Scotland Bill

Lord Stephen Excerpts

Tuesday 8th December 2015 Lords Chamber

[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.

[Lord Steel of Aikwood (LD)]

My Lords, I back up what my noble friend has said. I was in the House when we passed the Scotland Bill and I was never, ever happy with having the Sewel convention translated into law. So I am very glad to support the amendment and it is high time that this was put right.

--- Later in debate ---

Moved by

[Lord Stephen]

11: Clause 2, page 2, line 3, after “Parliament)” insert “in subsection (7) at the beginning insert “Except as provided for in subsection (8),””

[Lord Stephen]

My Lords, in moving Amendment 11, I will speak also to Amendments 15 and 16, which are in my name and that of my noble and learned friend Lord Wallace of Tankerness. We have also signed Amendment 14 in the name of the noble Lord, Lord Cormack, which leaves out the word “normally” in Clause 2.

As background, and to develop what I was saying earlier, Amendments 15 and 16 provide for the consent of the Scottish Parliament to be sought in the event of any alteration to,

“the legislative competence of the Scottish Parliament or the executive competence of the Scottish Government”.

I acknowledge the support that has been given by the Law Society of Scotland in terms of the background and the drafting of these amendments, which reflect normal working practice—the normal arrangements that exist currently and have developed, as my noble friend Lord Steel of Aikwood identified, over the period of the existence of the Scottish Parliament; that is, since 1999.

The Sewel convention applies when UK legislation makes provision specifically designed for a devolved purpose. The convention has been agreed in memoranda of understanding and by the House of Commons Procedure Committee, and its practical usage is explained in Devolution Guidance Note 10. DGN10 does not apply to incidental or consequential provisions in relation to a reserved matter. It does apply to draft Bills and Private Members’ Bills. It will also apparently continue to apply to any statutory formulation of the convention. It is significant that DGN10 also requires the consent of the Scottish Parliament in respect of provisions of a Bill before the UK Parliament which would alter the legislative competence of the Scottish Parliament or the executive competence of Scottish Ministers. It seems, however, that Clause 2 would not apply to this latter category of provision so Amendment 16 is intended to remedy that deficiency.

The Secretary of State for Scotland in the other place rejected the arguments in relation to this. When these matters were considered in Committee on 15 June, David Mundell stated:

“On amendments 19 and 20 … as I have said, the Bill adopts the language that formed the basis of the Sewel convention … We have established that the Bill clearly states that the UK Parliament ‘will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.’ That is what the well-established Sewel convention does, and it has been consistently adhered to by successive UK Governments. We have had more than 15 years of good practice of the convention. It has not been breached. In the context of my earlier remarks, I do not accept that it could be. I believe that that current good practice will continue”.—[Official Report, Commons, 15/6/15; col. 107.]

Unfortunately, Clause 2 deals with only part of the Sewel convention—the part declared by Lord Sewel in the Scotland Bill back in 1998—and does not cover the point in DGN10 about changes to the legislative competence of the Parliament or the executive competence of the Scottish Government. This deficiency may indicate that the good practice which the Secretary of State wishes to preserve will not apply to these types of issue. My simple question would be: why leave the doubt?

Amendment 11 would qualify Section 28(7) of the Scotland Act 1998 to allow for the possibility of circumstances where the power of the UK Parliament to make laws for Scotland is constrained. Taken together with Amendments 15 and 16, Amendment 11 would allow the Scottish Parliament to withhold its consent from UK legislation which relates to devolved matters. Yes, that would impinge on the sovereignty of the UK Parliament but, as someone who supports a federal settlement, I have no problem with restricting the sovereignty of this Parliament. For those who support a constitutional convention—there are many around this Chamber—and those who would support a federal settlement arising from this, we all have to recognise that the sovereignty of the UK Parliament would change.

[Lord Gordon of Strathblane (Lab)]

In the light of what the noble Lord has said, would it not be logical that legislative consent from the Scottish Parliament should have preceded the legislation that the Committee is discussing today? The Bill is, after all, affecting Scotland yet we do not have the legislative consent of the Scottish Parliament in advance.

[Lord Stephen]

I agree that there is an issue there. I wonder whether the discussions that will take place in coming weeks, and perhaps even months, behind closed doors between the Scottish Government and the UK Government would be greatly assisted if there was a clear statement on the record from the Scottish Parliament that it supported this legislation. While I believe that both Houses will eventually indicate their support for this legislation, it would be helpful to have that clear support on the record now.

A lot has been said today about the monolithic, unassailable sovereignty of the UK Parliament but I ask the Committee to consider this point: the UK Government have introduced a concept called English votes for English laws. Perhaps the Minister would care to comment on this: the Government are pursuing a course whereby legislation passed by the House of Lords and the House of Commons can be vetoed by a subset of the House of Commons, so this Government have already conceded the point of a limitation on the sovereignty of the UK Parliament. If it is sauce for the English goose for elected English MPs to veto legislation for England on devolved matters, it must be sauce for the Scottish gander for properly and democratically elected Members of the Scottish Parliament to be able to veto Westminster legislation affecting Scotland on devolved matters.

[Lord Hope of Craighead]

My Lords, perhaps it would be helpful for me to speak to my Amendment 12, which in effect restates in combination the points just made in support of Amendments 11, 15 and 16. I will also refer to Amendment 20, which deals with a related issue.

I think I saw that the noble Lord, Lord Lang, was about to rise to his feet and the background to my Amendment 12 is paragraph 38 of the Constitution Committee’s report, which draws attention to problems with the Sewel convention as his committee saw them. One problem was the use of “normally”, which gives rise to doubt as to what exactly that means. There was also the need to clarify the reach of the convention, which was the point just made in support of Amendment 11 and its related amendments. My Amendment 12 puts together in a package the same point that was referred to on those other amendments.

