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.

Scotland Bill

Lord Norton of Louth Excerpts

Monday 22nd February 2016 Lords Chamber

[Lord Forsyth of Drumlean]

My Lords, when I first saw Clause 68 I was outraged, and my instinct was to take it out entirely. Then I saw the rather more finessed approach of the noble and learned Lord, Lord Hope, so I quickly added my name to his amendments. I very much support those amendments, and the approach taken by the noble and learned Lord, Lord Wallace of Tankerness.

I was outraged when I saw the clause because—together with the fact that the Government propose to take this Bill, as it has already been taken, through the House of Commons, and then through the House of Lords, without the fiscal framework being in place—it gives the impression of a Government who see Parliament as a rather irritating thing that has to be got through, rather than as the process by which legislation is carefully considered.

It is 20 years since I was in government, but in my day this would never have got past the parliamentary draftsmen. Even if it had, it would have been knocked on the head by L Committee. It is very worrying that a Bill can get to this stage, having gone through the House of Commons, with such completely open provisions. I was not making the point in jest: I genuinely think that with these powers it would have been possible to put the entire contents of the Bill into statutory instruments. That would have been jolly convenient for the Government—would it not?—because they would have been able to say, “We’re simply implementing the Smith commission report. There’s a convention that your Lordships don’t amend or vote against regulations”, and that would have been that. It would have been a very retrograde step indeed—so I hope that my noble friend will simply take the clause out entirely, as he did with a previous clause this evening. If not that, I certainly accept the amendments tabled by the noble and learned Lord, Lord Hope, and possibly make a concession because of the points made to the Delegated Powers Committee.

I will certainly not press removing the clause altogether at a later stage, but the Government need to respond to this and recognise the very considerable feeling in the House, which was illustrated by the debate that we had on the Strathclyde commission proposals. I thought that the Government said that they were going to mend their ways. Certainly, the Strathclyde commission report was balanced in that it suggested that that needed to be done. This would be a great opportunity for the Government to show good will towards the Strathclyde recommendations. Then they might be able to persuade some of us who have doubts about them that it would be sensible to reach a compromise.

[Lord Norton of Louth (Con)]

My Lords, I want to reinforce points that have already been made. It is important to stress that we should not let the late hour mask the importance of the amendments before us. As the noble and learned Lord, Lord Wallace of Tankerness, stressed, this clause has important constitutional significance. It raises fundamental issues and I concur with everything that was said by the noble and learned Lord, Lord Hope of Craighead, and reinforced by the noble and learned Lord, Lord Wallace of Tankerness. He referred to the report by the Constitution Committee on the Scotland Bill and I reiterate the comments made by that committee, on which I served, in respect of this clause.

In its report, the committee drew attention to the clause, saying:

“As has become a trend over the years, the Government has put forward a Henry VIII clause which gives it powers well beyond those which are necessary to achieve this end”—

that is, the end of the Bill. It goes on to say that,

“we once again must express our concern at a Government proposal that would provide Ministers with too much power at the expense of Parliament”.

Here we have a Bill that is giving the Government greater powers than is the norm in these types of clauses, as has already been stressed, without any justification for so doing.

It is amazing that we have got to this stage without the Government providing a clear justification for what is before us. We must take our role seriously in terms of acting as a constitutional safeguard to make sure that the Government do not use these measures to take powers that have not been justified by them and which would put us in a difficult situation in any future measures. The Government must take this very seriously and I hope that the Minister will give some commitment that between now and Report changes will be introduced by the Government themselves.

[Lord McAvoy]

My Lords, I join in the debate and fully endorse all of the speeches made, particularly by the noble and learned Lords, Lord Hope of Craighead and Lord Wallace of Tankerness. As most of my comments have already been made as quotes from the Delegated Powers Committee, I will concentrate on one aspect of this, although I also completely endorse the comments of the noble Lord, Lord Forsyth of Drumlean. It gives me such pleasure to do so.

The comments about scrutiny were made far more eloquently than I could make, so I will just endorse those comments of the noble Lord, Lord Norton of Louth. I want to concentrate particularly on the provision-making policy because it affects a significant amount of social security legislation, which can be of an extremely complicated nature.

In a letter, the Minister said:

“Although extensive checks have been carried out as to the effect of the provisions of this Bill and the interaction with social security legislation, it is possible that, in implementing the provisions of the Bill, consequential amendments are found to be necessary to fulfil Parliamentary intention”.

