Scotland Bill

Lord Wallace of Tankerness Excerpts

Monday 21st March 2016 Lords Chamber

[Lord McCluskey (CB)]

My Lords, I accept that Amendments 1 and 2 could not be moved, and will not be moved by me or by the noble and learned Lord, Lord Wallace of Tankerness. However, in the light of the Minister’s statement, I make a brief comment. It sounds to me very like a Pepper v Hart type of statement, designed to guide a court, when a court sits down to decide on an ambiguity in the interpretation or application of the provision. I am not at all sure that it will work, but it is no doubt the best that the Minister could come up with, even with the assistance from behind him of the noble and learned Lord, Lord Mackay of Clashfern, who is unfortunately unable to be here today. It does not solve the problem, but it is better than nothing.

The very fact of making the statement appears to be to concede the point that we were all making, that the provision in the clause is just a shibboleth, because Pepper and Hart statements have no locus at all unless in a court of law when a statement is invoked to assist the interpretation. However clear the statement is, it is not binding on the court, which has a duty to apply the words of the statute to determine what it means. However, I welcome it, while regretting that the Government did not pick up on the amendment proposed by the noble and learned Lord, Lord Wallace of Tankerness, which would have solved the problem within the statute itself, and we would not have needed this. However, in the light of the Government’s attitude, we have to leave it there.

[Lord Wallace of Tankerness (LD)]

My Lords, following on from the noble and learned Lord, Lord McCluskey, it was with some considerable regret that I agreed not to move Amendment 2, part of which I shall come back to in a moment. I welcome the Minister’s statement as far as it goes, which is not very far. I agree with the noble and learned Lord, Lord McCluskey, that it is an attempt at a sort of Pepper v Hart statement, but I make two observations on that. First, for Pepper v Hart to come into play, there has to be an ambiguity that has to be resolved. If, in fact, there is no ambiguity—and I am not sure whether the absence of something that has been debated in Parliament and expressly rejected by the Government could amount to an ambiguity as they have made it very clear that they do not wish for Devolution Guidance Note 10 to be part of what is on the statute book—I am not sure that Pepper v Hart would come into play.

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[Lord McCluskey]

The noble and learned Lord talked about the likelihood of litigation. Is he aware—I am sure he is—that the Human Rights Act itself is extremely productive of legislation at all levels of our courts in Scotland and elsewhere? Therefore, if the Government proceed with their intention to introduce a domestic human rights Act, and that has a direct effect upon the Scotland Act and the Human Rights Act in Scotland, then there is bound to be litigation that in turn will raise the question of the meaning of this so-called clause.

[Lord Wallace of Tankerness]

As I said, these are not academic issues but very real ones. The Human Rights Act could certainly give rise to them as indeed could measures in the Trade Union Bill. They would not necessarily be issues between Governments; they could be issues that impacted on other public bodies in Scotland, for example. That is why it is regrettable that the Government have not been more forthcoming and willing to look at the proposals that we want to put on the statute book.

[Lord Cormack (Con)]

My Lords, both noble and learned Lords have made powerful points. I do not wish to make anything other than a very brief intervention, but I have amendments, strongly supported both in Committee and on Report, concerning the word “normally”. I am extremely sorry that the Minister has not really met that point. It has been made with great eloquence by noble Lords learned in the law, and it was made by those of us throughout the United Kingdom who share the concern of the two noble and learned Lords who have just spoken. I am sorry that their amendments have not been deemed admissible. Of course they have done entirely properly in not seeking to move them, but this is an unsatisfactory Bill and we are in an unsatisfactory situation.

I put it on record that I remain extremely concerned about the use of this very loose word “normally”. I believe as a layman that it is clearly something that could be justiciable. I know not what will happen, but I fear that we are not putting on the statute book something that recognises what noble Lords in all parts of this House have recognised. In my opinion this is a flaw in the Bill, and it has been demonstrated as such by many people. I am sorry that the Minister has not felt able to move on this issue.

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[Lord Keen of Elie]

My Lords, I am obliged for all the contributions from your Lordships in respect of this matter. I will not seek to repeat the arguments that were rehearsed so fully in Committee and on Report but I wish to make some observations.

The Smith agreement was explicit in its reference to putting the Sewel convention on a statutory footing, and that is what has been done—essentially as the noble Lord, Lord Stephen, noted—in a declaratory sense.

