottish Parliament sits for only one and a half days. When I was a Member of that Parliament, that was a frustrating misconception reinforced by some of the press, which I felt had an agenda against the Parliament. There were plenary sessions but, unlike in this place, the committees in the Scottish Parliament had precedence. They met on Tuesday mornings, Tuesday afternoons and Wednesday mornings because of their distinct role.

The feeling was that the convenors of committees were going to be equal to Ministers and that their parliamentary strength was going to be in balancing the Executive’s authority. There was to be a shadow civic Parliament, with a much stronger civic input into the way that the Parliament operated. It is disappointing—there is a mea culpa from my party, which was part of the Administration early on, but it has most certainly been accelerated since 2007—that the Scottish Parliament has become remarkably like the Westminster Parliament. It has an absolutely dominant Executive and the committees have gradually become weaker. Their convenors are not even elected by the whole Parliament—an innovation of the House of Commons. The procedures of the Parliament have become weak in relation to power over the Executive when it comes to money. If there is anything that the Scottish Parliament can learn from our experience now, it is that Parliaments that reduce the ability to hold government to account for the money that it spends on behalf of the people are weakened Parliaments.

Ultimately, that has meant that there have been some examples where there has been less scrutiny than I, as a former Member of the Parliament, would have liked—whether that is on police reform, where mine was the only party to vote against what has happened because there was a large majority and the Executive were able to take it through; criminal justice reform; two areas that are currently being challenged by Brussels, on the Scottish Futures Trust and the delivery of infrastructure; minimum unit pricing, which has been challenged; or the quality. Fundamentally, these are my observations as a former Member who loves that institution, wishes it well and was a very proud Member of it.

However, I agree with the noble Lord, Lord Forsyth: it is not for this place to tell that institution what to do. If this place is to have a role—I know that members of the major party in Scotland will never accept that, and I understand the reasons for it—it is sometimes for former Members of the institutions with deep respect say to that institution that it is worth it considering its own procedures. I live in the area that I used to represent as a Member of the Scottish Parliament, and so I maintain a vested interest in that Parliament working well.

There is a case for some form of much heightened, strengthened pre-legislative scrutiny. Sir David Edward, whose qualifications I do not need to rehearse, argued in a very good lecture for a council of state, using the existing organisations that we currently have set up in Scotland—for example, the ombudsman—to be a much stronger check on the proposals being put forward. Corroboration is one area where there should have been stronger pre-legislative scrutiny.

Equally, I believe that there will increasingly be an argument for some form of check before the final stages of Scottish Parliament legislation. If there is a reformed House of Lords, it could be that we have a mandate from the Scottish people directly, or indirectly through the Scottish Parliament for senators in this place, and may well have some joint capacity with both the UK and Scottish Parliaments—I will not need to address the next amendment, which deals with the working relationships, because this is my point. Noble Lords may not be entirely surprised to hear me say that, ultimately, that should be one area that we consider in a constitutional convention: to look at the proper functioning and continued strengthening of how the Scottish Parliament operates and the areas where this institution should rightly have a relationship with it. Ultimately, we should seek a better, stronger Scottish Parliament, able to do its job.

Therefore, I am not persuaded by the solution that the noble Lord has brought forward, but I hope, with the deepest of respect to the institution that I love, that it takes it very seriously, especially in the context of the successful passage of this Bill, in which the Scottish Government’s powers over budget and taxation will be greatly enhanced.

[Lord Hope of Craighead (CB)]

My Lords, I do not want to take up any more time on this issue. However, I remind the noble Lord, Lord Dunlop, that when I followed the noble Earl, Lord Kinnoull, at Second Reading I asked him a question. The question was whether, having regard to what we see in the Bill, he felt that the Scottish Parliament was able to cope with the additional powers that we are passing to it. Of course it is a matter for that Parliament to work its own procedures; I absolutely understand that. However, we do have an interest, since we are devolving these additional powers. It would be very unfortunate if the Parliament as presently constructed, and designed for a totally different situation, was so overloaded that it could not fulfil its function.

[Lord Norton of Louth (Con)]

My Lords, for similar reasons, I will keep my comments brief, not least since I see that the target is to reach Amendment 42 this evening.

There is general agreement that the noble Lord, Lord Foulkes, has done us a service, because he has identified a problem. The question is how we address that problem, and there are two facets to it. One is how to ensure that there is a review of the present Chamber, but the problem has also been identified as to how, as responsibilities grow, it is going to cope with the demands made on it.

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Moved by

[Lord Hope of Craighead]

30: Clause 11, page 12, line 9, leave out “decision whether to pass or reject it,” and insert “motion that the Bill be passed is debated,”

[Lord Hope of Craighead]

This is one of a group of amendments running through to Amendment 40. Although Amendments 31 and 32 are not in my name, they duplicate ones that are.