As the noble Lord, Lord Norton of Louth, mentioned, there is an important constitutional role for the House, even at this time of night.

The memorandum concerning the delegated powers in the Bill states:

“Furthermore, Social security has, until now, broadly remained reserved across Great Britain and delivered on a GB-wide basis by the UK Government. In operating a system where responsibility for the different social security benefits paid in Scotland is split between the UK and Scottish Parliament there may be some areas where the respective Governments may wish to make mutually beneficial agreements relating to delivery which may require consequential amendments to existing legislation—for example to facilitate fraud investigations, debt recovery and compliance issues arising out of overpayments in respect of both reserved and devolved benefits”.

I conclude by joining the comments made by many Members of your Lordships’ House who have spoken tonight. There has got to be a reason—is it laziness, bad draftsmanship or is there a purpose behind it? Were they thought out, were they put down specifically? I join other noble Lords in asking why it was felt these powers were necessary.

Scotland Bill

Lord Norton of Louth Excerpts

Tuesday 8th December 2015 Lords Chamber

Moved by

[Lord Norton of Louth]

1: Clause 1, page 1, leave out lines 9 and 10

[Lord Norton of Louth (Con)]

My Lords, I shall speak also to Amendment 3, which is also in my name. The purpose of the amendments is to leave out subsections (1) and (2) of the proposed new section. I have tabled them to enable my noble friend the Minister to justify the inclusion of these subsections. I am aware that they derive from the recommendations of the Smith commission. Paragraph 21 of the report states:

“UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions”.

However, there is nothing in that report to justify the recommendation. In his foreword the noble Lord, Lord Smith of Kelvin, said:

“The Scottish Parliament will be made permanent in UK legislation”—

but that exhausts references to the proposal.

During Second Reading, I touched upon my concerns with both subsections. One concern I raised in response to an intervention by the noble and learned Lord, Lord Hope of Craighead. It was that the recommendation falls outside the terms of reference of the Smith commission. The commission was established to make recommendations for further devolution of powers to the Scottish Parliament. These subsections do not provide for the further devolution of powers. We are in something of a double bind. The Smith commission did not produce a reasoned report but, rather, a list of recommendations, and the Government committed themselves in advance to implementing its recommendations. The justification for the provisions of the Bill is thus generic: that they deliver on the commission’s recommendations. What we lack is a clear exposition of the reasoning behind each provision. The Government, in effect, offered the commission a blank cheque and I do not think that it is our task to cash it without questioning the transaction.

The other concern I raised was that the provisions fly in the face of the Government’s own guidance on making legislation. I quoted the most recent edition of the Cabinet Office’s Guide to Making Legislation, published in July, which stated at paragraph 10.9:

“Finally, when writing instructions … to keep in mind the general rule that a bill should only contain legislative propositions. These are propositions that change the law—they bring about”,

a change in the law,

“that would not exist apart from the bill”.

The guide goes on to record:

“It can sometimes be tempting to ask the drafter to prepare a provision that is not intended to change the law but is instead designed to serve some political purpose or to explain or emphasise an existing law”.

I have not sought to omit new subsection (3) because that does contain a legislative proposition, albeit one that merits amendment.

The wording of Clause 1 was discussed in Committee in the other place and it was amended on Report. However, the discussions took as given that there should be a provision stipulating that the Scottish Parliament and Government were permanent. The debate itself was somewhat disjointed, given that the amendments were considered with others. There was no sustained debate focused on subsections (1) and (2).

The Scottish Parliament was created under Section 1(1) of the Scotland Act, and there is nothing in that Act that limits its existence. What then do new subsections (1) and (2) add to the statute book? What is the relationship between these subsections and subsection (3)? New subsection (3) establishes that the Parliament and Government of Scotland,

“are not to be abolished except on the basis of a … referendum”,

in Scotland. It could be argued that this subsection qualifies subsections (1) and (2), given that it envisages circumstances under which the Parliament and Government cease to be permanent. However, it may also be argued that they confuse rather than clarify.

The Constitution Committee noted in its report on the draft clauses that Clause 1 creates,

“the potential for misunderstanding or conflict over the legal status of the Scottish Parliament which may result in legal friction in the future”.

It went on to state:

“If there are different interpretations as to the status of the Scottish Parliament in its present constitutional configuration then it is not implausible that Clause 1 could be interpreted by certain judges to be a form of entrenchment that could not then be repealed by Westminster legislation without the consent either of the Scottish Parliament or the Scottish people voting in a referendum”.

