Scotland Bill

Debate between Lord Hope of Craighead and Lord Keen of Elie

Wednesday 24th February 2016 Lords Chamber

[Lord Keen of Elie]

As I indicated, we are dealing with an entirely hypothetical situation. Should that situation ever materialise, the terms of the referendum to be held would be determined according to the circumstances in place at that time. It would not be appropriate to anticipate the circumstances of such a referendum, which might be many millennia in the future. It is therefore left open in these terms.

I turn to the amendments moved by my noble friend Lord Forsyth of Drumlean. The points he has raised in them are those he made in Committee in December, and I assure him that we have continued to reflect carefully on the points made at that time. My noble friend has focused on whether Clause 1 impinges on the sovereignty of this Parliament. I thank him for his consideration of this point but must respectfully disagree that there is any question that it does. Constitutionally, the United Kingdom Parliament cannot bind a successor Parliament: the sovereignty of Parliament remains. The purpose of paragraph 21 of the Smith commission agreement, and of Clause 1 in the Bill, is not to change the constitutional position but to reflect in legislation the political understanding that already exists. The clause thus delivers the Smith commission agreement while respecting the United Kingdom’s constitutional arrangements.

Amendment 1 would reinsert the words “recognised as”, which were removed from Clause 1 by government amendment on Report in the other place. The Government have been quite clear throughout that there has never been any question that the Scottish Parliament and Scottish Government are anything other than permanent. However, we have listened to feedback on the clause, and it was felt appropriate to amend the clause to take account of the observations made. The criticism levelled at the clause was that the provision was weak. The Government have strengthened the provision to demonstrate the commitment of the United Kingdom Parliament and Government to the Scottish Parliament and to the Scottish Government.

Amendment 4, tabled by my noble friend, provides that the abolition of the Scottish Parliament and Government would have to be agreed by United Kingdom-wide referendum. The referendum provision in Clause 1 rightly reflects the importance of the people of Scotland in determining the existence of the Scottish Parliament. It is important to be clear that there are no circumstances under which the abolition of the Scottish Parliament and Scottish Government is envisaged. However, in responding to the points raised by my noble friend, I state that, in that entirely hypothetical circumstance, this Parliament would of course play its full and proper role, as I mentioned previously.

Amendment 5 would state in the Bill that Clause 1 does not limit the sovereignty of the United Kingdom Parliament. Again, I hope I have already sufficiently addressed that point. Clearly, the sovereignty of this Parliament remains, and is unhindered by the provisions. I therefore urge noble Lords not to press their amendments.

[Lord Hope of Craighead]

Before the Minister sits down, I wonder whether he can help me on one point. I made it clear in Committee that the amendments I proposed to this part of the Bill were based on recommendations of the Scottish Government, which were made plain in June last year. The wording of the amendments is not my creation; it comes from Edinburgh, from people who were studying the Bill and trying as best they could to clarify the points they thought needed clarification.

The noble and learned Lord, Lord McCluskey, has drawn attention yet again to the obscurity of the phrase, “the people of Scotland”. One of the virtues—it may be small, but it is there—of my amendment is that it makes clear that it is a referendum of the people in Scotland. I simply cannot understand why the Minister is not prepared to make some concession to clarify that matter. To go back to what the noble Lord, Lord Empey, said, I should have thought that the Government would take on board collaboration between the two Governments to try to improve the Bill and achieve as much clarity as possible. I really am mystified why the Minister is so stubborn and will not accept the need for some further clarity.

[Lord Keen of Elie]

I am obliged to the noble and learned Lord, Lord Hope of Craighead. It determines clearly and unambiguously that there can be no question of any unseen, secret understanding between the United Kingdom Government and the Scottish Government when his proposals in the amendments have their source in Scotland, with the Scottish Government. That perhaps puts that in its place.

On the question of the referendum, I reiterate the point that I made earlier: this is a wholly hypothetical situation.

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[Lord Keen of Elie]

I note the observations of the noble and learned Lord, Lord Wallace, but I can observe only that it is not appropriate to layer legislation with unnecessary detail and that if the matter is to be regarded as implicit in the present clause, it would be inappropriate to add a further clause. I cannot elaborate upon the point at this stage.

