Scotland Bill

Lord Lang of Monkton Excerpts

Tuesday 24th November 2015 Lords Chamber

[Lord Lang of Monkton (Con)]

My Lords, it is a particular pleasure to follow the noble Earl, Lord Kinnoull, and to echo his tribute to the noble Lord, Lord Campbell of Pittenweem, who gave us a most interesting and elegant speech and whose presence in this House will enhance it considerably, not least because of his great distinction in the field of defence—knowledge of which will be quite welcome in the weeks and months ahead.

We must pass the Bill. That is not in doubt. Promises were made, agreement was reached between the parties, and approve it in due course we certainly must. But it must also be pointed out that, for the leaders of all the major parties in Westminster to agree in advance to pass into law whatever the Smith commission came up with—to do it in full and at once—is indeed, mercifully, a unique constitutional experience. No constitution committee could fail to protest at such an abandonment of due constitutional process, or to identify, as our report did, its dangers and possible shortcomings. Nor can the House fail in its duty as a revising Chamber to scrutinise the Bill thoroughly.

I make no criticism at all of the Smith commission or its chairman. Indeed, I congratulate the noble Lord, Lord Smith of Kelvin, on reaching an orderly conclusion. He presided with great skill. He showed perceptive and sensitive guidance that contributed much to the process. His comments in the foreword of the agreement are indeed valuable, in particular his reference to further devolution in Scotland and to improvement in intergovernmental relations—a subject on which the Constitution Committee has already reported, to which we await the Government’s response. I also pay tribute to the productive contribution to the Smith commission of my noble friend Lady Goldie, whom I am sure helped to contain some of the wilder aims of others.

Nor do I blame for the problems we now face my noble friend the Minister, who has the misfortune to be the last in line in the legislative process, with a difficult job to do and a lot of troubles piled up. But the bigger picture is not just about this Bill. We now have the third Scotland Bill in just 17 years—a box set of enduring settlements, each one seeking to regain lost ground. We all saw how the nationalists signed up to the agreement and then resiled from it the very next day, trying to use it as a stepping-stone. To them, it was simply ground gained.

The Bill has one really important aim: it will at last force the Scottish Government to face up to the responsibility for raising much of the revenue in Scotland and thus be held accountable to their electorate. That alone is a good reason for the Bill passing in due course, but that does not excuse it from scrutiny. I trust that your Lordships will indulge me for a little longer than the advisory speaking time so that I can draw attention to some of the most significant concerns our Constitution Committee has expressed. In the interests of time, I will leave to others the vital issue surrounding the fiscal framework. I will not endeavour to explain the double jeopardy point—what was it called?

[A noble Lord]

Detriment.

[Lord Lang of Monkton]

The double detriment point. To do so would be to the detriment of my speech.

A similar problem attaches to the shared powers over welfare, whereby the House cannot assess how the vital intergovernmental relations will operate without the revised memorandum of understanding and joint ministerial committee structure now still being negotiated. Our report has therefore suggested that, as with the Economic Affairs Committee’s concern about the lack of a fiscal framework, a delay in the progress of the Bill may be necessary to allow for proper scrutiny of the welfare provisions.

I agree with my noble friend the Minister about the desirability of calming things down, but I hope that in his winding-up speech he can reassure me and the Constitution Committee on a number of points. Clause 1, on enshrining the permanence of the Scottish Parliament, seems simple, straightforward and declaratory, but it could have profound constitutional significance. The Government now appear to seek to compromise the United Kingdom Parliament’s competence with regard to the devolved institutions, first by stating their permanence in statute and secondly by creating conditions involving a referendum that have to be met before the UK Parliament could move to abolish them.

It is of course completely implausible to suggest that such a course would ever be contemplated, but the concept of parliamentary sovereignty is a fundamental principle of the United Kingdom’s constitution and it has long been understood that no Government can bind their successors. In seeking to limit Parliament’s powers in this manner, the Government are introducing confusion and uncertainty about the nature of parliamentary sovereignty where once there was none.

Clause 2 compounds this concern. By giving the Sewel convention a statutory basis, the Bill opens the door to judicial intervention on the right of Parliament to legislate. It risks creating a route through which the courts might be drawn—inappropriately but perhaps inescapably—into an area hitherto within the jurisdiction of Parliament alone: its competence to make law. That is serious enough, but it seems to me that the original meaning and purpose of that convention may have already mutated, with no debate or authority from Parliament, into something much more far-reaching, which could breach the whole principle of devolution: that power devolved is power retained. Even the word “normally” in the clause raises clouds of uncertainty and the prospect of judicial involvement.

Our committee believes that it is now vital that the Government clarify the purpose and reach of the Sewel convention as stated in Clause 2. Can my noble friend confirm that the guidance note GGN2, issued in 2005, to which the noble and learned Lord, Lord Wallace of Tankerness, referred, did not change the purpose of the convention in any material way? In addition, the combined impact of Clauses 1 and 2 could be dangerous and no thought seems to have been given to this. These two clauses might not be just declaratory and, taken together, could have far-reaching consequences. Will my noble friend also confirm that in the final analysis, no devolved Parliament or Assembly is entitled to veto legislation passed by the sovereign United Kingdom Parliament?

[Lord Wallace of Tankerness]

The noble Lord is raising an important point. Does he agree that, as we now have a system under Standing Orders whereby legislation passed by both Houses can be vetoed by a subset of the House of Commons—namely, English MPs—the Government have already sold the pass on the sovereignty of Parliament?

[Lord Lang of Monkton]

The noble and learned Lord identifies precisely the kind of confusion and obfuscation which endangers the sovereign nature of this United Kingdom Parliament. It is a very important area and I hope we are able to pursue it further.

The Bill also has significant implications for England. Considerably fewer issues will now be reserved, and the West Lothian question will consequently intensify. By increasing the scope of matters devolved to the Scottish Parliament, the number of issues to which the new English votes for English laws procedures will apply will increase. This will add to the complexity of establishing whether new legislation deals solely with devolved matters. I do not believe enough consideration has been given to that, and further confusion will flow from matters that are shared between the two Parliaments.

Our report commented on several other matters of concern, but the recurring theme was that no serious consideration seems to have been given to the implications of the Bill for the union as a whole. We need to articulate a coherent vision for the future shape and structure of the union if the ongoing process of reactive, ad hoc devolution, demand-led and indiscriminately granted, is to be stabilised. No major constitutional measure that does not take account of its implications for the United Kingdom as a whole can possibly claim the right to provide for an enduring settlement. It is that wider challenge of stabilising the union, and rationalising devolution within it, that your Lordships’ Constitution Committee is engaged with in our current inquiry.