Committee (1st Day)
Relevant documents: 6th Report from the Constitution Committee, 15th Report from the Delegated Powers Committee
Clause 1: Permanence of the Scottish Parliament and Scottish Government
1: Clause 1, page 1, leave out lines 9 and 10
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.
My Lords, if this amendment is agreed to, I cannot call Amendment 2 by reason of pre-emption.
My Lords, I had not expected to be on my feet just at this moment, but I will speak to Amendments 4 and 5. Amendment 4 asks that the word “only” should be inserted into line 11, so that the new provision would read:
“The only purpose of this section is … to signify the commitment of the Parliament and Government of the United Kingdom to the Scottish Parliament and the Scottish Government”.
The first question I have to ask the Minister is: if this is not the only purpose of the section, what other purpose or purposes does the section have? I do not see any value in having the words, “The purpose”, unless we make it clear that this is the only purpose.
My Amendment 5 would remove the words,
“with due regard to the other provisions of this Act”.
As I understand statutory interpretation, when a court or other body is called upon to understand an Act of Parliament, it may well be necessary, in the case of any kind of ambiguity, to look at any other provisions of the Act which bear upon the same matter. There is a duty in law and in custom for courts and others to have due regard to the other provisions of the Act, so I do not see what purpose this provision serves here. My own general approach is that the shorter legislation is, the better. Legislation is often too wordy and too confused. If the words are not necessary, they should not be there. That is the simple basis on which I speak to both the amendments standing in my name.
My Lords, I will speak briefly to Amendment 7, which stands in my name, but before doing so I agree with what the noble and learned Lord, Lord McCluskey, just said about wordy legislation and endorse entirely what my noble friend Lord Norton of Louth said in his crisp, succinct introduction of his own two amendments. This is a very unsatisfactory Bill, brought about by extremely unsatisfactory circumstances. If we in your Lordships’ House are going to try to improve a bad Bill—as is for ever our task, and one which was never more needed than in the case of this Bill—we have to address certain very important aspects of it.
I concentrated my amendment on the whole subject of parliamentary sovereignty. Although the Scottish Parliament came about because of the wish of the Scottish people in a referendum, nevertheless it was created by Act of Parliament. If it is to be abolished, that should be done by Act of Parliament, too. I neither forecast nor advocate its abolition but if we are to have such a provision in this Bill—I doubt whether it is needed, and my noble friend Lord Norton of Louth made that position plain in his speech—it should be a parliamentary provision. That is why I suggest that it should be on the basis of a two-thirds majority in a vote of the House of Commons, in which 75% of the Members elected by Scottish constituencies vote for abolition. That provides as strong a parliamentary safeguard as can be envisaged. It is infinitely to be preferred to the referendum route.
Of course, that does not exclude the possibility of a consultative or confirmatory referendum. I am glad to see my noble friend Lord Norton, who is such a great constitutional expert in these matters, nod at that point. This Parliament in Scotland is the creation of the Parliament of the United Kingdom and it is the Parliament of the United Kingdom that should make the decision, with proper safeguards, if the prospect of abolition should ever appear. None of us can foresee the circumstances in 10, 20 or 30 years’ time, but we can say that we have a parliamentary duty and if this Scotland Bill is to become a Scotland Act, it should be as good and as protective of the Parliament to which we all belong as we can make it. I know that I cannot move my amendment at this stage. I leave my remarks there and hope that the Minister will deal with this subject adequately in his response. If not, I hope your Lordships’ House will come back to it on Report.
My Lords, it is probably right that I should now speak to Amendment 6, as set out on the Marshalled List, which assumes that subsections (1) and (2) in the new clause remain as printed in the Bill, and then seeks to alter the wording—and, I respectfully suggest, improve it—of subsection (3).
I should explain the origin of the wording of the amendment. I have done my best to keep the Minister informed about my thinking on this matter. As with other amendments on the Marshalled List in my name, the source from which I drew is a series of amendments proposed by the Scottish Government in June, in advance of Committee stage in the House of Commons. However, I tabled these amendments entirely on my own initiative. I am not instructed by anybody and did not table them on behalf of anybody other than me—although they have the support of the noble Lord, Lord Norton of Louth, who may say a word on some of them in due course. It simply seemed to me on reading them, without any political background whatever, that they had some merit in view of their wording and therefore should be discussed. Some of those amendments, which I will come to later, were before the other House but were withdrawn or not moved and therefore have never been discussed. That seemed an unfortunate state of affairs if one is seeking to improve the Bill. This amendment was, I think, tabled on the first day of Committee in the other place and was negatived on a Division. Nevertheless, it is open to this House to look at the wording again and that is what I seek to do.
Before I say more about the wording itself, perhaps I can respond to the point made by the noble Lord, Lord Cormack, about the relationship between the Scottish Parliament and the Parliament of the United Kingdom. The report of the Constitution Committee, chaired expertly by the noble Lord, Lord Lang of Monkton, referred to a passage in a judgment that I wrote in the Supreme Court in a case called AXA General Insurance Ltd v the Lord Advocate in 2011. In the passage referred to, I sought to describe what I understood to be the position between Scotland and the Parliament at Westminster. I made the point that the Scotland Act 1998 provides that the,
“Scottish Parliament takes its place under our constitutional arrangements as a self-standing democratically elected legislature”,
“democratic mandate to make laws for the people of Scotland”.
I made the point that it does not, and was not intended to, “enjoy the sovereignty” this Parliament has and went on to say that,
“the sovereignty of the Crown in Parliament … is the bedrock of the British constitution”,
“remains with the United Kingdom Parliament”.
Nothing that I may say in the course of the debate is intended to detract in any way from those propositions. I believe absolutely in the crucial position that this Parliament enjoys. It is well understood that the Scottish Parliament does not have sovereignty in that sense, and that is perfectly clear because its legislation can be reviewed by, among others, the Supreme Court to see that it falls within the parameters set for the powers of the legislature under the Scotland Act. That is all by way of background.
In considering the amendments proposed by the noble Lord, Lord Norton of Louth, one has to recognise that the Smith commission, which discussed the matter in layman’s terms, said that the position of the Scottish Parliament should be recognised by legislation. Given that that proposition was made and accepted by all the parties to the discussions before Smith, it seems difficult to avoid having at least a clause that recognises the permanence of the Scottish Parliament. So it is against that background that I do not quarrel with subsections (1) and (2) but direct my attention to the wording of subsection (3), with the aim of improving it to clarify the position.
The amendment would insert a new subsection, which states:
“Subsection (1) may only be repealed if … the Scottish Parliament has consented to the proposed repeal”.
That is there simply to recognise that the repeal we are talking about is a repeal of the provisions establishing the Scottish Parliament in the Scotland Act. There seems merit in the proposition that, if that Parliament is to be abolished, it should at least be in a position to express a view as to whether that is desirable. I am not seeking to undermine in any way the sovereignty of this Parliament; I am simply looking at the relationship between the Parliament created by the Scotland Act and a measure that would seek to abolish it. Once it has been created and when it is still in existence, it would seem rather odd that it should be unable to express a view on whether that should or should not happen.
The other part of the amendment simply looks at the proposition that there should be a referendum, which the Government have accepted should be part of the package to support the remaining provisions in Clause 1. The amendment would clarify what the subject matter of the referendum is to be and state in terms that there would have to be,
“a majority of those voting at the referendum”,
before it had the effect suggested by the clause. The condition is that a referendum has been held in Scotland on the proposed repeal, and that a majority of those voting in the referendum have consented to it. It may be that that is implied by the wording, but it seemed to me that in the interests of clarity, it would be better to make the matter express, because what we are contemplating is such a major political event that the exact condition that would give rise to authorising the proposed repeal needs to be put beyond doubt.
I shall make submissions later in support of other amendments, but those are the reasons behind this amendment and the background to why I tabled it.
My Lords, I do not often disagree with the noble and learned Lord, Lord Hope, but I think he was walking something of a tightrope there, for obvious reasons.
What is wrong with this first clause is the whole approach to the Bill. The Government, in advance of even knowing what the conclusions of the Smith commission would be, undertook to implement them and expected both Houses of this Parliament to ratify them. In speaking in support of the amendments tabled by my noble friend Lord Norton, I draw the attention of the House to page 7 of our Constitution Committee’s sixth report of Session 2015-16 on the Scotland Bill. Paragraph 8 states:
“The Bill contains a number of provisions of the highest constitutional importance. In affirming the permanence of the Scottish Parliament and Scottish Government and declaring that they are not to be abolished except following a referendum in Scotland, and in giving statutory recognition to the Sewel convention, the Bill carries potential implications for Parliament’s own sovereignty”.
Too right it does.
Paragraph 9 states:
“In our report on the Draft Clauses”—
which were contained in the document which was ironically entitled Scotland in the United Kingdom: An Enduring Settlement—
“we expressed concern at ‘the failure of the UK Government directly to address the implications of these proposals for the United Kingdom as a whole.’ We questioned how any process that did not consider the future of the Union ‘could provide for an “enduring” settlement’, and recommended that ‘the Government give urgent consideration to the consequences of the Draft Clauses for the constitution of the United Kingdom as a whole. This should happen before they are passed into law.’ There is little evidence that such consideration has been given to date”.
That conclusion is something of an understatement, to put it mildly.
If we look at the Smith commission proposals in respect of these amendments and the clause which we are discussing—a point I made at Second Reading—we see that under the heading, “A More Autonomous Parliament”, the Smith commission report stated:
“The Scottish Parliament will be made permanent in UK legislation and given powers over how it is elected and run. The Scottish Government will similarly be made permanent”.
It does not say, “We recommend that Parliament considers how it could be made permanent”, but that it will be made permanent.
I draw the noble Lord’s attention to the fact that the heads of agreement built on what he said by stating:
“UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions”.
Indeed. Perhaps I have missed out on this modernisation process that is going ahead, but I understood that laws are made by Parliament and receive the assent of the Crown. I did not think that they were made up by subcommittees of appointed party politicians meeting in secret and then getting together with the leaders of the parties, who did not in any way consult their parties, with Parliament then being expected to rubber-stamp them. This takes us back to the time of Henry VIII. We could save a great deal of money by getting rid of this whole apparatus of Parliament and leaving it to the leaders of the parties to get together, decide things and agree that they will be passed into law and leave the monarch with the dubious task of having to give Royal Assent to such matters.
A colleague I was speaking to earlier said, “I’m not coming in for the Scotland Bill. I’ve really had enough of Scotland”. I said, “But it’s not about Scotland; it’s about the United Kingdom”. He said, “Oh, I didn’t realise that”. It would appear that the Government do not realise that, either, judging by the nature of this clause.
I hope that the Minister will find it possible to accept the amendments that my noble friend Lord Norton has put forward, if for no other reason than that it will remove the obligation on me to move Amendment 2, which is based on the assumption that the Government will indeed hold to this course, which I believe undermines the sovereignty of Parliament. The noble Lord speaking for the official Opposition shakes his head in disagreement from a sedentary position. If it does not undermine the sovereignty of Parliament—and I suspect that that is what we will hear from the Front Bench—what is the point of having it? This is just legislative graffiti, then; it is stuff written in the Bill with the purpose of giving the impression that the nationalists have won some great victory. Well, graffiti can be very dangerous; it can be very difficult to remove, especially if people believe that it carries words like “permanent” associated with it.
What we see in the Bill, with the inclusion of the words,
“The Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom’s constitutional arrangements”,
is people saying things in legislation that are simply not true. No Parliament can bind its successor. Why are they saying this? In order to create an impression that the devolved parliament—I think it was the late Enoch Powell who said that power devolved is power retained—is not a devolved parliament.
I spent a great deal of energy, as did many other people in this House, arguing during the Scottish referendum campaign that we should remain part of the UK and continue to have a sovereign UK Parliament —and 55% of the voters voted for that. What on earth are the Government doing undermining that sovereign United Kingdom Parliament—or at least appearing to give the impression of doing so in order to appease the forces of nationalism?
This is a very dangerous thing indeed. With the Scottish Parliament and the Scottish Government, which used to be called the Scottish Executive, step by step, with grandmother’s footsteps, we create the impression of a sovereign independent parliament and play straight into the hands of those nationalists who do not accept the result of the referendum and still seek to break up the UK. We would be very wise to listen to the concerns that have been expressed by the Constitution Committee of this House and to the wise words of my noble friend Lord Norton of Louth, who is the nearest thing that we have on our side of the House to a constitutional expert, and who has great distinction and knowledge. I very much hope that if the Minister is not able to accept these amendments, he will at least take this clause away and rethink it, because it is being used as a kind of political statement and, in doing so, it undermines the quality of our legislation.
In my day as a Minister, you would never have got away with this; you would never have got it past the parliamentary draftsman. What has happened to the parliamentary draftsman’s office that it allows this sort of stuff to be written in legislation? What has happened to the machinery of government, of L Committee and others, which used to operate in a way to ensure the integrity of our legislation?
I believe that some of our legislation has now been privatised. Is that not the reason for the noble Lord’s problem?
All I can say is that it needs a bit of competition, then. I support my noble friend’s amendments.
My Lords, it is always dodgy for bishops to speak about Scottish matters. The kirk has sometimes considered the possibility of introducing bishops but the one condition it has always applied is that they must not be like English bishops—they must be quite different.
I have some credentials inasmuch as I have had a close association with Scotland for 40 years, since I went to Edinburgh as a student. I have had a house in Scotland for 30 years, I have two Scottish degrees and one Scottish wife, who has kept my feet on the ground over the years. I shall also retire to Scotland shortly, and very much look forward to doing so.
My observation, from my perspective, is that when Parliament, a London-centred body, speaks about Scotland, the Scots always perceive it as being rather patronising and as not taking them seriously. That was the underlying dynamic which led to such a close shave in the referendum. I speak as a unionist through and through, but the Scots felt that they were not taken seriously. When the Scottish Parliament was created, it was not created but reconvened. It was made clear when it first met that it was a reconvening rather than a wholly new event. One has to acknowledge that over the years Scotland, for most of its history, has felt itself to be an independent country, and it participates in the union as an independent country.
When I first saw these clauses, they jarred with me. They remind me of when I go to services and an enthusiastic minister overemphasises the wrong word: I hear, “This IS the word of the Lord”, and I think, “Oh, is it?”. Sometimes, if you emphasise a word you create an uncertainty by emphasising the wrong part of the sentence. “This IS a permanent part of the UK” almost creates a doubt because the emphasis is in the wrong place. My second reaction when I read this was, “Death and taxes are permanent—we are now to add the Scottish Government”.
The absence of a written constitution means that constitutional elements are enshrined in our Acts of Parliament. This is being enshrined in the Bill because we do not have a written constitution. It is a fact of life that the Scottish Government and Scottish Parliament are a permanent feature, and at the end of the day, it is probably wiser to say that than to raise doubt about it.
To remove this part of the clause from the Bill at this point would be utterly disastrous and give all the wrong signals. For whatever reason it has got here—and it may be that I do not know about the legislative process—to remove it would give all the wrong signals. In the Bill, we must not create the sense—
If the clause is dishonest in the information which it conveys to the public, how can it be wrong to remove it or amend it as such, and how can it be disastrous to amend it in a way which makes it clear what its real meaning is?