The concluded position of the Government is that Clause 2 as drafted delivers what was required by the Smith commission agreement by placing the Sewel convention, as it is properly understood, on a statutory footing. It is in these circumstances that I invite your Lordships to withdraw or not move their amendments.

[Lord Hope of Craighead]

My Lords, I am extremely grateful to all those noble and learned and noble Lords who have supported my Amendment 7. I am also extremely grateful to the noble and learned Lords, Lord Mackay of Clashfern and Lord McCluskey, for the points they made in support of Amendment 12, which in a way hangs together with it, because they have identified a crucial issue before us.

With all due respect to the Minister, he cannot get away with simply declaring that the “issue” is not justiciable. He has chosen the word “issue” as meaning something different, but the same point arises. The noble Lord, Lord Lester of Herne Hill, identified the point precisely: there is a crucial difference between the position of Parliament legislating—and Ministers declaring what words mean when they legislate—and the position of the courts. The courts will assert their right to interpret legislation according to the meaning of the words as they judge them to be. As the noble and learned Lord, Lord McCluskey, has said, the courts cannot close their door to arguments. People will bring arguments before the court, and when an argument is before the court it has to decide on it. The Minister simply cannot get away with the idea that we can be assured that this issue will never be before the courts and require determination.

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[Lord Keen of Elie]

My Lords, I shall first address Amendments 15 to 21. Under the Bill, and in line with the Smith commission agreement, the timing of Scottish parliamentary elections is devolved to the Scottish Parliament, subject to the provision in the Bill that Scottish parliamentary ordinary general elections may not be held on the same day as UK parliamentary general elections, European parliamentary general elections or local government elections in Scotland.

Following a request from the Presiding Officer of the Scottish Parliament, the UK Government agreed to bring forward an order under Section 30 of the Scotland Act, rather than use the Bill, to give the current Scottish Parliament the power to determine the length of the next Scottish Parliament following the poll in 2016. The order devolved to the Scottish Parliament power to legislate on the date of the first Scottish parliamentary ordinary general election after the 2016 poll. Following approval in the Westminster Parliament and the Scottish Parliament, the order was made by Her Majesty in Council on 8 October and came into force the following day. The Scottish Elections (Dates) Bill, currently before the Scottish Parliament, provides for the Scottish Parliament ordinary general election scheduled for 7 May 2020 to be moved to 6 May 2021.

We have tabled a number of technical amendments to make changes to a number of clauses in the Bill that are required as a result of the Section 30 order. Essentially, these amendments revoke the Section 30 order and remove provisions from the Scotland Act inserted by the order, which will be unnecessary as they overlap with provision made by the Bill. The area of legislative competence being devolved to the Scottish Parliament by the Bill is such that the Scottish Elections (Dates) Bill will still be within the legislative competence of the Scottish Parliament following the revocation of the Section 30 order. Additionally, we have tabled an amendment to Clause 5(2) to improve the drafting of this provision in order to ensure that it operates as intended.

We have also tabled an amendment that removes a reference in Clause 10 to a provision of the Scottish Parliament (Elections etc.) Order 2010 which is now unnecessary as this instrument has been revoked by the Scottish Parliament (Elections etc.) Order 2015 that was made by Scottish Ministers and which came into force in December 2015.

In addition, I wish to give notice that the Government consider that drafting improvements are required to the reservation of the timing of ordinary local government elections in Scotland where the poll would otherwise be held on the same day as an ordinary general election for the Scottish Parliament, and to some provisions in Clause 5 relating to this reservation, to provide clarification and ensure that the drafting of these provisions operates as intended. As a result, the Government intend to table amendments to clarify and improve the drafting of these provisions at Third Reading.

Amendments 15 to 21 are technical amendments which will ensure that the clauses in the Bill relating to elections operate as intended.

I now to turn to Clause 11, which contains the supermajority requirements and acknowledge the input and assistance of the noble and learned Lord, Lord Hope of Craighead, on this matter. I thank him for his willingness to discuss this matter and to propose improvements to the provisions, which are reflected in government Amendments 23 to 26.