This is another group of amendments that I have taken from the group proposed or suggested by the Scottish Ministers in June this year. The interesting feature of these amendments is that they were tabled on 15 June but were either not called or withdrawn. So they were never considered by the other House, and I thought it right to bring them back so that at least they could be considered in this place and not be lost sight of entirely. Their aim is simply to improve the working of Clause 11, which deals with the supermajority system in the event of certain measures coming before the Scottish Parliament. Reading between the lines, I think what has happened is that draftsmen in Edinburgh have worked through the clause, with their knowledge of how the Scottish Parliament works and in the light of provisions in the relevant parts of the Scotland Act 1998, and made suggestions as to how the clauses could be improved.

Because of the lateness of the hour, I do not want to go through the amendments in any detail. However, the first amendment alters the timing of the decision of the Presiding Officer from the decision that the Bill be passed to putting the Motion. There may be some merit in that alteration of timing. In Clause 11(5), two matters are inserted which are reproduced by Amendments 31 and 32, and which are sufficiently important to be included in the list of protected subject matters. I suggest that there is some merit in those. Clause 11(6) inserts passing without a Division as an event which should have the same status as the passing of a Bill by a two-thirds majority. It is conceivable that that could happen, and it is as well to provide for it. If passed without a Division, there would be a consensus that would meet the broad requirements for a supermajority, ensuring that the Presiding Officer would not have to go through the drill of making a statement in that situation as to whether the provision relates to a protected subject matter.

In Clause 11(10) two situations are inserted which, given what appears above, should not trigger a reference. Importantly, a provision is inserted that would enable the Parliament to take the matter back for further consideration, in which event consideration of the issue by the Supreme Court would not be necessary. That type of treatment is already to be found in Section 36 of the Scotland Act, which deals with stages of Bills. Section 36(4) provides that standing orders shall provide for an opportunity for the reconsideration of a Bill after its passing if the judicial committee decides that a provision would not be within legislative competence. The same mechanism is thought to be appropriate for the supermajority solution. All these amendments are very technical. I do not think there is any political angle to them. There is simply a desire to improve the working of the Bill and to make sure that this rather complicated provision, which I imagine will very rarely, if ever, be triggered, makes proper sense.

I shall make one brief final comment in relation to the position of the noble Lord, Lord Smith of Kelvin, in relation to this Bill. The noble and learned Lord said, if I understood him correctly, that he was of the view that the terms of the Bill meet the requirements of the Smith commission report. I happened to meet the noble Lord on Sunday, and he said that if that is the impression that Ministers have, he has been misunderstood. His attitude is the attitude of a lay man, and he says that, as far as he is concerned, he has not looked at the Bill from the point of view of a lawyer. If there are matters in which it could be improved, given study by lawyers and legislative draftsmen, he is all in favour of it because his aim is to have a Bill that is as good as possible. He authorised me to say that if Ministers doubt my word, they should speak to him directly. I do not think that the noble Lord, Lord Smith, if he were here, would object to these amendments, whatever he may say about the others.

[Lord Stephen (LD)]

I rise to speak to Amendments 31 and 34, which are in my name and that of my noble and learned friend Lord Wallace of Tankerness. This is back to the future, back to the debate we had just a few minutes ago about the extension of the length of the term of the Scottish Parliament. The issue is still grouped with these amendments, and our proposed approach is to include the extension of the term of the Parliament in the list of special majority or supermajority issues, except for what will be the second extension of the term of the Scottish Parliament, which the noble Lord, Lord Forsyth, mentioned earlier. That is happening right here, right now because the proposal is for the term which ran from 2011 to 2016, a five-year term, to be followed by another five-year term from 2016 to 2021.

The Bill in the Scottish Parliament to achieve that extension was introduced on 17 November. It is called the Scottish Elections (Dates) Bill. We believe that to make it clear and to avoid any uncertainty or confusion, that Bill should be excluded from the requirement to have a special majority. Otherwise, we agree with the noble Lord, Lord Forsyth, that this is an important issue. I think there could well be some sort of cap on the number of years for which you can extend. For example, extending by one year is perhaps the maximum that any of us would envisage, but if we have an extension of the term of the Parliament, it seems entirely appropriate that, alongside the other issues listed here, it should be by special majority of the Scottish Parliament.

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[Lord Keen of Elie]

I am obliged to noble Lords. Clearly I cannot comment on any dialogue that the noble and learned Lord, Lord Hope, has had recently with the noble Lord, Lord Smith. I merely observe that there is a distinction between improving the Bill in order to implement the Smith commission agreement and, on the other hand, extending the Bill so that it goes beyond the terms of the agreement, or in fact retreating so that the Bill does not implement it. We would of course be happy to pursue further dialogue ourselves with the noble Lord, Lord Smith, if he felt that that would be useful.

