Scotland Bill

Marquess of Lothian Excerpts

Tuesday 8th December 2015 Lords Chamber

[The Marquess of Lothian (Con)]

My Lords, I support Amendment 1. We have heard a lot of intricate and technical arguments and I do not intend to get involved in them.

I listened to the noble and learned Lord, Lord Wallace of Tankerness. He mentioned Section 1 of the Scotland Act. I remember that Act well because I was leading for the Opposition in the other place at that time. I think we all accepted that the Scottish people had asked for devolution, that there would be a Scottish Parliament and that, for all we knew, it would be there for a long time if not for ever. But the word “permanent” was never introduced into the legislation, partly, I suspect, because, as my noble friend Lord Forsyth has said, the draftsmen would not have allowed it, but also because we all accepted that to enter it into the legislation would set a whole lot of other constitutional hares running. That is really my purpose in rising to talk merely about Amendment 1.

What we are looking at here is part of the problem that we have suffered from constitutionally in the country over the past 20 years: we keep on amending the constitution piecemeal, unintentionally, and without regard to the possible consequences in other areas. When I look at this word “permanent”, I see an attempt to say that this Parliament can bind other parliaments by saying that the Scottish Parliament is there for ever.

I said in my speech at Second Reading that, as a young law student in Scotland in the 1960s, I was for ever being taught by various professors about the entrenchment of the Act of Union. Section 1 of the Union with England Act states:

“That the Two Kingdoms of Scotland and England shall … hereof and forever after be United into One Kingdom by the Name of Great Britain”.

I was told that that was entrenched and, parliamentary sovereignty aside, we could accept that would never change. But we went into the Scottish referendum last year on the understanding that, if there had been a yes vote, that Act of Union would have been changed. It would not have been for ever because the Scottish people had decided unilaterally that they did not want it to be for ever. What we are looking at here is very important.

The same applies to this clause. If we believe that permanence is permanence, we should say that it is part of our constitution. Or, we should say that the sovereignty of Parliament is supreme, which is what I have always believed, and that one Parliament cannot bind another. If that is the case, we should not indulge in language that dishonestly suggests that we do not believe that to be true. I am not just talking about this Scotland Bill. If we go down the road of saying that whenever we introduce the word “permanent” into legislation, it will bind subsequent Parliaments for ever, we have substantially changed the constitution of this country, and we would have done that without thought, debate or proper consideration. I do not believe that the clause is necessary.

I did not like devolution. I did not like Section 1 of the Scotland Act. I opposed it, but once it was passed I accepted that it was there and that it would always be there. However, I would not have accepted the word “permanent” being introduced if it suggested that the United Kingdom Parliament was anything less than sovereign. We must think very carefully about this when we look at the Bill. The right reverend Prelate said that we should not get rid of this clause because that would have all sorts of other consequences. But if we leave this clause in, we are giving permission for future Parliaments to create permanence in other areas. I may be too old, possibly, to suffer the consequences of that, but I hope my children and grandchildren will not find that we have abandoned the sovereignty of Parliament just in the cause of getting this Bill through.

[Lord Hope of Craighead]

I want to put to the noble Marquess a point that I mentioned to the noble Lord, Lord Forsyth. The problem is created by paragraph 21 of the heads of agreement, which states in terms:

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

There may be an answer to the point that he raises. The word “permanent” is lay man’s language. After all, this was drafted by people sitting around without consulting lawyers at the time. It could be regarded as lay man’s language and there may be some other way of taking away the word “permanent” but nevertheless fitting it into the UK context. The previous paragraph, paragraph 20, says,

“in the context of Scotland remaining within the UK”.

I am not suggesting a form of words, but I wonder whether the noble Marquess would accept that the Government have a problem in having to give effect to paragraph 21. Maybe there is a way of softening the word “permanent” to fit it in with the United Kingdom and the well-understood constitutional principles. Perhaps we are being too attached to the word “permanent”, which lay men use and was perhaps not very cleverly chosen.

[The Marquess of Lothian]

I accept the noble and learned Lord’s suggestion. The word “permanent” is the one that concerns me. I do not think heads of agreement can change the British constitution—only Parliaments can change the British constitution. We could say something along the lines that we envisage that this will last for a long time or for ever, but we cannot say that it will because that is what transgresses against the sovereignty of Parliament.

[Lord Forsyth of Drumlean]

I am grateful to my noble friend but I think the noble and learned Lord, Lord Hope, was referring to the heads of agreement in the Smith commission. The Smith commission was simply a group of Scottish politicians or representatives from Scottish politics meeting in secret, having a chat and producing heads of agreement. To argue that the Government somehow have to go along with that because they said in advance that they would accept the Smith commission’s recommendations means that the whole object of having a Bill and everything that we are engaging in is a waste of time. That cannot be acceptable.

