Scotland Bill

Lord Norton of Louth Excerpts

Wednesday 24th February 2016 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I have added my name to Amendment 2, with that of the noble and learned Lord, Lord Hope of Craighead. It seeks to amend the clause without affecting subsections (1) and (2). I have also tabled Amendment 6, which goes further and replaces the existing clause with a new clause. This seeks to address concerns raised not only by me but by other noble Lords in Committee.

The justification for Clause 1, reiterated by my noble and learned friend Lord Keen in Committee, as we have heard again this afternoon, is that it delivers on the terms of the Smith commission report. That, I submit, is not a solid defence for two reasons. First, I suggest that it is ultra vires. It falls outside the terms of reference of the commission and does not devolve further powers to the Scottish Parliament. Is my noble and learned friend arguing that the Government’s commitment to implement the commission recommendations encompassed whatever it recommended, regardless of the commission’s terms of reference? If we are to proceed with this clause, we have to do so on the basis of the Minister conceding that the Government, in making such a commitment, were acting irresponsibly.

Secondly, the recommendation does not lend itself to a legislative proposition and therefore should not find embodiment in a Bill. There are other ways to achieve it. As I have emphasised, the Cabinet Office Guide to Making Legislation states that Bills should contain only legislative propositions. Subsection (1), as the Minister has conceded, is a political statement. In respect of the guidance, he argued in Committee that one could have exceptions to such generalities. He offered an example that could be described as germane to the issue, but it is more than 300 years old and thus predates Cabinet Office guidance.

The defence that the Government are following precisely the Smith commission recommendations is undermined by subsection (3), which qualifies subsection (1)—the Minister conceded in Committee that it injects an element of conditionality—and is the product of the Government’s own thinking on the matter. The Minister thinks that subsection (3) reinforces rather than undermines the commitment in subsection (1), but the key point is that the Government are prepared to depart from the precise recommendations of the Smith commission.

The clause is inherently problematic. There are two fundamental problems, one raised by several noble Lords in Committee and the other touched on, especially by my noble friend Lord Lothian. The clause states that the Scottish Parliament is permanent and will not be abolished unless there is a referendum in Scotland. In so doing, as was made clear in Committee, it raises questions about sovereignty. Does the clause provide an element of entrenchment? If not, and the Minister emphasised in Committee that,

“this Parliament is sovereign, and it cannot disclaim that sovereignty”,—[Official Report, 8/12/15; col. 1470.]

what is the point of the exercise? In effect, my noble and learned friend was saying that it is a political statement and the provision can be changed by Parliament. In other words, permanence cannot be guaranteed. If that is the case, the clause offers a misleading statement. If it is not the case, it undermines or calls into question the doctrine of parliamentary sovereignty. That point was made strongly in Committee by my noble friends Lord Lothian and Lord Forsyth of Drumlean.

The other core problem was embodied in the comments of my noble friend Lord Lothian when he said that,

“the legislation would set a whole lot of other constitutional hares running”.—[Official Report, 8/12/15; col. 1452.]

What are the implications for other legislative or quasi-legislative bodies established by statute? If not declared to be permanent, what is their status? Are they to be deemed any less permanent than the Scottish Parliament? My noble and learned friend did not address this in Committee. We cannot view the clause in isolation.

If we are to proceed with this clause, as the Government appear determined to do, we should at least seek to render it less problematic than it is with the present wording. The noble and learned Lord, Lord Hope of Craighead, made the point that the word “permanent” was, as he put it, perhaps not very cleverly chosen. There may be a way to soften it to render it compatible with well-understood constitutional principles.

The way to achieve this was suggested by the noble Lord, Lord Kerr of Kinlochard. I took his suggestion in framing my proposed new clause. Section 1(1) of the Scotland Act 1998 established the Scottish Parliament and Section 44 established the Scottish Executive. My amendment would provide that those provisions shall not be repealed without a referendum of electors in Scotland, with the electorate being the same as that provided in the Referendums (Scotland and Wales) Act 1997. Given that there was a referendum in 1998 on establishing the Scottish Parliament, this would provide that another referendum would be necessary before it is abolished.

The advantage of the proposed new clause is that it avoids the constitutional problems generated by the existing clause. It embodies no political statement but is confined to a provision of law—this does change the law—and is based on the continued existence and permanence of the Scottish Parliament. I made the point before that no one doubts that the Scottish Parliament is permanent. I noticed when my noble friend Lord Dunlop repeated the Statement that his words at the Dispatch Box were to the effect that the permanence of the Scottish Parliament will be put beyond doubt. I noted that in the copy of the Statement from the Printed Paper Office the words appear:

“And the permanence of the Scottish Parliament is beyond doubt”.

