Arbitration and Mediation Services (Equality) Bill [HL]

Lord Mackay of Clashfern Excerpts

2nd reading (Hansard): House of Lords
Friday 27th January 2017 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, in this country we are privileged to enjoy extensive freedoms, particularly freedom of religion. However, the freedom of religion must accompany the freedom to change one’s religion. It is extremely important that the kind of oppression that comes from the establishments in religion trying to prevent their followers from changing their religion should not be allowed as a matter of law in this country.

The Bill deals with that in what in my judgment is a very effective way, assuming that it became law. First, looking at the provisions of negotiated settlements, it makes it plain that the real consent of both parties is essential for that agreement to stand. That strikes me as fundamental. If a person wants to change their faith or some of its tenets, whether they are a man or woman, they should be absolutely free to do so without any possible restraint. Any attempt to restrain that is in the nature of oppression, which ought to be outlawed so far as possible. Some of these pressures are very subtle and difficult to eliminate or indeed discover or deal with publicly. However, the test put in the clause dealing with negotiated settlement, that the consent must be genuine, is tested by the criteria that are set out. I think that is extremely effective. It is probably as effective as any provision of law could be to deal with these sometimes subtle pressures, particularly on young people.

My second point is about arbitration, which comes first in the Bill. In a sense, arbitration is part of the machinery of our justice system. It is a very distinct procedure from the ordinary court procedure but, if properly carried out under the provisions of our law, it has the effect of becoming binding, just as a court judgment does. The Arbitration Act makes provision for that. There is a need to deal with the pressures that can come under that as a publicly recognised method of enforcement, or of reaching agreement and then enforcing that agreement. In that connection, therefore, the provisions of our ordinary law that apply to everyone else are applied, and the Bill does that in a very balanced way. I am not saying it could not be subject to amendment, but it strikes me as extremely balanced at the moment for dealing with a problem that has been shown to exist in our country in more than one area of religious establishment.

It is important that this matter should be dealt with sooner rather than later. It is easy to put off, but on the whole the urgency of the situation merits action at an early date.

Family Court

Lord Mackay of Clashfern Excerpts

Monday 9th January 2017 Lords Chamber

[Lord Mackay of Clashfern (Con)]

I should have thought that the principle which precludes the victim in the criminal courts being cross-examined by the alleged abuser would apply equally in the family court. That principle should apply. Will the Minister confirm that cross-examination is intended to be an opportunity to ask questions to ensure that the tribunal has a proper balance on the facts and is not an occasion on which to offer insults to the party being cross-examined?

[Lord Keen of Elie]

I am obliged to my noble and learned friend, who has a great deal more experience in these areas than I would ever hope to achieve. Clearly, the purpose of cross-examination, whether it is to challenge credibility or reliability or a particular account, should be pursued by way of questions. It is not an opportunity to make statements to the court or to give evidence and should never be an opportunity to resort to abuse, whether of a victim, a witness or the court itself.

Scotland Bill

Lord Mackay of Clashfern Excerpts

Wednesday 24th February 2016 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I may be the only person present in the Chamber who was here when Lord Sewel issued these words. Maybe the noble and learned Lord, Lord Mackay of Drumadoon, and the noble Duke, the Duke of Montrose, were there at the same time. As I recall, we were debating these matters late into the night, and at 1 am or 2 am, when we came to Scottish and Welsh matters, there was a blockage. The words that Lord Sewel spoke were a very welcome resolution of a particular problem that had arisen. I recall afterwards that when it was referred to as the Sewel convention we used to rib Lord Sewel that he had unwittingly added his name to something that seemed to have become a great constitutional principle.

I intervene in this debate to refer to the problems in Wales as illustrative of the problems that your Lordships face. We have had three trips to the Supreme Court between the Welsh Assembly and the Wales Office in a very short period of time because we have not had the ability to pass primary legislation until quite recently. Legislative competence is always at our fingertips in Wales. We talk about it all the time. Indeed, the Welsh Labour Government talk about it all the time in holding up the consideration of the current draft Wales Bill. This issue seems to require either a mechanism that resolves the problems or something that is absolutely solid and certain in this particular piece of legislation.