[The Marquess of Lothian]

I do not disagree with my noble friend. What I said was that I do not think that heads of agreement can change constitutions, nor do I think that Governments, by heads of agreement, can change them. The constitution can only be changed, Parliament by Parliament, by Parliament itself, and that is what this clause seems to argue against. I would very much like to think that we could withdraw this clause and, if necessary, as the noble and learned Lord, Lord Hope, has said, find another way of expressing our hope that what is being done today may go on for a very long time.

[Lord Mackay of Drumadoon (CB)]

My Lords, perhaps I may do my best to introduce a little reality to what has happened in this case because, to quote the well-known words, I was there. I was in your Lordships’ House on 21 July 1998 during a debate on an amendment which I had moved concerning Clause 2 of the then Scotland Bill of that year. I have before me a helpful summary of the history of that event, which may assist noble Lords in deciding the way forward in a real and understandable way.

In one sense, Clause 2 refers to what happened that night when, in the course of appearing in the case, Lord Sewel made a statement which I have had a brief opportunity to look at in Hansard. He said,

“we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament”.—[Official Report, 21/7/98; col. 791.]

That means that the facts of what happened were as follows. I had moved an amendment that did not refer to the convention which would be normally effective. As we all know, the Bill proceeded and, of course, became law. I am informed by the report I have in front of me that,

“Since the establishment of the Scottish Parliament, there appear to have been no significant problems with the operation of the convention. It applies when UK legislation makes provision specifically designed for a devolved purpose”,

and also when UK legislation,

“would alter the legislative competence of the Scottish Parliament or the executive competence of the Scottish”,

Government. While some years later we can speculate about what people in this House were thinking in July of 1998, one of the phrases that causes some irritation and annoyance, and which there is clearly a wish to get rid of, is the term, “normally legislate”. It is quite obvious that that was not discussed in any detail that night.

It may also be of interest to noble Lords to know that the convention has evolved over the years and has been agreed through memoranda of understanding and by the House of Commons Procedure Committee. However, the clause refers to only some of the circumstances in which there is in practice the need for a legislative consent Motion. There is further reference to a document entitled Devolution Guidance Note 10, which was used to address some of these issues. What this proves, I would submit, is that the terms that are causing offence were not the result of any detailed debate between the parties to the proceedings before the House, and I trust that this will be of some assistance to noble Lords.

--- Later in debate ---

[Lord McAvoy (Lab)]

My Lords, I do not know whether I should have asked for a suit of armour before coming to the Dispatch Box this afternoon, but here we go. First, I thank the noble and learned Lord, Lord Hope of Craighead, for being the only speaker so far in this debate, with the possible exception of the right reverend Prelate the Bishop of Chester, to recognise that the mandate for the Westminster Parliament is held in Scotland at the moment by the Scottish National Party. It clearly won the election and it is a blow to this House—that is, there is something missing from it—when we do not have that voice here to put its point of view. The great defenders of democracy this afternoon have not seen fit to refer to that lack of democracy, so I thank the noble and learned Lord. I know that he was not putting forward the Scottish National Party’s point of view but he was putting forward views that it has represented at various times, and there is nothing at all wrong with that.

I also take this point of view. If there is consensus on the changes that the noble and learned Lord, Lord Hope of Craighead, is putting forward—consensus between the UK Government and the Scottish Government that these provisions are technically superior and would improve the legislation—we would be happy to support his amendment. We welcome the noble and learned Lord’s initiative in doing this.

Everybody recognises the position of the noble Lord, Lord Norton of Louth, as that of probably the prime constitutional expert, but he does not always get it right. I am sure he is modest enough to recognise that as well. The thing is that these amendments were moved by Labour in the House of Commons and, to the Government’s credit, they accepted them.

I have to express a level of disappointment, which the right reverend Prelate identified. It seems that some Members of your Lordships’ House are still fighting the devolution battle, which was lost in the referendum of 1998. The danger for your Lordships’ House, although I am not saying that this is the case, is in coming across as unconstructive by objecting to the very existence of devolution, and putting forward with negativity amendments that would destroy the whole concept of the Scottish Parliament. Not all the amendments tabled but many of them would destroy that concept. The facts of life are that while I fought on the other side, the people in Scotland—

[The Marquess of Lothian]

Can the noble Lord explain how the removal of new subsection (1) would affect the existence of the Scottish Parliament?

