Second Reading debate resumed.
My Lords, it gives me great pleasure to open the second day of the debate on the Second Reading of the Scotland Bill. Yesterday we had a wide variety of interesting contributions to this debate. I am sure that we shall hear many more today.Much has been said about the constitutional architecture; the position of Scotland in the Union; the relationships between the devolved parliament and administration and their counterparts in London; relations with Europe; and the financial arrangements for the parliament. These are all important issues which must be debated properly. But the parliament is not just about the dry bones of these arrangements the details of which will be known only to those in close contact with it. The real heart of the matter is what the parliament will mean for the very people of Scotland who decided that it should come into being. The Bill gives the Scottish parliament the power to make laws for Scotland. Substantial scope to do so will be devolved to Edinburgh as a result of the Bill. The Bill sets out clearly and in necessary detail the powers to be reserved to Westminster. The fact that anything that is not listed in the Bill as reserved will be devolved to Edinburgh means that a very wide range of responsibilities will be transferred. The powers to be devolved are in fields which are crucial to Scotland's economic and social well-being: health, education and training, local government, social work and housing, economic development and transport, law and home affairs, environment, and agriculture, forestry and fishing. These are all issues that have an effect on the everyday life of Scotland. It is particularly inspiring that for the first time in 300 years legislators elected solely by voters living in Scotland will have the power to pursue a distinctive Scottish agenda which meets the needs and aspirations of the Scottish people. There will be an opportunity that is simply not available at Westminster to devote significant amounts of time to debate and legislate on Scottish issues which have been neglected for many years. For example, I expect that land reform—so badly needed for so long—will be among the top priorities for the Scottish parliament. Some of the doom and gloom speeches made yesterday which adopted phrases such as "despondency close to despair" at the prospect of doomsday scenarios I found to be both depressing and unrealistic. It was strange to hear some noble Lords speak as if the contents of the Bill had appeared out of nowhere; as if the Scottish Constitutional Convention had not worked hard and long for some six years to produce its blueprint for a Parliament; as if the Government's White Paper had not been debated in both Houses of this Parliament before a referendum in which the people of Scotland had said a resounding "Yes" to the two questions put to them. From the Front Bench opposite the noble Lord, Lord Mackay of Ardbrecknish, very correctly and properly accepted the decision of the people and said that the only thing to do was to try to make the parliament work. However, other speakers yesterday appeared to believe that the whole idea of a Scottish parliament was a bad one—one noble Lord even said that it was a rotten idea—and that whatever the people had said or thought, it would all end in tears. I regard such an attitude as rather arrogant and patronising, especially when it comes from noble Lords whose party's views were decisively rejected by the people of Scotland. The Scottish Constitutional Convention drew on the experience of political parties and Scottish civic society—organisations large and small—and the Churches and trade unions to build a vision of a better Scotland. I take great personal pleasure as the current co-chair of the convention in seeing the results of their years of work coming to fruition in legislation. The Scottish parliament will be closer to the people of Scotland, not just geographically but in the way it operates. It will be for the parliament itself to decide its working methods, but I expect the parliament and the executive which will be accountable to it to have their collective ears firmly to the ground. Listening as well as acting will be a very high priority. I am particularly pleased that the constitutional convention recognised that a unicameral legislature can offer the possibility of a new, more inclusive style of politics. When the word "unicameral" is used in this House many noble Lords appear to be able only to conjure up a picture of another place as it now stands alone without a second chamber. I know of no unicameral legislature in the world that is structured just like the British House of Commons. I can speak from first-hand experience of the unicameral parliaments of the Nordic countries. Norway, Sweden, Finland, Denmark and Iceland are recognised throughout the world as successful, healthy and well-functioning democracies. All of them have unicameral parliaments. They organise in different ways. My noble friend Lord Hughes indicated yesterday the mechanism by which Norway met its requirements and how its unicameral Storting divided for certain legislative purposes. There are many different ways to ensure adequate scrutiny, revision and checks and balances. The Nordic parliaments demonstrate how much arrangements can improve openness and provide for penetrating scrutiny of the executive. We are determined to learn from the experience of others and ensure that proposals for legislation are thoroughly and openly examined from their early stages. I should like to quote some independent research into single chamber parliaments conducted recently by the Constitution Unit of the School of Public Policy at University College London. Noble Lords will find this report in the Library among the papers for the Consultative Steering Group established by my right honourable friend the Secretary of State for Scotland and chaired by my honourable friend the Minister of State for Devolution, Mr. Henry McLeish. The authors of the report state:
They add,"Parliaments need to be designed to ensure they are a constant, credible and legitimate check on government … well designed unicameral systems can produce good government".
