Scotland Bill

Debate between Lord Hope of Craighead and Lord Cormack

Monday 21st March 2016 Lords Chamber

[Lord Cormack (Con)]

My Lords, both noble and learned Lords have made powerful points. I do not wish to make anything other than a very brief intervention, but I have amendments, strongly supported both in Committee and on Report, concerning the word “normally”. I am extremely sorry that the Minister has not really met that point. It has been made with great eloquence by noble Lords learned in the law, and it was made by those of us throughout the United Kingdom who share the concern of the two noble and learned Lords who have just spoken. I am sorry that their amendments have not been deemed admissible. Of course they have done entirely properly in not seeking to move them, but this is an unsatisfactory Bill and we are in an unsatisfactory situation.

I put it on record that I remain extremely concerned about the use of this very loose word “normally”. I believe as a layman that it is clearly something that could be justiciable. I know not what will happen, but I fear that we are not putting on the statute book something that recognises what noble Lords in all parts of this House have recognised. In my opinion this is a flaw in the Bill, and it has been demonstrated as such by many people. I am sorry that the Minister has not felt able to move on this issue.

[Lord Hope of Craighead (CB)]

My Lords, when I spoke on this matter on Report, having tabled an amendment which dealt with the issue in slightly different terms from those proposed by Amendments 1 and 2 on the Marshalled List, I said that I would come back to the issue at Third Reading. But, on consideration of the various rules and practices, I decided not to renew my amendment in recognition of the fact that it would not be proper to bring it forward in those terms.

I am grateful to the Minister for the statement he has made, which goes a little way to addressing the problem. But I feel very strongly that this is an example of a missed opportunity, which could have been taken to clarify exactly what the Sewel convention is, to remove some of the problems to which the noble and learned Lord, Lord Wallace of Tankerness, referred, and to deal with the complications raised by the use of the word “normally”.

As I stressed on Report, my concern was to preserve the sovereignty of Parliament, which the Minister mentioned in his brief address. The problem with the method he has chosen is that it opens up the possibility of a challenge to the sovereignty of Parliament, which is the greatest danger of all, because it puts at risk the enforceability of legislation where the spectre, if I should put it this way, of the Sewel convention may be hanging over it. I understand that the Minister has gone as far as he believes he can—but, like others, I regret that he was not able to go further.

Scotland Bill

Debate between Lord Hope of Craighead and Lord Cormack

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.