If the people of Scotland are told, “We toyed with the thought of saying that it was a permanent Parliament but we decided that it wasn’t”, it will simply give the wrong message. Of course I agree that laws can be changed, just as if you have a written constitution it can be changed by some process. However, it corresponds with the reality on the ground.
The fact is that we have a written constitution; we do not have a codified constitution.
I am not sure that I entirely agree with the point, but I will not argue as it would take me down the highways and byways in a way that would not be helpful. I will end on the following point—and I speak as someone who loves Scotland and who will live there in retirement and no doubt will be buried there. When we talk about Scotland, often a slightly grudging spirit comes into our discussions, which is a great mistake. At the end of the day, this provision is a valuable one.
My Lords, I have not spoken previously in this debate but am prompted to do so partly because for a long time I was a member of the Constitution Committee and therefore take a good deal of note of what it says. I am also prompted to speak partly because of what has just been said. The trouble is that we do not have a written constitution but we are advancing ad hoc, step by step, and it is a very dangerous process. We will very shortly be debating a Wales Bill and I can just see it happening—we will be told that the Welsh Parliament has to be made permanent and cannot be altered by this British Parliament. This is a matter that affects the United Kingdom as a whole and therefore we should take seriously the clear observations of the Constitution Committee and of my noble friend Lord Forsyth.
My Lords, as the noble Lord has just indicated, it is very clear that there are implications for the rest of the United Kingdom. It is just a great pity that the Government will not accede to the request from all sides of the House and all parts of the United Kingdom for a constitutional convention, in which many of these relationships could be properly looked at. The right reverend Prelate reminded me that we have to be careful with the wording here. To say so stridently that the Scottish Parliament and the Scottish Government are permanent will start raising doubts about whether anyone would think anything else. That is why care has to be taken here.
In the 1990s I was part of the Scottish Constitutional Convention. It came up with the blueprint for the Scottish Parliament, which, to its credit, the Labour Party, elected in 1997, faithfully put into legislative form. I remember many discussions in the constitutional convention about how to entrench the Parliament. We kept going round in circles on the issue of parliamentary sovereignty and on whether we should have a referendum. In the end, the convention decided that it could make no such proposal. The Labour Party proposed a two-question referendum. My party and I were opposed to that as it was not what the convention had agreed, but I think that I was wrong. The fact that we had a referendum in 1997 and that the Parliament was established on the basis of a very strong popular vote in Scotland meant that it found its own form of political entrenchment. We could go round in circles here having a highbrow constitutional discussion on the nature of the sovereignty of Parliament.
The noble Lord, Lord Norton of Louth, used the words “political reality” in moving his amendment. At the end of the day, we come back to political reality. I say to the noble Lord, Lord Cormack, that if the people of Scotland voted to abolish the Scottish Parliament, primary legislation in this Parliament would be required for that to happen, but of course if this Parliament chose to ignore what the people of Scotland said, that would bring about a constitutional crisis because political reality would kick in. That is why I also disagree with the amendment in the name of the noble and learned Lord, Lord Hope of Craighead. He is saying that if the Parliament were removed, it would have to be done not only on the vote of the Scottish people but on the vote of the Scottish Parliament. The Scottish Parliament might well vote to get rid of the Parliament because it was not doing a particularly good job. Therefore, you do not give the veto to the people whom you want to get rid of and who have a vested interest in keeping the Parliament.
These things are hypothetical because, quite simply, I do not see them happening. That is why I think that political reality is more relevant to this debate than highbrow discussions on parliamentary sovereignty. As ever, I give way to the noble Lord, Lord Forsyth.
On the subject of political reality, is it not the policy of the noble and learned Lord’s party to have a constitutional convention with a view to creating a federal United Kingdom? What happens if we have a provision in law saying that the Scottish Parliament as it stands is permanent and the rest of the United Kingdom wishes to alter the structure and have a federal constitution along the lines that he suggests and that is blocked because of these provisions? Perhaps he thinks the political reality is that what he wishes for will never happen, but surely it is wrong to create inflexibility, given that he and his party accept that the present system is not a stable, lasting settlement.
The noble Lord makes a very good point. But under any federal system there would be a Scottish Parliament. I echo again Section 1(1) of the Scotland Act 1998: there still would be a Scottish Parliament. It may have a different form and different powers, but there still would be a Scottish Parliament. I do not think anyone is suggesting that the Scottish Parliament that we refer to in Clause 1 of this Bill is for ever frozen in aspic or that it would not inherit other powers at some time to come.
The issue is indeed one of political reality. We are also duty bound to have regard to the wording of this part of the clause.
Is the noble and learned Lord saying that when the clause heading says:
“Permanence of the Scottish Parliament”,
this is not referring to all the powers and privileges of that Parliament but just to the name, and that the powers could be changed? Is he saying that the effect would be that we could take away all its powers but, provided that there was still a building and something called the Scottish Parliament, that would be covered?
Let me get back to political reality. I do not believe that that would happen. But I think it is very likely that we will have some measures in the future—probably the not-too-distant future—under which more powers are given to the Scottish Parliament. Therefore, it comes back to the same thing: to the political reality. If there was a move resulting in a constitutional convention or a federal system for the United Kingdom, which my colleagues and I aspire to, the political reality of that would see it delivered.
I have much sympathy for the points made by the noble and learned Lord, Lord McCluskey, because I simply do not know what is meant by,
“with due regard to the other provisions of this Act”.
No doubt the noble and learned Lord, Lord Keen, will tell us in his reply what the importance of including those words is.
I also wonder what is meant in subsection (3), which says:
“In view of that commitment it is declared that the Scottish Parliament and the Scottish Government are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum”.
I do not think that the “people of Scotland” is anywhere defined in this. Is it the people resident in Scotland, which was the qualification for the referendum in 2014? At that time, many noble Lords received many representations from expatriate Scots living abroad or living in London who consider themselves to be part of the people of Scotland. So would they be part of the referendum that is proposed by the Government with regard to the future of the Scottish Parliament? That is why I think that the wording proposed by the noble and learned Lord, Lord Hope, in the second part of his amendment—
“a majority of those voting at the referendum”,
which has been held in Scotland—has greater clarity than the Government’s wording of this particular clause.
Just as Parliament could, technically, repeal the Statute of Westminster of 1931 but would never dream of doing it, the constitutional reality of the sovereignty of Parliament is not relevant to this. At the end of the day, what will matter is what the people actually want.
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.
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.
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.
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.
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.
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.
My Lords, I shall be brief. I spent 17 years in opposition along the corridor, and there are present at least four or five former Ministers in the Government at the time who were always telling me, whenever I moved an amendment to a Bill, that we cannot bind a future Parliament with laws we pass in this Parliament. That is a basic rule. In fact I was even taught that in constitutional history at Oxford in the 1950s. You cannot bind one Government.
I have two other points. The first is to say to the right reverend Prelate the Bishop of Chester that he is wrong. Only one person at the opening of the Scottish Parliament said that it was reconvening the Parliament of 1707. That, of course, was Mrs Winifred Ewing, who was a member of the SNP. No one else believed it and no one else said it at the time because they knew that it was wrong. This was a new Parliament and was not a reconvening of the old Parliament of Scotland. It was a new and totally separate Parliament from what had been there before.
Secondly, let me just say to the noble Lord, Lord Cormack, on the 75% of Members of Parliament, that there was a time when we would have got the 75% of Scottish Members down the corridor because they are all SNP, and the SNP at one time, let us remember, was opposed to devolution. The party has been opposed to devolution in its past—and not that long ago either. It refused to be part of the Scottish convention, of which I was a member, as was, I think, the noble and learned Lord, Lord Wallace. We both remember that the SNP refused to be part of that because it was opposed to devolution, as did the Tory party because it was opposed to devolution, too, but that is a different matter. The fact is we cannot bind, so I am giving some support to the amendments that have been tabled. Politically, when I find myself on the same side as the noble Lords, Lord Norton of Louth and Lord Forsyth of Drumlean, I really am in trouble.
In the light of the debate so far, I should like to add something to what I said before. I remind the House that the purpose of legislation is to effect a change in the law—to state the law. Subsection (1) is a statement:
“The Scottish Parliament and the Scottish Government are a permanent part”.
Whether or not that changes the law, I do not know. Given the arguments about sovereignty, it may state the law at present but it cannot change it a week next Tuesday because, as my friend Sir Gerald Gordon, an expert lawyer in Scotland, said, there is no written constitution in Scotland in the United Kingdom, but it can be written in one sentence, and that is: “There shall be a Parliament at Westminster, and it can do what it likes”. Another version is: “There shall be a House of Commons at Westminster, and it can do what it likes”. Apparently, the Government do not hold to that view because, as the noble Lord, Lord Forsyth, has pointed out, it cannot do what it likes and must do what the Smith commission has decided it will have to do.
The point I want to make is the important one that subsection (1) makes a statement, although I do not know its legal effect at all. But when we look at subsection (2), where I want to add the word “only”, it states:
which probably means the only purpose—
“of this section is … to signify the commitment of the”,
UK Parliament et cetera to something or other. In other words, if you interpret subsection (1) by looking at subsection (2), which you have to do, of course, you find that its only purpose—or “the” purpose—is simply to make a statement of fact. I do not see how these things change the law.
The noble Lord, Lord Forsyth, made remarks about the parliamentary draftsmen. They have my deep sympathy because they were given an appalling job to do, given the terms of the report and the whole background to it, including matters discussed at Second Reading. If this is the best they can do, maybe we can try to do better, but we are writing on water here.
My Lords, I had not intended to speak on these amendments because I thought that I would prefer to speak on Clause 1 stand part. However, it might save time if I speak now, not least because the debate has already ranged very widely over a number of more general points.
I also wanted to speak at an early stage to thank those noble Lords—in particular my noble friends Lord Norton of Louth and Lord Forsyth, and the noble and learned Lord, Lord Hope of Craighead—who made polite reference to the report of the Constitution Committee. My noble friend Lord Forsyth’s excellent speech in particular, in which he managed, in that wonderful tone of slightly supressed indignation, to quote from the report, reminded me just how strongly the committee felt about it when it prepared that report. Committees tend to present reports in fairly moderated terms, but these are very serious issues. Indeed, we were in a pretty bad mood to start with because we had already produced a report on the draft clauses, which came out some time before this Bill appeared, in which we drew the attention of the Government to some seven major points of constitutional principle that we thought should be replied to. The reply we eventually received was just more than two lines long. We had to express pretty considerable indignation at that.
While I am on the same theme, it is also a matter of regret to us that the Government have not yet been able to reply to our latest report, which we particularly hoped to have had ahead of the start of this Committee. I hope that that response will appear very soon.
In our report, we criticised very strongly the progeny of the Bill and the fact that the Government had committed to accept the Smith commission’s terms. I will not dwell on that point any longer; it has been very well covered by other noble Lords. We also placed strong emphasis on the importance of the position of the United Kingdom and, with all this demand-led devolution that has been going on, of stabilising and securing the sovereignty of the United Kingdom for the future. I am glad to say that another instalment of our work is on its way to your Lordships in due course on the union and devolution, which will cover that theme and, I hope, carry it forward.
Reverting to this debate, the clause we are looking at and the amendments to it are about sovereignty, which is a clear, absolute and easy-to-identify concept. All the amendments are about protecting it from potential inroads that arise from all the changes made in the other place that depart from the simple request made by the Smith commission. It is a declaratory clause. As my noble friend Lord Norton pointed out at Second Reading, by making a declaratory clause the core of a new parliamentary Bill it has been drawn up in the face of the Government’s own guidance on drafting legislation, which deplores such treatment.
Not only is it unwise, but it also compromises the subject by adding specific changes that were not requested by Smith. They are changes that weaken the principle of sovereignty, in particular the requirement under subsection (3) that there should be no abolition of the Scottish Parliament without a referendum for the Scottish people. Smith did not request that. That is not declaratory; it has specific substance. How does it protect the sovereignty of the United Kingdom?
I also ask my noble friend the Minister: why do the Government think that the Scottish National Party wanted that amendment to the Bill? It does not believe in permanence; it wants impermanence. It wants to undermine sovereignty and provoke the United Kingdom Parliament. Ultimately, it wants to break up the United Kingdom. Every extra concession granted makes that more possible.
The noble and learned Lord, Lord Wallace of Tankerness, referred to political reality. Yes, no one believes that the Scottish Parliament will be abolished and no one wants it to be abolished—you cannot put the smoke back in the bottle—but why compromise the position with qualifications of this kind in this important Bill? The Scottish National Party talks a lot about the sovereignty of the people—what one might call the “Braveheart philosophy”—but we have to wonder whether the clause makes the issue justiciable. Might some Scottish judge at some future date rule that the combination of permanence and a Scottish referendum in a statute overpowers the sovereignty of the United Kingdom Parliament? I do not know the answer to that, but I know that at Second Reading a number of my noble and learned friends identified this area as one that needed close attention.
The noble Lord has talked much about the sovereignty of the United Kingdom Parliament, as have other noble Lords. In a very recent lecture the right honourable gentleman the former Attorney-General Mr Dominic Grieve said about that:
“Today, at least in theory, this means that any government with a parliamentary majority could pass a Bill requiring us to collectively worship the moon every other Tuesday. Provided the Queen were minded to give royal assent to it … then that would be the law of the land and we could be punished for not complying”.
Is he really happy that the sovereignty of Parliament, which he asserts so vigorously and to which he is so wedded, could lead to the kind of outcome that the right honourable gentleman Mr Dominic Grieve said could happen?
As I do not know the context and full detail of what my right honourable friend the former Attorney-General said, I can hardly answer the noble and learned Lord. But I hope that sovereignty can be reconciled with common sense and realism. Certainly that would be my objective.
There is a threat to the sovereignty of the United Kingdom which is potentially raised by the wording of these clauses, and the intrusion of new elements into them which cloud out the specific issues of principle. If a court in Scotland did overrule the power of the United Kingdom and managed to pass a judgment that said that the United Kingdom Parliament was overruled by the view of the Scottish Parliament, it would not be devolution but separation. We must not plant the seeds for such a development in this legislation.
Does the noble Lord not agree that there is now considerable case law in Scotland which has looked at the competences of the Scottish Parliament and the reach of legislation from this place? So under the existing arrangements, it is perfectly in order for UK legislation to be challenged on the extent of its interaction with devolved legislation. We currently have that practice and it does not seem to have undermined our constitution irrevocably.
That does not surprise me, because I have always taken the view that, ever since we embarked—for all kinds of reasons I will not go into in this debate—on an ill-conceived and unbalanced form of devolution, we were on the slippery slope and sliding towards separation and independence unless we were very careful. As I have said many times, this Bill carries us one step nearer to that.
In his wind-up speech at Second Reading, my noble friend Lord Dunlop said:
“The sovereignty of Parliament remains”.—[Official Report, 24/11/15; col. 667.]