--- Later in debate ---

[Lord Forsyth of Drumlean]

My Lords, that was an interesting response because, first, my noble and learned friend has underlined, quite rightly, the importance of not having declaratory material in legislation. However, we have just spent the best part of two and a half hours trying to persuade him of that. Secondly, he also made the very sensible point that the whole point of these proceedings is that Governments, legislatures and draftsmen are not infallible, and he took it upon himself to remove that original wording from the original Bill, or at least his colleagues in the House of Commons did.

[The Marquess of Lothian]

My noble friend is being asked to withdraw the words he is trying to insert because we do not know who is recognising? Subsection (3) of the proposed new section contains the words, “it is declared”. Do we know who is declaring?

[Lord Forsyth of Drumlean]

My noble friend has stolen my thunder. He is absolutely right. The whole point and discussion we have had has been about the nature of the declaratory legislation. Of course, it would have been open to my noble and learned friend if he thought that the effect of my amendment, which after all was originally the Government’s proposal, was that it would create uncertainty, as my noble and learned friend Lord Mackay indicated. He made the point that there are recognitions and declarations being made when it is not clear who is making them.

We could change the amendment. The Minister could bring back an amendment saying that it is recognised by the UK Parliament, or whatever he thought appropriate. However the truth of the matter is that those words were removed for a purpose, and the purpose was to make the subterfuge which is being presented to the Scottish people that somehow this Scottish Parliament has a degree of independence of its own. That is being done for political reasons. I think that they are foolish political reasons because they are creating a false position as to the reality.

--- Later in debate ---

[The Lord Bishop of Chester]

My Lords, I think that nothing in this Bill qualifies the ultimate sovereignty of the UK Parliament. My concern about the proposed insertion reflects what I said earlier—namely, that we need to recognise that devolution is changing the way the United Kingdom is governed. It just is. The Scotland Bill, when enacted, will have a major effect in Scotland in ways that I suspect the Scots have not taken on board. The noble Lord, Lord Forsyth, has made this point before. Normally, I agree with what he says. However, we need to face the fact that although devolution will not change the ultimate sovereignty of this Parliament, it does change the character of governance in this country. We need to accept that, go with it and own it, even if we do not like it.

There has been some discussion about whether or not devolution aids the separatist cause. I suspect that if we had not had devolution, and certainly if we did not have this Bill and the Smith commission, there would be much more of a threat to the union than is the case. The cultural forces of separation are much deeper than whether we draft a Bill this way, that way or the other. Although in one sense I am not bothered whether or not this provision is added to the Bill, it is symptomatic of an attitude which does not face the reality of what devolution is all about.

[The Marquess of Lothian]

My Lords, I put a question to my noble friend Lord Forsyth. Having listened to this argument, does he agree with me that—perhaps I am being oversuspicious—somehow what this clause is about is trying to say to the people of Scotland, “It is all right. This is for ever”, and then saying to this House, “We know that it does not really mean that, because the sovereignty of Parliament means that it might not be for ever in future”? But then my noble friend comes along and says, “Let us put that bit into this provision”. The reason why my noble and learned friend the Minister is resisting it is because that would defeat the purpose of trying to persuade—I think dishonestly—the people of Scotland that the permanence means what it says.

[Lord Forsyth of Drumlean]

My noble friend puts it so succinctly. I wish that I had the ability to put it as concisely as he does. I absolutely agree. My noble and learned friend the Minister wanted to intervene. I will happily give way to him if he still wishes to make his point.

--- Later in debate ---

[Lord Forsyth of Drumlean]

My Lords, I think this may be a good moment for me to withdraw my amendment. However, before doing so, I gently point out to my noble and learned friend the very wise words of my noble friend the Earl of Lothian.

[The Marquess of Lothian]

The Marquess of Lothian!

[Lord Forsyth of Drumlean]

The Marquess of Lothian. I am sorry. My noble friend has had so many names that I find it difficult to keep up. If we are to take the Government at their word—I always do, of course—they have said that it is necessary to have in the Bill a piece of declaratory legislation that makes it clear that the Scottish Parliament enjoys permanence, but at the same time the sovereignty of this Parliament remains unaffected, then the two should be put together and put in the Bill. For lawyers to argue that if you read a particular section and interpret it in a particular way, it means something else, simply will not do in the context of a view that it is necessary to write graffiti on legislation. I do not think that the Government should be doing that at all. However, if they are doing it, then what is sauce for the goose is sauce for the gander. I am very disappointed that my optimism has proved confounded, but I will certainly want to return to the matter.