The members of the Scottish parliament will be close to the people they represent. Because of the voting system that we are putting in place they will also be a fair reflection of opinion in the country. In a relatively small country it will be possible for ideas, proposals and even draft Bills to be debated openly, sensibly and constructively. I have seen this happen in Nordic countries. It can and will happen in Scotland. I am quite sure that when making decisions the parliament will want to experiment with new ways of consultation and pre-legislative scrutiny. The work being carried out by the Consultative Steering Group will give the parliament a flying start in determining its procedures. The Consultative Steering Group already seeks to involve Scottish civic society through its consultation on how the parliament should work. It is one of the largest consultation exercises undertaken in Scotland for some time. The views of groups and individuals will be considered by the CSG in presenting its recommendations later this year. In closing, I look ahead a few years. I hope to see a parliament that is about openness, accountability and accessibility, in which the people of Scotland can play a real part in shaping their future and not be dismayed or put off by exclusivity, mystique and seeming irrelevance. I say that this is my hope for it is not in my gift to deliver this. That responsibility falls squarely on the politicians of Scotland and above all on the people of Scotland who showed their willingness to take on that responsibility last September. It is right that this House scrutinises the Scotland Bill properly, but in looking at the detail we must remember what should now be an agreed vision, as all political parties in this House are committed to make the Scottish parliament a success. Let us work together to ensure that we have a scheme that recognises the benefits of diversity within the Union. We in this House have a responsibility to give Scotland the Bill that it so clearly wants for the parliament it so clearly wants. I hope and trust that we shall deliver."The [Scotland] Bill should result in a Parliament which will serve Scotland well in the same vein as the Swedish Riksdag or the Danish Folketing".
My Lords, the Scotland Bill is the third Bill that the Government have introduced in their radical constitutional agenda which is, in its intentions if not its dimensions, of Cromwellian scope. Before considering the Bill, I should like to put it in context.
The first great change we see in our constitution is the shift from representative government to government by referendum. We have already had a referendum for Wales, Scotland and London, and we are promised one on proportional representation. It is significant that there will be no referendum for England or for the way England governs itself. Those amount to a break with the great tradition of representative government that our country has had over several centuries.
The second great change is the shift from government by legislators to government by judges. That has been most dramatically exhibited in the passage of the Human Rights Bill soon to become law. We now have introduced into our constitution a convention whose interpretation by our judges is capable of striking down every single Act of Parliament on the statute book. It is true they cannot do so simply by their decision; but by making a declaration of incompatibility they can in effect compel the legislators to make that change.
The third great shift is in the fragmentation of the Executive: from the Crown in London to the executives in Scotland, Wales, and—to continue a previous tradition—in Northern Ireland. A legislative fragmentation will go with that.
Finally, anticipated at the centre although not yet necessarily planned for the next election, is proportional representation. I spent a certain amount of my life in the European Parliament. I had the opportunity of watching at close quarters proportional representation systems at work. Whatever their merits, they are not recipes for decisive government. On the contrary, they seem to me more often than not to produce equivocation.
If one adds all those factors together, one will see that in our nation there will be a great decentralisation of power. What is lacking in the face of these centrifugal forces is something that will bind the whole thing together. I see no evidence of that in the Government's programme.
That is why I find it almost risible that, whereas in the United Kingdom the doctrine of parliamentary sovereignty is now fast ebbing away, in the Scotland Bill it is the primary constitutional assertion.
Clause 27(7) states:
"This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland".
So much for the division between reserved powers and delegated powers, my Lords. In Clause 95, on supplementary powers, one can see a Henry VIII clause par excellence. It states:
"Subordinate legislation may make such provision as the person making the legislation considers necessary or expedient in consequence of any provision made by or under any Act of the Scottish Parliament".
I have come to the conclusion that the Government are playing some kind of joke on us. In what I took to be the Claim of Right, 1989, and the sentiment of the subsequent constitutional convention, I understood the Scots to be acting as a nation, agreeing to remain within the United Kingdom, and agreeing that certain reserve powers should be exercised from London. I believed that was the sentiment behind the referendum decision in Scotland many months ago.
Even if I am wrong on that, all the Government have to do is to look back to our nation's experience in Northern Ireland to see how foolish Clause 27 is. As I am sure the parliamentary draftsman knows, the Government of Ireland Act contained Section 75 which was, in terms, precisely the same as Clause 27. Two years after that section was enacted, Sir James Craig, perfectly within the powers of the Act, decided to change the electoral system of local government from proportional representation to first-past-the-post. The Lord Lieutenant, who had the power under Section 12 of the Act to do so, delayed the measure. He was faced by the Northern Ireland Government with the threat of resignation. Against that threat he gave in; and since that moment, until the great events of the early 1970s, this Parliament never sought to legislate for devolved matters in Northern Ireland. Indeed, it was always a tradition in another place that no Questions were to be asked about the Northern Ireland Government in those areas which were clearly delegated.