Those who served as my colleagues during the coalition Government in the Wales Office tell me that legislative competence was a weekly discussion and deals were done between the Wales Office and Cardiff in order to solve where the parameters were. Of course we do not have reserve powers devolution in Wales; it is rather different from Scotland. We have been rather envious that Scotland has not so far had to go to the Supreme Court to sort things out in this way. It seems to me, in following my noble friends, that the way it is expressed in the Bill is such that Scottish lawyers will become very wealthy in their trips to the Supreme Court to sort things out. At the moment I am trying to work on a mechanism in Wales that will resolve these difficulties if that cannot be done between Governments in a simple way, not the way that has been arrived at so far. So, go carefully: canny down the brae, as they say, when it comes to consideration of this particular part.

[Lord Mackay of Clashfern (Con)]

My Lords, some time ago I indicated to the noble and learned Lord, Lord McCluskey, that I support his approach to this clause. It is vitally important to consider the question of whether it is intended that the clause, whatever its terms, should be subject to decision by a court of law. The situation so far as Wales is concerned—and I think it would be true for the Scottish Parliament—is that in some cases its powers are subject to judicial scrutiny. The Parliament of the United Kingdom is not of that kind. It has never had its principal functions subject to judicial scrutiny. If a term is put into this Bill, which will then become an Act, that determines when the United Kingdom Parliament can act, that will be a complete innovation. It does not matter what the terms are, however precise and well drafted, I cannot see how that could be excluded unless provision is made in the Bill which states that the decision on this point is to be a matter for the United Kingdom Parliament. This I regard as an extremely serious point which the Government have to decide.

It is not a question of agreeing with the Scottish nationalists. The amendment tabled by the noble and learned Lord, Lord Hope, seems to be in accordance with what they would like to see; that is, the furthest stretch of the convention, which is called the Sewel convention for various reasons, amounting to what is really a complete ban. That is what I think the amendment of the noble and learned Lord, Lord Hope, does, but that does not cut out by itself the idea that a court of law could determine whether the United Kingdom Parliament had acted lawfully in making an Act which could affect Scotland. That is why I strongly support Amendment 12 tabled by the noble and learned Lord, Lord McCluskey. That concept must be put into this clause at some point in order that the matter be not justiciable.

[Lord Forsyth of Drumlean]

Does my noble and learned friend think that Amendment 7, which he says stretches the convention as far it goes, sets out what has actually become the convention now or does he think it has gone beyond that?

[Lord Mackay of Clashfern]

What has become the convention now seems to be government papers. As far as I am concerned, I had not heard of them until this discussion. It is certainly not a convention of the Houses of Parliament in the sense that they are narrated in that context. But I am not so concerned about the precise terms in which this finishes up. What I am very concerned about is that it should not be subject to a judicial decision. The Parliament of the United Kingdom has never been subject, certainly in the present situation, to the courts of law and I think that it would be a tremendous mistake to make provision in a Bill which could only have that effect.

[Lord McCluskey]

Do I understand the noble and learned Lord correctly that, without choosing between them, there are two ways to solve the problem he considers to be so important? One is to do what the noble Lord, Lord Cormack, has suggested—delete the word “normally”—and the other would be to adopt either Amendment 12 or Amendment 13, which provide specifically that the matter shall not be justiciable.

[Lord Mackay of Clashfern]

I do not regard them as alternatives; rather that Amendment 12 tabled by the noble and learned Lord, Lord McCluskey, is absolutely essential. The other form of wording, that it,

“shall not be questioned in any court of law”,

comes from the noble and learned Lord, Lord Wallace of Tankerness, and the noble Lord, Lord Stephen, would be a possible alternative. But something of this kind is in my view absolutely essential if we are setting out in statute a restriction on the power of the United Kingdom Parliament to legislate.

[Lord Hope of Craighead]

My Lords, the problem with the term “Sewel convention” itself seems to beg a question as to exactly what it covers. The word “normally” is not the only problem in that respect.

--- Later in debate ---

[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.

[Lord Mackay of Clashfern]

My Lords, I am glad that these amendments have been made. Of course, I understand that they will require approval by the House of Commons in due course.

[Lord McFall of Alcluith]

My Lords, we agree with the Government on this very sensible measure. We appreciate the minor and technical amendments and fully agree with them. We thank the Minister.

Scotland Bill

Lord Mackay of Clashfern Excerpts

Wednesday 24th February 2016 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, one of the problems is that the no-detriment principle has so far tended to be looked at primarily in financial terms, but I think that the noble Earl is right that there are other detriments of a qualitative nature which he pointed out to the Minister. We could lose something of value. That would be to the detriment not just of Scotland, but of the whole country.