These amendments seem to fall into two broad categories: on the one hand, amendments to the current clauses that are intended to improve the drafting of the Bill, and, on the other, a second theme extending the scope of the supermajority clause to matters that were not included in the Smith commission agreement. I shall deal with these in turn. I turn first to those amendments put forward as a means of improving the operation of Clause 11 as and when it is implemented. Amendment 35 would allow for a Bill to be passed without a Division. Our considered position is that a Division is the most straightforward way of verifying that a two-thirds majority in the Scottish Parliament has been achieved. For this reason, we cannot agree with the proposal in Amendment 35, which provides for a Bill to be passed by consensus.

In addition, we do not agree with the proposal in Amendment 39 that the Scottish Parliament should be able to “reconsider” a Bill if the Presiding Officer decides that a supermajority is required and the Supreme Court later affirms this. Nor do we agree with Amendment 40, which appears to provide that the Scottish Parliament should be able to reconsider a Bill if the Presiding Officer decides that a supermajority is required and the Bill receives only a simple majority. We consider that in both these situations there should be careful consideration and no short-cut to a final vote which requires the supermajority in the context of such legislation.

While we agree with the rationale behind Amendments 30 and 38 and parts of Amendments 37 and 40, we believe that the Bill as drafted provides for these considerations and that therefore such amendment is unnecessary. We would of course be happy to discuss this further with the proposers of the amendments.

I will address those amendments which seek to extend the scope of the supermajority provision, particularly Amendments 31 and 33, and I think a part of Amendment 34. Amendments 31, 33 and 34 seek to ensure that legislation brought forward by the Scottish Parliament concerning the period of time between ordinary general elections to the Scottish Parliament should also be covered by the requirement for a two-thirds majority. The second part of Amendment 33 seeks to ensure that Bills concerning the alteration of boundaries of constituencies, regions or any equivalent electoral area for the Scottish Parliament should also be covered by the two-thirds majority. The simple response of the Government is that the Smith commission agreement specifically outlined the subject matter, which it considered should be subject to the supermajority requirement. It did not propose that legislation concerning the term length of the Scottish Parliament, the date of any Scottish Parliament elections or the alteration of boundaries should be subject to a two-thirds majority of the Scottish Parliament. In these circumstances, we would not be content with the proposed amendments. I therefore invite the noble and learned Lord to withdraw his amendment.

[Lord Hope of Craighead]

My Lords, I beg leave to withdraw the amendment in view of the points that have been made by the noble and learned Lord.

Amendment 30 withdrawn.

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[Lord Forsyth of Drumlean]

My noble and learned friend’s only argument has been, once again, to rest on the Smith commission. He keeps saying that it had the support of all five political parties. I am not aware of the members of the Conservative Party being consulted at all on the Smith commission proposals; nor am I aware of any discussion on those matters in the other place or in this place. What happened was that people nominated by the political parties got together and produced a report. It really is quite misleading to keep saying that this was endorsed by all the political parties. That may have been true of the Liberal Democrats or other parties but it certainly was not true of the Conservative Party. Furthermore, this was all done at an enormous pace—it was all agreed in eight weeks. As we have heard from the noble and learned Lord, Lord Hope, the noble Lord, Lord Smith, himself has not sought to argue that he has endorsed this Bill in terms of the provisions of the Smith commission.

[Lord Hope of Craighead]

The noble Lord said that he is not to be taken as approving the precise terms of the Bill as a lawyer. He is not a lawyer. He emphasised that he is a layman, and he speaks as a layman when he endorses what is in the Bill. If it were possible to find ways in which the Bill could be improved in relation to constitutional principles or whatever else, he would be in favour of that because that is not his field and he is aware that there could be room for improvement in those areas. What he emphasised was, “Don’t confuse me with a lawyer. I am a layman and I give it support as a layman”. However, if there were respectable arguments from lawyers, he would give way to them and improve the Bill if that was a way of making better progress.

[Lord Forsyth of Drumlean]

I am most grateful to the noble and learned Lord for making that clarification. It is important that effective checks are in place. This whole process has been carried out swiftly and without much in the way of discussion either among the membership of the political parties or indeed within the House of Commons. Although four days were allocated to Committee, many of these issues were not considered because of the process by which amendments are dealt with. However, I can sense that folk do not wish me to detain the Committee on this matter and there will be further opportunities to come back to it, so I beg leave to withdraw the amendment.

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Tabled by

[Lord Hope of Craighead]

41: Clause 12, page 14, line 6, at end insert—
“( ) In paragraph 1(2)(f) of Schedule 4 (protection of Scotland Act 1998 from modification), after “Human Rights Act 1998” insert “except the Convention rights set out in Schedule 1 to that Act”.”

[Lord Hope of Craighead]

My Lords, I do not propose to develop this amendment. Without going into the reasons for it, it arose in relation to the Sewel convention. I would have developed the point more fully if there had been time to explain why, but, in view of the lateness of the hour and the fact that we have already discussed the particular aspects of the Sewel convention that we sought to explain more fully, I think the best thing for me to do is not to move the amendment.

Amendment 41 not moved.