United Kingdom: Union

Lord Keen of Elie Excerpts

Thursday 14th March 2024 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, I thank my noble friend Lord McInnes of Kilwinning for securing this debate and welcome my noble friend Lord Cameron of Lochiel to the Front Bench for his maiden speech. I express my regard for the late Lord McAvoy, who was always the most congenial and approachable of colleagues in this House.

If we want a stable and sustainable union then we require a stable and sustainable devolved settlement. It was helpful to hear from so many noble Lords of Northern Ireland, because their experience of devolution goes much deeper than that of those of us from Scotland and Wales.

It is worth remembering that Northern Ireland had a devolved Parliament for 50 years, up until 1972, and managed during that time without either a territorial office or a Secretary of State for Northern Ireland. During that period, the sovereign Parliament at Westminster exercised a self-denying ordinance: although a sovereign Parliament, it did not seek to interfere in the domestic affairs of Northern Ireland, although, from time to time, it was sorely tempted. And that reflects other developments at the time, one of which was the Statute of Westminster in 1931, where this sovereign Parliament declared that it would no longer legislate for the Dominions. Just a few years later, in the Judicial Committee of the House of Lords, it was argued that the sovereign Parliament could and would continue to legislate for the Dominions. The then Lord Chancellor responded, somewhat dryly, “That might reflect the legal theory of sovereignty, but it does not reflect political reality”. Today’s devolved settlements must reflect political reality.

In 2016, we passed Section 1 of the Scotland Act that stated that the Scottish Parliament and the Scottish Government would be permanent features of our constitutional settlement. The theory of sovereignty tells us that this Parliament could depart from that, but we know political reality is different. That brings me on to the condition of the present devolved settlement and a point raised by the noble Lord, Lord Bew, about the impact of Brexit. Nobody designed the devolved settlement for Scotland or Wales with Brexit in mind. Nobody anticipated the reshoring of vast legislative rights and obligations in both devolved and reserved areas. We find it very difficult to cope with those events, and the consequence was that what we refer to as the Sewel convention became something flexible. We began to see primary legislation passing without legislative consent Motions from either Scotland or Wales. We saw secondary legislation increasing, which is not subject to the Sewel convention, and we saw the use of Henry VIII clauses that again are not subject to the convention. All this undermined people’s belief in the sustainability and stability of the devolved settlement.

To address that, I suggest that one step we should take is the abolition of the Sewel convention and the substitution of it with a very clear and unambiguous provision that states that this Parliament will not pass legislation in devolved areas without the express consent of the devolved legislatures. That would give us stability, sustainability and a safer union.