The committee returns to the point in its report on the Bill, drawing attention to the problem with the revised wording, which, it says in paragraph 36, risks,

“introducing uncertainty concerning the absolute nature of parliamentary sovereignty where there should be none”.

The problem is exacerbated by the removal of the word “recognised”.

New Section 63A(1) states that the Parliament and Government are permanent, and subsection (2) may be read as affirming that this section is Parliament’s commitment to that. The political reality is that the Scottish Parliament is permanent—that is not in doubt. Why then introduce these new subsections? They raise more questions than they answer. If they are to remain in the Bill, it would be prudent to accept Amendment 9, tabled by my noble friend Lord Forsyth of Drumlean, which would add:

“Nothing in this section alters the sovereignty of the United Kingdom Parliament”.

I can anticipate some of the arguments that may be deployed by the Minister against that amendment, but those arguments could be utilised in respect of new subsections (1) and (2). I invite my noble friend the Minister to provide the Government’s substantive thinking behind new subsections (1) and (2) and thus get it on the record. I beg to move.

[The Lord Speaker (Baroness D'Souza)]

My Lords, if this amendment is agreed to, I cannot call Amendment 2 by reason of pre-emption.

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[Lord Keen of Elie]

With respect to my noble friend, I will reflect upon all observations that have been made in this House, but without commitment.

[Lord Norton of Louth]

Well, my Lords, this has been a quite fascinating debate. I say to the noble Lord, Lord McAvoy, that I fully accept I am a Lord and not the Lord and therefore am quite capable of getting things wrong. However, on this occasion, I am not sure that I have, given the excellent speeches that we have heard in support of these amendments. I really think it is incumbent to pursue the matter further along the lines that several noble Lords have suggested.

The noble Lord, Lord McAvoy, argues that declaratory statements are appropriate—and indeed they are but, as the guide to legislation makes clear, not necessarily in legislation. Declaratory statements are the sort of thing that should be done at the Dispatch Box. As the Minister pointed out, there have been occasions when declaratory statements have appeared in statute. But what is quite clear from the debate is the unusual context in which we are discussing this, given that it derives from extant legislation and actually complicates, rather than clarifies, what Parliament has already stipulated in legislation.

My starting point in all this is very similar to that of the noble and learned Lord, Lord Hope of Craighead—that the Smith commission heads of agreement said that the Scottish Parliament and Scottish Government will be made permanent. All parties accepted that, as he said, and the debate has proceeded on that basis. It has largely been taken as given.

It strikes me that there are two problems deriving from that. The first is that it has not been properly debated. I really think that the debate this afternoon in your Lordships’ House is the first thorough, proper debate on principle in relation to this issue. What it has demonstrated is the need for further consideration of the matter. The second problem is the extent to which the Government appear to have taken almost literally the heads of agreement—they have just taken what was said and plonked it in legislation. We will see that shortly when we discuss the Sewel convention. The Government’s line is that this is what Lord Sewel said, so that is the convention and the words go into statute. It is not put on a statutory footing; it is just plonked in statute. I think that the same has happened here. Because the heads of agreement said that it would be made permanent, the Government decided to put in place legislation to make it permanent without thinking through the implications.

Those implications have been well drawn out by the Constitution Committee, as my noble friend Lord Lang has pointed out, and I declare an interest as a member of the committee. In the context of the debate, it is well worth reminding your Lordships of the committee’s report on the Bill, especially paragraph 36:

“It is a fundamental principle of the UK constitution that Parliament is sovereign and that no Parliament may bind its successors. There is now a strong argument that Parliament is seeking to limit its own competence in a way that the courts may seek to uphold in future given that it rests on a requirement for popular consent. While we recognise that it is extremely unlikely that this will ever be tested in the courts, it is nonetheless symbolically important and we are concerned that these provisions, as currently worded, risk introducing uncertainty concerning the absolute nature of parliamentary sovereignty where there should be none”.

This is an extremely serious issue.

I agree with my noble friend Lord Lothian and the noble Lord, Lord Kerr of Kinlochard, who have come up with some very positive suggestions. As the noble and learned Lord, Lord Hope of Craighead, said, I see no reason why the Government could not at least go away and think about the wording of the clause and come back. As the noble and learned Lord, Lord McCluskey, has said, we must try to do better. I hope that between now and Report that is exactly what we will do. In the mean time, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

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[Lord Forsyth of Drumlean]

I was not taking exception to anything. I was simply suggesting to the Government that they got it right when they added the words, “it is recognised” to the original Bill, and they got it wrong when they took them out. Fortunately I am not a lawyer, but as a layman, removing the words “it is recognised” indicates that no other party is involved in considering the status of the Parliament.