That is a commendable, clear, concise statement. We also know, and have reminded ourselves today, that no Parliament can bind its successor. But my noble friend also said of this clause that it puts the permanence of the Scottish Parliament and Scottish Government, “beyond all doubt”. In conceding the referendum point on Report in the other place, the Secretary of State for Scotland said that it makes clear,
“beyond question that the Scottish Parliament and the Scottish Government are permanent institutions”.—[Official Report, Commons, 9/11/15; col. 57.]
By putting things beyond doubt, he raises doubts in all of us. The Government’s arguments are in deadlock: they hit each other head-on. That is why, at Second Reading and now, so many noble Lords have tabled amendments and why the House badly needs reassurance. I very much hope that the Minister will be able to give it to us when he winds up the debate.
My Lords, I am one of the few non-lawyers who are even putting their foot into this particular hole. I stand to be corrected by the Front Bench, but Clause 2, which has been referred to, makes perfect sense if the United Kingdom Parliament remains sovereign and can legally legislate on anything, including devolved matters. But that would contradict Clause 1 if the purpose of that clause is to entrench all provisions that are unalterable. I want our Front Bench to answer that question.
I do not agree with the mood of the noble Lord, Lord Lang of Monkton, because I do not share his views on Amendment 1. I am happy that the Government inserted further clauses into the Bill. I am pleased that that was the result of cross-party consideration and that the Government responded to the Smith commission—in a difficult context—and put into proposals what I think most people in Scotland now understand: that they have two Parliaments. This is not an easy thing to do and parliamentary draftsmen have a difficult task because we now operate in a situation where we have more than one sphere of power over primary legislation. That poses considerable difficulties for some because they believe that one should be primary and one subsidiary to it. So far as primary legislation is concerned, most people in Scotland consider themselves as having two legislatures. It is even harder because we do not have a written constitution. In the absence of one, we have to rely on other measures to see how we entrench parts of our governance.
It is not the case that this has simply been dreamt up over the last couple of months, as some noble Lords have indicated. Nor it is the case that it is in response to the referendum. Nor is it the case that it is only to do with political expediency. Some of us have believed for a considerable time that it is right to reflect in statute the permanence of the Scottish Parliament in the context of a new and evolving structure of governance in the United Kingdom. I absolutely believe that that is best in a codified federal relationship, which I hope would be the result of a constitutional convention—others have a different view. However, in the absence of that, I believe that we then have to look at what has been a developing process in the United Kingdom.
I think that it is broadly unacceptable to say that we still operate under the 19th century Diceyan view of this Parliament. That no longer represents the reality of this place’s role in our governance arrangements and is no longer relevant in reflecting the view of the sovereignty of the people. If this was the case and the Diceyan view was so strong, I have been wondering during our hour or so of discussion why we are having a European Union referendum at all. Why does not Parliament simply decide what our future relationship with the European Union will be? However, there is a recognition that the sovereignty of the people is now supreme. Perhaps that has come about because of the European Union. We were all subjects before the advent of the Maastricht treaty. Indeed, some have had considerable difficulty recognising the fact that under that treaty we are citizens and not purely subjects.
Where else do we look? My noble and learned friend Lord Wallace of Tankerness referred to the Statute of Westminster 1931, which ceded powers from this Parliament. It is inconceivable that we would simply now believe that the authority of this place over the dominions can somehow be reconstituted. Why is that the case? It is perfectly clear that we have case law for this. The noble and learned Lord, Lord Hope, referred to one of his judgments when he sat on the Bench. I refer to another one which I referred to in the devo plus report that I authored in 2012, long before the referendum. The noble and learned Lord, Lord Hope, quoted from paragraph 102 of the judgment of the noble and learned Lord, Lord Steyn, in Jackson v the Attorney-General relating to a challenge to the Hunting Act 2004. The noble and learned Lord, Lord Hope, said:
“The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created the principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism”.
I think that is a very fair judgment and observation to make. The noble and learned Lord, Lord Hope, continued in relation to paragraph 104 of the same judgment:
“I start where my learned friend Lord Steyn has just ended. Our constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer, if it ever was, absolute. It is not uncontrolled in the sense referred to by Lord Birkenhead LC in McCawley v The King  AC 691, 720. It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified”.
Therefore, the question is: how are we qualifying? What is the way forward, taking into consideration the changes to Diceyan theory, changes that have come about from our acceptance that the people are sovereign, and changes from the fact that we now operate under two legislatures and two spheres of primary legislation? So we now have practice. We now have the judicial view not only of Diceyan approach but the standing of institutions—this Parliament and the Scottish Parliament —and we have acceptance of the sovereignty of the people. If that is the characterisation of the institutions themselves—democratic, enduring, their legislation trusted as a result—I have no difficulty with there being a recognition that the Scottish Parliament as an institution, and the Scottish Government formed within it, should be permanent fixtures of our constitution, and their standing recognised. That is consistent with the trend we have been developing.
Is it the end result? I hope that the end result will be a more codified, United Kingdom-wide written constitution and then perhaps a new Act of Union containing a new statement of union. That will be the missing factor, but I find it inconceivable, as my noble and learned friend said, that the Scottish Parliament would not be a permanent part of that factor. So we should go ahead and allow the Bill to stand without Amendment 1.
These are clearly very deep waters, into which a non-lawyer plunges with some concern. I am very glad that I understood part of what the noble Lord, Lord Purvis, said. I agree with him about the need for a convention.
My real worry about all this is that I do not believe in declaratory law. I strongly believe in 2% of GNP on defence; I strongly believe in 0.7% on aid; I strongly believe in emissions controls—but I do not believe in putting these things on the statute book. I do not believe in emissions control targets with no known means of fulfilling them. I do not believe in law that sends a message. A law is not worth having unless it changes something. I subscribe to the doctrine explained by the noble and learned Lord, Lord McCluskey.
At Second Reading, we heard from the noble Lord, Lord Norton of Louth, who is our prophet in these matters. He said:
“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”.—[Official Report, 24/11/15; col. 638.]
I understand the conundrum about the Smith commission, well explained by the noble and learned Lord, Lord Hope, but it seems to me that the noble and learned Lord’s own amendment, with the noble Lord, Lord Norton, goes two-thirds of the way to delivering what he feels we are required to do. Amendment 6 does not require subsection (1). The arguments of the noble Lord, Lord Norton, have demolished subsection (1).
What we need is something that says: “The provisions of the Scotland Act, which established the Scottish Parliament, shall not be repealed unless the Scottish Parliament has consented and”—here I part company with the noble Lord, Lord Lang; I think there is a need for a referendum—“a referendum has been held in Scotland on a proposed repeal and a majority of those voting have supported it”. We do not make it any more permanent by stating its permanence, and if a new provision adds nothing, we should not make it. It is permanent because it is on the statute book. I agree that in the real world the Scottish Parliament would not vote for its own abolition, but that gives a meaning to permanence.
What about England? I agree it is not the real world but one can imagine circumstances in which the Scottish Parliament has been given all these powers and has got itself into a right mess and the people of Scotland wish to come back and be part of Westminster. It is entirely conceivable that people in England and Wales will want no part of that. So where is the opportunity for the United Kingdom to look at this as a whole?
I do not think the noble Lord has quite understood my proposal. My proposal is that the language in the amendment in the names of the noble and learned Lord, Lord Hope, and the noble Lord, Lord Norton, should be preceded by the words: “The provisions of the Scotland Act establishing the Scottish Parliament may not be repealed unless”—and then the two conditions laid out in the amendment. It follows that I mean there would need to be a vote of this Parliament as well as of the Scottish Parliament, and the referendum that the noble Lord, Lord Lang, would not want but I think is necessary.
I have to say to the noble Lord, Lord Cormack, that I think the idea of a supermajority in this Parliament is a very bad one. I think supermajorities in general are a bad idea. Just as we should not add to the statute book provisions which add nothing, so we should not complicate our procedures by inventing a supermajority.
Does the noble Lord accept that he has very cleverly been answering the conundrum that I put to the noble Marquess, Lord Lothian, of trying to translate “permanent” into some other language that fits constitutionally with our established principles? I was suggesting that one should not be too tied by the word “permanent”, which is used by lay men, and the noble Lord has perhaps cleverly expressed a way of doing that.
I am very grateful to the noble and learned Lord but I refuse to be drawn into a debate among lawyers about how clever I am.
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—
Can the noble Lord explain how the removal of new subsection (1) would affect the existence of the Scottish Parliament?
To echo the noble Lord, Lord Kerr of Kinlochard, I am not a lawyer and will not get into the detail of that. But as we are getting a wee bit into the nitty-gritty, the noble Marquess, Lord Lothian, and quite a few other Members of this House are in many ways responsible for the attitude in Scotland towards devolution and “getting away from English Tory rule”. I condemn that attitude. The onus is on the Labour Party to win a UK election but the language used and the attitude shown by some Members of your Lordships’ House only confirm to the Scottish National Party that “The English are hostile to us”. I humbly ask that Members of your Lordships’ House be a wee bit more circumspect and not allow the Scottish National Party to portray legitimate concerns as hostility to the existence of a Scottish Parliament. I genuinely urge that.
Several noble Lords have mentioned permanence, which relates directly to what I have attempted to describe—the seeming hostility among many people in England towards Scottish devolution. The permanence issue was agreed in the Smith commission. The commission has been portrayed as politicians deciding things behind closed doors, but there people were behind closed doors with a mandate from the different parties. Getting agreement through the Smith commission was surely an example of delegated democracy at work, because if some things had not been agreed to, there would have been no Smith commission. It is slightly wrong to try to devalue the Smith commission.
The point about permanence is there to reassure the people of Scotland. We can, quite rightly, take the view that it would be impossible or wrong to do, and all the rest of it, but symbolism is important. The clarity of words is important, because we are not all politicians sitting in the House of Lords or even the House of Commons—we are dealing with ordinary folk here. The issue about permanence is completely understandable and gives an assurance. I do not think there is any chance of anybody here in your Lordships’ House or the other place doing down Scotland. I do not believe that. Everybody keeps on saying we have to deal with the political reality, but the reality in Scotland is that many people believe that we here are out to do Scotland down in some way.
In short, we oppose all the amendments—
I will just gently point out to the noble Lord, in relation to his point about the use of language, that throughout the 1980s the Labour Party referred to the Conservative Government as not having a mandate in Scotland. That was the language of nationalism. The nationalists were opposed to devolution, and the Labour Party believed that devolution would kill nationalism stone dead. If symbolism and the Smith commission are so important, why was it that, with the Smith commission and the commitment to implement its recommendations, all three unionist parties in Scotland were reduced to one seat?
The emotional state of the Scottish electorate after the Scottish referendum is still to be analysed by a number of people and institutions. I do not know what happened and will be bold enough to say that the noble Lord, Lord Forsyth of Drumlean, does not know exactly what happened. But it certainly happened. He refers to people in the Scottish Labour Party thinking that nationalism would be killed off by a Scottish Parliament, but I am not one of those. It is about showing the Scottish people that we are trying to do our best for them. I agree with the noble and learned Lord, Lord Wallace of Tankerness, that a constitutional convention is required. In the long run, it must be required, because these issues keep cropping up.
We Scots are quite a canny lot. Is the noble Lord quite sure that Scots would not spot that a declaratory law adds nothing? He said he opposed every one of the amendments, but he did not state in terms—no doubt he now will—that he opposed the one I drafted on my feet, which would limit the ability of the Westminster Parliament to change the provisions relating to Scotland by adding conditions such as a referendum and a vote in the Scottish Parliament. Is he quite sure that it would not cut more ice in Scotland if one was defining rather than declaring permanence?
I appreciate what the noble Lord said and apologise for not dealing with his amendment comprehensively. Even as he was saying that, it occurred to me that the reason we object to this is that it is laying down the law—to use that phrase—to the Scottish Parliament as to what they must do. The noble Lord, Lord Forsyth, may be trying to do that but I am not. That would be seen as trying to impose conditions on the Scottish Parliament. I take the point that not every Scot goes about saying, “I need to have this word ‘permanence’”. I take it that the noble Lord, Lord Kerr of Kinlochard, stays in Scotland.
Is there a residential qualification to take part in these debates?
No, and I am sorry if the noble Lord took that the wrong way. However, I spend my life in Scotland, week in, week out. I listen to people there and am heavily involved in community organisations. I am not trying to devalue the noble Lord’s point of view but I can speak only from my experience. There is a suspicion there—justified or not—about Westminster trying to lay down the law. I know I tempt fate saying that in front of the noble Lord, Lord Forsyth, but there we go. We are suspected of laying down the law in a popular way, not in a legal way—once again, there are too many lawyers. We are talking about how this would be seen as being dictated to by Westminster and interference in the mandate. The Smith commission had the agreement and we are pushing that forward. We would be interested in supporting the amendment of the noble and learned Lord, Lord Hope of Craighead, and I look forward to an interesting night.
First, I thank all noble Lords and the right reverend Prelate for their informative submissions, observations and comments, with regard to both Clause 1 and the proposed amendments to it. I begin by making a number of general observations. First, no one on the Government Benches is in any doubt about the supremacy and sovereignty of the United Kingdom Parliament. In that regard, I take issue with some of the comments of the noble Lord, Lord Purvis. Ultimately, it is for this Parliament to determine the constitutional arrangements of the United Kingdom.
The noble and learned Lord, Lord Hope, alluded to some observations he made in the case of AXA General Insurance and others in 2011. I recall those well. He may in turn recall that my client came second in that case. Reference was also made to some obiter dicta of the noble and learned Lord in the case of Jackson, to which we would not necessarily subscribe. However, they are there and are a helpful insight into the thinking of the court at that time with regard to the issue of sovereignty.
The purpose of this Bill is to implement the Smith commission agreement. To suggest that there is no mandate for that is, in my respectful submission, quite inaccurate. Each of the five political parties in Scotland went into the Smith commission and negotiated the terms of an agreement. The Government have undertaken to seek to implement that agreement. That is the purpose of this Bill.
On that point, all the political parties went into that Smith commission and all of them signed the report. However, the Scottish National Party immediately came out of the Smith commission, John Swinney among them having signed the report, and rejected it.
I am aware of the conduct of the Scottish National Party in that regard and do not make any comment at this stage upon that. Perhaps it will be seen by others as extremely unfortunate that it should have lent credence to the agreement and then sought to renege from it. The point that we make is that it was signed—it is an agreement. It is in that context that this Bill is brought forward.
As I say, no one on the government Benches seeks to take issue with the proposition that this Parliament is sovereign and supreme. What we have here is a provision in the Smith commission agreement that we should recognise the permanence of the Scottish Parliament. It has been observed that it is, in a sense, already permanent—so be it—but let us remember that Clause 1 is concerned with a political statement, as much as any legal statement. That is its purpose, and it is not wholly exceptional in that regard. The noble Lord, Lord Norton, made reference to the Cabinet Office provisions on legislation at Chapter 10.9 of the Guide to Making Legislation. But when looked at, it expresses a generality—and, where there are generalities, there may of course be exceptions. This is one of those exceptions. I note that my noble friend Lord Forsyth agrees with me on that point.