I share the views of other noble Lords that it is disappointing, despite the many concerns expressed in Committee, that the Government have not come forward with an amendment that would seek to address this. We owe a debt to the noble Lords, Lord Faulkner of Worcester, Lord Empey and Lord Forsyth of Drumlean, and to the noble Earl, Lord Kinnoull, who have sought to try to meet the Smith commission’s recommendation while ensuring that the specific functions of the British Transport Police are preserved.

I have some reservations about Amendment 41, which would be inserted at the end of Clause 42. Clause 42 fits the Smith commission’s arguments—it does devolve, in as much as it makes an exception—but my concern about Amendment 41 is that, having devolved, it seems to take back and would make it a requirement to have an agreement between the British Transport Police Authority and the Scottish Government. I prefer Amendment 42, which at least says that, if there is to be a police services agreement that applies in Scotland, Scottish Ministers should be involved, and that the oversight arrangements that the noble Lord, Lord Empey, spoke to—he indicated that they were over and above what was proposed—are consistent with the spirit and the letter of the Smith commission proposals, while trying to ensure that this is a practical way to address them.

I hope that when the Minister responds to the debate he will take on board that there are genuine concerns that a simple further exception to the reservations in Schedule 5 will not necessarily guarantee that the functions of the British Transport Police would be safeguarded after the devolution proposals put forward there. I therefore hope that the Minister, even at this late stage, will be prepared to come back and give some further thought as to how the functions can be properly safeguarded.

[Lord Mackay of Clashfern (Con)]

My Lords, in my view the words used by the Smith commission on this subject do not imply the break-up of the British Transport Police so far as it operates in Scotland. It says that the functions of the British Transport Police shall be devolved. If the British Transport Police does not exist in Scotland, it will not have any functions that are devolved. That does not seem to make sense.

My second point is that if this provision is to be applied in a sense that the British Transport Police is not to function in Scotland, but would have some kind of associated unit in Police Scotland, there will be no chief constable responsible for operations of transport police in Scotland whose exclusive attention is devoted to transport. The chief constable of Police Scotland has some responsibilities other than transport, whereas the British Transport Police chief constable is devoted entirely to transport—the full attention of the most senior rank there is in the police is available relating to transport only. Transport is sufficiently important to merit the attention of a chief constable.

[Lord Berkeley (Lab)]

My Lords, I support my noble friend Lord Faulkner’s Amendments 41 and 42. I certainly will not repeat the excellent speeches made in support of these and the other amendments this evening. I will emphasise one or two things: first, how different policing the railways is nowadays. The noble and learned Lord, Lord Wallace, mentioned Waverley station, which brings me to crowd control of, for example, football crowds. The British Transport Police has an enormous and excellent reputation in ensuring safety of passengers on the Underground and ways into the Underground, and has ways of keeping them safe on the platforms themselves so that the train does not run into them and they do not get pushed on to the track. There is, sadly, the ongoing issue of terrorism and people trying to do nasty things to the trains, which can be very dangerous. There was an incident last Friday in Belgium where somebody put some concrete blocks on the track of a high-speed line. Luckily, the train did not derail, but that can happen anywhere. Again, having the local police going along and dealing with that might be all right, but there is a good chance that it would not be all right. We have to ensure that this specialism is retained and preserved in whatever happens.

My noble friend Lord McAvoy seemed to be saying that we should give the Scots everything they want in this legislation. That is an argument I do not have particular views on, except on the railways. If we want to give them British Transport Police separated from the rest of the UK, why not give them the railway completely? Why not give them Network Rail? There is nothing in the Bill that says Network Rail is going to be owned in Scotland, or separated from the UK. It probably does not particularly matter who owns the railway, but there is the matter of timetabling.

I spent many years in various discussions across Europe trying to encourage passenger and freight trains to move across frontiers without stopping for hours, minutes or sometimes days because the timetable is not co-ordinated. Of course, that could happen here if the Government give the responsibility to Scotland for having a separate timetable. I am sure it would not happen, because we are not that stupid, but it seems to me that if we are going to keep the railways as an integrated whole, and not make all the Virgin trains stop at Carlisle for everybody to get out and get on to a different train, why separate the police?

The other issue of which we ought perhaps to remind ourselves, also mentioned by the noble Lord, Lord Forsyth, and the noble and learned Lord, Lord Wallace, is the question of who pays. We all know that Network Rail at the moment pays 50% of the cost of the British Transport Police and the train operators, passenger and freight, pay the other 50%—I declare an interest as chairman of the Rail Freight Group. If I were a train operator in Scotland and I found that the BTP did not exist there and any policing on the railways was being done by the local bobby, I would say to myself, and to the politicians, “Why do I, operating a train in Scotland, have to pay for policing the railway, such as it is, but if I operate a bus, a car or a lorry in Scotland, I do not have to pay?”. And I would not pay, because it is very out of balance between road and rail—I would probably get nothing for it either.