[Lord Norton of Louth]

Would my noble friend not wish to call in aid Clause 2 where the Government wish to insert the Sewel convention with the words, “But it is recognised”?

[Lord Forsyth of Drumlean]

That is the same point, and I am trying to get on to Clause 2. I have to say to my noble and learned friend that as ever, and always, I am trying to be helpful to the Government, I thought that perhaps on reflection they might wish to add those words. I hope that the Minister will consider the debate we have had on these matters and perhaps come back with his own wording. The clause, as it stands, is completely unsatisfactory, but I beg leave to withdraw my amendment and give notice that we may return to this at a later stage in the proceedings of the Bill.

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[Lord Forsyth of Drumlean]

My Lords, surely the Government can accept this amendment. The Sewel convention, as its name suggests, was a convention established by Lord Sewel during the passage of the first Scotland Bill. The Government are proposing in Clause 2 of the Bill to incorporate the Sewel convention into statute, so that it will have a statutory effect. Therefore, it will cease to be a convention; it will be part of statute. My amendment seeks to remove the words “The Sewel convention” from the Bill, as the Bill seeks to put the Sewel convention on a statutory basis. Henceforth, the Sewel convention will be a section of the consolidated Bill. Surely my noble and learned friend the Minister has been given some discretion in his brief to accept this amendment. I beg to move.

[Lord Norton of Louth]

My Lords, I signed this amendment, and support it. I want to reinforce what my noble friend Lord Forsyth has said. In a way, this will lead into a much fuller discussion on the next set of amendments looking at the content of the clause. But my noble friend is absolutely right about the heading. Either you have a convention or you have a statutory provision. You cannot have a convention in statute, although that is what the Government are seeking to do. This would remove doubt on that point and I concur completely with what my noble friend has said. We will be coming back to the actual substance in more detail, but I think this is a necessary change to the clause.

[Lord Stephen (LD)]

My Lords, it is worth giving support to this amendment and pointing out that the original Sewel convention changed over time. In the Scottish Parliament we used to refer to a “Sewel Motion”, but as the convention developed we introduced the term “legislative consent Motion” and dropped the other term. The Sewel convention was also changed and widened, which we will debate in subsequent amendments. It does seem something of an anomaly.

An interesting point is whether a Member of this House can make an amendment to the title of a clause in this way. It is an interesting point which I hope might be commented on by the Minister. In the past, other Members of this House have been told that that would not be appropriate and it would perhaps be possible for the Government to introduce such a change at a later stage. But it is interesting to see that it is on the Marshalled List today and is being debated. I also note that the noble and learned Lord, Lord Mackay, who is very wise on these matters, is nodding his head, so I think there is an issue there that needs to be explored.

--- Later in debate ---

[Lord Norton of Louth]

My Lords, these amendments, on the whole, move us forward. They are an improvement on what is presently an unsatisfactory provision in the Bill. I drew attention to this at Second Reading, but in doing so I was hardly doing anything novel. Attention was drawn to the problem in the last Parliament by the Political and Constitutional Reform Committee in the other place and by the Constitution Committee of this House. The point was made that this did not even put the Smith commission recommendation in statute. The commission recommended putting the convention on a statutory footing, but the clause as drafted does not do that; it merely takes the words of Lord Sewel and puts them into the clause. It does not provide legal certainty. We are in an unusual position; indeed, this has not happened before. Conventions have been transposed into statute previously, but once in statute, the convention is dead and the statute provides legal certainty.

What we have here is an attempt to provide something in statute while retaining the flexibility of the convention —which basically carries on as a convention. We have to make a decision: either it is a convention, in which case it is not in statute and we just carry on as before—the convention is widely accepted for what it is and is not really in doubt—or we actually put it in statute so that we have legal certainty and clarity, and it is not then likely to come before the courts. The problem with the wording at the moment is that there is that possibility. One could remove “normally”, which would be a major step forward; or we could go with Amendment 12, which the noble and learned Lord, Lord Hope of Craighead, has put forward and which I have put my name to, because it provides legal certainty.

