Scotland Bill

Lord Keen of Elie Excerpts

Monday 21st March 2016 Lords Chamber

Moved by

[Lord Keen of Elie]

3: Clause 3, page 2, line 21, at end insert—
“The subject-matter of section 43(1AA) of the Representation of the People Act 1983.”

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, before turning to the government amendments in this group, I should like to address some points that noble Lords have previously expressed in relation to Clause 2. This clause is to implement the provision in the Smith commission agreement that the Sewel convention should be put on a statutory footing. The Smith commission agreement did not suggest any change in the effect of the convention. The clause recognises that this Parliament will not normally legislate on a devolved matter without the consent of the Scottish Parliament, but the convention recognises that the decision whether to legislate is for this Parliament to take.

I have noted the points made by noble Lords who have made clear in previous discussion of this clause their view that the word “normally” is not a word sufficiently precise for a statutory restriction. Of course, we are not seeking, and nor are we able, to impose a restriction on parliamentary sovereignty, and it has also been made clear in discussion that the word is suitable for indicating how a discretion will be exercised. This clause is clearly intended to indicate that the discretion of Parliament to legislate for devolved matters will continue exactly as before and that it is not intended to subject that discretion to judicial control. I would add that the words “it is recognised” that appear in Clause 2 also reflect the continued sovereignty of the United Kingdom Parliament and that it is for Parliament to determine when a circumstance may be considered not normal. This is not a matter that the courts could meaningfully engage with.

I turn to a number of technical amendments that we have tabled to Clauses 3 and 5 of the Bill. Noble Lords will recall that we gave notice on Report that we would table these amendments, which are necessary to ensure that the clauses in the Bill relating to elections work as intended. 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 that Scottish parliamentary ordinary general elections may not be held on the same day as a UK parliamentary general election, a European parliamentary general election or ordinary local government elections in Scotland. We have tabled amendments to Clause 3 to improve the drafting of the part of the reservation relating to the timing of ordinary local government elections in Scotland. These amendments do not change what is reserved, but rather clarify the drafting to ensure that the reservation achieves the intended outcome—that an ordinary local government election in Scotland may not be held on the same day as ordinary general elections for the Scottish Parliament.

In addition, we have tabled amendments to Clause 5 of the Bill to improve the drafting of the new provisions to be inserted into Section 43 of the Representation of the People Act 1983. These provisions relate to the reservation of the timing of ordinary local government elections where they clash with the date of an ordinary general election to the Scottish Parliament, and provide a mechanism for the Scottish Ministers to change the date of the local government elections where such a clash occurs. The amendments improve and clarify the drafting of the provisions providing a mechanism for setting an alternative date.

Amendments 3 to 9 are technical amendments, which will ensure that there is clarity in the clauses in the Bill relating to elections and that they operate as intended. I beg to move.

[Lord McCluskey (CB)]

My Lords, I accept that Amendments 1 and 2 could not be moved, and will not be moved by me or by the noble and learned Lord, Lord Wallace of Tankerness. However, in the light of the Minister’s statement, I make a brief comment. It sounds to me very like a Pepper v Hart type of statement, designed to guide a court, when a court sits down to decide on an ambiguity in the interpretation or application of the provision. I am not at all sure that it will work, but it is no doubt the best that the Minister could come up with, even with the assistance from behind him of the noble and learned Lord, Lord Mackay of Clashfern, who is unfortunately unable to be here today. It does not solve the problem, but it is better than nothing.

The very fact of making the statement appears to be to concede the point that we were all making, that the provision in the clause is just a shibboleth, because Pepper and Hart statements have no locus at all unless in a court of law when a statement is invoked to assist the interpretation. However clear the statement is, it is not binding on the court, which has a duty to apply the words of the statute to determine what it means. However, I welcome it, while regretting that the Government did not pick up on the amendment proposed by the noble and learned Lord, Lord Wallace of Tankerness, which would have solved the problem within the statute itself, and we would not have needed this. However, in the light of the Government’s attitude, we have to leave it there.

--- Later in debate ---

[Lord Campbell of Pittenweem (LD)]

My Lords, it may be stretching the tolerance of the House for a fifth Scottish lawyer to join in this discussion, so I will confine myself to two issues. The first is Pepper v Hart. It is well worth understanding just how limited the application of that doctrine may be. If the noble and learned Lord the Advocate-General is looking for an illustration of the approach recently taken by the Court of Session, he will find it in the case of British Petroleum v Edinburgh and Glasgow licensing boards.