Amendment 20, however, deals with an issue which is closely related to existing practice. It refers to a:

“Duty to consult the Scottish Government on Bills applying to Scotland”.

It says, shortly, that:

“A Minister of the Crown must not introduce a Bill into the Parliament of the United Kingdom … that would make provision applying to Scotland unless a Minister of the Crown has consulted the Scottish Ministers”.

It is intended to reflect what I understand to be the existing practice and to follow on the points made in relation to restating Clause 2 in appropriate statutory language.

I should make it clear, as I did earlier on this afternoon, that the amendments to which I am speaking are in words that were in effect provided for me by the Scottish Government because they were tabled in June this year, in advance of Committee in the House of Commons. But I restate that I do not speak to these amendments on behalf of anybody other than myself; I simply see them as sensible amendments which have merit on their own wording. It is with that in mind that I speak to these two amendments.

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[Lord Keen of Elie]

I am obliged for the contributions that have been made with regard to Clause 2 and the proposed amendments thereto. I shall begin by making an observation on a point made by the noble Lord, Lord Stephen, with regard to English votes. The provision with regard to English votes does not limit the sovereignty of this Parliament in any sense. English votes introduces the principle of English consent for English measures. The new procedures maintain the important principle of Members of Parliament from all parts of the United Kingdom being able to deliberate and vote on all legislation. Members of Parliament are not excluded from the legislative process. I would not accept the proposition that these provisions somehow derogate from the sovereignty of this Parliament.

[Lord Stephen]

Does the Minister accept that the House of Commons could pass something and the House of Lords could agree with that proposal but it could then be vetoed by the subgroup of the House of Commons who are defined as English Members of Parliament?

[Lord Keen of Elie]

I am not quite sure about the use of the term “veto”.

[Lord Stephen]

Would the Minister prefer “block” or “prevent being enacted”?

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[Lord Keen of Elie]

It may be that further working arrangements will develop as between the two Parliaments with respect to legislation that touches upon devolved matters. However, the provision as expressed in the Bill is simply that as expressed by Lord Sewel at the time the Scotland Act passed through Parliament in 1998. It merely says that while in terms of Section 28 we have the power to legislate for Scotland in all matters, including devolved matters, we will not normally do so.

[Lord Stephen]

As noble Lords will know, the Liberal Democrats are very supportive of the Bill, but the explanation just given by the Minister of the Sewel convention and the issues around it worries me greatly. From the outset, I say that I strongly support the amendment in the name of the noble Lord, Lord Cormack, which would leave out “normally”. It seems that much of the Minister’s argument about protecting the sovereignty of the UK Parliament hangs on retaining the word “normally”, because that then gives the UK Parliament very wide discretion, as I read it, to legislate, as the Minister explains it, in areas that could include education, transport, housing, health and all the issues that are the very stuff of the Scottish Parliament. If that is the Minister’s intention, that is hugely controversial. I will say no more than that, because I do not want to develop this issue into a major argument on these points.

However, let me be clear. Back in 1998, when the Sewel convention was introduced, it was not in any circumstances with a view to this Parliament stepping in to legislate in the areas of transport, health and education if the Scottish Parliament was to make a mess of it. That was absolutely not the reason why it was introduced. Its wording and the reasons for its introduction are quite clear; they are here in Clause 2, which says that,

“it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”.

Therefore, even by the Minister’s own explanation, the consent of the Scottish Parliament to legislate in these potentially controversial areas would be required, and it would not happen. There is no way that the Scottish Parliament, in terms of the Sewel Motion as it went back to 1998, would cover legislation in health and education—

[Lord Davidson of Glen Clova]

I have a feeling that the Committee is going down the wrong line here. The Minister has made it entirely clear that he has been talking about something that would never happen. It is just a logical construct. He is looking into the reality, and the notion that one should feel that somehow the UK Parliament is asserting a power to intervene in the affairs of the Scottish Government is a flight of fancy—it is not real.

[Lord Stephen]

I will readily grab that escape route, and I thank the noble and learned Lord for that assistance. I hope that that is the case, although much has been repeatedly made of the absolute sovereignty of the UK Parliament. If noble Lords check the record, they will find that the Minister has mentioned it many times.

However, moving away from that issue, I strongly agree with the noble Lord, Lord Norton. You either keep the convention or you enshrine it in statute—I think that the wording from the Smith commission was “put it on a statutory footing”. It was not the Sewel convention of 1998 that was expected to be put on a statutory footing; it was the Sewel convention as it exists today, as the Smith commission knows it and as it has been working in the Scottish Parliament and between the UK Government and the Scottish Government. All aspects of the Sewel convention should be on a statutory footing, not just one narrow aspect that started in 1998 and has now gone. If we were forced to go in that direction, then, as the noble Lord, Lord Norton, pointed out, one tiny but important element of the Sewel convention would be in statute but not all the rest. To me, that would be ridiculous.

As ever, the noble Lord, Lord Forsyth, is logically correct: any Sewel Motions and legislative consent Motions could absolutely be prevented, with everything in devolved areas having to be dealt with by the Scottish Parliament. The UK Parliament—the House of Commons and the House of Lords—would stop legislating in these areas. However, I conclude by saying that the whole process of legislative consent Motions has been accepted and they have been commonplace. Some people have asked how often they have been used. They are used all the time in the Scottish Parliament. There must have been dozens, if not hundreds, of legislative consent Motions. They work well. Why try to stop or change something that has been accepted and works well? Let us simply put it on a statutory footing and get on with it. I beg leave to withdraw the amendment.

Amendment 11 withdrawn.