If the Government want to retain the flexibility of a convention, there would have to be some additional provision stipulating quite clearly any exceptional circumstances. That could be, for example, through Amendment 18, in the name of my noble friend Lord Cormack, which does stipulate those circumstances. One might have to take that further in defining what constitutes a national emergency, but it does refine the provision. Either the Government accept an amendment like that or they have to come up with their own. They could accept Amendment 12 and, if they wish, qualify it, but the onus is on the Government. However, I am quite clear that we really cannot proceed with Clause 2 as presently worded. As I say, either we have a convention or we have legal certainty in statute. I do not think we can try to have both.

[Lord McCluskey]

My Lords, I was happy to add my name to Amendment 14 in the name of the noble Lord, Lord Cormack. People keep apologising for not being lawyers, but I think it is time a lawyer apologised for being a lawyer. I am a lawyer and I want to say this. It is commonly said by judges up and down the country that words in a statute should be like a piece of crystal—absolutely clear and unambiguous. They should be clear, unambiguous and definitive, but the word “normally” has no fixed meaning at all. I looked it up in a number of dictionaries. In one, the first definition of “normally” was “rectangular”—I do not know where that takes us.

We use a lot of elastic words from time to time, such as “reasonable”, “appropriate”, “usually” or “a piece of string”. There is no clear meaning or definition to these words, but the difference between a word in a statute and a convention is that, as the noble Lord, Lord Lang, said, a convention is fluid and flexible. You can develop it all the time in the light of experience—qualify it, extend it and so on—but you cannot do that with the words of a statute. My problem is that I do not know what a court would make of the word “normally”.

--- Later in debate ---

[Lord Keen of Elie]

I do not accept the proposition that my noble friend Lord Forsyth advances. The position is that this Parliament is sovereign; in terms of Section 28(7) of the 1998 Act it may legislate for Scotland in all and any matters, including devolved matters. The Sewel convention simply expresses the view that this Parliament will not normally do so. However, that does not fix some black-line test to be applied by the courts as to what is normal and abnormal; it will be a matter for Parliament going forward to decide if or when it would ever legislate for Scotland in respect of a devolved matter.

[Lord Norton of Louth]

My noble and learned friend’s argument was that the Bill puts into statute the recommendations of the Smith commission, and in this case, recommendation 22:

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

Surely on his own argument the Government will have to withdraw Clause 2, not only on the grounds of what constitutes a statutory footing but because it embodies the words of Lord Sewel, which he spoke when the Scotland Bill was before Parliament, and not the convention as understood at the time the commission produced its report.

[Lord Keen of Elie]

I do not accept that, because it appears that what is understood by the Sewel convention is the expression of that convention by Lord Sewel during the passage of the Scotland Act 1998 through Parliament. I indicated before the sundry working arrangements that developed and changed over the passage of the 15 years after that convention came into place, such as DGN10, which is why there is no attempt, and properly so, to express those working arrangements in statutory terms within the Bill.

Scotland Bill

Lord Norton of Louth Excerpts

Tuesday 8th December 2015 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I do not want to take up any more time on this issue. However, I remind the noble Lord, Lord Dunlop, that when I followed the noble Earl, Lord Kinnoull, at Second Reading I asked him a question. The question was whether, having regard to what we see in the Bill, he felt that the Scottish Parliament was able to cope with the additional powers that we are passing to it. Of course it is a matter for that Parliament to work its own procedures; I absolutely understand that. However, we do have an interest, since we are devolving these additional powers. It would be very unfortunate if the Parliament as presently constructed, and designed for a totally different situation, was so overloaded that it could not fulfil its function.

[Lord Norton of Louth (Con)]

My Lords, for similar reasons, I will keep my comments brief, not least since I see that the target is to reach Amendment 42 this evening.

There is general agreement that the noble Lord, Lord Foulkes, has done us a service, because he has identified a problem. The question is how we address that problem, and there are two facets to it. One is how to ensure that there is a review of the present Chamber, but the problem has also been identified as to how, as responsibilities grow, it is going to cope with the demands made on it.

Scotland Bill

Lord Norton of Louth Excerpts

Tuesday 24th November 2015 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, for the past 18 years, we have seen significant measures of constitutional change enacted on an almost unprecedented scale. For most of those 18 years I have drawn attention to the fact that the measures have been disparate and, crucially, discrete. There has been no attempt to locate them within an intellectually coherent approach to constitutional change. They derive from no clear view of the constitution as a constitution. The constitution of the United Kingdom is being fundamentally altered without any attempt to stand back and make sense of where we are going.