My noble friend in turn suggested that there was little if any precedent for this form of legislation. I remind him that the Act of Union with Scotland of 1706, under the Gregorian calendar, referred to a Parliament of Great Britain for all time. In saying that, it made a political statement as much as a legislative provision—and that, again, is what we are doing here. We are recognising the political reality reflected in the Smith commission agreement.
Amendments 1 and 3 seek to modify Clause 1 by removing reference to permanence of the Scottish Parliament and the UK Government’s commitment to the permanence of that Parliament. We would not consider that appropriate. It appears to us that, in light of the Smith commission agreement, the Government should be prepared to make that political declaration of permanence. It does not take away from the supremacy or sovereignty of this United Kingdom Parliament. That remains.
Can my noble and learned friend give any other example of an extra-parliamentary body—the Smith commission in this case—binding Parliament, saying that Parliament will do this or that? Can he give any example of any other outside commission or body making such a declaration and binding Parliament?
The proposition is not well founded, with respect. The Smith commission is not binding this Parliament in any sense. Whatever the wording of the Smith commission agreement itself, it does not and could not bind this Parliament; it will be for the Parliament of the United Kingdom to decide whether it passes this Bill into law. So I do not accept the underlying proposition that was relied on by my noble friend Lord Cormack in that context.
On the terms of subsection (2) of new Section 63A, a point was raised about the words,
“with due regard to the other provisions of this Act”.
In my submission, those are helpful, because the other provisions of this Act include the cross-references to Section 28 and, in particular, Section 28(7) of the Scotland Act 1998. There again, you have underlined the sovereignty of the United Kingdom Parliament and the right of this Parliament to legislate on all matters, including devolved matters, in respect of Scotland.
The noble and learned Lord, Lord McCluskey, suggested an amendment to proposed new Section 63A(2) by inserting the word “only”, but as the definite article is already employed in subsection (2) we would adopt the position that the meaning is already clear and the word “only” is not required in that context.
Amendment 6 was based on the SNP amendments tabled to Clause 1 during the Bill’s consideration in the other place and seeks to provide that permanence could be repealed only if the people of Scotland voting in a referendum and the Scottish Parliament consented to it.
I am slightly behind my noble and learned friend’s speech, but I wanted to check the facts. He has made great play of the importance of including the word “permanence” as a result of the recommendations of the Smith commission. Will he explain why the Bill as originally presented to the House of Commons made no mention of permanence and why Part 1 was headed “Constitutional Arrangements” and “The Scottish Parliament and the Scottish Government”?
In the course of the Bill’s consideration, steps have been taken to strengthen the political statement contained in Clause 1. Indeed, the noble Lord’s proposed Amendment 2 picks up this very point. He noticed that in the other place the words “recognised as” were removed from Clause 1 for the same purpose. Perhaps I anticipate the further contribution that the noble Lord may wish to make to this debate.
Forgive me, but as in the best parliamentary answers, my noble and learned friend is telling me something I already know. My question was: if the Government thought that they were meeting the obligations of the Smith commission by presenting the Bill as it was originally presented, that they met the terms of the Smith commission and that that is the overriding purpose and the agreement, why was it necessary to add these words which create such difficulty, as is clear from the speeches made in the House? My noble and learned friend has not really answered the point.
With respect, I rather thought that I had answered the point made by the noble Lord, but let me reiterate it. The word “permanence” appears in the Smith commission agreement. After further consideration, it was felt that in order to strengthen the political statement contained in Clause 1 that word should feature in the clause itself.
I return to Amendments 6 and 7 which seek to alter the basis upon which any decision would be made with regard to the provisions of Clause 1. As was observed, it is not anticipated that there will at any point in the future be a referendum upon that issue, but nevertheless as this matter proceeded in another place it was again considered that this would strengthen the political statement that is being made here. Let us be clear: the use of a referendum in this context is consistent with precedent. In 1997, the people of Scotland supported the creation of a Scottish Parliament on the basis of a referendum. In 2014, in the independence referendum they reaffirmed their wish to have two Parliaments and two Governments for the purposes of reserved and devolved administration in Scotland. Therefore, it is appropriate that any question about the abolition of the Scottish Parliament and the Scottish Government, which is not envisaged, should be based on the expression of the will of the people of Scotland in a referendum. Let me be clear: that is a theoretical point. There has never been any question that the Scottish Parliament and the Scottish Government are anything other than permanent parts of the United Kingdom’s constitutional arrangements. That remains the case.
It is unusual, but not wholly exceptional, for a clause of a Bill such as this to contain a political statement, an affirmation of the status quo, a declarator that it will not change, and that is the fundamental purpose of Clause 1.
I am grateful to the Minister because I feel that he may well be making my point for me on the subject of new Section 63A(3). If the Government’s position, which I support, is that there can be change only if the people of Scotland make it in a referendum, does that not adjust the absolute sovereignty of this place, which can make an unfettered decision?
Clearly it is not, because, notwithstanding the outcome of any such referendum, this place might decide not to legislate in accordance with the outcome of the referendum. One cannot use these arguments to undermine the ultimate sovereignty and supremacy of Parliament.
I shall take up the point that the Minister made about Clause 1 as a whole—I think he was referring to the whole clause as it now stands, with all three new subsections—that it was simply a political statement. New Section 63A(3) is not just a political statement; it lays down a condition. If that is the right reading of the new subsection, does the Minister not recognise that it might be better to address some of the possible imperfections in new Section 63A(3) as it stands? The noble and learned Lord, Lord Wallace, among others, made the point that the phrase “the people of Scotland” is a little ambiguous, and it might be better to say “a referendum held in Scotland” to tell you where the referendum is going to be.
It is quite commonplace in Committee debates for Ministers to say, “We’ll take this away and look at it and perhaps reconsider whether the wording we have in the Bill is the best that could be used”. I wonder whether the Minister would be prepared at least to look at proposed new paragraph (b) in Amendment 6; leaving aside the mention of the Scottish Parliament in its proposed new paragraph (a), it suggests a rewording of new Section 63A(3) to see if it is the best wording that could be adopted. I absolutely accept that it deals with a hypothetical situation but, if one is laying down a condition, would it not be better to use the best possible terms in doing so?
I am obliged to the noble and learned Lord for reminding me of the observations made by the noble and learned Lord, Lord Wallace, in that context. At this time the Government consider that we have achieved the best possible wording for the purposes of new Section 63A(3) in Clause 1. I compliment the noble Lord, Lord Forsyth, on his eyesight and his ability to read my notes at such a considerable distance. However, the position of the Government remains that we are satisfied that a relatively open provision in this context with regard to the people of Scotland voting in a referendum is the appropriate way forward.
The Minister said a minute ago that the result of any referendum would not be implemented if the Bill were passed and became an Act. That is the reply that was given, and in the current atmosphere it will set lots of hares running. Would he care to clarify?
I would be pleased to clarify. We were speaking theoretically in the context of the supremacy and sovereignty of this Parliament. In the light of the referendum finding that the Scottish Parliament should be abolished, it would be necessary for legislation to be put forward. It would in theory be possible for that legislation to be defeated in this Parliament. That is all that I was saying. However, we are in the realms of extreme speculation here—or it appears to me that we are.
My noble and learned friend Lord Hope has pointed out the possible difficulty in the current wording. I am very fond, as are many Scots, of the well-known tennis player called Andy Murray. Is he one of the “people of Scotland” in new Section 63A(3)?
I am not in a position to say whether he or any other individual falls into that category, and at this stage I would not speculate on his status.
If my noble and learned friend cannot answer that very simple, straight question, does not that in itself indicate that he must recognise the validity of the comments of the noble and learned Lord, Lord Hope, that the Bill is capable of further improvement? In his eyes—not necessarily in ours—it was improved in the other place. Is he saying that the Government have got it absolutely right and it cannot be improved in this place?
On the last point, just to be clear, that is what I am saying.
Maybe I can help the Minister. Perhaps he is saying that this is all just declaratory, because after all it does not matter what you put in new subsection (3). That subsection just makes the permanence referred to in new subsection (1) conditional because there are conditions there which, if fulfilled, would not make it permanent.
If I can complete the journey around the houses that the noble and learned Lord has begun on that point: it appears that new subsection (3) simply underlines the political structure—the declaratory statement contained in the clause as a whole. The noble and learned Lord, Lord Hope, observed that of course it goes a step further in so far as it introduces conditionality to the abolition of the Scottish Parliament, which I acknowledge. As to it being,
“a decision of the people of Scotland voting in a referendum”,
that term is capable of clear and objective definition in due course. Respectfully, however, it appears that that wording is sufficiently clear for these purposes.
Just to carry on a little around the House: the Minister did not make it clear at the Dispatch Box when he said that the people of Scotland would not necessarily be sovereign if this Parliament did not adhere to the result in that referendum. That is absolutely contrary to the Edinburgh agreement that the Prime Minister signed, which stated that the Government would respect that view. The sovereignty of the people should be absolute, not anything else he may say at the Dispatch Box this evening.
I cannot agree with the interpretation of sovereignty the noble Lord, Lord Purvis, puts forward. At the end of the day, if there was a referendum—and we are talking about a theory, not political reality—it would be necessary for there to be legislation to implement the outcome of that referendum if it involved the abolition of the Scottish Parliament. No one in reality is contemplating the abolition of the Scottish Parliament. The whole purpose of Clause 1 is to make clear the permanence and the recognition of the permanence of the Scottish Parliament and the Scottish Government. The noble Lord, Lord Purvis, has to recognise that the outcome of any referendum could be implemented only by way of legislation that went through this, the sovereign Parliament of the United Kingdom. That is the only point I seek to make.
I may be able to help my noble and learned friend to get off this line of argument. I have been reflecting on what he is saying about this clause, which is essentially that the sovereignty of the United Kingdom Parliament remains unaltered, and that what is contained in this clause is simply a declaratory political statement. Can he explain to me what a declaratory political statement is? Is a political statement one that says something but means something else? He appears to be saying that the statement is that the Scottish Parliament is permanent, and at the same time that it is not permanent because this place is sovereign. Is his definition of a political statement one which can mean whatever you want it to mean and which is basically not entirely straightforward?
I do not accept that expression of the position. As I said at the outset, the whole purpose of Clause 1 is to make a political statement that reflects the terms of the Smith commission agreement, which determined that there should be an expression to the effect that the Scottish Parliament is permanent. We acknowledge that, and that is the political statement being made. It is a declaration of will. However, we also recognise, as I believe this House will recognise, that the United Kingdom Parliament is ultimately sovereign and supreme. I am seeking to make that point. At the end of the day, this Parliament is sovereign, and it cannot disclaim that sovereignty.
In that case, can the noble and learned Lord expand on the meaning of the Government’s wording in this clause? It states that,
“the Scottish Parliament and the Scottish Government are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum”.
Therefore, if the people of Scotland vote in a referendum and make a decision, and the Government or Parliament then disregard the view and the decision of the people of Scotland, does that mean that this clause has no purpose at all in legislation? If that is the case, what is the point of this wording being in the Bill?
It has a purpose inasmuch as it determines that there cannot be abolition without a referendum. I am simply making the point that, as this is a sovereign and supreme Parliament, it could decline to legislate in accordance with the terms of that referendum result. However, politically that just would not happen.
Perhaps I may intervene. The noble and learned Lord—I was going to say “my noble and learned friend” but he is not in this context—has made it entirely clear, beyond peradventure, that this Parliament may do what it chooses because it is sovereign. When he says that this Parliament makes a declaratory statement, that is within its sovereign power. Surely that is the end of this point. If Parliament decides to make this declaration, then so be it.
I am obliged to my noble and learned friend. It seems to me that we make no further progress on this point, notwithstanding the further observations of the noble Lord, Lord Purvis. I simply underline the sovereignty of this Parliament, and nothing in Clause 1 derogates or takes away from that. That is the bottom line. It is necessary to make progress with this Committee debate rather than to stay in still waters on one sterile point. Therefore, at this point I urge the noble Lord to withdraw his amendment.
Perhaps I may return to new subsection (3), which relates to a separate point from the one that the Minister has been emphasising concerning the sovereignty of Parliament and so on. If we look ahead to the day some time next year when this Bill comes back on Report, it is quite likely that there will be an amendment seeking to reword new subsection (3), perhaps along the lines that have already been discussed. I respectfully suggest to the Minister that he would carry a little more credibility if he were to depart just a fraction from the briefing that he is reading from and were prepared to say that he would look again at this. He does not have to commit himself to any rewording, but sometimes when we have these debates in Committee it softens the atmosphere a lot if one is prepared to say simply, “Well, some interesting points have been made. We’ll have another look and perhaps come back with something on Report, or perhaps not”. It would ease the atmosphere a little on this point and avoid repetitive interruptions.
I notice what the noble and learned Lord says with regard to new subsection (3) in Clause 1.
Section 1(1) of the Northern Ireland Act 1998 also refers to the fact that it is a declaration that:
“Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll held for the purposes of this section”.
Subsection (2) goes on to say:
“But if the wish expressed by a majority in such a poll is that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland, the Secretary of State shall lay before Parliament such proposals to give effect to that wish as may be agreed between Her Majesty’s Government in the United Kingdom and the Government of Ireland”.
Obviously there is a context to that, but does the noble and learned Lord think that it might be helpful to add a further subsection indicating that, if a wish is expressed by a majority in a poll of the people of Scotland that the Scottish Parliament should be repealed, the Secretary of State will bring forward the necessary legislation to give effect to it?
With respect, it does not appear to me that the two situations are immediately comparable. In those circumstances, it does not appear to me that that would add to new subsection (3) in Clause 1. I renew my submission that the noble Lord should withdraw the amendment.
I ask my noble and learned friend to respond more positively and helpfully to the noble and learned Lord, Lord Hope. It was a very simple point that he made. All he asked was that my noble and learned friend would reflect on what has been said during this debate and come back at a later stage, having reflected. He may be equally adamant, but he really owes it to this House to reflect on what has been said in this debate.
With respect to my noble friend, I will reflect upon all observations that have been made in this House, but without commitment.
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.
2: Clause 1, page 1, line 9, after “are” insert “recognised as”
My Lords, we have had quite a good debate already—some two hours or more —on Clause 1, but I would like to move Amendment 2. Anticipating what the noble Lord, Lord McAvoy, would say when he advised us to tread carefully on people’s dreams and anticipating that the Front Bench might not be inclined to listen immediately to the wise words of my noble friend Lord Norton of Louth, I tabled Amendment 2, which at least softens the impact of the clause as currently drafted.
The effect would be to introduce after “are” the words “recognised as” so that it would read, “The Scottish Parliament and the Scottish Government are recognised as a permanent part of the United Kingdom’s constitutional arrangements”. Adding “recognised as” implies that there is another party, which is the sovereign Parliament.
I am looking forward to hearing the Minister explain why he is not prepared to accept the amendment—in the unlikely event that he is not prepared to accept it—because these words were in the original Bill presented to the House of Commons. They were taken out as a result of representations from the Scottish nationalists. The Scottish nationalists may have a mandate in Scotland and they may have a mandate in the House of Commons in that they represent 56 seats—
The noble Lord, Lord McAvoy, says under his breath, “54”. I do not wish to go into the half-life period of nationalist Members of Parliament and the reasons for their disintegration, but 56 were elected and I will not be tempted down that particular road.