If that is how we behaved towards Northern Ireland—whose Parliament was set up, not to distance Ulster from London, but to make sure that it was never distanced any further from London—how can the measure have any relevance to the kind of relationship that we shall have with Scotland? Before the Government go any further, I urge them to think carefully about Clause 27(7) and its relationship with Clause 95.
Other parts of the Bill are equally likely to cause offence. One is the differential treatment of the question of human rights. As I have recounted, under the Human Rights Bill if a judge in England or Wales considers that a statute contravenes the Convention on Human Rights the statute is not struck down: there is simply a declaration of incompatibility. But Clause 28 of the Scotland Bill treats human rights in a quite different way.
In Scotland, if a statute contravenes the Convention on Human Rights there will be no declaration of incompatibility. That statute will simply be struck down. Why should the Scottish parliament be a second-class citizen in respect of human rights? Why should Scottish citizens not have the same treatment as the rest of the country? It is likely that as the jurisprudence develops there will be different rules about the same clauses in the convention, bearing down upon statutes of a similar character. That is not desirable.
It is clear from even a glancing acquaintanceship with the Scotland Bill that the judges are to play a very important role in patrolling the constitutional boundaries—though, heaven knows, one can see that they are likely to have their work cut out after even a quick look at Schedule 5, whose definition of reserve powers runs into no less than 19 pages.
The final arbiter of all these matters is to be the Judicial Committee of the Privy Council. I believe that that is the right decision. However, I listened with great interest to the outstanding speech delivered to your Lordships last night by the noble and learned Lord, Lord Hope of Craighead. He rightly mentioned that there were insufficient judges in Scotland who were Privy Counsellors. He went on to say that he hoped that the Government would do something about that.
He also touched on, by implication rather than directly, the composition of the Privy Council when it is making decisions about the borders between what the Scottish parliament and the Westminster Parliament can do. I understand the reasons why that is of concern. However, I believe that it would be disastrous if we got into the habit of determining the composition of the Judicial Committee of the Privy Council according to the origin of its members. Once we do that we will distinguish between Judicial Committee decisions made by three Scots as opposed to two Englishmen and vice versa. Once we get into that kind of game the decisions of the committee will become discredited. Once its decisions become discredited the Bill will be ashes. Therefore, I urge the Government to think very carefully and to take seriously the question of deciding who should sit in the Privy Council.
I have one more theme to touch on before I sit down, although I realise that I have already spoken for 12 minutes which, in terms of the number of noble Lords who wish to speak, is unusually long. It is the relationship of the Bill to the constitution of the rest of the United Kingdom. It was Dicey who in the 1880s memorably said in his book on home rule in Ireland that what was being considered was not the dissolution of the firm but a change in its articles of association. Here we are not just creating a new constitution for Scotland; we are creating a new constitution for the United Kingdom. What the Bill does to the rest of the United Kingdom is just as important as what the Bill does to Scotland.
That is where I find the Bill rather thin. In my submission, it is essential that the Government come forward with decisions on a range of issues connected with the number of Scottish Members of Parliament who sit in the United Kingdom Parliament; their effect on the political balance of power in another place; the scope of the responsibilities of the Secretary of State for Scotland in the Cabinet; a range of questions in relation to the financial powers of the United Kingdom Parliament in Scotland; and the powers of the Scottish parliament to modify those powers. All those issues will begin to emerge once the Scotland Bill becomes an Act and operational. If we have not found solutions to those problems which are fair to all sides the system will have imperfect foundations. What will build on those imperfect foundations will be deep resentments; resentments which will ultimately break this settlement.
The late Lord Birkenhead, when he was Mr. F.E. Smith speaking in another place in 1911, said that between union and separation there is no middle course. I hope that in this case he is wrong and it must be our responsibility to do everything we can—
My Lords, is the noble Lord aware that the remark of Lord Birkenhead was identical to one that was made on the Union of the Crowns in 1603, which was wrong?
My Lords, I was not aware of that, but I could not have been corrected by a more noble Lord. Sadly, Mr. F.E. Smith was right in relation to Ireland. In the 1990s and in the millennium to come, it is our task to prove wrong the sentiment which he expressed then, and which reflected a previous observation made so many centuries ago. But we will do so only if we take these issues and others that your Lordships have raised with the utmost seriousness.