Clause 11 requires that the Scottish Parliament must pass certain legislation by a two-thirds majority. Government Amendments 23 to 26 to this clause will enable a Bill in the Scottish Parliament to pass to Royal Assent if the Presiding Officer of the Scottish Parliament decides that a simple majority is required, the Bill is passed with a simple majority but is referred to the Supreme Court, and the Supreme Court agrees that only a simple majority was required. The measure currently provides that in those circumstances, the Bill must be reconsidered by the Scottish Parliament before it can be passed for Royal Assent. We have taken account of the observations of the noble and learned Lord, Lord Hope, in order to make a little more sense —if I can put it that way—of the provisions of Clause 11 on the application of the supermajority. I beg to move.

[Lord Hope of Craighead]

My Lords, I think I should thank the noble and learned Lord the Advocate-General for Scotland for his kind words. The amendments improve the intelligibility of these provisions. It is important that the system work as smoothly as possible, so I am extremely grateful.

Scotland Bill

Debate between Lord Hope of Craighead and Lord Keen of Elie

Tuesday 8th December 2015 Lords Chamber

[Lord Keen of Elie]

Clearly it is not, because, notwithstanding the outcome of any such referendum, this place might decide not to legislate in accordance with the outcome of the referendum. One cannot use these arguments to undermine the ultimate sovereignty and supremacy of Parliament.

[Lord Hope of Craighead]

I shall take up the point that the Minister made about Clause 1 as a whole—I think he was referring to the whole clause as it now stands, with all three new subsections—that it was simply a political statement. New Section 63A(3) is not just a political statement; it lays down a condition. If that is the right reading of the new subsection, does the Minister not recognise that it might be better to address some of the possible imperfections in new Section 63A(3) as it stands? The noble and learned Lord, Lord Wallace, among others, made the point that the phrase “the people of Scotland” is a little ambiguous, and it might be better to say “a referendum held in Scotland” to tell you where the referendum is going to be.

It is quite commonplace in Committee debates for Ministers to say, “We’ll take this away and look at it and perhaps reconsider whether the wording we have in the Bill is the best that could be used”. I wonder whether the Minister would be prepared at least to look at proposed new paragraph (b) in Amendment 6; leaving aside the mention of the Scottish Parliament in its proposed new paragraph (a), it suggests a rewording of new Section 63A(3) to see if it is the best wording that could be adopted. I absolutely accept that it deals with a hypothetical situation but, if one is laying down a condition, would it not be better to use the best possible terms in doing so?

[Lord Keen of Elie]

I am obliged to the noble and learned Lord for reminding me of the observations made by the noble and learned Lord, Lord Wallace, in that context. At this time the Government consider that we have achieved the best possible wording for the purposes of new Section 63A(3) in Clause 1. I compliment the noble Lord, Lord Forsyth, on his eyesight and his ability to read my notes at such a considerable distance. However, the position of the Government remains that we are satisfied that a relatively open provision in this context with regard to the people of Scotland voting in a referendum is the appropriate way forward.

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[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.

[Lord Hope of Craighead]

Perhaps I may return to new subsection (3), which relates to a separate point from the one that the Minister has been emphasising concerning the sovereignty of Parliament and so on. If we look ahead to the day some time next year when this Bill comes back on Report, it is quite likely that there will be an amendment seeking to reword new subsection (3), perhaps along the lines that have already been discussed. I respectfully suggest to the Minister that he would carry a little more credibility if he were to depart just a fraction from the briefing that he is reading from and were prepared to say that he would look again at this. He does not have to commit himself to any rewording, but sometimes when we have these debates in Committee it softens the atmosphere a lot if one is prepared to say simply, “Well, some interesting points have been made. We’ll have another look and perhaps come back with something on Report, or perhaps not”. It would ease the atmosphere a little on this point and avoid repetitive interruptions.

[Lord Keen of Elie]

I notice what the noble and learned Lord says with regard to new subsection (3) in Clause 1.

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[Lord Keen of Elie]

I apologise to my noble friend Lord Forsyth. I must confess that I was unclear who was intervening on whom. I add to the point made by my noble and learned friend Lord Mackay of Clashfern. As I understand the point he was making—it was one that I had endeavoured to make before, but obviously had not made clearly—it is simply that Clause 1 is amending and introducing Section 28(8) of the Scotland Act 1998. It is necessary to read that in conjunction with Section 28(7) of the Scotland Act 1998, which refers to the ability of this Parliament to legislate in respect of Scotland on all matters. That is a matter to which the noble Lord, Lord McAvoy, alluded earlier as well. That is why the issue of sovereignty—the supremacy of this Parliament—is already contained in the relevant section of the Scotland Act, as it will be amended by this clause of the Bill.