They were elected on a mandate that is destroying the United Kingdom. We had a referendum in which the people of Scotland clearly expressed the view that they wished to remain part of the United Kingdom. I do not buy the argument that we should immediately incorporate into the Bill suggestions from people who do not believe in devolution. The noble Lord, Lord Maxton, was kind enough to point out that the Scottish nationalists were against devolution. I was against devolution. I believed that it would result in a platform for the nationalists that would eventually threaten the existence of the United Kingdom. I am sorry to say that that has proved to be the case. Alex Salmond voted against devolution and was against it because he shared the view of the Labour Party that devolution would kill nationalism stone dead. It is true that we were both against the constitutional convention, but for different reasons. The nationalists, of course, proved to be luckier than their judgment. So the Government have taken out “recognised as” and we now come back to what exactly the Government are doing with their political statements. Are these political statements words that are meant to appease the nationalists, but they do not mean what we say they mean? That was a point made in the previous debate.
I say to my noble and learned friend the Minister that we can vote in Committee. We choose not to vote in Committee so that Ministers have an opportunity to listen to the debate and come back with their thoughts and reflections. They might not necessarily come back with thoughts and reflections in line with the representations that have been made. But if Ministers are not prepared at the Dispatch Box to listen to well-argued arguments and instead say at this stage in Committee that they are not prepared to go away and think about it, perhaps we need to start thinking about dividing the Committee. My noble friend the Chief Whip is not in his place, but it is not unreasonable, in return for not seeking to divide the Committee, that Ministers should listen to the arguments and give a clear undertaking that they are prepared to consider them and come back on reflection.
In moving the amendment, I am simply requesting that the Government put back into the clause the words that they themselves thought necessary when they introduced the Bill to the House of Commons, particularly in the light of the vigorous debate we have had and the concerns that have been expressed. Including the words “recognised as” would at least offer some respite to those of us who feel that we may be pulling the wool over the eyes of the electorate with the clause as it stands.
The right reverend Prelate the Bishop of Chester told us that it would be absolutely disastrous in Scotland to change the clause. I think it would be even more disastrous to present a fraudulent clause that gives a false impression of the position and could be a source of bitterness in future years. After all, we won the referendum campaign as “Better Together”; we do not want to end up as “bitter together”.
My Lords, perhaps I may clarify a point. I would not want to introduce a question mark over the commitment to permanence. Perhaps I may try an analogy, although it may not work. When I solemnise the marriage of a couple as a permanent union, I do so because of the significance of that, but knowing full well that future circumstances might make that union untenable. That is the possibility. It is simultaneously true that one is committed to the permanence of something but can recognise that circumstances can change in the future. That is simply the nature of a vow—a word that we have not used this afternoon but has been used in previous debates. A vow is a solemn intention, and the commitment to permanence in the Bill is in a sense a solemn commitment. That is what it is and it is the basis on which it has been included. To withdraw it would simply send the wrong signal. That is not to say that something is then set in stone and Parliament cannot change it; that is clearly not our constitutional arrangement, but it is, as it were, the solemn commitment to the people of Scotland that is enshrined in the use of the word “permanent” in the legislation.
I am most grateful to the right reverend Prelate, but the vow is something that was dreamed up, as I said at Second Reading, by the editor of a tabloid newspaper, the Daily Record. The party leaders, some of whom are no longer with us as party leaders, who signed up to it were unaware that it would be presented on the front page of that newspaper as a vow. It is the old story. When you complain to an editor about a newspaper story, they always say, “I am terribly sorry. It was the subeditors who wrote the headlines and they did not really read the text”. In this case, that is the status of the vow. I hesitate to intrude on the right reverend Prelate’s territory, but I certainly would not confuse it with the marriage vows, which, in my own case, I took as being absolutely permanent and for life. My worry about the Bill is that this marriage of the United Kingdom is being turned into a system where we appear to be living apart from each other, in houses next door to each other with different regimes operating in those houses, but that is for another day. I beg to move.
My Lords, I rise briefly to support my noble friend Lord Forsyth, who is absolutely right. The fact that the Government had the wording as per his amendment in the original Bill represents what must have been their best thought, after careful preparation, on what should be in the Bill. They have succumbed unnecessarily to pressure in another place and now we are faced, as in a number of other areas in the Bill, with what they must consider second best. I do not think that is good enough for an important Bill of this type, and I urge my noble and learned friend to accept the amendment.
My Lords, this is an interesting amendment. I wonder by whom the recognition is supposed to be given. “Recognised as” requires that someone does the recognising; who is it? This is a much better clause as it stands than it was originally. The process of improvement in Parliament has in fact worked in this case by missing out a nonsensical requirement and replacing it with one that is reasonably clear.
So far as I am concerned, the purpose of a clause of this kind is to declare the situation as it is and as it will be for this Parliament and for any subsequent Parliament that does not decide to repeal it. As we know, the Act of Union was supposed to be for ever, but we are all mortal, and Members of Parliament, in particular, are mortal. It may well be that a later Parliament has a different idea. The sovereignty of this Parliament is perfectly clear, but that does not mean that it binds a subsequent Parliament, and therefore there could be a change in a subsequent Parliament.
That brings me to a matter that was referred to about the referendum. The point that is made in the clause is that the Parliament is to be permanent, and therefore there is no question of a referendum until someone decides that there should be a question about that permanence. It is quite inappropriate to include detailed provisions about what would happen in the event of a decision that perhaps the Parliament was not permanent after all in the shape of a referendum. That is a matter which, at the very least, would have to be looked at in some detail, just as recently we have been looking in great detail at the referendum Bill about moving out of the European Union. If a Bill was required to alter the status of the Scottish Parliament, I feel certain that it would need some pretty careful consideration. That probably will not occur in my lifetime or, I suspect, in the lifetimes of most noble Lords who are present, except possibly the very young.
My Lords, perhaps I may make a brief observation. The noble and learned Lord, Lord Wallace of Tankerness, quoted the 1998 agreement that affected Northern Ireland. I have to say that if you have a political agreement such as the Smith commission which you are trying to implement, you cannot be expected to translate it word for word into legislation. The Belfast agreement contained diplomatic language, political language, and of course there was an international dimension to it which is not present in the current proposals. The phrase that comes to mind when discussing these matters is, “There is nothing as permanent as the temporary”. We should not be working within an absolutely rigid framework which says that we have to replicate word for word the particular phrases used by the Smith commission.
It is never intended that a political agreement from a commission which has been established should automatically be transferred verbatim into law. That is not feasible and I urge noble Lords not to put themselves completely on the hook over this because of the fear that if something is changed, it will be seized upon by people who will say that you are running away from the agreement. The fact is that those people will seize on it whether you do or whether you do not. That is because we know that they signed up to it, and now they have walked away from it. The issue is this: is it right and proper legislation or is it not? Is it consistent with the aims and objectives that were set out by the commission to which the parties have agreed? I would have thought that that is a better measure for judging the quality of the legislation rather than putting yourself in a terrible position where if you change a word, a dot or a comma, somehow or other you are committing a political sin. That is not what Parliament is here to do. Everyone has been put into difficulty by getting themselves shackled to this proposal.
My Lords, we have spent more than two hours arguing more or less about the number of angels dancing on the head of a needle. Ultimately the power of this Parliament, and any Parliament, derives from the people. Sovereignty for any Parliament derives from the will of the people. If the will of the people changes then the legislation will change and the future of Parliaments will change.
I do not want to intrude on the personal grief on the government Benches because much of the argument has come from there, but we have to concentrate on trying to move on into how we can make this legislation more relevant to the complex society that we have. There has not been much evidence of that so far. I greatly regret the fact that I never studied law—well, I used to greatly regret that—but I have to say at the end of this afternoon, thank goodness.
My Lords, Amendment 2, moved by the noble Lord, Lord Forsyth, can be legitimately accepted by Ministers on the basis that it is a more accurate assessment of the present situation.
When I first became an advocate I was summoned by the Solicitor-General. I went up to him, not knowing what he was going to say, and he said he wanted to know whether I would become a parliamentary counsel. At that time I had not the faintest idea what a parliamentary counsel was so I said I would give him an answer as soon as possible. I then learned that a parliamentary counsel was merely a draftsman, and I fear that if I had given the wrong answer I might still be one of the draftsmen drafting the provisions of this Bill, rather than being given the privilege to comment on the best way forward.
There is no question but that the view generally taken is that the Scottish Parliament is there on a lasting basis and on the basis of permanency. There is no doubt whatever that this Parliament is sovereign and that one Parliament cannot bind future Parliaments. The results of the referendum and the general election both pointed in the direction of the maintenance and security of the United Kingdom, and also of greater powers for the Scottish Parliament. In some ways, we are having to walk a tightrope reconciling those two different aims. However, I believe there is room for manoeuvre, and this is a very small adjustment which the noble Lord, Lord Forsyth, is suggesting. Without losing anything of the political declaratory nature of the first provisions of the Bill, the amendment could legitimately be looked at and acceded to.
My Lords, the Government in their wisdom accepted the Labour amendment in the other place to reflect the Bill as it is. We support that. We think that it was very wise of the Government to do so. It puts the permanency of these institutions beyond any doubt. We all know the law regarding ultimate sovereignty but nevertheless it would be foolish—I am repeating myself—to reject the symbolism of having that in the Bill, so for those reasons we oppose the amendment moved by the noble Lord, Lord Forsyth.
My Lords, I begin by making the observation that, without commitment, of course we are listening and of course we reflect upon the terms of this debate. There can be no question about that. We are here for that very purpose. I do not accept the implication that somehow we have come here with our ears closed or our minds closed, because that is not the case. I say that without commitment.
In the context of this amendment, the words “recognised as” appeared in the original drafting of the clause. I cannot accept the observation of the noble Lord, Lord Lang, that by amending a clause of this kind we end up with second best. With great respect, that is to invert the whole process of Parliament. The object of amendment—of adjustment—is to achieve a better result, and that is what the Government believe was achieved by accepting the amendment put forward by the Labour Opposition in the other place.
I note—and with great respect adopt—the observation of the noble and learned Lord, Lord Mackay of Clashfern, that if you go down the route of “recognised as”, it opens up the question of recognised by whom, in what circumstances and why? That seems wholly unnecessary in the context of this form of declaratory provision within the clause. In these circumstances I invite the noble Lord, Lord Forsyth, to withdraw his amendment.
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.
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?
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.
I take the point that issues of politics can intrude into questions of drafting, but if the noble Lord looks at Clause 2 he will see that the words—I hope I am not stealing his thunder in this regard—“it is recognised” are also found there. Does he take exception to that?
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.
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”?
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.
Amendment 2 withdrawn.
Amendment 3 not moved.
4: Clause 1, page 1, line 11, after first “The” insert “only”
In light of the answer relating to the word “only”, to the effect that it is implied by the use of the definite article, I see no need to pursue this at this stage. I will not move this amendment and I intimate an intention not to move Amendment 5.
Amendments 4 and 5 not moved.
6: Clause 1, page 1, leave out lines 15 to 17 and insert—
“( ) Subsection (1) may only be repealed if—
(a) the Scottish Parliament has consented to the proposed repeal; and (b) a referendum has been held in Scotland on the proposed repeal and a majority of those voting at the referendum have consented to it.”
In the light of what the noble and learned Lord, Lord Keen, said, I understand that he will at least reflect a bit on what was said earlier. We may return to this on Report, but for the time being I will not move the amendment.
Amendment 6 not moved.
Amendment 7 not moved.
8: Clause 1, page 1, line 17, leave out “Scotland” and insert “the United Kingdom”
This amendment again relates to an issue that we touched on in our discussion of earlier amendments. The amendment would require that any referendum, as proposed in new Section 63A(3) as inserted by Clause 1, regarding the abolition of the Scottish Parliament, which I must say is highly unlikely, should be a referendum for the whole of the United Kingdom. If there were circumstances where perhaps we had a new Act of Union, or we were establishing a new federal constitution, or—this is hard to imagine—the Scottish Parliament was to be abolished, it would have huge implications for the rest of the United Kingdom.
If there was to be a referendum, it would be, as provided in the Bill,
“on the basis of a decision of the people of Scotland”.
We have had some debate as to who the people of Scotland are and whether Mr Andy Murray is in that category. If there was to be a referendum, I accept that proposals would need to be brought forward for its conduct, but at a later stage in the Bill we give the powers to set the rules and nature of referendums to the Scottish Parliament. Would that apply to this particular referendum? It seems to me that if we were making a huge change, where we were bringing back into the United Kingdom a system of government—perhaps into this Parliament or some other system of government—that that would be a matter for the whole of the United Kingdom, not just the people of Scotland. Therefore, my amendment would simply substitute “Scotland” with “the United Kingdom”. I beg to move.
My Lords, the noble Lord, Lord Forsyth, makes a good point in so far as referenda in one part of the United Kingdom clearly have implications for the others, but there would be fairly significant inconsistency. If we look at the Belfast agreement and its proposals for a referendum in Northern Ireland, it is exclusive to the people of Northern Ireland. If the carry-through from his amendment would be that the people of the rest of the United Kingdom would have to vote in that referendum as well, that would mean that there could be two different outcomes. So clearly there are difficulties.
I fear that we are trying to treat the Smith commission and the political issues swirling around it as if they were a treaty rather than a piece of domestic legislation. That is why we are getting ourselves into difficulty here. This amendment would need to be looked at very carefully because of the inconsistencies that could arise. I accept entirely that additional powers to a devolved region would affect everybody else, but, equally, a referendum regarding sovereign status is a very different thing.
My Lords, not to anyone’s surprise, we oppose the amendment. It was our amendment in the House of Commons that made it clear that it should be the Scottish people who determine the permanency of their Parliament. It is not a decision for the United Kingdom as a whole.
I believe firmly in the role of this House as a revising Chamber. Therefore, there is no question of having to have a mandate, to be elected or any other method of claiming to represent people. With respect to the noble Lord, Lord Forsyth of Drumlean, it has to be taken into account that he has no mandate for this type of quite dramatic intervention. There is not much of a cry in England, Wales and Northern Ireland for inclusion in such a referendum. It would also pose the additional point made by the noble Lord, Lord Empey, that it would lack consistency and political reality to include the whole of the United Kingdom in a referendum in Northern Ireland, although I accept that there are unique circumstances in Northern Ireland.
I hope that I am not getting too repetitive, but it is my opinion, based on my experience of living and staying in Scotland—I have been in Scotland all my life—that there would be complete outrage if such an amendment were supported by this House. I ask colleagues to reject it.