At some stage, someone is going to have to work out who is going to pay for the policing in Scotland that will no longer be done by the BTP. There is absolutely no reason why the rail passenger or freight customer should have to pay for whatever policing they get and the main competitor, which is road, should not have to pay. Maybe the Minister already has an answer to that.

Scotland Bill

Lord Mackay of Clashfern Excerpts

Monday 22nd February 2016 Lords Chamber

[Lord Hain (Lab)]

My Lords, I want to briefly support my noble friend Lord Darling and, indeed, endorse the point made by the noble Lord, Lord MacGregor. It arises, in a way, out of a question that he put to me when I was giving evidence to the Constitution Committee. It is this: we have allowed tax devolution to leave the station without any clear idea of what the destination is.

I am an enthusiastic devolutionist. As Secretary of State for Wales, I brought in the Government of Wales Act 2006, and I was instrumental in helping to win the 1997 Welsh referendum—albeit very narrowly; it was a hard fight. My concern is one that I do not see being addressed in the Bill, certainly not until we have the fiscal framework, at least, before us to scrutinise. It is this: 40% of the wealth of the United Kingdom is generated in London and the south-east. So what happens if parts of the UK—across the UK, not just in Wales and Scotland but in the north-east of England, Cornwall, and other parts of England that are not as wealthy as the south-east and London—are offloaded from the ability to benefit from redistribution, and the fairness involved in that redistribution?

The Government’s present ideology seems to be, “You have the powers to raise your own taxes, and it’s on your heads”. And if that particular part of the UK, be it Northern Ireland, Wales or Scotland, cannot raise what it previously raised, that is tough. I do not think that is a future for the United Kingdom that will command the support of all the nations and citizens of Britain and Northern Ireland. Therefore, although I cannot support the amendment of the noble Lord, Lord Forsyth, I want to leave on the record a severe reservation about where this is all leading.

[Lord Mackay of Clashfern (Con)]

My Lords, I would like to say a word or two about the fiscal framework, which I agree is fundamental. The difficulty of it cannot be underestimated. This is a situation in which an authority has a grant-making power, and a power to raise taxes in order to raise the money for that grant—but at the same time, it is making a grant to a body that has a power to raise taxes itself. We have had this problem in the United Kingdom for a long time in relation to local authorities. Nobody needs to be told that every year local authorities have difficulty in accepting what central Government allocate to them. The Scottish Government have had that problem too, with refusing to allow local authorities to use their tax-raising powers under the community charge.

This is a very difficult situation, and I am not at all confident that it is possible to arrange things in a way that will work for all time in this fiscal framework. There is an element of prophecy involved, as we can see from what has been said about the need to take account of how the Scottish population is ageing; of course I am very much part of that factor myself, and I am very conscious of it. The important thing is that there are various powers, and it is difficult to see that they could be effectively regulated for all time coming. I know of no country in the world that has a very satisfactory arrangement for local government. Germany, for example, has inter-state relationships, and relationships between the states and the federation. The United States has problems of that kind too. We have before us the same sort of problem, in a different context. This is a very difficult thing to do—and I do not believe that the powers can be granted without knowledge of what that power arrangement is going to be, if it is possible to reach it.

On the other hand, as the noble and learned Lord, Lord McCluskey, said, it would be a mistake for us to use the power of this House to get the Bill in place before the deadline for the parliamentary elections in Scotland. If we were to do that, I think it would be regarded as something that the House of Lords had done to destroy the vow.

[Lord Dunlop]

I thank all noble Lords who have taken part in the debate for their contributions. Before I address some of the points that have been raised, may I first make a correction? It came as something of a surprise to me to hear that I had not responded to the noble Lords, Lord Lang and Lord Hollick. I certainly signed lots of letters and I understand that those were sent off in early February, and copied to the leaders and Chief Whips of the main political parties and the Convener of the Cross-Bench Peers.

Scotland Bill

Lord Mackay of Clashfern Excerpts

Tuesday 19th January 2016 Lords Chamber

[Lord Keen of Elie]

That is, as it were, a known unknown at this stage. There are no particular tribunals in mind so far as that is concerned. However, if further tribunals are created, it is contemplated that they should not transfer automatically but should be subject to the same conditionality that is thought appropriate for existing tribunals. It is at that level of generality. It is not contemplated that there is any particular tribunal that will be addressed by that provision. I hope that answers the noble and learned Lord’s question and invite him to withdraw the amendment.