Mention has been made repeatedly of the case of Pepper v Hart. I am not going to go there in any detail, but the starting point for that case is ambiguity. A number of noble Lords indicated that there was no ambiguity. I am inclined to agree with that—but not necessarily for the same reasons. However, it appears to me that if there were room for ambiguity then of course Pepper v Hart might come into consideration.

Reference was made to the LCM—the legislative consent Motion—process and the suggestion that it should be incorporated into the clause. With respect, the LCM is a process of the Scottish Parliament, not of this Parliament—it is what the Scottish Parliament does in response to us applying the Sewel convention—and therefore it would not be appropriate to bring it into Clause 2.

There is then the question of what is or is not a devolved matter. This point—and indeed the difference that I have with the noble and learned Lord, Lord Wallace—is perhaps highlighted by the amendment that he originally proposed. The last part of that amendment says:

“For the purposes of subsection (8), the words ‘devolved matters’ means any matter not reserved to the United Kingdom Parliament under this Act”.

With respect, the Scotland Act 1998 is a great deal more sophisticated than saying that all matters listed in Schedule 5, which are reserved, are the only matters not requiring the consent of the Scottish Parliament. It entirely ignores the fact that, for example, it is not within the competence of the Scottish Parliament to modify any of the protected enactments listed in Part 1 of Schedule 4 to the Scotland Act.

[Lord Wallace of Tankerness]

Rather than read out his brief, will the noble and learned Lord acknowledge that I said that parts of Schedule 4 also exclude matters from being within the legislative competence of the Scottish Parliament? If I have not, with my own resources, got the amendment right, can the noble and learned Lord, with all the great resources that he has in his office—I know the expertise that he has there—say what definition he would give of “devolved matters”?

[Lord Keen of Elie]

There is no strict requirement to go into the definition of “devolved matters” at this stage, but it is perfectly clear from the amendment that the noble and learned Lord originally intimated that he contemplated it listing only the matters in Schedule 5 to the Act. I appreciate that in making observations in this House he qualified that statement, but the point is that the question of what is reserved goes well beyond Schedule 5 and includes all those protected enactments in Part 1 of Schedule 4.

The point that I was going to come to is this: one of the protected enactments is the Human Rights Act. This Government were elected upon a manifesto to address the Human Rights Act and to amend its terms by way of a Bill of Rights. That matter will be addressed in due course, but this is not the time or the place to consider what the implications of that may or may not be in the context of all the devolved Administrations in the United Kingdom. I would not consider it appropriate to go there.

[Lord Wallace of Tankerness]

I am not asking the Minister to tell us what is going to be in it but, if a proposed new British Bill of Rights confers new responsibilities on Scottish Ministers, does he believe that is a matter to which Devolution Guidance Note 10 would apply and that the United Kingdom Government would respect it as such and expect a legislative consent Motion in the Scottish Parliament? He can clear this matter up if he is prepared to say yes to that. If he is not, we can only suspect the worst.

[Lord Keen of Elie]

There is no reason to suspect the worst. What we have to do is await the relevant Bill of Rights. Then, when we have considered its terms, we shall see whether it does or does not intrude upon matters covered by DGN10. If it does, then DGN10 will be addressed, as it always has been. There is a clear and consistent record of the United Kingdom Parliament and this Government proceeding in accordance with DGN10 in the context of devolved issues. I do not anticipate, and have no reason to anticipate, that that will change in the future. However, I am not going to comment on a Bill that is not before this House and the terms of which have not yet been finalised.

In these circumstances it appears to us that Clause 2 is sufficient for the purpose of expressing, essentially, a declarator of the Sewel convention in accordance with the Smith commission agreement.

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[Lord Cormack]

My Lords, a constant theme in your Lordships’ House is that the other place has inadequate opportunity to scrutinise legislation thoroughly. When we say that, we always then go on to say that in your Lordships’ House things are different. In this case, they are not. It is nothing short of disgraceful that the other place has not had an opportunity to debate the fiscal framework. Twenty-nine of us put our views on that on the record when we had a Division a few weeks ago, but it was a vain gesture.