I am obliged to noble Lords. I reiterate that the purpose of the Bill is to implement the recommendations in the Smith commission agreement. I noticed that the noble Lord, Lord Smith, has already observed that the terms of the Bill do that. This provision is consistent with the spirit of the agreement. It is also with precedent, if I can put it in that context. The referendum in 1997 over the matter of devolution was a referendum of the people of Scotland. The referendum on independence in 2014 was a referendum of the Scottish people. It is considered appropriate that we should continue with that model. I note that the noble Lord, Lord Empey, pointed out that the Northern Ireland Act 1998 proceeds in a similar vein. So it is consistent and appropriate that, for the purposes of this Bill, any such referendum—the noble Lord, Lord Forsyth, himself acknowledges how extremely unlikely it is that that would even be contemplated —should be a referendum of the Scottish people. I therefore urge him to withdraw the amendment.
I am most grateful, but before my noble and learned friend sits down, could he tell me where in the Smith commission agreement there is a proposal that there should be a referendum of this kind?
There is no express reference in the Smith commission agreement to a referendum. As my noble friend is aware, that provision was brought into the Bill in the belief that it would strengthen the political statement contained in Clause 1 with regard to the permanence of the Scottish Parliament.
My Lords, I believe that this introduces the Welsh element. There would be a profound disinterestedness in Gresford about whether the Scottish Parliament exists or not, save in so far as the Barnett formula gives them so much more money than we get. On the other hand, we would resent it hugely if the noble Lord, Lord Forsyth, had a vote in a referendum for the abolition of the Welsh Assembly, or, indeed, any successor.
I know that the noble Lord has not been following our proceedings so closely, but the point being made here was not about the status of the Scottish Parliament. In our earlier discussions I made the point that I cannot imagine circumstances in which we would want to abolish the Scottish Parliament, but it might be, for example, that the noble Lord’s party’s proposals to create a federal constitution and to have a new Act of Union were implemented. That might mean dissolving or altering the Scottish Parliament as it stood.
I do not like Clause 1 and new subsection (3), which provides for this referendum. I tabled the amendment to make the point that the future of the Scottish Parliament were it to be changed, now that we have gone down this road so far—and will have gone further when the Bill becomes an Act of Parliament—must be a matter for the whole United Kingdom. I cannot conceive of any other circumstances in which that would happen. I suppose that it could be that the nationalists had made such a hash of it that people in Scotland were pleading for the thing to be shut down and then come back. However, there would then be issues for the Welsh, the English and the Irish about the funding, the obligations and other matters that would arise. All this is pretty hypothetical and extreme but it has been put there in order to mislead people about the nature of devolution, which is power devolved from this sovereign Parliament. It is important that the legislation should not seek to mislead people.
I was impressed by the argument put forward by the noble Lord, Lord Empey. I confess that I had not thought about the Northern Ireland precedent. The problem here is not my amendment, it is new subsection (3), which provides for a referendum on abolition. Throughout the whole period when these proposals have been discussed, Ministers have been at pains to say: “All we are doing is implementing the proposals of the Smith commission”. There is no such proposal in the Smith commission, as my noble and learned friend has confirmed. Along with the declaratory words in this clause, the referendum provision is making a political comfort statement to people who wish to destroy the United Kingdom, who are opposed to devolution and see it as a ram or a wedge by which they will split the United Kingdom and achieve their objectives. I am not keen on helping these people in that process and that is why I do not particularly like new subsection (3) but I accept that my amendment will not do the job. However, it has perhaps helped to expose the fact that the Government are putting into the Bill stuff which has nothing to do with the Smith commission but which has another political purpose that is extremely unwise. I beg leave to withdraw the amendment.
Amendment 8 withdrawn.
9: Clause 1, page 1, line 17, at end insert—
“( ) Nothing in this section alters the sovereignty of the United Kingdom Parliament.”
My Lords, I hope I will get a bit of a break after this one. Having argued earlier that it was completely inappropriate to use legislation to write political graffiti—which is what the Government are doing—I reluctantly came to the conclusion that we would perhaps be unable to persuade the Government to rub it out. This amendment, therefore, adds some graffiti of my own. It does what I have been saying we should not do, which is to use legislation to make declaratory statements. However, the declaratory statements included in the Bill as it stands are so misleading that it is essential to add this amendment which simply adds, after line 17, the words:
“Nothing in this section alters the sovereignty of the United Kingdom Parliament”.
I have not been counting, but I have heard my noble and learned friend say that so many times. As he has argued that it is necessary to have declaratory statements in the legislation for a political purpose, that there is nothing wrong with it and that there are precedents for it; and as he has said over and again that nothing in this Bill alters the sovereignty of the United Kingdom Parliament, I am looking forward to him accepting the amendment with enthusiasm.
My Lords, is it not the case that the sovereignty of the UK Parliament is already protected by Section 28 of the Scotland Act 1998, which provides that the UK Parliament can always legislate for Scotland?
My Lords, I compliment the noble Lord, Lord Forsyth, on his optimism. The position is clear: we have repeatedly stated, across this House, that the United Kingdom Parliament is a sovereign Parliament. The noble Lord decided to seek a declaratory statement of that. I submit that this is wholly unnecessary: it is beyond doubt that this Parliament is supreme and sovereign. This is restated by Section 28(7) of the Scotland Act 1998. The existing declaratory statements in Clause 1 are not in any sense misleading. They are an expression of a political reality and they are intended to declare that reality as clearly as possible, acknowledging all along the supremacy of this, the United Kingdom Parliament. The proposed amendment is wholly unnecessary and, if anything is misleading it is the necessity for it. I urge the noble Lord to withdraw it.
I will not prolong this brief debate unduly, but my noble and learned friend seems to be adopting a fairly intransigent line. If it is permissible to make declaratory statements to appease those who would destroy the United Kingdom, is it not permissible to insert them for those who are dedicated to its future?
That may well be so, but there is already a declaratory statement in the Act which the Bill amends. It was pointed out that, under Clause 1, the other provisions of that Act were to be taken into account. One of those is Section 28(7). I will not say anything about the proposed amendments to Clause 2; the situation may be slightly different there.
My Lords, I have tried to follow this. It is not unduly easy but it would help me greatly if my noble and learned friend, in his reply to the noble Lord, Lord Forsyth, could explain where it is set out in the legislation, as a declaratory statement, that nothing in it affects the sovereign power of this Parliament. If he is unable to find that bit, would it not be a good idea to do as my noble friend Lord Forsyth says and put it in?
Perhaps I can help my noble and learned friend. Throughout this afternoon, he has argued that it is essential—for political reasons—to put in Clause 1 words that say the Scottish Parliament is permanent. He has argued that we should understand that no Parliament can bind another and that the sovereignty of the UK Parliament remains. All my amendment seeks to do is to add a few words to the clause which give the reassurance that he has been giving to the Committee. I am not a lawyer, but after Pepper v Hart and all that, what is said at the Dispatch Box does actually matter. For him to say that he could not add it to the clause because it would be redundant or that you can find, buried in the previous Scotland Act—
It has to be remembered that this Bill is amending the Scotland Act. This provision, which my noble friend Lord Forsyth of Drumlean wants to put in, happens to be there already in Section 28(7). That is my objection. Repetition may be a good idea, for all I know, but it is there already. The point made by the noble and learned Lord, Lord McCluskey, about unnecessary legislation might come into this. There does not seem to be much need for it, especially when Clause 1 refers to the other provisions of the Scotland Act, into which this is being embedded.
The actual wording of Section 28(7), which I do not suppose many noble Lords will have memorised, reads:
“This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland”.
It does not talk about the sovereignty of the United Kingdom Parliament at all. It talks about its continuing power to make laws for Scotland.
I hesitate to rise again—
I shall give way to my noble and learned friend in a moment. I wish to deal with the points that have been made and what my noble and learned friend Lord Mackay indicated the section said. I have huge respect for him. You always know that the Government are in difficulty when he has to come to their aid. He said that the relevant provision was already in the Bill. However, as the noble and learned Lord, Lord McCluskey, has pointed out, it says nothing of the sort. If this provision was already in the Scotland Act, my noble and learned friend could have said, “In order to make that clear, we will move that provision into this clause in the new Bill”. It is not necessary to duplicate it. The point is that the Scotland Act, as amended by this Bill—if it becomes an Act—will have in it sentences which, to say the least, are very provocative in terms of the continuing powers of sovereignty of this Parliament. Therefore, it is not unreasonable to think that any declaration about the sovereignty of this Parliament should be placed alongside the provision in that section of the Act.
I am most grateful to the noble and learned Lord, Lord McCluskey, because I thought that what my noble and learned friend said from the Dispatch Box was a little misleading, to say the least.
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.
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.
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.
I apologise to my noble friend Lord Forsyth. I must confess that I was unclear who was intervening on whom. I add to the point made by my noble and learned friend Lord Mackay of Clashfern. As I understand the point he was making—it was one that I had endeavoured to make before, but obviously had not made clearly—it is simply that Clause 1 is amending and introducing Section 28(8) of the Scotland Act 1998. It is necessary to read that in conjunction with Section 28(7) of the Scotland Act 1998, which refers to the ability of this Parliament to legislate in respect of Scotland on all matters. That is a matter to which the noble Lord, Lord McAvoy, alluded earlier as well. That is why the issue of sovereignty—the supremacy of this Parliament—is already contained in the relevant section of the Scotland Act, as it will be amended by this clause of the Bill.
I am grateful to the noble and learned Lord for giving way, but Clause 2 amends Section 28. We are still talking about Clause 1, which amends a different part of the Scotland Act, so there is a separation there. However, I very much endorse what the noble and learned Lord, Lord Mackay of Clashfern, said—namely, that any reader of the Scotland Act knows perfectly well that you have to look at Section 28 to understand the competence of the Parliament and the relationship between the two Parliaments. The point is simply that Clause 1 does not deal with Section 28.
I accept that correction from the noble and learned Lord. I believe that Section 63 would be amended under Clause 1. However, essentially, the point is that if you read through the whole of Section 28, subsection (7) of that section makes it absolutely clear that this Parliament remains supreme and sovereign in the matter of legislation for Scotland, whether it be reserved or devolved.
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. 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.
The noble Lord is trying to paint a picture of government intransigence. As the Government’s Official Opposition, as distinct from the unofficial opposition, I suggest that one cannot complain when changes are made in the other place thanks to debate, and the Government see the worthiness of that and accept it, and then complain because they do not accept the noble Lord’s amendment. I think he is painting a totally unfair picture of the Government.
For a moment, when the noble Lord referred to the Official Opposition and the unofficial opposition, I thought he was referring to the new leader of the Labour Party. I beg leave to withdraw my amendment.
Amendment 9 withdrawn.
Clause 1 agreed.
Clause 2: The Sewel convention
10: Clause 2, page 2, line 2, leave out “The Sewel Convention” and insert “Competence of the Scottish Parliament”
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.
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.
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.
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.
My Lords, first, there is the question of whether the heading is a matter for the parliamentary draftsmen rather than this House, and that is an issue, in my respectful submission. But let us turn to the substance of the—
I did take advice on this. The amendment has been tabled so the amendment is in order, surely.
I was going to continue by saying that, the amendment having been tabled, I would look to its substance, which is that the heading should be, “Competence of the Scottish Parliament”. I am reminded of Voltaire’s observation about the Holy Roman Empire, that it was,
“neither holy, nor Roman, nor an empire”.
Clause 2 is not about competence; nor is it about the Scottish Parliament. It restates in statutory terms the procedural convention of the United Kingdom Parliament with respect to its legislation for devolved matters. If we were to have a heading, “Competence of the Scottish Parliament” when in fact we are dealing with a matter that concerns the legislative competence of the United Kingdom Parliament, in my respectful submission, we would not only puzzle historians but confuse everyone else with regard to the content of the relevant clause.
I note what has been said about the present heading. I will reflect upon the observations made about that heading. But given that it is strictly a matter for the draftsmen, I go no further at this time. I hope that my noble friend will see fit to withdraw the amendment.
I am neither a lawyer nor a historian so I wonder if the noble and learned Lord can help me with his interpretation of this. As this is an amendment Bill to the 1998 Act, once this clause takes effect, if Parliament approves it, will this title actually exist in the amended 1998 Act? If it does not, is this not all rather academic?
As I understand it, the title will not exist in the amended 1998 Act. The title is a matter for the parliamentary draftsmen but, as my noble friend Lord Forsyth observed, the amendment was put on the Marshalled List and therefore it is addressed. As I say, I will reflect upon his observations, but at this stage I urge him to withdraw the amendment.
My Lords, I am very happy to withdraw it. I am grateful to my noble and learned friend for relieving me of the responsibility for adding to the statute book the words, “Competence of the Scottish Parliament”. But the point remains that it would be ridiculous to put the Sewel convention into statute and to retain a reference to the Sewel convention. If he is saying, as the noble Lord, Lord Purvis, has very helpfully indicated, that in the consolidated Bill the words “the Sewel convention” will disappear from statute and that the Sewel convention will cease to exist as such because it will now be incorporated in statute, I am absolutely delighted. I am happy to withdraw the amendment with that reassurance. Perhaps he could just give us that assurance and then there will be less for him to reflect on.
The term “the Sewel convention” will remain in this Act but will not appear in the amended Scotland Act 1998, which is going to be the relevant amended legislation.
Right, well, I beg leave to withdraw the amendment but give notice that we will return to this at a later stage in the Bill.
Amendment 10 withdrawn.
11: Clause 2, page 2, line 3, after “Parliament)” insert “in subsection (7) at the beginning insert “Except as provided for in subsection (8),””
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.
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.
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.
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.
Could the noble and learned Lord indicate what the Scottish Government see as particularly virtuous about the formula that he suggests in this amendment?
I am obliged to the noble and learned Lord. There are really two points. First, Clause 2 as worded uses “normally”; secondly, it does not set out in full the way that the convention is applied in practice. These points were made very effectively by the noble Lord, Lord Stephen, a moment ago in moving Amendment 11, which is read together with Amendments 15 and 16. There are two points which needed to be added to Clause 2, one being to alter the legislative competence of the Scottish Parliament and the other being to alter the executive competence of the Scottish Government. These matters are in practice the subject of a consent resolution or a Sewel convention Motion and should be referred to expressly in the clause to cover the reach of the convention. That is the point which the committee of the noble Lord, Lord Lang, was talking about.
I am grateful to the noble and learned Lord, Lord Hope of Craighead, for his comments about the word “normally”. It is not a word that alarmed me particularly, as a non-lawyer, but the clause as a whole certainly alarmed and concerned the Constitution Committee. I shall say something about that in a moment but “normally” in its location there seemed to strike the balance between permitting the Scottish Parliament to legislate on devolved matters without intervention from the United Kingdom Government while, at the same time, giving the Government of the United Kingdom the clear right and entitlement in special circumstances to intervene. I will be interested to hear what my noble and learned friend at the Dispatch Box will have to say about it.
My own Amendment 13 simply seeks to strengthen new subsection (8) of Section 28 of the 1998 Act by reasserting the supremacy of the United Kingdom Parliament to reinforce the terms of subsection (7), which subsection (8) might otherwise seem to contradict. Having heard the treatment given by the Front Bench to my noble friend Lord Forsyth’s amendments, I suspect that I may not be on an ideal wicket. But I want to say a word or two about this clause because the Sewel convention is a dangerous situation in which to legislate.