[Lord Mackay of Clashfern (Con)]

On the point made by the noble and learned Lord, Lord Wallace of Tankerness, about taking cases from England, where the delays in particular situations can cause difficulties, and bringing them to Scotland, the definition of a Scottish tribunal in new sub-paragraph (11)(a) is as one,

“that does not have functions in or as regards any other country or territory, except for purposes ancillary to its functions in or as regards Scotland”.

I wonder whether there is any difficulty in relation to what I would have thought was a good idea—namely, to have the possibility of cases being referred to Scotland where that would help scheduling. However, it would be necessary for the law to be applied if a case was transferred to be the law that would be applied before it was transferred.

[Lord Keen of Elie]

I am obliged to the noble and learned Lord, Lord Mackay of Clashfern. First of all, of course, we are dealing with reserved matters. If we were dealing with immigration, for example—a matter of reserved law—there could be circumstances in which the application of Scots law led to a different outcome from the application of English law. I notice that new sub-paragraph (11) in Clause 37 talks about the meaning of a Scottish tribunal, but that, on the face of it, does not appear to determine the scope of its jurisdiction to hear cases from outside Scotland. It is more a question of what is a Scottish case in that context. That is something that can be looked at, I suggest, in the context of each Order in Council for the transfer of each tribunal. There may be room to facilitate the transfer of cases in the manner suggested. That is something that we will take away and consider.

Scotland Bill

Lord Mackay of Clashfern Excerpts

Tuesday 8th December 2015 Lords Chamber

[Lord Lang of Monkton]

My Lords, I rise briefly to support my noble friend Lord Forsyth, who is absolutely right. The fact that the Government had the wording as per his amendment in the original Bill represents what must have been their best thought, after careful preparation, on what should be in the Bill. They have succumbed unnecessarily to pressure in another place and now we are faced, as in a number of other areas in the Bill, with what they must consider second best. I do not think that is good enough for an important Bill of this type, and I urge my noble and learned friend to accept the amendment.

[Lord Mackay of Clashfern]

My Lords, this is an interesting amendment. I wonder by whom the recognition is supposed to be given. “Recognised as” requires that someone does the recognising; who is it? This is a much better clause as it stands than it was originally. The process of improvement in Parliament has in fact worked in this case by missing out a nonsensical requirement and replacing it with one that is reasonably clear.

So far as I am concerned, the purpose of a clause of this kind is to declare the situation as it is and as it will be for this Parliament and for any subsequent Parliament that does not decide to repeal it. As we know, the Act of Union was supposed to be for ever, but we are all mortal, and Members of Parliament, in particular, are mortal. It may well be that a later Parliament has a different idea. The sovereignty of this Parliament is perfectly clear, but that does not mean that it binds a subsequent Parliament, and therefore there could be a change in a subsequent Parliament.

That brings me to a matter that was referred to about the referendum. The point that is made in the clause is that the Parliament is to be permanent, and therefore there is no question of a referendum until someone decides that there should be a question about that permanence. It is quite inappropriate to include detailed provisions about what would happen in the event of a decision that perhaps the Parliament was not permanent after all in the shape of a referendum. That is a matter which, at the very least, would have to be looked at in some detail, just as recently we have been looking in great detail at the referendum Bill about moving out of the European Union. If a Bill was required to alter the status of the Scottish Parliament, I feel certain that it would need some pretty careful consideration. That probably will not occur in my lifetime or, I suspect, in the lifetimes of most noble Lords who are present, except possibly the very young.

[Lord Empey (UUP)]

My Lords, perhaps I may make a brief observation. The noble and learned Lord, Lord Wallace of Tankerness, quoted the 1998 agreement that affected Northern Ireland. I have to say that if you have a political agreement such as the Smith commission which you are trying to implement, you cannot be expected to translate it word for word into legislation. The Belfast agreement contained diplomatic language, political language, and of course there was an international dimension to it which is not present in the current proposals. The phrase that comes to mind when discussing these matters is, “There is nothing as permanent as the temporary”. We should not be working within an absolutely rigid framework which says that we have to replicate word for word the particular phrases used by the Smith commission.