There is an important point there. What I put forward in my new clause achieves what the Government seek to achieve, but without the problems identified by Members across the House in Committee.

As the noble and learned Lord, Lord Wallace of Tankerness, said in Committee, we are dealing with hypothetical issues. We understand the political reality. I recall the occasion when the late noble and learned Lord Simon of Glaisdale opposed a provision designed for the avoidance of doubt on the grounds that there was no doubt in the first place to be avoided. I feel that we are in a similar situation: there is no doubt that the Scottish Parliament is permanent. The Smith commission has gone beyond its terms of reference to propose something that causes more problems than it solves. The Government may have issued a blank cheque to a third party, but, as I said at an earlier stage, it is not our job to cash it without question.

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[Lord Forsyth of Drumlean]

Indeed, and there is another voice in support of the amendment tabled in the name of my noble friend Lord Cormack and supported by the noble and learned Lord, Lord McCluskey. It is incomprehensible why the word “normally” should be included.

The noble Lord, Lord Stephen, is quite right. What was the Sewel convention has changed into something else. It is a veto, and that is almost certainly what the Smith commission was thinking of. The noble Lord is absolutely right about that. Amendment 7, moved by the noble and learned Lord, Lord Hope, would in effect give legislative effect to what has come to be the practice. Putting into statute what Lord Sewel, back in 1998, said by way of explanation of how the relationship between the two Parliaments would operate is a complete nonsense—a point made over and over again in Committee.

I am hoping to cast a fly here and catch those on the Opposition Front Bench. The great mantra that we have had from them over and over again is that we absolutely have to be true to the Smith commission and make sure that its recommendations are implemented. Amendment 7 would provide for that. So are the Opposition Front Bench going to speak against an amendment whose effect would be to deliver the Smith commission proposals—something that the noble Lord, Lord McAvoy, said he would never do? I look forward to hearing the response from that Bench. It is clear that Amendment 7 would deliver what the Smith commission is proposing. I do not like it because I would prefer this Parliament to be free to pass legislation, consulting the Scottish Parliament in a courteous way but not giving it a veto, which is what I think the Smith commission was seeking to do. I am utterly opposed to leaving in the Bill the word “normally”, which would almost certainly result in the courts being dragged into a dispute between this Parliament and the Scottish Parliament, and that would be thoroughly undesirable.

For all those reasons, I think I am inclined not to press my Amendment 11 when the time comes, but to switch sides and support the noble and learned Lord, Lord Hope of Craighead, and my noble friend Lord Norton of Louth—who is undoubtedly constitutionally correct—and to support my noble friend Lord Cormack in taking out this word “normally”. There are two words that I would like to take out of the Bill: one is “normally”, and the other is “Sewel”. I tried to do that in Committee and actually got past the clerks an amendment which deleted “Sewel”; but unfortunately, due to the intervention of noble Lords opposite, who argued that it was not really terribly good to alter the name of a clause in that way, I was not able to press it again at this stage in the consideration of the Bill. I think it was the noble Lord, Lord Stephen, who was responsible for that.

I say to my noble friend that the great advantage of accepting Amendment 7 is that we would get rid of “normally” and we would get rid of “Sewel”; and we would have something that is absolutely clear in statute and delivers the Smith commission proposals—which, we keep being told, is what this Bill is all about.

[Lord Norton of Louth]

My Lords, I have added my name to Amendment 7 in the name of the noble and learned Lord, Lord Hope of Craighead, as has already been mentioned.

As has been stressed, this clause is supposed to embody the Sewel convention. Let us be clear as to what a convention is. We are talking about a convention of the constitution. A convention is a non-legal rule of behaviour that is considered binding by those who are covered by it and is justified by being, as David Feldman put it, “right behaviour”. There is a moral imperative, and compliance with the rule is invariable. Invariable practice, lacking a moral base, does not establish a convention. Usual practice, as distinct from invariable practice, does not establish a convention.

Conventions develop: a precedent is set and followed and a practice is established from which there is no deviation. In addressing this House in 1998, Lord Sewel recognised that a convention is something that developed. However, his use of the word “normally” meant that what he had in mind was not and could not be a convention. What has developed is a practice, and one that has extended beyond what he said.