The Sewel convention is as slippery as a fish. It has changed throughout the years since it came into being quite considerably and may yet change again. When I was first asked about it, I was told informally by my late lamented noble friend Lord MacKay of Ardbrecknish, who was at that time our Front-Bench spokesman on the Bill, that it was really just a courtesy to the Scottish Parliament for the United Kingdom Parliament to offer to legislate on its behalf, if it was an issue devolved to it on which it would plan to legislate. It would thus save time, expense and duplication. I do not think it was ever quite thus but that was the flavour of how I first understood it. It has now turned into something quite different and I see it as a weapon that seems to allow the Scottish Parliament to intrude into United Kingdom legislation to an unsafe extent, possibly even to the extent of a veto.
What is clear is that the Sewel convention is still so fluid and unsettled as not to deserve the name of convention. I do not think, in its present form, it is fit to be converted into law. It may be that those who have drafted the Bill have found, in the form of words they have used, a more stable and secure base for the long term, but the convention has changed a lot over the years and may again. Initially, the United Kingdom Government seemed to maintain that it applied only to powers already devolved or to restricting or diminishing such a power. That was certainly the original intention as I understood it, but in 2005, Devolution Guidance Note 10 was published, which suggested:
“The convention applies when legislation makes provisions specifically for a devolved purpose”.
I see that as something much broader.
Since then, the Scottish Parliament has claimed it applies to devolved areas rather than devolved matters, so that it also applies to legislation increasing devolved powers, which the UK Government seem at times to have accepted. The Scotland Act 2012 bore this out, as it was almost entirely an empowering measure and was taken to require legislative consent Motions. Astonishingly to me, the Labour Opposition supported an SNP amendment in the Commons and tried to enshrine devolved areas into the legislation. That could have given the Scottish Government a veto on UK legislation, which is what prompted my question to my noble friend on the Front Bench at Second Reading. This one-way degeneration of the original purpose of the convention is potentially damaging to the sovereignty of the United Kingdom Parliament, and we have to exercise great care in handling this.
The Smith commission asked only that it be put on a statutory footing. Even if we can be confident of a clear, unambiguous wording, the potential troubles do not end there. My noble and learned friend Lord Hope indicated at Second Reading, as he will recall, that it could become challengeable in the courts. My noble friend Lord Norton had serious concerns also, pointing out:
“Clause 2 does not transpose the Sewel convention into statute. It simply states the convention”.—[Official Report, 24/11/15; col. 639.]
I am completely out of my depth in reacting to that and I look forward to his speech a little later in the debate.
My amendment echoes the concerns of others to counter the uncertainties generated by the present wording of the clause. We have all felt the need to reiterate, in every possible way, the need to reassert the sovereignty of the United Kingdom Parliament. My amendment is the simplest and shortest—it may not be the best but at least it has a different wording from that rejected by my noble friend on the Front Bench. We must have a wording that is clear and unambiguous and able to withstand challenge in the courts, where I suspect it will probably end up.
My Lords, I will speak briefly to the two amendments in my name, Amendments 14 and 18. I thank the noble and learned Lord, Lord Wallace of Tankerness, the noble Lord, Lord Stephen, and the noble and learned Lord, Lord McCluskey, for adding their names to Amendment 14.
I think we are all aiming for the same thing: clarity and the removal of ambiguity. The one thing that struck me when I was looking at the Bill for the first time was the use of the word “normally”. It is not a very good legal word; indeed it is a word that could, as those who know far more about the law than I do have said repeatedly, be challenged in the courts. In these two amendments, I have sought to remove that word entirely and to give, in Amendment 18, a specific exception. I do not suggest that this is the only answer or necessarily the best one. I listened carefully to what my noble friend Lord Lang said a moment or two ago, but I would delete “normally” and insert at the end,
“save in times of war or national emergency”.
It is accepted in the Bill that there could be occasions when the United Kingdom Parliament, which has absolute sovereignty, would need to override the Scottish Parliament. None of us wants that to happen—and certainly not often—but if we recognise that that can or could happen, we have to be a little clearer with our definitions. I believe that by removing “normally” and inserting a couple of specifics, we are moving in the right direction. It is in that spirit that I commend these amendments to your Lordships’ House.
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.
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”.
Could the noble and learned Lord tell me what “normally” normally means?
That depends on the context in which it is used. Normally, “normally” means “usually”—but “norm” means a standard and the main definition in some dictionaries is of conforming to a standard. I cannot understand with regard to devolved matters of legislation what the standard would be. That is why I tabled Amendment 19. If you leave in “normally”, in effect the decision on whether the circumstances are such as to allow the Parliament of the UK to legislate is one for that Parliament to take. That is the first point. In other words, I do not care who decides it, but someone must decide it.
If you do not decide it in this sort of way—namely, by giving the job to a Parliament—you will leave the job to a court. I have no idea what a court would make of the word “normally”. How would a court judge what is normal in the context of devolved and other legislation without hearing evidence? Must a court then hear a lot of evidence from constitutional experts, who are unlikely to be unanimous if today’s proceedings are anything to go by? They are not unanimous and I do not think a court would be able to rule on the matter without hearing evidence. I would hate to see the courts having to deal with this kind of matter, albeit that it would be a bonanza for lawyers—of whom I confess to being one.
My Lords, I support my noble friend Lord Lang in what he said. The wording of this clause reflects what I understood that Lord Sewel said in this House at the time of the passing of the Bill. It says that,
“the Parliament of the United Kingdom will not normally legislate with regard to devolved matters”.
When that was said before, I think that all of us here—my noble friend Lord Lang reinforced this—thought that it referred to Schedule 5, non-devolved matters, so that a Sewel Motion would be needed for anything discussed in this House outwith Schedule 5.
I have watched over the years as this matter has gradually crept out. The noble Lord, Lord Stephen, mentioned the various steps along which the Civil Service has progressed in making this convention. It was always a fairly constitutional matter and they were chipping away at what we understood could or could not be discussed. To just leave the wording as it is tells only half the story. We must find out what exactly the convention has developed into and what wording would describe it if we want to have it as either a convention or whatever it is. At least we have it on the Floor of the House now and can begin to look at what it should be.
Having seen the wording when the Bill was published, I asked a Written Question of my noble friend the Minister. I asked,
“how many times the Scottish Parliament has passed a legislative consent motion … regarding matters that were not at that time devolved under Schedule 5 to the Scotland Act … and in each case what reason was given”.
The Minister kindly replied with one example, but I think there must be many more. His example was that,
“section 10 of the Scotland Act 2012 made provision for certain elements in relation to air weapons to be within the legislative competence of the Scottish Parliament”,
the argument being that things that were about to be devolved should be subject to a legislative consent Motion. We need to know exactly how far this goes and what its meaning will be.
My Lords, I will speak briefly to support my noble friend Lord Norton’s remarks and the amendment of my noble friend Lord Lang. I will not go through all the arguments about sovereignty again because we have done them to death. I will also speak to Amendment 17, which for some reason was put in an earlier group. I tabled it as a probing amendment but having listened to the debate I really think my noble friend needs to go back to the drawing board on this. It surely makes sense to put into statute the Sewel convention and then abandon it as a convention, as we discussed earlier. Of course, when we discussed English votes for English laws, I predicted that by giving the Westminster Parliament an English veto on legislation it would be only a matter of time before people argued that there ought to be a Scottish veto, as the noble Lord, Lord Stephen, did in the context of the Sewel convention.
What my noble friend Lord Norton said was very wise. We need to work out what this convention means and we need to put that in the Bill in a way that is apparent. To reassure the noble Lord, Lord McAvoy, who worries about how this will be seen by nationalists north of the border and that some people are trying to refight the battles of 1997, I see no reason why we should not just cut this Gordian knot and leave the Scottish Parliament to legislate on all devolved matters. What happens is that it piggy-backs on legislation that is carried down here and then finds it very convenient to blame Westminster for passing the legislation to which of course it was a party.
This Bill hands a huge new set of powers to the Scottish Parliament, with huge new responsibilities. The whole purpose of the Bill is apparently about making the Parliament accountable to the Scottish people. Well, why not let them get on with passing the legislation necessary to meet their responsibilities? I think that the Sewel convention should be toughened up. It should be made stronger and should basically provide that the Parliament of the United Kingdom will not legislate with regard to devolved matters. It is up to the Scottish Parliament. Why would we wish to do so?
I am trying to follow the noble Lord’s arguments carefully but it seems that, even with the new powers that we should be or are giving under this legislation, there will still be matters for instance in transport where we might pass legislation that will affect Scotland. I travel on a train from Euston up to Glasgow every week and back down every Monday. That is partly covered by transport legislation from this House. Is the noble Lord saying that once it crosses the border it should then be covered by legislation for Scotland?
Well, devolution was not my idea but that seems to be what it means. You cannot have it both ways. Presumably, if we were bringing in legislation that would affect the noble Lord’s travel across the border there would be the normal consultation process. My argument is: what is wrong with letting the Scottish Parliament get on with passing the necessary legislation? If it is a devolved matter, it is a matter for the Scottish Parliament. Then we do not have a problem with the Sewel convention. Provided we retain the sovereignty of this Parliament, there is nothing whatever to stop us passing legislation in times of emergency, war or whatever else that could apply. In the Bill as presently constituted, this word “normally” is fine for a convention but ridiculous for a statute.
Having argued that this should be set down properly in the Bill, explaining how it will work as a matter of statute and not as a convention, if we were to retain the convention and were looking at what the convention would be that we sought to enshrine in statute, I would say that it is recognised that the Parliament of the United Kingdom will not legislate with regard to devolved matters. It is entirely up to the Scottish Parliament, if it wishes us to legislate, to argue for the contrary.
Of course, the great irony in this—as the noble Lord, Lord Gordon of Strathblane, indicated—is that we are legislating on a monumental scale now in this Bill without the consent of the Scottish Parliament. There is the distinct possibility, as we still do not have the fiscal framework, that the consent of the Scottish Parliament might not be forthcoming and that we might have to do it all over again. So there is a thought.
My noble and learned friend needs to look at these amendments and think about them and come back with a clause in statute that actually defines what the Government believe that the Scottish Parliament and the Westminster Parliament should do with—in the words of the noble and learned Lord, Lord McCluskey—absolute crystal clarity, so that we do not have this business of blaming Westminster any longer for legislation that was covertly supported by the Scottish Parliament. If it has that responsibility, it may very well find, as the Westminster Parliament does, that it has to be discriminatory about what it wants to put on the statute book—and it may very well find that it is no longer able to get away with sitting for a mere one and a half days a week.
My Lords, there has been a widespread and interesting debate on this very important area of legislation. The noble Lord, Lord Norton, said that the debate had been useful to move matters forward, and I respectfully agree. It has provided the Minister with a smorgasbord of possibility.
The noble Lord, Lord Stephen, is correct in identifying the utility in having clarity where the UK Government may or may not have power where legislative consent Motions may come into being. That is quite clear. The alternative that is proposed by the noble and learned Lord, Lord Hope of Craighead, is a carefully laid out analysis of what the actual problem has been and how it may be converted into statute. If one is going down the route of statute rather than maintaining convention in place, this appears a helpful and clear way forward.
The fact that the executive competence of the Scottish Parliament comes into play is a matter that has troubled people from time to time. One example might be the position of Scottish law officers. In Scotland, Ministers are in charge of day-to-day management of prosecution. Some people might think that that was anomalous. In fact, had the noble and learned Lord, Lord Wallace of Tankerness, been here this evening—he is in a more illustrious place—he would recollect saying many years ago that the position of the Scottish law officers in being prosecutors and Ministers was anomalous. Those are the sort of issues that with this approach are clearly put back into the Scottish Parliament to be dealt with by either the Parliament or the Scottish courts.
As for the problems that have arisen when legislative consent Motions have been deployed, they have in fact worked extremely well over 15 years. The notion that in some way they have subverted the sovereignty of the United Kingdom and this Parliament is, I would suggest, somewhat of a chimera. As the Minister has already indicated on a number of occasions, the sovereignty of this Parliament has not been subverted, and is not subverted. So on the notion in the amendment proposed by the noble Lord, Lord Lang of Monkton, that sovereignty should be made absolutely clear, on this side of the House we would accept what the Minister has said repeatedly—and we have that before us, if we look at Pepper v Hart—that this Parliament remains sovereign.
On the vexing question of the word “normally”, we support its deletion. We appreciate that the word, despite the helpful guidance from the noble and learned Lord, Lord McCluskey, is not easily understood in applying matters of statutory interpretation. The noble and learned Lord, Lord Mackay of Drumadoon, was a witness and saw the uttering of the legislative consent words, and he very helpfully set out that words can appear without necessarily having the fully considered import that a draftsman might bring to bear. The noble Lord, Lord Empey, made the point very clearly in the context of Northern Ireland. So although it may be thought by some, possibly, that deletion of “normally” is in fact an extension of legislative consent, we on this side would support it. If it is seen as in some way increasing a fetter on Ministers, so be it in order that clarity might be produced.
We oppose Amendment 18 advanced by the noble Lord, Lord Cormack, on the basis that we see that the UK remains the UK. If there is war or a national emergency, the constituent parts of the United Kingdom can be relied on to pull together. We also oppose Amendment 17, proposed by the noble Lord, Lord Forsyth of Drumlean, perhaps unsurprisingly. The legislative consent Motion procedure has been successful over 15 years; either of the amendments proposed, setting out the statutory basis of the legislative consent Motion, would resolve the issue but there has not been a debate about this being an unsuccessful mechanism. It has worked not as a way in which to pose the Scottish Government against Her Majesty's Government but, most of the time, has resulted in co-operation, with the Scottish Government bringing issues to Her Majesty’s Government for discussion.
Has the noble and learned Lord not seen the statements made by senior Ministers in the Scottish Government to the effect that, if they do not get what they want out of the fiscal framework, they will veto the legislation and prevent it coming on to the statute book. I am not sure how, given the importance of this legislation and the background to it, the noble and learned Lord can say that the system is working perfectly well.
The noble Lord will of course be aware that I have seen those statements and have been interested in what they in fact mean. But he will also recollect that we say, from this side of the House, that given the discussion about the fiscal framework and possible use of legislative consent Motions in that regard, we see the co-operation that has taken place between the Scottish Government and Her Majesty's Government in the past as something in which we can repose a good deal of trust that it will continue in relation to this process with the fiscal framework. Our trust may be misplaced, but we conceive otherwise. The noble Lord, Lord Forsyth, cannot see any more than I can into the future, but we are in a position where we repose trust in the process, at least from this side.
In relation to the various amendments before the House, we accept that a number of them are useful. None the less, we oppose Amendments 13 and 18.
I hoped that the noble and learned Lord might say something about Amendment 20. Perhaps I was not sufficiently clear when I introduced these amendments, but Amendment 12 deals with the stage of passing a Bill and says that,
“the Parliament of the United Kingdom may not pass Acts … without the consent of the Scottish Parliament”.
Amendment 20 intercepts the matter at the earlier stage. It says:
“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”.