It is never intended that a political agreement from a commission which has been established should automatically be transferred verbatim into law. That is not feasible and I urge noble Lords not to put themselves completely on the hook over this because of the fear that if something is changed, it will be seized upon by people who will say that you are running away from the agreement. The fact is that those people will seize on it whether you do or whether you do not. That is because we know that they signed up to it, and now they have walked away from it. The issue is this: is it right and proper legislation or is it not? Is it consistent with the aims and objectives that were set out by the commission to which the parties have agreed? I would have thought that that is a better measure for judging the quality of the legislation rather than putting yourself in a terrible position where if you change a word, a dot or a comma, somehow or other you are committing a political sin. That is not what Parliament is here to do. Everyone has been put into difficulty by getting themselves shackled to this proposal.

--- Later in debate ---

[Lord Cormack]

I will not prolong this brief debate unduly, but my noble and learned friend seems to be adopting a fairly intransigent line. If it is permissible to make declaratory statements to appease those who would destroy the United Kingdom, is it not permissible to insert them for those who are dedicated to its future?

[Lord Mackay of Clashfern]

That may well be so, but there is already a declaratory statement in the Act which the Bill amends. It was pointed out that, under Clause 1, the other provisions of that Act were to be taken into account. One of those is Section 28(7). I will not say anything about the proposed amendments to Clause 2; the situation may be slightly different there.

--- Later in debate ---

[Lord Forsyth of Drumlean]

Perhaps I can help my noble and learned friend. Throughout this afternoon, he has argued that it is essential—for political reasons—to put in Clause 1 words that say the Scottish Parliament is permanent. He has argued that we should understand that no Parliament can bind another and that the sovereignty of the UK Parliament remains. All my amendment seeks to do is to add a few words to the clause which give the reassurance that he has been giving to the Committee. I am not a lawyer, but after Pepper v Hart and all that, what is said at the Dispatch Box does actually matter. For him to say that he could not add it to the clause because it would be redundant or that you can find, buried in the previous Scotland Act—

[Lord Mackay of Clashfern]

It has to be remembered that this Bill is amending the Scotland Act. This provision, which my noble friend Lord Forsyth of Drumlean wants to put in, happens to be there already in Section 28(7). That is my objection. Repetition may be a good idea, for all I know, but it is there already. The point made by the noble and learned Lord, Lord McCluskey, about unnecessary legislation might come into this. There does not seem to be much need for it, especially when Clause 1 refers to the other provisions of the Scotland Act, into which this is being embedded.

[Lord McCluskey]

The actual wording of Section 28(7), which I do not suppose many noble Lords will have memorised, reads:

“This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland”.

It does not talk about the sovereignty of the United Kingdom Parliament at all. It talks about its continuing power to make laws for Scotland.

--- Later in debate ---

[Lord Davidson of Glen Clova]

I apologise for not confirming that we support Amendment 20. I took that as being the overall approach—this smorgasbord—between the approach of the noble Lord, Lord Stephen, and the approach of the noble and learned Lord, Lord Hope. I hope that clarifies the point.

[Lord Mackay of Clashfern]

What is the noble and learned Lord’s view about the provisions in Amendment 12, which was tabled by the noble and learned Lord, Lord Hope? It contains paragraphs (a), (b) and (c). Paragraph (a) applies to Scotland and does not relate to reserved matters. I would have thought that is what is meant by devolved matters, but paragraphs (b) and (c) considerably add to that. As far as I can understand them, particularly paragraph (b), they would apply to this legislation.

[Lord Davidson of Glen Clova]

Perhaps I can try to explain the proposition put forward by the noble and learned Lord, Lord Hope, in his amendment. As we see this, it reflects the reality of the way in which legislative consent Motions have been used over the 15 years, beyond the original.

Scotland Bill

Lord Mackay of Clashfern Excerpts

Tuesday 24th November 2015 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I would like to begin by expressing my appreciation of the maiden speech by the noble Lord, Lord Campbell of Pittenweem. He has been a colleague in the Faculty of Advocates for many years and his coming to this House can only be a benefit to us. I simply say the same about the noble Baroness, Lady McIntosh. As another member of the Faculty of Advocates, it is a great privilege to welcome her, as it will be to listen to her maiden speech in due course.

I have been privileged to hold a number of important offices in Scotland and also in the United Kingdom with functions in Scotland. Today, I am glad to participate in discussion of this important Bill relating to my native land. The most relevant of those offices today is my appointment as sheriff principal of Renfrew and Argyll, when I was the returning officer for Argyll and declared the late Iain MacCormick, the SNP candidate, as Member of Parliament for Argyll in the elections of 1974.