[Lord Hope of Craighead]

I am grateful to the noble and learned Lord for giving way, but Clause 2 amends Section 28. We are still talking about Clause 1, which amends a different part of the Scotland Act, so there is a separation there. However, I very much endorse what the noble and learned Lord, Lord Mackay of Clashfern, said—namely, that any reader of the Scotland Act knows perfectly well that you have to look at Section 28 to understand the competence of the Parliament and the relationship between the two Parliaments. The point is simply that Clause 1 does not deal with Section 28.

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[Lord Keen of Elie]

The point is that in terms of Section 28(7) we in this Parliament could, on the face of it, intervene in such a matter. That was the whole point of the convention: to make it clear that normally we would not do so. I may have misunderstood the intervention of my noble friend Lord Forsyth but, with respect, it seems to me that that is precisely why the Sewel convention was expressed in the terms in which we find it—so that if educational attainment in Scotland was failing we would not be faced with the criticism that the United Kingdom Parliament had done nothing about it because conventionally we would not normally intervene in a devolved matter, but we retain sovereignty and we have the right to do so. That is why the Sewel convention is expressed in the manner in which it is. The intention is not that Clause 2 should give rise to any justiciable issue. It is a political expression of the convention in statutory form. That is why the term “normally” appears within Clause 2. It makes it clear that this is not a justiciable issue. It is quite clear that in terms of the Smith commission agreement the Sewel convention will be expressed in statutory terms. It is there, but whether this Parliament would consider it appropriate to legislate for Scotland in a devolved area, which it can do pursuant to Section 28(7) of the Scotland Act 1998, is a political issue. It would not be for a court to decide what “normally” meant in that context. It would be a political issue. If it could be litigated in court and made justiciable, the question would be: what possible remedy could the court provide other than a political one? That is why it takes us back to the simple proposition that Clause 2, as set out, would not give rise to a justiciable issue. I give way to the noble and learned Lord, Lord Hope.

[Lord Hope of Craighead]

The problem is that paragraph 22 of the Smith commission report states that the Sewel convention will be put on a statutory footing. Rather like the noble and learned Lord, Lord McCluskey, I wondered what “statutory footing” meant, and I went to various sources to find out. A translation of it is fairly obvious: it means being put on a firm footing by being written into statute. That raises the question of what the effect is of writing something into statute.

The problem is that, whatever the Minister may say, someone seeing it written into statute is going to say, “Here is something which I can use to challenge a piece of legislation that is apparently being passed without the Sewel convention being observed according to its current usage”. With great respect, it does not do for a Minister to say to the court, “This is just a political matter”, because the judges will say, “It’s a matter for us”. The judge may look at the normal rules to see what the legislation was designed to do, and with a bit of research they will find that it was designed to give effect to the Sewel convention to put it on a statutory footing. The judge will then say, “Well, it’s a matter for me to construe what this means”. I am not at all impressed by the Minister saying that it is all a political matter, because it is now in the hands of the court to adjudicate upon.

The Minister asks, “What remedy does that give rise to?”. It creates uncertainty about the effectiveness of legislation. One of the things that we have to be very careful about is that the legislative process is well founded and not open to challenges, except those that are already subject to legislation in the Scotland Act. So, with great respect, it is necessary to warn the Minister that he cannot get away with assuming that the judges will accept that it is simply a political issue; it is not that at all, once it is written into statute.

[Lord Keen of Elie]

The noble and learned Lord acknowledges that there would be no remedy other than a political remedy in that context, or appears to do so. He shakes his head; nevertheless, there is no remedy except a political remedy. This underlines the importance of the words “recognised as” and “normally” where they appear in Clause 2.

However, the noble and learned Lord, Lord McCluskey, spoke to his Amendment 19, a proposal that it should be expressly stated that the clause is not justiciable and does not give rise to justiciable rights. That is a matter that I would be pleased to discuss with him, albeit that the Government’s position at present is that there is no requirement to expressly state that in the context of a clause that, on the face of it, is implicitly not justiciable. That would be my position on Amendment 19.

Scotland Bill

Debate between Lord Hope of Craighead and Lord Keen of Elie

Tuesday 8th December 2015 Lords Chamber

[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.