That amendment, as in the case of Amendment 12, was drafted in Edinburgh by people who know how the system is working. In giving his support to Amendment 12, I wonder whether the noble and learned Lord meant to give his support also to Amendment 20.
I apologise for not confirming that we support Amendment 20. I took that as being the overall approach—this smorgasbord—between the approach of the noble Lord, Lord Stephen, and the approach of the noble and learned Lord, Lord Hope. I hope that clarifies the point.
What is the noble and learned Lord’s view about the provisions in Amendment 12, which was tabled by the noble and learned Lord, Lord Hope? It contains paragraphs (a), (b) and (c). Paragraph (a) applies to Scotland and does not relate to reserved matters. I would have thought that is what is meant by devolved matters, but paragraphs (b) and (c) considerably add to that. As far as I can understand them, particularly paragraph (b), they would apply to this legislation.
Perhaps I can try to explain the proposition put forward by the noble and learned Lord, Lord Hope, in his amendment. As we see this, it reflects the reality of the way in which legislative consent Motions have been used over the 15 years, beyond the original.
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.
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?
I am not quite sure about the use of the term “veto”.
Would the Minister prefer “block” or “prevent being enacted”?
It merely means that in respect of matters that are English measures, there must be an element of English consent, but I do not accept that that derogates from the sovereignty of this Parliament. In due course, this Parliament might decide to legislate contrary to those provisions.
While it is true that legislation still requires the consent of both Houses, EVEL gives a group of Members of the House of Commons who are English MPs the ability to veto a provision so that it proceeds no further. I think that is the point that the noble Lord is making.
The term “veto”, if you wish to employ it, is there. It means that English measures require the consent of English Members, but it does not derogate from the sovereignty of this Parliament.
Clause 2 delivers paragraph 22 of the Smith agreement which sets out quite clearly that the Sewel convention will be put on a statutory footing. As with Clause 1 on permanence, the Smith commission agreement did not intend that the constitutional position should be changed, but that legislation should accurately reflect the position that already exists and has existed for 15 years.
I shall put this into context. Section 28(7) of the Scotland Act 1998 makes it perfectly clear that this Parliament can legislate in respect of Scotland in all matters, including devolved matters. It preserves the sovereignty of this Parliament.
When the Minister talks about the Sewel convention as it has been for 15 years, that does not include the various modifications that have been introduced in the 15 years. The Government will have to be careful about how they describe it.
I am obliged to his Grace. That does not, and that is why the convention is expressed as it is in Clause 2. There has been Devolution Guidance Note 10 with regard to how from time to time the convention may operate, but those are working arrangements which may alter from time to time and should not be enshrined in statute. That is not considered appropriate. That is why Clause 2 is in the terms in which it is found—because it reflects paragraph 22 of the Smith commission agreement.
My understanding of why the Sewel convention came to be expressed as it was is that Section 28(7) of the Scotland Act allows this sovereign Parliament to legislate, notwithstanding the terms of the 1998 Act, in respect of all matters pertaining to Scotland. There was, I apprehend, concern that if, for example, in a devolved area of competence, such as education or health, the Scottish Government got into serious difficulty, this Parliament might be open to the criticism that it had done nothing about it, even though it reserved to itself the power to legislate for Scotland on devolved matters in terms of Section 28(7). Therefore, the convention was expressed that normally this Parliament will not legislate for Scotland in devolved areas. That was expressed in those terms in order that this Parliament would not face criticism that it had done nothing as the health or education service in Scotland had deteriorated in the face of legislation from the devolved Parliament. That is the background to the introduction, as I understand it, of the Sewel convention. It works both ways.
I am most grateful to my noble and learned friend. Does that mean that as the number of passes being achieved by school leavers since I left office back in 1997 has fallen by 20% compared with England, there is still the possibility that we might intervene in the hash that is being made of the education services by the present Government in Scotland? I assumed that the answer to that question would be absolutely not, so what is my noble and learned friend getting at?
The point is that in terms of Section 28(7) we in this Parliament could, on the face of it, intervene in such a matter. That was the whole point of the convention: to make it clear that normally we would not do so. I may have misunderstood the intervention of my noble friend Lord Forsyth but, with respect, it seems to me that that is precisely why the Sewel convention was expressed in the terms in which we find it—so that if educational attainment in Scotland was failing we would not be faced with the criticism that the United Kingdom Parliament had done nothing about it because conventionally we would not normally intervene in a devolved matter, but we retain sovereignty and we have the right to do so. That is why the Sewel convention is expressed in the manner in which it is. The intention is not that Clause 2 should give rise to any justiciable issue. It is a political expression of the convention in statutory form. That is why the term “normally” appears within Clause 2. It makes it clear that this is not a justiciable issue. It is quite clear that in terms of the Smith commission agreement the Sewel convention will be expressed in statutory terms. It is there, but whether this Parliament would consider it appropriate to legislate for Scotland in a devolved area, which it can do pursuant to Section 28(7) of the Scotland Act 1998, is a political issue. It would not be for a court to decide what “normally” meant in that context. It would be a political issue. If it could be litigated in court and made justiciable, the question would be: what possible remedy could the court provide other than a political one? That is why it takes us back to the simple proposition that Clause 2, as set out, would not give rise to a justiciable issue. I give way to the noble and learned Lord, Lord Hope.
The problem is that paragraph 22 of the Smith commission report states that the Sewel convention will be put on a statutory footing. Rather like the noble and learned Lord, Lord McCluskey, I wondered what “statutory footing” meant, and I went to various sources to find out. A translation of it is fairly obvious: it means being put on a firm footing by being written into statute. That raises the question of what the effect is of writing something into statute.
The problem is that, whatever the Minister may say, someone seeing it written into statute is going to say, “Here is something which I can use to challenge a piece of legislation that is apparently being passed without the Sewel convention being observed according to its current usage”. With great respect, it does not do for a Minister to say to the court, “This is just a political matter”, because the judges will say, “It’s a matter for us”. The judge may look at the normal rules to see what the legislation was designed to do, and with a bit of research they will find that it was designed to give effect to the Sewel convention to put it on a statutory footing. The judge will then say, “Well, it’s a matter for me to construe what this means”. I am not at all impressed by the Minister saying that it is all a political matter, because it is now in the hands of the court to adjudicate upon.
The Minister asks, “What remedy does that give rise to?”. It creates uncertainty about the effectiveness of legislation. One of the things that we have to be very careful about is that the legislative process is well founded and not open to challenges, except those that are already subject to legislation in the Scotland Act. So, with great respect, it is necessary to warn the Minister that he cannot get away with assuming that the judges will accept that it is simply a political issue; it is not that at all, once it is written into statute.
The noble and learned Lord acknowledges that there would be no remedy other than a political remedy in that context, or appears to do so. He shakes his head; nevertheless, there is no remedy except a political remedy. This underlines the importance of the words “recognised as” and “normally” where they appear in Clause 2.
However, the noble and learned Lord, Lord McCluskey, spoke to his Amendment 19, a proposal that it should be expressly stated that the clause is not justiciable and does not give rise to justiciable rights. That is a matter that I would be pleased to discuss with him, albeit that the Government’s position at present is that there is no requirement to expressly state that in the context of a clause that, on the face of it, is implicitly not justiciable. That would be my position on Amendment 19.
On that point, this provision can be put in to render the matter not justiciable, but that is in the context that the decision would in fact be taken by the UK Parliament and that decision could not be challenged in court. The point about the Sewel convention, which the Minister says is being enshrined in legislation, is that the effect changes entirely because the Sewel convention was not justiciable at all, as I understand it, whereas the statute is always justiciable. The court cannot say, “We don’t want to give it a meaning”; the court has to find a meaning because it always has to answer the question before it.
In that context, it would be declaring that this is a clause that gives rise to only a political remedy, and that it was not for the court to intervene and determine whether a particular piece of legislation was normal or abnormal. That would not be an issue for the court, and that is the position of the Government with regard to the clause. That could be made clearer, or could be made express, but, as I say, I would be happy to discuss that in the light of the noble and learned Lord’s proposed amendment.
If the Minister is prepared to have those discussions, which are welcome, would he also be prepared to have a discussion with those of us who have signed the amendments to delete the word “normally”? I say very gently to him—echoing someone who should not be echoed in this Chamber, Cromwell—conceive it,
“possible you may be mistaken”.
I would respond to my noble friend by saying that anything is possible.
The debate at the moment seems to be concerned exclusively with primary legislation. Clause 2 is concerned with primary legislation made by Parliament, but the bulk of legislation these days is made by statutory instrument—made under powers that are granted by Parliament, of course, and many of these are existing powers—but I cannot see anything in the Bill that really grapples with the position of statutory legislation as opposed to primary. I wonder if that is an oversight or whether it is intended.
If I may, I shall respond to the observations from the noble and learned Lord, Lord Scott, after the dinner break. I confess it is not immediately apparent to me what the thrust of his point was, and maybe I am missing it, but I shall give it some consideration.
If the Minister will allow me, those of us who are not as expert as he is are getting a little puzzled. Can he help the House by giving practical examples of the sort of circumstances in which the UK Parliament would legislate on devolved matters? A few such examples would be helpful for us to understand precisely what this is getting at.
In a sense, this is connected to my earlier observation that at the end of the day the clause is not justiciable. It will be for Parliament at the time to decide that it is or is not going to legislate for Scotland in a devolved matter. The term “normally” means “usually” or “generally”, but Parliament at the time may decide that it is going to legislate for Scotland in respect of a devolved matter. There is no limit on that power, as is expressly provided by Section 28(7) of the Scotland Act 1998. There is no limit on this Parliament’s sovereignty and supremacy in respect of that matter. The Sewel convention merely says that normally it will not do so; that is all.
Does the Minister realise that if the UK Government decide that the situation is abnormal and therefore decide to legislate, and the Scottish Government go to a Scottish court and say, “We don’t agree with the judgment about normality”, the court will have to make a judgment about that if the word “normally” remains in the wording. There is no mechanism for that other than the court having to sit down and decide what it thinks Parliament intended when it used the word “normally”.
With respect to the noble and learned Lord, Lord McCluskey, I do not accept that proposition. It would be for the court to say that Parliament decides whether it is normal to legislate for Scotland in a devolved matter. It is not for us to interrogate that decision by Parliament. “Normally” means just that—no more, no less. It is not for the courts to say, “We don’t think the situation was abnormal”. That is a political decision.
I will not accept an intervention at this stage.
Then get on with it.
I am obliged to the noble Lord, Lord Foulkes.
Will the Minister give way?
In view of the time, no.
Amendment 11 would clearly impact on the ability of the United Kingdom Parliament to make laws for Scotland. To that extent, it would modify Section 28(7) of the 1998 Act. The effect of that amendment could be interpreted as an attempt to limit the sovereignty of this Parliament, a point that I believe the noble Lord, Lord Stephen, acknowledged, and the Government would not be prepared to accept such an amendment.
Amendment 13, conversely, seeks to state in the Bill that Clause 2 places no limits on the sovereignty of Parliament. We would say that if you say that expressly in one part of the Bill, you have to take care as to the impact that it will have on other parts of the Bill, and that it is appropriate to acknowledge that nothing in the Bill impinges on the sovereignty of Parliament.
I have mentioned the issue of justiciability and the express provision proposed by the noble and learned Lord, Lord McCluskey. As I indicated, I will be prepared to discuss that matter with him. With regard to Amendments 12, 15, 16 and 20, I will make the following short point. They go well beyond the Smith commission agreement, and the intention of the Bill is to deliver the Smith commission agreement—no more, and most certainly no less. Therefore, we will not accept those at this time.
With respect to Amendments 12 and 20, which were originally put forward by the SNP, again, we do not accept those for the reasons I have already commented upon. We submit that the word “normally” is very material in the context of the justiciability or otherwise of this clause. So far as the further amendment is concerned, it would have the effect of limiting the ability of the United Kingdom Parliament to make provisions applying to Scotland, even in reserved areas, therefore it cannot be accepted.
Finally, I will touch upon Amendment 17, tabled by the noble Lord, Lord Forsyth. I simply say that if that amendment was accepted, it would not be possible, as he indicated himself, for this Parliament to make legislation for Scotland in devolved areas, even with the consent of the Scottish Parliament. Over the last 15 years, the mode of working between the two Parliaments has been such that they have collaborated repeatedly on the matter of legislation promoted in this Parliament and extending to Scotland in devolved issues. Indeed, it happened as recently as the Serious Crime Act 2015. It is therefore of benefit to both Parliaments that this should happen. I cannot comment upon the observations that some Ministers of the Scottish Government have made with regard to the working of that operation but I urge your Lordships not to press these amendments.
My Lords, before my noble friend withdraws his amendment, can I ask my noble and learned friend a question, as he would not accept an intervention? We are in Committee. I am not a lawyer, but earlier in our discussions I gave the example of where the Scottish Government have fallen down on education in the context of his remarks that we retain the right to pass legislation on education, health or other matters where we feel that they are falling down. I put that forward as a debating point, but in circumstances where a Government, perhaps led by me, decided to do this, it would be outrageous if it was a political decision to intervene on an education matter based on a belief that the Scottish Government —an elected Government—were not doing their job. Therefore, if I were on the other side, leading the Scottish Government, I would go straight to the courts and say, “This word ‘normally’ does not provide for the kind of intervention which is being provided”. I do not understand why my noble and learned friend says that the courts would not take a view of what “normally” meant, and in fact, in this case, if I were the judge I would say, “Actually, ‘normally’ means ‘exceptional’”, but they may take a different view. That is what is causing the concern among the lawyers. However, in common sense terms, to have a word such as “normally” and to argue that there would not be judicial challenge and that, if there was, the courts would just walk away from it, cannot be right. Can my noble and learned friend explain why I am wrong?
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.
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.
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.
Can the Minister say whether that means that there will be a new convention that includes those elements?
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.
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—
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.
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.
12: Clause 2, page 2, leave out lines 5 to 7 and insert—
“(8) But the Parliament of the United Kingdom may not pass Acts applying to Scotland that make provision about a devolved matter without the consent of the Scottish Parliament.
(9) A provision is about a devolved matter if the provision—
(a) applies to Scotland and does not relate to reserved matters, (b) modifies the legislative competence of the Scottish Parliament, or(c) modifies the functions of any member of the Scottish Government.(10) In subsection (8), “Acts” includes any Act, whether a public general Act, a local and personal Act or a private Act.”
I am bound to say that I am very troubled by this whole matter and we will have to return to it on Report. Leaving the clause in its present form is bound to create instability—for reasons that I need not expand on further. Having given notice that I will come back to this on Report, I do not intend to move the amendment.
Amendment 12 not moved.
My Lords, I wanted to say a word about Amendment 12.
My Lords, we had the opportunity to speak to this amendment in a previous grouping.
Amendment 13 not moved.
14: Clause 2, page 2, line 6, leave out “normally”
I give notice that I will return to this on Report.
Amendment 14 not moved.
Amendments 15 to 20 not moved.
Clause 2 agreed.
House resumed. Committee to begin again not before 8.45 pm.