Clause 2, as it stands, makes no sense. Conventions may be transposed into statute, but once in statute the convention has gone; it has been superseded by statute. We saw a recent example with the convention governing votes of confidence in the House of Commons. That has been superseded by Section 2 of the Fixed-term Parliaments Act. There is no longer a convention. What we have with Clause 2 is the inclusion of the words of Lord Sewel in a form that does not constitute a convention but with the Government believing that it is a convention and seeking to maintain it as a convention even though enshrined in statute. I was going to say that I hope that that makes sense, but of course it does not make sense. This clause is nonsense.

The Government cannot justify it on the grounds that it implements a recommendation of the Smith commission, because it does not—that point has already been stressed. The Smith commission recommended putting the Sewel convention on a statutory basis. There is a Sewel convention, as we have heard, but it is different from what Lord Sewel enunciated in 1998. Putting the words of Lord Sewel on the face of the Bill does not put the Sewel convention in statute. Indeed, the clause as it stands narrows and undermines the convention. It narrows it by omitting a practice that has developed and been pursued on a continuous basis, and it undermines it by removing the essential feature that established it as a convention. A convention, by definition, establishes the rule of behaviour that is taken as binding by those who engage in that behaviour. Clause 2 permits, in effect, the Government to say, “We are bound by, this except when we decide not to be bound by this”. What is in the clause is not a convention: it is a declaration of good behaviour.

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[Lord Wallace of Tankerness]

My Lords, I shall speak briefly to support the spirit of the amendment in the names of the noble Earls, Lord Dundee and Lord Kinnoull, and to endorse what the noble Earl, Lord Lindsay, said. The noble Earl referred to the Calman commission, on which he and I served and were charged specifically with looking at intergovernmental and interparliamentary co-operation. We found that there was much to be done. It came down to simple things such as passes for Members of the Scottish Parliament to access the Palace of Westminster and MPs to access the Scottish Parliament. There is much more that can be done.

I make only two further points, because there is a lot in the amendment that should give us impetus. Legislation cannot do it on its own; a culture requires to be built up as well. First, I wanted to pick up on,

“the sharing of examples of best practice between the Scottish institutions and United Kingdom institutions”,

in subsection (2)(c) of the proposed new clause. I have always believed that it is one of the potential strengths of the devolution settlement that we have in the United Kingdom that we not only have a United Kingdom Parliament that deals with England and in some cases England and Wales on otherwise devolved matters but we have Welsh, Scottish and Northern Ireland legislation. There is much that we can do to learn from each other. There are things that might have been tried that did not work which there is no point in repeating elsewhere. For example, the Scottish Parliament took the lead on the ban on smoking in public places, which other devolved institutions then followed. But the sharing of best practice has probably been patchy at best.

Secondly, the Bill does not allow this proposal to go beyond the terms of the amendment, but clearly it is not just about interchange and exchange between the United Kingdom institutions and the Scottish institutions—it is something that we will want to do for the Welsh and Northern Ireland institutions as well. We can all learn from each other, but I hope that the House will endorse the spirit of the amendments that have been tabled.

[Lord Norton of Louth]

My Lords, I very much support the amendment introduced and moved so ably by my noble friend. It is over a dozen years ago now that the Constitution Committee of your Lordships’ House undertook an inquiry into devolution and inter-institutional relationships within the United Kingdom. We found exactly what the Calman commission found later—that what should be in place to encourage inter-institutional relationships was not there. Had the recommendations of the Constitution Committee report been implemented, we would be in a much stronger position now than we are.

There is a tremendous amount to support in this amendment, because it injects a useful discipline. It focuses the mind, because if consideration must be given to this each year it encourages reflection, as has been mentioned, addressing such things as best practice. That is wholly for the good; I see no real arguments against it, and I very much hope that my noble friend’s amendment will get a positive response from the Front Bench.

[Lord Lang of Monkton]

My Lords, I repeat briefly the support that I gave these proposals in Committee. The noble Earls, Lord Dundee and Lord Kinnoull, are to be congratulated on persevering on this issue. Like my noble friend Lord Norton of Louth, I, too, served on the Constitution Committee when, 14 years ago, we drew attention to the inadequacy of intergovernmental relations. They have got worse, not better, since then. We produced a report a year ago in the committee drawing attention to intergovernmental relations across the board, and we are still awaiting a response on it from the Government. I know that they are thinking about it, but they are thinking very slowly or, perhaps, very thoroughly.

I hope that this amendment will trigger further thought from them. I do not know whether the proposed new clause covers the whole comprehensive gamut, but it certainly looks like a very good effort to me. I reassure my noble friends that, if they do not prosper with this clause in this Bill, we have another report coming out from the Constitution Committee shortly, and I dare say that it is possible that we will return to the matter then.