Turning to the Bill, on 12 November 2015 Bruce Crawford MSP, chairman of the relevant committee of the Scottish Parliament, wrote a letter to the Secretary of State for Scotland, from which I quote:

“Dear Secretary of State … Re. Views on the Scotland Bill—post-Report Stage … I am writing to you on behalf of the Committee following our consideration of the latest stage (Report Stage) of amending the Scotland Bill in the House of Commons held on 9 November.

We welcome your constructive engagement with the Committee during the process since then and the obvious improvements that have been made at this most recent stage. Many of the changes that you made are in line with our suggestions and we are pleased that you have agreed with the Committee’s view and further improved the Bill. We welcome your comments to this effect made in the House of Commons during Report Stage.

As you are aware from previous correspondence and our Interim Report published back in May 2015, the Committee remains in agreement that we want to see the final Scotland Bill fully respect both the ‘spirit and substance’ of the all-party Smith Commission agreement. At both introduction of the Bill and at Committee Stage, we stated that, in some of the areas, the legislative proposals met the challenge of fully translating the political agreement reached in the Smith Commission. In other areas, improvements in drafting and further clarification were required. In some critical areas, the legislative clauses fell short.

In particular, the Committee is pleased to see the changes that have been made to some of the welfare provisions, notably the ability to introduce new benefits in devolved areas and to top-up benefits in reserved areas”.

He goes on to list a number of detailed points about the clauses which it would be appropriate to consider in Committee.

I have quoted this to show my profound appreciation for the co-operation that, in this case, has marked the process so far associated with the Bill—which I hope will continue—and to refer to the agreement that the final Bill should fully respect both the spirit and substance of the all-party Smith commission agreement. In my view, a role of this House as a revising Chamber is to examine the Bill to see if other amendments are required in order that that agreement be fully implemented. The fact that I am not elected in no way disqualifies me from fulfilling this function, and I am comforted by the knowledge that any amendments we judge to be necessary need to be approved by an elected Chamber before they become part of the Bill that passes into law. I say this in the light of the comments about this House made by a member of the Scottish Government some weeks ago on the BBC’s “Question Time”.

I believe that the process so far precludes us from giving effect to the conclusions of our Select Committee on Economic Affairs concerning the Barnett formula, but of course, they may well be effected by the fiscal framework which is still in the process of negotiation. The principles set out for that in the Smith agreement are reasonably clear, in language that is not very recondite. To put them into practice just now is quite difficult. I conclude by suggesting that my noble friend the Minister make copies of the letter to which I have just referred available to Members of this House, as I think the later paragraphs would be very useful in Committee.

I am very conscious of the problems in Scotland that have been mentioned. As a resident of Scotland most of the time, it is apparent to me that there are matters that need to be dealt with. They are primarily matters for the Scottish Parliament, but there are serious problems relating to the constitution of the United Kingdom as a whole, and I am glad that my noble friend Lord Lang of Monkton and his very capable Constitution Committee are looking into them.

Queen’s Speech

Lord Mackay of Clashfern Excerpts

Monday 1st June 2015 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, it is a great privilege to follow the right reverend Prelate the Bishop of Leicester. I have had the privilege of his company many times and have had much valuable instruction from him. In the diocese of Leicester, he has given tremendous leadership in bringing diverse communities together. I am sorry that the time is approaching when he plans to leave this House, but I am sure he will be a valuable member of the community to which he hopes to go.

I do not propose to follow the comments of the noble and learned Lord, Lord Falconer of Thoroton, about the qualifications of the present Lord Chancellor, except to remark that he had something to do with bringing about the position in which this is possible. Since he has mentioned it, I also take this opportunity to mention what I consider to be the very sad treatment of his immediate predecessor.

My comments on the gracious Speech will be confined to the proposal:

“My Government will bring forward proposals for a British Bill of Rights”.

This is an important and difficult subject which has received attention in this House since I joined it. I want briefly to mention the present position: the United Kingdom is bound by the European Convention on Human Rights and certain protocols to a statement of these rights and to implement decisions of the court set up under the convention in cases arising from this country. The noble and learned Lord, Lord Falconer of Thoroton, is not correct in saying that the ultimate decision on cases arising in this country rests with our Supreme Court. At the moment, it rests with the court in Strasbourg. I shall say something more about that in a minute.