Secondly, this is about the most political piece of legislation that one could possibly imagine. Within its terms is the opportunity for great political disagreement. It seems to me that the way in which the Government are now proceeding will in some respects justify that disagreement by leaving open an important porthole for those who wish to challenge the will of this House and indeed of the other place.

[Lord Keen of Elie]

My Lords, I am obliged for all the contributions from your Lordships in respect of this matter. I will not seek to repeat the arguments that were rehearsed so fully in Committee and on Report but I wish to make some observations.

The Smith agreement was explicit in its reference to putting the Sewel convention on a statutory footing, and that is what has been done—essentially as the noble Lord, Lord Stephen, noted—in a declaratory sense.

Mention has been made repeatedly of the case of Pepper v Hart. I am not going to go there in any detail, but the starting point for that case is ambiguity. A number of noble Lords indicated that there was no ambiguity. I am inclined to agree with that—but not necessarily for the same reasons. However, it appears to me that if there were room for ambiguity then of course Pepper v Hart might come into consideration.

Reference was made to the LCM—the legislative consent Motion—process and the suggestion that it should be incorporated into the clause. With respect, the LCM is a process of the Scottish Parliament, not of this Parliament—it is what the Scottish Parliament does in response to us applying the Sewel convention—and therefore it would not be appropriate to bring it into Clause 2.

There is then the question of what is or is not a devolved matter. This point—and indeed the difference that I have with the noble and learned Lord, Lord Wallace—is perhaps highlighted by the amendment that he originally proposed. The last part of that amendment says:

“For the purposes of subsection (8), the words ‘devolved matters’ means any matter not reserved to the United Kingdom Parliament under this Act”.

With respect, the Scotland Act 1998 is a great deal more sophisticated than saying that all matters listed in Schedule 5, which are reserved, are the only matters not requiring the consent of the Scottish Parliament. It entirely ignores the fact that, for example, it is not within the competence of the Scottish Parliament to modify any of the protected enactments listed in Part 1 of Schedule 4 to the Scotland Act.

[Lord Wallace of Tankerness]

Rather than read out his brief, will the noble and learned Lord acknowledge that I said that parts of Schedule 4 also exclude matters from being within the legislative competence of the Scottish Parliament? If I have not, with my own resources, got the amendment right, can the noble and learned Lord, with all the great resources that he has in his office—I know the expertise that he has there—say what definition he would give of “devolved matters”?

[Lord Keen of Elie]

There is no strict requirement to go into the definition of “devolved matters” at this stage, but it is perfectly clear from the amendment that the noble and learned Lord originally intimated that he contemplated it listing only the matters in Schedule 5 to the Act. I appreciate that in making observations in this House he qualified that statement, but the point is that the question of what is reserved goes well beyond Schedule 5 and includes all those protected enactments in Part 1 of Schedule 4.

The point that I was going to come to is this: one of the protected enactments is the Human Rights Act. This Government were elected upon a manifesto to address the Human Rights Act and to amend its terms by way of a Bill of Rights. That matter will be addressed in due course, but this is not the time or the place to consider what the implications of that may or may not be in the context of all the devolved Administrations in the United Kingdom. I would not consider it appropriate to go there.

[Lord Wallace of Tankerness]

I am not asking the Minister to tell us what is going to be in it but, if a proposed new British Bill of Rights confers new responsibilities on Scottish Ministers, does he believe that is a matter to which Devolution Guidance Note 10 would apply and that the United Kingdom Government would respect it as such and expect a legislative consent Motion in the Scottish Parliament? He can clear this matter up if he is prepared to say yes to that. If he is not, we can only suspect the worst.

[Lord Keen of Elie]

There is no reason to suspect the worst. What we have to do is await the relevant Bill of Rights. Then, when we have considered its terms, we shall see whether it does or does not intrude upon matters covered by DGN10. If it does, then DGN10 will be addressed, as it always has been. There is a clear and consistent record of the United Kingdom Parliament and this Government proceeding in accordance with DGN10 in the context of devolved issues. I do not anticipate, and have no reason to anticipate, that that will change in the future. However, I am not going to comment on a Bill that is not before this House and the terms of which have not yet been finalised.

In these circumstances it appears to us that Clause 2 is sufficient for the purpose of expressing, essentially, a declarator of the Sewel convention in accordance with the Smith commission agreement.

[Lord Purvis of Tweed (LD)]

Before the noble and learned Lord sits down, although that was perhaps his final point from the Dispatch Box on this, he said in response to my noble friend Lord Stephen that this is now stating in a declaratory way that the Sewel convention exists. However, it is worth reminding the House that paragraph 22 of the Smith commission report said:

“The Sewel Convention will be put on a statutory footing”,

not that it will be declaratory that it exists.