We have before us just one of many measures of major constitutional importance, but one that, as the report of the Constitution Committee puts it, devolves powers,

“in a reactive and ad hoc way”.

I declare an interest as a member of the committee. The Bill derives from what the committee identified as a “disjointed approach”. We have a Bill that is rushed and coheres with no clear view of constitutional change. Perhaps when my noble friend the Minister comes to reply to the debate he will explain what, precisely, is the intellectually coherent approach to constitutional change taken by the Government.

The report of the Constitution Committee draws out the problems with the Bill’s constitutional implications. I wish to pursue problems associated with Clauses 1 and 2 that build on and go beyond the committee’s report.

There is a problem with the first two clauses, in terms of not only the basic issues they raise regarding parliamentary sovereignty but the very purpose of legislating. They have been drawn up in the face of the Government’s own guidance on drafting legislation. I quote paragraph 10.9 of the Cabinet Office Guide to Making Legislation, published in July, which states:

“Finally, when writing instructions it is important to keep in mind the general rule that a bill should only contain legislative propositions. These are propositions that change the law—they bring about a legal state of affairs that would not exist apart from the bill. It can sometimes be tempting to ask the drafter to prepare a provision that is not intended to change the law but is instead designed to serve some political purpose or to explain or emphasise an existing law. However, non-legislative provisions of this sort are likely to go wrong because the courts will be inclined to attribute legal effect to them on the grounds that Parliament does not legislate unnecessarily—and the legal effect attributed may be one the Government could not have predicted”.

The Scottish Parliament is already permanent under the terms of the Scotland Act; it remains in being unless this Parliament legislates otherwise. New subsections (1) and (2), introduced by Clause 1, do not make it any more permanent than it already is. Under the doctrine of parliamentary sovereignty, this Parliament could legislate to suspend or abolish the Scottish Parliament. One could provide, as new subsection (3) does, for a referendum to be held before it is abolished, but this Parliament could legislate to remove this provision. The purpose of new subsections (1) and (2) is therefore not clear; they add nothing unless they seek to create some body of higher law and thus conflict with what has been termed the cornerstone of the British constitution.

[Lord Hope of Craighead]

I am fascinated by what the noble Lord is saying, but the problem is that the Smith agreement was to create these undertakings in law. The difficulty I have is how you can reconcile that proposal with the memorandum that has been quoted, and then provide a formula that the courts can adjudicate on. I find that extremely difficult, but one cannot slide round it by saying that this is simply a political exercise.

[Lord Norton of Louth]

I agree with the noble and learned Lord. It puts us in a very difficult situation because there is a commitment to it, but it creates problems by being embodied in the Bill. It raises a problem that should not be there and should perhaps not have been made in the first place, because the Smith commission’s recommendation falls outside the commission’s terms of reference.

Clause 2 is a novel provision. There are precedents for transposing a convention of the constitution into statute, but once it is in statute the convention ceases to exist. The most recent example of this replaces the convention that a Government who lose a vote of confidence in the House of Commons either resign or request a Dissolution with Section 2 of the Fixed-term Parliaments Act 2011. The Act provides legal certainty. It was amended in your Lordships’ House to ensure that it did so.

Clause 2 does not transpose the Sewel convention into statute. It simply states the convention. The convention does not cease to exist. We thus have the convention and we have statute. The flexibility inherent in conventions is not displaced by the certainty of a statute. This creates uncertainty in a way that has not existed when conventions have given way to legal certainty before. Conventions are not enforceable in the courts. What we have here is a statutory provision. As the noble and learned Lord, Lord Hope of Craighead, said, it is not immune from being challenged in the courts. It may never be challenged, but there is no immunity. Will my noble friend the Minister therefore explain why these provisions are in the Bill? How does he justify them, given the Government’s very clear guidance on the purpose of legislating?

The Constitution Committee’s report makes a compelling case for standing back and making sense of where we are. Some may see that as justifying the case for a constitutional convention, as we have heard. I do not. I fear that a convention may rush and produce skewed recommendations. I have argued for a different type of body—one that looks at how the changes we have undertaken, or are undertaking, fit together and how the basic principles underpinning our constitution are maintained. The more that Bills such as this come before us, the more the need for such a body becomes urgent. Does my noble friend the Minister agree that the time has come for us to take stock of where we are, and, if not, why not?