Until the convention was incorporated into our law by the Human Rights Act, the text of the convention was not part of our law, although our courts had regard to it in deciding cases in which it was relevant. With the passing of that Act, the text became part of our law and our courts applied it in deciding cases in which it was relevant. The Act required our courts to have regard to decisions of the court in Strasbourg in reaching such decisions, as the noble and learned Lord said. The Act also conferred on our courts power to declare Acts of our Parliament inconsistent with the convention. The Act did not affect the obligation of the United Kingdom to implement decisions of the Court of Human Rights in Strasbourg, to which I have referred.

This position has now produced a difficult situation. The Strasbourg court has decided that our statute which denies persons serving a prison sentence the right to vote is inconsistent with the convention as supplemented by a protocol. A court in Scotland has declared that the statute is inconsistent with the convention and the Court of Appeal in England has agreed. Taking part in that decision, Lord Justice Laws gave a full account of what Parliament would require to do to implement the Strasbourg court’s decision. So far, Parliament has not taken any such action and has indicated no intention of doing so, so the obligation is in suspense in the sense that it has not been complied with. I must confess to a feeling of great anxiety that the United Kingdom, with its tradition for respect of the rule of law, not the rule of lawyers, should be in breach of a treaty by which it is bound.

It has been suggested in some quarters that we should adopt the procedure necessary to free the United Kingdom from its treaty obligation under the convention. That treaty, as was already mentioned by the noble Lord, Lord Marks of Henley-on-Thames, came into existence as the result of the way minorities had been treated in Europe in the preceding years. That treatment had been inflicted with the authority of the elected Government. The United Kingdom took an important part in setting up the treaty and its mechanism of enforcement, and I have little doubt that our leaders of that time were motivated by a concern for the citizens of other countries rather than those of the United Kingdom in particular. It would surely be extremely sad for the United Kingdom to withdraw from a treaty which we took such an active part in setting up with motives of concern for citizens of other states than our own.

I will make a suggestion for a possible way forward. We could seek an amendment to the convention to exempt from the obligation to implement the decision of the Strasbourg court where the court has decided that a statute of a member state contravenes the convention, and in that member state no court of that state has authority to set aside or modify that statute, if the legislature of that member state passes a resolution, which for stated reasons declines to implement the Strasbourg court’s decision. If such an amendment could be agreed, I venture to think that the effectiveness of the treaty would not be substantially diminished.

I regard the present situation as extremely unsatisfactory. That would be a possible way of recognising that at least in our country—and maybe in some other member states—the elected Parliament is sovereign and not subject to any kind of quashing order by the courts of this country. That of course has been the situation in our country for a very long time. The courts of our country, including the Supreme Court, have no power to quash or set aside an Act of Parliament. Instead of coming out of the convention altogether there may be something to be said for considering whether the convention should recognise the possibility that in some member states the Parliament is sovereign and not subject to having its Acts set aside or modified by the courts of that country. From that point of view there is something to be said for the view that if the courts of our own country cannot do anything about an Act of Parliament, why should it be so for the European Court of Human Rights?

Of course, the original idea was to seek an enforcement which would override the position of the elected Government, but it may be that nowadays the publicity attended by such a decision of the court in Strasbourg would be sufficient to afford protection for minorities, although so far, in this country at any rate, that particular minority of prisoners serving a sentence has not been protected in the way the court in Strasbourg thinks it should.

The proposal in the gracious Speech is for the preparation of a British human rights Act. So long as that is well done, I see no particular objection to it. The gracious Speech does not propose coming out of the convention on human rights. There have been suggestions of that in other quarters but all that the gracious Speech proposes is the formulation of a British human rights Act.

Difficulties with the Human Rights Act have been expressed in this House from more than one side. I refer in particular to the reference made by the noble and gallant Lord, Lord Craig of Radley, on Thursday to the difficulties in connection with the field of battle, and the application of the Act there. I do not know enough about it to say, but there may be some way in which that modification could be thought of. The idea that the Act would not apply at all would be pretty difficult, but I have certainly heard it said by noble and gallant Lords and noble Lords on other Benches than the Cross Benches that this is a difficult situation. These matters could be dealt with, and I venture to hope that they could be dealt with not in a partisan way but in a way that seeks to get the right solution to a difficult situation, done with deliberation.

This has nothing whatever to do with what I have just been saying, but I believe that the noble and learned Lord, Lord Falconer of Thoroton, may not be correct in his assertion that my noble friend Lord Dunlop, who gave his maiden speech today, had any part in the introduction of the community charge Act in Scotland. I was not a member of the Government at that time because I was on the Bench, but I have a feeling that it may not be a well-founded suggestion, and the noble and learned Lord would not like to be responsible, as a former Lord Chancellor, for making unfounded suggestions.