I speak as a Member of your Lordships’ House who feels proud of our reputation for scrutiny and our ability to look at Bills forensically and to get change by either passing more amendments or, more regularly, by getting the Government to recognise that points of substance have been made and that alterations of substance should follow. In this case, that has not been possible.

It is deeply regrettable that that is the case. I make no personal criticism of my noble friends on the Front Bench; they are men of great charm and ability. However, they have been working under orders and have not been able to respond to points of real weight and substance because the brief has not allowed them to do so. In so many ways, this is a one-off Bill. I trust, above all, that in the context of scrutiny it will remain a one-off Bill.

[Lord Wallace of Tankerness]

My Lords, like the noble and learned Lord, Lord McCluskey, I thought that the remarks made by the noble Lord, Lord Dunlop, in replying to the last amendment, when he thanked everybody, were more suitable for the Bill do now pass debate. However, although I did not take part in that discussion, I would not wish in any way to lessen the appreciation I express on behalf of my colleagues to those who have helped to get the Bill to its present state, not least the Bill team, with some of whom I have worked in the past and know of their exceptional quality and hard work. I particularly thank the Minister, who with his customary courtesy has gone out of his way to meet us, engage with us and discuss issues with us—regrettably, not always to any effect from my point of view, but no doubt from his point of view it has been very effective. That is very much appreciated.

Aspects of this process have not been at all satisfactory. The short period that we had in which to look at the fiscal framework was not satisfactory. The Bill could be in a better state than it is and perhaps more favourably reflect the spirit of the Smith commission. The House has not done much to respect, or even give proper consideration to, the points made by the Scottish Parliament’s committee that looked at the Bill. Those are matters of regret and do not augur well for having mutual respect and trying to improve the relationships between the institutions of the Westminster and Scottish Parliaments. But that is where we are.

This amendment addresses the Barnett formula. The Minister referred to the vow in his wind-up speech. I happen to believe that the referendum was won in spite of rather than because of it. However, it is important that we celebrate the fact that we won the referendum and are not facing independence day on Thursday of this week, with one dreads to think what consequences.

I note that, when I stood where the Minister stands now, the most difficult question I ever had to answer in one of these debates came from the noble Lord, Lord Turnbull, who referred to the vow. It says:

“We agree that the UK exists to ensure opportunity and security for all by sharing our resources equitably across all four nations to secure the defence, prosperity and welfare of every citizen”.

It goes on to refer to the,

“continuation of the Barnett allocation for resources”.

I was asked how I could square the equitable sharing of resources with the continuation of the Barnett formula. I struggled to find an answer. I will allow the Minister to find his.

[Lord Selkirk of Douglas (Con)]

My Lords, when the Calman commission sat, the most important principles that it was trying to support were equity and accountability; this echoes what the noble and learned Lord has just said. I remind the House that on 7 September 2004, the day the Scottish Parliament opened at Holyrood, the Reverend Charles Robertson, minister of the Canongate church, was first to speak during the regular time for reflection. He reminded us of the previous uses of the site for the newly-built Parliament. It had been a house of refuge, a soup kitchen for the destitute and Scotland’s largest independent geriatric hospital, not to mention the site of a profusion of well-known and much-loved breweries. Given this history, it is perhaps not surprising that, on that day, the then First Minister, the noble Lord, Lord McConnell, urged MSPs to “raise their game”.

This legislation—the amendment relates to the heart of it—will bring about major changes in the powers and competence of the Scottish Parliament as, for the first time, the majority of funds that the Scottish Government spend will come from revenues raised in Scotland. When the prevailing philosophy has been a culture of spend, spend, spend, popularity is relatively easily won. That will now change as tough decisions will have to be made on how services will be financed.

There seems to be some uncertainty about who observed:

“With great power comes great responsibility”.

Some attribute it to Voltaire. In a debate in the other place in 1817, William Lamb, later Prime Minister Lord Melbourne, made an exhortation to the press. He begged leave to remind them of their,

“duty to apply to themselves a maxim which they never neglected to urge on the consideration of government—‘that the possession of great power necessarily implies great responsibility’”.—[Official Report, Commons, 27/6/1817; col. 1227.]

Similarly, on the same subject, Prime Minister Sir Winston Churchill said:

“The price of greatness is responsibility”.

What Churchill meant was that anyone who aspires to greatness must also be willing to shoulder the accompanying responsibilities. His advice still holds good today.